Isabella Mongardi
11193956LLM Public International law Academic Year 2019-2020
Master Thesis
Thesis supervisor: Professor Harmen Van der Wilt
The International criminal responsibility of corporate officials and the issue of
Corporate criminal liability gap before the ICC
2 Abstract
This research concerns two fields within the realm of international criminal law. The first, addressed in the first and second chapter, is the individual criminal responsibility of corporate officials allegedly liable as accessory of the commission of wrongful acts by third parties. Supported by the analysis of case law of different courts (such as the Nuremberg Military Tribunals, ad hoc Tribunals, the ICC and Dutch Courts), and the different thresholds of mens rea envisaged by each of them, the object case study is the responsibility of RWM Italia’s officials, a subsidiary of the German arms manufacturer Rheinmetall AG. In view of their trade in arms with states such as South Arabia or the UAE, they could be deemed complicit in the commission of international crimes affecting the life of civilians in Yemen. The last chapter follows a normative approach and concerns the issue of corporate liability gap at the ICC. Through an analysis of the French proposal to introduce it during the negotiations of the Rome Statute and the reasons behind its rejection, the inclusion of corporations as subjects of the Court will be argued as desirable. The quest for corporate criminal liability is fuelled by the inadequacy of holding only natural persons responsible.
3 Content
1. List of abbreviations 2. Introduction
3. Academic Debate and Research methodology 4. Chapter I: admissibility of the case
i. National proceedings ii. Communication to ICC iii. Principle of Complementarity iv. analysis
5. Chapter II: Criminal liability on the grounds of Article 25(3)(c) Rome Statute: aiding and abetting i. War crimes
ii. Aiding and abetting: actus reus and mesn rea iii. Case law excursus
iv. Case study applied
6. Chapter III: Corporate liability gap i. Introduction
ii. The French proposal iii. Reasons for objection
iv. The need of corporate liability at the ICC 7. Conclusion
4 List of abbreviations
ATT: Arms Trade Treaty
ECCHR: European Center for Constitutional and Human Rights ICC: International Criminal Court
ICTY: International Criminal Tribunal for the former Yugoslavia ICTR: International Criminal Tribunal for Rwanda
OTP: Office of the Prosecutor UAE: United Arab Emirates
5 Introduction
The conflict in Yemen has roots in 2011, when the former President of Yemen Ali Abdullah Saleh resigned following pro-democracy uprisings. In 2014 the Houthi armed group took control of the capital Sana’s. One year after the Houthi armed group, together with troops loyal to former president Saleh, entered the city of Aden, where the new president Abd Rabboh Mansour Hadi fled. President Hadi then fled to Saudi Arabia. From that moment on, the Saudi/UAE- led Coalition (comprising initially Saudi Arabia, the UAE, Bahrain, Kuwait, Egypt, Jordan, Morocco, Sudan, and Qatar) became involved in the conflict in Yemen, launching several military operations in response to President Hadi’s request for support against the Houthi armed group.1 According to the Yemen Data Project, by 2019 more than 17,500 civilians were killed and injured
since 2015, and a quarter of all civilians killed in air raids were women and children. More than 20 million people in Yemen are experiencing food insecurity and among them 10 million are at risk of famine.2
Military goods from Europe constitute a substantial part of the overall equipment available to the Saudi/UAE military coalition. Several companies from European countries have supplied Coalition members with arms, components, spare parts, maintenance, training, and support services. These European companies and products have substantially contributed to the aerial warfare carried out in Yemen and may, therefore, be potentially complicit in the Coalition’s war crimes.
On 11 December 2019, a communication on the situation in Yemen and the role of European companies as well as government actors was submitted to the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) by the European Centre for Constitutional and Human Rights (ECCHR) along with its partner organizations.
This research aims at providing an answer to the following research questions:
Could Corporate Officials of European private defence contractors providing weapons to Saudi Arabia and UAE be held criminally accountable before the ICC for complicity in war crimes against civilians in Yemen?
To what extent is an introduction of corporate criminal liability desirable at the ICC?
Th research objects of the research are the international criminal responsibility of corporate officials and the issue of corporate criminal liability gap before the ICC. Additional main concepts object of the analysis
1 Younes, Ali, “Analysis: The divergent Saudi-UAE strategies in Yemen”, AlJazeera, 31 August 2019,
https://www.aljazeera.com/news/2019/08/analysis-divergent-saudi-uae-strategies-yemen-190830121530210.html, accessed 28 February, 2020
2 Human rights watch report, Yemen, events of 2019, https://www.hrw.org/world-report/2020/country-chapters/yemen
6 are the mental and physical elements of a crime, namely the actus reus and the mens rea. In order to explain these concepts, the structure f the research is the following.
The first chapter of the research concerns issues of admissibility. It starts with an overview of an Italian case relevant for the present research and then it describes the nature and the content of a Communication submitted to the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). An introduction to the principle of complementarity and on Article 17 of the Rome Statute will be then provided. The chapter will end with an analysis of the principle applied to the case at hand.
The second chapter deals with the circumstances under which RWM Italia corporate officials could be held criminally liable as accomplices to war crimes under Article 25(3)(c) of the Rome Statute. It begins with an overview on the notion of war crimes and then moves on with an analysis of the material and mental elements envisaged by article 25(3)(c): the actus reus and the mens rea respectively. An insight into the mental element standard commonly read in accordance with article 30 of the Rome Statute will be the point of departure to the last part of the chapter. Analysing case law ranging from ad hoc tribunals, the ICC or Dutch National Courts, the end of the Chapter will serve as a suggestion that RWM’s officials could be indeed held accountable, depending on the interpretation of the mens rea threshold envisaged by article 30 of the Rome Statute.
The research will then focus on the so-called “corporate impunity gap” and it will explore the desirability and feasibility of subjecting business enterprises to the jurisdiction of the ICC. National legal systems often include legal entities in the list of potential criminal perpetrators. During the negotiations of the Court’s Statute, France forwarded a proposal to add legal entities to the jurisdiction of the ICC. The proposal concerned private corporations and was linked to the “individual criminal responsibility of a leading member of a corporation who was in a position of control and committed the crimes, acting on behalf of and with the explicit consent of the corporation in the course of its activities”.3 The proposal was rejected on several
grounds, on the basis of principled objections.
