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Extending International
Criminal Law beyond the
Individual to Corporations
Abstract
This article argues that corporations and armed opposition groups have obligations
under international law. It is suggested that the scope of the obligations turns
on the capacity of the entities in question. While there may be no international
court to hear complaints against such entities, understanding their legal obligations
under international law is important in situations where national courts have
jurisdiction over violations of international law committed by non-state actors.
Furthermore, it is vital to realizing the potential of claims of corporate complicity
in international crimes and the impact such claims may have in the field of ethical
investment.
1. Introduction
This article challenges a number of traditional assumptions about inter-
national criminal law. It is often assumed that international criminal law is
exclusively addressed to crimes committed by individuals.1 Moreover, one often
comes across the assumption that only subjects of international law can enjoy
1 For example, G. Werle, Principles of International Criminal Law (The Hague: T.M.C. Asser Press,
2005), at 35.
2 ‘The traditional principle embodied in the Latin maxim societas delinquere non potest (compa-
nies cannot commit an offence) continues to be reflected in the laws of some states, such as
France, Germany and Austria, where corporate criminal liability applies in only limited circum-
stances, and generally on a more restrictive basis than the ‘‘identification theory’’ of Anglo-
Canadian law.’ ‘Legislative Summaries LS-457E, Canada’, Bill C-45: An Act to Amend the
Criminal Code (Criminal Liability of Corporations), prepared by David Coetz, 3 July 2003. For
a discussion of the influence of the ‘rule’ in Switzerland, see P. Graven and Ch-A. Junod,
‘Societas delinquere potest’ in Me¤ langes Robert Patry (Lausanne: Payot, 1988), 351^365.
3 http://es.wikipedia.org/wiki/Societas_delinquere_non_potest (visited 23 October 2008).
4 ‘Furthermore, as early as in the Roman times, the theory of criminal law already affirmed that
‘‘societas delinquere non potest’’. It is impracticable to attempt the prosecution of State ‘‘crimes’’.’
Statement by Ms Xue Hanqin (China) on Agenda Item 159 (ILC), UNGA, 23 October 2000.
5 UN Doc. A/CN.4/SR.2315, Summary Records of the 45th Session of the ILC, 2315th meeting,
1 July 1993, xx 45^46.
Extending International Criminal Law 901
have been held judicially accountable for violations of international law, albeit
usually through national jurisdictions. Before we turn to these developments,
we should, however, briefly canvass some of the doctrinal ideas that continue
to influence our thinking.
Brierly asks us to suspend our belief in the sanctity of subjectivity and sharpen
our senses.
If, therefore, we approach the question of the subjects of international law with a true
perception of what the personality of states entails, it becomes difficult to believe that
there can be anything sacrosanct about a practice which treats states as the subjects of
the international community. It is not a principle, but essentially a rule of expediency, and
mainly a rule of procedure.8,9
6 The following sections draw on my book Human Rights Obligations of Non-State Actors (Oxford:
Oxford University Press, 2006).
7 J.L. Brierly,‘The Basis of Obligation in International Law’ in H. Lauterpacht and C.H.M. Waldock
(eds), The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly
(Oxford: Clarendon Press, 1958), 1^67, at 51; English version of a course originally delivered at
the Hague Academy of International Law in 1928 ‘Le Fondement du caracte're obligatoire du
droit international’, 23 Recueil des Cours (1928), iii.
8 Sovereignty, Seisen, And the League’, 7 Fischer Williams, ‘Sovereignty, Seisen, And the League’,
British Year Book of International Law (1926), 23 (footnote in the original).
9 Brierly, supra note 7, at 51. Cited in part and discussed by J.E. Nijman, The Concept of
International Legal Personality: An Inquiry Into the History and Theory of International Law (The
Hague: T.M.C. Asser Press, 2004), 146.
10 Brierly, supra note 7, at 52.
902 JICJ 6 (2008), 899^926
far have had rules that make individuals the sole subjects of their jurisdiction,
we can imagine any one of these tribunals being adjusted so that it may
exercise its jurisdiction over non-natural persons (such as political parties or
other legal persons). At this point, the exclusion of non-natural persons can be
seen as the consequence of a ‘rule of procedure’ rather than the inevitable
result of application of international criminal law.11
In addition to seeing subjectivity as a procedural problem, we might argue
that the effectiveness principle has a role to play. If international law is to be
effective, everyone should be prohibited from assisting governments in violat-
ing those principles, or indeed from violating such principles themselves. Let us
now see how this idea that corporations should be prohibited from assisting
governments in violating international law is playing out in practice. This idea
has become known as ‘corporate complicity’ and has generated considerable
3. Corporate Complicity
Before looking at the scope of corporate complicity under international law,
let us first ask ourselves how the complicity concept came to play such a
prominent role. I would suggest that there are a few developments that
stand out.
