‘We just send them to Syria. Ask the Syrians where they put them.’
- Anatoly P. Isaikin, Director General of Rosoboronexport1
A. The international legal separation of justice and economics
Following the Second World War, international criminal law was expanded, ostensibly, to ensure that the greatest criminals would be held accountable for their actions. However, it has been argued that international criminal law ‘was used, contrary to early indications, to conceal rather than address the economic causes and imperialist nature of the war, so as to enable the continuation or rehabilitation of trade relations’ (emphasis in original).2 In spite of ‘telling exceptions’,3 war crime trials and other post-conflict institutions such as truth and reconciliation commissions are inclined to overlook the involvement of businesses and other economic actors in armed conflict, as well as of economic crimes such as extensive corruption and tax evasion.4 Indeed, ‘the responsibility of corporations or their staff for their involvement in international crimes has hitherto been at most of marginal interest in international prosecution efforts (…)’.5
B. Landmark cases in international criminal law involving business leaders
This is not to say, however, that international criminal law has been entirely negligent of the economic aspects of armed conflict. To illustrate this, this paper only mentions some of the most important trials in international criminal law in which business leaders were tried.
It has long been uncontroversial that international crimes often involve a wide range of actors. The International Military Tribunal (IMT) in Nuremberg stressed that the Nazi regime, in its commission of large-scale crimes, had relied on the complicity of many:
Hitler could not make aggressive war by himself. He had to have the co-operation of statesmen, military leaders, diplomats and businessmen. When they, with knowledge of his aims, gave him their co-operation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing.6
After the Judgment of the IMT, ‘[i]n the burst of international law building that took place within the peace agendas of states after World War II’, several of the subsequent trials conducted in Nuremberg under Control Council Law No 10 included charges against business leaders.7 Three of these trials, conducted before American military courts, have come to be known as the Industrialists Trials. In the Trial of Carl Krauch and Twenty-Two Others,8 also known as IG Farben, 13 of 24 high-level members of IG Farben, a German conglomerate of chemical firms, were found guilty of enslavement, plunder or both.9 All were acquitted of the charges of crimes against peace and conspiracy to commit crimes. Although four of the accused had participated in the rearmament of Germany, the fact that they were not military experts meant that they could not have known that they were aiding Germany in preparing for an aggressive war and consequently lacked the required mental element.10 The Judgment’s sole remark on economic offences as war crimes only refers to the relevant sections of the Trial of Alfried Felix Alwyn Krupp von Bohlen und Halbach and Eleven Others, also known as Krupp.11 This Judgment significantly developed international criminal law on war crimes against property and also treated forced employment of foreign civilians and concentration camp inmates. Six of the accused were found guilty of plunder and spoliation and all but one were convicted for the employment of ‘prisoners of war, foreign civilians and concentration camp inmates under inhuman conditions in work connected with the conduct of war (…)’.12 In the Trial of Friedrich Flick and Five Others, also known as Flick, three of the six accused, all of whom held leading positions in a conglomerate of industrial firms, were convicted of the war crimes of the use of slave labour and employment of prisoners of war, spoliation of public and private property in occupied territories and/or financial support and membership of the SS.13 Although the Tribunal did not specify the relevant mode of liability of every accused, it did conclude that when combined with the required knowledge, one’s financial assistance to the SS, a criminal organisation, rendered one ‘if not a principal, certainly an accessory to such crimes’.14
Thus, the Industrialists Trials reveal that ‘[b]usinesses could not avert prosecution solely because a dictator conceived of the plan to violate international law and the businesses played no role in the initial planning’.15 Similarly, in Trial of Bruno Tesch and Two Others, also known as Zyklon B, Bruno Tesch, who was the owner of a poison gas firm, Karl Weinbacher and Joachim Drosihn were accused of the war crime of ‘having supplied poison gas used for killing allied nationals interned in concentration camps, knowing that it was so to be used’.16 Tesch and Weinbacher were convicted and sentenced to death, while Drosihn was acquitted. Zyklon B was decided on the principle that civilians who are accessories to war have themselves committed war crimes.17 Thus, these cases show ‘a symbiotic relationship between big business and a criminal regime which could not have survived without the former’s unfaltering support’.18
C. Business leaders, the International Criminal Court and aiding and abetting
On 1 July 2002, the Rome Statute of the International Criminal Court (ICC), the first permanent court ‘to exercise its jurisdiction over persons for the most serious crimes of international concern,’ entered into force.19 As of March 2014, no cases have been brought before the ICC that involved persons charged for acts they had committed in their capacity as business leaders. This supports the observation that ‘the legal framework for holding corporations and their individual agents criminally responsible at the international level is poorly developed and, even more so, poorly enforced’.20 Against this background, the aim of this article is to provide some thoughts on the ways in which business leaders may be held accountable before the ICC.
Although business leaders do commit international crimes directly and intentionally, for example by enslavement or pillaging, this is quite rare,21 and ‘[i]n most cases (…) corporations are only complicit in the crimes by aiding or abetting crimes committed by governments or paramilitary groups’.22 This paper supposes that future cases before the ICC involving business leaders will typically be made with reference to the accessorial liability mode of aiding and abetting under Article 25(3)(c) of the Rome Statute.23 Per Article 25(3)(c), individual criminal responsibility arises when a person ‘[f]or the purpose of facilitating the commission of [a crime under the jurisdiction of the Court], aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission’.24 Interpretations of this Article, as well as its relation to other parts of the Rome Statute, are diverse and competing. The question of how business leaders might be found responsible for their actions before the ICC is closely connected to the question of the preferable interpretation of Article 25(3)(c). Thus, the paper aims to articulate the actus reus (or material element) as well as the mens rea (or mental element) required by Article 25(3)(c) by examining to what extent these elements can be harmonised with existent case law, drawn predominantly from the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).
D. Case study
The paper then proceeds with a case study, in which its interpretation of Article 25(3)(c) is applied to a case of possible accessorial liability for provisions of armaments, including defence systems and missiles, by the Russian State-owned corporation Rosoboronexport to the government of the Syrian Arab Republic (Syria). The choice of this case study is not arbitrary; ‘there is little literature that thoroughly explores the relationship between these competing definitions [of aiding and abetting] in light of the intricacies of the global trade in weaponry’.25 The paper draws on reports by the United Nations’ Commission of Inquiry on Syria, which allege that the Syrian government has been committing crimes against humanity since March 2011 and war crimes since mid-2012. It considers possible evidence of the assistance by Rosoboronexport to the commission of these crimes. It asks whether the Director General of Rosoboronexport, Anatoly P. Isaikin,26 could prima facie be held individually criminally responsible for aiding and abetting these crimes under Article 25(3)(c) by providing weapons to Syria.
