Economic Actors and Criminal Liability / William A. Schabas
War Economies, Economic Actors
and International Criminal Law
William A. Schabas
The newly-elected ChiefProsecutor of the International Criminal Court (ICC), in one of his first public declarations dealing with prosecutorial strategies and orientations, on 16 July 2003, focused on the role of economic actors in armed conflict. After indicating that the crisis in the Ituri region of the Democratic Republic of Congo would be the likely target of his initial investigations, he turned to what were described as ‘[m]oney-laundering and other crimes committed outside the Democratic Republic of Congo which may be connected with the atrocities’. According to Chief Prosecutor Luis Moreno Ocampo,
Various reports have pointed to links between the activities of some African, European and Middle Eastern companies and the atrocities taking place in the Democratic Republic of Congo. The alleged involvement of organized crime groups from Eastern Europe has also been mentioned. Their activities allegedly include gold mining, the illegal exploitation of oil, and the arms trade. There is general concern that the atrocities allegedly committed in the country may be fuelled by the exploitation of natural resources there and the arms trade, which are enabled through the international banking system. Although the specific findings of these reports have not been confirmed, the Prosecutor believes that investigation of the financial aspects of the alleged atrocities will be crucial to prevent future crimes and for the prosecution of crimes already committed. If the alleged business practices continue to fuel atrocities, these would not be stopped even if current perpetrators were arrested and prosecuted. The Office of the Prosecutor is establishing whether investigations and prosecutions on the financial side of the alleged atrocities are being carried out in the relevant countries.[1]
The Prosecutor’s declaration had been anxiously awaited by those who follow the unfolding work of the new institution, because the Rome Statute of the International Criminal Court gives the Prosecutor an enormous amount of individual discretion in deciding to launch cases. That economic factors would figure so prominently on his agenda was quite astonishing and utterly unexpected, especially because the Court’s jurisdictional framework seems to leave it very few, if any, tools with which to address economic dimensions of armed conflict including money-laundering, illicit natural resource exploitation and the illicit arms trade.
Indeed, to date, private sector actors, such as transnational corporations, have been highly invisible in armed conflict, fueling war and atrocity, yet operating deep within the shadows and often from remote and privileged environments. At best, they are conceptualized as secondary participants in international crimes, in a world where impunity, amnesty and immunity ensure that even the central architects of systematic human rights violations are still about as likely to be held accountable as they are to be struck by lightening. Chief Prosecutor Ocampo is surely aware of the obstacles in his way, because of the shortcomings of current legal norms and mechanisms capable of snaring the economic actors who contribute to conflict. Two paths lie open: strengthening the inadequate norms and mechanisms that currently exist, and beginning to contemplate the creation of a new legal regime better adapted to tacklethese problems.
Economic agendas may contribute significantly to the outbreak and the perpetuation of war. It seems that in our post-Cold War context, civil wars are often little more than campaigns to acquire access to natural resources and markets, although somewhere in the distant past it may be possible to identify a role for ideological factors and political objectives.[2]Controversial statement. Civil wars can arise out of a desire to control natural resources, yet there are also other factors taken into consideration, such as the contestation for political power. Additionally, the dynamics of civil wars change during the duration of a conflict to encompass those who desire political control as well as those who are hoping to profit from the conflict. See Ballentine and Sherman: The Political Economy of Armed Conflict: Beyond Greed and Grievances, 2003]Prosecutor Ocampo’s laconic statement nevertheless highlighted some of the complexities, because economic actors in armed conflict correspond to a variety of profiles. His reference to the ‘international banking system’, the exploitation of natural resources, the arms trade, and to companies from various parts of the world seems to point to classic white collar criminals ensconced within wood-paneled boardrooms in major capitals and financial centers. These forces are cloaked in legality and legitimacy, largely beyond the reach of existing law. But note was also made of ‘organized crime groups’, whose usually more clandestine activities situate them in a different legal paradigm and one that is probably more within the grasp of existing international regulation. For this latter category, the problem may be more a question of implementation and enforcement. Finally – and here the law is perhaps most robust – are the economic dimensions of war crimes themselves, the well-recognized international offences of pillage and plunder, condemned by customary law for centuries and expressly prohibited in one of the first great humanitarian law treaties, the Hague Convention of 1907.[3]
Catching the Accomplices
Only days after the adoption of the Rome Statute of the International Criminal Courtat the conclusion of the Rome Conference in July 1998, the prestigious British business daily the Financial Times published an article warning ‘commercial lawyers’ that the treaty’s accomplice liability provision ‘could create international criminal liability for employees, officers and directors of corporations.’ Writer Maurice Nyberg referred to condemnation of violations of human rights involving multinational corporations by non-government organizations like Human Rights Watch, adding that ‘[i]t takes little imagination to jump from complicity with human rights violations to complicity with crimes covered under the ICC Treaty.’[4]
Certainly, to the extent that economic actors including international businesses are involved in war crimes and crimes against humanity, there is much potential and the law is, as the analysis below demonstrates, quite adequate. The participation will almost invariably be indirect, as financiers, or as merchants of weapons and other warparaphernalia, or traders in the spoils of war. International criminal law may apply to the extent that illegal means or methods of war are being employed, or that civilian non-combatants are being victimized. Note that the liability of economic actors would not be for economic crimes, as these are essentially absent from the Rome Statute, save for the war crime of “pillage and plunder.” Rather, economic actors would be held responsible as accomplices in the “classic” international crimes: torture, disappearance, apartheid and so on.
