Corporate Agents and Individual Criminal Liability under the Rome Statute

Notes

1. Wife of threatened Broad Movement for Dignity and Justice (MADJ) coordinator Jose Maria “Chepito” Pineda. Recorded by Global Witness.

2. Sixteen-year-old Diyaa, a Palestinian boy who was kept in solitary confinement for 15 days while being tortured. Recorded in DCI-Palestine (n.d.).

3. Congolese gold miner. Recorded by Human Rights Watch.

4. Criminal liability of corporate entities under international criminal law remains rare. The Special Tribunal for Lebanon, and the Dutch and Belgium jurisdictions are some notable exceptions.

5. For further discussion of the French proposal to include corporate criminal liability in the Rome Statute, see also Van der Wilt ( 2013: 46– 49).

6. For the purpose of this article, corporate agents are defined as those individuals acting on behalf of a corporation.

7. Art. 53 (1) (c) Rome Statute.

8. Regulation 29(2), Regulations of the Office of the Prosecutor , International Criminal Court, ICC-BD/05-01-09, entered into force on 23 April 2009.

9. In this article, the term “international crimes” relates to war crimes, crimes against humanity and genocide as codified in the Rome Statute.

10. See also Global Witness publications on the role of blood diamonds in funding conflicts in Angola, Central African Republic, the Democratic Republic of Congo, Liberia, and Sierra Leone, on the Global Witness website section “Conflict diamonds”. Available online at https://www.globalwitness.org/campaigns/conflict-diamonds/#more (accessed 25 September 2015).

11. In this decision, the Court stated that when assessing the gravity of a situation – required for admissibility of a case – it should establish “(i) whether the individuals or groups of persons that are likely to be the object of an investigation include those who may bear the greatest responsibility for the alleged crimes committed; and (ii) the gravity of the crimes committed within the incidents which are likely to be the object of an investigation […]”.

12. See also Jessberger ( 2010: 709), discussing the tendency to differentiate in the treatment of political and industrial elite for their involvement in international crimes.

13. In accordance with article 12 (2) (a) Rome Statute.

14. In accordance with article 13 (b) Rome Statute.

15. One of the legal questions which may arise in relation to territorial jurisdiction over the alleged crimes by corporate agents is how the relevant actus reus would be labelled in the territorial sense; is the actus reus of transnational business transactions limited to the place where the contracts are signed or authorisations are made, or does it rather relate to the physical transfer and delivery of the goods, such as weapons?

16. For a further discussion on territorial jurisdiction, see Plomp ( 2014: 10– 11).

17. See also Friedrichs and Rothe ( 2014) for discussions of state-corporate crime cases in different industries, including the financial sector, the oil industry, military corporations, and toxic waste management.

18. For a more elaborate overview of the involvement of and cases against corporate individuals before the Nuremberg Tribunal, see Kaleck and Saage-Maaß ( 2010: 701– 702). Also see Van Baar and Huisman ( 2012). It is argued that the IG Farben case constitutes the first attempt to use international criminal law instruments to hold individuals liable for their business actions. See Jessberger ( 2010: 801).

19. Judgment, Bruno Tesch and Two Others. Law Reports of Trials of War Criminals. Vol. 1 ( British Military Court, 1946), pp. 93– 94.

20. Judgment, Bruno Tesch and Two Others . Law Reports of Trials of War Criminals. Vol. 1 ( British Military Court, 1946), pp. 100– 102.

21. Judgement, Krauch et al., Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. 8, pp. 1153, 1169. ( IG Farben case).

22. IG Farben case, pp. 1102, 1106, 1108, 1123. See Jessberger ( 2010) for a more detailed analysis of the case.

23. Judgment, Bagaragaza (ICTR-05-86-S).Trial Chamber, 17 November 2009 (“ Bagaragaza Trial Judgment”), para. 24–26.

24. Judgment, Bagaragaza (ICTR-05-86-S).Trial Chamber, 17 November 2009 (“ Bagaragaza Trial Judgment”), para. 26. Bagaragaza authorized the use of factory vehicles and fuel to transport Interahamwe fighters; authorized employees to take part in attacks; approved the provision of weapons to attackers; and provided large sums of money for the purchase of alcohol.

25. Judgement, Court of Appeal in The Hague (Gerechtshof Den Haag), van Anraat (22-000509-06), 9 May 2007, para. 11.18.

26. Judgement, Supreme Court of The Netherlands (Hoge Raad der Nederlanden), Van Anraat (LN: BG4822). 30 June 2009, para. 12.1. The conviction was upheld by the Dutch Supreme Court.