II. The Theory of Aiding and Abetting
Typically, in contrast to crimes committed under domestic law, a finding of individual criminal responsibility for an international crime relies on the examination of ‘a multi-perpetrator setting’,27 in which acts have been performed ‘in a collective context and systematic manner’28 and in which the culpability of an individual ‘is not always readily apparent’.29 In view of the potential impossibility and insufficiency of ‘[isolating] the conduct of the accused from the wider criminal context,’ this gives rise to the desirability of holding criminally accountable not only the principal perpetrators but also those who, by being accessorial to the crimes committed by the principals, are derivatively liable for those crimes.30 While proof is required that a crime has been committed, accomplice liability may arise also when the principal perpetrator has not been convicted, prosecuted or even identified,31 or when it would be impossible to try the principal offender.32
The system of different modes of liability in the Rome Statute indicates that there are different degrees of individual criminal responsibility.33 Under Article 30, individual criminal responsibility arises only in the presence of actus reus (Articles 5, 6, 7 and 8) and mens rea (Article 30).34 The way in which these requirements are satisfied determine the appropriate mode of liability specified in Article 25. Aiding and abetting or otherwise assisting, per Article 25(3)(c), is ‘the subsidiary form of participation’ in the Rome Statute.35
Aiding and abetting is generally recognised as a category of accomplice liability in international criminal law. It is expressly included in the Statutes of the ICTR and ICTY: both stipulate that individual criminal responsibility arises if ‘[a] person (…) planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime’ under the jurisdiction of the respective Statutes.36 The Rome Statute construction of liability differs from this phrasing in that it contains six sub-subclauses (Article 25(3)(a) to (f)) that specify the various modes of liability with their own qualifications. The relevant provisions of Article 25 read as follows:
Individual criminal responsibility
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court 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.37
When compared with the statutory language of the ad hoc Tribunals, the Rome Statute version of aiding and abetting includes a number of novelties, such as the phrases ‘for the purpose of facilitating’, ‘otherwise assists’, ‘attempted’ and ‘including providing the means’, as well as the requirement in Article 30 that all modes of liability must satisfy the mens rea requirements specified therein. Debates on these novelties have not reached uniform conclusions. The following discussion therefore examines whether Article 25(3)(c) may be interpreted consistently with the dominant practices of international tribunals. This question is important as the Court should in the first place rely on its own Statute and should only draw on external case law ‘on clear methodological grounds’;38 this means that if it fits the Court, customary principles that have ‘developed over a significant period of time’ may contribute to the practice of the ICC.39 The following sections therefore examine whether the judgments of the Nuremberg Trials, the ICTY and ICTR point in the direction of applicable norms of customary international law that could provide guidance to the ICC.
Before that, however, attention must briefly be paid to what has been identified as reluctance to use ICTY or ICTR cases at the ICC, or interpret them as indicating international norms.40 Two main reasons can be identified. First, the ICTY and ICTR are ad hoc tribunals with geographically limited and temporary jurisdiction; second, at the time of their creation, their jurisprudence ‘had not necessarily been accepted or verified by the international community’.41 However, in response to the first concern, these limitations of jurisdiction do not mean that similar situations cannot be reproduced and mirrored in the jurisdiction of the ICC; rather the contrary is the case. Therefore, these limitations should not preclude examinations of the ways in which the case law of the ad hoc Tribunals may aid the ICC. As to the second objection, the non-acceptance or non-verification by the international community of the Tribunals at the time of their creation is immaterial to the weight of the Tribunals’ development of international criminal law. Additionally, reliance by the ICC on the Tribunals’ precedents could support ‘the construction of a coherent system of international criminal law’, avoid its fragmentation and strengthen the still weak institutions of international criminal justice.42
III. The Actus Reus
Although the terms aiding and abetting are often used together and interchangeably, in the Akayesu Trial Judgment the ICTR discarded this appearance of synonymity by stating that aiding and abetting ‘are indeed different. Aiding means giving assistance to someone. Abetting, on the other hand, would involve facilitating the commission of an act by being sympathetic thereto.’43 Nevertheless, a finding of either of the two suffices for liability to attach. Competing interpretations exist as to the actus reus and mens rea of aiding and abetting. Because the Rome Statute lacks an explicit threshold for actus reus, it is important to consider the relevant judgments of the ad hoc Tribunals in this regard. The following discussion focuses on five particularly influential judgments: the Furundžija Trial Judgment,44 the Tadić Trial and Appeal Judgments,45 the Perišić Appeal Judgment and the Šainović et al Appeal Judgment.46Furundžija set forth an interpretation of aiding and abetting that has been followed by subsequent judgments,47 while the last four have been vital in the recent controversy over the notion of specific direction.
The Rome Statute’s lack of an actus reus threshold contrasts with its earlier draft version, the International Law Commission (ILC)’s Draft Code of Crimes against the Peace and Security of Mankind of 1996, under which aiding and abetting must be done ‘directly and substantially.’48 Thus, even for ‘the weakest form of complicity,’49 the aider and abettor must have a direct and substantial effect on the commission of the crime by the principal perpetrator. It has been suggested that, in the light of the ILC Draft Code, the absence of an actus reus threshold in the Rome Statute ‘may imply that the Diplomatic Conference meant to reject the higher threshold of the recent case law of The Hague’.50 Cryer et al, moreover, have argued that the absence is ‘probably not of much great practical importance’,51 but provide no justification for this argument. However, it is desirable to enforce some standard; employing no actus reus threshold at all could enable the prosecution of the person who supplies an international criminal with coffee each morning if the mens rea requirement was somehow met. Although for the purpose of determining liability ‘no business activity, regardless of how ordinary or “neutral” it seems to be’,52 can in principle be excluded from consideration, it would be beyond the purpose of the ICC to try those who are not responsible ‘for the most serious crimes of international concern’.53 That the ICC is only concerned with the most serious crimes merits the existence of a threshold for the actus reus of aiding and abetting. The Furundžija Trial Judgment, indeed, followed the ILC’s Commentary that ‘participation of an accomplice must entail assistance which facilitates the commission of a crime in some significant way’,54 adding that this phrase and the ‘directly and substantially’ requirement of Article 2(3)(d) of the Draft Code ‘clearly exclude any marginal participation.’55
B. Substantiality, directness and specific direction
If it is accepted that not any act may constitute the actus reus of aiding and abetting, it must be asked where the threshold lies. The ICTY in the Furundžija Trial Judgment held that the ILC Draft Code ‘is an authoritative international instrument’ that either evidences custom, sheds light on developing or unclear custom or at the very least elucidates the views of the most qualified publicists.56 Thus, the Draft Code was considered evidence of international law with implicit reference to Article 38(1) of the Statute of the International Court of Justice.57 The ILC requirement of substantiality has indeed gained authority as a ‘standard set by previous jurisdiction’.58
The ILC’s requirement that aiding and abetting must not only be ‘substantial’ but also ‘direct’ is more controversial.59 Notably, the Furundžija Trial Judgment characterises this latter requirement as ‘misleading’ because ‘it may imply that assistance needs to be tangible, or to have a causal effect on the crime. This may explain why the word “direct” was not used in the Rome Statute’s provision on aiding and abetting.’60 Rather, the ICTY held that the actus reus requires ‘practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.’61 This definition has subsequently been used in a large number of cases before the ICTY and ICTR.62
The Furundžija definition is significant because it allows the actus reus of aiding and abetting to be non-tangible; ‘action which decisively encourages the perpetrator is sufficient to amount to assistance’.63 Thus, material assistance need not actually be granted; ‘willingness to provide assistance, when made known to the perpetrator, would also suffice, if the offer of help in fact encouraged or facilitated the commission of the crime by the main perpetrator.’64 In the case of tangible assistance, however, such awareness is not required; ‘indeed, the principal may not even know about the accomplice’s contribution.’65 If a particular willingness to provide assistance (abetting) does not materialise into objective help (aiding), the willingness may nonetheless give rise to criminal liability. It thus makes sense to treat aiding and abetting together, as constituting one mode of liability.