There are a variety of definitions of complicity in international criminal law, of which the most widely accepted, and arguably the broadest, is that found in article 25 of the Rome Statute.[5]An individual can be prosecuted for war crimes or crimes against humanity if he or she
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime…
It should be relatively easy to understand how an economic actor might fall within the reach of these provisions.[6] Although the subject has received little or no attention from the ad hoc international criminaltribunals for the former Yugoslavia (ICTY) or Rwanda (ICTR), there are precedents in the post-Second World War prosecutions. In concentration camp prosecutions, personnel at Belsen were found ‘in violation of the laws and usages of war [and to be] together concerned as parties to the ill-treatment of certain persons...’[7] The Judge Advocate who successfully prosecuted the case conceded that ‘mere presence on the staff was not of itself enough to justify a conviction,’ but insisted that ‘if a number of people took a part, however small in an offence, they were parties to the whole.’[8]Nuremberg prosecutors also succeeded in obtaining a conviction of three I.G. Farben executives who were involved in the construction of the slave-labor factory at Auschwitz.[9] Two of them, Friedrich Flick and Otto Steinbrinck, were found guilty of complicity because of their financial support of SS leader Heinrich Himmler’s activities and, more generally, those of the SS.[10] The ruling did not, however, extend to the corporation itself.
For several years now, judges at the ICTY in The Hague have been fine-tuning a brand of complicity known as ‘joint criminal enterprise’, by which even relatively remote accomplices to an atrocity can be found guilty of crimes committed by others to the extent that the acts themselves were an objectively foreseeable outcome of the conspiracy.[11] Now applied to war crimes and crimes against humanity, the concept has proven most effective in recent years in the prosecution of organized crime. Even the terminology itself – ‘enterprise’ – suggests an economic context. The Prosecutor of the Special Court for Sierra Leone is promising to explore this territory more thoroughly. For example, the indictments, issued in March 2003 against, among others, the late rebel leader Foday Sankoh and his ally, former Liberian president Charles Taylor, allege a ‘joint criminal enterprise’ whose objective was ‘to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas. The natural resources of Sierra Leone were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.’[12]
Although criminal prosecution of economic participants in armed conflict for their role in assisting grave violations of international criminal law has much potential, it is not without its problems. First, if the objective is to choke off the conflict by depriving combatants of funds, or in some other way to stymie the economic agendas that are at work, the alleged wrongs that are committed rarely fall within the scope of international criminal law. For example, although the Rome Statute prohibits use of certain weapons, such as poison, asphyxiating gas and hollow-tip bullets, it does not at present challenge the use of those arms that are most common, especially in civil wars: automatic rifles and other forms of small arms, machetes, anti-personnel mines and cluster bombs. Anti-personnel mines were widely used in the conflict in the former Yugoslavia, yet there have been no prosecutions alleging that this was contrary to the laws or customs of war, and therefore prohibited by article 3 of the Statute. In other words, while it may be possible to convict an arms manufacturer or trafficker who knowingly contributes to the use of prohibited weapons – an analogy here would be the conviction of those who supplied Zyklon-B gas to Nazi extermination camps[13] – most of the lethal weapons are not prohibited by international law. When they exist, the prohibitions, such as the Ottawa Convention on anti-personnel mines, are neither comprehensive nor universal.