Relevance and research methodology
This research has societal relevance in that it addresses the alleged criminal responsibility of RWM Italia’ officials vis a vis the commission of war crimes against civilians in Yemen. There is a vast literature concerning the commission of war crimes by the Saudi-led coalition in Yemen.4 The media coverage and reports
3 Ibid, p. 56
4 Kazemi, Mohammad Ali, and Mohammad Reza Pourbeh. “Saudi-Led Arab Coalition’s Military Intervention in Yemen
7 concerning the alarming situation in which the country is versing is certainly not lacking. 5 What was lacking
in the current academic debate was an analysis of the mens rea requirement envisaged by different courts in relation to the case at hand. I contacted some of the applicants of the Communication submitted in December 2019 and I was notified that it was not possible to consult the text of the communication, in order to safeguard the anonymity of the victims and the witnesses. It was therefore not possible to know in detail the legal reasoning of the applicants. This research, moreover, aims to be practically relevant, in that is suggest a way to avoid impunidad and legal vacuums: a reconsideration of the inclusion of criminal liability at the ICC.
Alongside my research I will follow two different approaches. The first part of the research, comprising the first and second chapter, will follow a positivist approach. The latter is descriptive and explanatory in nature. Positive questions focus on “describing, understanding, explaining, or predicting reality as it is”.6 The first
research question, concerning the criminal liability of corporate officials, will be thus addressed through a positivist approach. The second part of the research, the third chapter, will follow a normative approach instead. Normative issues are those examining “the moral order of the world, and normative research seeks to find answers to what is good, appropriate, just, fair, or otherwise desirable”.7 The second research
question, concerning the inclusion of the corporate criminal liability at the ICC, deals with value judgment, claiming the desirability of such a change.
The goal of this research is to describe, analyse and evaluate the issues addressed through the analysis of the mental and the physical elements of a small number of cases concerning the involvement of arms exporters in the commission of wrongful acts. The cases mentioned in this research have been issued by different courts, such as the Nuremberg Military Tribunals, the ICTY, ICTR, ICC and National Courts.
To gather the information needed in order to answer to the research questions I used the official websites of the Courts mentioned above, I relied on academic publications and on case reports. Moreover, I contacted the representative of two of the authors of the Communication at the ICC, namely ECCHR and Rete Italiana per il Disarmo.
5 United Nations Human Rights Council, Report of the Group of Eminent International and Regional Experts as submitted
to the United Nations High Commissioner for Human Rights - Situation of human rights in Yemen, including violations and abuses since September 2014, 3 September 2019; Patrick Wintour,“UK, US and France may be complicit in Yemen war crimes – UN report. Panel lists 160 key actors in Yemen war who could face charges, adding to pressure on UK to end Saudi arms sales”, The Guardian, 3 September 2019. Available at: https://www.theguardian.com/world/2019/sep/03/uk-us-and-france-may-be-complicit-in-yemen-war-crimes-un-report, last accessed: 19 June 2020.
6Dimiter Toshkov, “Research Design in Political Science”, Macmillan International Higher Education, (February 2016),
p.24
9 CHAPTER I
Admissibility of the case
National proceedings
On 17 April 2018, the European Center for Constitutional and Human Rights (ECCHR), Rete Italiana per il Disarmo and Mwatana filed a criminal complaint to the Italian Public Prosecutor’s Office in Rome.8 The legal
action was taken against both the Italian export licensing authority UAMA (Unità per le autorizzazioni dei materiali d’armamento) and the arms manufacturer RWM Italia, a subsidiary of the German Rheinmetall, for exporting arms to members of the Saudi Arabian-led coalition. At the core of the legal action there is an airstrike that took place in the Yemeni village of Deir AlḨajārī on the 8 October 2016 and which killed six civilians, including a pregnant woman and her four children. Such airstrike was allegedly carried out by the Saudi Arabian-led coalition and the remnants of bombs MK80 and a suspension lug manufactured by RWM Italia were found at the site of the airstrike. The legal intervention against RWM Italia and UAMA calls for the investigation of their criminal liability for the export to Saudi Arabia, or other members of the coalition, of systems used in this deadly airstrike. The claimants clarified that the case is not an isolated one and that they decided to focus on the events of October 2016 in Deir AlḨajārī due to the presence of witnesses and photographic evidence of the bomb’s remnants manufactured by RWM Italia. They outlined that the village is located in a rural area with little strategic relevance and inhabited only by civilians. Moreover, there was evidence that the airstrikes were programmed to be highly accurate and that is it impossible to classify the consequences of the attack as collateral damage. The claimants explained that the legal action was initiated on two different grounds. First, it was based on the allegation that the Italian Government failed to comply with national and international law regulating arms exports, as the weapons exported to Saudi Arabia and the members of its coalition might have been used in violations of Human Rights Law and International Humanitarian Law. Second, the action is based on the alleged violation by both UAMA and RWM Italia of Italian national criminal law. The claimants argue that UAMA abused its power in the exercise of its functions and, as a consequence, “advanced the financial benefit of RWM Italia and caused unfair damage to others”. Moreover, UAMA officials and RWM Italia managers are accused by the claimants of complicity in murder through gross negligence as well as complicity in inflicting physical injury. As a consequence, both are alleged to have contributed to the incident in Deir AlḨajārī: UAMA as the entity authorizing the exports and RWM
8 Rete Italiana Per il Disarmo, case report April 2018, “Le Responsabilità Europee per i crimini di guerra commessi in
Yemen – Le complicità della controllata italiana di un produttore tedesco di armi e dell’Autorità italiana in tema di esportazioni di armamento”; Stampa Estera Italia, “Responsabilità italiane nelle violazioni di diritti umani in Yemen”, 18 April 2918, accessible at https://srv1.selftv.video/video/stampaestera/8696; Maletta, Giovanna, “Legal challenges to EU member states’ arms exports to Saudi Arabia: Current status and potential implications” Stockholm
10 Italia for physically implementing the transfers. Concerning national law, the claimants referred in particular to Law 185 of 9 July 1990, which sets clear principles concerning the military export from Italy. The law states, among others, that such exports need to be stopped in case of grave breaches of human rights or in case of the presence of the receiving state in an armed conflict which is in contrast with article 51 of the United Nations Charter.9 Article 51 concerns the right to self- defence as an exception to the prohibition of the use
of force. Law 195/1990 condemns arms exports to states which are engaging in armed conflicts on different grounds than article 51 of the UN Charter. In the context of International Law, the claimants refer to the Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment. 10 Moreover, they mention the Arms Trade Treaty (ATT).11
On 26 June 2019, the Italian Parliament approved a motion which committed the Government to adopt the necessary acts to ‘suspend’ the export of aircraft bombs, missiles and their components to Saudi Arabia and the UAE that may be used against civilians in Yemen.12 One month later, on 30 July 2019, the corporate
manager of RWM Italia Fabio Sgarzi announced the suspension of the exports to SA and UAE for eighteen months.13 In October 2019 the Public prosecutor in Rome decided to dismiss the case.14 In February 2020
ECCHR, Rete Italiana per il Disarmo and Mwatana appealed to the decision of the Public Prosecutor. The Office of the Judge for preliminary investigations in Rome will decide, after a hearing of the parties,
whether or not the investigations can continue. The hearing will most likely take place in December, due to the Covid-emergency. 15
9 Legge 9 luglio 1990, n. 185, “Nuove norme sul controllo dell'esportazione, importazione e transito dei materiali di
armamento”
10 Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports
of military technology and equipment, article 2(a): “Member States shall deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used for internal repression” and article 2(c): “Member States shall deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law”
11 Arms Trade Treaty (ATT): Article 6 ATT states that “A State Party shall not authorize any transfer of conventional
arms […], if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party”. Article 7 ATT clarifies that “If the export is not prohibited under Article 6, each exporting State Party, prior to authorization of the export of conventional arms […] shall assess the potential that the conventional arms or items would contribute to or undermine peace and security; could be used to commit or facilitate a serious violation of International Humanitarian Law and/or International Human Rights Law”.
