Extraterritorial Obligations of Arms Exporting Corporations: New Communication to the ICC

[Marina Aksenova is a Professor of Comparative Criminal and International Law, IE Law School Madrid and Linde Bryk is Legal Advisor – Bertha Justice Fellow, European Center for Constitutional and Human Rights.]

On 11 December 2019, ECCHR together with a group of NGOs – Mwatana (Yemen), Rete Disarmo (Italy), Centre Delàs (Spain), the Campaign Against Arms Trade (UK) and Amnesty International Secretariat – submitted a communication to the Office of the Prosecutor of the International Criminal Court (ICC) urging for the opening of a preliminary examination into the conduct of several European companies supplying weapons to the Saudi/UAE-led coalition currently engaged in the armed conflict in Yemen. The communication alleges that fighter jets and other military equipment supplied by these companies were used in indiscriminate attacks against civilian objects since March 2015 which may have violated Articles 8(2)(c)(i), and 8(2)(e)(i), (ii), (iii), and (iv) of the Rome Statute of the ICC.

This post outlines two important considerations that underlie the submission, namely the timeliness of its focus on corporate actors and the interpretation of the notion of complicity of corporate actors within the meaning of Articles 25(3)(c) and 25(3)(d) of the Rome Statute.

The submission to the ICC draws attention to the obligations of corporate actors in the context of arms trade. This area of business activity is notoriously opaque because it is tightly linked to the conduct of governmental agencies granting arms export licenses. Supply of weapons is only possible due to express authorizations issued by various states. The Arms Trade Treaty (ATT), ratified by all states in question, permits trade in weapons but sets out a number of limitations. For instance, Article 6(3) of the ATT expressly prohibits authorization of the transfer of arms if the State Party has knowledge that the arms would be deployed in the commission of international crimes. Given the complexity of the current transnational corporate structures and the varying scope of licenses granted to companies exporting weapons to Saudi Arabia and other coalition members, the degree and the specificity of knowledge about the crimes committed with these weapons remains to be explored. The purpose of the submission is thus to invite further scrutiny of the conduct of corporate actors providing continued support to the coalition that includes not only the supply of weapons but also their ongoing maintenance. The existence of express state authorization in this case is not to be used to eschew due diligence obligations incumbent on companies, which are required to assess the risk of potential human rights violations resulting from their activities.

The timing of the submission corresponds to the increasing demand on companies to comply with their obligations under international humanitarian and human rights law. The Krupp and IG Farben trials by the US Military Tribunal at Nuremberg and the case of Zyklon B by the British Military Courts were the first attempts to hold individual industrialists to account for complicity in crimes committed during the Second World War. Despite the fact that several domestic jurisdictions allow for criminal responsibility of corporate entities, international criminal law continued developing along the individual responsibility track ever since the initial industrialists’ trials. It is noteworthy that the French proposal to include criminal responsibility of corporations in the Rome Statute of the ICC was not accepted at the conference that drew up the document. Nonetheless, the Statute contains two elaborate articles on modes of liability (Articles 25 and 28) that provide for legal tools to attach responsibility to individuals, including those acting on behalf of corporations.

Recent regional and global developments attest to the fact that the conversation on international corporate criminal liability is not closed: the Malabo Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights adopted on 27 June 2014 and now open for ratifications explicitly extends its jurisdiction to legal persons in Article 46(C). The UN Guiding Principles on Business and Human Rights also instruct corporations to avoid, prevent, and mitigate adverse human rights impacts that are directly linked to their business activities, and in that respect conduct human rights due diligence. Finally, increased attention given to climate change issues invites additional scrutiny of the conduct of multinational corporations in mineral rich areas and the impact of their activities on the environment. Despite these developments, however, prosecutions let alone convictions of individuals acting out of their corporate capacity or corporations as such, for their potential complicity in international crimes, are rare.

Corporations seldom perpetrate international crimes directly since the motive for multinational companies potentially contributing to mass atrocities is usually that of either financial gain or the minimization of losses in the context of existing partnerships. The goal might not directly be to engage militarily or support one of the warring parties but rather to conduct successful business operations with a side-effect of facilitating criminality. Thus, one of the main challenges in preparing the submission to the ICC was establishing the nature of responsibility of individuals within corporations for crimes committed against civilians in Yemen.