Eight months after the Furundžija Trial Judgment, the ICTY provided a description of the actus reus of aiding and abetting in the Tadić Appeal Judgment that would come to fuel controversy:
The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.) and this support has a substantial effect upon the perpetration of the crime.66
The Tadić Appeal Judgment followed the Furundžija definition by requiring a substantial but not a direct effect, but ostensibly narrowed the previously set standard by adding that the act must be specifically directed to assist, encourage or lend moral support. Specific direction ‘establishes a culpable link between assistance provided by an accused individual and the crimes of principal perpetrators.’67 This notion has subsequently been followed by ‘many subsequent [ICTY] and ICTR appeal judgements,’ either explicitly or implicitly.68 However, in the Mrkšić and Šljivančanin Appeal Judgment specific direction was dismissed as ‘not an essential ingredient’.69 The ICTY reaffirmed the Mrkšić and Šljivančanin position in the Blagojević and Jokić Appeal Judgment (in which specific direction was characterised as an implicit requirement at most)70 and the Lukić and Lukić Appeal Judgment.71 The Tribunal reverted to the notion of specific direction as a separate, explicit requirement in the 2013 Perišić Appeal Judgment.72 Here, it rejected Mrkšić and Šljivančanin, holding that this deviation did not amount to the careful consideration necessary to depart from a previous decision because, among other reasons, Mrkšić and Šljivančanin only cited one case in its support, which confirmed that specific direction is a requisite element.73 The Perišić decision was subsequently criticised for its approach to specific direction, however, by the recent Appeal Judgments in Šainović et al by the ICTY and Taylor by the Special Court for Sierra Leone (SCSL),74inter alia because the Tadić delineation of aiding and abetting had been made obiter75 and was not supported on any statutory or customary international law76 or State practice77 grounds. The balance may therefore be leaning towards not requiring specific direction.
What does a substantial contribution as the standard for the actus reus of aiding and abetting mean more specifically? The material connection between the act of the aider and abettor and the crime committed by the principal perpetrator has been said to encompass three distinct aspects, each of which may be characterised by a particular gradation of substantiality: geographical, temporal and causal connections.78 These are examined in turn.
C. Geographical connection
Whatever the exact threshold of actus reus, the geographical connection in the accessorial object does not pose any geographical limits.79 The ICTY and ICTR have consistently stated that the conduct of the aider and abettor may be geographically unconnected to the crime.80 At the same time, one’s presence at the scene of a crime per se may suffice for a finding of individual criminal responsibility; in United States v Hans Altfuldisch et al, it was held that officials, guards or employees of the Concentration Camp Mauthausen must, by their control of or presence in the Camp, have known of the criminal offences carried out within it.81 The ICTY in the Furundžija Trial Judgment relied on the Synagogue and Pig-Cart Parade cases to hold that the scope of this ‘approving spectator scenario’ is restricted by the requirement that one’s presence on the scene of the crime may constitute the actus reus only when combined with a certain authority.82 In the characterisation of the ‘approving spectator’ concept, the ICTY departed from the Altfuldisch approach. In the latter, the American General Military Government Court had held that from presence in the Camp knowledge could be deduced that, in combination with the ‘criminal nature’ of ‘the circumstances, conditions, and the very nature’ of the Camp, formed the basis for the finding of guilt of the officials, guards and employees.83 Rather than taking presence as the mens rea, however, the ICTY in Furundžija concluded that presence, when combined with authority, may amount to the actus reus, rendering one a ‘supporter’.84
However, as established in Tadić, there need not exist any geographical connection between the act of the accessory and that of the principal perpetrator. Here, the ICTY stated that ‘direct contribution does not necessarily require the participation in the physical commission of the illegal act.’85
D. Temporal connection
It is uncontroversial that the act of the aider and abettor may occur at any time before or during the commission of the crime by the principal perpetrator. However, it is more disputed whether assistance that gives rise to accomplice liability could have taken place following the act of the crime.
On the one hand, following the ILC’s conclusion that aiding and abetting may occur after the fact if a person had agreed with the principal perpetrator to aid and abet the latter’s crime,86 Ambos stresses that ‘an “attributory” nexus (…) between the main offence and the act of assistance’ is required for aiding and abetting and that therefore an ex post facto link would usually consist of a prior common agreement.87 In this view, the actus reus of aiding and abetting may only occur after the fact if the mens rea existed prior to the commission of the crime. The ICTY in the Furundžija and Haradinaj Trial Judgments held that aiding and abetting ex post facto is possible if the principal perpetrator commits a crime knowing that he will receive assistance during or after the commission.88
On the other, it has also been suggested that the absence of an explicit provision in the Rome Statute enabling the prosecution of a person for aiding and abetting ex post facto means that this is not possible before the ICC.89
A better view may be that, since the Rome Statute is silent on the question of complicity ex post facto and other sources of law do not point towards a uniform answer, ‘the ICC can find support for almost any legal position adopted.’90 While it might be too much to categorically exclude the possibility of aiding and abetting ex post facto, it is likely that the amount of such cases would be limited, in any case, if the ICC follows the customary requirement that the actus reus must have a substantial effect.91
E. Causal connection
Assuming that there may be different gradations of causation, it is uncontroversial that a causal connection between the act of the aider and abettor and that of the principal perpetrator in the strong sense of a conditio sine qua non is not required.92 It is more disputed, however, whether some weaker sense of a causal connection is required.
Article 25(3)(c) of the Rome Statute could be read as including a rather low causality requirement, as it concerns aiding and abetting the principal’s ‘commission or (…) attempted commission’ of a crime (emphasis added).93 If one favours the inclusion of a causality requirement, this might consist of causing the mere attempt of a commission, even if it is an unsuccessful one. However, there is nothing in the Rome Statute to suggest that a causal connection is necessary. Limited support for a causality requirement could be inferred from the Statute’s definition of the necessary mens rea attached to a consequence. As individual criminal responsibility in a case of aiding and abetting only arises through the accessorial object, i.e. on the condition of the existence of a link to a principal perpetrator and a principal act, the act of the aider and abettor must typically give rise to a consequence (rather than mere conduct, per Article 30(2)(a)), from which accessorial liability derives. Article 30(2)(b) of the Rome Statute reads as follows: ‘[i]n relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events’ (emphasis added).94 While causation is thus included in the Rome Statute, meaning to cause a consequence or awareness of the likely occurrence of that consequence as a mens rea requirement does not lead to an actus reus requirement of the objective causation of a consequence.