12 Atto Camera, Mozione 1-00204, 26 giugno 2019, seduta n. 197. Accessible at
https://aic.camera.it/aic/scheda.html?numero=1-00204&ramo=C&leg=18
13 Ferrucci, Madi, “Stop all’esportazione di bombe verso l’Arabia Saudita: l’annuncio ufficiale dell’azienda produttrice
di armi RWM” The Post Internazionale 31 July 2029 https:// www.tpi.it/esteri/stop-esportazione-bombe-arabia-saudita- annuncio-azienda-rwm-20190731383902/, accessed 4 April 2020.
14 Rete Italiana per il Disarmo, “Caso contro UAMA e RWM: non solo negligenza, ma il ruolo dell’Italia negli attacchi
mortali in Yemen”, 8 October 2019 https://www.disarmo.org/rete/a/46895.html Accessed 4 April 2020
15 Rete Italiana per il Disarmo, “Dichiarazione in occasione del 5° anniversario dell’inizio del conflitto in Yemen”, 24
11 Communication to the ICC
Two months after the Public Prosecutor in Rome decided to dismiss the case, on 11 December ECCHR, Mwatana and their partner organizations (the International Secretariat of Amnesty International, the Campaign Against Arms Trade (CAAT), Centre Delàs and Osservatorio Permanente sulle Armi Leggere e le Politiche di Sicurezza e Difesa (OPAL)) submitted a communication to the Office of the Prosecutor (OTP) of the ICC. With this communication, the claimants challenged the potential legal responsibility of corporate and political actors who might have contributed to serious violations of international humanitarian law in Yemen, by authorizing and exporting weapons to coalition members, in particular Saudi Arabia and UAE. The Communication focuses on several companies: Airbus Defence and Space S.A. (Spain), Airbus Defence and Space GmbH (Germany), BAE Systems Plc. (UK), Dassault Aviation S.A. (France), Leonardo S.p.A. (Italy), MBDA UK Ldt. (UK), MBDA France S.A.S. (France), Raytheon Systems Ltd. (UK), Rheinmetall AG (Germany) through its subsidiary RWM Italia S.p.A. (Italy), and Thales France. The document provides factual information concerning 26 incidents of airstrikes allegedly conducted by the Coalition. Such attacks have been conducted on hospitals, schools, residential buildings, a museum and world heritage sites and according to the claimants they may constitute war crimes under articles 8(2)(c)(i), and 8(2)(e)(i), (ii), (iii) and (iv) of the Rome Statute. Among the 26 incidents reported in the communication, ECCHR and its partner organization mention the airstrike of 8 October 2016 in Deir AlḨajārī, object of the criminal complaint filed to the Italian Public Prosecutor in Rome on 17 April 2018. These attacks have been thoroughly documented by Mwatana, Human Rights Watch, Amnesty International, the UN Panel of Experts on Yemen and the Group of Eminent Experts on Yemen. As ECCHR, Mwatana and their partners illustrate in the communication, the Coalition relies on military products manufactured by European companies and bombs and missiles of European origin.16
According to article 12(2) of the Rome Statute, in the case of article 13(c) (the Prosecutor initiating the investigations proprio motu), the Court may exercise jurisdiction – inter alia – if the State concerned (the one of which the person accused of the crime is a national) is party to the Statute of the Court or has accepted its jurisdiction. Article 15 clarifies the procedural steps following the decision of the Prosecutor to initiate investigations. He or She may do so on the basis of information on crimes within the jurisdiction of the Court; a communication, for example, brings a potential crime to the attention of the Prosecutor. He or She shall
16Ibid. Typhoon and Tornado fighter jets are the result of joint production schemes of several European
companies: BAE, Airbus Defence and Space GmbH (Germany), Airbus Defence and Space S.A. (Spain), Leonardo, Panavia Gmbh (Germany). MBDA (UK and France) manufactured Brimstone and Storm Shadow Missiles, Raytheon UK produced Paveway IV bombs and RWM Italia manufactured bombs of the MK 80 series. Targeting devices are provided, among others, by the French company Thales.
12 analyze the seriousness of such information and if he or she concludes that there is a reasonable basis to proceed with an investigation, the Prosecutor shall submit to the Pre-Trial Chamber a request for authorization of an investigation. If the Pre-Trial Chamber considers that there is a reasonable basis to proceed with an investigation and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigations.
