The International Criminal Court issued a decision on December 16 that offered their first major interpretation of the enigmatic Article 25(3)(d) of the Rome Statute. The provision is notorious for the conflicting interpretations it has generated. I am completely confident that no one can be completely confident that his or her interpretation is 100 percent correct. That’s why I titled one of my law review articles about it Joint Criminal Confusion. There are no easy answers here.
That being said, I do believe that there are correct and incorrect interpretations of Article 25(3)(d), and the ICC Pre-Trial Chamber got much of it right in its decision in Prosecutor v. Callixte Mbarushimana.
For those of who you aren’t Article 25 junkies and don’t have the provision memorized, here’s the full text of Article 25(3)(d):
In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person… (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime…
First, the court rejected an interpretation of Article 25(3)(d) that had been favored by Judge Cassese, i.e. that Article 25(3)(d) only applied to “outside contributors” who assist a collective crime from the outside, but who aren’t themselves a member of the criminal group. I argued previously in Joint Criminal Confusion that the outside contributor interpretation was wrong and that it was based on a misreading of a nearly identical provision taken from an international convention on the suppression of terrorist bombings. What’s at stake in this debate? If Article 25(3)(d) only applies to outside contributors, then some other mode of liability must deal with insiders, i.e. members of the criminal collective. That mode of liability could have been Joint Criminal Enterprise, which is applied by the ICTY. Since the ICC rejected the outside contributor interpretation, I don’t think they are likely to adopt JCE anytime soon.
Second, the court concluded that there is a threshold requirement for what counts as a contribution that can generate liability under Article 25(3)(d). The ICC concluded that there needs to be at least a significant contribution, though the Chamber declined to hold that there needs to be a substantial contribution, which the Chamber took to be a higher level of contribution. In reaching this holding, the court cited this paragraph of mine from an early article on the Rome Statute and collective crimes:
Many members of the community may provide contributions to a criminal organization despite the fact that they disapprove of the group’s criminality. Merchants sell food, water and clothing to criminals; they sell cars and gasoline and repair their vehicles; they rent them office space, apartments and houses. These services are no doubt contributions to criminal organizations, since, without them, a conspiracy could not continue. Furthermore, these services may well be performed knowing of a gang’s criminal goals. However, these contributions are best viewed as commodities because they are readily available on the open market. (Of course, the sale of firearms or explosives is another story.) But if one merchant does not sell the gasoline, another merchant will. However, because this contribution is ‘intentional’ in the basic sense and is made ‘knowing of the group’s intention to commit the crime’, the merchant is criminally liable for the whole conspiracy under the Rome Statute.
Obviously, I’m pleased that the court decided that providing mere commodity services is insufficient to establish vicarious liability for someone else’s criminal endeavor. I do, however, have one semantic quibble. The Chamber assumes, as other courts have, that a “significant” contribution is lower than a “substantial” contribution. I find this a curious use of these phrases, because I would have expected the opposite ordering. To my ear, a significant contribution is greater than a substantial contribution, but other readers may feel differently. In the end, it doesn’t really matter as long as everyone is clear which one is the lower category and which is the higher category.
This won’t be the end of the ICC’s jurisprudence on collective crimes. It’s just the beginning, because closing arguments in Katanga and Chui are scheduled for early 2012, with certainly a Trial Chamber judgment soon after, I would presume.