Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition...

Electronic copy available at httpssrncomabstract=1338066

WORKSHOP

CORPORATE CRIMINAL LIABILITY NEW DEVELOPMENTS IN

INTERNATIONAL CRIMINAL LAW

Extending InternationalCriminal Law beyond theIndividual to Corporationsand Armed OppositionGroups

Andrew Clapham

AbstractThis article argues that corporations and armed opposition groups have obligationsunder international law It is suggested that the scope of the obligations turnson the capacity of the entities in question While there may be no internationalcourt to hear complaints against such entities understanding their legal obligationsunder international law is important in situations where national courts havejurisdiction over violations of international law committed by non-state actorsFurthermore it is vital to realizing the potential of claims of corporate complicityin international crimes and the impact such claims may have in the field of ethicalinvestment

1 IntroductionThis article challenges a number of traditional assumptions about inter-national criminal law It is often assumed that international criminal law isexclusively addressed to crimes committed by individuals1 Moreover one oftencomes across the assumption that only subjects of international law can enjoy

Professor of Public International Law Graduate Institute of International and DevelopmentStudies Geneva Director Geneva Academy of International Humanitarian Law and HumanRights Member Board of Editors of this Journal I am very grateful to Fiona Le Diraison for hermarvelous research assistance

Journal of International Criminal Justice 6 (2008) 899^926 doi101093jicjmqn076 Oxford University Press 2008 All rights reserved For permissions please email journalspermissionsoxfordjournalsorg


international obligations And recourse to the maxim societas delinquere nonpotest prompts one to assume that there is an established (even classical)notion (even principle) that lsquocompanies cannot commit an offencersquo2

Anyone who doubts the power of these assumptions need only go on-linefor a few minutes The maxim societas delinquere non potest even has its ownWikipedia page (albeit in Spanish)3 The provenance of the maxim is invokednot only to refute the development of laws which would criminalize corporateconduct but also to suggest that the maxim leads to the conclusion thatit would be lsquoimpracticablersquo to prosecute state crimes under international law4

Even for those such as Gaetano Arangio-Ruiz who sought to go aroundthe maxim in the context of state crimes under international law the assump-tive power of the maxim exerted full force with regard to national law5 It istherefore vital to be clear when discussing the topic of crimes committed byentities that are not individuals whether we are talking about internationalor national legal orders Not only are the rules different but the assumptionsmay be differentThe complexity of this topic is compounded by the fact that the comple-

mentarity principle introduced by the Statute of the International CriminalCourt (ICC) has coloured how we think about international criminal lawAs we shall see the inability of some lawyers from some national legalorders to conceive of entities that are not individuals as having obligationsunder criminal law has meant that a complementary international criminaljurisdiction was inconceivable This article will argue that such assumptionsand complexities notwithstanding international criminal law is developingobligations that reach beyond the individualRather than attempting a simple paradigm shift which replaces one set of

assumptions with another set of new more appropriate assumptions themethod employed here will be to present a narrative that highlights howcorporations and armed groups are being addressed by international law andinternational bodies In some instances we shall examine how such entities

1 For example GWerle Principles of International Criminal Law (The Hague TMC Asser Press2005) at 35

2 lsquoThe traditional principle embodied in the Latin maxim societas delinquere non potest (compa-nies cannot commit an offence) continues to be reflected in the laws of some states such asFrance Germany and Austria where corporate criminal liability applies in only limited circum-stances and generally on a more restrictive basis than the lsquolsquoidentification theoryrsquorsquo of Anglo-Canadian lawrsquo lsquoLegislative Summaries LS-457E Canadarsquo Bill C-45 An Act to Amend theCriminal Code (Criminal Liability of Corporations) prepared by David Coetz 3 July 2003 Fora discussion of the influence of the lsquorulersquo in Switzerland see P Graven and Ch-A JunodlsquoSocietas delinquere potestrsquo in Mecurren langes Robert Patry (Lausanne Payot 1988) 351^365

3 httpeswikipediaorgwikiSocietas_delinquere_non_potest (visited 23 October 2008)4 lsquoFurthermore as early as in the Roman times the theory of criminal law already affirmed that

lsquolsquosocietas delinquere non potestrsquorsquo It is impracticable to attempt the prosecution of State lsquolsquocrimesrsquorsquorsquoStatement by Ms Xue Hanqin (China) on Agenda Item 159 (ILC) UNGA 23 October 2000

5 UN Doc ACN4SR2315 Summary Records of the 45th Session of the ILC 2315th meeting1 July 1993 xx 45^46

900 JICJ 6 (2008) 899^926

have been held judicially accountable for violations of international law albeitusually through national jurisdictions Before we turn to these developmentswe should however briefly canvass some of the doctrinal ideas that continueto influence our thinking

2 The Subject of Subjects and the Question ofInternational Legal Personality6

James Brierly in his quest to reduce the focus on the state and emphasize therights and obligations of individuals that make up the state attacked the doc-trine which sought to exclude other actors from subjectivity and he playedwith the concept of personality

Even the state great and powerful institution as it is can never express more than a part ofour personalities only that part which finds expression in the purpose or purposes forwhich the state exists and however important these purposes may be however true itmay be that they are in a sense the prerequisite condition of other human activities in asociety they never embrace the whole of our lives7

Brierly asks us to suspend our belief in the sanctity of subjectivity and sharpenour senses

If therefore we approach the question of the subjects of international law with a trueperception of what the personality of states entails it becomes difficult to believe thatthere can be anything sacrosanct about a practice which treats states as the subjects ofthe international community It is not a principle but essentially a rule of expediency andmainly a rule of procedure89

Brierly foresaw other entities becoming subjects of international law just aslsquothe law of any state has for its subjects both individuals and institutionsrsquo10 andhis depiction of the assumption that states are the exclusive subjects of inter-national law as a lsquorule of procedurersquo is particularly helpful in our contextInternational criminal law operates before multiple tribunals with differentjurisdictions and rules Although all the international tribunals established so

6 The following sections draw on my book Human Rights Obligations of Non-State Actors (OxfordOxford University Press 2006)

7 JL Brierly lsquoThe Basis of Obligation in International Lawrsquo in H Lauterpacht and CHMWaldock(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 atthe Hague Academy of International Law in 1928 lsquoLe Fondement du caracte re obligatoire dudroit internationalrsquo 23 Recueil des Cours (1928) iii

8 Sovereignty Seisen And the Leaguersquo 7 Fischer Williams lsquoSovereignty Seisen And the LeaguersquoBritishYear Book of International Law (1926) 23 (footnote in the original)

9 Brierly supra note 7 at 51 Cited in part and discussed by JE Nijman The Concept ofInternational Legal Personality An Inquiry Into the History and Theory of International Law (TheHague TMC Asser Press 2004) 146

10 Brierly supra note 7 at 52

Extending International Criminal Law 901

far have had rules that make individuals the sole subjects of their jurisdictionwe can imagine any one of these tribunals being adjusted so that it mayexercise its jurisdiction over non-natural persons (such as political parties orother legal persons) At this point the exclusion of non-natural persons can beseen as the consequence of a lsquorule of procedurersquo rather than the inevitableresult of application of international criminal law11

In addition to seeing subjectivity as a procedural problem we might arguethat the effectiveness principle has a role to play If international law is to beeffective everyone should be prohibited from assisting governments in violat-ing those principles or indeed from violating such principles themselves Let usnow see how this idea that corporations should be prohibited from assistinggovernments in violating international law is playing out in practice This ideahas become known as lsquocorporate complicityrsquo and has generated considerableinterest in various sectors

3 Corporate ComplicityBefore looking at the scope of corporate complicity under international lawlet us first ask ourselves how the complicity concept came to play such aprominent role I would suggest that there are a few developments thatstand outFirst as human rights organizations became more interested in reporting on

the behaviour of multinational corporations they found themselves confrontedwith a legal conundrum Unlike ethical investors or those in the corporatesocial responsibility movement international human rights organizationsprided themselves on their law-based methodology Moreover they based allhuman rights reporting on violations of international law These violationswere usually expressed in terms of violations of human rights treaties whichthe relevant state had ratified The legal methodology did not seem suited tocomplaining about the behaviour of corporations Amnesty InternationalrsquosHuman Rights Principles for Companies (1998) included a policy recommenda-tion that companies should ensure that personnel are never lsquocomplicitrsquo inhuman rights abuses12 Without radically altering the traditional understand-ing of human rights law groups such as Human Rights Watch argued thatalthough the corporations did not have obligations as parties to the humanrights treaties the states they were operating in did have such obligations and

11 Brierlyrsquos insights from 1928 again bear repeating here lsquoIncomparably the greatest threat topeace in the modern world lies in the growing tendency of governments to place the power ofthe state behind the private economic interests of their nationals and thus to identify theinterests of a few powerful individuals with the interests of the whole country It is unfortunatethat international law should continue to provide a theoretical justification for this dangerouspractice by its stubborn adherence to an unreal conception of international societyrsquo Ibid at 53

12 lsquoCompanies should establish procedures to ensure that all operations are examined for theirpotential impact on human rights and safeguards to ensure that company staff are nevercomplicit in human rights abusesrsquoAI Index ACT 700198

902 JICJ 6 (2008) 899^926

the behaviour of the corporations could be seen as contributing to violations bythose states and so it made sense to talk about the corporations being compli-cit in such violations13

