Electronic copy available at: http://ssrn.com/abstract=1338066
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ORPORATE
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IABILITY
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EVELOPMENTS IN
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Extending International
Criminal Law beyond the
Individual to Corporations
and Armed Opposition
Groups
Andrew Clapham*
Abstract
This article argues that corporations and armed opposition groups have obligations under international law. It is suggested that the scope of the obligations turns on the capacity of the entities in question. While there may be no international court to hear complaints against such entities, understanding their legal obligations under international law is important in situations where national courts have jurisdiction over violations of international law committed by non-state actors. Furthermore, it is vital to realizing the potential of claims of corporate complicity in international crimes and the impact such claims may have in the field of ethical investment.
1. Introduction
This article challenges a number of traditional assumptions about inter-national criminal law. It is often assumed that interinter-national criminal law is exclusively addressed to crimes committed by individuals.1Moreover, one often comes across the assumption that only subjects of international law can enjoy
* Professor of Public International Law, Graduate Institute of International and Development Studies, Geneva; Director, Geneva Academy of International Humanitarian Law and Human Rights; Member, Board of Editors of this Journal. I am very grateful to Fiona Le Diraison for her marvelous research assistance.
. . . .
Journal of International Criminal Justice6(2008), 899^926 doi:10.1093/jicj/mqn076
Electronic copy available at: http://ssrn.com/abstract=1338066 international obligations. And, recourse to the maxim societas delinquere non potest prompts one to assume that there is an established (even classical) notion (even principle) that ‘companies cannot commit an offence’.2
Anyone who doubts the power of these assumptions need only go on-line for a few minutes. The maxim societas delinquere non potesteven has its own Wikipedia page (albeit in Spanish).3The provenance of the maxim is invoked, not only to refute the development of laws which would criminalize corporate conduct, but also to suggest that the maxim leads to the conclusion that it would be ‘impracticable’ to prosecute state crimes under international law.4 Even for those, such as Gaetano Arangio-Ruiz, who sought to go around the maxim in the context of state crimes under international law, the assump-tive power of the maxim exerted full force with regard to national law.5It is therefore vital to be clear when discussing the topic of crimes committed by entities that are not individuals, whether we are talking about international or national legal orders. Not only are the rules different but the assumptions may be different.
The complexity of this topic is compounded by the fact that the comple-mentarity principle introduced by the Statute of the International Criminal Court (ICC) has coloured how we think about international criminal law. As we shall see, the inability of some lawyers, from some national legal orders, to conceive of entities that are not individuals as having obligations under criminal law, has meant that a complementary international criminal jurisdiction was inconceivable. This article will argue that, such assumptions and complexities notwithstanding, international criminal law is developing obligations that reach beyond the individual.
Rather than attempting a simple paradigm shift, which replaces one set of assumptions with another set of new, more appropriate, assumptions, the method employed here will be to present a narrative that highlights how corporations and armed groups are being addressed by international law and international bodies. In some instances, we shall examine how such entities
1 For example, G. Werle,Principles of International Criminal Law(The Hague: T.M.C. Asser Press, 2005), at 35.
2 ‘The traditional principle embodied in the Latin maximsocietas delinquere non potest (compa-nies cannot commit an offence) continues to be reflected in the laws of some states, such as France, Germany and Austria, where corporate criminal liability applies in only limited circum-stances, and generally on a more restrictive basis than the ‘‘identification theory’’ of Anglo-Canadian law.’ ‘Legislative Summaries LS-457E, Canada’, Bill C-45: An Act to Amend the Criminal Code (Criminal Liability of Corporations), prepared by David Coetz, 3 July 2003. For a discussion of the influence of the ‘rule’ in Switzerland, see P. Graven and Ch-A. Junod, ‘Societas delinquere potest’ inMe¤langes Robert Patry(Lausanne: Payot, 1988), 351^365. 3 http://es.wikipedia.org/wiki/Societas_delinquere_non_potest (visited 23 October 2008).
4 ‘Furthermore, as early as in the Roman times, the theory of criminal law already affirmed that ‘‘societas delinquere non potest’’. It is impracticable to attempt the prosecution of State ‘‘crimes’’.’ Statement by Ms Xue Hanqin (China) on Agenda Item 159 (ILC), UNGA, 23 October 2000. 5 UN Doc. A/CN.4/SR.2315, Summary Records of the 45th Session of the ILC, 2315th meeting,
have been held judicially accountable for violations of international law, albeit usually through national jurisdictions. Before we turn to these developments, we should, however, briefly canvass some of the doctrinal ideas that continue to influence our thinking.
2. The Subject of Subjects and the Question of
International Legal Personality
6James Brierly, in his quest to reduce the focus on the state and emphasize the rights and obligations of individuals that make up the state, attacked the doc-trine which sought to exclude other actors from subjectivity, and he played with the concept of personality:
Even the state, great and powerful institution as it is, can never express more than a part of our personalities, only that part which finds expression in the purpose or purposes for which the state exists; and however important these purposes may be, however true it may be that they are in a sense the prerequisite condition of other human activities in a society, they never embrace the whole of our lives.7
Brierly asks us to suspend our belief in the sanctity of subjectivity and sharpen our senses.
If, therefore, we approach the question of the subjects of international law with a true perception of what the personality of states entails, it becomes difficult to believe that there can be anything sacrosanct about a practice which treats states as the subjects of the international community. It is not a principle, but essentially a rule of expediency, and mainly a rule of procedure.8,9
Brierly foresaw other entities becoming subjects of international law, just as ‘the law of any state has for its subjects both individuals and institutions’,10and his depiction of the assumption that states are the exclusive subjects of inter-national law as a ‘rule of procedure’ is particularly helpful in our context. International criminal law operates before multiple tribunals with different jurisdictions and rules. Although all the international tribunals established so
6 The following sections draw on my bookHuman Rights Obligations of Non-State Actors(Oxford: Oxford University Press, 2006).
7 J.L. Brierly, ‘The Basis of Obligation in International Law’ in H. Lauterpacht and C.H.M. Waldock (eds),The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly
(Oxford: Clarendon Press, 1958), 1^67, at 51; English version of a course originally delivered at the Hague Academy of International Law in 1928 ‘Le Fondement du caracte're obligatoire du droit international’, 23Recueil des Cours(1928), iii.
8 Sovereignty, Seisen, And the League’, 7 Fischer Williams, ‘Sovereignty, Seisen, And the League’,
British Year Book of International Law(1926), 23 (footnote in the original).
