The role of business actorsFootnote 1 in the commission of international crimes and how this might be addressed through the mechanism of international criminal law has been a subject of sustained attention in recent years.Footnote 2 In the round-up of the mandate of Professor John Ruggie, the Special Representative of the United Nations (UN) Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (SRSG),Footnote 3 attention to the particular promise of this field of international law as a key means of addressing the worst manifestations of business-related human rights abuses seems set to continue. The SRSG in his final Framework and Guiding Principles avoided recommendations towards binding obligations under international law for business entities. However, his treatment of international crimes is something of a special case. The SRSG has highlighted that those human rights abuses that also constitute international crimes are more amenable to direct and immediate judicial application to business entities.Footnote 4 International crimes are generally understood to encompass genocide, crimes against humanity, and war crimes. Individuals who commit these crimes can be held liable under international law.Footnote 5
It is not difficult to see why international criminal law is an appealing tool for addressing negative aspects of the relationship between business and human rights/humanitarian law, especially in conflict situations. The norms it prescribes, whilst not limited to conflict situations, are an outgrowth of international humanitarian law's concern with regulating the worst excesses of armed conflict. The peace and security paradigm has therefore been described as the ‘traditional theatre of operation of international criminal law’.Footnote 6 As economists and political scientists increasingly describe modern conflicts as intimately connected to economics, the potential relevance of the field of international criminal law to business actors becomes more pronounced.Footnote 7 International criminal norms are also often correlated to gross violations of human rights.Footnote 8 There is a higher propensity for corporate violations of human rights of a more severe nature to take place in conflict situations.Footnote 9 Further, unlike other fields of international law, international criminal law is seen to have functional enforcement mechanisms directed at individuals, both in the public and private spheres, and not at states. It is therefore commonly resorted to as a means of fulfilling gaps in the enforcement of international human rights law.Footnote 10 In the context of business and human rights, these gaps include challenges for host states in regulating foreign corporations operating in their territory, for example due to dependence on foreign direct investment or due to unequal technical expertise and bargaining power.Footnote 11
At its inception at Nuremberg, international criminal law addressed the role of business actors in the commission of international crimes.Footnote 12 Since that time, prosecutors of international courts and tribunals have expressed a willingness to consider actions by the private and business sector in conflict areas in their investigations of international crimes.Footnote 13 Although such intent has yet to be reflected in any formal indictments issued, statements of this kind nonetheless indicate that the role of business is of interest to powerful actors within modern international criminal institutions. All of these factors render international criminal law an appealing tool for addressing phenomena of business involvement in human rights and humanitarian law violations that also constitute international crimes.
There is a wide variety of ways in which business actors can be implicated in international crimes. These can include: the role of private military companies in the torture of prisoners within their custody; the involvement of transnational corporations in the extractive industries in abuses committed by security partners such as forced displacement in order to access land for mining or as retaliatory violence against threats to mining operations; the use of slave labour within business supply chains; the funding and supply of armed conflict through business networks; and the involvement of businesses in the plunder of goods and natural resources.Footnote 14 Each is meritorious of detailed study in its own right. This paper, however, speaks in a more generalised way to the appeal of international criminal law for addressing the role of business actors, individual or corporate, in the commission of international crimes where such involvement is of a sufficiently proximate kind. For this reason the term ‘business case’ is used to denote scenarios involving corporations or private individuals acting in a business capacity and involved through that business in the commission of international crimes.
This paper aims to contribute to the growing literature on the prospective role of international criminal law as a tool to address business violations of human rights and humanitarian law in conflict situations. To do so, the paper is structured as follows. The first part considers the future significance of international criminal law to the question of business accountability for human rights and humanitarian law abuses in the wake of the SRSG's mandate. It argues that in light of the SRSG's conclusions, international criminal law is likely to continue to be turned to as a principal mechanism for addressing the most egregious examples of business involvement in human rights and humanitarian law abuses. Given this anticipated continued significance of the field, the second part of the paper turns to the assessment of two new developments in international criminal law. The first is the newest mode of responsibility in international criminal jurisprudence, indirect perpetration through an organisation. This part sets out some preliminary reflections on whether this form of criminal responsibility might have any bearing upon prosecutions of business officials for international crimes. It also comments on the aiding and abetting doctrine as applied by the Special Court for Sierra Leone in the Charles Taylor case. The second recent development considered in the paper is the practice of ‘thematic prosecutions’. This part considers how developments in this direction bode for the likelihood that business actors might become a focus in future international criminal indictments.