The notion that companies and those that invest in such companiesshould avoid being tainted with complicity was in the air as a vehicle forcampaigning against companies Amnesty Internationalrsquos report on Sudanquoted Alan G Hevesi Comptroller of the City of New York Pension Fundsand a shareholder in Talisman Energy

I believe a company that is doing business in a country under a repressive regime must notprovide financing or other resources for the perpetuation of wrongdoing or atrocities Aslong-term investors we believe a company that is cavalier about its moral and socialresponsibility presents an unacceptable investment risk The expanding divestment cam-paign against Talisman Energy for alleged complicity in the horrors in Sudan is just oneindication of that risk14

Ten years later we find that ethical investors such as Norwayrsquos sovereignwealth fund the lsquoThe Government Pension Fund ^ Globalrsquo will screen outand disinvest from corporations where there is an unacceptable risk ofcontributing to corporate complicity in violations of international law15 TheEthical Guidelines explain in paragraph 44

The Council shall issue recommendations on negative screening of one or severalcompanies on the basis of production of weapons that through their normal use mayviolate fundamental humanitarian principles The Council shall issue recommendationson the exclusion of one or several companies from the investment universe because ofacts 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 individualsrsquo rights in situations of war or conflict

Severe environmental damages

Gross corruption

Other particularly serious violations of fundamental ethical norms16

The concept of contribution leading to complicity was most recently explainedby the Fundrsquos Advisory Council on Ethics with regard to the question of invest-ment in the company Total in the context of Totalrsquos alleged complicity in

13 See eg Human Rights Watch The Price of Oil Corporate Responsibility and Human RightsViolations in Nigeriarsquos Oil Producing Areas (NY HRW 1999) and The Enron CorporationCorporate Complicity in Human RightsViolations (NY HRW 1999)

14 lsquoSudan The Human Price of Oilrsquo AI Index AFR 540012000 3 May 2000 the reference for thequote is lsquoLetter written by Alan G Hevesi to Mr James Buckee president and chief executiveofficer of Talisman Energy September 27 1999rsquo

15 S Chesterman lsquoThe Turn to Ethics Disinvestment from Multinational Corporations for HumanRights Violations - The Case of Norwayrsquos Sovereign Wealth Fundrsquo 23 American UniversityInternational Law Review (2008) 577^615

16 The Ethical Guidelines Norwegian Government Pension FundccedilGlobal issued 22 December2005


human rights violations committed by the Myanmar Government The relianceon complicity again emerges from the perceived need to find a link back to alsquosubjectrsquo of human rights obligations

Only states can violate human rights directly Human rights are legally binding rulesregulating the relationship between the state and the individual and are designed toensure that everyone within the jurisdiction of a state is guaranteed all political civileconomic social and cultural rights by that state States are the only subjects of legalduties under the international human rights conventions and are thus as thegeneral rule the only parties able to guarantee and hence also violate the human rights ofindividuals Companies can as indicated in paragraph 44 contribute to human rightsviolations committed by states The Fund may in its turn contribute to companiesrsquo compli-city through its ownership It is such complicity in a statersquos human rights violations whichis to be assessed under this provision Paragraph 44 states that the Council may recom-mend exclusion of companies lsquobecause of acts or omissions that constitute an unacceptable riskof contributing to rsquo This wording must be understood in such a way that it is the actionsor omissions of the company in question that can provide a basis for exclusion not those ofthe state concerned17

The second development was that in 1999 the UN Secretary-General KofiAnnan launched the Global Compact with a speech in Davos He addressedbusiness leaders in the following terms

You can uphold human rights and decent labour and environmental standards directly byyour own conduct of your own business Indeed you can use these universal values as thecement binding together your global corporations since they are values people all over theworld will recognize as their ownYou can make sure that in your own corporate practicesyou uphold and respect human rights and that you are not yourselves complicit in humanrights abuses18

The Global Compact was developed the following year and its first two princi-ples were announced as follows Principle 1 businesses should support andrespect the protection of internationally proclaimed human rights andPrinciple 2 make sure that they are not complicit in human rights abuses Inthe lsquolearning forumrsquo that grew up around the Compact considerable time andenergy was then spent on considering what was meant by complicity in thiscontext19

Third the growing number of cases being litigated under the AlienTort 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 Fund14 November 2005 (footnote omitted)

18 Press Release SGSM6881 1 February 199919 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 httpwwwunglobalcompactorgdocsissues_dochuman_rightsembeddingpdf(visited 23 October 2008) See also M Jungk Complicity in Human Rights ViolationsA Responsible Business Approach to Suppliers (Copenhagen Danish Institute for HumanRights 2006)

904 JICJ 6 (2008) 899^926

United States Federal Courts has focused attention on the scope of complicityin this context The ATS confers upon the federal district courts originaljurisdiction over lsquoany civil action by an alien for a tort only committedin violation of the law of nationsrsquo (28 USC section 1350) But these casesare riddled with complexity In order to show that the corporation has com-mitted a violation of international law it may be necessary to show thatthere was a degree of state action or that the corporation acted underlsquocolour of lawrsquo As soon as the plaintiffs can show this the defendants start toargue that the courts should refuse to hear the case because there is too muchstate action Two separate arguments are emerging The first concerns a lsquocom-batant activities exceptionrsquo According to a recent ruling

The policy underlying the FTCArsquos [Federal Tort Claims Act] combatant activities exception isthat the military ought be lsquofree from the hindrance of a possible damage suitrsquo based on itsconduct of battlefield activities Johnson 170 F2d at 769 In this respect the policy echoesthe Supreme Courtrsquos admonition that lsquo[i]t would be difficult to devise a more effectivefettering of a field commander than to allow the very enemies he is ordered to reduce tosubmission to call him to account in his own civil courts and divert his efforts and attentionfrom the military offensive abroad to the legal defensive at homersquo Johnson v Eisentrager 339US 763 778 (1950)20

As the claim is argued as a tort under the law of nations claimants may needto show state action or lsquoofficial complicityrsquo in order to show that the acts wereviolations of the law of nations A second jurisdictional argument now appearsAt this point jurisdictional blockers pop-up again in a rather paradoxical formThe greater the official complicity the harder will it be to avoid claims that thecase has to be dismissed on political grounds In the words of Judge Robertsonin the same case concerning Abu Ghraib lsquoAnd the more plaintiffs assert officialcomplicity in the acts of which they complain the closer they sail to thejurisdictional limitation of the political question doctrinersquo21

Let us however leave to one side the jurisdictional rules and concentrate onsome recent rulings concerning the scope of complicity in violations of inter-national criminal law in general and in particular complicity in war crimescrimes against humanity and genocideIt is perfectly possible to bring a suit against a corporation for violating

international law as the principal perpetrator and suits have indeed beenbrought for example with regard to allegations of violations of internationallaw including torture and inhuman or degrading treatment committed bycontractors providing interpretation and interrogation services to the UnitedStates at Abu Ghraib prison in Iraq22 More recently a case has been filed also

20 Order of 6 November 2007 Ibrahim et al v Titan et al and Saleh et al v Titan et al US DistrictCourt for the District of Columbia James Robertson US District Judge Case 1 05-cv-01165-JRat 7

21 Order of 26 June 2006 Saleh et al v Titan Corp 436 FSupp2d 55 at 522 For the background see the Order of 6 November 2007 Ibrahim et al v Titan et al and Saleh

et al v Titan et al supra note 21


against Blackwater alleging war crimes under the ATS in connection with thekilling of civilians on 16 September 200723

In the simple situation where a corporationrsquos activities actually constitutegenocide slavery or war crimes the issue is clear The corporation will haveviolated international criminal law and can be held accountable in the UScourts under ATS The US courts have been gradually refining the list of viola-tions of the lsquolaw of nationsrsquo that attach to non-state actors as such Accordinglyrecent rulings have determined that genocide slave trading slavery forcedlabour and war crimes are actionable even in the absence of any connectionto state action24 In addition according to the Kadic v Karadzic judgment in theUS courts where rape torture and summary execution are committed in iso-lation these crimes lsquoare actionable under the Alien Tort Act without regard tostate action to the extent they were committed in pursuit of genocide or warcrimesrsquo25 An alien can sue in tort before the US Federal Courts under the ATSAct with regard to any of these international crimes In fact the list is notexclusive as international criminal law continues to evolve Most recently theAppeals Chamber of the International Criminal Tribunal for the formerYugoslavia (ICTY) suggested that there is no need for a public official to beinvolved for a private individual to be responsible under international law forthe international crime of torture26

But such simple cases of a corporation being sued in the US Courts underthe ATCA as the primary perpetrator of such international crimes are rareand in any event would be likely to be settled out of court if the facts wereclear Most of the cases that have recently been contested before the UnitedStatesrsquo courts concern situations where corporations are alleged to have aidedand abetted a state in governmental violations of international criminal law27

Other cases turn on money paid by corporations to paramilitaries in the con-text of war crimes and crimes against humanity28 In other words the cases

23 See Abtan et al v Blackwater Worldwide et al Case 107-cv-01831 (RBW) filed 26 November2007

24 Wiwa v Royal Dutch Shell Petroleum (Shell) 28 February 2002 US District Court for theSouthern District of New York at 39 See also Doe I v Unocal Corporation 18 September 2002at x3 et seq

25 Kadic v Karadzic 70 F 3d 232 at 243^244 (2d Cir 1995) cited with approval in Doe v Unocal2002 supra note 24 x3

26 lsquoTheTrial Chamber in the present case was therefore right in taking the position that the publicofficial requirement is not a requirement under customary international law in relation to thecriminal responsibility of an individual for torture outside of the framework of the TortureConventionrsquo Judgment Kunarac (IT-96-23-A) Appeals Chamber 12 June 2002 x148