9 Brierly, supra note 7, at 51. Cited in part and discussed by J.E. Nijman,The Concept of International Legal Personality: An Inquiry Into the History and Theory of International Law(The Hague: T.M.C. Asser Press, 2004), 146.
far have had rules that make individuals the sole subjects of their jurisdiction, we can imagine any one of these tribunals being adjusted so that it may exercise its jurisdiction over non-natural persons (such as political parties or other legal persons). At this point, the exclusion of non-natural persons can be seen as the consequence of a ‘rule of procedure’ rather than the inevitable result of application of international criminal law.11
In addition to seeing subjectivity as a procedural problem, we might argue that the effectiveness principle has a role to play. If international law is to be effective, everyone should be prohibited from assisting governments in violat-ing those principles, or indeed from violatviolat-ing such principles themselves. Let us now see how this idea that corporations should be prohibited from assisting governments in violating international law is playing out in practice. This idea has become known as ‘corporate complicity’ and has generated considerable interest in various sectors.
3. Corporate Complicity
Before looking at the scope of corporate complicity under international law, let us first ask ourselves how the complicity concept came to play such a prominent role. I would suggest that there are a few developments that stand out.
First, as human rights organizations became more interested in reporting on the behaviour of multinational corporations, they found themselves confronted with a legal conundrum. Unlike ethical investors or those in the corporate social responsibility movement, international human rights organizations prided themselves on their law-based methodology. Moreover, they based all human rights reporting on violations of international law. These violations were usually expressed in terms of violations of human rights treaties which the relevant state had ratified. The legal methodology did not seem suited to complaining about the behaviour of corporations. Amnesty International’s
Human Rights Principles for Companies (1998) included a policy recommenda-tion that companies should ensure that personnel are never ‘complicit’ in human rights abuses.12Without radically altering the traditional understand-ing of human rights law, groups such as Human Rights Watch argued that, although the corporations did not have obligations as parties to the human rights treaties, the states they were operating in did have such obligations and
11 Brierly’s insights from 1928 again bear repeating here: ‘Incomparably the greatest threat to peace in the modern world lies in the growing tendency of governments to place the power of the state behind the private economic interests of their nationals, and thus to identify the interests of a few powerful individuals with the interests of the whole country. It is unfortunate that international law should continue to provide a theoretical justification for this dangerous practice by its stubborn adherence to an unreal conception of international society.’Ibid., at 53. 12 ‘Companies should establish procedures to ensure that all operations are examined for their potential impact on human rights, and safeguards to ensure that company staff are never complicit in human rights abuses.’AI Index ACT 70/01/98.
the behaviour of the corporations could be seen as contributing to violations by those states, and so it made sense to talk about the corporations being compli-cit in such violations.13
The notion that companies, and those that invest in such companies, should avoid being tainted with complicity was in the air as a vehicle for campaigning against companies. Amnesty International’s report on Sudan quoted Alan G. Hevesi, Comptroller of the City of New York Pension Funds and a shareholder in Talisman Energy:
I believe a company that is doing business in a country under a repressive regime must not provide financing or other resources for the perpetuation of wrongdoing or atrocities. As long-term investors, we believe a company that is cavalier about its moral and social responsibility presents an unacceptable investment risk. The expanding divestment cam-paign against Talisman Energy for alleged complicity in the horrors in Sudan is just one indication of that risk.14
Ten years later, we find that ethical investors, such as Norway’s sovereign wealth fund, the ‘The Government Pension Fund ^ Global’, will screen out, and disinvest from, corporations where there is an unacceptable risk of contributing to corporate complicity in violations of international law.15The Ethical Guidelines explain in paragraph 4.4:
The Council shall issue recommendations on negative screening of one or several companies on the basis of production of weapons that through their normal use may violate fundamental humanitarian principles. The Council shall issue recommendations on the exclusion of one or several companies from the investment universe because of acts or omissions that constitute an unacceptable risk of the Fund contributing to:
Serious or systematic human rights violations, such as murder, torture, deprivation of liberty, forced labour, the worst forms of child labour and other forms of child exploitation
Serious violations of individuals’ rights in situations of war or conflict
Severe environmental damages
Gross corruption
Other particularly serious violations of fundamental ethical norms.16
The concept of contribution leading to complicity was most recently explained by the Fund’s Advisory Council on Ethics with regard to the question of invest-ment in the company, Total, in the context of Total’s alleged complicity in
13 See e.g. Human Rights Watch,The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Areas (NY: HRW, 1999) and The Enron Corporation: Corporate Complicity in Human Rights Violations(NY: HRW, 1999).
14 ‘Sudan: The Human Price of Oil’, AI Index AFR 54/001/2000, 3 May 2000, the reference for the quote is ‘Letter, written by Alan G. Hevesi to Mr James Buckee, president and chief executive officer of Talisman Energy, September 27, 1999’.
15 S. Chesterman, ‘The Turn to Ethics: Disinvestment from Multinational Corporations for Human Rights Violations - The Case of Norway’s Sovereign Wealth Fund’, 23 American University International Law Review(2008) 577^615.
16 The Ethical Guidelines, Norwegian Government Pension FundçGlobal, issued 22 December 2005.
human rights violations committed by the Myanmar Government. The reliance on complicity again emerges from the perceived need to find a link back to a ‘subject’ of human rights obligations:
Only states can violate human rights directly. Human rights are legally binding rules regulating the relationship between the state and the individual and are designed to ensure that everyone within the jurisdiction of a state is guaranteed all political, civil, economic, social and cultural rights by that state. States are the only subjects of legal duties under the international human rights conventions, and are thus, as the general rule, the only parties able to guarantee and hence also violate the human rights of individuals. Companies can, as indicated in paragraph 4.4, contribute to human rights violations committed by states. The Fund may in its turn contribute to companies’ compli-city through its ownership. It is such complicompli-city in a state’s human rights violations which is to be assessed under this provision. . .. Paragraph 4.4 states that the Council may recom-mend exclusion of companies ‘because of acts or omissions that constitute an unacceptable risk of contributing to:. . .’. This wording must be understood in such a way that it is the actions or omissions of thecompanyin question that can provide a basis for exclusion, not those of the state concerned.17
The second development was that in 1999 the UN Secretary-General Kofi Annan launched the Global Compact with a speech in Davos. He addressed business leaders in the following terms:
You can uphold human rights and decent labour and environmental standards directly, by your own conduct of your own business. Indeed, you can use these universal values as the cement binding together your global corporations, since they are values people all over the world will recognize as their own. You can make sure that in your own corporate practices you uphold and respect human rights; and that you are not yourselves complicit in human rights abuses.18
The Global Compact was developed the following year and its first two princi-ples were announced as follows: Principle 1: businesses should support and respect the protection of internationally proclaimed human rights; and Principle 2: make sure that they are not complicit in human rights abuses. In the ‘learning forum’ that grew up around the Compact considerable time and energy was then spent on considering what was meant by complicity in this context.19
Third, the growing number of cases being litigated under the Alien Tort Statute (ATS, also known as the Alien Tort Claims Act or ATCA) in the
17 Recommendation of the Advisory Council on Ethics for the Government Petroleum Fund, 14 November 2005 (footnote omitted).