First, as human rights organizations became more interested in reporting on
the behaviour of multinational corporations, they found themselves confronted
with a legal conundrum. Unlike ethical investors or those in the corporate
social responsibility movement, international human rights organizations
prided themselves on their law-based methodology. Moreover, they based all
human rights reporting on violations of international law. These violations
were usually expressed in terms of violations of human rights treaties which
the relevant state had ratified. The legal methodology did not seem suited to
complaining about the behaviour of corporations. Amnesty International’s
Human Rights Principles for Companies (1998) included a policy recommenda-
tion that companies should ensure that personnel are never ‘complicit’ in
human rights abuses.12 Without radically altering the traditional understand-
ing of human rights law, groups such as Human Rights Watch argued that,
although the corporations did not have obligations as parties to the human
rights treaties, the states they were operating in did have such obligations and
11 Brierly’s insights from 1928 again bear repeating here: ‘Incomparably the greatest threat to
peace in the modern world lies in the growing tendency of governments to place the power of
the state behind the private economic interests of their nationals, and thus to identify the
interests of a few powerful individuals with the interests of the whole country. It is unfortunate
that international law should continue to provide a theoretical justification for this dangerous
practice by its stubborn adherence to an unreal conception of international society.’ Ibid., at 53.
12 ‘Companies should establish procedures to ensure that all operations are examined for their
potential impact on human rights, and safeguards to ensure that company staff are never
complicit in human rights abuses.’AI Index ACT 70/01/98.
Extending International Criminal Law 903
Ten years later, we find that ethical investors, such as Norway’s sovereign
wealth fund, the ‘The Government Pension Fund ^ Global’, will screen out,
and disinvest from, corporations where there is an unacceptable risk of
contributing to corporate complicity in violations of international law.15 The
Ethical Guidelines explain in paragraph 4.4:
The Council shall issue recommendations on negative screening of one or several
companies on the basis of production of weapons that through their normal use may
violate fundamental humanitarian principles. The Council shall issue recommendations
on the exclusion of one or several companies from the investment universe because of
acts or omissions that constitute an unacceptable risk of the Fund contributing to:
13 See e.g. Human Rights Watch, The Price of Oil: Corporate Responsibility and Human Rights
Violations in Nigeria’s Oil Producing Areas (NY: HRW, 1999) and The Enron Corporation:
Corporate Complicity in Human Rights Violations (NY: HRW, 1999).
14 ‘Sudan: The Human Price of Oil’, AI Index AFR 54/001/2000, 3 May 2000, the reference for the
quote is ‘Letter, written by Alan G. Hevesi to Mr James Buckee, president and chief executive
officer of Talisman Energy, September 27, 1999’.
15 S. Chesterman, ‘The Turn to Ethics: Disinvestment from Multinational Corporations for Human
Rights Violations - The Case of Norway’s Sovereign Wealth Fund’, 23 American University
International Law Review (2008) 577^615.
16 The Ethical Guidelines, Norwegian Government Pension FundçGlobal, issued 22 December
2005.
904 JICJ 6 (2008), 899^926
The Global Compact was developed the following year and its first two princi-
ples were announced as follows: Principle 1: businesses should support and
respect the protection of internationally proclaimed human rights; and
Principle 2: make sure that they are not complicit in human rights abuses. In
the ‘learning forum’ that grew up around the Compact considerable time and
energy was then spent on considering what was meant by complicity in this
context.19
Third, the growing number of cases being litigated under the Alien
Tort Statute (ATS, also known as the Alien Tort Claims Act or ATCA) in the
17 Recommendation of the Advisory Council on Ethics for the Government Petroleum Fund,
14 November 2005 (footnote omitted).
18 Press Release, SG/SM/6881, 1 February 1999.
19 For one set of documents developed through the UN, see UN Global Compact Office and OHCHR,
Embedding Human Rights in Business Practice (New York: UN Global Compact Office, 2004),
available at http://www.unglobalcompact.org/docs/issues_doc/human_rights/embedding.pdf
(visited 23 October 2008). See also M. Jungk, Complicity in Human Rights Violations:
A Responsible Business Approach to Suppliers (Copenhagen: Danish Institute for Human
Rights, 2006).
Extending International Criminal Law 905
United States Federal Courts has focused attention on the scope of complicity
in this context. The ATS confers upon the federal district courts original
jurisdiction over ‘any civil action by an alien for a tort only, committed
in violation of the law of nations’ (28 U.S.C. section 1350). But these cases
are riddled with complexity. In order to show that the corporation has com-
mitted a violation of international law, it may be necessary to show that
there was a degree of state action or that the corporation acted under
‘colour of law’. As soon as the plaintiffs can show this, the defendants start to
argue that the courts should refuse to hear the case because there is too much
state action. Two separate arguments are emerging. The first concerns a ‘com-
batant activities exception’. According to a recent ruling:
The policy underlying the FTCA’s [Federal Tort Claims Act] combatant activities exception is
As the claim is argued as a tort under the law of nations, claimants may need
to show state action or ‘official complicity’ in order to show that the acts were
violations of the law of nations. A second jurisdictional argument now appears.