The absence of a causality requirement from Article 25(3)(c) has been regarded as a failure.95 In the light of the ad hoc Tribunals’ cases, however, this conclusion is not obvious. Ambos cites the Tadić Trial Judgment in favour of the view that the aider and abettor’s act ‘must – in one way or another – have a causal relationship with the result.’96 However, the given paragraph in Tadić actually states that the act must only be ‘a contribution that in fact has an effect on the commission of the crime.’97 In any case, the importance that the Tribunal attached to this threshold might be questioned,98 as it also held that ‘aiding and abetting includes all acts of assistance by words or acts that lend encouragement or support, as long as the requisite intent is present.’99 Moreover, in the Furundžija Trial Judgment a causality requirement was rejected as an implication of the ILC’s term ‘direct,’ which the Tribunal considered misleading.100 Thus, because there does not exist any substantial support for upholding a causality requirement, the better interpretation would be that it is not required.
Customary international law does not require a geographical link between the act of the aider and abettor and that of the principal perpetrator. There exists some support for the notion of ex post facto aiding and abetting. As to causality, the actus reus need not be a conditio sine qua non; rather, ‘the Tribunals have required that the conduct of the aider and abettor have some effect on the commission of the crime by the principal perpetrator’ (emphasis in original).101 The inherent ambiguity of formulations such as some or substantial is not necessarily a weakness; the exact threshold cannot be captured in an abstract theory, but ‘only on a case by case basis taking into account modern theories of attribution.’102 The ICC’s mandate, limited to the most serious crimes of concern to the international community as a whole, should be read as endorsing the consistent requirement before the ad hoc Tribunals of some actus reus threshold for aiding and abetting.
IV. The Mens Rea
In ICTY and ICTR cases, the mens rea required for aiding and abetting is twofold. The aider and abettor must know, first, that his actions assist the principal perpetrator and, second, he must be aware of the essential elements of the crime.103 Awareness of the precise crime is unnecessary.104 More specifically, recklessness is sufficient. According to the Tadić Trial Judgment, mere reckless indifference may constitute knowledge.105Tadić followed the Trial of Gustav Becker, Wilhelm Weber and 18 Others, which stated that the War Crimes Commission had decided ‘in numerous instances’ that not only intent but also reckless indifference may suffice.106 Schabas, too, holds that in customary international law recklessness is enough for the establishment of guilt of an accomplice to a war crime or a crime against humanity.107
In their joint separate opinion in the Perišić Appeal Judgment, Judges Meron and Agius considered that the specific direction component may not only be an element of the actus reus of aiding and abetting, but also of the mens rea. Whether a person specifically intended to assist in the commission of a crime could be incorporated into the mens rea question.108 However, in light of the unequivocal rejections in Taylor and Šainović et al of specific direction as a requirement of aiding and abetting, including for the mens rea, the place for specific direction in future mens rea discussions may be limited.109
B. Article 30 and aiding and abetting
In the Rome Statute, the ways in which the mens rea of aiding and abetting is constructed depend not only on Article 25(3)(c) but also on Article 30, the first paragraph of which determines that intent and knowledge must accompany the actus reus. The full text of Article 30 is as follows:
- Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
- For the purposes of this article, a person has intent where:
- In relation to conduct, that person means to engage in the conduct;
- In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
- For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.110
In demanding intent and knowledge, Article 30 prima facie departs from the customary standard described above. Rather than allowing reckless indifference, the phrase ‘means to cause that consequence’ requires dolus directus, or ‘a desire for the occurrence of consequences.’111 Likewise, Cryer et al argue that the mens rea requirement of intent ‘will certainly make prosecuting those who sell arms or other war matériel which is used for international crimes difficult to prosecute’ [sic].112 According to them, even if knowledge is established, it will be problematic to prove that the intent of the accused is not merely to make profit but indeed to facilitate the commission of a crime.113
According to Schabas, Article 30 could be particularly problematic for Article 25(3)(c) when the terms aiding and abetting are separated. They can be distinguished on the basis of the purposive mens rea of Article 25(3)(c).114 With abetting, as the provision of moral support, purpose will be inferred from the speech or expression of the abettor, whereas in the case of aiding or otherwise assisting the requirement of purpose ‘becomes more vital’, because such tangible acts may be committed without the necessary mens rea and thus require additional proof for the mens era.115
However, Article 30(2)(b) does not require as high a mens rea threshold as suggested by Piragoff and Robinson and Cryer et al. The Rome Statute allows for a construction of the mens rea of aiding and abetting that may require not much more proof than under customary international law; on the one hand, mere recklessness is probably excluded, but on the other hand neither Article 30 nor Article 25(3)(c) actually requires one to mean to cause a consequence. It should be noted that Article 30(2)(b)(second alternative), which defines intent as ‘[awareness] that [a consequence] will occur in the ordinary course of events’, is verbatim the same as the definition of knowledge in relation to a consequence per Article 30(3)(second alternative). This situation means that ‘it would be a waste of the Court’s and the Prosecution’s resources to ever require’ a very high volitional element rather than awareness.116 Thus, generally, awareness suffices for a finding of individual criminal responsibility with respect to a crime defined as a consequence. Due to the addition ‘in the ordinary course of events’, Article 30 is stricter than the customary standard of recklessness. Rather, the cognitive element, in contrast to the ad hoc Tribunals’ standard, requires knowledge of said probability.
Nevertheless, it has been argued that ‘most legal scholars’ hold that under the Rome Statute the aider and abettor possesses the same intent as the principal perpetrator.117 Vest cites Ambos’s commentary on Article 25 in his favour, but Ambos, in the given paragraph,118 does not discuss aiding and abetting but rather another mode of liability. Vest also cites Werle’s Principles of International Criminal Law, but Werle actually holds that ‘[i]t is sufficient if the person assisting was aware of the essential elements of the crime’.119 Furthermore, the Furundžija Trial Judgment held that custom does not require the aider and abettor to share the mens rea of the principal perpetrator, but merely to have knowledge that his acts assist the principal.120 It is not clear, then, that the view that the aider and abettor must share the principal’s mental state is held by most legal scholars; the consensus appears to favour the opposite position.