18 Press Release, SG/SM/6881, 1 February 1999.
19 For one set of documents developed through the UN, see UN Global Compact Office and OHCHR,
Embedding Human Rights in Business Practice(New York: UN Global Compact Office, 2004), available at http://www.unglobalcompact.org/docs/issues_doc/human_rights/embedding.pdf (visited 23 October 2008). See also M. Jungk, Complicity in Human Rights Violations: A Responsible Business Approach to Suppliers (Copenhagen: Danish Institute for Human Rights, 2006).
United States Federal Courts has focused attention on the scope of complicity in this context. The ATS confers upon the federal district courts original jurisdiction over ‘any civil action by an alien for a tort only, committed in violation of the law of nations’ (28 U.S.C. section 1350). But these cases are riddled with complexity. In order to show that the corporation has com-mitted a violation of international law, it may be necessary to show that there was a degree of state action or that the corporation acted under ‘colour of law’. As soon as the plaintiffs can show this, the defendants start to argue that the courts should refuse to hear the case because there is too much state action. Two separate arguments are emerging. The first concerns a ‘com-batant activities exception’. According to a recent ruling:
The policy underlying the FTCA’s [Federal Tort Claims Act] combatant activities exception is that the military ought be ‘free from the hindrance of a possible damage suit’ based on its conduct of battlefield activities.Johnson, 170 F.2d at 769. In this respect, the policy echoes the Supreme Court’s admonition that ‘[i]t would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.’Johnson v. Eisentrager, 339 U.S. 763, 778 (1950).20
As the claim is argued as a tort under the law of nations, claimants may need to show state action or ‘official complicity’ in order to show that the acts were violations of the law of nations. A second jurisdictional argument now appears. At this point, jurisdictional blockers pop-up again in a rather paradoxical form. The greater the official complicity, the harder will it be to avoid claims that the case has to be dismissed on political grounds. In the words of Judge Robertson in the same case concerning Abu Ghraib: ‘And the more plaintiffs assert official complicity in the acts of which they complain, the closer they sail to the jurisdictional limitation of the political question doctrine.’21
Let us, however, leave to one side the jurisdictional rules and concentrate on some recent rulings concerning the scope of complicity in violations of inter-national criminal law in general, and in particular complicity in war crimes, crimes against humanity and genocide.
It is perfectly possible to bring a suit against a corporation for violating international law as the principal perpetrator, and suits have indeed been brought, for example, with regard to allegations of violations of international law, including torture and inhuman or degrading treatment, committed by contractors providing interpretation and interrogation services to the United States at Abu Ghraib prison in Iraq.22 More recently a case has been filed also
20 Order of 6 November 2007,Ibrahim et al. v. Titan et al. andSaleh et al. v. Titan et al., US District Court for the District of Columbia, James Robertson US District Judge, Case 1: 05-cv-01165-JR, at 7.
21 Order of 26 June 2006,Saleh et al. v. Titan Corp, 436 F.Supp.2d 55, at 5.
22 For the background, see the Order of 6 November 2007,Ibrahim et al. v. Titan et al. andSaleh et al. v. Titan et al.,supranote 21.
against Blackwater alleging war crimes under the ATS in connection with the killing of civilians on 16 September 2007.23
In the simple situation where a corporation’s activities actually constitute genocide, slavery or war crimes, the issue is clear. The corporation will have violated international criminal law and can be held accountable in the US courts under ATS. The US courts have been gradually refining the list of viola-tions of the ‘law of naviola-tions’ that attach to non-state actors as such. Accordingly, recent rulings have determined that genocide, slave trading, slavery, forced labour and war crimes are actionable even in the absence of any connection to state action.24In addition, according to theKadic v.Karadzicjudgment in the US courts, where rape, torture and summary execution are committed in iso-lation these crimes ‘are actionable under the Alien Tort Act, without regard to state action, to the extent they were committed in pursuit of genocide or war crimes’.25An alien can sue in tort before the US Federal Courts under the ATS Act with regard to any of these international crimes. In fact the list is not exclusive as international criminal law continues to evolve. Most recently the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) suggested that there is no need for a public official to be involved for a private individual to be responsible under international law for the international crime of torture.26
But such simple cases of a corporation being sued in the US Courts, under the ATCA, as the primary perpetrator of such international crimes, are rare, and, in any event, would be likely to be settled out of court if the facts were clear. Most of the cases that have recently been contested before the United States’ courts concern situations where corporations are alleged to have aided and abetted a state in governmental violations of international criminal law.27 Other cases turn on money paid by corporations to paramilitaries in the con-text of war crimes and crimes against humanity.28 In other words, the cases
23 SeeAbtan et al.v. Blackwater Worldwide et al., Case 1:07-cv-01831 (RBW), filed 26 November 2007.
24Wiwa v. Royal Dutch Shell Petroleum (Shell), 28 February 2002, US District Court for the Southern District of New York, at 39. See alsoDoe I v. Unocal Corporation, 18 September 2002, atx3et seq.
25Kadic v. Karadzic, 70 F. 3d 232, at 243^244 (2d Cir. 1995) cited with approval inDoe v. Unocal
2002,supranote 24,x3.
26 ‘The Trial Chamber in the present case was therefore right in taking the position that the public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention.’ Judgment,Kunarac(IT-96-23-A), Appeals Chamber, 12 June 2002,x148.
27 We might note here the findings in the report ‘On the Margins of Profit: Rights at Risk in the Global Economy’ by Human Rights Watch and the Centre for Human Rights and Global Justice which stated that ‘it is important to focus as much on corporate ties with third parties that commit abuse (such as suppliers or government security forces) as on cases in which busi-nesses themselves directly cause harm’, Human Rights Watch Reports, February 2008, Vol. 20, No. 3(G), at 2.
28 See e.g.John Doe et al. v. Chiquita Brands International, complaint before the US District Court of New Jersey, dated 18 July 2007 (discussed below in the section on armed groups).