Principle of Complementarity
According to Article 1 of the Rome Statute, “[…] the Court shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions […]”. As article 5 clarifies, the crimes within the jurisdiction of the Court are the crime of genocide, crimes against humanity, war crimes and the crime of aggression. In contrast with the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR), the ICC is intended to supplement national jurisdictions, which shall have the first opportunity to prosecute cases as well as the duty to do so.17
At the basis of the principle of complementarity there is the respect for the primary jurisdiction of States as well as practical considerations. States have generally better access to witnesses and evidence.18
The ICC has material jurisdiction when the crime(s) concerned are listed in article 5 of the Rome Statute. It has jurisdiction ratione temporis in respect of crimes committed after the entry into force of the Rome Statute (article 11). Article 12 of the Rome Statute, moreover, clarifies the preconditions to the exercise of jurisdiction. The ICC has personal jurisdiction when the state on the territory of which the conduct in question occurred or the state of which the person accused is a national, are parties to the Rome Statute or have accepted the jurisdiction of the Court.
Article 17 (1) sets the criteria to assess whether a case is inadmissible at the International Criminal Court: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.
17 ICC Statute. Preamble, para 6. “Recalling that it is the duty of every State to exercise its criminal jurisdiction over
those responsible for international crimes”
18 Cryer, Robert, Darryl Robinson and Sergey Vasilev, “An Introduction to International Criminal Law and Procedure”
13 In Muthaura et al, the Appeals Chamber held that “being investigated” requires the taking of concrete steps and that general assurances of an intent to start investigating are not enough”.19 Article 17(2) clarifies how
to determine whether a State is unwilling to carry out proceedings genuinely. The Court must consider whether the State in question has the purpose of shielding the person concerned from criminal responsibility, whether there has been an unjustified delay in the proceedings inconsistent with an intent to bring the person to justice or/and whether there is a lack of independence or impartiality inconsistent with an intent to bring the person concerned to justice. According to article 17(3) a State is unable to carry out the investigation or the prosecution when “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings”.
Article 17 is often misquoted and oversimplified as one step-test requiring a funding of either unwillingness or inability to carry out the proceedings.20 Article 17 is thus often interpreted to entail that a case is
admissible at the ICC simply if there are no national proceedings in relation to that case. This reading of article 17 gives no reference to whether a State is actually investigating or prosecuting the case or has done so.21 In Katanga, the Trial Chamber held that “according to the Statute, the Court may only exercise its
jurisdiction when a State which has jurisdiction over an international crime is either unwilling or unable genuinely to complete an investigation and, if warranted, to prosecute its perpetrators”.22 Eventually, the
Chamber found the case admissible by holding that the inaction of the State was a new form of ‘unwillingness’.23 Some scholars suggest that “where there has been no investigation or trial in relation to
the case, then none of the conditions for inadmissibility can be met, so the case remains admissible before the Court”.24
Another ground of inadmissibility is Article 17(1)(d), namely if the case is not of sufficient gravity. To assess whether a case is of sufficient gravity, the Office of the Prosecutor stated that it considers precise factors: the scale of the crimes (number of crimes and victims), the nature of the crimes (prioritizing “killing, sexual violence and other attacks on personal autonomy”), the manner of their commission (including systematicity, cruelty, discrimination, abuse of power and vulnerability of victims), and their impact (including suffering, increased vulnerability, social, economic and environmental damage).25
19 Muthaura et al., ICC AC, 30 August 2011 (ICC-01/09-02/11-274) paras 1,2,40
20 Cryer, Robert, Darryl Robinson and Sergey Vasilev, “An Introduction to International Criminal Law and Procedure”
fourth edition, Cambridge University Press (2019), p 156
21 Article 17(1)(a) and article 17(1)(b) ICC Statute
22 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Reasons for the Oral Decision on the Motion
Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04-01/07, 16 June 2009, para 74
23 Ibidem, para 77 24 Robinson, Darryl, p. 4
14 Analysis
In the present case the Court would have – in principle – jurisdiction. It would have material jurisdiction, since the alleged crimes committed by the Saudi-led Coalition are war crimes, listed in article 5 of the Rome Statute. The Court would also have temporal jurisdiction, in that the alleged crimes have been committed after the entry into force of the Rome Statute. Moreover, the ICC would have personal jurisdiction since the state of which the persons accused are nationals, Italy, is a member of the ICC.
It is important to clarify what the word “case” in article 17 represents. The proper question is to what extent the case at the national level has to overlap with the case brought at the ICC to be considered the same case. In the Rome Statute there is often reference to “same conduct” but there is no clear definition.26 An
extremely rigid interpretation has been criticized as it would “erode the complementarity principle, making it too easy for the Prosecutor to advance a different case and thus sidestep Article 17”.27 In its jurisprudence,
however, the ICC held that “the national investigations must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court”.28 In the Gaddafi case, the Pre-Trial Chamber
held that “the determination of what is "substantially the same conduct” as alleged in the proceedings before the Court will vary according to the concrete facts and circumstances of the case and, therefore, requires a case-by-case analysis”.29 In those circumstances, the Chamber considered that it would not be appropriate
to consider the “same acts of murder and persecution” but instead whether the alleged domestic investigation addressed the same essence of the crime.30 In other cases, the Court stated that “In assessing
admissibility, what is required is a judicial assessment of whether the case that the State is investigating sufficiently mirrors the one that the Prosecutor is investigating”.31 According to some authors, the “better
and more modest question […] is whether there is sufficient overlap”.32 The Court indeed held that “If there
is a large overlap between the incidents under investigation, it may be clear that the State is investigating substantially the same conduct; if the overlap is smaller, depending upon the precise facts, it may be that the State is still investigating substantially the same conduct or that it is investigating only a very small part of
26 Article 17(1)(c), 20(3), 90(1) ICC Statute
27 Cryer, Robert, Darryl Robinson and Sergey Vasilev, “An Introduction to International Criminal Law and Procedure”
fourth edition, Cambridge University Press (2019), p 159
28 The Pre-Trial Chamber I in Lubanga observed:‘[I]t is a condition sine qua non for a case arising from the
investigation of a situation to be inadmissible that national proceedings encompass both the person and the conduct which is the subject of the case before the Court, (ICC-01/ 04-01/06-8-US-Corr), Pre-Trial Chamber I, 24 February 2006, para 31; Muthaura et al., ICC AC, 30 August 2011 (ICC-01/09-02/11-274) para 1, 40, 61
29 Gaddafi and Al-Senussi, ICC PTC I, 31 May 2013 (ICC-01/11-011/11-344), para 77
30 Gaddafi and Al-Senussi, ICC PTC I, 31 May 2013 (ICC-01/11-011/11-344), para 83; Cryer, Robert, Darryl
Robinson and Sergey Vasilev, “An Introduction to International Criminal Law and Procedure” fourth edition, Cambridge University Press (2019), p 159 “the Chamber did not require that the national proceedings concern the same incidents but rather the same gravemen or essence of the crime”.