The UN SRSG and the special case of international crimes
The SRSG's mandate: achievements and challenges
From 2005 until the completion of the SRSG's mandate in June 2011, international discourse on the subject of business and human rights has been focused around the work of the SRSG. From early in his mandate, the SRSG confirmed the existence of a governance gap as it pertains to the conduct of business entities operating in the global economy.Footnote 15 The idea of a ‘governance gap’ is the claim that there is a misalignment between the capacity of transnational corporations to contribute to serious human rights abuses and the governance capacity of governments to respond to those harms.Footnote 16 The result of this regulatory gap is a permissive environment for corporate human rights abuses.Footnote 17 The problem is particularly acute in the context of businesses operating in developing countries and in conflict zones.Footnote 18 As a general rule, it is in conflict zones where the most egregious human rights violations can occur and where states hosting foreign business activities tend to be least capable of regulating the potentially negative impacts of those operations.Footnote 19
In response to the governance gap problem and following extensive stakeholder consultations, the SRSG promoted the Protect, Respect and Remedy Framework as the overarching policy guide for future thinking and action on business and human rights at an international level.Footnote 20 The three pillars of the Framework refer to the state duty to protect against human rights abuses by third parties; the corporate responsibility to respect human rights through due diligence; and the right of victims of corporate-related human rights abuses to have access to effective remedies. Both the Framework and the SRSG's subsequent Guiding Principles,Footnote 21 which are intended to provide guidance as to how the Framework shall be operationalised, have been endorsed by the UN Human Rights CouncilFootnote 22 and set the future agenda for UN activity regarding business and human rights.Footnote 23
The Framework and Guiding Principles have been lauded for a number of successes. These include effectively engaging states and companies in a fruitful dialogueFootnote 24 and the corporate uptake of policies aimed at ensuring corporate due diligence.Footnote 25 However, one point of criticism has been the failure of the SRSG to incorporate any explicit role for binding international human rights obligations for business actors.Footnote 26 Early in his tenure, the SRSG rejected the draft Norms on the Responsibility of Transnational Corporations and other Business Enterprises with Regard to Human Rights as a mechanism going forward.Footnote 27 The Norms had preceded the SRSG as a framework for dealing with issues related to business and human rights. They were intended to direct progress towards treaty-based, legally binding human rights obligations directed at corporations via the domestic laws of states in order to address the lacunae in law.Footnote 28
In contrast to the Norms, the notion of corporate responsibility with respect to human rights as conceived within the Framework is not equivalent to corporate legal obligations. Rather, the Framework ‘speaks of the corporate responsibility to respect all human rights as part of a corporation's social license to operate even when not mandated by law’.Footnote 29 In other words, it defines the recommended conduct of corporations as dictated by the court of public opinion, rather than actual courts, although some conduct will have legal ramifications. The Framework has hence been criticised for continuing the current status quo of regulation via voluntarismFootnote 30 and therefore as unlikely to create sufficient pressure for corporate compliance with human rights where there are compelling economic reasons for businesses to cut corners.
For some commentators, such as Surya Deva, one of the challenges resulting from the SRSG's approach is that businesses are essentially directed elsewhere to determine the precise contours of legal obligations vis-à-vis societal expectation of conduct.Footnote 31 By framing corporate responsibility broadly and without elaborating legal compliance issues for businesses operating, for example, in conflict areas, the Guiding Principles fail to guide business actors in specific terms as to how they must behave.Footnote 32 For example, Guiding Principle 23 as it relates to companies operating in conflict zones recommends that companies should treat risks of being complicit in gross human rights abuses committed by other actors (such as security partners) as legal compliance issues. However, the Principle fails to specify what conduct would constitute complicity leading to legal liability.Footnote 33 Instead, the commentary of the Guiding Principles refers to international criminal law notions of complicity and the growing web of corporate liability in domestic courts for international crimes to explain the legal compliance ramifications for businesses operating in conflict zones.Footnote 34
In light of the primarily policy-based rather than law-based approach of the SRSG in his final framing documents, it is interesting to note the SRSG's differentiation of international crimes. From early in his work, the SRSG noted the particular legal risks for business actors complicit in international crimes. Whilst not explicitly stating that corporations are directly bound by the norms of international criminal law, the SRSG has gone as close as otherwise possible to making that case. In his 2007 report, the SRSG noted that ‘long-standing doctrinal arguments over whether corporations could be “subjects” of international law … are yielding to new realities’Footnote 35 and that ‘the absence of an international accountability mechanism … does not preclude the emergence of corporate responsibility today’.Footnote 36 Focusing in particular upon two parallel developments, the SRSG highlighted that the ‘simple laws of probability alone suggest that corporations will be subject to increased liability for international crimes in the future’.Footnote 37 The first of these two developments is the growing international criminal jurisprudence as to forms of responsibility according to which individuals can be held liable for international crimes. This jurisprudence serves as guidance as to when business actors, individual or corporate, can be complicit in international crimes. The second development is the growing number of states with jurisdiction within their national courts to try corporations, as well as individuals, where such persons are involved in international crimes. This concerns in particular the States Parties to the Rome Statute of the International Criminal Court (ICC). According to the SRSG, the interplay between these two developments creates ‘an expanding web of potential corporate liability for international crimes’.Footnote 38 Indeed, the SRSG has described the domestic implementation of Rome Statute crimes and the extension of those laws to corporate entities as ‘[b]y far the most consequential legal development’ of recent times with respect to addressing the prevailing governance gaps.Footnote 39 A number of commentators have therefore highlighted the special case of international crimes in the SRSG's work, identifying these norms as an exception to the SRSG's reluctance to articulate directly binding human rights norms on corporations under international law.Footnote 40