Article 25(3)(c) of the Rome Statute is one of the key provisions invoked in the communication to the ICC as it establishes responsibility of those who:

…“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.”

This definition of complicity, which calls for a ‘purposeful contribution’, differs from the test developed by the ad hoc tribunals requiring that the aider and abettor simply “knew (in the sense he was aware) that his own acts assisted the commission of the specific crime in question by the principal offender” (e.g. Vasiljević Trial Judgment, para 71). The wording of ‘purposeful contribution’ appears to have been borrowed by the Rome Statute drafters from Article 2.06(3) of the US Model Penal Code (MPC) demanding that an accomplice aids “with the purpose of facilitating the perpetrator’s conduct.” Interestingly, the MPC does not set out the standard for a minimal contribution to the crime implying that even a marginal contribution can qualify as complicity provided the ‘purpose’ requirement is met. This peculiarity balances out the conduct requirement (the effect of the assistance) and the enhanced fault requirement. It seems like the early ICC case law on the matter follows the same balancing exercise between a lower conduct threshold and a higher threshold for the mental element: the ICC in Bemba (para. 93) held that the level of contribution under Article 25(3)(c) “does not require the meeting of any specific threshold”. The ad hoc jurisprudence, in contrast, demanded from accomplices ‘substantial contribution’ to the crime, which the judges clarified to be a fact-based inquiry (e.g. Prosecutor v Popović et al, para. 1741).

It remains to be seen how the ICC interprets ‘purposeful contribution’ in the context of the present submission. One important clarification in Bemba is that the requirement of ‘purpose’ only applies to the accomplice’s attitude towards their own conduct, whereas a more general awareness of crimes to be committed as a result of this conduct would suffice (paras. 97-98). It appears that the financial incentives for corporate officials who continuously carry out arms trade with Saudi/UAE-led coalition members in the presence of general awareness of the crimes committed in Yemen (widely and regularly documented by several NGOs, UN agencies, as well as news outlets) could serve as the evidence of ‘purpose’. The question to be examined by the ICC is whether express authorizations for arms exports given by the respective states to corporations under the licensing regime obviate the existence of fault in corporate officials. The communication to the ICC argues that they might not. First of all, the licenses do not create a duty for a corporation to export. Secondly, it is foreseeable to corporations that the weapons they supply to the Saudi/UAE-led coalition in Yemen are likely to be used to commit crimes given the abundance of documentation of serious and repeated violations of international humanitarian law committed by the coalition.

Another possibility to potentially hold corporate actors responsible for assisting war crimes in Yemen for supplying weapons and providing maintenance is by virtue of Article 25(3)(d) of the Rome Statute. This provision criminalizes intentional contributions to a group of persons acting with a common purpose made either (i) with the aim of furthering activity of the group, where it involves a commission of a crime; or (ii) with the knowledge of the intent of the group to commit the crime (emphasis added). The crucial elements to prove under this mode of liability are the existence of a group (the Saudi/UAE-led coalition could potentially qualify as one) and the contribution made either with intent or with mere awareness. In the latter case, however, the provision makes it clear that facilitation of the specific crime must be shown. The question then shifts to the level of the specificity of knowledge of the accomplice about the crime to which they render their assistance. Given that the supplies of weaponry to the coalition are continuous in nature, and in the presence of a large body of openly available information about war crimes committed in Yemen, one may establish the connection of the corporate agents to the specific crimes falling within the range of contemplated offences. In other words, contribution is made with awareness that the crimes within certain range – in this case, aerial attacks on civilians – are being committed using the supplied materials as well as logistical support. It is now up to the Office of the Prosecutor of the ICC to determine whether to move to the stage of preliminary examinations and, later on, investigation in the case. In addition, nothing stands in the way of national prosecutor to act similarly. An investigation by the Office of the Prosecutor into the potential complicity of arms exporters in the commission of alleged war crimes committed in Yemen by the Saudi/UAE-led coalition would be a step towards closing the corporate impunity gap and might have a deterrent effect on economic actors to engage and enable the commission of war crimes by providing the means, such as for example arms.