Aiding and Abetting liability in Gaza – Jindal Forum for International and Economic Laws
On November 21, 2024, the International Criminal Court (hereinafter “ICC”) issued arrest warrants for Israeli leaders Benjamin Netanyahu and Yoav Gallant, charging them with war crimes and Crimes Against Humanity (hereinafter “CAHs”). These warrants, issued after a ruling by Pre-Trial Chamber I, found reasonable grounds to believe that Netanyahu and Gallant bear criminal responsibility as co-perpetrators. The Chamber also affirmed the ICC’s jurisdiction over Gaza, the West Bank, and East Jerusalem under Article 12(2)(a) of the Rome Statute (hereinafter “RS”). These developments have sparked scrutiny over international arms suppliers’ roles in facilitating the alleged crimes.
The United States, and Germany account for the majority of arms exports to Israel. These arms and ammunitions have allegedly been used by the Israeli military in operations linked to war crimes, including causing civilian casualties, murder, and persecution. This article will analyse the potential liability of these arms exporters under the RS, the ICC’s legal framework. Specifically, it will examine Article 25(3)(c) of the RS, which establishes liability for aiding & abetting crimes. The analysis will first explore the legal definitions of this mode of liability and then assess whether the elements of this crime can be attributed to the persons who are exporting arms to Israel.
The legal definition of aiding and abetting under Article 25(3)(c)
Article 25(3)(c) of the RS states that any person under the jurisdiction of this court may be responsible for a crime if that person, “For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.” The liability of an aider and abettor does not require their actions to independently constitute a criminal offense; even lawful acts may amount to facilitation if they contribute to the commission of a crime. (see Šešelj Appeals Judgment, para 172). Additionally, there is no legal requirement that the accused be in geographical proximity to the crime for liability to be established. (see Miroslav Kvočka et al Trial Judgment, para 256).
This crime can be divided into two elements – the material elements (actus reus) and the mental elements (mens rea). To fulfil the material elements, earlier ICC judgments held that the accused’s conduct must make a “substantial contribution” to the principal crime. However, the Trial Chamber in Bemba et al rejected this threshold, reasoning that Article 25(3)(c)’s silence on the requirement for the contribution to meet a standard, coupled with its elevated mens rea requirement of purpose, obviates the need for a substantial contribution. Therefore, any effect that furthers, or facilitates the commission of a crime can fulfil this threshold.
The mental elements for Article 25(3)(c) have been interpreted in different lights, with scholars debating over the applicable standard for intent and purpose. However, the Trial Chamber in Bemba et al, the most recent case on Article 25(3)(c), clarifies the relation between intent and purpose. To satisfy the mental elements, the accused must have intent concerning the consequences of their conduct, and purpose regarding the facilitating of the principal crime. (see Bemba et al Appeals Judgment, para 97). Article 25(3)(c) introduces a higher mens rea threshold than knowledge and requires that the accessory actively wish, or intend for the facilitation to occur.
Article 30 of the RS defines intent in relation to a consequence as either meaning to cause the consequence or knowing that it would occur in the ordinary course of events. Knowledge refers to awareness of a circumstance, or awareness that a consequence would occur in the ordinary course of events. The threshold for intent would only be satisfied if the accused was virtually certain of a consequence occurring. (see Bemba Pre-Trial Judgment, para 362-363). The lower threshold of intent applies to the principal perpetrator’s crime, where the accessory must be aware that it would occur in the ordinary course of events.
German and U.S. Arms Exporters: Accessorial Liability for the War crimes and CAHs committed in Palestine
In contrast to corporate liability in domestic jurisdictions, the ICC can only exercise jurisdiction over natural persons pursuant to Article 25(1) of the RS. Charges can be brought against Senior Corporate Officials, Executives, CEOs, CTOs, and any employee that occupies a position of responsibility and authority. Further, acting as the Heads of State, Minister, or Parliamentarian does not exempt individuals from the jurisdiction of the ICC. Arms exporters have previously been prosecuted for aiding & abetting the principal perpetrator by providing arms where their assistance contributed to the furtherance of the crime at the Special Court for Sierra Leone (“SCSL”) (see Charles Taylor Appeals Judgment, para 540).
The ICC has jurisdiction over any crime committed in the territory of a state-party according to Article 12(2)(a) of the RS. In this case, the ICC Pre-Trial Chamber in 2014 has determined that Palestine is a state and any crime committed in the territory of Palestine can be subject to the jurisdiction of the Court. Therefore, regardless of the United States not being party to the Rome Statute, individuals involved in the arms transfer can be prosecuted by the ICC.
The United States has expedited arms export to Israel after 7 October 2023, transferring over 1000 GBU-39 guided aircraft bombs, small diameter bombs, missiles, artillery shells, armoured vehicles, and 500-pound bombs. Germany has been the second largest arms supplier to Israel, mainly transferring armoured vehicles used in the war, frigates and torpedoes. Ground reports show that the weapons supplied to Israel through the United States and Germany are being used to facilitate the commission of murder, persecution and intentionally directing attacks against a civilian population. Since this assistance is furthering the crimes perpetrated by Netanyahu and Gallant, it fulfils the material elements of the crime.
