Extending International Criminal Law beyond the Individual to ...

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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.
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