Comments minimizing conviction for aiding and abetting deserve a double-take.
Chatter to this effect has been constant since last Wednesday, when Liberian ex-President Charles Taylor was found guilty of aiding and abetting 1990s rebels in Sierra Leone – but not of engaging in a "joint criminal enterprise" with the Sierra Leonean leaders of that rebellion. (credit for photo below of Taylor)
Our colleague Kevin Jon Heller was right to call this "a stunning rebuke" by Special Court for Sierra Leone Trial Chamber II – for the reason that the Office of the Prosecution had constructed its narrative of Taylor's criminality primarily on the framework of joint criminal enterprise theory.
But the failure to prove a joint criminal enterprise does not mean that Taylor was not found a criminal.
Quite to the contrary.
Paragraph 168 of the 44-page summary of the yet-to-be-released Taylor judgment states unequivocally:
'[T]he Trial Chamber finds beyond reasonable doubt that the Accused is criminally responsible pursuant to Article 6(1) of the Statute for aiding and abetting the commission of the crimes set forth in Counts 1 to 11 of the Indictment.'Note the words "criminally responsible."
"Oh, but" – some seem to say – "but aiding and abetting isn't so bad. Not nearly as bad as JCE" (using the acronym by which supporters and detractors alike prefer to refer to joint criminal enterprise).
Closer examination undermines each of those claims, revealing both that the hierarchy of criminality implied in these statements is not universally accepted, and that the statements derive from judicial interpretation of a statute other than that at issue in the Taylor case:
► The asserted hierarchy doesn't exist – at least not in the criminal law jurisprudence of one not-insignificant national criminal justice system. The United States' criminal code begins with this proclamation:
'Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.'18 U.S.C. § 2(a). Applying that unequivocal statement is § 2 X2.1 of the Federal Sentencing Guidelines Manual (2007), which instructs judges to calculate the term of imprisonment for aiding and abetting as follows:
'The offense level is the same level as that for the underlying offense.'Thus in the United States – a jurisdiction whose behavior contributes to the state practice that forms customary international law – an aider and abetter is equally criminally responsible, and subject to equal punishment, as the principal perpetrator of a crime. Both the principal and the aider/abetter stand on a higher plane than, say, the accessory after the fact, whose sentence is cut in half, or the committer of misprision of felony, who serves no more than 3 years in prison. Indeed, the principal and the aider/abetter stand on a higher plane of criminality than the conspirator: with regard to this national crime akin to the international theory of "joint criminal enterprise, 18 U.S.C. § 371, the United States' general conspiracy statute, permits no more than 5 years in prison.
► The notion that engaging in a joint criminal enterprise is worse than aiding and abetting seems to have won purchase among judges of the International Criminal Tribunal for the former Yugoslavia.
As IntLawGrrl Jennifer Easterday explains in her excellent post below, former ICTY Judge Antonio Cassese contended in a 2007 article that an aider and abetter "only intends to assist," but "does not share the mens rea" of the perpetrator, so that "in principle, the criminal liability of the aider and abettor is more tenuous (or less weighty) than that of the participant in a common criminal enterprise." Extending this rationale to sentencing, an ICTY Appeals Chamber stated in 2004 "that aiding and abetting is a form of responsibility which generally warrants a lower sentence than is appropriate to responsibility as a co-perpetrator." (credit for photo of ICTY building)
ICTY jurists certainly are free to pursue this reasoning, given that it was they who invented the doctrine of "joint criminal enterprise" to fill a perceived lacuna in an ICTY Statute that contains neither this theory of liability nor that of conspiracy. But their development of jurisprudence under their own statute does not mandate similar interpretation of other international criminal statutes – such as the Statute of the Special Court of Sierra Leone. This latter statute explicitly provides for aiding and abetting liability in Article 6(1), yet nowhere mentions "joint criminal enterprise," notwithstanding its promulgation years after an ICTY Trial Chamber 1st advanced the JCE theory in Prosecutor v. Tadić (1999).
The judges of the Special Court will need to make their own decisions on this question, based on their own reasoned analysis of their own statute.