What is apparent from the SRSG's work is that, more so than in other areas of human rights, business actors should anticipate that they might be prosecuted or litigated where they breach international criminal norms. Currently, this might happen either through domestic courts applying international criminal law against the business entity itself or in domestic courts or international tribunals against individual business officials. This is particularly pertinent to businesses operating in conflict zones where the risk of being caught up in international crimes is greater. The International Commission of Jurists (ICJ) has issued a similar warning. The ICJ's Expert Panel on Corporate Complicity in International Crimes found that company lawyers and compliance officers have tended not to recognise the relevance of international criminal law to business operations.Footnote 41 Nonetheless, it cautioned that ‘as the field of international criminal law develops and as companies operate in new contexts, international criminal law and its implementation in domestic and international jurisdictions will become evermore relevant to companies’.Footnote 42
The limitations of international criminal law for capturing business conduct
There is a risk of overemphasising the potential of international criminal law to bring about human rights compliance among businesses and to serve as an accountability mechanism for corporate human rights abuses. This is not only due to the current lack of prosecutorial practice directing international criminal investigations and indictments towards the business case;Footnote 43 it is also because criminal principles necessarily address only contributions of a sufficiently proximate kind to international crimes. Thus, only some business conduct will be sufficiently related to the commission of human rights or humanitarian law violations, and only certain human rights and humanitarian law violations constitute international crimes. International criminal law covers but a small segment of the field of concern.Footnote 44 For these (and other) reasons, there is value in the recommendations of the SRSG with respect to businesses operating in conflict zones that will ‘embrace multiple regulatory sites’.Footnote 45 For example, one of the SRSG's regulatory recommendations, pertinent in particular to transnational corporations directly investing in developing states, is for states to exclude clauses from bilateral investment treaties that are capable of constraining the state from responding to human rights and human security risks created by foreign business operations.Footnote 46 Another recommendation, again relevant to transnational foreign direct investment projects, suggests that home states withhold or withdraw the support that they usually provide through export credit agencies to businesses that fail to engage in conflict-sensitive conduct.Footnote 47
Another problem for over-reliance on extant developments in international criminal law is that there may be grounds for cynicism with respect to the actual application of domestic law to corporations involved in international crimes in the territory of another state. For example, the implementation of domestic international crime laws and their extension to corporate legal persons has been to a large extent ‘an unanticipated by-product’ of states strengthening their legal regimes for individuals.Footnote 48 It is uncertain whether there will be the political will necessary to apply these laws to businesses as legal entities, particularly in relation to events beyond the boundaries of the prospective adjudicative state.Footnote 49 It is telling to look at the recent fate of the US Alien Tort Statute (ATS). To date, the ATS has been the most utilised law by victims of corporate human rights violations as a civil law remedy to what are essentially international criminal norms applied to the business dimensions of conflict.Footnote 50 The case of Kiobel recently heard by the Supreme Court of the United States addressed the question of whether the ATS applies to corporate defendants (as opposed to natural persons), as well as whether it operates extraterritorially at all.Footnote 51 While the Court did not decide upon the former issue, it determined that a strong presumption exists against the application of the ATS to events in the territory of other states, unless the claims ‘touch and concern the territory of the United States … with sufficient force to displace the presumption’.Footnote 52 In doing so, the Court significantly limited the scope of the ATS as a vehicle for human rights claims related to the conduct of corporations in the global economy. Court concern as to the application of the ATS to corporate conduct outside of the United States where there are limited links to the United States reflects the pressures that have been brought to bear by other states, as well as businesses, through amicus interventions and otherwise in ATS litigations of that type to date.Footnote 53 The uncertainty as to whether individual states will use their domestic ‘international crimes’ laws to address corporate actors, and the potential response of other states should they do so, put in doubt the SRSG's faith in unilateral state-centric responses to the phenomenon of business violations of international criminal law.Footnote 54
Despite such sobering factors, in light of the work conducted by the SRSG, we can anticipate a continued expectation that international criminal law should function to further the human rights and humanitarian law compliance of business actors in conflict zones and act as a mechanism of accountability where they fail to do so.
The following parts of the paper now turn to two recent developments in international criminal law. First, the paper looks at the newest mode of liability being heralded at the ICC, indirect perpetration through an organisation. Second, the paper outlines the potential relevance of thematic prosecutions in future international criminal practice. Both parts consider the bearing, if any, that these developments might have on the promise of international criminal law with respect to accounting for businesses involved in international crimes.