C. ‘For the purpose of facilitating’: the notion of an additional element
A potential counterargument to the idea of ‘intent as awareness’ is the notion that Article 25(3)(c) necessitates a mens rea additional to intent and knowledge as provided in Article 30(2) and (3) for aiding and abetting.121 This argument is enabled by the first words of Article 30(1): ‘[u]nless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime (…)’ (emphasis added).122 The phrase ‘unless otherwise provided’ imposes either less stringent, more stringent or additional requirements.123 While the difference between the latter two categories is not abundantly clear, Finnin suggests that a distinction may be drawn on the basis of suggestions that more stringent requirements are linked to the actus reus, while additional requirements are not; indeed, additional requirements do not at all refer to the actus reus.124 Although without justification, Finnin qualifies the phrase ‘[f]or the purpose of facilitating’ in Article 25(3)(c) as an example of requirements additional to intent and knowledge.125 Following this interpretation of ‘[f]or the purpose of facilitating’ would require one to specify the consequences of classifying this phrase as an additional element. Because Article 30 does not contain any provisions that regulate the content of such additional elements, Finnin argues, the Court would be allowed to consider sources of customary international law that provide clarity on this.126
However, the idea of an additional mens rea requirement as the purpose of facilitating a crime, exclusive to aiding and abetting, may come with profound practical difficulties. Because accessorial liability in general is concerned with those who lack such involvement as to fulfil the role of the principal perpetrator, the accessorial object is most properly understood in relation to a consequence which facilitates the commission of a crime, rather than conduct per se, i.e. conduct that would render one a principal perpetrator. If the accessorial object typically is a consequence, intent in accessorial liability must be established on the basis of Article 30(2)(b) (‘[i]n relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events’). This means that for a finding of aiding and abetting Article 30 already requires that a person either possessed awareness that his conduct would ordinarily lead to the commission of a crime under the jurisdiction of the Court or meant to cause the crime. Crucially, it should be asked if the additional mens rea requirement of purposefully facilitating a crime would, in practice, meaningfully differ from the intent requirement of meaning to cause a consequence, so that separate pieces of evidence either fulfil the Article 30 requirement or the additional requirement exclusive to aiding and abetting. This question becomes especially prominent in the light of the phrase ‘[f]or the purposes of this article,’ which restricts the content of Article 30(2) and (3) to Article 30; thus, ‘[f]or the purpose of facilitating’ cannot be interpreted with the help of Article 30.
It might be an impracticable or fruitless exercise to aim to uphold the notion of a requirement additional to intent and knowledge, because the Court, if it endeavoured to find a real difference between a person’s purposeful facilitation and meaning to cause a consequence, would plausibly find it hard to interpret facts as evidencing one of the two, but not the other. Importantly, the cognitive standard is already raised by the formula ‘aware that it will occur in the ordinary course of events.’ Any element additional to the two standards of Article 30(2)(b), however defined exactly, could render Article 25(3)(c) unworkable. Thus, the words ‘[u]nless otherwise provided’ of Article 30(1) should, on practical grounds, not be interpreted as demanding an additional subjective requirement in the form of ‘[f]or the purpose of facilitating’.
In addition to these practical concerns, another argument, although admittedly more speculative, may be raised. It has been suggested with respect to some of the definitions of crimes in the Rome Statute, which require the actus reus to be ‘intentional’ or to be committed ‘intentionally’, that these additions are ‘likely superfluous, given the general rule in article 30.’127 During the negotiations on the Rome Statute, ‘intention(ally)’ was only added to the definitions of certain crimes to underline the impossibility of committing the actus reus non-intentionally.128 It could be speculated that the formula ‘for the purpose of facilitating’ in Article 25(3)(c) was added likewise to stress that aiding and abetting can only give rise to individual criminal responsibility if the intent requirement of Article 30 has been satisfied.
If not as an additional mens rea requirement, how should ‘[f]or the purpose of facilitating’ be interpreted? There exists considerable disagreement over this question; ‘[s]ome scholars believe that it imposes an intent requirement, while others believe that it leaves the traditional knowledge requirement intact’, or argue that the Rome Statute is not clear on the mens rea of aiding and abetting.129 Still others hold that ‘for the purpose of facilitating’ has no basis in customary international law.130 Nevertheless, it might be argued that the phrase does not go meaningfully beyond the relevant provisions of Article 30. The expression ‘for the purpose of facilitating’ was taken from the US Model Penal Code, which accords accomplice liability to a person who acts ‘with the purpose of promoting or facilitating.’131 This would imply ‘a specific subjective requirement stricter than mere knowledge.’132 However, the qualification of awareness in Article 30(2)(b)(second alternative) as ‘in the ordinary course of events’ already imposes a stricter requirement than mere recklessness; thus, ‘[f]or the purpose of facilitating’ in Article 25(3)(c) may not effectively increase the standard set by Article 30(2)(b).
Thus, it is possible and desirable to interpret Article 25(3)(c) as not requiring a mens rea additional to, or other than what is stipulated in Article 30. Rather, ‘[f]or the purpose of facilitating’ necessitates a mens rea that is higher than mere recklessness, which is incompatible with the precedents set by the ad hoc Tribunals. If it is asked, nonetheless, how this new standard should be specified, it is in the interest of the predictability of the law that it be considered that the definition of awareness in Article 30(2)(b) already departs from the customary standard of recklessness. Therefore, rather than interpreting ‘[f]or the purpose of facilitating’ as demanding direct intent, which would entail a very high volitional element, the better interpretation would be the lower standard of oblique intent (in common law terminology) or direct intent (or dolus directus) in the second degree (in civil law terminology). These gradations of intent share the requirement that ‘the perpetrator foresees as a certainty or as highly probable that certain consequences will flow from his or her conduct’, even if that person acts indifferently with respect to such consequences (emphases in original).133 Thus, if the preferable interpretation of ‘[f]or the purpose of facilitating’ is that it asks more than recklessness but should not maximally depart from custom, it should be read as demanding oblique intent. In this sense, it would not add anything to the Rome Statute’s definitions of intent or knowledge in relation to a consequence.
V. Case Study
As part of the revolutionary protests across the Arab world, demonstrations commenced in Syria in March 2011 that rapidly turned violent and descended into a full-scale civil war that, as of March 2014, is still ongoing. According to the United Nation’s latest estimate, published on 27 July 2013, 100,000 deaths had been recorded since March 2011, as well as two million refugees and four million internally displaced persons.134 The Syrian Observatory for Human Rights estimated the number of deaths related to the war to be 146,065 on 13 March 2014.135 While reporting and fact-finding missions have been hindered because the government has tried to minimise reporting from the country, there have been many claims of violations of international law. The following provides an overview of the claim that the Syrian government has committed crimes against humanity and war crimes.136 It also presents suggestions that the Russian state-owned corporation Rosoboronexport has been assisting the Syrian government herein by means of the provision of a variety of arms.