turn on accomplice liability, or complicity.29The most developed jurisprudence has turned on the concept of complicity in international criminal law, to which we now turn.30
4. Complicity in International Criminal Law
Let us consider how the complicity article in the ICC Statute has been consid-ered in the context of recent litigation under the ATS. In the recent ruling from the US Court of Appeals for the Second Circuit, in the case of Khulumani v. Barclay National Bank, Ltd; Ntsebeza v. Daimler Chysler Corp, Judge Katzmann set out his appreciation of the complicity rule under that treaty, and suggested that this test was the appropriate one to be used in the context of claims in the Federal Court concerning corporate complicity in violations of international law under the ATS. Katzmann reminds us why complicity is so crucial in this context: it allows a claim to be made against a corporation for a violation of the law of nations that would often normally require state action. In his words:
Recognizing the responsibility of private aiders and abettors merely permits private actors who substantially assist state actors to violate international law and do so for the purpose of facilitating the unlawful activity to be held accountable for their actions. It is of no moment that a private actor could be held liable as an aider and abettor of the violation of a norm requiring state action when that same person could not be held liable as a principal. In our domestic law, it is ‘well settled that one may be found guilty of aiding and abetting another individual in his violation of a statute that the aider and abettor could not be charged personally with violating.’In re Nofziger, 956 F.2d 287, 290 (D.C. Cir. 1992); see also United States v. Tannenbaum, 934 F.2d 8, 14 (2d Cir. 1991) (‘The fact that the accused does not possess the legal capacity to commit the substantive offense does not mean that he cannot be convicted. . .of aiding and abetting the commission of the substantive offense by another. Thus, the inability to commit the substantive offense is immaterial.’ (citations omitted)). Indeed, ‘[t]he doctrine is of ancient origin.’ Nofziger, 956 F.2d at 291. International law, too, recognizes that criminality is assessed by reference to the actions of the principal, not the aider and abettor. SeeAkayesu, Trial Chamber Judgment,ô528 (‘[I]t should be understood that the physical act which constitutes the act of complicity does not have its own inherent criminality, but rather it borrows the criminality of the act com-mitted by the principal perpetrator of the criminal enterprise. . .. The accomplice has not committed an autonomous crime, but has merely facilitated the criminal enterprise com-mitted by another.’31
It is enough that the corporation is complicit in a violation of international law by a government. This need not be related to an obligation that the corporation
29 For an overview see the forthcoming report (three volumes) by the International Commission of Jurists’ Expert Legal Panel on Corporate Complicity in International Crimes.
30 For a careful review of the US case law, see D. Cassel, ‘Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts’, 6Northwestern University Journal of International Human Rights (2008), 304, at http://www.law.northwestern.edu/journals/jihr/v6/n2/4/ Cassel.pdf (visited 28 April 2008).
31 Khulumani v. Barclay National Bank, Ltd; Ntsebeza v. Daimler Chysler Corp, US Court of Appeals for the Second Circuit, 12 October 2007, 05-2141-cv, 05-2326-cv., at 46^47.
would normally have as such. It can be a governmental obligation. The next question concerns the requisite intention of the corporate entity to be consid-ered complicit under international criminal law. Judge Katzmann reviewed the decisions of the ICTY and then turned to the ICC Statute Article 25(3) which states that a person shall be criminally responsible if that person:
(c) 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; [or]
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
i. Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
ii. Be made in the knowledge of the intention of the group to commit the crime[.]
Judge Katzmann continued:
The Rome Statute is particularly significant for the present inquiry because, unlike other sources of international legislation, it articulates themens rearequired for aiding and abet-ting liability. The Statute makes clear that, other than assistance rendered to the commis-sion of a crime by a group of persons acting with a common purpose, a defendant is guilty of aiding and abetting the commission of a crime only if he does so ‘[f]or the purpose of facilitating the commission of such a crime.’ Id. art. 25 (3)(c). In drawing upon the Rome Statute, I recognize that it has yet to be construed by the International Criminal Court; its precise contours and the extent to which it may differ from customary international law thus remain somewhat uncertain.32
Two points need highlighting. First, the Judge does not address the issue of assistance to a group of persons acting with a common purpose (Article 25(3)(d) ICC Statute). In such a case, no ‘purpose’ is required by the person assisting. The Statute simply requires ‘knowledge of the intention of the group’. Second, the absence of practice based on the 25(3)(c) assistance test in the ICC Statute does indeed suggest that the customary international law test may indeed be found elsewhere, i.e. in the decisions of the ad hoc Tribunals. It is suggested here that it is not necessary to see the ICC and the customary standard as divergent. The better view is to see the ICC provisions on accessories as a whole, incorporating some of the ideas concerning contribu-tion to a group crime or joint criminal enterprise. Let us consider these points in turn.
A. Contribution to a Group Crime and Joint Criminal Enterprise
The reference in the ICC Statute to a group of persons acting with a common purpose is similar to the joint criminal enterprise doctrine developed by
the ICTY. It has been suggested that this indirect form of participation ‘may cover acts that in the Yugoslavia Tribunal’s case law warranted liability for participation in a joint criminal enterprise’.33 The ICTY has explained its approach in a number of cases with the general argument first being articu-lated in the Tadic¤ case, where the Tribunal explained that criminal liability extends in this way beyond those who physically commit the abuses: ‘Although only some members of the group may physically perpetrate the criminal act (murder, extermination, wanton destruction of cities, towns or villages, etc.), the participation and contribution of the other members of the group is often vital in facilitating the commission of the offence in question. It follows that the moral gravity of such participation is often no less ç or indeed no different ç from that of those actually carrying out the acts in question.’34 The Appeals Chamber has more recently summarized the types of joint crim-inal enterprise under three headings: all of the co-perpetrators possess the same intent to effect the common purpose; a ‘systemic’ form where the perpe-trators have personal knowledge of the organized criminal system; and a third ‘extended’ form where crimes are committed beyond the common purpose, but which are a natural and foreseeable consequence of this common purpose.35
This type of participation in the crime requires one to identify two different intentions. According to the ICC Statute we need: first an intentional contribu-tion, and second, knowledge of the intention of the group. The secondary participant, or in our case, the complicit corporation, can either intend to further the crime, or simply intentionally contribute with knowledge of the others’ intention to commit the crime. The Statute is complex in this regard but it does admit that one can be criminally liable even where one only has knowl-edge of the crime rather than a shared purpose to commit that crime. The Pre-Trial Chamber of the ICC has explained that this residual form of liability presents a threshold for a different, seemingly less engaged state of mind, and can be likened to joint criminal enterprise:
In this regard, the Chamber notes that, by moving away from the concept of co-perpetration embodied in article 25(3)(a), article 25(3)(d) defines the concept of (i) contribution to the commission or attempted commission of a crime by a group of persons acting with a common purpose, (ii) with the aim of furthering the criminal activity of the group or in the knowledge of the criminal activity of the group or in the knowledge of the criminal purpose.
33 G. Werle, ‘Individual Criminal Responsibility in Article 25 ICC Statute’, 5Journal of International Criminal Justice (2007) 953^975, at 974^975. See also E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law(The Hague: T.M.C. Asser Press, 2003), at 41^115; A. Eser, ‘Individual Criminal Responsibility’, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds),The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002), 767^822; W.A. Schabas, ‘Enforcing International Humanitarian Law: Catching the Accomplices’, 83International Review of the Red Cross(2001) 439^459; K. Ambos, ‘Article 25’, in O. Triffterer (ed.),Commentary on the Rome Statute of the International Criminal Court(Baden-Baden: Nomos, 1999), 475^493.
34 Judgment,Tadic¤(IT-94-1-A), Appeals Chamber, 15 July 1999,x191.
335. The Chamber considers that this latter concept ^ which is closely akin to the concept of joint criminal enterprise or the common purpose doctrine adopted by the jurisprudence of the ICTY ^ would have been the basis of the concept of co-perpetration within the meaning of Article 25(3)(a), had the drafters of the Statute opted for a subjective approach for distinguishing between principals and accessories.
