I thought I'd briefly chime in on the legal dispute between Orin and David Kopel. I stress that I'm speaking here only of the legal dispute (as was Orin). The question is whether UN officials' (and by extension the UN's) actions would make them accomplices under U.S. law in a Hezbollah kidnapping, given the factual account that David set forth -- several UN peacekeepers take bribes from Hezbollah to assist in the kidnapping, and then top UN officials authorize the destruction or concealment evidence with the purpose of covering up the peacekeepers' misconduct (though not necessarily the purpose of helping Hezbollah). We're also all applying U.S. law, rather than, say, Lebanese or Indian or Israeli law, because the question is whether it's sensible to use the label "accomplice" to an overwhelmingly U.S. audience, and not whether particular people are likely to be convicted of particular offenses in the likely jurisdiction.
Here are my thoughts; I may be mistaken (unlike Orin, I've only taught crim law for a year, though I did study some of the mens rea / accomplice rules pretty closely for my Crime-Facilitating Speech article), and the matter is complex because some of the rules vary from American jurisdiction, but this is my sense of the matter.
1a. In most U.S. jurisdictions, to be guilty of aiding a crime under an "aiding and abetting" theory, also sometimes called an "accessory before the fact" theory, one (generally speaking) needs to help the criminal with the purpose that the crime be committed. Mere knowledge that one is helping bring about the crime, but in the absence of such purpose, isn't enough.
1b. But in a significant minority of U.S. jurisdiction, aiding and abetting liability can be satisfied even by a showing of help plus mere knowledge. E.g., People v. Spearman, 491 N.W.2d 606, 610 (Mich. Ct. App. 1992) ("To find a defendant guilty on an aiding and abetting theory, the people must show that (1) a crime was committed either by the defendant or by another, (2) the defendant performed acts or gave encouragement that aided or assisted in the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid or encouragement"), overruled as to other matters, People v. Veling, 504 N.W.2d 456 (Mich. 1993); Ind. Code § 35-41-2-4 ("A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense ...."). Some jurisdiction treat knowing-but-not-purposeful assistance as the separate crime of facilitation, but some (including those I just pointed to) treat is as ordinary aiding and abetting.
1c. There's also some authority -- though I'm not sure how widely it's followed -- for the proposition that the rule should be purpose (plus, of course, aid) for aiding merely "[v]enial crime[s]," but knowledge for "[h]einous crime[s]." People v. Lauria, 59 Cal. Rptr. 628, 633-35 (Ct. App. 1967).
2. OK, that's for standard aiding and abetting, for instance driving someone to a crime scene, acting as a lookout, and so on -- the sort of thing that the U.N. peacekeepers are accused of. But the U.N. high officials are being accused of covering up the crime after the fact. Here the question is whether they are "accessor[ies] after the fact," people who affirmatively help a felon escape capture after the crime is committed. Here the law generally requires only knowledge that the felony has been committed, though possibly plus the purpose of helping cover up the felony. The purpose to have helped in the felony in the first instance is unnecessary. Corpis Juris Secundum, Criminal Law § 140, states that "An accessory after the fact is one who, knowing a felony to have been committed receives, relieves, comforts, or assists the felon, or in any manner aids him to escape arrest or punishment." (There are problems with relying on legal encyclopedias as opposed to binding authorities such as cases or statutes, but here I think it's apt, because we're looking for the general view throughout the U.S. jurisdictions, so short of a 50-state survey the encyclopedia or a treatise is the best bet.) Similarly, the federal accessory-after-the-fact statute, 18 U.S.C. § 3, states that "Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact."
Therefore, under the facts set forth in David's post, the U.N. high officials' actions would likely make them accessories after the fact, because they knew that the peacekeepers (who were likely liable for at least some felony) had committed a crime, and were acting with the purpose of helping them evade capture. It does not matter whether the U.N. high officials had the purpose of advancing Hezbollah's goals; it's enough that they had the purpose of helping their subordinates evade capture.