B. The situation in Syria
On 14 January 2013, 57 States sent a letter to the President of the United Nations Security Council (UNSC), requesting the Council to refer the situation in Syria as of March 2011 to the ICC, ‘without exceptions and irrespective of the alleged perpetrators.’137 The letter also referred to the Commission of Inquiry on the Syrian Arab Republic (CoI), which had been established in August 2011138 by the Human Rights Council to investigate international crimes and violations of human rights law committed in Syria since March 2011 and to identify perpetrators.139 The CoI has expressed fears that crimes against humanity have been committed since March 2011 since the publication of its first report in November 2011.140 In February 2012, the CoI stated that the commission of ‘widespread, systematic and gross human rights violations, amounting to crimes against humanity’ by the governmental forces was occurring ‘with the apparent knowledge and consent of the highest levels of the State.’141 It also noted that, despite the State’s primary responsibility to investigate, prosecute and punish crimes committed in Syria, ‘a culture of impunity’ precluded these measures and it suggested that ‘[i]nternational justice mechanisms could be used to support and complement national efforts’ for reconciliation and accountability.142 In its third report of 16 August 2012, the CoI importantly stated that the conflict had passed the threshold of a non-international armed conflict, which allowed it to conclude that it had ‘found reasonable grounds to believe’ that the government as well as non-State forces had committed crimes against humanity as well as ‘war crimes and gross violations of international human rights law and international humanitarian law’. 143 The CoI has repeatedly affirmed that the situation should be referred to the ICC.144
Against this background, this paper will examine whether the Director General of Rosoboronexport may be prima facie criminally responsible for his company’s assistance to the commission of international crimes in Syria.
C. Rosoboronexport’s involvement in Syria
One of the world’s major arms companies and part of the Russian Technologies State Corporation, the Open Joint Stock Company Rosoboronexport (Rosoboronexport) ‘is the sole Russian state intermediary agency responsible for import/export of the full range of defence and dual-use end products, technologies and services.’145 Rosoboronexport has been an open joint stock company since 1 July 2011,146 whose sole stockholder is the Russian Federation.147 The company has been accused of violating international laws by delivering and agreeing to deliver arms to the Syrian government after the start of the latter’s commission of international crimes.148 Since 2007, Rosoboronexport has virtually been the sole Russian arms exporter and 78% of Syria’s imports of major conventional weapons have come from Russia.149 The company itself claims to account for more than 80% of arms exports from Russia.150 According to the Stockholm International Peace Research Institute (SIPRI), a variety of arms was transferred in the period 2011-2013 from Russia to Syria. These have been included here in Appendix A. For the present discussion, the SIPRI data are suboptimal because many of the data are uncertain and because they concern arms deals and transfers concluded between Russia and Syria, not Rosoboronexport and Syria. Nonetheless, Rosoboronexport’s status as the sole State intermediary for the export of Russian arms151 suggests its involvement in the Russian-Syrian arms deals.
This involvement has been confirmed by the Director General of Rosoboronexport, Anatoly P. Isaikin. In June 2012 The New York Times reported that Mr Isaikin ‘openly discussed’ the delivery by Rosoboronexport to Syria of Pantsyr-S1 and Bastion-P missile systems and Buk-M2 anti-aircraft missiles.152 In January 2014, Mr Isaikin noted that continued unrest in Syria and other countries in the Middle East and North Africa had contributed to Rosoboronexport’s 2013 arms sells and that shipments of arms to Syria were ongoing.153
D. The actus reus of Mr Isaikin
In order to determine the potential criminal responsibility arising out of Rosoboronexport’s arms deals with Syria, the role of Mr Isaikin is now examined. Mr Isaikin was appointed Director General of Rosoboronexport by Presidential Decree No 1574 on 23 November 2007.154 Unfortunately, there is a serious lack of information on the structure of the company and Mr Isaikin’s effective influence; Rosoboronexport ‘remains an opaque entity closed-in on itself’155 and ‘tops the ranks of Russia’s least transparent economic entities.’156 Nevertheless, according to The New York Times, Mr Isaikin is ‘a powerful figure in Russia’s military industry’.157 While more detailed information is required to draw any definitive conclusions, it appears that Mr Isaikin should have possessed at least significant influence (if not control) over the arms transfers to Syria listed in Appendix A, all of the deliveries of which followed his appointment as Director General. Prima facie, this would amount to a significant contribution to the commission of international crimes.
Russian government spokespersons have asserted that the arms provided to Syria are defensive in nature and have not been used against the opposition or the Syrian population in general.158 The question of the verity of this statement requires on-the-ground research that is presently unavailable. However, it may be immaterial for the present discussion; even if the arms provided have not been used against anyone, the deliveries might nonetheless qualify as abetting the international crimes committed by the Syrian government. A finding of abetting under Article 25(3)(c) of the Rome Statute does not require evidence that the arms provided were actually used. The Court could rely, in this regard, on the Kamuhanda case, in which the Appeals Chamber of the ICTR held the following:
(…) [E]ven if the weapons that were distributed by the Appellant had not been used at all, their mere distribution amounts to psychological assistance, as it was an act of encouragement that contributed substantially to the massacre, thus amounting to abetting if not aiding.159
That the distribution amounted to encouragement that substantially contributed to the massacre at Gikomero Parish Compound was determined in the context of a statement made by the appellant to some of the persons who were about to commit the massacre,160 in the circumstance of ‘the close temporal and geographical context of the massacre at Gikomero Parish Compound.’161 The ICTR thus found that the distribution of weapons was a physically and psychologically substantial contribution to the massacre.162 The idea that delivered arms, even if unused, can constitute the actus reus of aiding and abetting can be seen as a particular instance of aiding and abetting without tangible assistance. Significantly, in this regard, the Furundžija Trial Judgment followed the Judgment in Schonfeld, which elaborated on the idea of aiding and abetting without tangible assistance:
It is not necessary, however, to prove that the party actually aided in the commission of the offence; if he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favour their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, he was, in contemplation of law, present, aiding and abetting.163
That granting additional confidence to the principal perpetrator can amount to aiding and abetting may have inspired the ruling in Kamuhanda on the provision per se of arms. Thus, even if none of the arms provided by Rosoboronexport to Syria were actually used for the commission of international crimes, Mr Isaikin’s role in the provision of arms may pass the threshold of significant assistance and thus amount to aiding and abetting – or, if one were to separate the terms, abetting specifically. Likewise, if (presently unavailable) evidence were to establish that the Syrian government has used Rosoboronexport’s arms, on some significant rather than merely incidental scale, then the ad hoc Tribunals’ actus reus standard for aiding (rather than abetting) the crimes committed in Syria would have been met. But these observations could be irrelevant before the ICC, as its Statute does not bind the Court to any actus reus standard for aiding and abetting.
E. The mens rea of Mr Isaikin
The phrase ‘[f]or the purpose of facilitating’ in Article 25(3)(c) introduces a subjective mens rea threshold164 that consequently excludes the question of what the aider and abettor should have known and focuses on what he actually knew at the time of the commission of the actus reus.165 Because the evidentiary subjective threshold is substantially higher than the objective threshold and several questions cannot be answered at present,166 the following does not purport to authoritatively describe the mens rea of Mr Isaikin. Rather, it asks whether a prima facie case can be made that he fulfilled the mens rea requirement for aiding and abetting under the Rome Statute.