At this point, jurisdictional blockers pop-up again in a rather paradoxical form.
The greater the official complicity, the harder will it be to avoid claims that the
case has to be dismissed on political grounds. In the words of Judge Robertson
in the same case concerning Abu Ghraib: ‘A nd the more plaintiffs assert official
complicity in the acts of which they complain, the closer they sail to the
jurisdictional limitation of the political question doctrine.’21
Let us, however, leave to one side the jurisdictional rules and concentrate on
some recent rulings concerning the scope of complicity in violations of inter-
national criminal law in general, and in particular complicity in war crimes,
crimes against humanity and genocide.
It is perfectly possible to bring a suit against a corporation for violating
international law as the principal perpetrator, and suits have indeed been
brought, for example, with regard to allegations of violations of international
law, including torture and inhuman or degrading treatment, committed by
contractors providing interpretation and interrogation services to the United
States at Abu Ghraib prison in Iraq.22 More recently a case has been filed also
20 Order of 6 November 2007, Ibrahim et al. v. Titan et al. and Saleh et al. v. Titan et al., US District
Court for the District of Columbia, James Robertson US District Judge, Case 1: 05-cv-01165-JR,
at 7.
21 Order of 26 June 2006, Saleh et al. v. Titan Corp, 436 F.Supp.2d 55, at 5.
22 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.
906 JICJ 6 (2008), 899^926
against Blackwater alleging war crimes under the ATS in connection with the
killing of civilians on 16 September 2007.23
In the simple situation where a corporation’s activities actually constitute
genocide, slavery or war crimes, the issue is clear. The corporation will have
violated international criminal law and can be held accountable in the US
courts under ATS. The US courts have been gradually refining the list of viola-
tions of the ‘law of nations’ that attach to non-state actors as such. Accordingly,
recent rulings have determined that genocide, slave trading, slavery, forced
labour and war crimes are actionable even in the absence of any connection
to state action.24 In addition, according to the Kadic v. Karadzic judgment in the
US courts, where rape, torture and summary execution are committed in iso-
lation these crimes ‘are actionable under the Alien Tort Act, without regard to
state action, to the extent they were committed in pursuit of genocide or war
23 See Abtan et al. v. Blackwater Worldwide et al., Case 1:07-cv-01831 (RBW), filed 26 November
2007.
24 Wiwa v. Royal Dutch Shell Petroleum (Shell), 28 February 2002, US District Court for the
Southern District of New York, at 39. See also Doe I v. Unocal Corporation, 18 September 2002,
at x3 et seq.
25 Kadic v. Karadzic, 70 F. 3d 232, at 243^244 (2d Cir. 1995) cited with approval in Doe v. Unocal
2002, supra note 24, x 3.
26 ‘The Trial Chamber in the present case was therefore right in taking the position that the public
official requirement is not a requirement under customary international law in relation to the
criminal responsibility of an individual for torture outside of the framework of the Torture
Convention.’ Judgment, Kunarac (IT-96-23-A), Appeals Chamber, 12 June 2002, x 148.
27 We might note here the findings in the report ‘On the Margins of Profit: Rights at Risk in the
Global Economy’ by Human Rights Watch and the Centre for Human Rights and Global Justice
which stated that ‘it is important to focus as much on corporate ties with third parties that
commit abuse (such as suppliers or government security forces) as on cases in which busi-
nesses themselves directly cause harm’, Human Rights Watch Reports, February 2008, Vol. 20,
No. 3(G), at 2.
28 See e.g. John Doe et al. v. Chiquita Brands International, complaint before the US District Court of
New Jersey, dated 18 July 2007 (discussed below in the section on armed groups).
Extending International Criminal Law 907
29 For an overview see the forthcoming report (three volumes) by the International Commission of
Jurists’ Expert Legal Panel on Corporate Complicity in International Crimes.
30 For a careful review of the US case law, see D. Cassel, ‘Corporate Aiding and Abetting of Human
Rights Violations: Confusion in the Courts’, 6 Northwestern University Journal of International
Human Rights (2008), 304, at http://www.law.northwestern.edu/journals/jihr/v6/n2/4/
Cassel.pdf (visited 28 April 2008).
31 Khulumani v. Barclay National Bank, Ltd; Ntsebeza v. Daimler Chysler Corp, US Court of Appeals
for the Second Circuit, 12 October 2007, 05-2141-cv, 05-2326-cv., at 46^47.
