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Accomplices, Accessories, Mens Rea, and More:

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. ยง 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.

David Rosenberg:
What if the purpose of the UN officials was to protect the reputation of the UN and was not, specifically, to aid the felonious soldiers? Indidental to protecting the institutional reputation the offending soldiers gained some cover, but if the purpose was not to protect them would the officials still be accessories?
7.24.2006 3:37pm
18 USC 1030 (mail):
I am not sure any of this matters. No disrespect to any of the good professors involved--But, the UN cannot be a party to a crime. Whether or not we think their behavior egregious, the UN by virtue of the UN Charter as well as the Convention on the privileges and immunities of the UN, is immune from any criminal prosecution--as well as most civil matters, unless this right is waived by the Sec. Gen. This has been affirmed time and again--both in the United States. It is, admitedly, unfortunate as it provides no ability to ensure that the UN is actually doing the job entrusted to it.

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
7.24.2006 3:42pm
HuckFinn:

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.


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.
7.24.2006 3:45pm
Robert Lyman (mail):
If we do not like what the UN is doing, the fault rests not with the mechanism of the UN

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?
7.24.2006 3:56pm
Eugene Volokh (www):
David Rosenberg: If the purpose is to protect the UN's reputation by protecting the bribed peacekeepers, then the requisite purpose-to-hinder-apprehension is satisfied. The question is whether you had the purpose to hinder apprehension, not whether it was your sole or ultimate motive.

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.
7.24.2006 4:01pm
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.


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.
7.24.2006 4:38pm
Charlie (Colorado) (mail):

Please do let me know if I'm mistaken on any of these points.


Anyone else start to snicker at this?
7.24.2006 4:54pm
Charlie (Colorado) (mail):
More to the point, I'm not sure I buy the notion that the UN can't be party to a crime. It may, under treaty etc, not be possible to try them, as with, eg, diplomats with massive unpaid parking tickets, but that's not the same as saying that they didn't park illegally.

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.
7.24.2006 4:58pm
Eugene Volokh (www):
Charlie: I certainly hope that people don't start to snicker at "Please do let me know if I'm mistaken on any of these points" -- I would sincerely like to hear if I'm wrong, both because I'd then owe readers a correction, and because I'd then avoid embarrassing myself with this error in the future.
7.24.2006 5:01pm
Arvin (mail) (www):
HuckFinn: Actually, according to my study materials, there are usually exemptions for close relatives of the principal offender (i.e. they are not liable under "accessory after the fact" laws). It states further that the common law (i.e way back when) provided only for the spouse.

So it looks like in your example, the mother is likely not liable. However, if your NEIGHBOR helps you, THEN (s)he's liable.
7.24.2006 5:07pm
Peter Wimsey:
Huck/Arvin - yes, many states have family exceptions for accessories after the fact. Indiana's statute provides:

IC 35-44-3-2
Assisting a criminal
Sec. 2. A person not standing in the relation of parent, child, or spouse to another person who has committed a crime or is a fugitive from justice who, with intent to hinder the apprehension or punishment of the other person, harbors, conceals, or otherwise assists the person commits assisting a criminal, a Class A misdemeanor. However, the offense is:
(1) a Class D felony if the person assisted has committed a Class B, Class C, or Class D felony; and
(2) a Class C felony if the person assisted has committed murder or a Class A felony, or if the assistance was providing a deadly weapon.

7.24.2006 5:59pm
Greedy Clerk (mail):
I stress that I'm speaking here only of the legal dispute (as was Orin)Actually, Orin's post also pointed out the more important point that it was hyperbole to ascribe to the UN "a well-established record of collaboration with Hezbollah in the kidnapping of Israeli soldiers" based on one really terrible incident. Although the sentence may be literally true, it implies repeated conduct. As Orin stated: "To use a provocative example, consider press reports involving individual acts by U.S. soldiers in Iraq including rapes, murders, and cover-ups of those crimes. Surely it would be unacceptable to go from those stories to the broad claim that 'the United States had a well-established record of raping and killing women and children.'" Indeed, under DK's logic, we may as well say that "the United States, alone among all other nations, has a well established record of dropping atomic bombs on civilian targets."
7.24.2006 6:41pm
Mike Lorrey (mail) (www):
As I noted in Orin's blog in commentary, the purpose of the terrorists in kidnapping should be immaterial: the purpose of the UN peacekeeper accomplices was to get paid, just like hundreds, if not thousands, of other accomplices to kidnappings throughout history, at least some of which have been found guilty of felony murder (and in the case in hand, the two kidnapped soldiers were murdered in Hezbollah custody and later returned as corpses in a prisoner exchange). So, the UN peacekeepers were, as accomplices, guilty of felony murder as well. The real question is whether an accessory after the fact can also be found guilty of felony murder.

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.
7.24.2006 7:40pm
Warsong (mail) (www):

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.


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.
7.24.2006 8:41pm
NickM (mail) (www):
Actually, Orin's post also pointed out the more important point that it was hyperbole to ascribe to the UN "a well-established record of collaboration with Hezbollah in the kidnapping of Israeli soldiers" based on one really terrible incident. Although the sentence may be literally true, it implies repeated conduct.

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
7.25.2006 12:08am
neurodoc:
"Accomplice" and "collaborate" are commonplace words, readily understood by most English-speakers, and defined in standard dictionaries without specific reference to provisions of Common Law or criminal statutes. Professor Kopel's point was that the UN, in particular UNFIL, cannot be seen as trustworthy peacekeepers along the Israel-Lebanon border given the shameful conduct he cited. In that context, "accomplice" and "collaborate" were not at all out of place. It is of little or no consequence whether the conduct described might be prosecutable under American criminal law. In his original post, before the comments started coming in, including those of his co-bloggers, the professor did not suggest that it could or should be pursued as a criminal matter. And since it will never be pursued as a criminal matter by anyone even if it could be, most of the discussion is "academic" at best, which is to say really pointless and distracting.

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.
7.25.2006 3:04am
neurodoc:
Also, Professor Volokh says, "I stress that I'm speaking here only of the legal dispute (as was Orin)." And he (EV) did limit himself to a discussion of "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." It does not appear to me that Professor Kerr similarly limited himself to "the legal dispute," however. Instead, he took what was essentially Professor Kopel's political opinion, subjected it to legal tests of doubtful relevance, then held that Kopel case was unconvincing because it did not hold up under his (OK) legal analysis, and offered his (OK) own "political" opinion as the answer ("...I'm not saying that the UN is the greatest...But I don't think it helps us to paint with the broadest possible brush").
7.25.2006 3:21am
Colin (mail):
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."

Your wild, frothing rhetoric has utterly convinced me.

What's the deal with "united States"?
7.25.2006 1:02pm