Extending International Criminal Law beyond the Individual to ...

WORKSHOP
CORPORATE CRIMINAL LIABILITY: NEW DEVELOPMENTS IN
INTERNATIONAL CRIMINAL LAW
Extending International
Criminal Law beyond the
Individual to Corporations
and Armed Opposition
Groups
Andrew Clapham*
Abstract
This article argues that corporations and armed opposition groups have obligations
under international law. It is suggested that the scope of the obligations turns
on the capacity of the entities in question. While there may be no international
court to hear complaints against such entities, understanding their legal obligations
under international law is important in situations where national courts have
jurisdiction over violations of international law committed by non-state actors.
Furthermore, it is vital to realizing the potential of claims of corporate complicity
in international crimes and the impact such claims may have in the field of ethical
investment.
1. Introduction
This article challenges a number of traditional assumptions about international
criminal law. It is often assumed that international criminal law is
exclusively addressed to crimes committed by individuals. 1 Moreover, one often
comes across the assumption that only subjects of international law can enjoy
* Professor of Public International Law, Graduate Institute of International and Development
Studies, Geneva; Director, Geneva Academy of International Humanitarian Law and Human
Rights; Member, Board of Editors of this Journal. I am very grateful to Fiona Le Diraison for her
marvelous research assistance.
............................................................................
Journal of International Criminal Justice 6 (2008), 899^926
doi:10.1093/jicj/mqn076
ß Oxford University Press, 2008, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org
Electronic copy available at: http://ssrn.com/abstract=1338066

900 JICJ 6 (2008), 899^926
international obligations. And, recourse to the maxim societas delinquere non
potest prompts one to assume that there is an established (even classical)
notion (even principle) that ‘companies cannot commit an offence’. 2
Anyone who doubts the power of these assumptions need only go on-line
for a few minutes. The maxim societas delinquere non potest even has its own
Wikipedia page (albeit in Spanish). 3 The provenance of the maxim is invoked,
not only to refute the development of laws which would criminalize corporate
conduct, but also to suggest that the maxim leads to the conclusion that
it would be ‘impracticable’ to prosecute state crimes under international law. 4
Even for those, such as Gaetano Arangio-Ruiz, who sought to go around
the maxim in the context of state crimes under international law, the assumptive
power of the maxim exerted full force with regard to national law. 5 It is
therefore vital to be clear when discussing the topic of crimes committed by
entities that are not individuals, whether we are talking about international
or national legal orders. Not only are the rules different but the assumptions
may be different.
The complexity of this topic is compounded by the fact that the complementarity
principle introduced by the Statute of the International Criminal
Court (ICC) has coloured how we think about international criminal law.
As we shall see, the inability of some lawyers, from some national legal
orders, to conceive of entities that are not individuals as having obligations
under criminal law, has meant that a complementary international criminal
jurisdiction was inconceivable. This article will argue that, such assumptions
and complexities notwithstanding, international criminal law is developing
obligations that reach beyond the individual.
Rather than attempting a simple paradigm shift, which replaces one set of
assumptions with another set of new, more appropriate, assumptions, the
method employed here will be to present a narrative that highlights how
corporations and armed groups are being addressed by international law and
international bodies. In some instances, we shall examine how such entities
1 For example, G. Werle, Principles of International Criminal Law (The Hague: T.M.C. Asser Press,
2005), at 35.
2 ‘The traditional principle embodied in the Latin maxim societas delinquere non potest (companies
cannot commit an offence) continues to be reflected in the laws of some states, such as
France, Germany and Austria, where corporate criminal liability applies in only limited circumstances,
and generally on a more restrictive basis than the ‘‘identification theory’’ of Anglo-
Canadian law.’ ‘Legislative Summaries LS-457E, Canada’, Bill C-45: An Act to Amend the
Criminal Code (Criminal Liability of Corporations), prepared by David Coetz, 3 July 2003. For
a discussion of the influence of the ‘rule’ in Switzerland, see P. Graven and Ch-A. Junod,
‘Societas delinquere potest’ in Me¤langes Robert Patry (Lausanne: Payot, 1988), 351^365.
3 http://es.wikipedia.org/wiki/Societas_delinquere_non_potest (visited 23 October 2008).
4 ‘Furthermore, as early as in the Roman times, the theory of criminal law already affirmed that
‘‘societas delinquere non potest’’. It is impracticable to attempt the prosecution of State ‘‘crimes’’.’
Statement by Ms Xue Hanqin (China) on Agenda Item 159 (ILC), UNGA, 23 October 2000.
5 UN Doc. A/CN.4/SR.2315, Summary Records of the 45th Session of the ILC, 2315th meeting,
1July1993,xx 45^46.
Electronic copy available at: http://ssrn.com/abstract=1338066

Extending International Criminal Law 901
have been held judicially accountable for violations of international law, albeit
usually through national jurisdictions. Before we turn to these developments,
we should, however, briefly canvass some of the doctrinal ideas that continue
to influence our thinking.
2. The Subject of Subjects and the Question of
International Legal Personality 6
James Brierly, in his quest to reduce the focus on the state and emphasize the
rights and obligations of individuals that make up the state, attacked the doctrine
which sought to exclude other actors from subjectivity, and he played
with the concept of personality:
Even the state, great and powerful institution as it is, can never express more than a part of
our personalities, only that part which finds expression in the purpose or purposes for
which the state exists; and however important these purposes may be, however true it
may be that they are in a sense the prerequisite condition of other human activities in a
society, they never embrace the whole of our lives. 7
Brierly asks us to suspend our belief in the sanctity of subjectivity and sharpen
our senses.
If, therefore, we approach the question of the subjects of international law with a true
perception of what the personality of states entails, it becomes difficult to believe that
there can be anything sacrosanct about a practice which treats states as the subjects of
the international community. It is not a principle, but essentially a rule of expediency, and
mainly a rule of procedure. 8,9
Brierly foresaw other entities becoming subjects of international law, just as
‘the law of any state has for its subjects both individuals and institutions’, 10 and
his depiction of the assumption that states are the exclusive subjects of international
law as a ‘rule of procedure’ is particularly helpful in our context.
International criminal law operates before multiple tribunals with different
jurisdictions and rules. Although all the international tribunals established so
6 The following sections draw on my book Human Rights Obligations of Non-State Actors (Oxford:
Oxford University Press, 2006).
7 J.L. Brierly,‘The Basis of Obligation in International Law’ in H. Lauterpacht and C.H.M.Waldock
(eds), The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly
(Oxford: Clarendon Press, 1958), 1^67, at 51; English version of a course originally delivered at
the Hague Academy of International Law in 1928 ‘Le Fondement du caracte' re obligatoire du
droit international’, 23 Recueil des Cours (1928), iii.
8 Sovereignty, Seisen, And the League’, 7 Fischer Williams, ‘Sovereignty, Seisen, And the League’,
BritishYear Book of International Law (1926), 23 (footnote in the original).
9 Brierly, supra note 7, at 51. Cited in part and discussed by J.E. Nijman, The Concept of
International Legal Personality: An Inquiry Into the History and Theory of International Law (The
Hague: T.M.C. Asser Press, 2004), 146.
10 Brierly, supra note 7, at 52.

902 JICJ 6 (2008), 899^926
far have had rules that make individuals the sole subjects of their jurisdiction,
we can imagine any one of these tribunals being adjusted so that it may
exercise its jurisdiction over non-natural persons (such as political parties or
other legal persons). At this point, the exclusion of non-natural persons can be
seen as the consequence of a ‘rule of procedure’ rather than the inevitable
result of application of international criminal law. 11
In addition to seeing subjectivity as a procedural problem, we might argue
that the effectiveness principle has a role to play. If international law is to be
effective, everyone should be prohibited from assisting governments in violating
those principles, or indeed from violating such principles themselves. Let us
now see how this idea that corporations should be prohibited from assisting
governments in violating international law is playing out in practice. This idea
has become known as ‘corporate complicity’ and has generated considerable
interest in various sectors.
3. Corporate Complicity
Before looking at the scope of corporate complicity under international law,
let us first ask ourselves how the complicity concept came to play such a
prominent role. I would suggest that there are a few developments that
stand out.
First, as human rights organizations became more interested in reporting on
the behaviour of multinational corporations, they found themselves confronted
with a legal conundrum. Unlike ethical investors or those in the corporate
social responsibility movement, international human rights organizations
prided themselves on their law-based methodology. Moreover, they based all
human rights reporting on violations of international law. These violations
were usually expressed in terms of violations of human rights treaties which
the relevant state had ratified. The legal methodology did not seem suited to
complaining about the behaviour of corporations. Amnesty International’s
Human Rights Principles for Companies (1998) included a policy recommendation
that companies should ensure that personnel are never ‘complicit’ in
human rights abuses. 12 Without radically altering the traditional understanding
of human rights law, groups such as Human Rights Watch argued that,
although the corporations did not have obligations as parties to the human
rights treaties, the states they were operating in did have such obligations and
11 Brierly’s insights from 1928 again bear repeating here: ‘Incomparably the greatest threat to
peace in the modern world lies in the growing tendency of governments to place the power of
the state behind the private economic interests of their nationals, and thus to identify the
interests of a few powerful individuals with the interests of the whole country. It is unfortunate
that international law should continue to provide a theoretical justification for this dangerous
practice by its stubborn adherence to an unreal conception of international society.’ Ibid., at 53.
12 ‘Companies should establish procedures to ensure that all operations are examined for their
potential impact on human rights, and safeguards to ensure that company staff are never
complicit in human rights abuses.’AI Index ACT 70/01/98.