Forms of individual criminal responsibility and the business case
Given the problem of limited fora for prosecuting corporations as legal entities and the underlying premise of individual responsibility in international criminal law, attention to the business case in international criminal law literature has often been directed at the utility of extant forms of individual responsibility to the prosecution of business officials for international crimes.Footnote 55 This issue is sometimes discussed not only in terms of the prosecution of individuals but also for the purpose of establishing guiding principles that could influence domestic actions taken directly against legal entities themselves.Footnote 56
There are numerous works on the subject of how various forms of individual criminal responsibility might be applied to the prosecution of individuals acting in a business capacity, including on the notions of joint criminal enterprise, command responsibility, and aiding and abetting.Footnote 57 Rather than rehearse this vast literature, this section instead looks at two particular aspects: on the one hand, the new form of liability that has emerged on the international stage, indirect perpetration through an organisation, and its relevance to the business case due to its novelty; and on the other hand, the use of aiding and abetting liability in the Charles Taylor case by the Special Court for Sierra Leone,Footnote 58 to capture individual criminal conduct through business-like networks. While he is not properly characterised as a business person, the case of Charles Taylor is interesting as it emphasises the business-like aspects of Taylor's involvement in the atrocities committed during the Sierra Leonean conflict.
Indirect perpetration through an organisation
One of the newest developments in international criminal jurisprudence with respect to forms of responsibility has been the adoption by the ICC of the notion of indirect perpetration through an organisation.Footnote 59 According to the idea of indirect perpetration through an organisation, a person can be liable as a direct perpetrator of a crime in cases where, despite not being physically present in the actual commission of the crime, they use their control over an organisation in order to ensure that the crime will occur.Footnote 60 It is based on a ‘control of crime’ theory of responsibility developed primarily in German legal doctrine.Footnote 61
The notion of indirect perpetration through an organisation is derived from Article 25(3)(a) of the Rome Statute. Article 25(3)(a) states that a person will be criminally responsible for a Rome Statute crime where such a person ‘commits the crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible’.Footnote 62 This has been interpreted to include controlling the commission of a crime by using an organisation as the vehicle through which the crime is committed.Footnote 63
The German control of crime theory, on which the ICC's indirect perpetration through an organisation is based, is a notion of liability developed in order to capture the ‘armchair’ perpetrator as a principal rather than an accessory to a crime.Footnote 64 One of the core challenges in international criminal law has been to articulate forms of responsibility that respond to crimes organised and carried out in complex institutional and collective contexts in a way that appropriately assigns legal and moral culpability across the hierarchies of people involved in the crimes. Directly converse to most domestic crimes, the worst offenders in international criminal law tend to be those far removed from the messy business of pulling the trigger. Indirect perpetration through an organisation is a form of liability intended to describe those armchair masterminds not as the ones who ‘simply’ ordered, or planned, or aided the crime but as its direct perpetrators. Despite the name, it is a means by which the Court attributes direct liability on the perpetrator as a principal to the crime regardless of whether they are physically removed from the direct commission of the offence. Indirect perpetration is hence based upon the idea that principals and accessories are normatively different in terms of moral blameworthiness, an idea that has been challenged.Footnote 65 Through its adoption at the ICC, the Court has therefore ostensibly taken an interpretation that the various Article 25(3) forms of responsibility reflect a hierarchy of moral blameworthiness.Footnote 66
Indirect perpetration through an organisation, while known in some domestic legal systems, is novel in international jurisprudence. Previously the notion of joint criminal enterprise had been the principal vehicle for allocating responsibility to those individuals who, in collective contexts, make decisions at the highest level leading to the commission of international crimes.Footnote 67 However, while joint criminal enterprise was utilised significantly in the ad hoc tribunals, the ICC has rejected this doctrine in its early jurisprudence, adopting instead complex notions of co-perpetration and indirect perpetration based on the concept of control of the crime.Footnote 68
Putting aside the issue of a hierarchy of blameworthiness, the inclusion of the notion of committing a crime ‘through another person’ in Article 25(3)(a) led some commentators early on in the life of the Court to suggest that this form of liability may have a particular value to the prosecution of business officials who commit crimes through the instrumentality of a business organisation.Footnote 69 Indeed, at first blush the notion does appear to resonate with respect to the business case given the focus upon organisational structures as vehicles for wrongdoing. So at a descriptive level, for example, the American Military Tribunal sitting at Nuremberg described the wrongful conduct of leading industrialists during World War II as the commission of crimes through the instrumentality of their respective corporate concerns.Footnote 70 This language is evocative of a similar idea to indirect perpetration through an organisation.Footnote 71 Further, notions underlying indirect perpetration through an organisation are similar to ideas found in corporate crime literature. For example, as described by Osiel, one of the strengths of the notion of indirect perpetration through an organisation is in the recognition of how those in control of organisational resources can harness those resources to perpetrate mass atrocities through willing subordinates.Footnote 72 Likewise, crime in corporate contexts can be differentiated from other forms of domestic crime on the basis that the offences tend to involve directing large-scale resources towards certain goals. It is this harnessing of resources (human and otherwise) that means corporate crime can often tend toward far greater levels of community harm than other forms of crime.