31 Gaddafi and Al-Senussi, ICC AC 21 May 2014 (ICC-01/11-01/11 OA), para 2, 73
32 Cryer, Robert, Darryl Robinson and Sergey Vasilev, “An Introduction to International Criminal Law and Procedure”
15 the Prosecutor's case. For example, the incidents that it is investigating may form the crux of the Prosecutor's case and/or represent the most serious aspects of the case. Alternatively, they may be very minor when compared with the case as a whole”.33
Some of the facts outlined in the Italian case and the facts mentioned in the Communication to the OTP address the same crimes and overlap. One example is the facts concerning the incident of 8 October 2016 in Deir AlḨajārī. Concerning the required “gravity” enshrined in article 17(1)(d), according to the authors of the communication, the Incidents mentioned in the Communication to the OTP “illustrate a pattern of warfare conducted by the Coalition and characterized by indiscriminate and disproportionate attacks that have led to civilian deaths and injury, and damaged civilian objects”.34 It could therefore be argued that the
case at hand meets the requirement of gravity enshrined in article 17(1)(d) of the Rome Statute. In principle, however, the case would be inadmissible at the ICC on the basis of two provisions. According to article 17(1)(a) of the Rome Statute, a case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. According to article 17(1)(b), the case is inadmissible if it has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned. The case has been investigated by Italy, which decided not to prosecute the persons concerned. Moreover, since the applicants appealed to the decision of the Public Prosecutor, the case could be declared inadmissible at the ICC also on grounds of article 17(1)(a).
The only way to make the case admissible in front of the ICC would be to prove the unwillingness of Italy to carry out the investigation or prosecution. In their case report concerning the Communication to the OTP, the authors stated that “investigating the alleged crimes at the national level is complicated due to the transnational character of the corporations involved, their complex structures, the overall opaqueness of data on arms exports, a lack of willingness and ability to investigate companies, and the fact that the main crimes are alleged to have been committed in Yemen”. Moreover, they wrote that at the time they submitted the communication, there was “a lack of genuine national investigations into and/or prosecutions in relation to [the] matter in the various domestic European jurisdictions”. As mentioned before, Article 17(2) clarifies how to determine whether a State is unwilling to carry out proceedings genuinely. It needs to be assessed, inter alia, whether the State concerned has the purpose of shielding the person concerned from criminal responsibility or whether there has been an unjustified delay in the proceedings inconsistent with an intent to bring the person to justice. Considered that the export of weapons concerning the case at hand has been authorized by UAMA, it would be likely that Italy has no
33 Gaddafi and Al-Senussi, ICC AC 21 May 2014 (ICC-01/11-01/11 OA), para 72
34 ECCHR, Amnesty International, Campaign Against Arms Trade (CAAT), Mwatana, and Opal, “Made in Europe,
bombed in Yemen: How the ICC could tackle the responsibility of arms exporters and government officials” Case Report, February 2020, available at
16 interest in prosecuting RWM Corporate officials. Moreover, the decision of the Public prosecutor in Rome to dismiss the case might be a further indicator of Italy’s unwillingness to investigate and prosecute. It would be however difficult and premature to legally prove the grounds of article 17(2). The second chapter of this research will therefore address the hypothetical scenario in which Italy is indeed unwilling to investigate and prosecute the case. The second chapter will constitute an attempt to analyze a mode of liability in relation to the facts of the case. That is article 25 (3)(c) of the Rome Statute, concerning aiding and abetting. By combating the impunity associated with the crimes enshrined in article 5, the ICC has the potential to deter the commission of crimes and provide justice. Due to the large support it receives - only a minority of states oppose its jurisdiction - it has the potential to change the “human rights landscape”.35 Taking into
consideration case law from different Courts, the elements actus reus - mens rea will be the object of study.
35 Dicker, Richard and Helen Duffy, “National Courts and the ICC” in The Brown Journal of World Affairs
17 CHAPTER II
Aiding and Abetting the commission of War crimes
War crimes
A war crime is a serious violation of the laws and customs applicable in armed conflict which gives rise to individual criminal responsibility in relation to the violations committed in such armed conflict. War crimes have no requirement of widespread or systematic commission, as a single isolated act can constitute a war crime.36 According to article 8(1), the Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission of such crimes. This provision must not be misunderstood: in principle, also a single act can constitute a war crime. Article 8(1) is just an indicator to the Court as to how it should exercise its jurisdiction: focusing not on isolated cases but on the most serious situations. 37 The present research focuses on the alleged accomplice criminal liability of RWM
officials in relation to the events of October 2016 in Deir AlḨajārī, one of the 26 incidents reported in the Communication submitted to the Office of the prosecutor of the ICC in December 2019. All these indiscriminate and disproportionate attacks that have led to civilian deaths and injury, and damaged civilian objects illustrate a pattern of warfare conducted by the Coalition.
Article 8(2) of the ICC Statute provides a long list of offences amounting to war crimes. In particular, article 8(2)(c)(i) provides that in a non-international armed conflict, violence to life and person ( such as murder of all kinds) committed against persons taking no active part in the hostilities amounts to war crimes. Moreover, according to article 8(2)(e), war crimes can also take the form of intentionally directing attacks against the civilian population, against building and medical units, etc.38 Concerning the events of October 2016 in Deir
AlḨajārī, ECCHR, Mwatana and their partners report evidence that the attacks were highly accurate. The village was inhabited only by civilians and located in a rural area, with little strategic relevance. They therefore argue that it is impossible to classify the attack as collateral damage.39
36 Cryer et al, p 259 37 Cryer et Al, p 277
38 Article 8(2)(e)(i), art 8(2)(e)(ii), art 8(2)(e)(iii), art 8(2)(e)(iv)
39 Bonyan Gamal, Francesco Vignarca, Linde Bryk, Francesca Cancellaro, “Responsabilità italiane nelle violazioni di
18 Aiding and abetting – actus reus and mens rea
Article 25(3)(c) of the Rome Statute provides that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person, for the purpose of facilitating the commission of such crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”.