908 JICJ 6 (2008), 899^926
i. Be made with the aim of furthering the criminal activity or criminal purpose of the
Two points need highlighting. First, the Judge does not address the issue of
assistance to a group of persons acting with a common purpose (Article
25(3)(d) ICC Statute). In such a case, no ‘purpose’ is required by the person
assisting. The Statute simply requires ‘knowledge of the intention of the
group’. Second, the absence of practice based on the 25(3)(c) assistance test in
the ICC Statute does indeed suggest that the customary international law test
may indeed be found elsewhere, i.e. in the decisions of the ad hoc Tribunals.
It is suggested here that it is not necessary to see the ICC and the customary
standard as divergent. The better view is to see the ICC provisions on
accessories as a whole, incorporating some of the ideas concerning contribu-
tion to a group crime or joint criminal enterprise. Let us consider these points
in turn.
32 Ibid., at 36.
Extending International Criminal Law 909
the ICTY. It has been suggested that this indirect form of participation ‘may
cover acts that in the Yugoslavia Tribunal’s case law warranted liability for
participation in a joint criminal enterprise’.33 The ICTY has explained its
approach in a number of cases with the general argument first being articu-
lated in the Tadic¤ case, where the Tribunal explained that criminal liability
extends in this way beyond those who physically commit the abuses:
‘Although only some members of the group may physically perpetrate the
criminal act (murder, extermination, wanton destruction of cities, towns or
villages, etc.), the participation and contribution of the other members of the
group is often vital in facilitating the commission of the offence in question. It
follows that the moral gravity of such participation is often no less ç or indeed
no different ç from that of those actually carrying out the acts in question.’34
335. The Chamber considers that this latter concept ^ which is closely akin to the concept of
joint criminal enterprise or the common purpose doctrine adopted by the jurisprudence of
the ICTY ^ would have been the basis of the concept of co-perpetration within the meaning
of Article 25(3)(a), had the drafters of the Statute opted for a subjective approach for
distinguishing between principals and accessories.
336. Moreover, the Chamber observes that the wording of article 25(3)(d) of the Statute
begins with the words ‘[i]n any other way contributes to the commission or attempted
commission of such crime.’
337. Hence, in the view of the Chamber, article 25(3)(d) of the Statute provides for a residual
form of accessory liability which makes it possible to criminalise those contributions to a
crime which cannot be characterized as ordering, soliciting, inducing, aiding, abetting or
assisting within the meaning of article 25(3)(b) or article 25(3)(c) of the Statute by reason of
the state of mind in which the contributions were made.36
i. the awareness by the suspect of the substantial likelihood that his or her actions or
omissions would result in the realization of the objective elements of the crime; and
ii. the decision by the suspect to carry out his or her actions or omissions despite such
awareness.
354. Secondly, if the risk of bringing about the objective elements of the crime is low, the
suspect must have clearly or expressly accepted the idea that such objective elements may
result from his or her actions or omissions.
355. Where the state of mind of the suspect falls short of accepting that the objective
elements of the crime may result from his or her actions or omissions, such a state of
mind cannot qualify as a truly intentional realization of the objective elements, and hence
would not meet the ‘intent and knowledge’ requirement embodied in article 30 of the
Statute.
These statements set out the limits of the minimal intention necessary for a
finding of responsibility under the Rome Statute. While corporations will not
be tried at the ICC, we have already seen in the context of the US Appeals Court
that the Statute has become the starting point for understanding corporate
complicity.
We can distil all this down to the idea that once a corporation is made aware
of a likelihood of contributing to a crime committed by a group then, once it
accepts that its actions may lead to elements of the crime occurring and it
continues to act, it has the requisite mental involvement to give rise to a
residual form of corporate complicity in international crimes. We might add
A first question arises: what does ‘substantial’ mean in this context? The
corporate complicity context is often concerned with issues of presence
in war zones. The case law from the ad hoc Tribunals has dealt with the
issue of contribution through presence, but these cases are really about
encouragement through presence rather than the economic dimension of
presence.38
The point developed by the case law of the two ad hoc Tribunals is that
although presence was a factor in finding moral encouragement, the cases all
concerned people who were in a superior or official position, or in Tadic¤ , some-
one who was actually present, or in the vicinity of, the torture and abuse.
It would be misleading simply to infer that corporate presence in a country
can be assimilated to the presence of a superior in the vicinity of the torture
scene.
The ICC has not yet addressed Article 25(3)(c) in the same way that it has
discussed Article 25(3)(d). It has been suggested, however, for example by
Gerhard Werle, that while accomplices need to be aware that their contribution
is supporting the commission of the crime, they do not need to share the
particular intent of the principal perpetrator.39
39 Werle, supra note 33, at 970. Cf. Judgment, Bosnia and Herzegovina v. Serbia and Montenegro,
International Court of Justice, 26 February 2007, x 421. See also the Declaration of Judge Keith
in that case at xx 5 and 6. The subjective levels of intent and knowledge are also discussed in
Eser, in Cassese et al. (eds), supra note 33, 767^822, at 798^803. For a detailed discussion on the
significance of the word ‘purpose’ in Art. 25(3)(c), see Cassel, supra note 30.
