14 Nov The Business of Genocide: The Trial of Félicien Kabuga – Can International Criminal Law Hold Corporate Criminals Accountable?
[Dr Jonathan Kolieb is Senior Lecturer and Peace and Conflict Theme Lead, Business and Human Rights Centre, at RMIT University in Australia. Ann Letch is a PhD Candidate at RMIT University, Australia.]
Another chapter in the pursuit of accountability for business people for committing heinous human rights abuses is (finally) unfolding in The Hague, Netherlands over the coming weeks. After 26 years on the run, Félicien Kabuga’s trial for his involvement in the Rwandan genocide got underway in late September at the United Nations’ International Residual Mechanism for Criminal Tribunals – the successor body to the International Criminal Tribunal for Rwanda (‘ICTR’).
In what is envisaged as one of that tribunal’s final prosecutions, Kabuga is accused, according to the indictment, of playing a critical role in enabling the 1994 genocidal campaign by Hutus that led to the deaths of 800,000 Tutsis.
Kabuga is now an old man, and his two decades living as a free man, most recently in Paris, may diminish the sense of justice being meted out. Nevertheless, Kabuga’s prosecution holds special significance as he is not accused of being a direct participant in the murders of Tutsi citizens of Rwanda, nor is he accused of being a commander of the interehamwe Hutu militia. Rather, Kabuga is accused of facilitating the Tutsi genocide – through his various business enterprises that included a radio station and an import-export company.
It is alleged that these seemingly mundane business interests were deliberately and intentionally deployed by Kabuga to encourage and enable the genocide. Through the airing of vile anti-Tutsi radio commentary and songs on Radio Télévision Libre des Mille Collines – the station Kabuga founded and where he served as Chairman and Director General – to the importation and distribution of thousands of machetes by his company to the interehamwe militia – that were then used to literally cut down their Tutsi victims.
Kabuga’s trial coincides with increasing awareness of the responsibility of business to respect and uphold human rights – evident in recent domestic civil litigation and criminal prosecutions, new and proposed laws and regulations around human rights due diligence in various jurisdictions, and the conduct of leading businesses themselves. If the lessons of Kabuga’s story are heeded, it may be a significant moment in the fight to end impunity for the participation of economic actors in atrocity crimes – businesspeople that aid, abet, or facilitate genocide and war crimes.
‘I would not have killed my customers.’
This was Félicien Kabuga’s blithe response in May 2021 when the charges against him of genocide and crimes against humanity were read out in a court in Paris during an extradition hearing. The chilling simplicity of his comment suggests, and Kabuga’s Defence counsels’ opening statements confirm, his defence will contend that his actions were not intended to achieve the genocidal ends as alleged but to make a profit. His lawyers claimed ‘Félicien Kabuga was not a warlord, but a businessman caught up in the ensuing chaos.’
The Defence also suggested that the concept of command responsibility – familiar in war crimes trials of military leaders – has no role here: ‘Just because he was on the board he should not be held responsible for all journalists and on-air talent at Radio Télévision Libre des Mille Collines… he (Kabuga) was ‘not an editor and wasn’t in charge of editorial content.’
Whatever Kabuga’s personal fate at the hands of international criminal justice, what is also on trial is whether international criminal justice is capable of holding economic actors accountable for their involvement in the most grave crimes committed against humanity.
The Nuremberg Legacy
How to grapple with the role of economic actors in ICL dates back to one of its most seminal moments: the Nuremberg trials of the post-World War II era. It was the Allies intention that the major International Military Trial at Nuremberg would include a representative leader of German industry – Gustav Krupp – to stand trial alongside Germany’s political and military leaders.
Krupp, the dynastic head of a conglomerate bearing his name, was the major weapons supplier to Nazi Germany. Due to ill-health, Krupp was dropped as a defendant. So the “trial of the century”, the first international criminal trial, concluded without any German industry leader being held accountable.
To be sure, the subsequent trials held by the Allies did try and find guilty of war crimes and crimes against humanity dozens of German corporate executives and directors, including weapons manufacturers, those that knowingly benefitted from slave labour, and even the businessmen that supplied Zyklon B g as to Auschwitz-Birkenau and other Nazi extermination camps.
At Nuremberg it was individuals within businesses that were held accountable. Individual criminal responsibility is a hallmark of international criminal justice, then and now, for as the Nuremberg Tribunal declared in its famous judgment: ‘Crimes against international law are committed by men not by abstract entities.’