The liability for aiding and abetting is also recognized in article 7(1) of the ICTY Statute, article 6(1) of the ICTR statute and Article 6(1) of the SCSL Statute. Concerning the material element of the crime (actus reus), in the Tadic appeal judgment in 1999, the Tribunal explained that “the aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime”, and “the support has a substantial effect upon the perpetration of the crime”. Concerning the mental element required (mens rea), “the requisite mental element is knowledge that the act performed by the aider and abettor assist the commission of a specific crime by the principal”.40 The Appeal Chamber in Persic held
however that specific direction is not a required element of aiding and abetting. Moreover, the prosecution clarified that “specific direction” has no independent meaning and is part of the substantial effect requirement.41
There are several forms of mental element applying to international crimes: intention, recklessness and negligence. Thus, different forms of liability require different forms of mens rea.42 It has been argued that
the default standard for mens rea in the ad hoc Tribunals appears to be recklessness.43 The ICC, however,
follows a different path; it sets intention instead of recklessness as the default mental element.
Currently, the only ICC case that deals with the mental component of Article 25(3)(c) is Bemba. Until the Bemba case, no ICC Trial Chamber had considered the various elements of Article 25(3)(c) and then applied them to a concrete set of facts in a trial judgment. In Bemba, the Trial Chamber rejected the lower mens rea standard of the ad hoc tribunals, where a knowledge standard suffices, and instead held Article 25(3)(c) sets forth a specific ‘purpose’ requirement for criminal assistance. One could indeed argue that the Bemba Trial Chamber introduced a higher subjective mental element for assisting parties under Article 25(3)(c), requiring that the accessory lend his or her assistance with the aim of facilitating the principal offence. It needs to be noted, however, that Bemba does not address international crimes, but an offence against the administration of justice. Thus, it arguably has limited relevance as precedent for interpreting the mental requirements of
40 Tadic ICTY AC, 115 July 1999, para 229 41 Perisic, AC, 21
42 Cryer et al, p. 365
43 Sarah Finnin, "Mental Elements under Article 30 of the Rome Statute of the International Criminal Court: A
Comparative Analysis," International and Comparative Law Quarterly 61, no. 2 (April 2012), p 346. As Finnin points out, there has been an “heavy reliance on recklessness as a sufficient gradation of mental element for serious crimes in the jurisprudence of the ad hoc Tribunals”
19 Article 25(3)(c) for defendants charged with assisting the commission of international crimes such as war crimes. 44
The Rome Statute is the first international instrument that includes a general provision on the mental element required before criminal responsibility for an international crime attaches. Article 30 provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. In Bemba, the Chamber recalled that “article 30 of the Statute codifies the general mental (subjective) element required for the crimes that fall within the jurisdiction of the Court. It defines the requisite state of mind for establishing the suspect's criminal responsibility for any of the crimes set out in articles 6 to 8 of the Statute. The provision is meant to function as a default rule for all crimes within the jurisdiction of the Court, "unless otherwise provided".45 It therefore requires that, unless otherwise provided, the material elements of a crime be
committed with intent and knowledge, being it a conjunctive formulation. 46
The material elements are the crimes enshrined in article 5. According to Article 30(2)(a), a person has intent where, in relation to conduct, he or she means to engage in the conduct. A person has intent also when that person means to cause that consequence or is aware that it will occur in the ordinary course of events. (article 30(2)(b)). Article 30(3) provides a definition of 'knowledge' depending on its object. A person has 'knowledge' with respect to a circumstance if he or she has 'awareness that [it] exists', while a person has 'knowledge' with respect to a consequence if he or she has 'awareness that it will occur in the ordinary course of events'. Domestic criminal law systems recognize different degrees of intent. The same goes for international criminal law: each degree has two components: the element of awareness and the element of desire. As the Court clarified in Bemba, “the terms "intent" and "knowledge" as referred to in article 30(2) and (3) of the Statute reflect the concept of dolus, which requires the existence of a volitional as well as a cognitive element”.47
In Bemba, the Chamber clearly stated that dolus eventualis or recklessness (or any lower form of culpability) “are not captured by article 30 of the Statute. This conclusion is supported by the express language of the phrase "will occur in the ordinary course of events", which does not accommodate a lower standard than the one required by dolus directus in the second degree (oblique intention)”. The Chamber considered that the wording of article 30 “a consequence which will occur”, serve as an expression for an event that is inevitably expected. “the required standard of occurrence is close to certainty”.48 Moreover, the Chamber recognized
44 Christian Schliemann, Linde Bryk, “Arms Trade and Corporate Responsibility, Liability, Litigation and Legislative
Reform”, Friedrich-Ebert-Stiftung November 2019, p 14
45 Prosecutor v Bemba Gombo (Confirmation Decision) ICC-01/05-01/08, PT Ch II (15 June 2009), 353
46 “this formulation was necessary in order to emphasize, from a psychological-analytical point of view, the necessary
co-existence of the cognitive and volitional components of intent, both of which can vary in different degrees for the different gradations” (Finnin, pag 366)
47 Bemba, para 357 48 Bemba, 362
20 that this standard is higher than the one of dolus eventualis (foreseeing the occurrence of the undesired consequence as a mere likelihood or possibility) and stressed that “had the drafters of the Statute intended to include dolus eventualis in the text of article 30, they could have used the words "may occur" or "might occur in the ordinary course of events" to convey mere eventuality or possibility, rather than near inevitability or virtual certainty”. 49 The Chamber considered that “the suspect could not be said to have intended to
commit any of the crimes charged, unless the evidence shows that he was at least aware that, in the ordinary course of events, the occurrence of such crimes was a virtually certain consequence of the implementation of the common plan”. The Chamber clarified that the reason why the text of article 30 of the Statute does not encompass dolus eventualis, recklessness or any lower form of culpability aims to ensure “that the Chamber is not substituting the concept of de lege lata with the concept of de lege ferenda only for the sake of widening the scope of article 30 of the Statute and capturing a broader range of perpetrators”.50
The Pre-Trial Chamber I in Lubanga, however, explicitly accepted dolus eventualis, and this interpretation allowed for a finding that the common plan need not be criminal and only requires awareness and acceptance of a risk that a crime will occur”. Similarly, the Majority in the Lubanga Trial Chamber held that deciding what occurs "in the ordinary course of events" involves "consideration of the concepts of 'possibility' and 'probability', which are inherent to the notions of 'risk' and 'danger'.51 In her concurring opinion in the case
Ngudjolo Chui, Judge Christine van de Wyngaert clarified that in her opinion “reliance on 'risk' as an element under Article 30 of the Statute is tantamount to accepting dolus eventualis”.52 No decision has yet been made
by the ICC to resolve the contradictory conclusions reached concerning dolus eventualis. Thus, it remains unclear whether this concept is covered by Article 30.