Indirect perpetration through an organisation is also concerned with organisations that to some extent develop a life independent of the changing existence of their members.Footnote 73 A similar idea has been described by Fisse and Braithwaite in their critiques of attempts to individualise accountability in the context of corporate crimes. Fisse and Braithwaite have shown how in various ways business corporations transcend the individuals who may pass through the company without affecting change.Footnote 74 Finally, the centrality of ‘control’ to the notion of indirect perpetration through an organisation might be said to constitute the means by which the organisational veil is pierced in order to find the individual perpetrator behind the organisational structure. This is notionally similar to the centrality of control as the mechanism for piercing the corporate veil in order to identify the liable parent company in a corporate group.Footnote 75
Despite such notional similarities, in its strict form indirect perpetration through an organisation does not easily transpose to crimes committed in corporate contexts. Indirect perpetration through an organisation was originally conceived by German legal theorist Claus Roxin with the particular experience of Nazi state-orchestrated crime in mind.Footnote 76 According to Roxin's pure theory of Organisationsherrschaft, a person is responsible as a principal to a criminal act where they have at their disposal an organised power apparatus through which they can accomplish the offences in question, without having to leave the realisation of their crime to the risk of a change of heart or unexpected action by the direct perpetrator of the physical act.Footnote 77 To show this, there are three main elements in Roxin's theory that must be satisfied: (1) the existence of a hierarchically vertically structured organisation, (2) the fungibility of the direct offender, and (3) that the organisation is detached from law.Footnote 78 Each of these elements, which are interrelated and are directed ultimately towards the necessary conditions of control, poses challenges to the application of the notion to the business context.
First, Olasolo has argued that a rigid hierarchical organisational structure that enables maximised control is less likely to be found in corporate contexts than, for example, in military ones. This is because in the former the division of tasks is based around maximising productivity rather than formalising a culture of obedience to superiors.Footnote 79 Opacity in organisational lines in corporate structures might also undermine attempts to identify clear hierarchical lines of organisation.Footnote 80 We might also consider whether the necessary degree of control can be said to reside with, for example, members of the board of directors of a company or whether such control is diluted through the shareholder model. Looking more broadly at the context of transnational corporate groups, transnational corporations are increasingly organised horizontally on the basis of contractual relationships between formally independent business entities rather than hierarchically and vertically in terms of equity share ownership. This may make a rigid application of the hierarchy criterion harder to satisfy in such contexts. However, it is worth noting that even in such horizontal arrangements, control might still be evident through economic dependency across corporate groups.Footnote 81
Second, fungibility refers to the idea that an indirect perpetrator can be assured automatic compliance with their will as directed through control of the organisation because those persons committing the actual crimes are essentially replaceable. In other words, if one person refuses to perform the criminal act, the indirect perpetrator can be assured that others will take their place. This condition can be evidenced by the sheer volume of those at the lower echelons of an organisation, as well as the nature of the organisation being such that compliance is assured (see conditions (1) and (3) above).Footnote 82 In the context of a company, as opposed to a state, military, or mafia-like organisation, the (potentially) more limited number of members at the lower levels,Footnote 83 as well as the potential specialty skills required of those persons to undertake their role, may make the fungibility of such persons difficult to evidence.
The third condition in Roxin's theory, detachedness from law, explicitly precludes the business case. For Roxin, the necessary degree of organisational control in the hands of the indirect perpetrator(s) ‘can only be present if the apparatus as a whole is operating outside the legal order’.Footnote 84 As described by Jain, where an organisation acknowledges a legal order independent of itself, it cannot be said that the requisite degree of control exists because law ranks higher and this negates the inevitability that those at the lower end of the organisational hierarchy will act in compliance with the perpetrator's will.Footnote 85 In other words, there is not a sufficient degree of act-domination (meaning control over the perpetrator's acts) by the indirect perpetrator over the criminal act where the organisation in question operates within a polity based on the rule of law.Footnote 86 By their very nature, business entities are created and defined by operational legal orders (meaning they are entities operating under law) and would fail this criterion.Footnote 87
Despite the exclusion of crimes committed through otherwise lawful business organisations from Roxin's pure theory, it is possible that the principles of indirect perpetration may be adapted by the ICC so as to enable the prosecution of such cases utilising this mode of liability, where appropriate. For example, Roxin's doctrine has been adopted with modifications by the German Federal Court, which has explicitly acknowledged its potential relevance to crimes in business contexts.Footnote 88 Neither the German Federal Court nor the ICC has adopted detachedness from law as a separate element of liability.Footnote 89 Further, the ICC has shown some willingness to dilute fungibility by looking at a wider range of factors by which to be satisfied that the heads of an organisation can be assured automatic compliance with their will, such as forcible training techniques which are likely to engender obedience.Footnote 90 Such an extension of fungibility might apply to private military companies but is unlikely to be relevant in other business contexts. We might query, however, whether fungibility could be further diluted to include economic pressures and corporate cultural expectations of compliance as it pertains to those at the lowest levels of corporate organisations.Footnote 91
Further, if we consider indirect perpetration not simply as a potential model of individual criminal responsibility but also as an idea that might be transposed to the liability of corporations, then its insights with respect to the conditions for control may have some value when applied across corporate entities in a corporate group. As van der Wilt has argued, it is the way in which the theory of indirect perpetration through an organisation has been adapted – for example, its recent application to armed groups operating in African conflicts – that will ensure its longevity and continued utility in the context of international criminal law.Footnote 92 And even if the notion of indirect perpetration through an organisation does not directly apply to many business cases, Bert Swart has argued that it is a development in the direction of corporate liability, as it signifies a shift from naturalistic to social conceptions of action in criminal law.Footnote 93
Ultimately however, and as discussed above, the current notion of indirect perpetration through an organisation at the ICC operates by holding someone accountable as a principal to the crime in the context of a hierarchy of moral blameworthiness. So long as it is cast in such terms, there is a strong argument that the requirements of this form of responsibility should not be diluted if it is to constitute a means of differentiating those most morally culpable. Further, while it is feasible that some business actors might be properly regarded as among those at the highest level of responsibility and hence appropriate subjects for such a form of principal responsibility, the reality is that more often than not business actors are implicated as accessories to international crimes. For this reason, it is usually the concepts of complicity, especially aiding and abetting, which are most readily transposed to the business case. The next section looks briefly at some current developments in this form of liability to explain its potential for such transposition.