336. Moreover, the Chamber observes that the wording of article 25(3)(d) of the Statute begins with the words ‘[i]n any other way contributes to the commission or attempted commission of such crime.’
337. Hence, in the view of the Chamber, article 25(3)(d) of the Statute provides for a residual form of accessory liability which makes it possible to criminalise those contributions to a crime which cannot be characterized as ordering, soliciting, inducing, aiding, abetting or assisting within the meaning of article 25(3)(b) or article 25(3)(c) of the Statute by reason of the state of mind in which the contributions were made.36
The Chamber’s more general comments on knowledge and intention are also worth mentioning here as they represent the only authoritative reading of the ICC Statute. The Chamber is clear that Article 30’s references to intent and knowledge cover three types ofdolus: first dolus directusof the first degree ç the suspect knows that his or her actions will bring about the objective ele-ments of the crime and undertakes such actions aware that their actions will bring about such elements as a necessary outcome. Second, dolus directus of the second degree ^ the suspect, without the concrete intent to bring about the objective elements of the crime, is aware that such elements will be the neces-sary outcome of their actions. Third,dolus eventualisç the suspect is aware of the risk of objective elements resulting from their actions and accepts such an outcome by reconciling themselves to it. The ICC Pre-Trial Chamber then adds a further layer of clarification:
353. The Chamber considers that in the latter type of situation, two kinds of scenarios are distinguishable. Firstly, if the risk of bringing about the objective elements of the crime is substantial (that is, there is a likelihood that it ‘will occur in the ordinary course of events’), the fact that the suspect accepts the idea of bringing about the objective elements of the crime can be inferred from:
i. the awareness by the suspect of the substantial likelihood that his or her actions or omissions would result in the realization of the objective elements of the crime; and ii. the decision by the suspect to carry out his or her actions or omissions despite such
awareness.
354. Secondly, if the risk of bringing about the objective elements of the crime is low, the suspect must have clearly or expressly accepted the idea that such objective elements may result from his or her actions or omissions.
355. Where the state of mind of the suspect falls short of accepting that the objective elements of the crime may result from his or her actions or omissions, such a state of mind cannot qualify as a truly intentional realization of the objective elements, and hence 36 Decision on the Confirmation of Charges,Lubanga(ICC-01/04-01/06), Pre-Trial Chamber I, 29
would not meet the ‘intent and knowledge’ requirement embodied in article 30 of the Statute.
These statements set out the limits of the minimal intention necessary for a finding of responsibility under the Rome Statute. While corporations will not be tried at the ICC, we have already seen in the context of the US Appeals Court that the Statute has become the starting point for understanding corporate complicity.
We can distil all this down to the idea that once a corporation is made aware of a likelihood of contributing to a crime committed by a group then, once it accepts that its actions may lead to elements of the crime occurring and it continues to act, it has the requisite mental involvement to give rise to a residual form of corporate complicity in international crimes. We might add that the structure of the ICC Statute and the Chamber’s reasoning imply that the group of persons being assisted commit ‘a crime’. Therefore it is conceived that ‘a crime’ is committed by ‘a group’. The ‘rule of procedure’ prevents the Court from trying the group as such ç but a crime has indeed apparently been committed by a group.
B. Corporate Complicity under Article 25(3)(c) ICCSt.
Judge Katzmann summarized his approach as follows:
With respect to theactus reuscomponent of the aiding and abetting liability, the interna-tional legislation is less helpful in identifying a specific standard. However, in the course of its analysis of customary international law, the ICTY concluded that ‘theactus reusof aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has asubstantial effecton the perpetration of the crime.’Furundzija, Trial Chamber Judgment, ô235 (second emphasis added). My research has uncovered nothing to indicate that a standard other than ‘‘substantial assistance’’ should apply. Accordingly, I conclude that a defendant may be held liable under international law for aiding and abetting the violation of that law by another when the defendant (1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime, and (2) does so with the purpose of facilitating the commission of that crime. Furthermore, based on this review of international law’s treatment of aiding and abetting liability over the past sixty years, I conclude that aiding and abetting liability, so defined, is sufficiently ‘well-established[] [and] universally recognized’ to be considered customary international law for the purposes of the ATCA.37
A first question arises: what does ‘substantial’ mean in this context? The corporate complicity context is often concerned with issues of presence in war zones. The case law from the ad hoc Tribunals has dealt with the issue of contribution through presence, but these cases are really about encouragement through presence rather than the economic dimension of presence.38
37 Khulumani,supranote 31, at 38^39.
The point developed by the case law of the two ad hoc Tribunals is that although presence was a factor in finding moral encouragement, the cases all concerned people who were in a superior or official position, or inTadic¤, some-one who was actually present, or in the vicinity of, the torture and abuse. It would be misleading simply to infer that corporate presence in a country can be assimilated to the presence of a superior in the vicinity of the torture scene.
The ICC has not yet addressed Article 25(3)(c) in the same way that it has discussed Article 25(3)(d). It has been suggested, however, for example by Gerhard Werle, that while accomplices need to be aware that their contribution is supporting the commission of the crime, they do not need to share the particular intent of the principal perpetrator.39
C. Complicity for International Crimes at the National Level
The reach of the complicity concept under international criminal law is devel-oping an influence beyond the cases and controversies that arise in interna-tional courts and tribunals. In the wake of the adoption of the Rome Statute many national jurisdictions have revised their criminal law to facilitate trials for international crimes. Invan Anraat, the Dutch courts tried and convicted a businessman for complicity as an accessory to violations of the laws and cus-toms of war in the context of his supply of chemicals to Iraq which could be used as precursors for the production of mustard gas. The Counts related to the use of chemical weapons in Halabja (and other sites) in Iraq in 1988, and the use of chemical weapons in Khorramshar (and other sites) in Iran. The case raises interesting questions of the evidence needed to prove genocidal intent as well as what sort of effect the assistance needs to have in order to find compli-city under Dutch or international law. But this is not the place to analyse these questions. The point I would like to highlight here is that the Court of Appeal goes out of its way to send a message to the corporate world, and reach out beyond the circle of individuals normally associated with war crimes. Consider this passage:
Through his conscious contribution to the production of mustard gas in a country at war, the defendant knew under those circumstances that he was the one who supplied the material and created the occasion for the actual use of that gas, in the sense that he was very aware of the fact that in the given circumstances the use of this gas could not and would not fail to materialise. In different words: the defendant was very aware of the fact that ç ‘in the ordinary cause [sic] of events’ ç the gas was going to be used. In this respect the Court assumes that the defendant, notwithstanding his statements concerning his
39 Werle,supranote 33, at 970. Cf. Judgment,Bosnia and Herzegovina v. Serbia and Montenegro, International Court of Justice, 26 February 2007,x421. See also the Declaration of Judge Keith in that case atxx5 and 6. The subjective levels of intent and knowledge are also discussed in Eser, in Cassese et al. (eds),supranote 33, 767^822, at 798^803. For a detailed discussion on the significance of the word ‘purpose’ in Art. 25(3)(c), see Cassel,supranote 30.
