Introduction

While Part I of this paper dealt with discussing the jurisprudence surrounding aiding and abetting before the ICC and various ad hoc tribunals, this part shall demonstrate why the ‘specific direction’ standard should be incorporated within the Rome Statute. In this regard, this paper will first, discuss the inapplicability of the Rome Statute of the reasons laid down by the ad hoc tribunals for rejecting the standard. Second, it will discuss why the standard fits within the framework of the Rome Statute to be applied to the current mens rea standard.

Inapplicability of the Rationale of the Ad Hoc Tribunals

The reasons to dismiss the applicability of the standard discussed in Part I, even if arguably valid, are restricted to the ad hoc tribunals due to the difference in the Statutes. As summarized in the Taylor Appeal Judgement, the rationale for rejecting the ‘specific’ direction standard is two-fold. Firstly, it was reasoned that there is nothing in the respective Statutes of the ad hoc tribunals to indicate any such requirement. However, the Rome Statute, through its unique phrase “for the purpose of” under Article 25 (3)(c), shows a departure from the definition of aiding and abetting as in the Statutes of the tribunals. Any act done merely with the knowledge of the possibility of the commission of a crime by the principal perpetrator would not suffice the lex specialis of Article 25 (3)(c), but would otherwise satisfy the standards of the ad hoc tribunals. Therefore, there is statutory backing to support the applicability of the ‘specific direction’ standard.

Secondly, it was asserted by the Appeals Chamber that the standard was not an accurate reflection of CIL. This departure, however, does not preclude the ICC from applying the same, especially since it fits within the framework of the Rome Statute. Article 21 of the Statute clearly dictates that the Rome Statute itself must be the primary source of law and the Court may look at other international rules as a subsidiary source of law.  The SCSL itself, in the Taylor appeal, refused to analyse Article 25 (3)(c) of the Statute since it did not reflect CIL, evidencing that the ‘purpose’ requirement in the Statute is already a departure from CIL. Therefore, the lack of backing by opinio juris or State Practice does not bar the ICC from applying the standard as long as it can trace the roots of its applicability to the Rome Statute. 

The ICC has therefore shown its amenability and preference to adopt a different standard for aiding and abetting as compared to the tribunals. However, asserting that the reasons for non-application of the standard to the Statute are not sufficient to prove its applicability.

Applicability of the Standard to the Rome Statute

The Rome Statute, under Article 25 (3)(c), lays down a ‘purpose’ requirement that is not analogous to the statutes of the ad hoc tribunals. The ‘purpose’ requirement has been interpreted into the mens rea through the case of Mbarushimana, laying down a threshold that is not met by mere knowledge of consequences. The assistance provided must be done with the aim of facilitating the commission of the offence. However, there has been no interpretation of the ‘purpose’ requirement within the actus reus element of Article 25 (3)(c). 

It has been argued by eminent jurists that the ‘specific direction’ standard could be equally applied to mens rea and actus reus. However, since there already exists jurisprudence on the ‘mens rea’ standard of Article 25 (3)(c) vis-à-vis purpose, the ‘specific direction’ standard must strictly be applied to the actus reus element of aiding and abetting. This will help encapsulate within the Article the ‘purpose’ requirement explicitly laid down in the same. Inculcating this requirement would work towards better defining the scope of individual criminal responsibility for the purposes of aiding and abetting under the Rome Statute. The actus reus would not extend to merely those passively undertaking actions that have an effect on the consequences through the principal perpetrator but would look to prosecute only those actions that work towards the facilitation of the crime. This would further strengthen the ICC’s criteria for establishing a causal link between the act of the defendant and the crime itself, a criterion the ICC has shown reliance on. In furtherance of the same, application of the ‘purpose’ requirement will become a much less tedious undertaking since the relevance of the actus reus to the crime will be a more objective and easily ascertainable test than gauging the mental element of the defendant. Mens rea is the more convoluted element of the two, with it being very difficult to ascertain objectively. This is not to state that the Court would not have to look at the mens rea requirement, but that applying this standard to actus reus would weed out cases where the act has not been directed towards the crime, and is hence not done to facilitate the same. The tedious scrutiny of mens rea could be reserved for cases that clear the bar of the actus reus requirements first. Applying the ‘specific direction’ standard would improve the synergy between the actus reus and mens rea element of Article 25 (3)(c).

Conclusion

Hence, the application of the standard not only fits within the framework of the Rome Statute but also solidifies the ‘purpose’ requirement enumerated in Article 25 (3)(c). It works towards reading the general ‘purpose’ requirement of Article 25 (3)(c) into the actus reus of aiding and abetting to better encapsulate the unique stance of the Statute on individual criminal responsibility for aiding and abetting.  Having demonstrated that the basis for rejecting the ‘specific direction’ standard does not apply to the Rome Statute, and that the standard not only fits within the framework of the same but enhances its meaning, it is submitted that the standard must be read into Article 25 (3)(c) of the Statute. Applying the same would ensure clarity regarding the elements of the mode of liability and uphold the unique stance of the Statute on aiding and abetting.

---

This is the second part of a two-part editorial by Aryan Deepak Mehta, Associate Editor at the Jindal Forum for International and Economic Laws. Click here to read Part I.

---

Image Credits: International Federation for Human Rights