Aiding and abetting and the Taylor judgement
Aiding and abetting is a form of derivative liability and covers those who assist another in the commission of a crime. There is some uncertainty as to how the notion of aiding and abetting will be applied by the ICC. Article 25(3)(c) of the Rome Statute provides that a person will be criminally responsible for a Rome Statute crime in cases where that person ‘[f]or 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’.
First, there is the question of how a hierarchical reading of the Article 25 forms of responsibility will be consistent with the use of aiding and abetting at all, given the intention that the ICC should only deal with those most responsible for international crimes. In other words, if forms of principal perpetration rather than accessorial liability best characterise the involvement of leading architects of international crimes and if the ICC will focus primarily on those most responsible, will secondary liability ever be the correct characterisation of responsibility in ICC prosecutions?
Second, there is uncertainty as to whether Article 25(3)(c) demands that an accomplice act in support of another with the purpose of assisting in a crime, a requirement at odds with the test under customary international law.Footnote 94 Under customary international law it is sufficient if a person provides assistance in circumstances where they know of the likelihood that their action will assist in the commission of an international crime.Footnote 95 To require purpose and not simply knowledge would render the notion of aiding and abetting largely inapplicable to the business case, where actors are generally motivated by the purpose of personal profit.Footnote 96
In contrast to inaction at the ICC, the recent judgement of the Special Court for Sierra Leone in the case of Prosecutor v. Charles Ghankay Taylor Footnote 97 relies significantly on the notion of aiding and abetting. It is an interesting example of how a person of a high level of authority might be properly cast as an accomplice in international crimes and illustrates how what are effectively business transactions can fall within the scope of that mode of liability under customary international law.
Charles Taylor is the former president of Liberia and was prosecuted for his participation in various crimes against humanity and war crimes personally committed by members of a number of Sierra Leonean rebel groups, such as the Revolutionary United Front (RUF). Whilst the prosecution attempted to establish Taylor's individual criminal responsibility on the basis of his ordering or instigating the rebel crimes, or on the basis of command responsibility, these efforts failed because the Court found that whilst Taylor was influential with respect to the conduct of the rebel groups, he was ultimately apart from effective rebel command structures.Footnote 98 Further, whilst the prosecution succeeded in proving that Taylor and the RUF were military allies and trading partners, there was insufficient evidence to prove the existence of a plan under a joint criminal enterprise,Footnote 99 a form of principal liability where a group of people execute a common criminal agreement.Footnote 100
Instead, the role of Taylor as described by the Court is remarkably analogous to that of a business financier and facilitator of international crimes. According to the test applied by the Special Court for Sierra Leone (SCSL) for aiding and abetting, an offender's acts must provide substantial assistance to the commission of a crime with knowledge that such acts would assist the commission of the crimes or with awareness as to the substantial likelihood that such acts would render assistance.Footnote 101 The Court describes at length the involvement of Taylor in the illicit diamond trade of the rebel groups, finding that Taylor facilitated that trade through, among other things, providing equipment, fuel, and personnel for mining.Footnote 102 Taylor's personal responsibility was in turn based upon, among other things, having aided and abetted rebel crimes by facilitating a steady provision of arms and ammunition in return for diamonds, providing operational support in the form of funds, the use of a guesthouse to facilitate transfers, safe haven for rebels, communications training, and logistical and medical support to rights-violating rebel forces. The common feature of the assistance was to support, sustain, and enhance the functioning of the RUF and its capacity to undertake military operations in the course of which crimes were committed.Footnote 103 With respect to the provision of arms the Court held that, despite other sources of supply, Taylor's contribution to the armament of the RUF was substantial, as the RUF relied heavily and frequently on it and other suppliers were minor relative to the accused.Footnote 104 Overall Taylor's criminal conduct has parallels with the factual zones of legal risk identified by the ICJ Panel of Experts with respect to business actors and complicity in international crimes, such as providing goods and services to those committing international crimes and engaging with suppliers who commit international crimes.Footnote 105
With respect to the mental element of aiding and abetting, the Court held that the accused knew of the nature of atrocities being committed against civilians by the RUF and provided his support regardless.Footnote 106 Among other things, widespread public knowledge of the nature of the RUF's conduct was relevant in proving Taylor's knowledge as to his effective contribution through his actions to the commission of international crimes.Footnote 107 The Court made no inquiry into the personal goals of Taylor in reaching its determination as to his liability for aiding and abetting. It is also interesting to note that in sentencing Taylor to fifty years’ imprisonment, the Court determined that Taylor's exploitation of the Sierra Leonean conflict for financial gain constituted an aggravating factor.Footnote 108 The Taylor decision thus provides further clarity as to how effectively business transactions can constitute aiding and abetting international crimes in the context of trading with notoriously criminal actors.