relevant knowledge, was aware of the ç also then known ^ unscrupulous character of the then Iraqi regime.40
In sentencing van Anraat to 17 years’ imprisonment, the Court is explicit in its purpose: ‘in fixing the appropriate punishment, the Court has taken into account the general prevention aspect. People or companies that conduct (international) trade, for example in weapons or raw materials used for their production, should be warned that ç if they do not exercise increased vigi-lance ç they can become involved in most serious criminal offences’.41 International criminal law is no longer directed solely at government officials, police officers, soldiers and commanders in the armed forces, it has seemingly already reached down into the world of the arms trade and its injunctions are being aimed at businessmen and companies. This has been achieved primarily through the vehicle of complicity.42
National legal orders have multiple variations on the extent to which they have been adapted to allow for prosecutions of legal persons for international crimes. This is not the place to engage in a comparative examination.43 If we proceed to consider French law, however, we discover that the complicity concept is again set to be the driver for the development of the application of criminal law beyond the individual. Under French law, we can see that the creation of criminal liability for non-individuals under the Penal Code has become dependent on complicity with individual criminals, in a mirror of the situation whereby the liability of non-state actors under international law often depends on complicity with states. The French Foreign Ministry has helpfully explained the position in a memorandum. It starts: ‘France has long acknowledged (albeit with a two-century gap) both the criminal liability of legal entities and the extraterritoriality of certain laws that apply to them in this regard. Legal entities include private law legal entities, both for-profit (companies, partnerships) and non-profit (associations, political parties, trade unions, etc.), and public law legal entities with the exception of
40 Official translation, International Law in Domestic Courts (ILDC) 753 (NL 2007),x11.16. 41Ibid.,x16.
42 For an overview of the cases, starting in the wake of Second World War, see K. Jacobson, ‘Doing Business With the Devil: The Challenges of Prosecuting Corporate Officials Whose Business Transactions Facilitate War Crimes and Crimes Against Humanity’, 56Air Force Law Review
(2005) 167^232.
43 For a useful introduction, see e.g. A. Ramasastry and R.C. Thompson,Legal Remedies for Private Sector Liability for Grave Breaches of International Law: A Survey of Sixteen Countries - Executive Summary(Oslo: Fafo-report 536, 2006) which concludes that there is a practice of applying criminal liability in 11 of the countries surveyed: Australia, Belgium, Canada, France, India, Japan, The Netherlands, Norway, South Africa, the United Kingdom and the United States; in five of the countries surveyed there was no such recognition of criminal corporate liability: Argentina, Germany, Indonesia, Spain and the Ukraine. The situation in Australia is high-lighted, in particular 12.3 of the Australian Commonwealth Criminal Code (discussed subse-quently) which developed the concept of corporate culture. See also International Peace Academy and Fafo AIS,Business and International Crimes: Assessing the Liability of Business Entities for Grave Violations of International Law(Oslo: Fafo-report 467, 2004).
the State and excluding public service delegations.’44 French law, however, often requires an explicit provision stating that legal persons may be liable for the offence in question. The memorandum explains: ‘The criminal liability of legal entities is special insofar as specific provision must have been made to attribute the offence to them. This principle was the result of pressure from political parties and associations who feared that they might otherwise incur liability too easily.’45 According to the memorandum, new legislation has,46however, extended the criminal liability of legal entities ‘to all offences defined in the Penal Code, though paradoxically the express references to the criminal liability of legal entities that previously featured in the Penal Code have not been deleted’.47 Commentators often wonder how a corporation or a political party can commit offences such as sex crimes, or be accused of international crimes such as torture. But a moment’s reflection makes it clear that organizational complicity in such crimes is not an academic sleight of hand, but rather an obvious way to understand how legal entities have poten-tial liability for any crime on the books. As the memorandum points out, definitions of crimes offences need to be ‘seen in the light of complicity: as accomplices, legal entities are capable of committing all the offences contained in the Penal Code’.48
Moreover, legal entities may enjoy special obligations of due diligence that make them more easily open to charges of recklessness, negligence or failure to exercise a special duty of care.49A further particularity of the criminal liability of legal entities is that particular provisions exist to bind the entity through the actions of its agents and organs. The French memorandum explains: ‘The criminal liability of legal entities remains indirect and personal since it pre-supposes that the offence has been committed ‘‘on their account by their organs or representatives’’. Consequently, a legal entity may not be held liable if its manager acts on his own behalf or in his own personal interest or if the offence is committed by an employee acting on his own initiative.’50 This type of agency test is mirrored in several jurisdictions around the world and was influential in the aborted attempt in the Rome Diplomatic Conference to include legal entities within the jurisdiction of the ICC.51The last draft of the
44 ‘Re: Criminal liability of private law legal entities under French law and extra-territoriality of the laws applicable to them: Review of the situation and discussion of issues’, 5 June 2006, Human Rights Coordination Mission, at 1.
45Ibid., at 2.
46 Act 2004^204 of 9 March 2004, ‘Perben II’, deleting the phrase ‘in the cases provided for by statute and regulation’ from Art. 121-2 of the Penal Code as of 31 December 2005.
47 Memorandum ‘Re: Criminal liability of private law entities’,supranote 44, at 3. 48 Ibid.
49 Art. 121-3 of Penal Code discussed at 2 of the memorandum. 50Ibid., at 3^4.
51 On the background to this draft provision see A. Clapham, ‘The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’, in M. Kamminga and S. Zia-Zarifi (eds),Liability of Multinational Corporations Under International Law(The Hague: Kluwer, 2000)139^195; Ambos,supranote 33, 475^493; Eser, in Cassese et al. (eds),supranote 33, 767^822, at 779, and the references therein.
relevant article, which was considered by governments at the Rome Conference, included the following provisions:
Charges may be filed by the Prosecutor against a juridical person, and the Court may render a judgement over a juridical person for the crime charged, if:
(a) The charges filed by the Prosecutor against the natural person and the juridical person allege the matters referred to in subparagraphs (b) and (c); and (b) The natural person charged was in a position of control within the juridical
person under the national law of the State where the juridical person was regis-tered at the time the crime was committed; and
(c) The crime was committed by the natural person acting on behalf of and with the explicit consent of that juridical person and in the course of its activities; and (d) The natural person has been convicted of the crime charged.52
The idea that a relevant natural person must first be convicted is not usually paralleled in national legislation, nor is it found in all international treaties, but the concept of key agents or a ‘directing mind’ can be seen in certain international treaties that seek to encourage the criminalization of acts by legal entities. For example, Article 18 of the Criminal Convention on Corruption adopted in the context of the Council of Europe reads:
1. Each party shall adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for the criminal offences of active bribery, trading in influence and money laundering established in accordance with this Convention, com-mitted for their benefit and by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on: ^ a power of representation of the legal person; or
^ an authority to take decisions on behalf of the legal person; or ^ an authority to exercise control within the legal person;
as well as for involvement of such a natural person as accessory or instigator in the above mentioned offences.
