War economies, economic actors, and international criminal law

1、war 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 declarations dealing with prosecutorial strategies and orientat

2、ions, 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 what were described as money-laundering and other crimes co

3、mmitted 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 eastern companies and the atrocities taking place in the de

4、mocratic 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 concern that the atrocities allegedly committed in the coun

5、try 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 believes that investigation of the financial aspects of the allege

6、d 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 and prosecuted. the office of the prosecutor is establishing

7、 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, 16 july 2003, pp. 3-4.the prosecutors declaration had bee

8、n 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. that economic factors would figure so prominently on his agend

9、a 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 natural resource exploitation and the illicit arms trade. i

10、ndeed, 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 best, they are conceptualized as secondary participants in in

11、ternational 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 prosecutor ocampo is surely aware of the obstacles in his w

12、ay, 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 beginning to contemplate the creation of a new legal regime better

13、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 natural resources and markets, although somewhere in the distan

14、t 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: international development research centre, 2000. prosecutor ocamp

15、os laconic statement nevertheless highlighted some 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

16、world seems to point to classic white collar criminals 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

17、 clandestine activities situate them in a different 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

18、the economic dimensions of war crimes themselves, the 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

19、 no. it-96-23-t and it-96-23/1-t), decision on motion 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 crimi

20、nals of the european axis, and establishing the charter 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 tr

21、ibunal for the former yugoslavia, un doc. s/res/827 (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

22、 rome conference in july 1998, the prestigious british 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 mauric

23、e nyberg referred to condemnation of violations of 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 t

24、reaty. maurice nyberg, at risk from complicity with 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

25、, quite adequate. the participation will almost invariably 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

26、 non-combatants are being victimized. note that the 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”

27、 international crimes: torture, disappearance, apartheid 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 instr

28、uments, such as: convention on the prevention and punishment 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

29、 the former yugoslavia, supra note 3, arts. 4(3)(e), 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

30、he or she(c) 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;(d) in any other way contributes to the commission or attempted commission of such a crime by

31、a group of persons acting with a common purpose. such 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 cou

32、rt; or (ii) be made in the knowledge of the intention 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)

33、83 international review of the red cross 439; tom farer, 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 t

34、he former yugoslavia (icty) or rwanda (ictr), there 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.

35、 united kingdom v. kramer et al. (belsen trial), (1947) 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 t

36、hat if a number of people took a part, however small 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. unite

37、d states of america v. carl krauch et al. (the i.g. 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, t

38、hose of the ss. united states of america v. friedrich 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

39、as joint criminal enterprise, by which even relatively 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 199

40、9, 15 july 1999. also: prosecutor v. krnojelac (case 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. k

41、rnojelac (case no. it-97-25-t), judgment, 15 march 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 speci

42、al court for sierra leone is promising to explore this 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 wa

43、s to gain and exercise political power and control 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., prose

44、cutor v. sankoh (case no. scsl 2003-02-i), indictment, 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

45、, 7 march 2003, para. 23; prosecutor v. taylor(case 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 i

46、ts problems. first, if the objective is to choke off 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 s

47、tatute prohibits use of certain weapons, such as poison, 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. a

48、nti-personnel mines were widely used in the conflict 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 manufact

49、urer or trafficker who knowingly contributes to the 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 mil

50、itary court), pp. 93-101. most of the lethal weapons 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, mo

51、st of the existing experiments in international criminal 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

52、 may 1997, paras. 691, 692. also: prosecutor v. delalic 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.

53、61. this may discourage prosecution of economic actors, 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 feli

54、cien kabuga for his role in financing the rwandan gnocidiaires. 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 cour

55、t for sierra leone is confined to persons who bear 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 dis

56、cretion of the prosecutor. theoretically, he might 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 140

57、2. but this is not the direction that prosecutions 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 wi

58、thin them as managers and directors, this is not always possible. for example, the jurisdiction of the international criminal court is confined to natural persons. rome statute of the international criminal court, supra note 3, art. 25(1). corporate bodies and legal persons were excluded from the ro

59、me statute for essentially practical reasons. many domestic justice systems do not provided for criminal prosecution of corporate bodies or legal persons. for the complementary regime of the icc to operate fairly, it was believed necessary to find a common denominator of all major criminal justice systems, and this made it unrealistic to include a provision on corporations.