Extending International Criminal Law 913
relevant knowledge, was aware of the ç also then known ^ unscrupulous character of the
then Iraqi regime.40
40 Official translation, International Law in Domestic Courts (ILDC) 753 (NL 2007), x 11.16.
41 Ibid., x 16.
42 For an overview of the cases, starting in the wake of Second World War, see K. Jacobson, ‘Doing
Business With the Devil: The Challenges of Prosecuting Corporate Officials Whose Business
Transactions Facilitate War Crimes and Crimes Against Humanity’, 56 Air Force Law Review
(2005) 167^232.
43 For a useful introduction, see e.g. A. Ramasastry and R.C. Thompson, Legal Remedies for Private
Sector Liability for Grave Breaches of International Law: A Survey of Sixteen Countries - Executive
Summary (Oslo: Fafo-report 536, 2006) which concludes that there is a practice of applying
criminal liability in 11 of the countries surveyed: Australia, Belgium, Canada, France, India,
Japan, The Netherlands, Norway, South Africa, the United Kingdom and the United States; in
five of the countries surveyed there was no such recognition of criminal corporate liability:
Argentina, Germany, Indonesia, Spain and the Ukraine. The situation in Australia is high-
lighted, in particular 12.3 of the Australian Commonwealth Criminal Code (discussed subse-
quently) which developed the concept of corporate culture. See also International Peace
Academy and Fafo AIS, Business and International Crimes: Assessing the Liability of Business
Entities for Grave Violations of International Law (Oslo: Fafo-report 467, 2004).
914 JICJ 6 (2008), 899^926
the State and excluding public service delegations.’44 French law, however,
often requires an explicit provision stating that legal persons may be liable for
the offence in question. The memorandum explains: ‘The criminal liability
of legal entities is special insofar as specific provision must have been made to
attribute the offence to them. This principle was the result of pressure
from political parties and associations who feared that they might otherwise
incur liability too easily.’45 According to the memorandum, new legislation
has,46 however, extended the criminal liability of legal entities ‘to all offences
defined in the Penal Code, though paradoxically the express references to the
criminal liability of legal entities that previously featured in the Penal Code
have not been deleted’.47 Commentators often wonder how a corporation or
a political party can commit offences such as sex crimes, or be accused of
international crimes such as torture. But a moment’s reflection makes it clear
44 ‘Re: Criminal liability of private law legal entities under French law and extra-territoriality of
the laws applicable to them: Review of the situation and discussion of issues’, 5 June 2006,
Human Rights Coordination Mission, at 1.
45 Ibid., at 2.
46 Act 2004^204 of 9 March 2004, ‘Perben II’, deleting the phrase ‘in the cases provided for by
statute and regulation’ from Art. 121-2 of the Penal Code as of 31 December 2005.
47 Memorandum ‘Re: Criminal liability of private law entities’, supra note 44, at 3.
48 Ibid.
49 Art. 121-3 of Penal Code discussed at 2 of the memorandum.
50 Ibid., at 3^4.
51 On the background to this draft provision see A. Clapham, ‘The Question of Jurisdiction Under
International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an
International Criminal Court’, in M. Kamminga and S. Zia-Zarifi (eds), Liability of Multinational
Corporations Under International Law (The Hague: Kluwer, 2000)139^195; Ambos, supra note 33,
475^493; Eser, in Cassese et al. (eds), supra note 33, 767^822, at 779, and the references therein.
Extending International Criminal Law 915
(a) The charges filed by the Prosecutor against the natural person and the juridical
person allege the matters referred to in subparagraphs (b) and (c); and
(b) The natural person charged was in a position of control within the juridical
person under the national law of the State where the juridical person was regis-
tered at the time the crime was committed; and
(c) The crime was committed by the natural person acting on behalf of and with
the explicit consent of that juridical person and in the course of its activities; and
(d) The natural person has been convicted of the crime charged.52
as well as for involvement of such a natural person as accessory or instigator in the above
mentioned offences.
2. Apart from the cases already provided for in paragraph 1, each Party shall take the
necessary measures to ensure that a legal person can be held liable where the lack of
supervision or control by a natural person referred to in paragraph 1 has made possible the
commission of the criminal offences mentioned in paragraph 1 for the benefit of that legal
person by a natural person under its authority.
3. Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceed-
ings against natural persons who are perpetrators, instigators of, or accessories to, the
criminal offences mentioned in paragraph 1.