Given the particular relevance of aiding and abetting to the phenomenon of business involvement in international crimes, those interested in the future prospects for business prosecutions at the ICC will wait with particular interest to see how Article 25(3)(c) will be interpreted: whether it will be treated in a manner consistently with the approach adopted by the SCSL, or whether purpose will be a distinct requirement of accessorial liability. And whilst perhaps of lesser practical import, so long as indirect perpetration through an organisation remains a favoured form of liability at the ICC, more discussion might be welcomed on how, if at all, it might apply to the prosecution of leading actors in the business world involved in international crimes.
Thematic prosecutions and the ‘fourth generation’ of international criminal law
Another trend in international criminal law that may have implications for the field's application to the business dimensions of conflict are the so-called ‘thematic prosecutions’.Footnote 109 This term refers to the prosecutorial practice of selecting certain crimes and prioritising particular phenomena within international criminal indictments, usually for purposes related to the best use of limited resources,Footnote 110 but often also due to the symbology of elevating attention on a given matter of international concern.Footnote 111 As described by deGuzman, thematic prosecutions are designed to ‘orient cases around particular themes of criminality’.Footnote 112 Examples to date include focusing on the phenomenon of child soldiers,Footnote 113 on sexual violence in conflict,Footnote 114 and on the targeting of peacekeeping forces.Footnote 115 The literature analysing the justifications and ramifications of thematic prosecution is only beginning to emerge,Footnote 116 but early indications at the ICC do suggest that thematic prosecution might be a practice adopted into the future.Footnote 117 For example, the Office of the Prosecutor chose to focus upon crimes related to the use of child soldiers in the Lubanga case to the exclusion of other crimes despite the fact that this phenomenon, while a matter of legitimate international concern, did not reflect the full extent of victimisation within the conflict or the accused's role therein.Footnote 118
To some degree one might identify the practice of thematic prosecutions in international criminal law as early as Nuremberg, where the so-called subsequent Nuremberg trials were divided according to the particular participation of segments of German society in the war and their spheres of activity.Footnote 119 So, for example, there were the trials of medical professionals for their role in medical experimentation on human subjects and in the program of mass euthanasia,Footnote 120 and of legal professionals for furthering Nazi programs of persecution, sterilisation, and extermination through the development of legislation and penal processes.Footnote 121 Of course, the most relevant, for our purposes, were the trials of industrialists for the role of big industry in the use of slave labour, the spoliation of occupied territories, and the provision of the material means for war.Footnote 122 Whilst primarily practically driven, the thematic focus of these trials had a symbolic significance and served an important educative function by delineating the specific contributions of significant parts of German society to the atrocities committed.Footnote 123
The most detailed work on thematic prosecutions as a possible feature of international criminal practice has occurred within the field of sex crimes and armed conflict.Footnote 124 Thinking on this topic may provide some direction as to whether and when thematic prosecution of business actors for their involvement in conflict might also be justified. For example, deGuzman has argued that the strongest justification for the prioritisation of sex crime prosecutions at international courts, sometimes even at the expense of other norms, is to be found in the expressive rationale for international criminal justice.Footnote 125 Expressive theories of criminal justice essentially focus upon the social meaning ascribed to the practice of criminal justice. In particular, they identify as an independent value the normative message that is communicated by criminal pronouncements and punishments. Verdicts and punishments simultaneously stigmatise wrongdoing and reaffirm the real value of victims or goods whose inherent value has been denied in the commission of the wrongdoing.Footnote 126 For deGuzman, the expressive rationale supports prioritisation of sex crimes because those norms are in more urgent need of expression, in part due to the history of under-enforcement of international norms outlawing crimes of sexual violence.Footnote 127
In a different vein, Jain has argued that the institutional structure of the ICC might support thematic prosecutions centred on crimes that are ‘less universally regarded, at least in practice, as equally deserving of condemnation’Footnote 128 on expressivist grounds both in light of the Court's explicitly forward-looking agenda, and given its role as an instrument of post-conflict rule of law development.Footnote 129 For Ambos, one of the arguments in favour of thematic prosecutions of sex crimes is the evidence of an increased awareness among the international community as to the use of sexual violence as a war tactic and the risks it poses to peace and security and in light of the trust evident amongst international policy-makers in the role criminal justice should play in addressing this phenomenon.Footnote 130
Might similar arguments be made in favour of prosecutions centred on the theme of business participation in international crimes or on the economic dimensions of conflict more broadly? Many of the ideas mentioned above have in fact been presented as arguments for the value of focusing on the business side of conflict in the future practice of international courts and tribunals. For example, with respect to the expressive rationale supporting a special focus on sex crimes, similar arguments have been made in the domestic and international contexts in defence of the necessity of corporate criminal (rather than civil or administrative) liability in relation to certain forms of corporate misconduct. The justifications provided for this are the particular moral messaging that occurs through the vehicle of criminal law and the need to properly acknowledge those injured by sufficiently severe corporate misconduct.Footnote 131 This call is sometimes made on the basis that the role of business and economics in conflict has been a long under-represented phenomenon in international criminal justice, despite the evidence that modern conflicts might best be understood as revolving around economic, rather than political or ethnic, tensions.Footnote 132 Further, it has been argued that given the role of international criminal law as a mechanism of post-conflict transitional justice with forward-oriented goals, the role of economic actors, such as business, and the impact of widespread economic crimes, such as the plunder of natural resources, might in some cases be more important subjects than other categories of international crimes and criminals to the goal of a durable peace.Footnote 133 The idea here is that it is often economic injustices that, if left unattended, can lead to a relapse into conflict. Finally, inasmuch as the legitimacy of thematic prosecutions might be supported on the basis that international policy-makers have evidenced a particular concern for the relevant phenomenon and a trust in the role of criminal justice to respond, the work of the SRSG might suggest that a similar time is coming with respect to the role of business in international crimes.
