Extending International Criminal Law beyond the Individual to ...

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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.
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