Clean Hands, Guilty Minds
Leaving to one side the vexed question of whether companies themselves should be held accountable before ICL, since Nuremberg individual corporate actors have rarely found themselves in the dock before other international criminal tribunals. Lack of resources and the need to prioritise cases are contributing factors here. But the inherent practical difficulties in proving economic actors possess the requisite intent (mens rea or “guilty mind”) to the satisfaction of the court may also be another important hurdle inhibiting more prosecutions of senior businesspeople, like Kabuga.
Kabuga will attempt to hide behind a version of the ‘corporate veil’ – wherein a corporate manager or board officer maintains that their activities were undertaken in service of the legitimate aims of the company and therefore lack the requisite intent to commit any international crimes.
It can be difficult to prove beyond a reasonable doubt that any one individual within a collective entity possessed the requisite guilty mind to be held legally responsible. This weakness offers financiers and businesspeople a chink in the armour of international criminal law and its mantra of individual criminal responsibility. Addressing this flaw may remove a barrier to accountability and prevent individuals such as Kabuga from invoking the commercial imperative as a defence to crimes against humanity.
In the present case, there is no allegation that Kabuga has ‘blood on his hands’ in a physical sense. It is not alleged he engaged in any physical violence himself but that he enabled it. This raises fundamental concerns in relation to what the legal mental element of the “guilty mind” is in these circumstances and what methods can be used to prove it.
Indeed, Kabuga’s defence team has already flagged that they intend to poke holes in the evidentiary basis of Kabuga’s prosecution. In their opening statement, his lawyers suggested the case against him was built on circumstantial evidence based on hearsay akin to a ‘sandcastle’ and one that will fall ‘like a set of dominoes.’
Despite his political role in Rwanda (as financier of a political organisation and a founder and shareholder in a radio station which incited racial hatred), the former businessman may maintain that the financing and distribution of weapons and ammunition, including machetes, was an entrepreneurial venture and he is not culpable for the manner in which they were later used, to murder and mutilate.
It is well-accepted that corporate interests and economic actors have frequently played a role in the fomenting and waging of war. The reach of international justice must extend not merely to military or political leaders but to corporate leaders as well – this was true in the post-World War II period and remains true today. Where companies contribute to the commission of war crimes, genocide and crimes against humanity their leaderships must not go unaccountable, unpunished.
It is evident from the dearth of similar prosecutions since Nuremberg that more could be done to strengthen international criminal law’s ability to deal with economic actors implicated in atrocity crimes. Whatever the outcome in Kabuga’s trial it must become the catalyst for strengthening the system’s ability to hold such economic actors accountable and deter future corporate involvement in genocides and other atrocities – be it in Rwanda, Ukraine, Myanmar or anywhere else.
Overcoming Impunity – Next Steps
The Prosecutor of the ICC, Karim Khan QC, must follow through on his two predecessors’ commitment to pursue corporate actors involved in atrocity crimes. No such case has yet been prosecuted at the ICC despite several briefs submitted to the Office of the Prosecutor implicating various corporate actors in alleged international crimes.
Mr Khan could demonstrate his commitment to hold corporate actors accountable by immediately rectifying the omission of an advisor on this issue amongst his twenty strong retinue of Special Advisers on such wide-ranking issues as climate, sexual violence, and slavery that he appointed earlier this year.
The absence of an expert on international corporate criminal accountability is an oversight that should be addressed forthwith. One task of that Special Adviser could be to develop authoritative guidance on reconciling international criminal law’s focus on the individual and its conception of the guilty mind with the pursuit of crimes committed by collective entities such as companies.
Consideration of how to do so – including the possibility of amending the Rome Statute of the International Criminal Court to allow for the prosecution of corporations, rather than just individuals within companies – should be placed on the agenda of the next Assembly of State State Parties to the Rome Statute later this year.
The International Criminal Court should strengthen their engagement with the proposed binding Business and Human Rights Treaty currently being negotiated at the United Nations. Such a treaty must include strong and viable accountability pathways, including criminal prosecution at the national, regional and international levels for the most egregious of corporate human rights-related crimes.
There are other immediate steps Mr Khan could take. He has been (rightly) quick to investigate allegations of Russian forces’ war crimes in Ukraine. He should announce that he is extending international criminal law’s gaze to investigate the legal culpability of businesspeople and corporations who continue to provide technology, financing, logistics or other support to Russia’s illegal invasion and war against Ukraine.
Whether Félicien Kabuga will be found criminally culpable for his participation in one of the most heinous crimes of the 20th century will be determined over the coming months. Regardless, this rare moment of a businessman as defendant in an international criminal trial is an important reminder, as the Nuremberg Trials declared 76 years ago, that you may be just as culpable for atrocities whether wielding a machete on the front line, spreading propaganda via a radio mike or carrying a briefcase and wearing a business suit.