27 We might note here the findings in the report lsquoOn the Margins of Profit Rights at Risk in theGlobal Economyrsquo by Human RightsWatch and the Centre for Human Rights and Global Justicewhich stated that lsquoit is important to focus as much on corporate ties with third parties thatcommit abuse (such as suppliers or government security forces) as on cases in which busi-nesses themselves directly cause harmrsquo Human Rights Watch Reports February 2008 Vol 20No 3(G) at 2

28 See eg John Doe et al v Chiquita Brands International complaint before the US District Court ofNew Jersey dated 18 July 2007 (discussed below in the section on armed groups)

906 JICJ 6 (2008) 899^926

turn on accomplice liability or complicity29 The most developed jurisprudencehas turned on the concept of complicity in international criminal law to whichwe now turn30

4 Complicity in International Criminal LawLet us consider how the complicity article in the ICC Statute has been consid-ered in the context of recent litigation under the ATS In the recent ruling fromthe US Court of Appeals for the Second Circuit in the case of Khulumani vBarclay National Bank Ltd Ntsebeza v Daimler Chysler Corp Judge Katzmannset out his appreciation of the complicity rule under that treaty and suggestedthat this test was the appropriate one to be used in the context of claims in theFederal Court concerning corporate complicity in violations of internationallaw under the ATS Katzmann reminds us why complicity is so crucial in thiscontext it allows a claim to be made against a corporation for a violation of thelaw of nations that would often normally require state action In his words

Recognizing the responsibility of private aiders and abettors merely permits private actorswho substantially assist state actors to violate international law and do so for the purpose offacilitating the unlawful activity to be held accountable for their actions It is of no momentthat a private actor could be held liable as an aider and abettor of the violation of a normrequiring state action when that same person could not be held liable as a principal In ourdomestic law it is lsquowell settled that one may be found guilty of aiding and abetting anotherindividual in his violation of a statute that the aider and abettor could not be chargedpersonally with violatingrsquo In re Nofziger 956 F2d 287 290 (DC Cir 1992) see also UnitedStates v Tannenbaum 934 F2d 8 14 (2d Cir 1991) (lsquoThe fact that the accused does notpossess the legal capacity to commit the substantive offense does not mean that he cannotbe convicted of aiding and abetting the commission of the substantive offense byanother Thus the inability to commit the substantive offense is immaterialrsquo (citationsomitted)) Indeed lsquo[t]he doctrine is of ancient originrsquo Nofziger 956 F2d at 291International law too recognizes that criminality is assessed by reference to the actions ofthe principal not the aider and abettor See Akayesu Trial Chamber Judgment 528 (lsquo[I]tshould be understood that the physical act which constitutes the act of complicity does nothave its own inherent criminality but rather it borrows the criminality of the act com-mitted by the principal perpetrator of the criminal enterprise The accomplice has notcommitted an autonomous crime but has merely facilitated the criminal enterprise com-mitted by anotherrsquo31

It is enough that the corporation is complicit in a violation of international lawby 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 ofJuristsrsquo Expert Legal Panel on Corporate Complicity in International Crimes

30 For a careful review of the US case law see D Cassel lsquoCorporate Aiding and Abetting of HumanRights Violations Confusion in the Courtsrsquo 6 Northwestern University Journal of InternationalHuman Rights (2008) 304 at httpwwwlawnorthwesternedujournalsjihrv6n24Casselpdf (visited 28 April 2008)

31 Khulumani v Barclay National Bank Ltd Ntsebeza v Daimler Chysler Corp US Court of Appealsfor the Second Circuit 12 October 2007 05-2141-cv 05-2326-cv at 46^47


would normally have as such It can be a governmental obligation The nextquestion concerns the requisite intention of the corporate entity to be consid-ered complicit under international criminal law Judge Katzmann reviewedthe 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 otherwiseassists in its commission or its attempted commission including providing the means for itscommission [or](d) In any other way contributes to the commission or attempted commission of such acrime by a group of persons acting with a common purpose Such contribution shall beintentional and shall either

i Be made with the aim of furthering the criminal activity or criminal purpose of thegroup where such activity or purpose involves the commission of a crime withinthe 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 othersources of international legislation it articulates the mens rea required for aiding and abet-ting liability The Statute makes clear that other than assistance rendered to the commis-sion of a crime by a group of persons acting with a common purpose a defendant is guiltyof aiding and abetting the commission of a crime only if he does so lsquo[f]or the purpose offacilitating the commission of such a crimersquo Id art 25 (3)(c) In drawing upon the RomeStatute I recognize that it has yet to be construed by the International Criminal Court itsprecise contours and the extent to which it may differ from customary international lawthus remain somewhat uncertain32

Two points need highlighting First the Judge does not address the issue ofassistance to a group of persons acting with a common purpose (Article25(3)(d) ICC Statute) In such a case no lsquopurposersquo is required by the personassisting The Statute simply requires lsquoknowledge of the intention of thegrouprsquo Second the absence of practice based on the 25(3)(c) assistance test inthe ICC Statute does indeed suggest that the customary international law testmay indeed be found elsewhere ie in the decisions of the ad hoc TribunalsIt is suggested here that it is not necessary to see the ICC and the customarystandard as divergent The better view is to see the ICC provisions onaccessories as a whole incorporating some of the ideas concerning contribu-tion to a group crime or joint criminal enterprise Let us consider these pointsin 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 commonpurpose is similar to the joint criminal enterprise doctrine developed by

32 Ibid at 36

908 JICJ 6 (2008) 899^926

the ICTY It has been suggested that this indirect form of participation lsquomaycover acts that in the Yugoslavia Tribunalrsquos case law warranted liability forparticipation in a joint criminal enterprisersquo33 The ICTY has explained itsapproach in a number of cases with the general argument first being articu-lated in the Tadiccurren case where the Tribunal explained that criminal liabilityextends in this way beyond those who physically commit the abuseslsquoAlthough only some members of the group may physically perpetrate thecriminal act (murder extermination wanton destruction of cities towns orvillages etc) the participation and contribution of the other members of thegroup is often vital in facilitating the commission of the offence in question Itfollows that the moral gravity of such participation is often no less ccedil or indeedno different ccedil from that of those actually carrying out the acts in questionrsquo34

The Appeals Chamber has more recently summarized the types of joint crim-inal enterprise under three headings all of the co-perpetrators possess thesame intent to effect the common purpose a lsquosystemicrsquo form where the perpe-trators have personal knowledge of the organized criminal system and a thirdlsquoextendedrsquo form where crimes are committed beyond the common purpose butwhich are a natural and foreseeable consequence of this common purpose35

This type of participation in the crime requires one to identify two differentintentions According to the ICC Statute we need first an intentional contribu-tion and second knowledge of the intention of the group The secondaryparticipant or in our case the complicit corporation can either intend tofurther the crime or simply intentionally contribute with knowledge of theothersrsquo intention to commit the crime The Statute is complex in this regard butit does admit that one can be criminally liable even where one only has knowl-edge 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 liabilitypresents a threshold for a different seemingly less engaged state of mind andcan be likened to joint criminal enterprise

In this regard the Chamber notes that by moving away from the concept of co-perpetrationembodied in article 25(3)(a) article 25(3)(d) defines the concept of (i) contribution to thecommission or attempted commission of a crime by a group of persons acting with acommon purpose (ii) with the aim of furthering the criminal activity of the group or inthe knowledge of the criminal activity of the group or in the knowledge of the criminalpurpose

33 GWerle lsquoIndividual Criminal Responsibility in Article 25 ICC Statutersquo 5 Journal of InternationalCriminal Justice (2007) 953^975 at 974^975 See also E van Sliedregt The CriminalResponsibility of Individuals forViolations of International Humanitarian Law (The Hague TMCAsser Press 2003) at 41^115 A Eser lsquoIndividual Criminal Responsibilityrsquo in A CasseseP Gaeta and JRWD Jones (eds) The Rome Statute of the International Criminal Court ACommentary (Oxford Oxford University Press 2002) 767^822 WA Schabas lsquoEnforcingInternational Humanitarian Law Catching the Accomplicesrsquo 83 International Review of the RedCross (2001) 439^459 K Ambos lsquoArticle 25rsquo in O Triffterer (ed) Commentary on the RomeStatute of the International Criminal Court (Baden-Baden Nomos 1999) 475^493

34 JudgmentTadiccurren (IT-94-1-A) Appeals Chamber 15 July 1999 x19135 Judgment Kvocrsaquo ka (IT-98-301-A) Appeals Chamber 28 February 2005 xx81^83


335 The Chamber considers that this latter concept ^ which is closely akin to the concept ofjoint criminal enterprise or the common purpose doctrine adopted by the jurisprudence ofthe ICTY ^ would have been the basis of the concept of co-perpetration within the meaningof Article 25(3)(a) had the drafters of the Statute opted for a subjective approach fordistinguishing between principals and accessories

336 Moreover the Chamber observes that the wording of article 25(3)(d) of the Statutebegins with the words lsquo[i]n any other way contributes to the commission or attemptedcommission of such crimersquo

337 Hence in the view of the Chamber article 25(3)(d) of the Statute provides for a residualform of accessory liability which makes it possible to criminalise those contributions to acrime which cannot be characterized as ordering soliciting inducing aiding abetting orassisting within the meaning of article 25(3)(b) or article 25(3)(c) of the Statute by reason ofthe state of mind in which the contributions were made36