In August 2011, referring to Rosoboronexport’s arms deliveries to Syria, Mr Isaikin reportedly stated that ‘[a]s long as no sanctions have been declared yet and as long as there have been no instructions and directives from the government, we are obliged to comply with our contractual obligations, which we are doing now.’167 Similarly, in February 2012 The New York Times reported that Mr Isaikin said ‘that absent any new directive from the Kremlin, business with the Assad government would continue as before.’168 He stated that ‘[w]e understand the situation has become aggravated in Syria,’ but that, without a UNSC or other decision, ‘our cooperation with Syria — the military-technical cooperation — remains quite active and dynamic.’169Prima facie, at least since August 2011 Mr Isaikin has been aware of the fact that Rosoboronexport’s arms were being delivered to Syria while the human rights crisis in the country was deteriorating.
More specifically, Mr Isaikin’s mens rea may qualify prima facie as oblique intent or direct intent in the second degree. Referring to, in the New York Times’ terms, Rosoboronexport’s provisions of ‘advanced defensive missile systems to Syria that could be used to shoot down airplanes or sink ships if the United States or other nations try to intervene to halt the country’s spiral of violence’,170 Mr Isaikin stated in June 2012:
I would like to say these mechanisms are really a good means of defence, a reliable defence against attacks from the air or sea. This is not a threat, but whoever is planning an attack should think about this.171
Mr Isaikin’s mens rea may be one of oblique intent, which requires the awareness of the certainty or high probability that certain consequences will flow from one’s actions. His statement that ‘whoever is planning an attack should think about’ Rosoboronexport’s provision of defence systems and missiles indicates his awareness of the consequences of such deliveries, namely a contribution to the maintenance of the Syrian crisis. It cannot presently be stated with certainty, however, that Mr Isaikin has been aware that Rosoboronexport’s arms transfers have with certainty or high probability aided and abetted the commission of war crimes and crimes against humanity by Syria.
In an effort to elicit responses from Mr Isaikin and the Russian Federation to the above discussion, the author of the present paper sent letters to Mr Isaikin and the Russian embassy in the Netherlands. The letters have been included as Appendices B and C to this paper. Upon submission of this paper, neither had been answered.
F. The complementarity principle
The possibility to examine the prima facie individual criminal responsibility of Mr Isaikin under the Rome Statute is conditional on the satisfaction of, inter alia, the complementarity principle contained in Article 1 of the Statute. This principle establishes that the Court complements rather than replaces national criminal jurisdiction. Under Article 17(1)(a) a case is inadmissible where it ‘is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’.172
It appears that Syria and Russia have jurisdiction over the involvement of Mr Isaikin and Rosoboronexport in assisting the commission of international crimes. Syria possesses territorial jurisdiction over the alleged crimes, since the crimes to which the CoI has referred have unequivocally been committed on Syrian territory; Russia may have jurisdiction under the nationality principle, because Mr Isaikin is a Russian citizen.173 Both States have ratified the four 1949 Geneva Conventions, which have been violated.174 Under these Conventions, High Contracting Parties must enact the necessary legislation to effectively punish grave breaches of these Conventions.175 States are also obliged to search for and prosecute or extradite persons alleged to have committed or to have ordered to be committed grave breaches.176 The ICTY in the Tadić Trial Judgment determined that it also had jurisdiction over grave breaches in non-international armed conflicts; although the grave breaches regime over which Article 2 of its Statute grants the Tribunal jurisdiction applies only to international armed conflicts, the Tribunal considered that Article 3, which allows it to prosecute violations of ‘the laws or customs of war’, was of a general, residual nature and included the rules contained in Article 3 common to the Geneva Conventions on non-international armed conflicts.177 And while the cited provisions only explicitly concern persons who have committed or who have ordered grave breaches of the Geneva Conventions to be committed, several individuals have been convicted for aiding and abetting such breaches.178 Thus, both Syria and Russia, among other High Contracting Parties, must prosecute Mr Isaikin for having allegedly aided and abetted grave breaches of the 1949 Geneva Conventions. That there is no indication that any domestic proceedings have been initiated, however, confirms the CoI’s contention that ‘the ICC is the appropriate institution for the fight against impunity in Syria’ (emphasis in original).179
In this case, none of the other obstructions to admissibility in Article 17(1) apply. With reference to Article 17(1)(b), there is no indication that any State with jurisdiction has been investigating the situation in Syria for the purpose of the possible initiation of proceedings against Mr Isaikin. Neither is there any indication that he has already been convicted for Rosoboronexport’s involvement in Syria; the ne bis in idem principle in Article 17(1)(c) and Article 20 is thus respected. And, lastly, the possibility that Mr Isaikin is complicit in the commission of crimes against humanity and war crimes, when considered against the background of the severity of the Syrian civil war, strongly suggests that the case is of sufficient gravity to be admitted to the Court, per Article 17(1)(d).
More evidence is needed to decisively determine Mr Isaikin’s actus reus and mens rea. Nevertheless, on the basis of the Kamuhanda Judgment it may be argued, prima facie, that the actus reus threshold developed by the ad hoc Tribunals has been met. Because the Rome Statute has no actus reus threshold for aiding and abetting, Mr Isaikin could theoretically be prosecuted before the ICC for his public comments or Rosoboronexport’s delivery of only a small portion of the Russian-Syrian arms deals. However, this would not befit the mandate of the ICC, which is concerned only with ‘the most serious crimes of concern to the international community as a whole.’180 The better option would be to demand that for a finding of criminal responsibility Mr Isaikin has significantly and with oblique intent contributed to the commission of crimes under the jurisdiction of the Court.
In the light of the tendency in international criminal law to marginalise attention for economic contributions to violations of international law, this paper has aimed to provide some thoughts on the ways in which business leaders may be held accountable before the ICC. It has argued that, because the liability of business leaders would most likely consist of aiding and abetting, the requirements of Article 25(3)(c) would have to be met. Given that the mandate of the ICC is restricted to prosecuting only the most serious crimes of concern to the international community as a whole, it would be apt that the Court uphold the customary standard that the aider and abettor’s assistance to the principal perpetrator must have been significant or substantial. Nevertheless, the actus reus of the aider and abettor may be entirely geographically disconnected from that of the principal perpetrator and there exists (albeit very limited) support for the notion of ex post facto aiding and abetting under the Rome Statute. The mens rea for aiding and abetting under Article 25(3)(c) and Article 30(2)(b) should be interpreted as demanding oblique intent, which heightens the ad hoc Tribunals’ standard of recklessness. With the available facts concerning the involvement of Rosoboronexport and its Director General Anatoly P. Isaikin in the international crimes committed by Syria, the increased mens rea standard considerably hardens the making of a case against Mr Isaikin. Prima facie, the customary actus reus standard appears to have been met.
B. Politics in international criminal law
Ultimately, the capacity of international criminal law, at the ICC and elsewhere, to hold business leaders responsible for their assistance to perpetrators of international crimes is a political question. In the case of Rosoboronexport’s arms deals with Syria, the initiation of proceedings is unlikely; the fact that neither Russia nor Syria has ratified the Rome Statute means that the ICC lacks both personal and territorial jurisdiction, either of which is necessary as a precondition for the exercise of the Court’s jurisdiction in the cases of a referral of the situation by a State Party under Article 13(a) and the Prosecutor’s proprio motu initiation of investigations under Article 13(c). These conditions and the implausibility of a ‘self-referral’ by either State practically preclude the triggering of the Court’s jurisdiction by Article 13(a) and (c) of the Rome Statute. A referral of the situation to the Prosecutor by the UNSC under Article 13(b), likewise, is also implausible, given Russia’s veto powers in the Council.