Extending International Criminal Law 903
the behaviour of the corporations could be seen as contributing to violations by
those states, and so it made sense to talk about the corporations being complicit
in such violations. 13
The notion that companies, and those that invest in such companies,
should avoid being tainted with complicity was in the air as a vehicle for
campaigning against companies. Amnesty International’s report on Sudan
quoted Alan G. Hevesi, Comptroller of the City of New York Pension Funds
and a shareholder in Talisman Energy:
I believe a company that is doing business in a country under a repressive regime must not
provide financing or other resources for the perpetuation of wrongdoing or atrocities. As
long-term investors, we believe a company that is cavalier about its moral and social
responsibility presents an unacceptable investment risk. The expanding divestment campaign
against Talisman Energy for alleged complicity in the horrors in Sudan is just one
indication of that risk. 14
Ten years later, we find that ethical investors, such as Norway’s sovereign
wealth fund, the ‘The Government Pension Fund ^ Global’, will screen out,
and disinvest from, corporations where there is an unacceptable risk of
contributing to corporate complicity in violations of international law. 15 The
Ethical Guidelines explain in paragraph 4.4:
The Council shall issue recommendations on negative screening of one or several
companies on the basis of production of weapons that through their normal use may
violate fundamental humanitarian principles. The Council shall issue recommendations
on the exclusion of one or several companies from the investment universe because of
acts or omissions that constitute an unacceptable risk of the Fund contributing to:
Serious or systematic human rights violations, such as murder, torture, deprivation of
liberty, forced labour, the worst forms of child labour and other forms of child exploitation
Serious violations of individuals’ rights in situations of war or conflict
Severe environmental damages
Gross corruption
Other particularly serious violations of fundamental ethical norms. 16
The concept of contribution leading to complicity was most recently explained
by the Fund’s Advisory Council on Ethics with regard to the question of investment
in the company, Total, in the context of Total’s alleged complicity in
13 See e.g. Human Rights Watch, The Price of Oil: Corporate Responsibility and Human Rights
Violations in Nigeria’s Oil Producing Areas (NY: HRW, 1999) and The Enron Corporation:
Corporate Complicity in Human RightsViolations (NY: HRW, 1999).
14 ‘Sudan: The Human Price of Oil’, AI Index AFR 54/001/2000, 3 May 2000, the reference for the
quote is ‘Letter, written by Alan G. Hevesi to Mr James Buckee, president and chief executive
officer of Talisman Energy, September 27, 1999’.
15 S. Chesterman,‘The Turn to Ethics: Disinvestment from Multinational Corporations for Human
Rights Violations - The Case of Norway’s Sovereign Wealth Fund’, 23 American University
International Law Review (2008) 577^615.
16 The Ethical Guidelines, Norwegian Government Pension FundçGlobal, issued 22 December
2005.

904 JICJ 6 (2008), 899^926
human rights violations committed by the Myanmar Government. The reliance
on complicity again emerges from the perceived need to find a link back to a
‘subject’ of human rights obligations:
Only states can violate human rights directly. Human rights are legally binding rules
regulating the relationship between the state and the individual and are designed to
ensure that everyone within the jurisdiction of a state is guaranteed all political, civil,
economic, social and cultural rights by that state. States are the only subjects of legal
duties under the international human rights conventions, and are thus, as the
general rule, the only parties able to guarantee and hence also violate the human rights of
individuals. Companies can, as indicated in paragraph 4.4, contribute to human rights
violations committed by states. The Fund may in its turn contribute to companies’ complicity
through its ownership. It is such complicity in a state’s human rights violations which
is to be assessed under this provision .... Paragraph 4.4 states that the Council may recommend
exclusion of companies ‘because of acts or omissions that constitute an unacceptable risk
of contributing to: ...’. This wording must be understood in such a way that it is the actions
or omissions of the company in question that can provide a basis for exclusion, not those of
the state concerned. 17
The second development was that in 1999 the UN Secretary-General Kofi
Annan launched the Global Compact with a speech in Davos. He addressed
business leaders in the following terms:
You can uphold human rights and decent labour and environmental standards directly, by
your own conduct of your own business. Indeed, you can use these universal values as the
cement binding together your global corporations, since they are values people all over the
world will recognize as their own. You can make sure that in your own corporate practices
you uphold and respect human rights; and that you are not yourselves complicit in human
rights abuses. 18
The Global Compact was developed the following year and its first two principles
were announced as follows: Principle 1: businesses should support and
respect the protection of internationally proclaimed human rights; and
Principle 2: make sure that they are not complicit in human rights abuses. In
the ‘learning forum’ that grew up around the Compact considerable time and
energy was then spent on considering what was meant by complicity in this
context. 19
Third, the growing number of cases being litigated under the Alien
Tort Statute (ATS, also known as the Alien Tort Claims Act or ATCA) in the
17 Recommendation of the Advisory Council on Ethics for the Government Petroleum Fund,
14 November 2005 (footnote omitted).
18 Press Release, SG/SM/6881, 1 February 1999.
19 For one set of documents developed through the UN, see UN Global Compact Office and OHCHR,
Embedding Human Rights in Business Practice (New York: UN Global Compact Office, 2004),
available at http://www.unglobalcompact.org/docs/issues_doc/human_rights/embedding.pdf
(visited 23 October 2008). See also M. Jungk, Complicity in Human Rights Violations:
A Responsible Business Approach to Suppliers (Copenhagen: Danish Institute for Human
Rights, 2006).

Extending International Criminal Law 905
United States Federal Courts has focused attention on the scope of complicity
in this context. The ATS confers upon the federal district courts original
jurisdiction over ‘any civil action by an alien for a tort only, committed
in violation of the law of nations’ (28 U.S.C. section 1350). But these cases
are riddled with complexity. In order to show that the corporation has committed
a violation of international law, it may be necessary to show that
there was a degree of state action or that the corporation acted under
‘colour of law’. As soon as the plaintiffs can show this, the defendants start to
argue that the courts should refuse to hear the case because there is too much
state action. Two separate arguments are emerging. The first concerns a ‘combatant
activities exception’. According to a recent ruling:
The policy underlying the FTCA’s [Federal Tort Claims Act] combatant activities exception is
that the military ought be ‘free from the hindrance of a possible damage suit’ based on its
conduct of battlefield activities. Johnson, 170 F.2d at 769. In this respect, the policy echoes
the Supreme Court’s admonition that ‘[i]t would be difficult to devise a more effective
fettering of a field commander than to allow the very enemies he is ordered to reduce to
submission to call him to account in his own civil courts and divert his efforts and attention
from the military offensive abroad to the legal defensive at home.’ Johnson v. Eisentrager, 339
U.S. 763, 778 (1950). 20
As the claim is argued as a tort under the law of nations, claimants may need
to show state action or ‘official complicity’ in order to show that the acts were
violations of the law of nations. A second jurisdictional argument now appears.
At this point, jurisdictional blockers pop-up again in a rather paradoxical form.
The greater the official complicity, the harder will it be to avoid claims that the
case has to be dismissed on political grounds. In the words of Judge Robertson
in the same case concerning Abu Ghraib: ‘And the more plaintiffs assert official
complicity in the acts of which they complain, the closer they sail to the
jurisdictional limitation of the political question doctrine.’ 21
Let us, however, leave to one side the jurisdictional rules and concentrate on
some recent rulings concerning the scope of complicity in violations of international
criminal law in general, and in particular complicity in war crimes,
crimes against humanity and genocide.
It is perfectly possible to bring a suit against a corporation for violating
international law as the principal perpetrator, and suits have indeed been
brought, for example, with regard to allegations of violations of international
law, including torture and inhuman or degrading treatment, committed by
contractors providing interpretation and interrogation services to the United
States at Abu Ghraib prison in Iraq. 22 More recently a case has been filed also
20 Order of 6 November 2007, Ibrahim et al. v. Titan et al. andSalehetal.v.Titanetal., US District
Court for the District of Columbia, James Robertson US District Judge, Case 1: 05-cv-01165-JR,
at 7.
21 Order of 26 June 2006, Saleh et al. v. Titan Corp,436F.Supp.2d55,at5.
22 For the background, see the Order of 6 November 2007, Ibrahim et al. v. Titan et al. andSaleh
et al. v. Titan et al., supra note 21.

