Book Symposium Investment Law: Comments on Ambach

[Judge Howard Morrison is a Judge at the ICTY and the ICC]

Dr. Philipp Ambach deals with a topic that is contemporary and contentious.

In a world where the globalisation of most aspects of human life and endeavour is readily apparent it cannot be that case that those who engage in commercial, and often highly profitable, enterprises that have an impact upon the commission of serious crimes have no responsibility and affected communities no redress.

The author deals with the historical foundations of the concept of transnational corporate actors and notes the lacunae in the statutes of the UN ad hoc tribunals in respect of dealing with ‘legal persons’ as opposed to individual liability and potential guilt.

Dr Ambach points out that the exploitation of natural resources in conflict zones can easily further destabilize such situations and may be funding one or more parties to a conflict. Indeed if one examines the ongoing situation in the DRC it is arguable that the conflict is not parallel to such commercial activity but is generated by it and the territorial disputes that surround it. Resource wars, most particularly in a world of exponentially increasing human population, are with us and likely to increase, a situation not lost on the UN bearing in mind UN SC Resolution 1856 (2008). It is ironic that human rights may decrease proportionally with population growth.

The author examines how crimes against humanity and war crimes may be perpetrated by international corporate actors including in internal armed conflicts and cites relevant judgements of the ICTY and ICTR. He focuses on the war crime of pillage which has especial resonance, in particular noting that the ICC requires a qualitative requirement of personal or private use in contradistinction to the definition in the ad hocs.

Dr Ambach also examines genocidal liability and points out the potential although rightly noting the difficulty imposed by the requirement to possess a relevant specific destructive intent. He goes on to examine the crime of aggression and its current limitations.

The author makes a careful analysis of criminal responsibility distinguishing between those of corporate and individual actors  examining the legal requirements in differing national jurisdictions. He makes the important point that whilst there is yet to be a clear or common position in international law regarding the liability of international corporations for international crimes  there is a logical, if sometimes evidentially difficult, route top the liability of individual corporate officials and, perhaps, most obviously CEOs. It is important to remember that at its base level any corporation is simply an assembly of like minded individual pursuing a common commercial enterprise. The prosecution of just one senior director or executive sends a powerful message to the commercial world and should have practical and ethical consequences.

Dr Ambach goes on to examine modes of liability and discusses the vexed question of joint criminal enterprise as against co-perpetration. Making a specific analysis of Article 25 of the Rome Statute he goes on to point out the more obvious practical evidentiary obstacles and the position of an accessory by a virtue of being a corporate representative. It is important to examine Article 25 in all its parts. Dr Ambach takes the reader through the wording and interpretations with useful clarity.

He points out that the representatives of corporations may well have the sufficient mens rea to found liability under the statutes of both the ad hoc tribunals and the Rome Statute of the International Criminal Court. He makes the important point that the law relation to aiding and abetting such offences is far from clear and settled; indeed it is an aspect of the modes of liability that needs to be clarified and standardised to provide both a route to indictment and clarity for legitimate commercial actors.

This is an interesting and well thought through contribution by Dr Ambach which provides a very useful route into this important arena of international law for both the scholar and practitioner alike. He, in my view, rightly concludes that it is time to adjust the system on international criminal justice to the ‘modern landscape of perpetrators of the worst crimes in armed conflict’. This is a proposition difficult to argue against at any level. The reticence of some States to move this area of law forward in a decisive common international endeavour is, at the least, worrying for many tens of thousands of predominantly powerless citizens who are seriously, and too often fatally, affected by the activities of sometimes cynical corporate actors.