The Chamberrsquos more general comments on knowledge and intention are alsoworth mentioning here as they represent the only authoritative reading of theICC Statute The Chamber is clear that Article 30rsquos references to intent andknowledge cover three types of dolus first dolus directus of the first degree ccedilthe suspect knows that his or her actions will bring about the objective ele-ments of the crime and undertakes such actions aware that their actions willbring about such elements as a necessary outcome Second dolus directus ofthe second degree ^ the suspect without the concrete intent to bring about theobjective elements of the crime is aware that such elements will be the neces-sary outcome of their actions Third dolus eventualis ccedil the suspect is aware ofthe risk of objective elements resulting from their actions and accepts such anoutcome by reconciling themselves to it The ICC Pre-Trial Chamber then addsa further layer of clarification

353 The Chamber considers that in the latter type of situation two kinds of scenarios aredistinguishable Firstly if the risk of bringing about the objective elements of the crime issubstantial (that is there is a likelihood that it lsquowill occur in the ordinary course of eventsrsquo)the fact that the suspect accepts the idea of bringing about the objective elements of thecrime can be inferred from

i the awareness by the suspect of the substantial likelihood that his or her actions oromissions 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 suchawareness

354 Secondly if the risk of bringing about the objective elements of the crime is low thesuspect must have clearly or expressly accepted the idea that such objective elements mayresult from his or her actions or omissions

355 Where the state of mind of the suspect falls short of accepting that the objectiveelements of the crime may result from his or her actions or omissions such a state ofmind cannot qualify as a truly intentional realization of the objective elements and hence

36 Decision on the Confirmation of Charges Lubanga (ICC-0104-0106) Pre-Trial Chamber I 29January 2007

910 JICJ 6 (2008) 899^926

would not meet the lsquointent and knowledgersquo requirement embodied in article 30 of theStatute

These statements set out the limits of the minimal intention necessary for afinding of responsibility under the Rome Statute While corporations will notbe tried at the ICC we have already seen in the context of the USAppeals Courtthat the Statute has become the starting point for understanding corporatecomplicityWe 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 itaccepts that its actions may lead to elements of the crime occurring and itcontinues to act it has the requisite mental involvement to give rise to aresidual form of corporate complicity in international crimes We might addthat the structure of the ICC Statute and the Chamberrsquos reasoning imply thatthe group of persons being assisted commit lsquoa crimersquo Therefore it is conceivedthat lsquoa crimersquo is committed by lsquoa grouprsquo The lsquorule of procedurersquo prevents theCourt from trying the group as such ccedil but a crime has indeed apparently beencommitted 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 interna-tional legislation is less helpful in identifying a specific standard However in the course ofits analysis of customary international law the ICTYconcluded that lsquothe actus reus of aidingand abetting in international criminal law requires practical assistance encouragement ormoral support which has a substantial effect on the perpetration of the crimersquo FurundzijaTrial Chamber Judgment 235 (second emphasis added) My research has uncoverednothing to indicate that a standard other than lsquolsquosubstantial assistancersquorsquo should applyAccordingly I conclude that a defendant may be held liable under international law foraiding and abetting the violation of that law by another when the defendant (1) providespractical assistance to the principal which has a substantial effect on the perpetration of thecrime and (2) does so with the purpose of facilitating the commission of that crimeFurthermore based on this review of international lawrsquos treatment of aiding and abettingliability over the past sixty years I conclude that aiding and abetting liability so defined issufficiently lsquowell-established[] [and] universally recognizedrsquo to be considered customaryinternational law for the purposes of the ATCA37

A first question arises what does lsquosubstantialrsquo mean in this context Thecorporate complicity context is often concerned with issues of presencein war zones The case law from the ad hoc Tribunals has dealt with theissue of contribution through presence but these cases are really aboutencouragement through presence rather than the economic dimension ofpresence38

37 Khulumani supra note 31 at 38^3938 Judgment Kvocrsaquo ka (IT-98-301-T)Trial Chamber 2 November 2001 xx 253^257


The point developed by the case law of the two ad hoc Tribunals is thatalthough presence was a factor in finding moral encouragement the cases allconcerned people who were in a superior or official position or in Tadiccurren some-one who was actually present or in the vicinity of the torture and abuseIt would be misleading simply to infer that corporate presence in a countrycan be assimilated to the presence of a superior in the vicinity of the torturesceneThe 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 byGerhardWerle that while accomplices need to be aware that their contributionis supporting the commission of the crime they do not need to share theparticular intent of the principal perpetrator39

C Complicity for International Crimes at the National Level

The reach of the complicity concept under international criminal law is devel-oping an influence beyond the cases and controversies that arise in interna-tional courts and tribunals In the wake of the adoption of the Rome Statutemany national jurisdictions have revised their criminal law to facilitate trialsfor international crimes In van Anraat the Dutch courts tried and convicted abusinessman for complicity as an accessory to violations of the laws and cus-toms of war in the context of his supply of chemicals to Iraq which could beused as precursors for the production of mustard gas The Counts related to theuse of chemical weapons in Halabja (and other sites) in Iraq in 1988 and theuse of chemical weapons in Khorramshar (and other sites) in Iran The caseraises interesting questions of the evidence needed to prove genocidal intent aswell as what sort of effect the assistance needs to have in order to find compli-city under Dutch or international law But this is not the place to analyse thesequestions The point I would like to highlight here is that the Court of Appealgoes out of its way to send a message to the corporate world and reach outbeyond the circle of individuals normally associated with war crimes Considerthis passage

Through his conscious contribution to the production of mustard gas in a country at warthe defendant knew under those circumstances that he was the one who supplied thematerial and created the occasion for the actual use of that gas in the sense that he wasvery aware of the fact that in the given circumstances the use of this gas could not andwould not fail to materialise In different words the defendant was very aware of the factthat ccedil lsquoin the ordinary cause [sic] of eventsrsquo ccedil the gas was going to be used In this respectthe 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 MontenegroInternational Court of Justice 26 February 2007 x 421 See also the Declaration of Judge Keithin that case at xx 5 and 6 The subjective levels of intent and knowledge are also discussed inEser in Cassese et al (eds) supra note 33767^822 at 798^803 For a detailed discussion on thesignificance of the word lsquopurposersquo in Art 25(3)(c) see Cassel supra note 30

912 JICJ 6 (2008) 899^926

relevant knowledge was aware of the ccedil also then known ^ unscrupulous character of thethen Iraqi regime40

In sentencing van Anraat to 17 yearsrsquo imprisonment the Court is explicit in itspurpose lsquoin fixing the appropriate punishment the Court has taken intoaccount the general prevention aspect People or companies that conduct(international) trade for example in weapons or raw materials used for theirproduction should be warned that ccedil if they do not exercise increased vigi-lance ccedil they can become involved in most serious criminal offencesrsquo41

International criminal law is no longer directed solely at government officialspolice officers soldiers and commanders in the armed forces it has seeminglyalready reached down into the world of the arms trade and its injunctions arebeing aimed at businessmen and companies This has been achieved primarilythrough the vehicle of complicity42

National legal orders have multiple variations on the extent to which theyhave been adapted to allow for prosecutions of legal persons for internationalcrimes This is not the place to engage in a comparative examination43

If we proceed to consider French law however we discover that the complicityconcept is again set to be the driver for the development of the applicationof criminal law beyond the individual Under French law we can see thatthe creation of criminal liability for non-individuals under the Penal Codehas become dependent on complicity with individual criminals in a mirror ofthe situation whereby the liability of non-state actors under internationallaw often depends on complicity with states The French Foreign Ministryhas helpfully explained the position in a memorandum It starts lsquoFrance haslong acknowledged (albeit with a two-century gap) both the criminal liabilityof legal entities and the extraterritoriality of certain laws that apply tothem in this regard Legal entities include private law legal entities bothfor-profit (companies partnerships) and non-profit (associations politicalparties trade unions etc) and public law legal entities with the exception of

40 Official translation International Law in Domestic Courts (ILDC) 753 (NL 2007) x111641 Ibid x1642 For an overview of the cases starting in the wake of SecondWorldWar see K Jacobson lsquoDoing

Business With the Devil The Challenges of Prosecuting Corporate Officials Whose BusinessTransactions Facilitate War Crimes and Crimes Against Humanityrsquo 56 Air Force Law Review(2005) 167^232

43 For a useful introduction see eg A Ramasastry and RC Thompson Legal Remedies for PrivateSector Liability for Grave Breaches of International Law A Survey of Sixteen Countries - ExecutiveSummary (Oslo Fafo-report 536 2006) which concludes that there is a practice of applyingcriminal liability in 11 of the countries surveyed Australia Belgium Canada France IndiaJapan The Netherlands Norway South Africa the United Kingdom and the United States infive of the countries surveyed there was no such recognition of criminal corporate liabilityArgentina Germany Indonesia Spain and the Ukraine The situation in Australia is high-lighted in particular 123 of the Australian Commonwealth Criminal Code (discussed subse-quently) which developed the concept of corporate culture See also International PeaceAcademy and Fafo AIS Business and International Crimes Assessing the Liability of BusinessEntities for GraveViolations of International Law (Oslo Fafo-report 467 2004)


the State and excluding public service delegationsrsquo44 French law howeveroften requires an explicit provision stating that legal persons may be liable forthe offence in question The memorandum explains lsquoThe criminal liabilityof legal entities is special insofar as specific provision must have been made toattribute the offence to them This principle was the result of pressurefrom political parties and associations who feared that they might otherwiseincur liability too easilyrsquo45 According to the memorandum new legislationhas46 however extended the criminal liability of legal entities lsquoto all offencesdefined in the Penal Code though paradoxically the express references to thecriminal liability of legal entities that previously featured in the Penal Codehave not been deletedrsquo47 Commentators often wonder how a corporation ora political party can commit offences such as sex crimes or be accused ofinternational crimes such as torture But a momentrsquos reflection makes it clearthat organizational complicity in such crimes is not an academic sleight ofhand but rather an obvious way to understand how legal entities have poten-tial liability for any crime on the books As the memorandum points outdefinitions of crimes offences need to be lsquoseen in the light of complicity asaccomplices legal entities are capable of committing all the offences containedin the Penal Codersquo48