906 JICJ 6 (2008), 899^926
against Blackwater alleging war crimes under the ATS in connection with the
killing of civilians on 16 September 2007. 23
In the simple situation where a corporation’s activities actually constitute
genocide, slavery or war crimes, the issue is clear. The corporation will have
violated international criminal law and can be held accountable in the US
courts under ATS. The US courts have been gradually refining the list of violations
of the ‘law of nations’ that attach to non-state actors as such. Accordingly,
recent rulings have determined that genocide, slave trading, slavery, forced
labour and war crimes are actionable even in the absence of any connection
to state action. 24 In addition, according to the Kadic v. Karadzic judgment in the
US courts, where rape, torture and summary execution are committed in isolation
these crimes ‘are actionable under the Alien Tort Act, without regard to
state action, to the extent they were committed in pursuit of genocide or war
crimes’. 25 An alien can sue in tort before the US Federal Courts under the ATS
Act with regard to any of these international crimes. In fact the list is not
exclusive as international criminal law continues to evolve. Most recently the
Appeals Chamber of the International Criminal Tribunal for the former
Yugoslavia (ICTY) suggested that there is no need for a public official to be
involved for a private individual to be responsible under international law for
the international crime of torture. 26
But such simple cases of a corporation being sued in the US Courts, under
the ATCA, as the primary perpetrator of such international crimes, are rare,
and, in any event, would be likely to be settled out of court if the facts were
clear. Most of the cases that have recently been contested before the United
States’ courts concern situations where corporations are alleged to have aided
and abetted a state in governmental violations of international criminal law. 27
Other cases turn on money paid by corporations to paramilitaries in the context
of war crimes and crimes against humanity. 28 In other words, the cases
23 See Abtan et al. v. Blackwater Worldwide et al., Case 1:07-cv-01831 (RBW), filed 26 November
2007.
24 Wiwa v. Royal Dutch Shell Petroleum (Shell), 28 February 2002, US District Court for the
Southern District of New York, at 39. See also Doe I v. Unocal Corporation, 18 September 2002,
at x3 et seq.
25 Kadic v. Karadzic, 70 F. 3d 232, at 243^244 (2d Cir. 1995) cited with approval in Doe v. Unocal
2002, supra note 24, x 3.
26 ‘The Trial Chamber in the present case was therefore right in taking the position that the public
official requirement is not a requirement under customary international law in relation to the
criminal responsibility of an individual for torture outside of the framework of the Torture
Convention.’ Judgment, Kunarac (IT-96-23-A), Appeals Chamber, 12 June 2002, x 148.
27 We might note here the findings in the report ‘On the Margins of Profit: Rights at Risk in the
Global Economy’ by Human Rights Watch and the Centre for Human Rights and Global Justice
which stated that ‘it is important to focus as much on corporate ties with third parties that
commit abuse (such as suppliers or government security forces) as on cases in which businesses
themselves directly cause harm’, Human Rights Watch Reports, February 2008, Vol. 20,
No. 3(G), at 2.
28 See e.g. John Doe et al. v. Chiquita Brands International, complaint before the US District Court of
New Jersey, dated 18 July 2007 (discussed below in the section on armed groups).

Extending International Criminal Law 907
turn on accomplice liability, or complicity. 29 The most developed jurisprudence
has turned on the concept of complicity in international criminal law, to which
we now turn. 30
4. Complicity in International Criminal Law
Let us consider how the complicity article in the ICC Statute has been considered
in the context of recent litigation under the ATS. In the recent ruling from
the US Court of Appeals for the Second Circuit, in the case of Khulumani v.
Barclay National Bank, Ltd; Ntsebeza v. Daimler Chysler Corp, Judge Katzmann
set out his appreciation of the complicity rule under that treaty, and suggested
that this test was the appropriate one to be used in the context of claims in the
Federal Court concerning corporate complicity in violations of international
law under the ATS. Katzmann reminds us why complicity is so crucial in this
context: it allows a claim to be made against a corporation for a violation of the
law of nations that would often normally require state action. In his words:
Recognizing the responsibility of private aiders and abettors merely permits private actors
who substantially assist state actors to violate international law and do so for the purpose of
facilitating the unlawful activity to be held accountable for their actions. It is of no moment
that a private actor could be held liable as an aider and abettor of the violation of a norm
requiring state action when that same person could not be held liable as a principal. In our
domestic law, it is ‘well settled that one may be found guilty of aiding and abetting another
individual in his violation of a statute that the aider and abettor could not be charged
personally with violating.’ In re Nofziger, 956 F.2d 287, 290 (D.C. Cir. 1992); see also United
States v. Tannenbaum, 934 F.2d 8, 14 (2d Cir. 1991) (‘The fact that the accused does not
possess the legal capacity to commit the substantive offense does not mean that he cannot
be convicted ...of aiding and abetting the commission of the substantive offense by
another. Thus, the inability to commit the substantive offense is immaterial.’ (citations
omitted)). Indeed, ‘[t]he doctrine is of ancient origin.’ Nofziger, 956 F.2d at 291.
International law, too, recognizes that criminality is assessed by reference to the actions of
the principal, not the aider and abettor. See Akayesu,Trial ChamberJudgment, ô 528 (‘[I]t
should be understood that the physical act which constitutes the act of complicity does not
have its own inherent criminality, but rather it borrows the criminality of the act committed
by the principal perpetrator of the criminal enterprise .... The accomplice has not
committed an autonomous crime, but has merely facilitated the criminal enterprise committed
by another.’ 31
It is enough that the corporation is complicit in a violation of international law
by a government. This need not be related to an obligation that the corporation
29 For an overview see the forthcoming report (three volumes) by the International Commission of
Jurists’ Expert Legal Panel on Corporate Complicity in International Crimes.
30 For a careful review of the US case law, see D. Cassel,‘Corporate Aiding and Abetting of Human
Rights Violations: Confusion in the Courts’, 6 Northwestern University Journal of International
Human Rights (2008), 304, at http://www.law.northwestern.edu/journals/jihr/v6/n2/4/
Cassel.pdf (visited 28 April 2008).
31 Khulumani v. Barclay National Bank, Ltd; Ntsebeza v. Daimler Chysler Corp, US Court of Appeals
for the Second Circuit, 12 October 2007, 05-2141-cv, 05-2326-cv., at 46^47.

908 JICJ 6 (2008), 899^926
would normally have as such. It can be a governmental obligation. The next
question concerns the requisite intention of the corporate entity to be considered
complicit under international criminal law. Judge Katzmann reviewed
the decisions of the ICTY and then turned to the ICC Statute Article 25(3)
which states that a person shall be criminally responsible if that person:
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise
assists in its commission or its attempted commission, including providing the means for its
commission; [or]
(d) In any other way contributes to the commission or attempted commission of such a
crime by a group of persons acting with a common purpose. Such contribution shall be
intentional and shall either:
i. Be made with the aim of furthering the criminal activity or criminal purpose of the
group, where such activity or purpose involves the commission of a crime within
the jurisdiction of the Court; or
ii. Be made in the knowledge of the intention of the group to commit the crime[.]
Judge Katzmann continued:
The Rome Statute is particularly significant for the present inquiry because, unlike other
sources of international legislation, it articulates the mens rea required for aiding and abetting
liability. The Statute makes clear that, other than assistance rendered to the commission
of a crime by a group of persons acting with a common purpose, a defendant is guilty
of aiding and abetting the commission of a crime only if he does so ‘[f]or the purpose of
facilitating the commission of such a crime.’ Id. art. 25 (3)(c). In drawing upon the Rome
Statute, I recognize that it has yet to be construed by the International Criminal Court; its
precise contours and the extent to which it may differ from customary international law
thus remain somewhat uncertain. 32
Two points need highlighting. First, the Judge does not address the issue of
assistance to a group of persons acting with a common purpose (Article
25(3)(d) ICC Statute). In such a case, no ‘purpose’ is required by the person
assisting. The Statute simply requires ‘knowledge of the intention of the
group’. Second, the absence of practice based on the 25(3)(c) assistance test in
the ICC Statute does indeed suggest that the customary international law test
may indeed be found elsewhere, i.e. in the decisions of the ad hoc Tribunals.
It is suggested here that it is not necessary to see the ICC and the customary
standard as divergent. The better view is to see the ICC provisions on
accessories as a whole, incorporating some of the ideas concerning contribution
to a group crime or joint criminal enterprise. Let us consider these points
in turn.
A. Contribution to a Group Crime and Joint Criminal Enterprise
The reference in the ICC Statute to a group of persons acting with a common
purpose is similar to the joint criminal enterprise doctrine developed by
32 Ibid., at 36.

