Accessory After the Fact at the International Criminal Court?

Abstract

It has generally been understood that international criminal law recognizes ex post facto aiding and abetting as a mode of liability but not the standalone offence commonly known, in many states, as accessory after the fact. However, as this article reveals, the authentic Spanish text of Article 25(3)(c) of the Rome Statute of the International Criminal Court (‘ICC Statute’) includes the word ‘encubridor’ which — as a comparative analysis of the Criminal Codes of Spanish-speaking countries confirms — is the Spanish language legal equivalent of a person that is an accessory after the fact. Yet, nothing in the authentic English text of Article 25(3)(c) — the version that most of the international criminal law scholarship and the International Criminal Court (‘ICC’) have focused on — alludes to this. To resolve this substantive discrepancy, Article 25(3)(c) is considered across all authentic languages (Arabic, Chinese, English, French, Russian, and Spanish) and in light of Articles 31–33 of the 1969 Vienna Convention on the Law of Treaties in a manner consistent with the rights of the accused. This article concludes that the mentioned discrepancy is unique to Article 25(3)(c) in the authentic Spanish language, most likely the result of an error, and that the concept of ‘accessory after the fact’ should not be applied at the ICC. That Article 25(3), a provision that has featured in so many ICC decisions and judgments and spawned so much academic writing, has contained such a glaring and seemingly undetected error for over 24 years ought to compel commentators, academics, and practitioners to look beyond the working languages of the ICC — English and French — when analysing, interpreting, and applying the ICC Statute.