27. Judgement, Kouwenhoven, District Court, section 6 (grounds for acquittal), para. 6. See also Van der Wilt ( 2013: 63– 64).

28. Art. 25 (3) (d) Rome Statute. Emphasis added.

29. Joint commission is included in art. 25 (3) (a) Rome Statute.

30. See also Farrell ( 2010: 878– 883, 885, 886) and supra note 19 and 22. Under the laws of the ICTY, ICTR, and SCSL, the aider and abettor does not need to share the intent of the principal perpetrator, similar to art. 25 (3) (d) (ii) Rome Statute.

31. The Oxford Advanced Learners Dictionary ( 2005) defines “contribute” as “to be one of the causes of [something]”.

32. See also Mbarushimana Judgement, Separate Opinion of Judge Silvia Fernández de Gurmendi, para. 12 and 15 in which de Gurmendi argues for the assessment of “normative and causal links” between the contribution made by the accused and the principal crime committed by the group. She adds that “[d]epending on the circumstances of a case, providing food or utilities to an armed group might be a significant, a substantial or even an essential contribution to the commission of crimes” rendering the term “significant” unhelpful in determining criminal responsibility. See also Judgement, Mbarushimana (ICC-01/04-01/10 OA 4), Judgement on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011 entitled “Decision on the confirmation of charges”, 30 May 2012, para. 66 ( “Mbarushimana Judgement”).

33. The factors listed here must also be seen in light of the past cases against corporate agents mentioned before international and domestic courts.

34. For further discussion on this topic, see Burchard ( 2010: 943).

35. Furthermore, the contribution need not be direct or criminal in itself. See also Farrell ( 2010: 893).

36. See Burchard ( 2010: 944) for further discussion around knowledge of corporate agents in the context of “ancillary and neutral” contributions to international crimes.

37. The analysis in this article – of individual criminal liability of corporate agents under the Rome Statute – must be viewed as complementary to legal analyses of criminal liability of corporations, where one form of liability does not preclude or assume the other.

38. Judgement, Flick, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. 6, p. 1202.

39. Judgement, Musema (ICTR-96-13-A), Trial Chamber, 27 January 2000, para. 894–895, 900, 906, 915, 920, 925.

40. For an overview of potential indicators of effective control, see also International Criminal Law Services ( 2009).

41. Judgement, Delalič (IT-96-21-A), Appeals Chamber, 20 February 2001, para. 192 and 256. For further ICTY jurisprudence on superior responsibility, see also: Judgement, Blaškić (IT-95-14-T). Trial Chamber, 3 March 2000, para. 302; Judgement, Kordić and Čerkez (IT-95-14/2-T), Trial Chamber, 26 February 2001, para. 838–841; Judgement, Krnojelac (IT-97-25-T), Trial Chamber II, 15 March 2002, para. 93; Judgement, Orić (IT-03-68-A), Appeals Chamber, 3 July 2008, para. 35; Judgement, Blagojevič and Jokič (IT-02-60-A), Appeal Chamber, 9 May 2007, para. 287; Judgement, Hadžihasanović and Kubura (IT-01-47-T), Trial Chamber, 16 March 2006, para. 90.

42. Judgement, Kordić and Čerkez (IT-95-14/2-T), Trial Chamber, 26 February 2001, para. 415 and 424.

43. Judgement, Krnojelac (IT-97-25-T), Trial Chamber II, 15 March 2002, para. 93–107. This does not shift the burden of proving effective control to the defence, but simply acknowledges that the possession of de jure authority constitutes evidence which goes to show a superior's effective control over his subordinates.

44. Judgement, Orić (IT-03-68-A), Appeals Chamber, 3 July 2008, para. 20 and supra note 27.

45. The factors listed here must also be seen in light of the judgements in the past – domestic and international – cases against corporate agents mentioned earlier.

46. See also Cassese ( 2008, 244– 246), and Judgement, Halilović (IT-01-48-A), Appeals Chamber, 16 October 2007, para. 63.

47. These guidelines and mechanisms include the Extractive Industries Transparency Initiative, the Kimberley Process Certification Scheme, Dodd Frank Act, UN Global Compact, and OECD Guidelines.