2. Apart from the cases already provided for in paragraph 1, each Party shall take the necessary measures to ensure that a legal person can be held liable where the lack of supervision or control by a natural person referred to in paragraph 1 has made possible the commission of the criminal offences mentioned in paragraph 1 for the benefit of that legal person by a natural person under its authority.
3. Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceed-ings against natural persons who are perpetrators, instigators of, or accessories to, the criminal offences mentioned in paragraph 1.
Article 1(d) of the Convention states ‘‘‘legal person’’ shall mean any entity having such status under the applicable national law, except for States or other public bodies in the exercise of State authority and for public international organizations.’
We might also consider the issue at the level of the European Union where a Joint Action, two Conventions and Protocols on corruption have been adopted.53The European Union texts take us a little further, in that they list the sorts of penalties which Member States are expected to impose on legal persons convicted of corruption. The list is interesting as it goes beyond sanc-tions foreseen in other international texts. Consider the Article from the Joint Action:
Sanctions for legal persons
1. Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 5(1) is punishable by effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and may include other sanctions such as:
(a) exclusion from entitlement to public benefits or aid;
(b) temporary or permanent disqualification from the practice of commercial activities;
(c) placing under judicial supervision; (d) a judicial winding up order.
2. Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 5(2) is punishable by effective, proportionate and dissuasive sanctions or measures.
Not all treaties turn on the behaviour of a relevant individual. The 2003 UN Convention Against Corruption simply demands that states address the liability of legal persons, allowing that such liability can be criminal, civil or adminis-trative, while stating that whether the sanctions are criminal or non-criminal they must be effective.54
Indeed a focus on individual representatives or authorities or controlling minds is not the exclusive route to finding corporations guilty of international
53 Joint Action of 22 December 1998 adopted by the Council on the basis of Art. K.3 of the Treaty on European Union, on corruption in the private sector, OJ L 358, 31, 12, 1998, at 2^4. Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union, OJ C 195, 25 June 1997, at 2^11; Convention on the protection of the European Communities financial interests, OJ C 316, 27 November 1995, at 49^57.
54 For a fuller discussion including references to treaties such as the 1999 UN Convention for the Suppression of the Financing of Terrorism and the UN Convention Against Transnational Organized Crime (2000), see my bookHuman Rights Obligations of Non-State Actors,supranote 6, at 247^252. See also the discussion on this point by Cassel,supranote 30,xx42^49 (online edition) who highlights the preference for criminal prosecution of legal persons under the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions Art. 3(2).
55
Although a federal criminal investigation has begun against Anvil Mining for complicity in ICC crimes in the Democratic Republic of Congo, there remains some ambiguity concerning whether the ICC crimes can be pursued against corporations and whether there needs to be some jurisdic-tional link with Australia. See further J. Kyriakakis, ‘Australian Prosecution of Corporations for
crimes. The Australian federal criminal law has included both the crimes in the ICC Statute and a new approach to criminal liability for corporate actors.55 Joanna Kyriakakis has highlighted the difficulties connected to any supposed need to first find an individual perpetrator: ‘the commonly opaque nature of accountability within corporate structures, the expendability of individuals, the practice of corporate separation of those responsible for past violations and those responsible for preventing future offences, as well as the safe har-bouring within corporations of individual suspects’.56
If we consider the Australian code, we can see a new specially adapted sort of criminalmens reafor the corporate entity:
12.3 Fault elements other than negligence
1. If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.
2. The means by which such an authorisation or permission may be established include:
(a) proving that the body corporate’s board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or
(b) proving that a high managerial agent of the body corporate intentionally, know-ingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impli-edly authorised or permitted the commission of the offence; or
(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or (d) proving that the body corporate failed to create and maintain a corporate
cul-ture that required compliance with the relevant provision.
3. Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.
4. Factors relevant to the application of paragraph (2)(c) or (d) include:
(a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and
(b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.
5. If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.
6. In this section:
board of directorsmeans the body (by whatever name called) exercising the executive authority of the body corporate.
corporate culturemeans an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place.
high managerial agentmeans an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate’s policy.
12.4 Negligence
1. The test of negligence for a body corporate is that set out in section 5.5. 2. If:
(a) negligence is a fault element in relation to a physical element of an offence; and
(b) no individual employee, agent or officer of the body corporate has that fault element; that fault element may exist on the part of the body corporate if the body corporate’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers). 3. Negligence may be evidenced by the fact that the prohibited conduct was
substan-tially attributable to:
(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
We might also mention here the recent Corporate Manslaughter and Corporate Homicide Act, parts of which entered into force in the United Kingdom on 6 April 2008. This legislation provides the framework for the prosecution of corporations for manslaughter where the entity’s activities amount to a gross breach of the relevant duty of care and causes a person’s death. The legislation was prompted by the problems associated with finding a controlling mind so the newmens rearequirements are worth detailing here. The Act states that:
An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach [of the duty of care].. . .a breach of a duty of care by an organisation is a ‘‘gross’’ breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances;
(c) ‘senior management’, in relation to an organisation, means the persons who play signifi-cant roles in ^
i. the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or
ii. the actual managing or organising of the whole or a substantial part of those activities.57
As long as there is no international criminal court with jurisdiction over legal persons, we are unlikely to see an unambiguous international standard
develop which details the requisite mental engagement of a company before it can be said to have committed an international crime. For the moment the field is likely to develop according to those national jurisdictions which are among the first to try corporations for international crimes. Several arguments were raised above in favour of liability developing beyond the traditional need for a relevant individual perpetrator, so that corporations could be found liable due to a failure in their systems. Perhaps the overwhelming argument in this vein is that: ‘Rules of liability should encourage management to have a preventive system.’58
5. Emerging Practice Concerning Rebel Groups,
Paramilitaries and Political Parties
As already mentioned above, the ICC Statute did not, in the end, include jur-isdiction over non-natural persons. The Working Group, that drafted various proposals, had in mind not only the prospect of prosecutions of corporate entities but also of political parties or even racist groups. Of course such a move was in part inspired by the fact that the International Military Tribunal in Nuremberg in 1946 had declared criminal certain organizations under its Statute;59and the move was partly rejected precisely because the declarations against the organizations had been used to prosecute individuals for member-ship of such groups.60According to Bassiouni: ‘To impose international crim-inal responsibility merely for passive membership in an organization stretches the generally accepted principles of criminal responsibility found in most legal systems. Such a proposition would be tantamount to guilt by association which most legal systems reject as fundamentally unfair.’61Despite the absence of
58 C. Wells,Corporations and Criminal Responsibility(2nd edn., Oxford: Oxford University Press, 2001), 157.
59 The IMT declared the following organization to be criminal under Art. 9 of its Statute: the Leadership Corps of the Nazi Party, the Gestapo, SD, and the SS. According the James Owen: ‘The French and Soviets had grave concerns about such corporate and retrospective declara-tions of guilt’. Owen refers to ‘an avalanche of affadavits ^ more than 190,000 of them’. J. Owen,
Nuremeberg: Evil on Trial(London: Headline Review, 2006), 13.
