War economies, economic actors, and international criminal law

1、economic actors and criminal liability / william a. schabaswar economies, economic actorsand international criminal lawwilliam a. schabas* professor, director of irish centre for human rightsthe newly-elected chief prosecutor of the international criminal court (icc), in one of his first public decl

2、arations 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

3、what were described as money-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

4、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

5、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 believe

6、s 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 a

7、nd 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. communications received by the office of the prosecutor of the icc, press release no.: pids.009.2003-en

8、, 16 july 2003, pp. 3-4.the prosecutors 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. tha

9、t economic factors would figure so prominently on his agenda was quite astonishing and utterly unexpected, especially because the courts jurisdictional framework seems to leave it very few, if any, tools with which to address economic dimensions of armed conflict including money-laundering, illicit

10、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 be

11、st, 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

12、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 beginnin

13、g to contemplate the creation of a new legal regime better adapted to tackle these 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 natu

14、ral resources and markets, although somewhere in the distant past it may be possible to identify a role for ideological factors and political objectives. mats berdal and david m. malone (eds.): greed and grievance: economic agendas in civil wars, boulder and london: lynne rienner, and ottawa: intern

15、ational development research centre, 2000. 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 d

16、uration 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, 2003prosecutor ocampos laconic statement nevertheless highlighted some

17、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 crimin

18、als 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

19、 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, t

20、he 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. prosecutor v. kunarac et al. (case no. it-96-23-t and it-96-23/1-t), decision on moti

21、on for acquittal, 3 july 2000. prohibitions of pillage and plunder can be found in: convention (iv) respecting the laws and customs of war by land, 1910 u.k.t.s. 9, annex, arts. 28, 47; agreement for the prosecution and punishment of major war criminals of the european axis, and establishing the cha

22、rter of the international military tribunal (i.m.t.), annex, (1951) 82 u.n.t.s. 279, art. vi(b); convention (iv) relative to the protection of civilian persons in time of war, (1950) 75 u.n.t.s. 287, art. 33; statute of the international criminal tribunal for the former yugoslavia, un doc. s/res/827

23、 (1993), annex, art 2(d); rome statute of the international criminal court, un doc. a/conf.183/9, arts. 8(2)(a)(iv).catching the accomplicesonly days after the adoption of the rome statute of the international criminal court at the conclusion of the rome conference in july 1998, the prestigious brit

24、ish business daily the financial times published an article warning commercial lawyers that the treatys accomplice liability provision could create international criminal liability for employees, officers and directors of corporations. writer maurice nyberg referred to condemnation of violations of

25、human rights involving multinational corporations by non-government organizations like human rights watch, adding that it takes little imagination to jump from complicity with human rights violations to complicity with crimes covered under the icc treaty. maurice nyberg, at risk from complicity with

26、 crime, financial times, 27 july 1998.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 inv

27、ariably be indirect, as financiers, or as merchants of weapons and other war paraphernalia, 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

28、 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, apar

29、theid 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. complicity is also included in other instruments, such as: convention on the prevention and p

30、unishment of the crime of genocide, (1951) 78 u.n.t.s. 277, art. iii(e); convention against torture and other cruel, inhuman or degrading treatment or punishment, (1987) 1465 u.n.t.s. 85, art. 4(1); statute of the international criminal tribunal for the former yugoslavia, supra note 3, arts. 4(3)(e)

31、, 7(1); statute of the international criminal tribunal for rwanda, un doc. s/res/955, annex, arts. 2(3)(e), 6(1); statute of the special court for sierra leone, art. 6(1). an individual can be prosecuted for war crimes or crimes against humanity if he or she(c) for the purpose of facilitating the co

32、mmission 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. su

33、ch 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 intenti

34、on of the group to commit the crimeit should be relatively easy to understand how an economic actor might fall within the reach of these provisions. see: william a. schabas, enforcing international humanitarian law: catching the accomplices, (2001) 83 international review of the red cross 439; tom f

35、arer, shaping agendas in civil wars: can international criminal law help?, in mats berdal and david m. malone, supra note 2, pp. 205-232. although the subject has received little or no attention from the ad hoc international criminal tribunals for the former yugoslavia (icty) or rwanda (ictr), there

36、 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. united kingdom v. kramer et al. (belsen trial), (1

37、947) 2 law reports of the trials of the war criminals 1 (british military court), p. 4. 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 smal

38、l in an offence, they were parties to the whole. ibid., pp. 109, 120. 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. united states of america v. carl krauch et al. (the i.g.

39、 farben case), (1948) 8 trials of the war criminals 1169, p. 1180. two of them, friedrich flick and otto steinbrinck, were found guilty of complicity because of their financial support of ss leader heinrich himmlers activities and, more generally, those of the ss. united states of america v. friedri

40、ch flick et al. (the flick case), (1948) 6 trials of the war criminals 1217-1221. 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 relativ

41、ely 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. prosecutor v. tadic (case no. it-94-1-a), judgment, 15 july 1999, 15 july 1999. also: prosecutor v. krnojelac (cas

42、e no. it-97-25-pt), decision on form of second amended indictment, 11 may 2000; prosecutor v. brdjanin & talic (case no. it-99-36-pt), decision on form of further amended indictment and prosecution application to amend, 26 june 2001; prosecutor v. krnojelac (case no. it-97-25-t), judgment, 15 march

43、2002 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 t

44、his 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

45、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. e.g., prosecutor v. sankoh (case no. scsl 2003-02-i), indictme

46、nt, 7 march 2003, para. 27; prosecutor v. sesay (case no. scsl 2003-5-i), indictment, 7 march 2003, para. 23; prosecutor v. koroma (case no. scsl 2003-3-i), indictment, 7 march 2003, para. 24; prosecutor v. brima (case no. scsl 2003-6-i), indictment, 7 march 2003, para. 23; prosecutor v. taylor(case

47、 no. scsl 2003-03-i), indictment, 7 march 2003, paras. 20, 23.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 of

48、f 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 po

49、ison, 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 conflic

50、t 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

51、 use of prohibited weapons an analogy here would be the conviction of those who supplied zyklon-b gas to nazi extermination camps united kingdom v. tesch et al. (zyklon b case), (1947) 1 law reports of the trials of the war criminals 93 (british military court), pp. 93-101. most of the lethal weapon

52、s 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 cri

53、minal 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. prosecutor v. tadic (case no. it-94-1-t), opinion and judgment, 7 may 1997, paras. 691, 692. also: prosecutor v. del

54、alic et al. (case no. it-96-21-t), judgment, 16 november 1998, para. 326; prosecutor v. furundzija (case no. it-95-17/1-t), judgment, 10 december 1998, paras. 223, 234; prosecutor v. aleksovski (case no. it-95-14/1-t), judgment, 25 june 1999, para. 61. this may discourage prosecution of economic act

55、ors, 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 g

56、nocidiaires. prosecutor v. bizimana et al. (case no. ictr-98-44-i), prosecutors amended indictment pursuant to the decision of trial chamber ii on the defence motion, 21 november 2001, paras. 4.24-4.25.similarly, the jurisdiction of the special court for sierra leone is confined to persons who bear

57、the greatest responsibility for serious violations of international humanitarian law. statute of the special court for sierra leone, art. 1. determining who bears the greatest responsibility would appear to belong essentially to the realm of the discretion of the prosecutor. theoretically, he might

58、determine that transnational diamond merchants, such as de beers, fall within this category, l. sanders, rich and rare are the gems they war: holding de beers accountable for trading conflict diamonds, (2001) 24 fordham international law journal 1402. but this is not the direction that prosecutions

59、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 crimin