3. So under the facts as described, the U.N. high officials would be accessories after the fact -- but would they be accomplices? The modern view seems to be "no," but not uncontroversially. Rollin M. Perkins & Ronald N. Boyce, Criminal Law 727 (3d ed. 1982), as cited in Black's Law Dictionary, reports, "There is some authority for using the word 'accomplice' to include all principals and all accessories, but the preferred usage is to include all principals and accessories before the fact, but to exclude accessories after the fact." The federal courts definitely take this latter view, though the contrary view survives at times, especially in casual use; see, e.g., U.S. v. Payner (1980) (Marshall, J., dissenting) (opining that allowing the admission of illegally gathered evidence would make a federal court "the accomplice of the Government lawbreaker, an accessory after the fact"); Minn. Stat. Ann. § 609.495 (calling accessories after the fact "accomplice[s] after the fact"); United States v. Irwin, 149 F.3d 565, 571 (7th Cir. 1998) (same); People v. Dye, 427 N.W.2d 501, 512 (1988) (same); Purvis v. State, 208 Ga. App. 653, 654 (1993) (same); People v. Knapp, 441 N.E.2d 1057, 1067 n.1 (N.Y. 1982) (Jasen, J., dissenting) (same).
Thus, my tentative sense is: (1) It's probably better to describe people who act as the U.N. officials were alleged to have acted as "accessories" rather than "accomplices." There's a good deal of precedent, though, for using the term "accomplice"; and in any event, the two have similar enough connotation that in casual discussion little harm is done by substituting one for the other (though in careful legal discussion it might be clearer to follow what seems to be the dominant view and limit "accomplice" to accessories before the fact).
(2) A person or institution may be liable as an accessory after the fact (or, if you prefer, an accomplice after the fact) even if the person (or, for an institution, the institution's responsible actors) had no desire that the underlying crime be committed. Knowledge that they're helping the offenders escape, coupled with the purpose that the offenders escape (for instance, if the purpose is simply to cover up the offenders' crime so as to avoid embarrassment for the offenders' employers), suffices.
Please do let me know if I'm mistaken on any of these points.
Related Posts (on one page):
- Accomplices, Accessories, Mens Rea, and More:
- Response to "United Nations an Accomplice in Hezbollah Kidnapping":
- United Nations an Accomplice in Hezbollah Kidnapping:
Another issue that I am getting a bit tired of is this view here and elsewhere that the UN is some evil entity bent on causing harm to people. The UN is not a thing, sure, it is an entity for legal purposes--but the UN as an entity has no authority to do anything. The UN gains its authority based on the votes of the member states. The Sec. Gen. cannot decide to use troops in a conflict, the members must, by vote, instruct the Sec. Gen to utilize troops in a certain manner. If we do not like what the UN is doing, the fault rests not with the mechanism of the UN--it was set up with the honest belief that it would effectuate peace. The problem has become, like most other politcal organisms, the people in positions to effectuate change have, instead, used this authority for political gains. The problem is not the UN, the problem is that in order for the UN to work, member states must honestly strive to effect the principles of the UN Charter. There is no mechanism that can be used in place of the UN or in conjunction thereto that would make the UN all of a sudden work as we believe it ought to. It is the Ambassadors and heads of state that appoint them that must have a change in thinking in order for the UN to function properly-- This includes the US. We cannot disregard the authority of the UN when it suits us, then when it suits us, fight for the same authority.
The UN was not created to be a political football--using it as such does nothing to actually solve the problem. However, blaming the UN because a few individual soldiers working in conjunction with a UN military operation broke the law is absurd. Even if, the officials helped cover it up, I do not believe these officials acted in accord with the official positions of the UN. This once again goes to the problem of the UN being politically motivated towards each nation fighting for itself--rather than the good of the world. However, this is not an argument that ought to be brought against the UN. Is the UN perfect? Absolutly Not! But lets try to bring it back towards its purpose rather than treat as if it is some sort of evil terrorist organization
First, I assume your blog has about 10% non-US readers, minimum. I am from Germany, for instance.