The mental elements require that the accessory have purpose regarding the facilitation and intent concerning the consequences of their conduct. In terms of knowledge, it is not necessary that the accessory knows the precise crime committed by the principal perpetrator; knowledge about the essential elements of the crime is sufficient (see Bemba et al Trial Judgment, para 98). The Special Court of Sierra Leone has previously held a conviction deriving knowledge from the fact that the crimes of the principal perpetrator were widely reported and condemned by the international community. (see Charles Taylor Appeals Judgment, para 538).
International criminal investigations have increasingly been using open-source videos, photos, and other media posted in the public domain to investigate war crimes and crimes against humanity. The attacks conducted by the Israeli military are widely reported by journalists, civilians and other organizations on the ground. These attacks are publicly available information and the arms exporters ought to have known that in the ordinary course of events, the arms they provided would be used in facilitating war crimes and CAHs in Palestine, fulfilling the threshold under Article 30 of the RS.
Purpose can be drawn from the accessory’s certain knowledge about the effect of his facilitation on the crime. The United States has met with opposition concerning the military assistance it provided to Israel both from within the US Congress, and from the broader international community. On 5th April 2024, the UN Human Rights Council passed a resolution calling for a ceasefire and an arms embargo on the transfer of arms and munitions owing to egregious violations of international humanitarian law. However, despite this resolution, the United States has continued to supply bombs, artillery, and other military assistance to Israel. These developments indicate that the assistance was provided with clear knowledge of the consequences in Palestine, and the purpose of these arms transfers was to facilitate Israel’s actions in the West Bank and Gaza.
Nicaragua submitted a case to the ICJ in March 2024 requesting the court to put a hold on German arms transfers to Israel in so far as those arms were being used to violate international humanitarian law. A similar request was filed by three Palestinians in June of 2024 to the Administrative court in Berlin. German Chancellor Olaf Scholz said, in July 2024 that Germany has supplied weapons to Israel and does not intend on stopping. The purpose behind German arms exports to Israel can be inferred from these developments, demonstrating that German authorities possessed clear knowledge of the consequences of their arms transfers and their alignment with the objectives of Israeli Prime Minister Benjamin Netanyahu in Palestine.
Potential defences
This section of the article will explore the potential defences that the arms exporters could apply to rebut the claims of accessorial liability under Article 25(3)(c). Firstly, the accused persons could claim that the high threshold of purpose is not satisfied as the purpose behind the arms exports could be explained by a range of factors including national defence considerations, commercial profitability, and an ignorance of the exact usage by the principal perpetrator. Germany has requested an assurance from the Israeli government that the weapons sold to them would not be used to commit genocide. Similarly, US Defence secretary has stated that the provision of arms was subject to Israel not targeting civilians with their military advancements. These requests could potentially masquerade the purpose behind the assistance and allow arms exporters to claim ignorance. However, the publicly available evidence (including images and videos shared on social media), press reports, UN resolutions, and an ICJ ruling point to the fact that the Israeli state is engaging in violations of international humanitarian law undermines this defence on the lack of knowledge and purpose.
Secondly, arms exporters may argue that their actions were lawful under their respective national regulatory frameworks. This defence posits that obtaining government-issued export licenses demonstrates good faith and negates the requisite criminal intent and purpose for the facilitation of war crimes and CAHs. Both German and US based arms exporters are subject to the regulatory regime of their national legal frameworks and foreign policy decisions which align with the provision of arms for Israel. The administrative court of Berlin has rejected the requests made by 3 Palestinians to stop the supply of arms to Israel. However, alignment with national legal frameworks do not absolve parties from international criminal liability. Laws and policies of a nation can contradict international law and therefore, even legal actions of arms exporters can come under the ambit of the ICC under Article 25(3)(c) where the elements for the crime are fulfilled.
Conclusion
The issuance of arrest warrants by the Office of the Prosecution (OTP) in the ICC for Israeli leaders – Benjamin Netanyahu and Yoav Gallant on November 21, 2024, marks a significant step in addressing the alleged commission of war crimes, and crimes against humanity in Gaza. The role of arms exporters, particularly from the United States and Germany, in facilitating these crimes has come under scrutiny, with evidence suggesting that their weapons have been used to perpetrate murder, persecution, and attacks on civilians. The assistance provided appears to meet the legal criteria for aiding and abetting under Article 25(3)(c) of the RS. While the legal framework exists to hold individuals accountable for aiding and abetting such crimes, prosecuting these arms exporters faces significant hurdles.
Political pressure from powerful states can potentially deter the OTP from pursuing charges against these arms exporters. For instance, the US strongly opposed the arrest warrants issued against Benjamin Netanyahu and Yoav Gallant and has levied sanctions against ICC officials. Another significant hurdle in pursuing justice is the non-compliance with requests for the execution of arrest warrants. This allows several individuals standing trial at the Court to remain at large. These patterns of political pressure and non-compliance by dominant political and economic actors undermine the independent role of the ICC in pursuing an end to impunity. Unless the international community can shield the ICC from external threats and ensure universal cooperation with its mandates, the promise of ending impunity will remain elusive. The international community must confront these power imbalances and ensure that the mandate of the RS cannot be subverted by political pressure, allowing arms exporters to face trial at the ICC for complicity in war crimes and CAHs.
Kamal Nambiar is an undergraduate law student at NALSAR University of Law, Hyderabad.
Picture Credit: Amnesty International