International criminal law tends to negate the contributions of businesses and other economic actors to armed conflict.181 A notable call182 in 2003 for efforts to change this tendency by the then Prosecutor of the ICC Luis Moreno Ocampo has not (yet) yielded any significant results. Referring to certain African, European and Middle Eastern companies that were allegedly involved in gold mining, the illegal exploitation of oil and the arms trade in the Democratic Republic of the Congo, Moreno Ocampo affirmed that ‘investigation of the financial aspects of the alleged atrocities will be crucial to prevent future crimes and for the prosecution of crimes already committed.’183 Nevertheless, this call has not materialised in the prosecution of any business leader in any of the cases currently before the ICC. Future investigation must, where appropriate, also consider the role of business leaders in the commission of crimes. As Stewart writes,
(…) [P]recluding the prosecution of businesses or their representatives would be regrettable because they play a vital role in sustaining violence. Moreover, commercial actors are more easily apprehended and generally appear more likely to be deterred by the threat of criminal sanction than armed groups.184
If neither domestic jurisdictions nor the ICC could ensure criminal accountability for international crimes committed in Syria since March 2011, however, another option would be to establish an ad hoc tribunal with the appropriate jurisdiction. Such a tribunal could be established by the UNSC, as was done with the ICTY and ICTR, or could also possess a more hybrid character, with both international and national laws, judges and funding, as has been the case with the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Panels of the Dili District Court and the Special Tribunal for Lebanon. However, because of the power and willingness of Russia and China to block UNSC decisions on Syria, the establishment of an ad hoc tribunal by the UNSC may be unlikely. Likewise, the construction of a hybrid court would be hampered by the hostility of the al-Assad government to any form of foreign intervention in the country barring by its allies.
C. Future prospects: corporate liability before the ICC?
One notion that would alter the prospects of the ICC’s capacity to tackle economic contributions to international crimes is the introduction of corporate criminal liability, which would complement rather than exclude individual criminal responsibility. At least four arguments speak in favour of this proposition. First, corporations are often much more potent and able to commit international crimes than separate individuals.185 Second, corporate criminal liability would ensure that business leaders cannot hide behind the structure of their company, which is sometimes specifically designed to avoid any form of criminal liability.186 Third, it would stimulate ‘the adoption of better standards, more responsible corporate behaviour and deterrence from future misconduct.’187 Fourth, corporate criminal liability would come with such forms of punishment as fines and, in rare cases, corporate dissolution, that could be more effective in halting the corporation’s malicious conduct than imprisonment of individual actors.188 However, it has also been suggested that economic sanctions ‘might appear totally inadequate compared to the harm caused by international crimes’ and that other forms of punishment, particularly adverse publicity, would be more effective deterrents.189 Additionally, the inherent limits to criminal liability may not always be respected when corporate criminal liability is used wherever the conventional alley of individual responsibility provides no satisfaction.190 There is also currently insufficient State support to provide any international tribunal criminal jurisdiction over legal persons.191 Still, the potential of corporate criminal liability and the limited support it enjoys192 merit a short examination of how corporate liability at the ICC could be envisioned.
During the Rome Diplomatic Conference for an International Criminal Court, whose conclusion marked the adoption of the Rome Statute, a proposal by the French delegation advocated the inclusion of criminal liability for legal persons in the Statute. The proposal was turned down, even though ‘in a number of aspects it [was] uncommonly modest and restrictive’: for example, as a sine qua non of corporate liability it requires that a natural person be convicted too.193 That person, according to the French proposal, must have been in a position of control in the corporation, on behalf of and with the explicit consent of which that person acted. One may think, in this regard, of those convicted in the Zyklon B and Industrialists cases, who ‘were the heads, hearts and hands of their companies and had full powers to steer their course’.194 It has been suggested that, if corporate liability were to be included in the Rome Statute, several requirements should be added to those stated in the French proposal; it would also be relevant whether the crimes occurred ‘in the daily course of the corporation’s activities,’ and whether the corporation made commercial profit from these crimes.195 Together, these requirements would ensure the individual criminal responsibility of the business leader and the attribution of the actus reus and mens rea of the business leader to the corporation.
However, corporate criminal liability suffers from conceptual difficulties. The following discussion only focuses on one of them: the question of the mens rea of a corporation. The French proposal stipulated that for a corporation to incur criminal liability, the convicted individual person must have acted on behalf of and with the explicit consent of the corporation. Thus, the corporation must have consented to, or at least accepted, the actus reus of the convicted individual.196 Given that meaningful consent or acceptance presupposes a certain degree of power, however, consent and acceptance can generally only be granted by business leaders (individually or collectively). In this way, the mentes reae of corporations and their leaders would coincide; if the same or similar acti rei are alleged, then this would lead to the risk that a conviction of a business leader almost automatically entails a simultaneous conviction of the business itself. The distinction between the natural person of the business leader and the legal person of the business would be blurred. The introduction of corporate liability in the Rome Statute would require, as a precondition, that the question of this distinction as well as other issues197 be overcome.
D. The Arms Trade Treaty
Notwithstanding the desirability of using international criminal law as an instrument to hold business leaders accountable for their involvement in international crimes and to work towards preventing such crimes, other products of international law-making may also serve these purposes. Particularly significant in the case of arms provisions is the Arms Trade Treaty, which was adopted by the United Nations General Assembly on 2 April 2013.198 Article 6(3) of the Treaty prohibits the authorisation by a State Party of any transfer of conventional weapons, ammunitions/munitions and parts and components:
(…) [I]f it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.199
In addition, if the export is not prohibited under Article 6, State Parties must nonetheless assess, prior to authorisation of the export, whether the arms could be used to commit or facilitate, inter alia, serious violations of international humanitarian law and international human rights law.200 The Treaty allows for the settlement of disputes relating to its interpretation or application by judicial settlement and arbitration, among other means.201 Thus, upon entry into force the Treaty will have the potential to significantly restrain the contributions of the global arms trade to violations of international law.
E. Towards responsibility
Even with a fully functioning Arms Trade Treaty, of course, businesses and other economic actors will continue to fuel and commit violations of international law. If anything, in 2014 there is more, not less verity in Cassese’s 1986 observation that, in spite of the sizeable economic and political power of many corporations, their global operations and interactions with States, including in arbitration, States are reluctant to place a corresponding degree of international legal responsibility on corporations.202 In addition to the existence of the Arms Trade Treaty and a limited number of international criminal law cases involving business leaders, some soft law instruments are now in place that address human rights obligations of corporations.203 Nevertheless, the project of international law continues to be largely incapable of holding economic actors accountable for their contributions to armed conflict and human rights violations. It is time for this to change.