While the principles of complicity liability seem straightforward enough, most of the existing experiments in international criminal law have limited them in one way or another. The case law of the ad hoc tribunals for the former Yugoslavia and Rwanda has required that participation in a crime be ‘substantial.’[14] This may discourage prosecution of economic actors, whose involvement in crimes, though undisputed, may seem to be too remote. The Prosecutors of the ICTY and ICTR have shown little interest in pursuing economic actors, although there is an outstanding indictment for the Rwandan businessman Felicien Kabuga for his role in financing the Rwandan génocidiaires.[15]
Similarly, the jurisdiction of the Special Court for Sierra Leone is confined to ‘persons who bear the greatest responsibility’ for serious violations of international humanitarian law.[16] Determining who bears the greatest responsibility would appear to belong essentially to the realm of the discretion of the Prosecutor. Theoretically, he might determine that transnational diamond merchants, such as De Beers,fall within this category,[17] but this is not the direction that prosecutions have taken, and the initial indictments have been directed to military and political leaders.
Finally, while it may be of considerable interest to pursue private businesses for their complicity in war crimes, and not just the individuals who work within them as managers and directors, this is not always possible. For example, the jurisdiction of the International Criminal Court is confined to ‘natural persons.’[18] Corporate bodies and legal persons were excluded from the Rome Statute for essentially practical reasons. Many domestic justice systems do not provided for criminal prosecution of corporate bodies or legal persons. For the complementary regime of the ICC to operate fairly, it was believed necessary to find a common denominator of all major criminal justice systems, and this made it unrealistic to include a provision on corporations.[19]
Shortcomings of Existing Law
International law endeavors to regulate armed conflict in a number of ways. First, and foremost, it prohibits the use of force except in two extraordinary circumstances, enforcement action pursuant to Chapter VII of the Charter of the United Nations and ‘the inherent right of self-defense. Its success in this area is debatable, and prevention of conflicts may well have more to do with the political and the diplomatic than it does with any legal prohibition. Nobody has been prosecuted for ‘crimes against peace’ since the 1940s. Attempts to make aggression an international criminal offense punishable by the International Criminal Court are proceeding, but at a leisurely pace, and there is no assurance that they will succeed. Two issues make progress difficult in this area: there is no agreement among States about how to define aggression; and there are possible conflicts with the United Nations Security Council should the ICC attempt to determine issues of aggression, because article 39 of the Charter of the United Nations says this is the prerogative of the Council.
The law is considerably more developed and sophisticated in the area of jus in bello, the legal regime governing the conduct of armed conflict, irrespective of whether the war itself is unlawful. In addition to a weighty repertoire of treaties, with the 1949 Geneva Conventions as the centerpiece, international law also brings a rich body of customary norms to bear in this area. As recently as 1996, the world’s supreme judicial body, the International Court of Justice, declared that the ‘cardinal principles’ of international humanitarian law are the obligation to distinguish between combatants and non-combatants, never to make civilians the object of attack, and to eschew the use of weapons that cause unnecessary suffering to combatants.[20]
International humanitarian law provides a relatively sophisticated body of legal rules and principles to govern international armed conflict, many of them customary in nature and developed virtually from antiquity, but it has rather less to say with respect to intra-state armed conflict. This is explained partly by historical reasons and partly by the reluctance of States to allow international law to pry into an area of great sensitivity to them, their conduct in putting down armed challenges to their own authority. To the extent that rules exist to govern the conduct of internal armed conflict, their applicability is conditional on certain threshold definitions. These exclude many low-level conflicts of great seriousness, as well as riots, disturbances and terrorist acts. Although there are important exceptions, such as the recent interventions in Kosovo, Afghanistan, and Iraq, most contemporary armed conflicts are internal in nature.
In parallel with international humanitarian law is the more modern regime of international human rights law. It is said to apply without exception in both peacetime and wartime, and without any interest in whether or not a conflict is international or internal in scope. Nevertheless, certain principles of human rights law, such as the right to a fair trial and freedom of express, can be suspended or derogated from in time of war.[21] Moreover, courts continue to debate whether or not human rights law and humanitarian law operate together, reinforcing each other, or whether one supersedes the other. The International Court of Justice seems to consider that humanitarian law displaces human rights law because it is a specialized body of principles intended to govern situations of armed conflict (lex specialis).[22] Finally, there is an ongoing debate among scholars and practitioners to what extent international human rights law does apply to ‘non-state actors’, like transnational corporations and other economic actors.