48. Consecutive Chapter VII arms embargoes have been in place concerning the DRC since 28 July 2003 when the UN Security Council imposed its first embargo through Resolution 1493, concerned “by the continued illegal exploitation of the natural resources of the Democratic Republic of the Congo” and demanding all States to “ensure that no direct or indirect assistance, especially military or financial assistance, is given to the movements and armed groups present in the Democratic Republic of the Congo”. In its 2010 Dodd Frank Act, the US Congress stated, “[i]t is the sense of Congress that the exploitation and trade of conflict minerals originating in the Democratic Republic of the Congo is helping to finance conflict characterised by extreme levels of violence in the eastern Democratic Republic of the Congo, particularly sexual- and gender-based violence, and contributing to an emergency humanitarian situation therein […]”.

49. Communications received by the Office of the Prosecutor of the ICC (pids.009.2003-EN), Press release, 16 July 2003, pp. 3– 4.

50. The report also identifies companies doing business with rebel groups, transit and end-user countries for conflict diamonds, and efforts made by national authorities to tackle the conflict-driven trade in such natural resources.

51. Another significant case, less related to the financing of groups committing atrocities, and more related to providing direct material and logistical support to the perpetrator, is the one of the Anvil Mining company; Anvil Mining ran a copper and silver mine in DRC from 1998 to 2010, during which time it has been involved in legal proceedings, accused of providing material and logistical support to Congolese forces that carried out acts of extra-judicial executions, torture, rapes, illegal detentions and looting in Kilwa in 2004, leaving 70 civilians dead. The Military High Court in the DRC acquitted the accused due to a lack of evidence, while a civil lawsuit in Canada was dismissed based on procedure. An Australian prosecutor put his criminal investigations into the case on hold for unknown reasons. See Business & Human Rights Resource Centre ( 2013); Canadian Centre for International Justice ( 2015); Huisman and Sliedrecht ( 2010: 804); and supra note 5.

52. For example, besides details contained in the narrative part of the report, Annex I of the 2002 UN Panel Report lists 29 mainly mineral trading companies (Congolese and international) on which the experts recommended imposing financial restrictions. The list includes names of “principal officers” for almost every company. Annex II names individual national and international business men and women, some described as being involved in minerals trade, for whom the Panel recommends a travel ban and financial restrictions. Finally, Annex III names dozens of – almost exclusively international – companies that are acting in violation of OECD Guidelines.

53. See also Human Rights Watch ( 2005: 51– 53, 70– 72), and see Prosansky ( 2007, para. 22–35) which describes the personal knowledge that individual senior employees of AGA/AGK had regarding the atrocities being committed by FNI.

54. The UK is, among other relevant treaties, party to the Rome Statute and OECD Guidelines.

55. The NCP is a government body dealing with complaints made pursuant OECD Guidelines for Multinational Enterprises.

56. See publications by Addameer Prisoner Support and Human Rights Association, B'Tselem, Physicians for Human Rights, International Committee of the Red Cross, and the UN High Commissioner for Human Rights.

57. In 2004, the ICJ ruled, in an Advisory Opinion, that the construction of the wall and its associated regime constituted a violation of the Fourth Geneva Convention, that parts located on occupied territory must be dismantled, and that Israel should pay reparations to the victims.

58. G4S owns 91% of G4S Israel (Hashmira), see Russell Tribunal on Palestine ( 2010: 18, para. 5.4A.8).

59. For a full overview of goods and services supplied by G4S, see Who Profits ( 2011).

60. Furthermore, “[t]he Ofer Prison is located in the ‘Seam Zone’ of the West Bank. Access to this area is very restricted to Palestinians (especially from the West Bank), who have to depend on obtaining a special access permit from G4S. The practical implications of these restrictions on movement is that Palestinians from the West Bank have very limited access to visit detainees or attend the military court hearings that are held.”

61. These initiatives include the Boycott, Divestment and Sanctions (BDS) Movement, Who Profits, The Russell Tribunal for Palestine, and Lawyers for Palestinian Human Rights (LPHR).

62. See BDS Movement ( 2016) for a timeline overview of divestments from G4S.

63. Honduras is Party to the Rome Statute, giving the ICC jurisdiction over international crimes committed by nationals or on the territory of Honduras from 1 July 2002 onwards.

64. On 23 June 2015, the founder and CEO of Dinant, Miguel Facussé Barjum, passed away. His successor is yet to be named at the time of writing this article.

65. The Prosecutor has received two separate communications – in 2012 and 2014 – regarding the alleged involvement of corporate agents, of palm oil company Dinant and Chevron respectively, in crimes against humanity allegedly committed in Ecuador. In 2014, the Court also received information about the role of “government-connected business leaders” in a land grabbing campaign in Cambodia which could amount to persecution as a crime against humanity.