60 See Arts 9 and 10 IMT Statute. It is worth noting the following passage from the Judgment: ‘A criminal organisation is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter. Since the declaration with respect to the organisations and groups will, as has been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organisation and those who were drafted by the State for membership, unless they were personally impli-cated in the commission of acts declared criminal by Article 6 of the Charter as members of the organisation. Membership alone is not enough to come within the scope of these declarations.’ 61 M.C. Bassiouni (ed.), International Criminal Law. Volume 1: Crimes (2nd edn., Ardsley: Transnational, 1999), 24. For detail on some of the proposed legislation being developed in order to criminalize membership of certain terrorist groups listed by the United Nations and the European Union, see A. Bianchi, ‘Security Council’s Anti-terror Resolutions and their
jurisdiction over organizations as such before the existing international crim-inal tribunals, the possibility of an international crimcrim-inal law supplying obliga-tions for rebel groups should not, however, be ruled out.
While the practice concerning the criminalization of individual members of rebel groups under international law is now well-established (with regards to
inter aliawar crimes and crimes against humanity62), the question of whether the groups as such can be said to have violated international criminal law remains, however, under explored.63 Before we embark on such an exercise one might legitimately ask: what is the point of extending international crim-inal law to rebel groups? Unlike corporations rebel groups are unlikely to have assets in their names, they may be less concerned about reputational damage, and their activities are, in any event, illegal under the national law of the state they are fighting against. Furthermore, to the extent that assisting such groups ought to be dealt with through criminal law, the work of the Security Council and the European Union may be already filling this space by listing certain groups, individuals and demanding the freezing of assets and other restrictions such as travel bans.64 I would, however, suggest that the enquiry is worth pursuing for three reasons.
Implementation by Member States’, 4Journal of International Criminal Justice(2006) 1044^1073, at 1053^104.
62 Some commentators suggest that the extension to the state sphere is limited: ‘The non-state actors who are now covered by these extensions are those who have the same character-istics of state actors. Thus, these non-state actors must have some of the charactercharacter-istics of state actors, [such] as the exercise of dominion or control over territory or people, or both, and the ability to carry out a ‘‘policy’’ similar in nature to that of ‘‘state action or policy’’’. Bassiouni (ed.),
supranote 61, at 27. For Bassiouini, it is the underlying policy that ‘distinguishes ‘‘crimes against humanity’’committed by non-state actors from crimes within the domestic jurisdiction of the state where the crimes in question occurred’. Bassiouini notes, however, that the Genocide Convention applies specifically to non-state actors.
63 To the extent that national law proscribes belonging to certain groups and allows for criminal prosecution for such membership this flows from the national law rather than the violation of international criminal law by the group concerned. Issues of joint criminal enterprise and complicity, as they relate to assisting a group to commit an international crime, have been outlined in the sections on complicitysupra. In the United Kingdom, a number of groups have been proscribed, and under the Terrorism Act 2000 it is an offence to belong to or encourage support such groups. The UK Home Office site gives a description of each group (http:// www.homeoffice.gov.uk/security/terrorism-and-the-law/terrorism-act/proscribed-groups; vis-ited 20 April 2008).
64 See further A. Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for Legitimacy and Cohesion’, 17European Journal of International Law
(2006) 881^919; also, Bianchi, supra note 61, at 1044^1073 and B. Fassbender, ‘Targetted Sanctions and Due Process’ (2006), available at http://www.un.org/law/counsel/ Fassbender_study.pdf (visited 20 April 2008). For the EU’s most recent amendment to its own list, see ‘Commission Regulation (EC) No 220/2008 of 11 March 2008’ amending for the 93rd time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures direc-ted against certain persons and entities associadirec-ted with Usama bin Laden, the Al-Qaida net-work and the Taliban.’ OJ L 68/11, 12 March 2008; See further http://ec.europa.eu/ external_relations/cfsp/sanctions/measures.htm#Terrorist_groups (visited 20 April 2008).
First, as we have seen, corporate liability may depend on finding a third party to be implicated in international criminal activity. Whether or not the rebels as primary perpetrators are actually tried, their responsibility under international law may be essential for any finding of third party complicity in such violations. Second, the activities of bodies such as the Security Council, the Special Representative of the Secretary-General for Children in Armed Conflict, and the Office of the High Commissioner for Human Rights depend in part on naming and shaming rebel groups for violating international norms. Third, the incentives for compliance by rebels may be more extensive than is com-monly assumed. Let me briefly deal with each of these suggestions in turn.
A recent complaint brought against Chiquita for complicity in crimes against humanity, war crimes and torture allegedly committed with a parami-litary organization (the United Self-Defence Committees of Columbia (AUC)) in Colombia illustrates the point. We have here a suit under the ATS which depends on proving that the protection money offered by Chiquita facilitated international crimes committed by the group (rather than showing that the crimes were committed by any one or more individuals).65The suit builds on the fact that Chiquita pled guilty in March 2007 to engaging in transactions with a specially designated global terrorist group. The company’s sentence includes a $25 million criminal fine. Other suits have been brought against Chiquita for contributing to the deaths of individuals at the hands of a rebel group, the Revolutionary Armed Forces of Columbia (FARC).66Whether or not these suits are successful, and regardless of whether or not they are deter-mined by reference to international criminal law, the point remains that there will be situations where the victims of international crimes committed by armed groups may need to rely on the notion that an armed group can commit violations of international criminal law (even if this is only as a way to recover reparation from a corporate accomplice).
A further example of a third party being accused of complicity in an inter-national crime being committed by an armed opposition group is the suit brought against Libya for complicity in the international crimes committed by the Provisional Irish Republican Army (PIRA). The suit alleges inter alia in Count IX that the:
313. PIRA bombings utilized Semtex as the primary explosive ingredient against the Alien Plaintiffs and the unarmed British population constitute crimes against humanity in viola-tion of the law of naviola-tions. . ..
319. Throughout the 1980s and 1990s, this campaign by the PIRA was widespread and systematic against the civilian population.
320. Libya, through its officials, employees, and agents including but not limited to defen-dants Qadhafi, Senoussi, Kusa, Ashour, and Bazelya, knowingly, intentionally and directly
65John Doe et al v. Chiquita Brands International, United States District Court at the District of New Jersey, filed 18 July 2007.