Moreover legal entities may enjoy special obligations of due diligence thatmake them more easily open to charges of recklessness negligence or failure toexercise a special duty of care49 A further particularity of the criminal liabilityof legal entities is that particular provisions exist to bind the entity through theactions of its agents and organs The French memorandum explains lsquoThecriminal liability of legal entities remains indirect and personal since it pre-supposes that the offence has been committed lsquolsquoon their account by theirorgans or representativesrsquorsquo Consequently a legal entity may not be held liableif its manager acts on his own behalf or in his own personal interest or if theoffence is committed by an employee acting on his own initiativersquo50 This typeof agency test is mirrored in several jurisdictions around the world and wasinfluential in the aborted attempt in the Rome Diplomatic Conference toinclude legal entities within the jurisdiction of the ICC51 The last draft of the

44 lsquoRe Criminal liability of private law legal entities under French law and extra-territoriality ofthe laws applicable to them Review of the situation and discussion of issuesrsquo 5 June 2006Human Rights Coordination Mission at 1

45 Ibid at 246 Act 2004^204 of 9 March 2004 lsquoPerben IIrsquo deleting the phrase lsquoin the cases provided for by

statute and regulationrsquo from Art 121-2 of the Penal Code as of 31 December 200547 Memorandum lsquoRe Criminal liability of private law entitiesrsquo supra note 44 at 348 Ibid49 Art 121-3 of Penal Code discussed at 2 of the memorandum50 Ibid at 3^451 On the background to this draft provision see A Clapham lsquoThe Question of Jurisdiction Under

International Criminal Law Over Legal Persons Lessons from the Rome Conference on anInternational Criminal Courtrsquo in M Kamminga and S Zia-Zarifi (eds) Liability of MultinationalCorporations Under International Law (The Hague Kluwer 2000)139^195 Ambos supra note 33475^493 Eser in Cassese et al (eds) supra note 33767^822 at 779 and the references therein

914 JICJ 6 (2008) 899^926

relevant article which was considered by governments at the RomeConference included the following provisions

Charges may be filed by the Prosecutor against a juridical person and the Court mayrender a judgement over a juridical person for the crime charged if

(a) The charges filed by the Prosecutor against the natural person and the juridicalperson allege the matters referred to in subparagraphs (b) and (c) and

(b)The natural person charged was in a position of control within the juridicalperson under the national law of the State where the juridical person was regis-tered at the time the crime was committed and

(c) The crime was committed by the natural person acting on behalf of and withthe explicit consent of that juridical personand in the course of its activities and

(d) The natural person has been convicted of the crime charged52

The idea that a relevant natural person must first be convicted is notusually paralleled in national legislation nor is it found in all internationaltreaties but the concept of key agents or a lsquodirecting mindrsquo can be seen incertain international treaties that seek to encourage the criminalization ofacts by legal entities For example Article 18 of the Criminal Conventionon 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 ensurethat legal persons can be held liable for the criminal offences of active bribery trading ininfluence and money laundering established in accordance with this Convention com-mitted for their benefit and by any natural person acting either individually or as part ofan 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 abovementioned offences

2 Apart from the cases already provided for in paragraph 1 each Party shall take thenecessary measures to ensure that a legal person can be held liable where the lack ofsupervision or control by a natural person referred to in paragraph 1 has made possible thecommission of the criminal offences mentioned in paragraph 1 for the benefit of that legalperson by a natural person under its authority

3 Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceed-ings against natural persons who are perpetrators instigators of or accessories to thecriminal offences mentioned in paragraph 1

Article 1(d) of the Convention states lsquolsquolsquolegal personrsquorsquo shall mean any entityhaving such status under the applicable national law except for States or otherpublic bodies in the exercise of State authority and for public internationalorganizationsrsquo

52 UN Doc AConf183C1WGGPL5Rev2 3 July 1998 (footnote omitted)


We might also consider the issue at the level of the European Union where aJoint Action two Conventions and Protocols on corruption have beenadopted53 The European Union texts take us a little further in that they listthe sorts of penalties which Member States are expected to impose on legalpersons convicted of corruption The list is interesting as it goes beyond sanc-tions foreseen in other international texts Consider the Article from the JointAction

Sanctions for legal persons

1 Each Member State shall take the necessary measures to ensure that a legal personheld liable pursuant to Article 5(1) is punishable by effective proportionate anddissuasive sanctions which shall include criminal or non-criminal fines and mayinclude 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 personheld liable pursuant to Article 5(2) is punishable by effective proportionate anddissuasive sanctions or measures

Not all treaties turn on the behaviour of a relevant individual The 2003 UNConvention Against Corruption simply demands that states address the liabilityof legal persons allowing that such liability can be criminal civil or adminis-trative while stating that whether the sanctions are criminal or non-criminalthey must be effective54

Indeed a focus on individual representatives or authorities or controllingminds 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 K3 of the Treatyon European Union on corruption in the private sector OJ L 358 31 12 1998 at 2^4Convention on the Fight against Corruption involving Officials of the European Communitiesor Officials of Member States of the European Union OJ C 195 25 June 1997 at 2^11Convention on the protection of the European Communities financial interests OJ C 316 27November 1995 at 49^57

54 For a fuller discussion including references to treaties such as the 1999 UN Convention for theSuppression of the Financing of Terrorism and the UN Convention Against TransnationalOrganized Crime (2000) see my book Human Rights Obligations of Non-State Actors supra note6 at 247^252 See also the discussion on this point by Cassel supra note 30 xx 42^49 (onlineedition) who highlights the preference for criminal prosecution of legal persons under theOECD Convention on Combating Bribery of Foreign Public Officials in International BusinessTransactions Art 3(2)

55Although a federal criminal investigation has begun against Anvil Mining for complicity in ICCcrimes in the Democratic Republic of Congo there remains some ambiguity concerning whetherthe ICC crimes can be pursued against corporations and whether there needs to be some jurisdic-tional link with Australia See further J Kyriakakis lsquoAustralian Prosecution of Corporations for

916 JICJ 6 (2008) 899^926

crimes The Australian federal criminal law has included both the crimes in theICC Statute and a new approach to criminal liability for corporate actors55

Joanna Kyriakakis has highlighted the difficulties connected to any supposedneed to first find an individual perpetrator lsquothe commonly opaque nature ofaccountability within corporate structures the expendability of individualsthe practice of corporate separation of those responsible for past violationsand those responsible for preventing future offences as well as the safe har-bouring within corporations of individual suspectsrsquo56

If we consider the Australian code we can see a new specially adapted sortof criminal mens rea for the corporate entity

123 Fault elements other than negligence

1 If intention knowledge or recklessness is a fault element in relation to a physicalelement of an offence that fault element must be attributed to a body corporate thatexpressly tacitly or impliedly authorised or permitted the commission of theoffence

2 The means by which such an authorisation or permission may be establishedinclude

(a) proving that the body corporatersquos board of directors intentionally knowingly orrecklessly carried out the relevant conduct or expressly tacitly or impliedlyauthorised or permitted the commission of the offence or

(b)proving that a high managerial agent of the body corporate intentionally know-ingly or recklessly engaged in the relevant conduct or expressly tacitly or impli-edly authorised or permitted the commission of the offence or

(c) proving that a corporate culture existed within the body corporate that directedencouraged tolerated or led to non-compliance with the relevant provision or

(d) proving that the body corporate failed to create and maintain a corporate cul-ture that required compliance with the relevant provision

3 Paragraph (2)(b) does not apply if the body corporate proves that it exercised duediligence 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 hadbeen given by a high managerial agent of the body corporate and

(b)whether the employee agent or officer of the body corporate who committed theoffence believed on reasonable grounds or entertained a reasonable expectationthat a high managerial agent of the body corporate would have authorised orpermitted the commission of the offence

5 If recklessness is not a fault element in relation to a physical element of an offencesubsection (2) does not enable the fault element to be proved by proving that theboard of directors or a high managerial agent of the body corporate recklesslyengaged in the conduct or recklessly authorised or permitted the commission ofthe offence

6 In this section

board of directors means the body (by whatever name called) exercising the executiveauthority of the body corporate

56 Ibid at 825


corporate culture means an attitude policy rule course of conduct or practice existingwithin the body corporate generally or in the part of the body corporate in which therelevant activities takes place

high managerial agent means an employee agent or officer of the body corporate withduties of such responsibility that his or her conduct may fairly be assumed to represent thebody corporatersquos policy

124 Negligence

1 The test of negligence for a body corporate is that set out in section 552 If

(a) negligence is a fault element in relation to a physical element of an offenceand