Article 1(d) of the Convention states ‘‘‘legal person’’ shall mean any entity
having such status under the applicable national law, except for States or other
public bodies in the exercise of State authority and for public international
organizations.’
We might also consider the issue at the level of the European Union where a
Joint Action, two Conventions and Protocols on corruption have been
adopted.53 The European Union texts take us a little further, in that they list
the sorts of penalties which Member States are expected to impose on legal
persons convicted of corruption. The list is interesting as it goes beyond sanc-
tions foreseen in other international texts. Consider the Article from the Joint
Action:
Sanctions for legal persons
1. Each Member State shall take the necessary measures to ensure that a legal person
held liable pursuant to Article 5(1) is punishable by effective, proportionate and
dissuasive sanctions, which shall include criminal or non-criminal fines and may
include other sanctions such as:
2. Each Member State shall take the necessary measures to ensure that a legal person
held liable pursuant to Article 5(2) is punishable by effective, proportionate and
dissuasive sanctions or measures.
Not all treaties turn on the behaviour of a relevant individual. The 2003 UN
Convention Against Corruption simply demands that states address the liability
of legal persons, allowing that such liability can be criminal, civil or adminis-
trative, while stating that whether the sanctions are criminal or non-criminal
they must be effective.54
Indeed a focus on individual representatives or authorities or controlling
minds is not the exclusive route to finding corporations guilty of international
53 Joint Action of 22 December 1998 adopted by the Council on the basis of Art. K.3 of the Treaty
on European Union, on corruption in the private sector, OJ L 358, 31, 12, 1998, at 2^4.
Convention on the Fight against Corruption involving Officials of the European Communities
or Officials of Member States of the European Union, OJ C 195, 25 June 1997, at 2^11;
Convention on the protection of the European Communities financial interests, OJ C 316, 27
November 1995, at 49^57.
54 For a fuller discussion including references to treaties such as the 1999 UN Convention for the
Suppression of the Financing of Terrorism and the UN Convention Against Transnational
Organized Crime (2000), see my book Human Rights Obligations of Non-State Actors, supra note
6, at 247^252. See also the discussion on this point by Cassel, supra note 30, xx 42^49 (online
edition) who highlights the preference for criminal prosecution of legal persons under the
OECD Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions Art. 3(2).
55
Although a federal criminal investigation has begun against Anvil Mining for complicity in ICC
crimes in the Democratic Republic of Congo, there remains some ambiguity concerning whether
the ICC crimes can be pursued against corporations and whether there needs to be some jurisdic-
tional link with Australia. See further J. Kyriakakis, ‘Australian Prosecution of Corporations for
Extending International Criminal Law 917
crimes. The Australian federal criminal law has included both the crimes in the
ICC Statute and a new approach to criminal liability for corporate actors.55
Joanna Kyriakakis has highlighted the difficulties connected to any supposed
need to first find an individual perpetrator: ‘the commonly opaque nature of
accountability within corporate structures, the expendability of individuals,
the practice of corporate separation of those responsible for past violations
and those responsible for preventing future offences, as well as the safe har-
bouring within corporations of individual suspects’.56
If we consider the Australian code, we can see a new specially adapted sort
of criminal mens rea for the corporate entity:
(a) proving that the body corporate’s board of directors intentionally, knowingly or
recklessly carried out the relevant conduct, or expressly, tacitly or impliedly
authorised or permitted the commission of the offence; or
(b) proving that a high managerial agent of the body corporate intentionally, 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 directed,
encouraged, tolerated or led to non-compliance with the relevant provision; or
(d) proving that the body corporate failed to create and maintain a corporate cul-
ture that required compliance with the relevant provision.
3. Paragraph (2)(b) does not apply if the body corporate proves that it exercised due
diligence to prevent the conduct, or the authorisation or permission.
4. Factors relevant to the application of paragraph (2)(c) or (d) include:
(a) whether authority to commit an offence of the same or a similar character had
been given by a high managerial agent of the body corporate; and
(b) whether the employee, agent or officer of the body corporate who committed the
offence believed on reasonable grounds, or entertained a reasonable expectation,
that a high managerial agent of the body corporate would have authorised or
permitted the commission of the offence.
board of directors means the body (by whatever name called) exercising the executive
authority of the body corporate.
56 Ibid., at 825.
918 JICJ 6 (2008), 899^926
corporate culture means an attitude, policy, rule, course of conduct or practice existing
within the body corporate generally or in the part of the body corporate in which the
relevant activities takes place.
high managerial agent means an employee, agent or officer of the body corporate with
duties of such responsibility that his or her conduct may fairly be assumed to represent the
body corporate’s policy.