Second, the legal reasoning about "accessory after the fact" is quite different in various jurisdictions. For example, the continental tradition has a family privilege that seems to be absent in the anglo-saxon law tradition.
I'd say that exactly where the fault lies. A bad decision-making process leads to bad results. A total lack of accountability (and diplomatic immunity) leads to bad results. The whole structure was set up--in good faith, but apparently by naifs--in such a way that it was guaranteed to fail at its mission.
I do not believe these officials [who covered up] acted in accord with the official positions of the UN.
So Annan, who refused to turn over videotapes to Israel, was just a rogue agent? That's a defense I haven't heard before. But assuming you're right, I suppose that means these violators of official policy been fired or somehow disciplined?
To give an analogy, burglary is (generally) breaking into another's dwelling in order to commit a felony (such as theft) within the house. If you break into house in order to get money to send your child to college, and your plan involves stealing from the house, you're guilty of burglary, even though your ultimate purpose (sending your child to college) isn't a felony -- it suffices that committing a felony is among your purposes.
HuckFinn: I agree that many of our readers are overseas readers, and I wish I had some more interesting information for them about foreign law, but I'm afraid I don't. More broadly, though, the question I'm dealing with is mostly whether David's original use of the term "accomplice" was sound; since he's writing for an overwhelmingly American audience, I think that should be judged against the American definition of accomplice.
No problem. I myself would not dare to comment about specifics of the US law system, with sparse knowing of the continental law system alone. Continue.
On the other side, I find it interesting to see the anglo-saxon law tradition more strict (in this matter) than the continental one.
A mother hiding her son (known by her, after the fact, as a murderer) from the police would not face punishment under continental law. For me that's nearer to natural law than the anglo-saxon approach.
Anyone else start to snicker at this?
As to the notion that the UN, as a corporate or legal entity, can't be party to a crime, I'd suggest checking that out with the erstwhile owners of Arthur Anderson.
So it looks like in your example, the mother is likely not liable. However, if your NEIGHBOR helps you, THEN (s)he's liable.
In addition, you were to take into account the ongoing criminal activity by high UN officials in the oil for food program, it can clearly be said that the UN leadership operated (and may still operate) as a mafia-like organization subject to RICO and other organized crime laws. Given the UN is headquartered in the US, this criminal organization would thus be subject to US law, were it not acting under diplomatic immunity.
This is the point of Prof Kople's post, continuing acts across the world that create a nexus of criminal acts (Heinous Crimes) against those they pretend to aid or protect, which may be construed as "Crimes against Humanity." (re: disarmaments in Cambodia, Rwanda, Darfur, East Timur, etc., that preceded Genocide).
Should anyone doubt the UN's intent to proclaim Hegemony over the entire world, I would suggest you go to their Website find and read their section on World Governance. I would also point to their repeated attempts to levy Taxes on the People of the "united States of America." The "Law of the Sea Treaty" would grant them Hegemony over the Oceans of the World, and, control of all shipping upon same.
Whether you consider the conduct "repeated" depends on whether you believe the separate acts, carried out by different persons, that hindered apprehension of the kidnappers should be considered as one incident. State and federal laws (especially in the area of what crimes are to be sentenced concurrently or consecutively) are relevant to this point, but this is also an area where public opinion might favor a different approach than statutes currently take.
WRT Robert Lyman's point, Lord Acton's maxim is correct, but unduly limited, as power without accountability, of which absolute power is but a part, corrupts absolutely.
Nick
The question stated or implied by the original post is whether or not UNFIL can do what needs to be done to secure the peace. One need know absolutely nothing about the law relevant to "accomplices," "accessories," "conspirators," etc. to answer that question.
Omphalopsychitics, re-focus your attention, that is if you do not wish to be seen as silly jabberers.
Your wild, frothing rhetoric has utterly convinced me.
What's the deal with "united States"?