(b) no individual employee agent or officer of the body corporate has that faultelement that fault element may exist on the part of the body corporate if thebody corporatersquos conduct is negligent when viewed as a whole (that is byaggregating the conduct of any number of its employees agents or officers)

3 Negligence may be evidenced by the fact that the prohibited conduct was substan-tially attributable to

(a) inadequate corporate management control or supervision of the conduct ofone or more of its employees agents or officers or

(b) failure to provide adequate systems for conveying relevant information torelevant persons in the body corporate

We might also mention here the recent Corporate Manslaughter and CorporateHomicide Act parts of which entered into force in the United Kingdom on6 April 2008 This legislation provides the framework for the prosecution ofcorporations for manslaughter where the entityrsquos activities amount to a grossbreach of the relevant duty of care and causes a personrsquos death The legislationwas prompted by the problems associated with finding a controlling mind sothe 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 itsactivities are managed or organised by its senior management is a substantial element inthe breach [of the duty of care] a breach of a duty of care by an organisation is a lsquolsquogrossrsquorsquobreach if the conduct alleged to amount to a breach of that duty falls far below what canreasonably be expected of the organisation in the circumstances(c) lsquosenior managementrsquo in relation to an organisation means the persons who play signifi-cant roles in ^

i the making of decisions about how the whole or a substantial part of its activitiesare to be managed or organised or

ii the actual managing or organising of the whole or a substantial part of thoseactivities57

As long as there is no international criminal court with jurisdiction over legalpersons we are unlikely to see an unambiguous international standard

57 Section 1(4)

918 JICJ 6 (2008) 899^926

develop which details the requisite mental engagement of a company before itcan be said to have committed an international crime For the moment the fieldis likely to develop according to those national jurisdictions which are amongthe first to try corporations for international crimes Several arguments wereraised above in favour of liability developing beyond the traditional need for arelevant individual perpetrator so that corporations could be found liable dueto a failure in their systems Perhaps the overwhelming argument in this veinis that lsquoRules of liability should encourage management to have a preventivesystemrsquo58

5 Emerging Practice Concerning Rebel GroupsParamilitaries and Political Parties

As already mentioned above the ICC Statute did not in the end include jur-isdiction over non-natural persons The Working Group that drafted variousproposals had in mind not only the prospect of prosecutions of corporateentities but also of political parties or even racist groups Of course such amove was in part inspired by the fact that the International Military Tribunalin Nuremberg in 1946 had declared criminal certain organizations under itsStatute59 and the move was partly rejected precisely because the declarationsagainst the organizations had been used to prosecute individuals for member-ship of such groups60 According to Bassiouni lsquoTo impose international crim-inal responsibility merely for passive membership in an organization stretchesthe generally accepted principles of criminal responsibility found in most legalsystems Such a proposition would be tantamount to guilt by association whichmost legal systems reject as fundamentally unfairrsquo61 Despite the absence of

58 C Wells Corporations and Criminal Responsibility (2nd edn Oxford Oxford University Press2001) 157

59 The IMT declared the following organization to be criminal under Art 9 of its Statute theLeadership Corps of the Nazi Party the Gestapo SD and the SS According the James OwenlsquoThe French and Soviets had grave concerns about such corporate and retrospective declara-tions of guiltrsquo Owen refers to lsquoan avalanche of affadavits ^ more than 190000 of themrsquo J OwenNuremeberg Evil on Trial (London Headline Review 2006) 13

60 See Arts 9 and 10 IMT Statute It is worth noting the following passage from the JudgmentlsquoA criminal organisation is analogous to a criminal conspiracy in that the essence of both iscooperation for criminal purposes There must be a group bound together and organized for acommon purpose The group must be formed or used in connection with the commission ofcrimes denounced by the Charter Since the declaration with respect to the organisations andgroups will as has been pointed out fix the criminality of its members that definition shouldexclude persons who had no knowledge of the criminal purposes or acts of the organisationand those who were drafted by the State for membership unless they were personally impli-cated in the commission of acts declared criminal byArticle 6 of the Charter as members of theorganisation Membership alone is not enough to come within the scope of these declarationsrsquo

61 MC Bassiouni (ed) International Criminal Law Volume 1 Crimes (2nd edn ArdsleyTransnational 1999) 24 For detail on some of the proposed legislation being developed inorder to criminalize membership of certain terrorist groups listed by the United Nations andthe European Union see A Bianchi lsquoSecurity Councilrsquos Anti-terror Resolutions and their


jurisdiction over organizations as such before the existing international crim-inal tribunals the possibility of an international criminal law supplying obliga-tions for rebel groups should not however be ruled outWhile the practice concerning the criminalization of individual members of

rebel groups under international law is now well-established (with regards tointer alia war crimes and crimes against humanity62) the question of whetherthe groups as such can be said to have violated international criminal lawremains however under explored63 Before we embark on such an exerciseone might legitimately ask what is the point of extending international crim-inal law to rebel groups Unlike corporations rebel groups are unlikely to haveassets in their names they may be less concerned about reputational damageand their activities are in any event illegal under the national law of the statethey are fighting against Furthermore to the extent that assisting such groupsought to be dealt with through criminal law the work of the Security Counciland the European Union may be already filling this space by listing certaingroups individuals and demanding the freezing of assets and other restrictionssuch as travel bans64 I would however suggest that the enquiry is worthpursuing for three reasons

Implementation by Member Statesrsquo 4 Journal of International Criminal Justice (2006) 1044^1073at 1053^104

62 Some commentators suggest that the extension to the non-state sphere is limited lsquoThe non-state actors who are now covered by these extensions are those who have the same character-istics of state actors Thus these non-state actors must have some of the characteristics of stateactors [such] as the exercise of dominion or control over territory or people or both and theability to carry out a lsquolsquopolicyrsquorsquosimilar in nature to that of lsquolsquostate action or policyrsquorsquorsquo Bassiouni (ed)supra note 61 at 27 For Bassiouini it is the underlying policy that lsquodistinguishes lsquolsquocrimesagainst humanityrsquorsquocommitted by non-state actors from crimes within the domestic jurisdictionof the state where the crimes in question occurredrsquo Bassiouini notes however that theGenocide Convention applies specifically to non-state actors

63 To the extent that national law proscribes belonging to certain groups and allows for criminalprosecution for such membership this flows from the national law rather than the violation ofinternational criminal law by the group concerned Issues of joint criminal enterprise andcomplicity as they relate to assisting a group to commit an international crime have beenoutlined in the sections on complicity supra In the United Kingdom a number of groups havebeen proscribed and under the Terrorism Act 2000 it is an offence to belong to or encouragesupport such groups The UK Home Office site gives a description of each group (httpwwwhomeofficegovuksecurityterrorism-and-the-lawterrorism-actproscribed-groups vis-ited 20 April 2008)

64 See further A Bianchi lsquoAssessing the Effectiveness of the UN Security Councilrsquos Anti-terrorismMeasures The Quest for Legitimacy and Cohesionrsquo 17 European Journal of International Law(2006) 881^919 also Bianchi supra note 61 at 1044^1073 and B Fassbender lsquoTargettedSanctions and Due Processrsquo (2006) available at httpwwwunorglawcounselFassbender_studypdf (visited 20 April 2008) For the EUrsquos most recent amendment to its ownlist see lsquoCommission Regulation (EC) No 2202008 of 11 March 2008rsquo amending for the 93rdtime Council Regulation (EC) No 8812002 imposing certain specific restrictive measures direc-ted against certain persons and entities associated with Usama bin Laden the Al-Qaida net-work and the Talibanrsquo OJ L 6811 12 March 2008 See further httpeceuropaeuexternal_relationscfspsanctionsmeasureshtmTerrorist_groups (visited 20 April 2008)

920 JICJ 6 (2008) 899^926

First as we have seen corporate liability may depend on finding a third partyto be implicated in international criminal activityWhether or not the rebels asprimary perpetrators are actually tried their responsibility under internationallaw may be essential for any finding of third party complicity in such violationsSecond the activities of bodies such as the Security Council the SpecialRepresentative of the Secretary-General for Children in Armed Conflict andthe Office of the High Commissioner for Human Rights depend in part onnaming and shaming rebel groups for violating international norms Thirdthe incentives for compliance by rebels may be more extensive than is com-monly assumed Let me briefly deal with each of these suggestions in turnA recent complaint brought against Chiquita for complicity in crimes

against humanity war crimes and torture allegedly committed with a parami-litary organization (the United Self-Defence Committees of Columbia (AUC)) inColombia illustrates the point We have here a suit under the ATS whichdepends on proving that the protection money offered by Chiquita facilitatedinternational crimes committed by the group (rather than showing that thecrimes were committed by any one or more individuals)65 The suit builds onthe fact that Chiquita pled guilty in March 2007 to engaging in transactionswith a specially designated global terrorist group The companyrsquos sentenceincludes a $25 million criminal fine Other suits have been brought againstChiquita for contributing to the deaths of individuals at the hands of a rebelgroup the Revolutionary Armed Forces of Columbia (FARC)66 Whether or notthese suits are successful and regardless of whether or not they are deter-mined by reference to international criminal law the point remains that therewill be situations where the victims of international crimes committed byarmed groups may need to rely on the notion that an armed group cancommit violations of international criminal law (even if this is only as a wayto recover reparation from a corporate accomplice)A further example of a third party being accused of complicity in an inter-

national crime being committed by an armed opposition group is the suitbrought against Libya for complicity in the international crimes committed bythe Provisional Irish Republican Army (PIRA) The suit alleges inter alia inCount IX that the

