Extending International Criminal Law beyond the Individual to ...

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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).
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