The question is whether the knowledge requirement in article 30 of the ICC Statute could be satisfied by proof of 'wilful blindness', as it is understood under common law and whether it would be sufficient to prove that an accused suspected that a circumstance existed, but avoided actual knowledge by deliberately shutting his or her eyes to an obvious means of knowledge. Piragoff and Robinson recognize that the specific definition in Article 30(3) may exclude such a concept and that actual awareness or cognizance may be required. They also recognize, however, that 'it may be open to the Court to interpret "awareness" to include wilful blindness in some situations. 53 According to Finnin, in the context of international crimes, where
criminal conduct is widespread and ongoing, actual knowledge might be extremely difficult to prove if some
49 Bemba, 363
50 Bemba, Paras 360 - 369
51 Lubanga Trial Judgment, para. 1012.
52 ICC TC II, ICC-01/04-02/12, 18 December 2012 SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE
CASE OF THE PROSECUTOR v. MATHLEU NGUDJOLO CHUL, Para 38
53 D Piragoff and D Robinson, 'Article 30: Mental Element' in 0 Trifferer (ed), Commentary on the Rome Statute ofthe
21 concept of wilful blindness is not permitted as a method of proof. Article 30(3) should be therefore interpreted as allowing proof by at least a limited form of wilful blindness. 54
It must be recalled that there are few exceptions to the standard mens rea set by article 30. The practice of the ICC has been to accept lower mens rea standards set out in the Elements of Crimes.55 In Lubanga, for
example, the Court analysed the Elements of the crime of “using, conscripting and enlisting children” (article 8(2)(e)(vii)). The third element is that “the perpetrator knew or should have known that such person(s) were under the age of 15 years”. The “should have known” requirements regarding the age of the children falls within the concept of negligence, resulting in an exception to the higher requirement embodied in article 30 of the Statute in relation to this specific element of the crime. 56 In Bemba, instead, in relation to the crime
against humanity of murder, the Court clarified that “no mental element is specified in article 7(1)(a) of the Statute”, therefore the legal requirements to be proven are intent and knowledge. 57 The drafter of the Rome
Statute. made an exception also within the Rome Statute. Article 8(2)(a)(iv) uses the term “wantonly”, reducing the level of the required mental element to recklessness. Article 28(a)(i), moreover, provides that a commander shall be criminally responsible for crimes committed by forces under his or her command not only when that military commander knew but also where the commander 'should have known' that such crimes were being committed.
While Werle and Jessberger recognize the argument that any expansion of the definition of the mental element in Article 30 'would have to be found in the Statute itself and not in outside sources', they view the 'uniform interpretation and application of the ICC Statute and customary international law' as a more important objective in the context of international criminal law. 58
Since the ICC Jurisprudence on article 25(3)(c) is scarce, complementary jurisprudence from ad Hoc tribunals and Domestic Courts can help clarify the nature of the mode of secondary criminal liability “aiding and abetting”. Article 21 of the Rome Statute lists the laws that the Court can apply: it shall apply, in the first place, the Statute and the Elements of Crimes. In the second place, it may apply, 'where appropriate', applicable treaties and rules of customary international law. A final subsidiary source of law is 'general principles of law derived by the Court from national laws of legal systems of the world'. There is a widespread reluctance to interpret ICTY or ICTR cases as indicating international norms or to use them at the ICC. They are considered tribunals geographically limited and with temporary jurisdiction.
54 Finnin, 350 55 Cryer et al, 367
56 Lubanga, ICC PTC I, 29 January 2007, paras 356-9 57 Bemba, para 138
58 G Werle and F Jessberger, "'Unless Otherwise Provided": Article 30 of the ICC Statute and the Mental Element of
22 Case law excursus
Mens rea
The Nuremberg Trials are widely considered to have established individual criminal liability under international law.59 One key case concerning the arms trade is the trial of Alfred Krupp. The case was not
prosecuted by the IMT Tribunal but by a subsequent Nuremberg Tribunal. The prosecutor argued that Mr Krupp, the owner of Krupp AG, supported and approved the aims of the Third Reich programme and placed weapons at its disposal. He was eventually acquitted, as there was not proof that he actually conspired with the German Government or that he had actual knowledge of plans.
In Zyklon B, a famous case before the British Military Tribunal, two of the defendants were found guilty of war crimes for supplying poisonous gas to SS while knowing the aim of its use. The Judge Advocate pointed out that the Court must be sure of three facts, first, “that Allied nationals had been gassed by means of Zyklon B”; secondly, that the gas had been supplied by the accused; and thirdly, that the accused knew that the gas was to be used for the purpose of killing human beings. According to the prosecutor, “by supplying gas, knowing that it was to be used for murder, the three accused had made themselves accessories before the fact to that murder”60.