It is beyond the scope of this paper to fully theorise the prospect of thematic prosecutions focusing on the economic dimensions of conflict, and there are of course due bases for caution with respect to the practice more broadly.Footnote 134 A more modest point is being made here, namely that, inasmuch as thematic prosecutions may constitute a feature of international criminal practice in the future, there may be a strong case for the unlawful conduct of businesses to be high on prosecutorial agendas. The question is then whether the current architecture of international criminal law is up to such a task.
In this context it is worth concluding with the recent work of van den Herik and Dam-de Jong, who suggest that it might be time for international criminal law to enter into a ‘fourth generation’ within which the framework of international criminal law is applied and developed, so as to better respond to the modern phenomenon of war as economic activity.Footnote 135 Focusing in particular on the close relationship between modern conflicts and competition for natural resources, they present a compelling argument that existing principles of international criminal law ought to be directed to the economic dimensions of conflict and that, given the limitations of international criminal law's current toolkit, which was developed in the context of different paradigms of conflict, there may be a need for the development of new criminal law tools to remain abreast of the modern realities of war.Footnote 136
Conclusion
The expectation placed on international criminal law to be a vehicle for legal accountability of business actors engaged in egregious human rights and humanitarian law abuses is in many respects driven by the lack of litigation alternatives at the international level. During discussions in 2008 on the subject of international criminal law and business, expert commentators noted that, despite the traditional reluctance of states to extend criminal law notions to abstract entities, questions as to the wisdom of expanding international criminal law are often forfeited given the lack of any established international tort or administrative law that might apply instead.Footnote 137 In the wake of the work of the SRSG and his failure to incorporate any role for binding human rights obligations at an international level, this status quo seems set to continue into the foreseeable future. As noted by the SRSG, it is with the expansion of international criminal law that the prospect of legal accountability for businesses involved in human rights and humanitarian law violations seems most promising. In light of this, we might expect to see continued pressure on the institutions and principles of international criminal law to be applied to cases of business involvement in international crimes.
This pressure for international criminal law to evolve and capture wrongful business conduct is also being generated by the very nature of modern conflicts themselves. With increasing awareness that economic concerns and actors have a central part in many modern conflicts – as financiers and enablers of violence, as direct actors in the case of private military companies, and as partners of rights-violating security forces – the demand that international criminal law evolve to address the business dimensions of conflict is likely to continue. After all, international criminal law has as one of its key goals and justifications the furtherance of peace and security.
This paper has outlined some recent developments related to the promise of international criminal law with respect to the business case. Notions of thematic prosecutions in international courts may augur in favour of future prosecutions dedicated to exposing the role of business actors in international crimes. The relevance of indirect perpetration through an organisation to the business case will depend strongly upon whether the Court applies Roxin's theory faithfully or adopts looser notions of control and automatic compliance. And it remains to be seen how the ICC will interpret aiding and abetting, although the SCSL's Taylor trial judgement indicates the ways in which this notion can apply to business-like interactions.
Courts and tribunals should begin to look more seriously at business actors and also at some of the neglected international crimes involving property in which they may be particularly prone to participating, such as the war crime of pillage. A move in this direction will allow a clearer delineation of truly rogue businesses from those businesses making genuine efforts to avoid participation in international crimes. However, there is also a cautionary tale to be told. International criminal law can and ought to capture only those business activities with a sufficiently direct and significant role in the commission of international crimes. It is clear that, even with an increased application of international criminal law to business, many humanitarian law and human rights abuses in which business actors may be implicated when working in conflict situations will not be captured. As emphasised by the SRSG, for these broader concerns the importance of multiple regulatory sites that encourage the development of broader conflict-sensitive business practices will be paramount.