313 PIRA bombings utilized Semtex as the primary explosive ingredient against the AlienPlaintiffs and the unarmed British population constitute crimes against humanity in viola-tion of the law of nations 319 Throughout the 1980s and 1990s this campaign by the PIRA was widespread andsystematic against the civilian population320 Libya through its officials employees and agents including but not limited to defen-dants 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 NewJersey filed 18 July 2007

66 C Gentile lsquoFamilies Sue Chiquita in Deaths of 5 Menrsquo NewYork Times 17 March 2008


aided and abetted intentionally facilitated andor recklessly disregarded crimes againsthumanity in violation of the law of nations67

The complaint goes on to allege the supply of arms and ammunition train-ing training facilities and a base of operations within Libya And the complaintalso alleges that Libya knew that its provision of arms etc would lsquobe used tocarry out crimes against humanity against the civilian populations in GreatBritain and Northern Ireland by the PIRArsquo68 We can see then that in thiscontext an essential link in the legal argumentation is that the PIRA as suchcommitted international crimes Knowingly assisting such a group thenbecomes a violation of international law If international criminal law wereconfined to violations committed by individuals one would have to find anindividual responsible for the alleged international crimes rather than showingthat the PIRA through its claims and agents had committed the same crimesTurning to the issue of UN monitoring space does not permit a detailed

account of how the human rights mechanisms are addressing the humanrights abuses committed by non-state actors69 I will concentrate here how-ever on one particular sector The United Nationrsquos work on children in armedconflict has led to an innovative approach which details violations by non-stateactors Reports by the UN Secretary-General on certain situations now list thenon-state actors concerned and whether or not they are involved in any of sixsets of what are called lsquograve violationsrsquo

(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-Generalrsquos report explains that these violations are basedon international norms and commitments that have been made by the partiesto the conflict and national laws and peace agreements70 Subsequent reportson Sudan Coldquo te drsquoIvoire Chad Democratic Republic of Congo Uganda SomaliaNepal Sri Lanka and Burundi (2006) have detailed the lsquograve violations ofchildrenrsquos rightsrsquocommitted by the non-state actors concerned71 These reports

67 Class Action McDonald et al v The Socialist Peoplersquos Libyan Arab Jamahiriya US District Court forthe District of Columbia filed 21 April 2006

68 Ibid x32269 I have dealt with some of the recent practice of the OHCHR and some of the Human Rights

Councilrsquos Special Procedures in lsquoHuman Rights Obligations of Non-state Actors in ConflictSituationsrsquo 88 International Review of the Red Cross (2006) 491^523

70 UN Doc S20057271 S2007758 Sri Lanka S2007686 Burundi S2007666 Myanmar S2007515 Coldquo te drsquoIvoire S

2007520 Sudan S2007400 Chad S2007391 Democratic Republic of the Congo S2007260Uganda S2007259 Somalia S20061007 Nepal S20061006 Sri Lanka S2006851Burundi S2006835 Coldquo te drsquoIvoire S2006662 Sudan S2006389 Democratic Republic ofthe Congo

922 JICJ 6 (2008) 899^926

dedicate as much if not more space to the violations committed by the non-state actors as they do to addressing the states concerned The mechanism vis-a -vis the non-state actor works not only through naming and shaming but byencouraging the non-state actor to submit an lsquoaction planrsquo to the SecurityCouncil in this way the group can be removed from the list of violators Onegroup that has supplied such an action plan and claims to no longer bea violator is the Forces Nouvelles (FAFN) in Coldquo te drsquoIvoire The Security Councilhas in mind that it could adopt lsquocountry-specific resolutions targeted andgraduated measures such as inter alia a ban on the export and supply ofsmall arms and light weapons and of other military equipment and on militaryassistance against parties to situations of armed conflict which are on theSecurity Councilrsquos agenda and are in violation of applicable international lawrelating to the rights and protection of children in armed conflictrsquo72 Theassumption here is that the non-state party to the conflict is violating interna-tional law Although the reports are hazy (to put it gently) on which norms ofinternational law are actually being violated and make very little reference tointernational criminal law the prospect of follow-up sanctions by the SecurityCouncil is premised on the idea that these groups have violated internationallaw and not simply a set of moral imperativesThird 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 haveother reasons for seeking to be seen to abide by apparent international obliga-tions The work of Geneva Call in engaging armed groups in lsquoDeeds ofCommitmentrsquo regarding a lsquototal ban on anti-personnel mines and for coopera-tion in mine actionrsquo can provide some insights73 First rebel groups realize theadvantages of being seen to abide by international norms in the context ofmoves towards peace negotiations second it is much easier to criticize govern-ments and their armed forces for committing international crimes if the grouphas policies in place to avoid and punish such crimes third factions may beable to distinguish themselves from other armed groups and thus lsquoget aheadrsquo interms of dialogue with the government or other actors74 lastly in some cir-cumstances entering into commitments not to violate international normsrelated to say anti-personnel mines may give access to assistance from theinternational community in the form of mine clearance75

72 UN Doc SRES1612 (2005) 26 July 2005 x973 I have dealt with this in some detail in Human Rights of Non-State Actors supra note 6 at

291^29974 lsquoGroups that seek legitimacy international support and involvement in the political process

could be rewarded for compliance with the laws of warrsquo lsquoReport on an InterdisciplinarySeminar on Transnational and Non-State Armed Groups Empowered Groups Tested Lawsand Policy Optionsrsquo Program on Humanitarian Policy and Conflict Research at HarvardUniversity and Graduate Institute of International Studies Geneva (2007) at 31 of the printedversion

75 And as pointed out by Janersquos Intelligence Digest non-state actors place their mines in lsquostrategicplaces instead of creating larger coherent minefieldsrsquo Because they are less likely to mark theirmines they lsquomay have a bigger humanitarian impact than mines placed on a countryrsquos bordersrsquo16 November 2007


Of course it is precisely because the application of international norms seemsto herald some sort of legitimacy that governments may be resistant to theextension of international criminal law to groups as such I have so far resistedsetting out the traditional law relating to belligerents insurgents and nationalliberation movements The use of these categories and the formal steps neededto trigger international obligations in this context seem to have fallen intodisuse76 It seems unlikely that there will be formal recognition of insurgenciesin the near future Governments are more interested in painting their oppo-nents as criminal elements or terrorists rather than insurgents or rebels (indeedthat word lsquorebelrsquo even has a sort of rallying romantic ring to it) In the contem-porary world governments are loath to consider their opponents as havingobligations as such governments believe this will elevate their opponents tosome sort of legal subjectivity triggering not only obligations but also extrarights for those seeking to undermine or overthrow them The influential com-mentatorWilliam Safire recently wrote about the problem with regard to Iraq

General Peter Pace chairman of the Joint Chiefs of Staff at Rumsfeldrsquos side said that USIraqi and coalition forces were lsquotaking cities from the - I have to use the word rsquoinsurgentrsquobecause I canrsquot think of a better word right now rsquo Rumsfeld quickly put inlsquoEnemies of thelegitimate Iraqi government - howrsquos thatrsquoInsurgent from the Latin insurgere lsquoto rise uprsquo means lsquoa rebel one who revolts against anestablished governmentrsquo The insurgent in rebellion does not have the status of a belligerentrooted in Latin for lsquowaging warrsquoand thus does not have the protections in law of a memberof a state at warWhy then was Rumsfeld eager to get away from the term insurgent Onereason I think is that the word has gained more of a political connotation than a legal onein the United States it is often applied to a group seeking to oust the leadership of a politicalparty or a union and insurgents in that context can refer to admirable lsquounderdogsrsquo in astruggle against the established order or entrenched leadership Another reason it unifiesdisparate elements into an lsquoinsurgencyrsquo77

Words matter If the capacity to bear international law obligations dependsin part on being recognized as insurgents we will loose the opportunity toinfluence the entities that are the vehicles for the commission of internationalcrimes Even if armed opposition groups may not be fined in court or dissolvedlike corporations it may make sense to consider them as the bearers of inter-national obligations under international criminal law Several scholars haveprovided theoretical models for generating international obligations on rebelgroups78 These include arguments about customary international law treatylaw 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 271^28677 lsquoLanguage Insurgent irresponsivenessrsquo International Herald Tribune 16 January 200678 S Sivakumaran lsquoBinding Armed Opposition Groupsrsquo 55 International and Comparative Law

Quarterly (2006) 369^394 M Sasso li Transnational Armed Groups and InternationalHumanitarian Law (Harvard University Program on Humanitarian Policy and ConflictResearch 2006) esp at 14 K Nowrot lsquoInternational Legal Personality of Influential Non-StateActors Towards A Rebuttable Presumption of Normative Responsibilitiesrsquo 80 Philippines LawJournal (2006) 563^586 at 580^586 L Zegveld Accountability of Armed Opposition Groups inInternational Law (Cambridge Cambridge University Press 2002) A Cassese lsquoThe Status of

924 JICJ 6 (2008) 899^926

reciprocity effectiveness the needs of the international community successionto state obligations through effective exercise of sovereignty purported repre-sentation of legislative jurisdiction by national authorities and a plain textreading of treaty provisions such as common Article 3 to the Geneva Conven-tions of 194979 But writing in his authoritative Handbook of InternationalHumanitarian Law Dieter Fleck has simply suggested that to ask how armedopposition groups can be bound by international law is lsquooverly complicatinga fundamental principle international treaties are not concluded on behalfof governments but on behalf of states lawfully representing all theircitizens Customary international law is based on practice and opinio iuris ofstates and binding upon peoples General principles of law have likewise bind-ing effects upon individualsrsquo80 The same Handbook includes the assertion byChristopher Greenwood that