Extending International Criminal Law 909
the ICTY. It has been suggested that this indirect form of participation ‘may
cover acts that in the Yugoslavia Tribunal’s case law warranted liability for
participation in a joint criminal enterprise’. 33 The ICTY has explained its
approach in a number of cases with the general argument first being articulated
in the Tadic¤ case, where the Tribunal explained that criminal liability
extends in this way beyond those who physically commit the abuses:
‘Although only some members of the group may physically perpetrate the
criminal act (murder, extermination, wanton destruction of cities, towns or
villages, etc.), the participation and contribution of the other members of the
group is often vital in facilitating the commission of the offence in question. It
follows that the moral gravity of such participation is often no less ç or indeed
no different ç from that of those actually carrying out the acts in question.’ 34
The Appeals Chamber has more recently summarized the types of joint criminal
enterprise under three headings: all of the co-perpetrators possess the
same intent to effect the common purpose; a ‘systemic’ form where the perpetrators
have personal knowledge of the organized criminal system; and a third
‘extended’ form where crimes are committed beyond the common purpose, but
which are a natural and foreseeable consequence of this common purpose. 35
This type of participation in the crime requires one to identify two different
intentions. According to the ICC Statute we need: first an intentional contribution,
and second, knowledge of the intention of the group. The secondary
participant, or in our case, the complicit corporation, can either intend to
further the crime, or simply intentionally contribute with knowledge of the
others’ intention to commit the crime. The Statute is complex in this regard but
it does admit that one can be criminally liable even where one only has knowledge
of the crime rather than a shared purpose to commit that crime. The Pre-
Trial Chamber of the ICC has explained that this residual form of liability
presents a threshold for a different, seemingly less engaged state of mind, and
can be likened to joint criminal enterprise:
In this regard, the Chamber notes that, by moving away from the concept of co-perpetration
embodied in article 25(3)(a), article 25(3)(d) defines the concept of (i) contribution to the
commission or attempted commission of a crime by a group of persons acting with a
common purpose, (ii) with the aim of furthering the criminal activity of the group or in
the knowledge of the criminal activity of the group or in the knowledge of the criminal
purpose.
33 G. Werle,‘Individual Criminal Responsibility in Article 25 ICC Statute’, 5 Journal of International
Criminal Justice (2007) 953^975, at 974^975. See also E. van Sliedregt, The Criminal
Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: T.M.C.
Asser Press, 2003), at 41^115; A. Eser, ‘Individual Criminal Responsibility’, in A. Cassese,
P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A
Commentary (Oxford: Oxford University Press, 2002), 767^822; W.A. Schabas, ‘Enforcing
International Humanitarian Law: Catching the Accomplices’, 83 International Review of the Red
Cross (2001) 439^459; K. Ambos, ‘Article 25’, in O. Triffterer (ed.), Commentary on the Rome
Statute of the International Criminal Court (Baden-Baden: Nomos, 1999), 475^493.
34 Judgment, Tadic¤ (IT-94-1-A), Appeals Chamber, 15 July 1999, x 191.
35 Judgment, Kvoc› ka (IT-98-30/1-A), Appeals Chamber, 28 February 2005, xx 81^83.

910 JICJ 6 (2008), 899^926
335. The Chamber considers that this latter concept ^ which is closely akin to the concept of
joint criminal enterprise or the common purpose doctrine adopted by the jurisprudence of
the ICTY ^ would have been the basis of the concept of co-perpetration within the meaning
of Article 25(3)(a), had the drafters of the Statute opted for a subjective approach for
distinguishing between principals and accessories.
336. Moreover, the Chamber observes that the wording of article 25(3)(d) of the Statute
begins with the words ‘[i]n any other way contributes to the commission or attempted
commission of such crime.’
337. Hence, in the view of the Chamber, article 25(3)(d) of the Statute provides for a residual
form of accessory liability which makes it possible to criminalise those contributions to a
crime which cannot be characterized as ordering, soliciting, inducing, aiding, abetting or
assisting within the meaning of article 25(3)(b) or article 25(3)(c) of the Statute by reason of
the state of mind in which the contributions were made. 36
The Chamber’s more general comments on knowledge and intention are also
worth mentioning here as they represent the only authoritative reading of the
ICC Statute. The Chamber is clear that Article 30’s references to intent and
knowledge cover three types of dolus: firstdolus directus of the first degree ç
the suspect knows that his or her actions will bring about the objective elements
of the crime and undertakes such actions aware that their actions will
bring about such elements as a necessary outcome. Second, dolus directus of
the second degree ^ the suspect, without the concrete intent to bring about the
objective elements of the crime, is aware that such elements will be the necessary
outcome of their actions. Third, dolus eventualis ç the suspect is aware of
the risk of objective elements resulting from their actions and accepts such an
outcome by reconciling themselves to it. The ICC Pre-Trial Chamber then adds
a further layer of clarification:
353. The Chamber considers that in the latter type of situation, two kinds of scenarios are
distinguishable. Firstly, if the risk of bringing about the objective elements of the crime is
substantial (that is, there is a likelihood that it ‘will occur in the ordinary course of events’),
the fact that the suspect accepts the idea of bringing about the objective elements of the
crime can be inferred from:
i. the awareness by the suspect of the substantial likelihood that his or her actions or
omissions would result in the realization of the objective elements of the crime; and
ii. the decision by the suspect to carry out his or her actions or omissions despite such
awareness.
354. Secondly, if the risk of bringing about the objective elements of the crime is low, the
suspect must have clearly or expressly accepted the idea that such objective elements may
result from his or her actions or omissions.
355. Where the state of mind of the suspect falls short of accepting that the objective
elements of the crime may result from his or her actions or omissions, such a state of
mind cannot qualify as a truly intentional realization of the objective elements, and hence
36 Decision on the Confirmation of Charges, Lubanga (ICC-01/04-01/06), Pre-Trial Chamber I, 29
January 2007.

Extending International Criminal Law 911
would not meet the ‘intent and knowledge’ requirement embodied in article 30 of the
Statute.
These statements set out the limits of the minimal intention necessary for a
finding of responsibility under the Rome Statute. While corporations will not
be tried at the ICC, we have already seen in the context of the US Appeals Court
that the Statute has become the starting point for understanding corporate
complicity.
We can distil all this down to the idea that once a corporation is made aware
of a likelihood of contributing to a crime committed by a group then, once it
accepts that its actions may lead to elements of the crime occurring and it
continues to act, it has the requisite mental involvement to give rise to a
residual form of corporate complicity in international crimes. We might add
that the structure of the ICC Statute and the Chamber’s reasoning imply that
the group of persons being assisted commit ‘a crime’. Therefore it is conceived
that ‘a crime’ is committed by ‘a group’. The ‘rule of procedure’ prevents the
Court from trying the group as such ç but a crime has indeed apparently been
committed by a group.
B. Corporate Complicity under Article 25(3)(c) ICCSt.
Judge Katzmann summarized his approach as follows:
With respect to the actus reus component of the aiding and abetting liability, the international
legislation is less helpful in identifying a specific standard. However, in the course of
its analysis of customary international law, the ICTYconcluded that ‘the actus reus of aiding
and abetting in international criminal law requires practical assistance, encouragement, or
moral support which has a substantial effect on the perpetration of the crime.’ Furundzija,
Trial Chamber Judgment, ô 235 (second emphasis added). My research has uncovered
nothing to indicate that a standard other than ‘‘substantial assistance’’ should apply.
Accordingly, I conclude that a defendant may be held liable under international law for
aiding and abetting the violation of that law by another when the defendant (1) provides
practical assistance to the principal which has a substantial effect on the perpetration of the
crime, and (2) does so with the purpose of facilitating the commission of that crime.
Furthermore, based on this review of international law’s treatment of aiding and abetting
liability over the past sixty years, I conclude that aiding and abetting liability, so defined, is
sufficiently ‘well-established[] [and] universally recognized’ to be considered customary
international law for the purposes of the ATCA. 37
A first question arises: what does ‘substantial’ mean in this context? The
corporate complicity context is often concerned with issues of presence
in war zones. The case law from the ad hoc Tribunals has dealt with the
issue of contribution through presence, but these cases are really about
encouragement through presence rather than the economic dimension of
presence. 38
37 Khulumani, supra note 31, at 38^39.
38 Judgment, Kvoc› ka (IT-98-30/1-T), Trial Chamber, 2 November 2001, xx 253^257.

912 JICJ 6 (2008), 899^926
The point developed by the case law of the two ad hoc Tribunals is that
although presence was a factor in finding moral encouragement, the cases all
concerned people who were in a superior or official position, or in Tadic¤, someone
who was actually present, or in the vicinity of, the torture and abuse.
It would be misleading simply to infer that corporate presence in a country
can be assimilated to the presence of a superior in the vicinity of the torture
scene.
The ICC has not yet addressed Article 25(3)(c) in the same way that it has
discussed Article 25(3)(d). It has been suggested, however, for example by
Gerhard Werle, that while accomplices need to be aware that their contribution
is supporting the commission of the crime, they do not need to share the
particular intent of the principal perpetrator. 39
C. Complicity for International Crimes at the National Level
The reach of the complicity concept under international criminal law is developing
an influence beyond the cases and controversies that arise in international
courts and tribunals. In the wake of the adoption of the Rome Statute
many national jurisdictions have revised their criminal law to facilitate trials
for international crimes. In van Anraat, the Dutch courts tried and convicted a
businessman for complicity as an accessory to violations of the laws and customs
of war in the context of his supply of chemicals to Iraq which could be
used as precursors for the production of mustard gas. The Counts related to the
use of chemical weapons in Halabja (and other sites) in Iraq in 1988, and the
use of chemical weapons in Khorramshar (and other sites) in Iran. The case
raises interesting questions of the evidence needed to prove genocidal intent as
well as what sort of effect the assistance needs to have in order to find complicity
under Dutch or international law. But this is not the place to analyse these
questions. The point I would like to highlight here is that the Court of Appeal
goes out of its way to send a message to the corporate world, and reach out
beyond the circle of individuals normally associated with war crimes. Consider
this passage:
Through his conscious contribution to the production of mustard gas in a country at war,
the defendant knew under those circumstances that he was the one who supplied the
material and created the occasion for the actual use of that gas, in the sense that he was
very aware of the fact that in the given circumstances the use of this gas could not and
would not fail to materialise. In different words: the defendant was very aware of the fact
that ç ‘in the ordinary cause [sic] of events’ ç the gas was going to be used. In this respect
the Court assumes that the defendant, notwithstanding his statements concerning his
39 Werle, supra note 33, at 970. Cf. Judgment, Bosnia and Herzegovina v. Serbia and Montenegro,
International Court of Justice, 26 February 2007, x 421. See also the Declaration of Judge Keith
in that case at xx 5 and 6. The subjective levels of intent and knowledge are also discussed in
Eser, in Cassese et al. (eds), supra note 33, 767^822, at 798^803. For a detailed discussion on the
significance of the word ‘purpose’ in Art. 25(3)(c), see Cassel, supra note 30.