12.4 Negligence
1. The test of negligence for a body corporate is that set out in section 5.5.
2. If:
3. Negligence may be evidenced by the fact that the prohibited conduct was substan-
tially attributable to:
We might also mention here the recent Corporate Manslaughter and Corporate
Homicide Act, parts of which entered into force in the United Kingdom on
6 April 2008. This legislation provides the framework for the prosecution of
corporations for manslaughter where the entity’s activities amount to a gross
breach of the relevant duty of care and causes a person’s death. The legislation
was prompted by the problems associated with finding a controlling mind so
the new mens rea requirements are worth detailing here. The Act states that:
An organisation is guilty of an offence under this section only if the way in which its
activities are managed or organised by its senior management is a substantial element in
the breach [of the duty of care]. . . . a breach of a duty of care by an organisation is a ‘‘gross’’
breach if the conduct alleged to amount to a breach of that duty falls far below what can
reasonably be expected of the organisation in the circumstances;
(c) ‘senior management’, in relation to an organisation, means the persons who play signifi-
cant roles in ^
i. the making of decisions about how the whole or a substantial part of its activities
are to be managed or organised, or
ii. the actual managing or organising of the whole or a substantial part of those
activities.57
57 Section 1(4).
Extending International Criminal Law 919
58 C. Wells, Corporations and Criminal Responsibility (2nd edn., Oxford: Oxford University Press,
2001), 157.
59 The IMT declared the following organization to be criminal under Art. 9 of its Statute: the
Leadership Corps of the Nazi Party, the Gestapo, SD, and the SS. According the James Owen:
‘The French and Soviets had grave concerns about such corporate and retrospective declara-
tions of guilt’. Owen refers to ‘an avalanche of affadavits ^ more than 190,000 of them’. J. Owen,
Nuremeberg: 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 Judgment:
‘A criminal organisation is analogous to a criminal conspiracy in that the essence of both is
cooperation for criminal purposes. There must be a group bound together and organized for a
common purpose. The group must be formed or used in connection with the commission of
crimes denounced by the Charter. Since the declaration with respect to the organisations and
groups will, as has been pointed out, fix the criminality of its members, that definition should
exclude persons who had no knowledge of the criminal purposes or acts of the organisation
and those who were drafted by the State for membership, unless they were personally impli-
cated in the commission of acts declared criminal by Article 6 of the Charter as members of the
organisation. Membership alone is not enough to come within the scope of these declarations.’
61 M.C. Bassiouni (ed.), International Criminal Law. Volume 1: Crimes (2nd edn., Ardsley:
Transnational, 1999), 24. For detail on some of the proposed legislation being developed in
order to criminalize membership of certain terrorist groups listed by the United Nations and
the European Union, see A. Bianchi, ‘Security Council’s Anti-terror Resolutions and their
920 JICJ 6 (2008), 899^926
First, as we have seen, corporate liability may depend on finding a third party
to be implicated in international criminal activity. Whether or not the rebels as
primary perpetrators are actually tried, their responsibility under international
law may be essential for any finding of third party complicity in such violations.
Second, the activities of bodies such as the Security Council, the Special
Representative of the Secretary-General for Children in Armed Conflict, and
the Office of the High Commissioner for Human Rights depend in part on
naming and shaming rebel groups for violating international norms. Third,
the incentives for compliance by rebels may be more extensive than is com-
monly assumed. Let me briefly deal with each of these suggestions in turn.
A recent complaint brought against Chiquita for complicity in crimes
against humanity, war crimes and torture allegedly committed with a parami-
litary organization (the United Self-Defence Committees of Columbia (AUC)) in
65 John Doe et al v. Chiquita Brands International, United States District Court at the District of New
Jersey, filed 18 July 2007.
66 C. Gentile, ‘Families Sue Chiquita in Deaths of 5 Men’, New York Times, 17 March 2008.
922 JICJ 6 (2008), 899^926
aided and abetted, intentionally facilitated, and/or recklessly disregarded crimes against
humanity in violation of the law of nations.67
The complaint goes on to allege the supply of arms and ammunition, train-
ing, training facilities, and a base of operations within Libya. And the complaint
also alleges that Libya knew that its provision of arms etc. would ‘be used to
carry out crimes against humanity against the civilian populations in Great
Britain and Northern Ireland by the PIRA’.68 We can see then, that, in this
context, an essential link in the legal argumentation is that the PIRA, as such,
committed international crimes. Knowingly assisting such a group then
becomes a violation of international law. If international criminal law were
confined to violations committed by individuals, one would have to find an
individual responsible for the alleged international crimes, rather than showing
67 Class Action, McDonald et al. v. The Socialist People’s Libyan Arab Jamahiriya, US District Court for
the District of Columbia, filed 21 April 2006.
68 Ibid., x322.
69 I have dealt with some of the recent practice of the OHCHR and some of the Human Rights
Council’s Special Procedures in ‘Human Rights Obligations of Non-state Actors in Conflict
Situations’, 88 International Review of the Red Cross (2006) 491^523.
