Book Symposium Investment Law: International Criminal Responsibility of Transnational Corporate Actors Doing Business in Zones of Armed Conflict

[Dr. Philipp Ambach is the Special Assistant to the President of the International Criminal Court. The views expressed are those of the author alone and cannot be attributed the International Criminal Court.]

The vast majority of armed conflicts of our times is, if not based on, at least closely tied with the economic interests of the belligerent parties or stakeholders behind the scenes. Business corporations which maintain trade relations with partner groups or entities that are, at the same time, engaged in an internal or international armed conflict may become directly or indirectly involved in the commission of serious crimes. Many international corporate actors provide financial resources to regional armed groups through the trade of goods that are the product of exploitation of natural resources in conflict zones, such as gold, diamonds, oil, uranium and other precious or strategic resources (so-called ‘resource wars’). These economic transactions often destabilize the region affected by armed conflict and even put oil on the fire of a looming conflict if the economic transactions serve to strengthen one or the other or both warring parties in the conflict.

Those economic actors involved may incur criminal liability if they are aware that their goods or funds serve to provide these armed groups with weapons or other means of warfare subsequently used against civilians. The crimes committed may amount to international crimes such as war crimes, crimes against humanity or genocide. In such cases, corporate actors may even come under scrutiny by the International Criminal Court (‘ICC’) for their participatory role in such crimes, if the individual criminal liability of the person(s) in control of such financial transactions on behalf of a corporate actor can be established.

International courts and tribunals have devoted little to no attention to the issue since the post-World War II criminal proceedings held against German businessmen who had been economically involved in the war (See the discussion by Nerlich). Also the UN ad hoc-Tribunals for the former Yugoslavia and for Rwanda, set up in the mid-nineties, and the ICC (which became operational in July 2002) have been set up to try individuals for international crimes; their statutes do not provide for criminal liability for corporate actors, as they are based on the principle of individual guilt for criminal conduct (nulla poena sine culpa). In contrast, companies have a corporate (not: individual) identity and are legally best described as ‘legal persons’ – to which the concept of individual guilt cannot easily be ascribed. However, even in larger corporations decisions on specific transactions are being taken by a rather small panel of senior stakeholders who are heading the corporation. Despite their remoteness from the crimes committed on the ground, individual criminal liability may attach to them if each individual only knew that the immediate effect of their business transaction would be the (continued) commission of crimes.

Individual criminal liability of representatives of corporations for international crimes can be ascribed broadly in two forms: either the company representative acts in close cooperation with his or her business partners as a co-author of crimes commonly envisaged; or the individual corporate actor’s contribution to the crime is of an auxiliary nature while the design and control over the crime is left to the business partner.

The case of co-perpetratorship will in practice be hard to prove since it will in many cases prove difficult to establish that a corporate actor’s contribution was objectively significant enough. Further, and equally importantly, it will be hard to prove on the subjective side (mens rea) that an economic actor even accepted the commission of crimes as part of his or her economic transaction, let alone intended the crimes to be committed.

However, corporate representatives may be held responsible also for their participation in a crime as an accessory, i.e. as an aider and abettor to somebody else’s crime. The statutes of the IC , the UN ad hoc Tribunals as well as other international(ised) tribunals foresee this participatory form of criminal conduct explicitly. No cause-effect relationship between the conduct of the aider and abettor and the commission of the crime is required (see Mrkšić and Ntawukulilyayo). Further, the assistance need not be rendered at the location or time when the crime is committed – a detail of high importance in the corporate context where the corporate actor’s contribution lies in a commercial transaction. Furthermore, the requirements on the corporate representative’s mens rea are arguably inferior to those applicable in case of co-perpetratorship. Mere knowledge of the principal perpetrators’ crime(s) suffices, paired with an intention to carry out the auxiliary act.

However, a number of aspects regarding the definition of “aiding and abetting” differ when compared between the UN ad hoc Tribunals, the Special Court for Sierra Leone and the ICC (these aspects are highlighted in further detail in the article).

In conclusion, international awareness fosters that corporate actors involved in business within zones of ongoing armed conflict often fuel and exacerbate these conflicts. It is now time to adjust the system of international criminal justice to the modern landscape of perpetrators of the worst crimes in armed conflict – including corporate actors.