Extending International Criminal Law 913
relevant knowledge, was aware of the ç also then known ^ unscrupulous character of the
then Iraqi regime. 40
In sentencing van Anraat to 17 years’ imprisonment, the Court is explicit in its
purpose: ‘in fixing the appropriate punishment, the Court has taken into
account the general prevention aspect. People or companies that conduct
(international) trade, for example in weapons or raw materials used for their
production, should be warned that ç if they do not exercise increased vigilance
ç they can become involved in most serious criminal offences’. 41
International criminal law is no longer directed solely at government officials,
police officers, soldiers and commanders in the armed forces, it has seemingly
already reached down into the world of the arms trade and its injunctions are
being aimed at businessmen and companies. This has been achieved primarily
through the vehicle of complicity. 42
National legal orders have multiple variations on the extent to which they
have been adapted to allow for prosecutions of legal persons for international
crimes. This is not the place to engage in a comparative examination. 43
If we proceed to consider French law, however, we discover that the complicity
concept is again set to be the driver for the development of the application
of criminal law beyond the individual. Under French law, we can see that
the creation of criminal liability for non-individuals under the Penal Code
has become dependent on complicity with individual criminals, in a mirror of
the situation whereby the liability of non-state actors under international
law often depends on complicity with states. The French Foreign Ministry
has helpfully explained the position in a memorandum. It starts: ‘France has
long acknowledged (albeit with a two-century gap) both the criminal liability
of legal entities and the extraterritoriality of certain laws that apply to
them in this regard. Legal entities include private law legal entities, both
for-profit (companies, partnerships) and non-profit (associations, political
parties, trade unions, etc.), and public law legal entities with the exception of
40 Official translation, International Law in Domestic Courts (ILDC) 753 (NL 2007), x 11.16.
41 Ibid., x 16.
42 For an overview of the cases, starting in the wake of Second World War, see K. Jacobson,‘Doing
Business With the Devil: The Challenges of Prosecuting Corporate Officials Whose Business
Transactions Facilitate War Crimes and Crimes Against Humanity’, 56 Air Force Law Review
(2005) 167^232.
43 For a useful introduction, see e.g. A. Ramasastry and R.C. Thompson, Legal Remedies for Private
Sector Liability for Grave Breaches of International Law: A Survey of Sixteen Countries - Executive
Summary (Oslo: Fafo-report 536, 2006) which concludes that there is a practice of applying
criminal liability in 11 of the countries surveyed: Australia, Belgium, Canada, France, India,
Japan, The Netherlands, Norway, South Africa, the United Kingdom and the United States; in
five of the countries surveyed there was no such recognition of criminal corporate liability:
Argentina, Germany, Indonesia, Spain and the Ukraine. The situation in Australia is highlighted,
in particular 12.3 of the Australian Commonwealth Criminal Code (discussed subsequently)
which developed the concept of corporate culture. See also International Peace
Academy and Fafo AIS, Business and International Crimes: Assessing the Liability of Business
Entities for GraveViolations of International Law (Oslo: Fafo-report 467, 2004).

914 JICJ 6 (2008), 899^926
the State and excluding public service delegations.’ 44 French law, however,
often requires an explicit provision stating that legal persons may be liable for
the offence in question. The memorandum explains: ‘The criminal liability
of legal entities is special insofar as specific provision must have been made to
attribute the offence to them. This principle was the result of pressure
from political parties and associations who feared that they might otherwise
incur liability too easily.’ 45 According to the memorandum, new legislation
has, 46 however, extended the criminal liability of legal entities ‘to all offences
defined in the Penal Code, though paradoxically the express references to the
criminal liability of legal entities that previously featured in the Penal Code
have not been deleted’. 47 Commentators often wonder how a corporation or
a political party can commit offences such as sex crimes, or be accused of
international crimes such as torture. But a moment’s reflection makes it clear
that organizational complicity in such crimes is not an academic sleight of
hand, but rather an obvious way to understand how legal entities have potential
liability for any crime on the books. As the memorandum points out,
definitions of crimes offences need to be ‘seen in the light of complicity: as
accomplices, legal entities are capable of committing all the offences contained
in the Penal Code’. 48
Moreover, legal entities may enjoy special obligations of due diligence that
make them more easily open to charges of recklessness, negligence or failure to
exercise a special duty of care. 49 A further particularity of the criminal liability
of legal entities is that particular provisions exist to bind the entity through the
actions of its agents and organs. The French memorandum explains: ‘The
criminal liability of legal entities remains indirect and personal since it presupposes
that the offence has been committed ‘‘on their account by their
organs or representatives’’. Consequently, a legal entity may not be held liable
if its manager acts on his own behalf or in his own personal interest or if the
offence is committed by an employee acting on his own initiative.’ 50 This type
of agency test is mirrored in several jurisdictions around the world and was
influential in the aborted attempt in the Rome Diplomatic Conference to
include legal entities within the jurisdiction of the ICC. 51 The last draft of the
44 ‘Re: Criminal liability of private law legal entities under French law and extra-territoriality of
the laws applicable to them: Review of the situation and discussion of issues’, 5 June 2006,
Human Rights Coordination Mission, at 1.
45 Ibid., at 2.
46 Act 2004^204 of 9 March 2004, ‘Perben II’, deleting the phrase ‘in the cases provided for by
statute and regulation’ from Art. 121-2 of the Penal Code as of 31 December 2005.
47 Memorandum ‘Re: Criminal liability of private law entities’, supra note 44, at 3.
48 Ibid.
49 Art. 121-3 of Penal Code discussed at 2 of the memorandum.
50 Ibid., at 3^4.
51 On the background to this draft provision see A. Clapham, ‘The Question of Jurisdiction Under
International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an
International Criminal Court’, in M. Kamminga and S. Zia-Zarifi (eds), Liability of Multinational
Corporations Under International Law (The Hague: Kluwer, 2000)139^195; Ambos, supra note 33,
475^493; Eser, in Cassese et al. (eds), supra note 33, 767^822, at 779, and the references therein.

Extending International Criminal Law 915
relevant article, which was considered by governments at the Rome
Conference, included the following provisions:
Charges may be filed by the Prosecutor against a juridical person, and the Court may
render a judgement over a juridical person for the crime charged, if:
(a) The charges filed by the Prosecutor against the natural person and the juridical
person allege the matters referred to in subparagraphs (b) and (c); and
(b) The natural person charged was in a position of control within the juridical
person under the national law of the State where the juridical person was registered
at the time the crime was committed; and
(c) The crime was committed by the natural person acting on behalf of and with
the explicit consent of that juridical person and in the course of its activities; and
(d) The natural person has been convicted of the crime charged. 52
The idea that a relevant natural person must first be convicted is not
usually paralleled in national legislation, nor is it found in all international
treaties, but the concept of key agents or a ‘directing mind’ can be seen in
certain international treaties that seek to encourage the criminalization of
acts by legal entities. For example, Article 18 of the Criminal Convention
on Corruption adopted in the context of the Council of Europe reads:
1. Each party shall adopt such legislative and other measures as may be necessary to ensure
that legal persons can be held liable for the criminal offences of active bribery, trading in
influence and money laundering established in accordance with this Convention, committed
for their benefit and by any natural person, acting either individually or as part of
an organ of the legal person, who has a leading position within the legal person, based on:
^ a power of representation of the legal person; or
^ an authority to take decisions on behalf of the legal person; or
^ an authority to exercise control within the legal person;
as well as for involvement of such a natural person as accessory or instigator in the above
mentioned offences.
2. Apart from the cases already provided for in paragraph 1, each Party shall take the
necessary measures to ensure that a legal person can be held liable where the lack of
supervision or control by a natural person referred to in paragraph 1 has made possible the
commission of the criminal offences mentioned in paragraph 1 for the benefit of that legal
person by a natural person under its authority.
3. Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings
against natural persons who are perpetrators, instigators of, or accessories to, the
criminal offences mentioned in paragraph 1.
Article 1(d) of the Convention states ‘‘‘legal person’’ shall mean any entity
having such status under the applicable national law, except for States or other
public bodies in the exercise of State authority and for public international
organizations.’
52 UN Doc. A/Conf.183/C.1/WGGP/L.5/Rev.2, 3 July 1998 (footnote omitted).