The obligations created by international humanitarian law apply not just to states butto individuals and to non-state actors such as a rebel faction or secessionist movementin a civil war The application to non-state actors of human rights treaties is moreproblematic and even if they may be regarded as applicable in principle the enforcementmachinery created by human rights treaties can normally be invoked only in proceedingsagainst a state81

The obligations on states and non-state actors are by no means identicalbut we can see that such commentary rather suggests that first we no longerneed to search for a theoretical foundation for fixing international obligationson armed opposition groups and second the obligations are not limitedto international humanitarian law but can be expressed in terms of interna-tional criminal law82 If it is admitted that human rights law may applyin principle it is difficult to see why one would exclude international

Rebels under the 1977 Geneva Protocol on Non-International Armed Conflictsrsquo 30 Internationaland Comparative Law Quaterly (1981) 416^439

79 On Common Art 3 see UK Ministry of DefenceThe Manual of the Law of Armed Conflict (OxfordOxford University Press 2004) 385 esp note 19 lsquoThis purports to bind all parties both statesand insurgents whether or not the latter have made any declaration of intent to apply theprinciplesrsquo

80 D Fleck (ed) lsquoThe Law of Non-International Armed Conflictsrsquo in The Handbook of HumanitarianLaw in Armed Conflict (2nd edn Oxford Oxford University Press 2007) 603^633 at 608 Seealso D FlecklsquoHumanitarian Protection Against Non-State Actorsrsquo in JA Frowein K SchariothI Winkelmann and R Wolfrum (eds) Verhandeln fulaquo r den Frieden - Negotiating for Peace LiberAmicorumTono Eitel (Berlin Springer 2003) 69^94

81 lsquoScope of Application of Humanitarian Lawrsquo in Fleck (ed) supra note 80 45^78 at 76 See alsoInstitute de Droit International lsquoLrsquoapplication du droit international humanitaire et des droitsfondamentaux de lrsquohomme dans les conflits armecurren s auxquels prennent part des entitecurren s non ecurren tatiquesrecurren solution de Berlin du 25 aouldquo t 1999rsquo (commentary by Robert Kolb) (Paris Pedone 2003)

82 lsquoAs for punishing violations international criminal law is as applicable to those fighting forarmed groups as to those fighting for states Armed groups are responsible for violationscommitted by their members Their responsibility to the international community has alreadybeen demonstrated by sanctions imposed on them by the Security Councilrsquo M Sasso lilsquoEngaging Armed Nonstate Actors with International Humanitarian Lawrsquo 6 Human SecurityBulletin (2008) 15^18


criminal law such as the obligations associated with crimes against humanityand genocide The extent to which other crimes such as torture enforceddisappearances or the recruitment of children into an armed group representinternational obligations for the armed group as such has been subject todebate It is suggested that the better view is that just as we have movedaway from the assumption that lsquocompanies cannot commit offencesrsquowe should no longer assume that armed opposition groups have no obligationsbeyond those established through international humanitarian law Put morepositively we are witnessing a series of developments in legal and politicalfora at the international level that suggest that corporations have internationalobligations ccedil particularly in the field of international criminal law Weare also in the presence of legal and other activity premised on the ideathat armed opposition groups violate international criminal law Oldassumptions are giving way to new realities

926 JICJ 6 (2008) 899^926


international obligations And recourse to the maxim societas delinquere nonpotest prompts one to assume that there is an established (even classical)notion (even principle) that lsquocompanies cannot commit an offencersquo2

Anyone who doubts the power of these assumptions need only go on-linefor a few minutes The maxim societas delinquere non potest even has its ownWikipedia page (albeit in Spanish)3 The provenance of the maxim is invokednot only to refute the development of laws which would criminalize corporateconduct but also to suggest that the maxim leads to the conclusion thatit would be lsquoimpracticablersquo to prosecute state crimes under international law4

Even for those such as Gaetano Arangio-Ruiz who sought to go aroundthe maxim in the context of state crimes under international law the assump-tive power of the maxim exerted full force with regard to national law5 It istherefore vital to be clear when discussing the topic of crimes committed byentities that are not individuals whether we are talking about internationalor national legal orders Not only are the rules different but the assumptionsmay be differentThe complexity of this topic is compounded by the fact that the comple-

mentarity principle introduced by the Statute of the International CriminalCourt (ICC) has coloured how we think about international criminal lawAs we shall see the inability of some lawyers from some national legalorders to conceive of entities that are not individuals as having obligationsunder criminal law has meant that a complementary international criminaljurisdiction was inconceivable This article will argue that such assumptionsand complexities notwithstanding international criminal law is developingobligations that reach beyond the individualRather than attempting a simple paradigm shift which replaces one set of

assumptions with another set of new more appropriate assumptions themethod employed here will be to present a narrative that highlights howcorporations and armed groups are being addressed by international law andinternational bodies In some instances we shall examine how such entities

1 For example GWerle Principles of International Criminal Law (The Hague TMC Asser Press2005) at 35

2 lsquoThe traditional principle embodied in the Latin maxim societas delinquere non potest (compa-nies cannot commit an offence) continues to be reflected in the laws of some states such asFrance Germany and Austria where corporate criminal liability applies in only limited circum-stances and generally on a more restrictive basis than the lsquolsquoidentification theoryrsquorsquo of Anglo-Canadian lawrsquo lsquoLegislative Summaries LS-457E Canadarsquo Bill C-45 An Act to Amend theCriminal Code (Criminal Liability of Corporations) prepared by David Coetz 3 July 2003 Fora discussion of the influence of the lsquorulersquo in Switzerland see P Graven and Ch-A JunodlsquoSocietas delinquere potestrsquo in Mecurren langes Robert Patry (Lausanne Payot 1988) 351^365

3 httpeswikipediaorgwikiSocietas_delinquere_non_potest (visited 23 October 2008)4 lsquoFurthermore as early as in the Roman times the theory of criminal law already affirmed that

lsquolsquosocietas delinquere non potestrsquorsquo It is impracticable to attempt the prosecution of State lsquolsquocrimesrsquorsquorsquoStatement by Ms Xue Hanqin (China) on Agenda Item 159 (ILC) UNGA 23 October 2000

5 UN Doc ACN4SR2315 Summary Records of the 45th Session of the ILC 2315th meeting1 July 1993 xx 45^46

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902 JICJ 6 (2008) 899^926










Gross corruption

















904 JICJ 6 (2008) 899^926




















906 JICJ 6 (2008) 899^926


















32 Ibid at 36

908 JICJ 6 (2008) 899^926


















910 JICJ 6 (2008) 899^926
















912 JICJ 6 (2008) 899^926
















914 JICJ 6 (2008) 899^926





























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6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















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924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926




















902 JICJ 6 (2008) 899^926










Gross corruption

















904 JICJ 6 (2008) 899^926




















906 JICJ 6 (2008) 899^926


















32 Ibid at 36

908 JICJ 6 (2008) 899^926


















910 JICJ 6 (2008) 899^926
















912 JICJ 6 (2008) 899^926
















914 JICJ 6 (2008) 899^926





























916 JICJ 6 (2008) 899^926
















6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926










Gross corruption

















904 JICJ 6 (2008) 899^926




















906 JICJ 6 (2008) 899^926


















32 Ibid at 36

908 JICJ 6 (2008) 899^926


















910 JICJ 6 (2008) 899^926
















912 JICJ 6 (2008) 899^926
















914 JICJ 6 (2008) 899^926





























916 JICJ 6 (2008) 899^926
















6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926










904 JICJ 6 (2008) 899^926




















906 JICJ 6 (2008) 899^926


















32 Ibid at 36

908 JICJ 6 (2008) 899^926


















910 JICJ 6 (2008) 899^926
















912 JICJ 6 (2008) 899^926
















914 JICJ 6 (2008) 899^926





























916 JICJ 6 (2008) 899^926
















6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926




















906 JICJ 6 (2008) 899^926


















32 Ibid at 36

908 JICJ 6 (2008) 899^926


















910 JICJ 6 (2008) 899^926
















912 JICJ 6 (2008) 899^926
















914 JICJ 6 (2008) 899^926





























916 JICJ 6 (2008) 899^926
















6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926


















32 Ibid at 36

908 JICJ 6 (2008) 899^926


















910 JICJ 6 (2008) 899^926
















912 JICJ 6 (2008) 899^926
















914 JICJ 6 (2008) 899^926





























916 JICJ 6 (2008) 899^926
















6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926


















910 JICJ 6 (2008) 899^926
















912 JICJ 6 (2008) 899^926
















914 JICJ 6 (2008) 899^926





























916 JICJ 6 (2008) 899^926
















6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926
















912 JICJ 6 (2008) 899^926
















914 JICJ 6 (2008) 899^926





























916 JICJ 6 (2008) 899^926
















6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926
















914 JICJ 6 (2008) 899^926





























916 JICJ 6 (2008) 899^926
















6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926





























916 JICJ 6 (2008) 899^926
















6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926
















6 In this section


56 Ibid at 825




124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926



124 Negligence












57 Section 1(4)

918 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926















920 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











926 JICJ 6 (2008) 899^926


















922 JICJ 6 (2008) 899^926













924 JICJ 6 (2008) 899^926











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924 JICJ 6 (2008) 899^926











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Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition...

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Transcript of Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition...