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Developments in international criminal law and the case of business involvement in international crimes

Published online by Cambridge University Press:  31 October 2013

Joanna Kyriakakis
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Abstract

In the wake of the mandate of the Special Representative of the United Nations Secretary-General for Business and Human Rights (SRSG), international criminal law looks set to play a role in measures towards the legal accountability of business actors involved in gross human rights and humanitarian law violations. Against the backdrop of the SRSG's now completed mandate, this article looks at three recent developments in international criminal law to consider the field's potential relevance to business actors involved in conflict. The first is the newest mode of liability recently adopted by the International Criminal Court, indirect perpetration through an organisation. The second is the aiding and abetting doctrine as applied by the Special Court for Sierra Leone in the Charles Taylor case. The third is the potential uptake of a practice of thematic prosecutions focusing on particular under-regulated issues of concern for the international community.

Keywords

international criminal lawbusiness actorsindirect perpetration through an organisationthematic prosecutions
Type
Business and the law – in armed conflict and other situations of violence
Information
International Review of the Red Cross , Volume 94 , Issue 887: Business, violence and conflict , September 2012 , pp. 981 - 1005
Copyright
Copyright © International Committee of the Red Cross 2013 

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References

1 Throughout this paper the term ‘business actors’ refers to both collective business entities as legal persons, such as corporations, and business officials as natural persons.

2 See, e.g., ‘Workshop’, in Journal of International Criminal Justice, Vol. 6, No. 5, 2008, pp. 899–979; and Journal of International Criminal Justice: Special Issue – Transnational Business and International Criminal Law, Vol. 8, No. 3, 2010.

3 The SRSG's original mandate is set out in Human Rights and Transnational Corporations and Other Business Enterprises, Commission on Human Rights (CHR), UN Doc. E/CN.4/RES/2005/69, 20 April 2005. The UN Human Rights Council (HRC) extended the SRSG's mandate for a further three years in 2008. See HRC, Mandate of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc. A/HRC/RES/8/7, 18 June 2008.

4 See ‘The UN SRSG and the special case of international crimes’, below.

5 On definitional debates in international criminal law as to what constitutes an international crime, see Cryer, Robert, Friman, Hakan, Robinson, Darryl, and Wilmshurst, Elizabeth, An Introduction to International Criminal Law and Procedure, 2nd edition, Cambridge University Press, New York, 2010, pp. 3–12Google Scholar.

6 van den Herik, Larissa and Dam-de Jong, Daniella, ‘Revitalizing the antique war crime of pillage: the potential and pitfalls of using international criminal law to address illegal resource exploitation during armed conflict’, in Criminal Law Forum, Vol. 15, 2011, p. 245Google Scholar.

7 Ibid., pp. 238–250.

8 See, e.g., the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes (ICJ Expert Panel), Corporate Complicity and Legal Accountability, Vol. 2, International Commission of Jurists, Geneva, 2008, pp. 2–4.

9 See, e.g., HRC, Protect, Respect and Remedy: a Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, UN Doc. A/HRC/8/5, 7 April 2008 (hereinafter the Framework), paras. 47–49; HRC, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, UN Doc. A/HRC/17/31, 21 March 2011 (hereinafter Guiding Principles), Principle 7, pp. 10–11. See also HRC, Business and Human Rights in Conflict-Affected Regions: Challenges and Options towards State Responses, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, UN Doc. A/HRC/17/32, 27 May 2011. While the Guiding Principles refer only to the inability of the host state to protect human rights in conflict contexts due to a lack of effective control, international criminal law teaches us that another factor often at play is an unwillingness on the part of host states to protect against international crimes due to the state's own involvement in such crimes.

10 L. van den Herik and D. Dam-de Jong, above note 6, p. 246. For an analysis of international criminal law as an enforcement tool for human rights law in the context of corporate conduct, see van den Herik, Larissa and Cernic, Jernej Letnar, ‘Regulating corporations under international law: from human rights to international criminal law and back again’, in Journal of International Criminal Justice, Vol. 8, No. 3, 2010, pp. 725–743CrossRefGoogle Scholar.

11 See, e.g., Ratner, Stephen R., ‘Corporations and human rights: a theory of legal responsibility’, in The Yale Law Journal, Vol. 111, 2001, pp. 461–473CrossRefGoogle Scholar; Joseph, Sarah, ‘Taming the leviathans: multinational enterprises and human rights’, in Netherlands International Law Review, Vol. 46, No. 2, 1999, pp. 176–181CrossRefGoogle Scholar.

12 Most significant were the trials of German industrialists before the US Military Tribunal sitting at Nuremberg under Control Council Order 10: US v. Friedrich Flick et al., Opinion and Judgement of 22 December 1947, Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. VI, 1952, pp. 1187–1223; US v. Krauch et al., Judgement of 29 July 1948, Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. VIII, 1952, pp. 1081–1210; US v. Alfried Krupp et al., Judgement of 31 July 1948, Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. IX, 1950, pp. 1327–1452. For a summary of the trials of German industrialists in the post-war period see Lippman, Matthew, ‘War crimes trials of German industrialists: the “other Schindlers”’, in Temple International and Comparative Law Journal, Vol. 9, No. 2, 1995, pp. 173–267Google Scholar. For a detailed analysis of the legal theories considered for the industrialist trials, see Bush, Jonathan, ‘The prehistory of corporations and conspiracy in international criminal law: what Nuremberg really said’, in Columbia Law Review, Vol. 109, No. 5, 2009, pp. 1094–1240Google Scholar.

13 For example, on the prosecutorial announcements and policies of the Office of the Prosecutor of the International Criminal Court with respect to business actors who finance or support international crimes, see Gallmetzer, Reinhold, ‘Prosecuting persons doing business with armed groups in conflict areas: the strategy of the Office of the Prosecutor of the International Criminal Court’, in Journal of International Criminal Justice, Vol. 8, No. 3, 2010, pp. 947–956Google Scholar.

14 For a typology of fact scenarios that place companies within legal risk zones with respect to complicity in international crimes, see ICJ Expert Panel, above note 8, pp. 37–43. See also Kaleck, Wolfgang and Saage-Maaβ, Miriam, ‘Corporate accountability for human rights violations amounting to international crimes: the status quo and its challenges’, in Journal of International Criminal Justice, Vol. 8, No. 3, 2010, pp. 700–709Google Scholar.

15 HRC, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, Report of the Special Representative of the Secretary-General (SRSG) on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc. A/HRC/4/035, 9 February 2007, (hereinafter the 2007 Report), paras. 1–4 and 82. On the dynamics of the problem see the Framework, above note 9, paras. 3–4 and 11–16.

16 Ibid.

17 Ibid.

18 Ibid., para. 36 (on developing countries) and paras. 47–49 (on conflict zones).

19 Ibid.

20 Ibid.

21 The Guiding Principles, above note 9.

22 HRC, Mandate of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Res. 8/7, 18 June 2008; HRC, Human Rights and Transnational Corporations and Other Business Enterprises, Res. 17/4, UN Doc. A/HRC/RES/17/4, 6 July 2011.

23 As a follow-up to the SRSG's mandate, the HRC has established a Working Group on business and human rights whose work is largely directed towards the implementation of the Guiding Principles. See ibid., para. 6.

24 Simons, Penelope, ‘International law's invisible hand and the future of corporate accountability for violations of human rights’, in Journal of Human Rights and the Environment, Vol. 3, No. 1, 2012, p. 9CrossRefGoogle Scholar.

25 On the uptake of the Guiding Principles, see HRC, Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc. A/HRC/20/29, 10 April 2012, paras. 22–40.

26 P. Simons, above note 24, pp. 9–10.

27 See, e.g., the Framework, above note 9, paras. 6 and 51–53 (rejecting the Norms' attempt to identify a limited set of rights for which corporations have responsibilities) and paras. 66–72 (rejecting the Norms' reliance on spheres of influence).

28 For an outline of the Norms, their relationship to the work of the SRSG and the political debates that they have engendered, see Kinley, David, Nolan, Justine, and Zerial, Natalie, ‘The politics of corporate social responsibility: reflections on the United Nations Human Rights Norms for Corporations’, in Company and Securities Law Journal, Vol. 25, No. 1, 2007, pp. 30–42Google Scholar.

29 Seck, Sara L., ‘Collective responsibility and transnational corporate conduct’, in Isaacs, Tracy and Vernon, Richard (eds), Accountability for Collective Wrongdoing, Cambridge University Press, Cambridge, 2011, p. 141Google Scholar.

30 See, e.g., Human Rights Watch, ‘UN Human Rights Council: weak stance on business standards’, news release, 16 June 2011, available at: www.hrw.org/news/2011/06/16/un-human-rights-council-weak-stance-business-standards (last visited 30 May 2012).

31 Deva, Surya, ‘Guiding Principles on Business and Human Rights: implications for companies’, in European Company Law, Vol. 9, No. 2, 2012, pp. 101–109Google Scholar.

32 Ibid.

33 Ibid., p. 107.

34 Guiding Principles, above note 9, commentaries on Principles 17 and 23.

35 The 2007 Report, above note 15, para. 20.

36 Ibid., para. 21.

37 Ibid., para. 27.

38 Ibid., para. 22. See also paras. 19–32 on ‘Corporate responsibility and accountability for international crimes’. See also the Framework, above note 9, para. 20.

39 The 2007 Report, above note 15, para. 84.

40 See, e.g., S. L. Seck, above note 29, pp. 140–141, 150–151, and 157; P. Simons, above note 24, pp. 9–10; International Law Association Committee on Non-State Actors, First Report of the Committee: Non-State Actors in International Law: Aims, Approach and Scope of the Project and Legal Issues, The Hague, 2010, p. 17Google Scholar, available at: www.ila-hq.org/en/committees/index.cfm/cid/1023 (last visited 30 May 2012) (identifying as an exception in the SRSG's work the violation of jus cogens norms). It is worth noting that the SRSG has recently clarified his findings that there is strong evidence to support the idea that corporations may be liable for international crimes. This comes in direct response to claims that his work resolves that corporations do not have binding obligations under international law. See Professor John Ruggie, Professor Philip Alston, and the Global Justice Clinic at NYU School of Law, ‘Brief Amici Curiae of Former Special Representative for Business and Human Rights, Professor John Ruggie; Professor Philip Alston; and the Global Justice Clinic at NYU School of Law in Support of Neither Party’, in Esther Kiobel v. Royal Dutch Petroleum, No. 10-1491, 12 June 2012.

41 ICJ Expert Panel, above note 8, p. 5.

42 Ibid.

43 On the general exclusion of business actors from prosecutorial policy since Nuremberg, see Schabas, William, ‘War economies, economic actors and international criminal law’, in Ballentine, Karen and Nitzschke, Heiko (eds), Profiting From Peace: Managing the Resource Dimensions of Civil War, Lynne Rienner Publishers, Boulder, 2005, p. 440Google Scholar; Jessberger, Florian, ‘On the origins of individual criminal responsibility under international law for business activity: IG Farben on trial’, in Journal of International Criminal Justice, Vol. 8, No. 3, 2010, p. 801Google Scholar.

44 Making a similar point, see L. Van Den Herik and D. Dam-de Jong, above note 6, pp. 247–249.

45 See, e.g., S. L. Seck, above note 29, p. 158, referring to the work of Mark Drumbl. See Drumbl, Mark A., ‘Collective responsibility and postconflict justice’, in Isaacs, Tracy and Vernon, Richard (eds), Accountability for Collective Wrongdoing, Cambridge University Press, Cambridge, 2011, pp. 23–60CrossRefGoogle Scholar.

46 See, e.g., the Framework, above note 9, paras. 33–42; Guiding Principles, above note 9, Principle 9, p. 12.

47 See, e.g., Guiding Principles, above note 9, Principle 4, pp. 9–10, and Principle 7, pp. 10–11. A criticism of both recommendations, however, is that they fail to address the root conditions that have undermined moves in this direction to date.

48 The 2007 Report, above note 15, para. 84.

49 Kyriakakis, Joanna, ‘Australian prosecution of corporations for international crimes: the potential of the Commonwealth Criminal Code’, in Journal of International Criminal Justice, Vol. 5, No. 4, 2007, pp. 809–826CrossRefGoogle Scholar.

50 For a discussion on the relationship between the ATS and the norms of international criminal law as applied to corporations, see Gallagher, Katherine, ‘Civil litigation and transnational business: an Alien Tort Statute primer’, in Journal of International Criminal Justice, Vol. 8, No. 3, 2010, pp. 745–767Google Scholar.

51 Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659, 2013. The decision under appeal was Kiobel v. Royal Dutch Petroleum Shell, 621 F 3d 111 (Second Circuit), 2010. For critical reviews of the Second Circuit's decision in Kiobel, see Murray, Odette, Kinley, David, and Pitts, Chip, ‘Exaggerated rumours of the death of an alien tort? Corporations, human rights and the remarkable case of Kiobel’, in Melbourne Journal of International Law, Vol. 12, No. 1, 2011, pp. 57–94Google Scholar; Ku, Julian G., ‘The curious case of corporate liability under the Alien Tort Statute: a flawed system of judicial lawmaking’, in Virginia Journal of International Law, Vol. 51, No. 2, 2010, pp. 353–396Google Scholar.

52 Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659, 1669 (Roberts CJ), 2013. It is not clear what circumstances might meet this threshold, but the presence of a foreign corporation in the United States is not sufficient.

53 For example, the governments of Germany, the United Kingdom, and the Netherlands have all filed amicus briefs in the current Kiobel litigation, arguing that ATS cases involving extraterritorial conduct and limited links to the United States violate state sovereignty. Companies submitting briefs urging a narrow reading of the ATS in the case include Rio Tinto, BP, Chevron, and Coca-Cola. A full list of amicus briefs in the case can be accessed via the Supreme Court of the United States Blog; see ‘Kiobel v Royal Dutch Petroleum’, available at: www.scotusblog.com/case-files/cases/kiobel-v-royal-dutch-petroleum/?wpmp_switcher=desktop (last visited 7 January 2013). See also, the comments of Chief Justice Roberts listing the objections of other states to extraterritorial applications of the ATS as evidence of the diplomatic strife such claims engender and favouring a strong presumption against the extraterritoriality of the ATS: Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659, 1669.

54 On challenges to the domestic prosecution of corporations for international crimes and the likely encouraging effect of action at an international level, see Kyriakakis, Joanna, ‘Prosecuting corporations for international crimes: the role for domestic criminal law’, in May, Larry and Hoskins, Zachary (eds), International Criminal Law and Philosophy, Cambridge University Press, Cambridge, 2010, pp. 108–137Google Scholar.

55 There are a number of excellent analyses of the application of forms of criminal responsibility to the business case. See Vest, Hans, ‘Business leaders and the modes of individual criminal responsibility under international law’, in Journal of International Criminal Justice, Vol. 8, No. 3, 2010, pp. 851–872Google Scholar; Farrell, Norman, ‘Attributing criminal liability to corporate actors: some lessons from the international tribunals’, in Journal of International Criminal Justice, Vol. 8, No. 3, 2010, pp. 873–894Google Scholar; Burchard, Christoph, ‘Ancillary and neutral business contributions to “corporate-political core crime”: initial enquiries concerning the Rome Statute’, in Journal of International Criminal Justice, Vol. 8, No. 3, 2010, pp. 934–945Google Scholar; Jacobson, Kyle Rex, ‘Doing business with the Devil: the challenges of prosecuting corporate officials whose business transactions facilitate war crimes and crimes against humanity’, in The Air Force Law Review, Vol. 56, 2005, pp. 167–231Google Scholar; Lehnardt, Chia, ‘Individual liability of private military personnel under international criminal law’, in European Journal of International Law, Vol. 19, No. 5, 2008, pp. 1015–1034Google Scholar; ICJ Expert Panel, above note 8, pp. 11–36. For some of the limitations of responding to corporate crimes by prosecuting individuals within corporations, see Kyriakakis, above note 49, pp. 823–826.

56 See, e.g., the 2007 Report, above note 15, para. 23; N. Farrell, above note 55, pp. 874–876.

57 See references in note 55, above.

58 SCSL, Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-T, Judgement (Trial Chamber II), 18 May 2012.

59 ICC, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Decision on Confirmation of Charges (Pre-Trial Chamber I), 30 September 2008, paras. 494–518; ICC, Prosecutor v. Omar Al-Bashir, Case No. ICC-02/05-01/09, Decision on the Prosecutor's Application for an Arrest Warrant (Pre-Trial Chamber I), 4 March 2009, paras. 213–216. Some commentators have suggested that this mode of liability looks set to be a leading instrument in the ICC in ascribing liability to military and political leaders; see, e.g., Werle, Gerhard and Burghardt, Boris, ‘Indirect perpetration: a perfect fit for international prosecution of armchair killers?’, in Journal of International Criminal Justice, Vol. 9, No. 1, 2011, p. 85CrossRefGoogle Scholar.

60 For detailed analysis of this form of liability and its origins and application at the ICC, see the Special Symposium in the Journal of International Criminal Justice, Vol. 9, 2011, pp. 85–226; Jain, Neha, ‘The control theory of perpetration in international criminal law’, in Chicago Journal of International Law, Vol. 12, No. 1, 2011, pp. 159–200Google Scholar; Jessberger, Florian and Geneuss, Julia, ‘On the application of a theory of indirect perpetration in Al Bashir’, in Journal of International Criminal Justice, Vol. 6, No. 5, 2008, pp. 853–869Google Scholar; Olasolo, Hector, The Criminal Responsibility of Political and Military Leaders as Principles to International Crimes, Hart Publishers, Oxford, 2009, pp. 116–134Google Scholar and 302–330; van der Wilt, Harmen G., ‘The continuous quest for proper modes of criminal responsibility’, in Journal of International Criminal Justice, Vol. 7, No. 2, 2009, pp. 307–314Google Scholar.

61 Indirect perpetration through an organisation was originally conceived by German legal theorist Claus Roxin with the particular experience of Nazi state-orchestrated crime in mind: see Weigend, Thomas, ‘Perpetration through an organisation: the unexpected career of a german legal concept’, in Journal of International Criminal Justice, Vol. 9, No. 1, 2011, pp. 94–97Google Scholar; F. Jessberger and J. Geneuss, above note 60, pp. 859–862.

62 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), Article 25(3)(a) (emphasis added) (hereinafter Rome Statute).

63 See case references contained in above note 59. For a rejection of the idea that indirect perpetration through an organisation can be derived from the language of Article 25(3)(a), see ICC, Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/04-02/12, Judgement Pursuant to Article 74 of the Statute, Concurring Opinion of Judge Christine Van den Wyngaert (Trial Chamber II), 18 December 2012.

64 G. Werle and B. Burghardt, above note 59, pp. 85–89.

65 See, e.g., Concurring Opinion of Judge Christine Van den Wyngaert, above note 63, paras. 24–26.

66 Werle, Gerhard, ‘Individual criminal responsibility in Article 25 ICC Statute’, in Journal of International Criminal Justice, Vol. 5, 2007, pp. 953–975Google Scholar. Confirming the adoption by the ICC of a hierarchical reading of Article 25, see ICC, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgement (Trial Chamber I), 14 March 2012, paras. 996–999. Dissenting on this issue, see the Separate Opinion of Judge Fulford, paras. 6–12. See also Concurring Opinion of Judge Christine Van den Wyngaert, above note 63, paras. 22–30.

67 For a description of joint criminal enterprise and a comparison of its use in the International Criminal Tribunal for the Former Yugoslavia (ICTY) with the model of indirect perpetration that has been adopted by the ICC, see Manacorda, Stefano and Meloni, Chantal, ‘Indirect perpetration versus joint criminal enterprise: concurring approaches in the practice of international criminal law’, in Journal of International Criminal Justice, Vol. 9, 2011, pp. 159–178Google Scholar.

68 Ibid., p. 163.

69 See, e.g., Clapham, Andrew, ‘The complexity of international criminal law: looking beyond individual responsibility to the responsibility of organizations, corporations and states’, in Thakur, Ramesh Chandra and Malcontent, Peter (eds), Sovereign Impunity to International Accountability: the Search for Justice in a World of States, United Nations Press, Tokyo, 2004, p. 239Google Scholar.

70 See, e.g., US v. Krauch et al., above note 12, pp. 1096, 1108, and 1297. However, at times the Tribunal also describes the organisation as acting through the individual defendants: see pp. 1147 and 1152.

71 It should be noted that the precise mechanisation of the industrialists’ use of the corporate instrument and how this related to their forms of responsibility is not clearly articulated by the US Military Tribunal in the industrialist cases. However, it did not involve the kinds of considerations that are central to the doctrine of indirect perpetration through an organisation. For an analysis of the elements of liability adopted in the industrialist cases see K. R. Jacobson, above note 55, pp. 177–195 and 210–212.

72 Osiel, Mark, Making Sense of Mass Atrocity, Cambridge University Press, Cambridge, 2009, p. 95Google Scholar, as described by N. Jain, above note 60, p. 193.

73 N. Jain, above note 60, p. 171; H. Olasolo, above note 60, pp. 119–120.

74 Fisse, Brent and Braithwaite, John, Corporations, Crime and Accountability, Cambridge University Press, Cambridge, 1993, pp. 17–58Google Scholar.

75 For a critical analysis of the bases upon which the corporate veil can be pierced, see Muchlinski, Peter, ‘Limited liability and multinational enterprises: a case for reform?’, in Cambridge Journal of Economics, Vol. 34, 2010, pp. 915–928CrossRefGoogle Scholar.

76 T. Weigend, above note 61, pp. 94–97; F. Jessberger and J. Geneuss, above note 60, pp. 859–862.

77 N. Jain, above note 60, p. 171.

78 Ibid., pp. 173–178.

79 H. Olasolo, above note 60, p. 134. Note, however, that private military companies are likely to have similar, if not identical, organisational qualities to other military collectives: see C. Lehnardt, above note 54, p. 1026.

80 B. Fisse and D. Braithwaite, above note 74, pp. 36–41.

81 Calliess, Gralf-Peter, ‘Introduction: transnational corporations revisited’, in Indiana Journal of Global Legal Studies, Vol. 18, No. 2, 2011, pp. 604–605Google Scholar.

82 N. Jain, above note 60, pp. 174–177.

83 See H. Olasolo, above note 60, p. 134; but on the application of the notion of fungibility in situations where there are low numbers of potential direct perpetrators and proposing a normative, rather than naturalistic, understanding of this criterion, see Ambos, Kai, ‘The Fujimori judgment: a president's responsibility for crimes against humanity as indirect perpetrator by virtue of organized power apparatus’, in Journal of International Criminal Justice, Vol. 9, No. 1, 2011, pp. 154–156Google Scholar.

84 Werle, Gerhard, Burghardt, Boris, and Roxin, Claus, ‘Crimes as part of organized power structures: introductory note’, in Journal of International Criminal Justice, Vol. 9, No. 1, 2011, p. 202CrossRefGoogle Scholar.

85 N. Jain, above note 60, p. 173.

86 Ibid. For Jain's discussion of Kai Ambos’ criticism of this third element of indirect perpetration through an organisation theory, see pp. 177–178.

87 See also H. Olasolo, above note 60, p. 134.

88 T. Weigend, above note 61, p. 99; Werle, Gerhard and Burghardt, Boris, ‘The German Federal Supreme Court (Bundesgerichtshof, BGH) on indirect perpetration: introductory note’, in Journal of International Criminal Justice, Vol. 9, No. 1, 2011, p. 210Google Scholar; German Federal Supreme Court (Bundesgerichtshof), ‘Judgement of 26 July 1994 against Former Minister of National Defence Keβler and Others’, trans. Belinda Cooper, in Journal of International Criminal Justice, Vol. 9, No. 1, 2011, pp. 224–225Google Scholar. It should also be noted that a related, although not identical, notion of functional perpetration in Dutch law has been developed specifically in the realm of economic crime. See van der Wilt, Harmen, ‘Joint criminal enterprise and functional perpetration’, in Nollkaemper, Andre and van der Wilt, Harmen (eds), System Criminality in International Law, Cambridge University Press, Cambridge, 2009, pp. 176–181Google Scholar.

89 G. Werle and B. Burghardt, above note 88, p. 210; on the elements adopted by the ICC, see Prosecutor v. Katanga and Chui, above note 59, paras. 494–518.

90 Ibid., para. 518; N. Jain, above note 60, pp. 186–187.

91 For reflections on how corporations are organisations that engender obedience, see Punch, Maurice, ‘Why corporations kill and get away with it: the failure of law to cope with crime in organisations’, in Nollkaemper, Andre and van der Wilt, Harmen (eds), System Criminality in International Law, Cambridge University Press, Cambridge, 2009, pp. 42–68CrossRefGoogle Scholar.

92 H. van der Wilt, above note 60, p. 312. On indirect perpetration through an organisation as a model of liability more concerned with policy responses to the challenges of systemic crime than strict theoretical consistency, see T. Weigend, above note 61, p. 101. For an argument in favour of a narrow application of this mode of liability at the ICC, see T. Weigend, above note 61, pp. 106–110.

93 See ‘Discussion’, in Journal of International Criminal Justice, Vol. 6, No. 5, 2008, pp. 950–951 (comments of Bert Swart); but see also p. 958 (response of Thomas Weigend).

94 It should be noted that there is no expectation that the ICC should apply principles consistently with customary international law. For applicable law at the ICC, see Rome Statute, above note 62, Article 21.

95 For a description of the test for aiding and abetting under customary international law, see ICJ Expert Panel, above note 8, pp. 17–24. A significant development since the writing of this article has been decisions of the International Criminal Tribunal for the Former Yugoslavia that import a ‘specific direction’ requirement as a material element of aiding and abetting. This new requirement demands that to constitute an accomplice under international criminal law a person must not only provide assistance that has a substantial effect on the commission of an international crime, but such assistance must additionally be specifically directed toward assisting such crime. See ICTY, Prosecutor v. Momčilo Perišić, Case No. IT-04-81-A, Judgement (Appeal Chamber), 28 January 2013; ICTY, Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-T, Judgement (Trial Chamber I), 30 May 2013. It is beyond the scope of this paper to consider the issues raised by these new decisions; however, the introduction of a ‘specific direction’ requirement will have significant implications for satisfying aiding and abetting in the context of commercial relationships and international crimes.

96 Acknowledging the debate on the language of aiding and abetting under the Rome Statute but arguing that in practical terms it may have little impact on the application of the test to business, see ICJ Expert Panel, above note 8, pp. 22–24.

97 Prosecutor v. Charles Ghankay Taylor, above note 58.

98 Ibid., paras. 6972–9686.

99 ICJ Expert Panel, above note 8,, paras. 6887–6900.

100 For a detailed analysis of joint criminal enterprise as developed in the jurisprudence of the ad hoc tribunals, see Boas, Gideon, Bischoff, James, and Reid, Natalie, International Criminal Law Practitioner Library Volume 1: Forms of Responsibility in International Criminal Law, Cambridge University Press, Cambridge, 2007, pp. 8–141Google Scholar.

101 Prosecutor v. Charles Ghankay Taylor, above note 58, para. 6904.

102 Ibid., paras. 5843–6149.

103 Ibid., paras. 6906–6953. Taylor was also found guilty on the basis of having planned some of the rebel attacks: ibid., paras. 6954–6971.

104 Ibid., paras. 6913–6914.

105 ICJ Expert Panel, above note 8, pp. 37–43.

106 Prosecutor v. Charles Ghankay Taylor, above note 58, paras. 6947–6952.

107 Ibid., paras. 6948 and 6950.

108 SCSL, Prosecutor v Charles Ghankay Taylor, Case No. SCSL-03-01-T, Sentencing Judgement (Trial Chamber II), 30 May 2012, para. 99. Other aggravating factors were Taylor's abuse of his positions of political power and unique status as a head of state.

109 See, e.g., Bergsmo, Morten (ed.), Thematic Prosecution of International Sex Crimes, Torkel Opsahl Academic EPublisher, Beijing, 2012Google Scholar.

110 Morten Bergsmo and C. Wui Ling, ‘Towards rational thematic prosecution and the challenge of international sex crimes’, in ibid., p. 4.

111 See, e.g., Margaret M. deGuzman, ‘An expressive rationale for the thematic prosecution of sex crimes’, in M. Bergsmo (ed.), above note 109, pp. 11–44.

112 Ibid., p. 11.

113 See, e.g., Prosecutor v. Thomas Lubanga Dyilo, above note 66.

114 See, e.g., ICTY, Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23-T and IT-96-23/1-T, Judgement (Trial Chamber), 22 February 2001.

115 See, e.g., ICC, Prosecutor v. Bahar Idriss Abu Garda, Case No. ICC-02/05-02/09, Decision on Confirmation of Charges (Pre-Trial Chamber I), 8 February 2010.

116 The first major book on this subject has just been published. See M. Bergsmo (ed.), above note 109.

117 M. Bergsmo and C. Wui Ling, above note 110, pp. 2–3.

118 Ibid. As a result of the indictment's focus exclusively upon crimes related to the use of child soldiers, the majority of the Trial Chamber held that they were unable to take crimes of a sexual nature into account for the purpose of its judgement, including the systemic sexual abuse of primarily girl child soldiers. See Prosecutor v. Thomas Lubanga Dyilo, above note 66, paras. 36, 60, 629–630, 896, and 913. For dissent on this issue see the Separate and Dissenting Opinion of Judge Odio Benito, paras. 15–21.

119 See M. deGuzman, above note 111, p. 11. For an outline of the subsequent Nuremberg trials, see Heller, Kevin, The Nuremberg Military Tribunals and the Origins of International Criminal Law, Oxford University Press, Oxford, 2011CrossRefGoogle Scholar.

120 US Military Tribunal at Nuremberg, US v. Karl Brandt et al., Judgement of 19 July 1947, Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. II, 1950, pp. 171–300 (the Medical Case).

121 US Military Tribunal at Nuremberg, US v. Josef Altstoetter et al., Opinion and Judgement of 3 December 1947, Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. III, 1951, pp. 954–1199 (the Justice Case).

122 See above note 12.

123 See, e.g., K. Heller, above note 119, p. 47.

124 See above note 108.

125 See M. deGuzman, above note 111, pp. 11–44.

126 See, e.g., Friedman, Lawrence, ‘In defence of corporate criminal liability’, in Harvard Journal of Law and Public Policy, Vol. 23, No. 3, 2000, pp. 840–847Google Scholar.

127 M. deGuzman, above note 111, pp. 35–41.

128 Neha Jain, ‘Going beyond prosecutorial discretion: institutional factors influencing thematic prosecution’, in M. Bergsmo (ed.), above note 109, p. 226.

129 Ibid., pp. 207–232.

130 Kai Ambos, ‘Thematic investigations and prosecution of international sex crimes: some critical comments from a theoretical and comparative perspective’, in M. Bergsmo (ed.), above note 109, pp. 311–312.

131 See, e.g., L. Friedman, above note 126, pp. 833–858; Kyriakakis, Joanna, ‘Corporate criminal liability and the ICC Statute: the comparative law challenge’, in Netherlands International Law Review, Vol. 56, No. 3, 2009, pp. 359–364CrossRefGoogle Scholar.

132 On the exclusion of the economic dimensions of conflict from international criminal law and transitional justice more broadly, see Kyriakakis, Joanna, ‘Justice after war: economic actors, economic crimes and the moral imperative for accountability after war’, in May, Larry and Forcehimes, Andrew (eds), Morality, Jus Post Bellum, and International Law, Cambridge University Press, Cambridge, 2012, pp. 115–120Google Scholar.

133 Ibid., pp. 134–136.

134 M. Bergsmo and C. Wui Ling, above note 110, p. 10.

135 L. van den Herik and D. Dam-de Jong, above note 6, p. 250.

136 Ibid., pp. 237–273.

137 See, e.g., ‘Discussion’, above note 93, pp. 978–979 (comments of George Fletcher).