916 JICJ 6 (2008), 899^926
We might also consider the issue at the level of the European Union where a
Joint Action, two Conventions and Protocols on corruption have been
adopted. 53 The European Union texts take us a little further, in that they list
the sorts of penalties which Member States are expected to impose on legal
persons convicted of corruption. The list is interesting as it goes beyond sanctions
foreseen in other international texts. Consider the Article from the Joint
Action:
Sanctions for legal persons
1. Each Member State shall take the necessary measures to ensure that a legal person
held liable pursuant to Article 5(1) is punishable by effective, proportionate and
dissuasive sanctions, which shall include criminal or non-criminal fines and may
include other sanctions such as:
(a) exclusion from entitlement to public benefits or aid;
(b) temporary or permanent disqualification from the practice of commercial
activities;
(c) placing under judicial supervision;
(d) a judicial winding up order.
2. Each Member State shall take the necessary measures to ensure that a legal person
held liable pursuant to Article 5(2) is punishable by effective, proportionate and
dissuasive sanctions or measures.
Not all treaties turn on the behaviour of a relevant individual. The 2003 UN
Convention Against Corruption simply demands that states address the liability
of legal persons, allowing that such liability can be criminal, civil or administrative,
while stating that whether the sanctions are criminal or non-criminal
they must be effective. 54
Indeed a focus on individual representatives or authorities or controlling
minds is not the exclusive route to finding corporations guilty of international
53 Joint Action of 22 December 1998 adopted by the Council on the basis of Art. K.3 of the Treaty
on European Union, on corruption in the private sector, OJ L 358, 31, 12, 1998, at 2^4.
Convention on the Fight against Corruption involving Officials of the European Communities
or Officials of Member States of the European Union, OJ C 195, 25 June 1997, at 2^11;
Convention on the protection of the European Communities financial interests, OJ C 316, 27
November 1995, at 49^57.
54 For a fuller discussion including references to treaties such as the 1999 UN Convention for the
Suppression of the Financing of Terrorism and the UN Convention Against Transnational
Organized Crime (2000), see my book Human Rights Obligations of Non-State Actors, supra note
6, at 247^252. See also the discussion on this point by Cassel, supra note 30, xx 42^49 (online
edition) who highlights the preference for criminal prosecution of legal persons under the
OECD Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions Art. 3(2).
55
Although a federal criminal investigation has begun against Anvil Mining for complicity in ICC
crimes in the Democratic Republic of Congo, there remains some ambiguity concerning whether
the ICC crimes can be pursued against corporations and whether there needs to be some jurisdictional
link with Australia. See further J. Kyriakakis, ‘Australian Prosecution of Corporations for

Extending International Criminal Law 917
crimes. The Australian federal criminal law has included both the crimes in the
ICC Statute and a new approach to criminal liability for corporate actors. 55
Joanna Kyriakakis has highlighted the difficulties connected to any supposed
need to first find an individual perpetrator: ‘the commonly opaque nature of
accountability within corporate structures, the expendability of individuals,
the practice of corporate separation of those responsible for past violations
and those responsible for preventing future offences, as well as the safe harbouring
within corporations of individual suspects’. 56
If we consider the Australian code, we can see a new specially adapted sort
of criminal mens rea for the corporate entity:
12.3 Fault elements other than negligence
1. If intention, knowledge or recklessness is a fault element in relation to a physical
element of an offence, that fault element must be attributed to a body corporate that
expressly, tacitly or impliedly authorised or permitted the commission of the
offence.
2. The means by which such an authorisation or permission may be established
include:
(a) proving that the body corporate’s board of directors intentionally, knowingly or
recklessly carried out the relevant conduct, or expressly, tacitly or impliedly
authorised or permitted the commission of the offence; or
(b) proving that a high managerial agent of the body corporate intentionally, knowingly
or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly
authorised or permitted the commission of the offence; or
(c) proving that a corporate culture existed within the body corporate that directed,
encouraged, tolerated or led to non-compliance with the relevant provision; or
(d) proving that the body corporate failed to create and maintain a corporate culture
that required compliance with the relevant provision.
3. Paragraph (2)(b) does not apply if the body corporate proves that it exercised due
diligence to prevent the conduct, or the authorisation or permission.
4. Factors relevant to the application of paragraph (2)(c) or (d) include:
(a) whether authority to commit an offence of the same or a similar character had
been given by a high managerial agent of the body corporate; and
(b) whether the employee, agent or officer of the body corporate who committed the
offence believed on reasonable grounds, or entertained a reasonable expectation,
that a high managerial agent of the body corporate would have authorised or
permitted the commission of the offence.
5. If recklessness is not a fault element in relation to a physical element of an offence,
subsection (2) does not enable the fault element to be proved by proving that the
board of directors, or a high managerial agent, of the body corporate recklessly
engaged in the conduct or recklessly authorised or permitted the commission of
the offence.
6. In this section:
board of directors means the body (by whatever name called) exercising the executive
authority of the body corporate.
56 Ibid., at 825.

918 JICJ 6 (2008), 899^926
corporate culture means an attitude, policy, rule, course of conduct or practice existing
within the body corporate generally or in the part of the body corporate in which the
relevant activities takes place.
high managerial agent means an employee, agent or officer of the body corporate with
duties of such responsibility that his or her conduct may fairly be assumed to represent the
body corporate’s policy.
12.4 Negligence
1. The test of negligence for a body corporate is that set out in section 5.5.
2. If:
(a)
(b)
negligence is a fault element in relation to a physical element of an offence;
and
no individual employee, agent or officer of the body corporate has that fault
element; that fault element may exist on the part of the body corporate if the
body corporate’s conduct is negligent when viewed as a whole (that is, by
aggregating the conduct of any number of its employees, agents or officers).
3. Negligence may be evidenced by the fact that the prohibited conduct was substantially
attributable to:
(a)
(b)
inadequate corporate management, control or supervision of the conduct of
one or more of its employees, agents or officers; or
failure to provide adequate systems for conveying relevant information to
relevant persons in the body corporate.
We might also mention here the recent Corporate Manslaughter and Corporate
Homicide Act, parts of which entered into force in the United Kingdom on
6 April 2008. This legislation provides the framework for the prosecution of
corporations for manslaughter where the entity’s activities amount to a gross
breach of the relevant duty of care and causes a person’s death. The legislation
was prompted by the problems associated with finding a controlling mind so
the new mens rea requirements are worth detailing here. The Act states that:
An organisation is guilty of an offence under this section only if the way in which its
activities are managed or organised by its senior management is a substantial element in
the breach [of the duty of care]. ...a breach of a duty of care by an organisation is a ‘‘gross’’
breach if the conduct alleged to amount to a breach of that duty falls far below what can
reasonably be expected of the organisation in the circumstances;
(c) ‘senior management’, in relation to an organisation, means the persons who play significant
roles in ^
i. the making of decisions about how the whole or a substantial part of its activities
are to be managed or organised, or
ii. the actual managing or organising of the whole or a substantial part of those
activities. 57
As long as there is no international criminal court with jurisdiction over legal
persons, we are unlikely to see an unambiguous international standard
57 Section 1(4).

Extending International Criminal Law 919
develop which details the requisite mental engagement of a company before it
can be said to have committed an international crime. For the moment the field
is likely to develop according to those national jurisdictions which are among
the first to try corporations for international crimes. Several arguments were
raised above in favour of liability developing beyond the traditional need for a
relevant individual perpetrator, so that corporations could be found liable due
to a failure in their systems. Perhaps the overwhelming argument in this vein
is that: ‘Rules of liability should encourage management to have a preventive
system.’ 58
5. Emerging Practice Concerning Rebel Groups,
Paramilitaries and Political Parties
As already mentioned above, the ICC Statute did not, in the end, include jurisdiction
over non-natural persons. The Working Group, that drafted various
proposals, had in mind not only the prospect of prosecutions of corporate
entities but also of political parties or even racist groups. Of course such a
move was in part inspired by the fact that the International Military Tribunal
in Nuremberg in 1946 had declared criminal certain organizations under its
Statute; 59 and the move was partly rejected precisely because the declarations
against the organizations had been used to prosecute individuals for membership
of such groups. 60 According to Bassiouni: ‘To impose international criminal
responsibility merely for passive membership in an organization stretches
the generally accepted principles of criminal responsibility found in most legal
systems. Such a proposition would be tantamount to guilt by association which
most legal systems reject as fundamentally unfair.’ 61 Despite the absence of
58 C. Wells, Corporations and Criminal Responsibility (2nd edn., Oxford: Oxford University Press,
2001), 157.
59 The IMT declared the following organization to be criminal under Art. 9 of its Statute: the
Leadership Corps of the Nazi Party, the Gestapo, SD, and the SS. According the James Owen:
‘The French and Soviets had grave concerns about such corporate and retrospective declarations
of guilt’. Owen refers to ‘an avalanche of affadavits ^ more than 190,000 of them’. J. Owen,
Nuremeberg:EvilonTrial(London: Headline Review, 2006), 13.
60 See Arts 9 and 10 IMT Statute. It is worth noting the following passage from the Judgment:
‘A criminal organisation is analogous to a criminal conspiracy in that the essence of both is
cooperation for criminal purposes. There must be a group bound together and organized for a
common purpose. The group must be formed or used in connection with the commission of
crimes denounced by the Charter. Since the declaration with respect to the organisations and
groups will, as has been pointed out, fix the criminality of its members, that definition should
exclude persons who had no knowledge of the criminal purposes or acts of the organisation
and those who were drafted by the State for membership, unless they were personally implicated
in the commission of acts declared criminal byArticle 6 of the Charter as members of the
organisation. Membership alone is not enough to come within the scope of these declarations.’
61 M.C. Bassiouni (ed.), International Criminal Law. Volume 1: Crimes (2nd edn., Ardsley:
Transnational, 1999), 24. For detail on some of the proposed legislation being developed in
order to criminalize membership of certain terrorist groups listed by the United Nations and
the European Union, see A. Bianchi, ‘Security Council’s Anti-terror Resolutions and their