70 UN Doc. S/2005/72.
71 S/2007/758, Sri Lanka; S/2007/686, Burundi; S/2007/666, Myanmar; S/2007/515, Co“te d’Ivoire; S/
2007/520, Sudan; S/2007/400, Chad; S/2007/391, Democratic Republic of the Congo; S/2007/260,
Uganda; S/2007/259, Somalia; S/2006/1007, Nepal; S/2006/1006, Sri Lanka; S/2006/851,
Burundi; S/2006/835, Co“te d’Ivoire; S/2006/662, Sudan; S/2006/389, Democratic Republic of
the Congo.
Extending International Criminal Law 923
dedicate as much, if not more, space to the violations committed by the 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 by
encouraging the non-state actor to submit an ‘action plan’ to the Security
Council, in this way the group can be removed from the list of violators. One
group that has supplied such an action plan and claims to no longer be
a violator is the Forces Nouvelles (FAFN) in Co“te d’Ivoire. The Security Council
has in mind that it could adopt ‘country-specific resolutions, targeted and
graduated measures, such as, inter alia, a ban on the export and supply of
small arms and light weapons and of other military equipment and on military
assistance, against parties to situations of armed conflict which are on the
Security Council’s agenda and are in violation of applicable international law
relating to the rights and protection of children in armed conflict’.72 The
76 See the discussion in Human Rights Obligations of Non-State Actors, supra note 6, at 271^286.
77 ‘Language: Insurgent irresponsiveness’, International Herald Tribune, 16 January 2006.
78 S. Sivakumaran, ‘Binding Armed Opposition Groups’, 55 International and Comparative Law
Quarterly (2006) 369^394; M. Sasso'li, Transnational Armed Groups and International
Humanitarian Law (Harvard University: Program on Humanitarian Policy and Conflict
Research, 2006), esp at 14; K. Nowrot, ‘International Legal Personality of Influential Non-State
Actors: Towards A Rebuttable Presumption of Normative Responsibilities’, 80 Philippines Law
Journal (2006) 563^586, at 580^586; L. Zegveld, Accountability of Armed Opposition Groups in
International Law (Cambridge: Cambridge University Press, 2002); A. Cassese, ‘The Status of
Extending International Criminal Law 925
Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’, 30 International
and Comparative Law Quaterly (1981) 416^439.
79 On Common Art. 3, see UK Ministry of Defence,The Manual of the Law of Armed Conflict (Oxford:
Oxford University Press, 2004), 385, esp. note 19: ‘This purports to bind all parties, both states
and insurgents, whether or not the latter have made any declaration of intent to apply the
principles.’
80 D. Fleck (ed.), ‘The Law of Non-International Armed Conflicts’, in The Handbook of Humanitarian
Law in Armed Conflict (2nd edn., Oxford: Oxford University Press, 2007), 603^633, at 608. See
also D. Fleck,‘Humanitarian Protection Against Non-State Actors’, in J.A. Frowein, K. Scharioth,
I. Winkelmann and R. Wolfrum (eds), Verhandeln fu«r den Frieden - Negotiating for Peace: Liber
Amicorum Tono Eitel (Berlin: Springer, 2003), 69^94.
81 ‘Scope of Application of Humanitarian Law’, in Fleck (ed.), supra note 80, 45^78 at 76. See also
Institute de Droit International, ‘L’application du droit international humanitaire et des droits
fondamentaux de l’homme dans les conflits arme¤ s auxquels prennent part des entite¤ s non e¤ tatiques:
re¤ solution de Berlin du 25 aou“t 1999’ (commentary by Robert Kolb) (Paris: Pedone, 2003).
82 ‘As for punishing violations, international criminal law is as applicable to those fighting for
armed groups as to those fighting for states. Armed groups are responsible for violations
committed by their members. Their responsibility to the international community has already
been demonstrated by sanctions imposed on them by the Security Council.’ M. Sasso'li,
‘Engaging Armed Nonstate Actors with International Humanitarian Law’, 6 Human Security
Bulletin (2008) 15^18.
926 JICJ 6 (2008), 899^926
criminal law, such as the obligations associated with crimes against humanity
and genocide. The extent to which other crimes such as torture, enforced
disappearances, or the recruitment of children into an armed group, represent
international obligations for the armed group as such has been subject to
debate. It is suggested that the better view is that, just as we have moved
away from the assumption that ‘companies cannot commit offences’,
we should no longer assume that armed opposition groups have no obligations
beyond those established through international humanitarian law. Put more
positively, we are witnessing a series of developments in legal and political
fora at the international level that suggest that corporations have international
obligations ç particularly in the field of international criminal law. We
are also in the presence of legal and other activity premised on the idea
that armed opposition groups violate international criminal law. Old