920 JICJ 6 (2008), 899^926
jurisdiction over organizations as such before the existing international criminal
tribunals, the possibility of an international criminal law supplying obligations
for rebel groups should not, however, be ruled out.
While the practice concerning the criminalization of individual members of
rebel groups under international law is now well-established (with regards to
inter alia war crimes and crimes against humanity 62 ), the question of whether
the groups as such can be said to have violated international criminal law
remains, however, under explored. 63 Before we embark on such an exercise
one might legitimately ask: what is the point of extending international criminal
law to rebel groups? Unlike corporations rebel groups are unlikely to have
assets in their names, they may be less concerned about reputational damage,
and their activities are, in any event, illegal under the national law of the state
they are fighting against. Furthermore, to the extent that assisting such groups
ought to be dealt with through criminal law, the work of the Security Council
and the European Union may be already filling this space by listing certain
groups, individuals and demanding the freezing of assets and other restrictions
such as travel bans. 64 I would, however, suggest that the enquiry is worth
pursuing for three reasons.
Implementation by Member States’, 4 Journal of International Criminal Justice (2006) 1044^1073,
at 1053^104.
62 Some commentators suggest that the extension to the non-state sphere is limited: ‘The nonstate
actors who are now covered by these extensions are those who have the same characteristics
of state actors. Thus, these non-state actors must have some of the characteristics of state
actors, [such] as the exercise of dominion or control over territory or people, or both, and the
ability to carry out a‘‘policy’’similar in nature to that of ‘‘state action or policy’’’. Bassiouni (ed.),
supra note 61, at 27. For Bassiouini, it is the underlying policy that ‘distinguishes ‘‘crimes
against humanity’’committed by non-state actors from crimes within the domestic jurisdiction
of the state where the crimes in question occurred’. Bassiouini notes, however, that the
Genocide Convention applies specifically to non-state actors.
63 To the extent that national law proscribes belonging to certain groups and allows for criminal
prosecution for such membership this flows from the national law rather than the violation of
international criminal law by the group concerned. Issues of joint criminal enterprise and
complicity, as they relate to assisting a group to commit an international crime, have been
outlined in the sections on complicity supra. In the United Kingdom, a number of groups have
been proscribed, and under the Terrorism Act 2000 it is an offence to belong to or encourage
support such groups. The UK Home Office site gives a description of each group (http://
www.homeoffice.gov.uk/security/terrorism-and-the-law/terrorism-act/proscribed-groups; visited
20 April 2008).
64 See further A. Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-terrorism
Measures: The Quest for Legitimacy and Cohesion’, 17 European Journal of International Law
(2006) 881^919; also, Bianchi, supra note 61, at 1044^1073 and B. Fassbender, ‘Targetted
Sanctions and Due Process’ (2006), available at http://www.un.org/law/counsel/
Fassbender_study.pdf (visited 20 April 2008). For the EU’s most recent amendment to its own
list, see ‘Commission Regulation (EC) No 220/2008 of 11 March 2008’ amending for the 93rd
time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed
against certain persons and entities associated with Usama bin Laden, the Al-Qaida network
and the Taliban.’ OJ L 68/11, 12 March 2008; See further http://ec.europa.eu/
external_relations/cfsp/sanctions/measures.htm#Terrorist_groups (visited 20 April 2008).

Extending International Criminal Law 921
First, as we have seen, corporate liability may depend on finding a third party
to be implicated in international criminal activity.Whether or not the rebels as
primary perpetrators are actually tried, their responsibility under international
law may be essential for any finding of third party complicity in such violations.
Second, the activities of bodies such as the Security Council, the Special
Representative of the Secretary-General for Children in Armed Conflict, and
the Office of the High Commissioner for Human Rights depend in part on
naming and shaming rebel groups for violating international norms. Third,
the incentives for compliance by rebels may be more extensive than is commonly
assumed. Let me briefly deal with each of these suggestions in turn.
A recent complaint brought against Chiquita for complicity in crimes
against humanity, war crimes and torture allegedly committed with a paramilitary
organization (the United Self-Defence Committees of Columbia (AUC)) in
Colombia illustrates the point. We have here a suit under the ATS which
depends on proving that the protection money offered by Chiquita facilitated
international crimes committed by the group (rather than showing that the
crimes were committed by any one or more individuals). 65 The suit builds on
the fact that Chiquita pled guilty in March 2007 to engaging in transactions
with a specially designated global terrorist group. The company’s sentence
includes a $25 million criminal fine. Other suits have been brought against
Chiquita for contributing to the deaths of individuals at the hands of a rebel
group, the Revolutionary Armed Forces of Columbia (FARC). 66 Whether or not
these suits are successful, and regardless of whether or not they are determined
by reference to international criminal law, the point remains that there
will be situations where the victims of international crimes committed by
armed groups may need to rely on the notion that an armed group can
commit violations of international criminal law (even if this is only as a way
to recover reparation from a corporate accomplice).
A further example of a third party being accused of complicity in an international
crime being committed by an armed opposition group is the suit
brought against Libya for complicity in the international crimes committed by
the Provisional Irish Republican Army (PIRA). The suit alleges inter alia in
Count IX that the:
313. PIRA bombings utilized Semtex as the primary explosive ingredient against the Alien
Plaintiffs and the unarmed British population constitute crimes against humanity in violation
of the law of nations ....
319. Throughout the 1980s and 1990s, this campaign by the PIRA was widespread and
systematic against the civilian population.
320. Libya, through its officials, employees, and agents including but not limited to defendants
Qadhafi, Senoussi, Kusa, Ashour, and Bazelya, knowingly, intentionally and directly
65 John Doe et al v. Chiquita Brands International, United States District Court at the District of New
Jersey, filed 18 July 2007.
66 C. Gentile,‘Families Sue Chiquita in Deaths of 5 Men’, NewYork Times, 17 March 2008.

922 JICJ 6 (2008), 899^926
aided and abetted, intentionally facilitated, and/or recklessly disregarded crimes against
humanity in violation of the law of nations. 67
The complaint goes on to allege the supply of arms and ammunition, training,
training facilities, and a base of operations within Libya. And the complaint
also alleges that Libya knew that its provision of arms etc. would ‘be used to
carry out crimes against humanity against the civilian populations in Great
Britain and Northern Ireland by the PIRA’. 68 We can see then, that, in this
context, an essential link in the legal argumentation is that the PIRA, as such,
committed international crimes. Knowingly assisting such a group then
becomes a violation of international law. If international criminal law were
confined to violations committed by individuals, one would have to find an
individual responsible for the alleged international crimes, rather than showing
that the PIRA through its claims and agents had committed the same crimes.
Turning to the issue of UN monitoring, space does not permit a detailed
account of how the human rights mechanisms are addressing the human
rights abuses committed by non-state actors. 69 I will concentrate here, however,
on one particular sector. The United Nation’s work on children in armed
conflict has led to an innovative approach which details violations by non-state
actors. Reports by the UN Secretary-General on certain situations now list the
non-state actors concerned and whether or not they are involved in any of six
sets of what are called ‘grave violations’:
(i) killing or maiming of children;
(ii) recruiting or using child soldiers;
(iii) attacks against schools or hospitals;
(iv) rape or other grave sexual violence against children;
(v) abduction of children; and
(vi) denial of humanitarian access for children.
The UN Secretary-General’s report explains that these violations are based
on international norms, and commitments that have been made by the parties
to the conflict, and national laws and peace agreements. 70 Subsequent reports
on Sudan, Co“ te d’Ivoire, Chad, Democratic Republic of Congo, Uganda, Somalia,
Nepal, Sri Lanka and Burundi (2006) have detailed the ‘grave violations of
children’s rights’committed by the non-state actors concerned. 71 These reports
67 Class Action, McDonald et al. v. The Socialist People’s Libyan Arab Jamahiriya, US District Court for
the District of Columbia, filed 21 April 2006.
68 Ibid., x322.
69 I have dealt with some of the recent practice of the OHCHR and some of the Human Rights
Council’s Special Procedures in ‘Human Rights Obligations of Non-state Actors in Conflict
Situations’, 88 International Review of the Red Cross (2006) 491^523.
70 UN Doc. S/2005/72.
71S/2007/758,SriLanka;S/2007/686,Burundi;S/2007/666,Myanmar;S/2007/515,Co“ te d’Ivoire; S/
2007/520, Sudan; S/2007/400, Chad; S/2007/391, Democratic Republic of the Congo; S/2007/260,
Uganda; S/2007/259, Somalia; S/2006/1007, Nepal; S/2006/1006, Sri Lanka; S/2006/851,
Burundi; S/2006/835, Co“ te d’Ivoire; S/2006/662, Sudan; S/2006/389, Democratic Republic of
the Congo.

Extending International Criminal Law 923
dedicate as much, if not more, space to the violations committed by the nonstate
actors as they do to addressing the states concerned. The mechanism visa'
-vis the non-state actor works not only through naming and shaming but by
encouraging the non-state actor to submit an ‘action plan’ to the Security
Council, in this way the group can be removed from the list of violators. One
group that has supplied such an action plan and claims to no longer be
a violator is the Forces Nouvelles (FAFN) in Co“ te d’Ivoire. The Security Council
has in mind that it could adopt ‘country-specific resolutions, targeted and
graduated measures, such as, inter alia, a ban on the export and supply of
small arms and light weapons and of other military equipment and on military
assistance, against parties to situations of armed conflict which are on the
Security Council’s agenda and are in violation of applicable international law
relating to the rights and protection of children in armed conflict’. 72 The
assumption here is that the non-state party to the conflict is violating international
law. Although the reports are hazy (to put it gently) on which norms of
international law are actually being violated, and make very little reference to
international criminal law, the prospect of follow-up sanctions by the Security
Council is premised on the idea that these groups have violated international
law, and not simply a set of moral imperatives.
Third, in addition to the threat of sanctions imposed by the Security Council,
or indeed the threat of individual prosecution at the ICC, rebel groups may have
other reasons for seeking to be seen to abide by apparent international obligations.
The work of Geneva Call in engaging armed groups in ‘Deeds of
Commitment’ regarding a ‘total ban on anti-personnel mines and for cooperation
in mine action’ can provide some insights. 73 First, rebel groups realize the
advantages of being seen to abide by international norms in the context of
moves towards peace negotiations; second, it is much easier to criticize governments
and their armed forces for committing international crimes if the group
has policies in place to avoid and punish such crimes; third, factions may be
able to distinguish themselves from other armed groups and thus ‘get ahead’ in
terms of dialogue with the government or other actors; 74 lastly in some circumstances
entering into commitments not to violate international norms
related to, say, anti-personnel mines, may give access to assistance from the
international community in the form of mine clearance. 75
72 UN Doc. S/RES/1612 (2005), 26 July 2005, x 9.
73 I have dealt with this in some detail in Human Rights of Non-State Actors, supra note 6, at
291^299.
74 ‘Groups that seek legitimacy, international support, and involvement in the political process
could be rewarded for compliance with the laws of war.’ ‘Report on an Interdisciplinary
Seminar on Transnational and Non-State Armed Groups: Empowered Groups, Tested Laws,
and Policy Options’, Program on Humanitarian Policy and Conflict Research at Harvard
University and Graduate Institute of International Studies Geneva (2007), at 31 of the printed
version.
75 And, as pointed out by Jane’s Intelligence Digest, non-state actors place their mines in ‘strategic
places instead of creating larger, coherent minefields’. Because they are less likely to mark their
mines they ‘may have a bigger humanitarian impact than mines placed on a country’s borders’,
16 November 2007.

924 JICJ 6 (2008), 899^926
Of course it is precisely because the application of international norms seems
to herald some sort of legitimacy that governments may be resistant to the
extension of international criminal law to groups as such. I have so far resisted
setting out the traditional law relating to belligerents, insurgents and national
liberation movements. The use of these categories and the formal steps needed
to trigger international obligations in this context seem to have fallen into
disuse. 76 It seems unlikely that there will be formal recognition of insurgencies
in the near future. Governments are more interested in painting their opponents
as criminal elements or terrorists rather than insurgents or rebels (indeed
that word ‘rebel’ even has a sort of rallying romantic ring to it). In the contemporary
world, governments are loath to consider their opponents as having
obligations as such; governments believe this will elevate their opponents to
some sort of legal subjectivity, triggering, not only obligations, but also extra
rights for those seeking to undermine or overthrow them. The influential commentator
William Safire recently wrote about the problem with regard to Iraq.
General Peter Pace, chairman of the Joint Chiefs of Staff, at Rumsfeld’s side, said that U.S.,
Iraqi and coalition forces were ‘taking cities from the - I have to use the word ’insurgent’
because I can’t think of a better word right now ...’ Rumsfeld quickly put in,‘Enemies of the
legitimate Iraqi government - how’s that?’
Insurgent, from the Latin insurgere, ‘to rise up,’ means ‘a rebel, one who revolts against an
established government.’ The insurgent in rebellion does not have the status of a belligerent,
rooted in Latin for ‘waging war,’and thus does not have the protections in law of a member
of a state at war. Why, then, was Rumsfeld eager to get away from the term insurgent? One
reason, I think, is that the word has gained more of a political connotation than a legal one
in the United States; it is often applied to a group seeking to oust the leadership of a political
party or a union, and insurgents in that context can refer to admirable ‘underdogs’ in a
struggle against the established order or entrenched leadership. Another reason: it unifies
disparate elements into an ‘insurgency’. 77
Words matter. If the capacity to bear international law obligations depends,
in part, on being recognized as insurgents, we will loose the opportunity to
influence the entities that are the vehicles for the commission of international
crimes. Even if armed opposition groups may not be fined in court, or dissolved
like corporations, it may make sense to consider them as the bearers of international
obligations under international criminal law. Several scholars have
provided theoretical models for generating international obligations on rebel
groups. 78 These include arguments about customary international law, treaty
law concerning the consensual obligations of third parties, practical necessity,
76 See the discussion in Human Rights Obligations of Non-State Actors, supra note 6, at 271^286.
77 ‘Language: Insurgent irresponsiveness’, International Herald Tribune, 16 January 2006.
78 S. Sivakumaran, ‘Binding Armed Opposition Groups’, 55 International and Comparative Law
Quarterly (2006) 369^394; M. Sasso' li, Transnational Armed Groups and International
Humanitarian Law (Harvard University: Program on Humanitarian Policy and Conflict
Research, 2006), esp at 14; K. Nowrot, ‘International Legal Personality of Influential Non-State
Actors: Towards A Rebuttable Presumption of Normative Responsibilities’, 80 Philippines Law
Journal (2006) 563^586, at 580^586; L. Zegveld, Accountability of Armed Opposition Groups in
International Law (Cambridge: Cambridge University Press, 2002); A. Cassese, ‘The Status of

Extending International Criminal Law 925
reciprocity, effectiveness, the needs of the international community, succession
to state obligations through effective exercise of sovereignty, purported representation
of legislative jurisdiction by national authorities, and a plain text
reading of treaty provisions such as common Article 3 to the Geneva Conventions
of 1949. 79 But writing in his authoritative Handbook of International
Humanitarian Law, Dieter Fleck has simply suggested that to ask how armed
opposition groups can be bound by international law is ‘overly complicating
a fundamental principle: international treaties are not concluded on behalf
of governments, but on behalf of states lawfully representing all their
citizens. Customary international law is based on practice and opinio iuris of
states and binding upon peoples. General principles of law have likewise binding
effects upon individuals’. 80 The same Handbook includes the assertion by
Christopher Greenwood that:
The obligations created by international humanitarian law apply not just to states but
to individuals and to non-state actors such as a rebel faction or secessionist movement
in a civil war. The application to non-state actors of human rights treaties is more
problematic and even if they may be regarded as applicable in principle, the enforcement
machinery created by human rights treaties can normally be invoked only in proceedings
against a state. 81
The obligations on states and non-state actors are by no means identical,
but we can see that such commentary rather suggests that first, we no longer
need to search for a theoretical foundation for fixing international obligations
on armed opposition groups; and second, the obligations are not limited
to international humanitarian law but can be expressed in terms of international
criminal law. 82 If it is admitted that human rights law may apply
in principle, it is difficult to see why one would exclude international
Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’, 30 International
and Comparative Law Quaterly (1981) 416^439.
79 On Common Art. 3, see UK Ministry of Defence,TheManualoftheLawofArmedConflict(Oxford:
Oxford University Press, 2004), 385, esp. note 19: ‘This purports to bind all parties, both states
and insurgents, whether or not the latter have made any declaration of intent to apply the
principles.’
80 D. Fleck (ed.), ‘The Law of Non-International Armed Conflicts’, in The Handbook of Humanitarian
Law in Armed Conflict (2nd edn., Oxford: Oxford University Press, 2007), 603^633, at 608. See
also D. Fleck,‘Humanitarian Protection Against Non-State Actors’, in J.A. Frowein, K. Scharioth,
I. Winkelmann and R. Wolfrum (eds), Verhandeln fu«r den Frieden - Negotiating for Peace: Liber
Amicorum Tono Eitel (Berlin: Springer, 2003), 69^94.
81 ‘Scope of Application of Humanitarian Law’, in Fleck (ed.), supra note 80, 45^78 at 76. See also
Institute de Droit International, ‘L’application du droit international humanitaire et des droits
fondamentaux de l’homme dans les conflits arme¤s auxquels prennent part des entite¤s none¤tatiques:
re¤solution de Berlin du 25 aou“ t 1999’ (commentary by Robert Kolb) (Paris: Pedone, 2003).
82 ‘As for punishing violations, international criminal law is as applicable to those fighting for
armed groups as to those fighting for states. Armed groups are responsible for violations
committed by their members. Their responsibility to the international community has already
been demonstrated by sanctions imposed on them by the Security Council.’ M. Sasso' li,
‘Engaging Armed Nonstate Actors with International Humanitarian Law’, 6 Human Security
Bulletin (2008) 15^18.

926 JICJ 6 (2008), 899^926
criminal law, such as the obligations associated with crimes against humanity
and genocide. The extent to which other crimes such as torture, enforced
disappearances, or the recruitment of children into an armed group, represent
international obligations for the armed group as such has been subject to
debate. It is suggested that the better view is that, just as we have moved
away from the assumption that ‘companies cannot commit offences’,
we should no longer assume that armed opposition groups have no obligations
beyond those established through international humanitarian law. Put more
positively, we are witnessing a series of developments in legal and political
fora at the international level that suggest that corporations have international
obligations ç particularly in the field of international criminal law. We
are also in the presence of legal and other activity premised on the idea
that armed opposition groups violate international criminal law. Old
assumptions are giving way to new realities.