In the case IG Farben, the accused supplied toxic gas Zyklon B to the German authorities and allegedly conducted experiments in concentration camps to test IG preparations. They have also been accused of participating in the slave labour program of the Third Reich. The Court held that due to the fact that they were not military experts, they could not have known that they were aiding Germany and consequently lacked the required mens rea.61 They have been therefore acquitted as they did not have neither common
knowledge nor personal knowledge. 62 Concerning the participation in the slave labour program, the Court
held that the accused acted out of necessity. 63
In Flick, the Court clarified the concept of necessity: it can be used as a ground for excluding criminal responsibility only conditional to the fact that the actors had no moral choice. “Necessity forcing man to do an act justifies him, because no man can be guilty of a crime without the will and intent in his mind. When a man is absolutely, by natural necessity, forced, his will does not go along with the act”.64 Although the
Tribunal did not specify the relevant mode of liability of every accused, it did conclude that when combined
59 Greppi, Edoardo, “The evolution of individual criminal responsibility under international law”, International Review
of the red Cross, No. 835 (1999)
60 Judgment, Trial of Bruno Tesch and Two Others, British Military Court, 1^8 March 1946, in LRTWC,Vol. I (1947), 101 61 Trial of Carl Krauch and Twenty-Two Others (1948), X L Rep Trials War Crim 1, para 36-37
62IG Fraben, para 1102, 1106 63IG Farben, para 1175-1179
23 with the required knowledge, one’s financial assistance to the SS, a criminal organisation, rendered one ‘if not a principal, certainly an accessory to such crimes’.65
Actus reus
In Prosecutor v Tadic, the ICTY confirmed that the aider and abettor’s support must have a substantial effect upon the perpetration of the crime and that such support must be specifically directed to assist, encourage or lend moral support. 66 Moreover, the ICTY stated that direct contribution does not necessarily require the
participation in the physical commission of the illegal act.67 Most importantly, Tadic followed the trial of
Gustav Becker, Wilhelm weber and eighteen Others, which stated that the War Crimes Commission has decided in many instances that not only intent but also reckless indifference may suffice. 68
In Blagojevic and Jokic, the ICTY Appeals Chamber clarified that specific direction is not an essential ingredient of aiding and abetting but only an implicit part of its material element. The Appeals Chamber clarified that the Tadic Appeal Judgment referred to specific direction in order to distinguish aiding and abetting from joint criminal enterprise. In Perisic, however, The ICTY Appeals Chamber held that specific direction is a required element of aiding and abetting and clarified that it has no independent meaning and is part of the substantial effect requirement.69 The Appeals Chamber concluded that considering specific
direction is required when the alleged aider or abettor is geographically or temporally far from the crime scene. 70 This is especially relevant in situations where the provided general assistance could be used for both
lawful and unlawful purposes. 71
In Taylor, the ICTY Appeals Chamber did not endorse this position, since no customary international law analysis had been carried out in Perisic, the former not requiring specific direction for responsibility to arise concerning the crime of aiding and abetting.72 This position has been confirmed in Sainovic and Others.73
Moreover, the ICTY Appeals Chamber held that the analysis in Perisic wrongly considered the Tadic Appeal Judgment as a precedent and held that specific direction is not an essential ingredient of the material elements of aiding and abetting.74 Sanovic and Taylor reversed the Perisic findings.
65 Flick, para 29
66 Prosecutor v Tadic, appeal judgment n 45, para 229 iii 67 Tadic, para 679
68 Tadic, para 687
69 Perisic, AC (n 158), paras 36 and 41. 70 Perisic AC, 38-40,42
71 Stahn, Carsten, “The Law and Practice of the International Criminal Court”, Oxford University Press, 1 May 2015, p.
583
72 Taylor Appeal Judgment (44), paras 475-7; 481, 486 73 Sainovic et al, Appeal Judgment (n 158), para 1649 74 Sainovic, para 1650
24 In the Trial judgment Prosecutor v Akayesu, referring to the Commentary of the International Law Commission, the Court clarified that the “participation of an accomplice must entail assistance which facilitates the commission of a crime in some significant way”. “The word “facilitates” suggests that it is not necessary for the conduct of the aider and abettor to cause the commission of the crime; it needs not be a conditio sine qua non of the crime. The “directly and substantially” requirement in article 2, and the word “significant” used in the International Law Commission Commentary, however, clearly exclude any marginal participation”.
In Bemba, the Trial chamber held that the contribution under Article 25(3)(c) does not require the meeting of any specific threshold or specific qualitative elements. Under this standard, criminal assistance does not need to contribute ‘substantially’ to the commission of the crime. Effect on the crime should suffice.
In Kamuhanda, the ICTR confirmed that the distribution of weapons would constitute an act falling under the conduct element of aiding and abetting. The Appeals Chamber held that even if the weapons had not been used at all, their mere distribution amounts to psychological assistance, as it was an act of encouragement that contributed substantially to the massacre, thus amounting to abetting if not aiding.75
In Taylor, as well, the Special Court for Sierra Leone found that providing arms and ammunition, military personnel, operational support, moral support and ongoing guidance constituted aiding and abetting. 76 The
Appeals Chamber found that the mens rea standard was met because the accused knew about the RUF’s operational strategy and their intent to commit crimes. Moreover, he had specific and concrete information that made him aware of the essential elements of the crimes being committed. The Trial Chamber found that Taylor’s own testimony as well as general public knowledge generated by UN, media and NGO reports constituted evidence of Taylor’s knowledge of the RUFs. 77
In the Netherlands, Frans Van Anraat was found guilty of aiding and abetting the commission of war crimes by providing chemicals to Saddam Hussein’s regime in Iraq. The accused supplied Iraq with poisonous gas, which the Saddam Hussein’s regime subsequently used in attacks against Kurdish civilians and the Iranian military, injuring thousands of people. The District Court adhered to international legal standards, requiring actual knowledge of the specific intent. According to the Court, it could not be proven beyond reasonable doubt that the accused knew that he was contributing to the genocidal campaign against the Kurds. The Dutch Court of Appeal, instead, applied Dutch criminal law, according to which in assessing the mens rea of an accomplice, dolus eventualis suffices.78 The Court concluded that the defendant knew that the chemicals
75 Kamuhanda Appeal Judgment 2005, ibid., 384 76 Taylor (SCSL-03-01-A), Appeals Chamber, 504 77 Taylor, 445 and 538
78 Van der Wilt, Harmen, “Genocide v. War Crimes in the Van Anraat Appeal”, in Journal of International Criminal
25 he provided to the Iraqi regime would be used for the production of poison or mustard gas in Iraq. The Court of Appeal found that he knew that the final destination of the shipment was Iraq.79
In Kouwenhoven, the Dutch Supreme Court convicted Guus Kouwenhoven for complicity in war crimes by providing weapons to the President of Liberia, Charles Taylor, during the civil war in Sierra Leone. Concerning the actus reus, the Court of Appeals found that Kouwenhoven made an essential contribution to the violations, by supplying weapons and ammunition, as he enabled the regime to continue its deadly armed attacks on civilians.80 The Dutch Court of Appeals also used the dolus eventualis standard to determine mens
rea and it found that the defendant had the necessary knowledge to establish mens rea based on his own statements and the fact that national and international media were reporting on atrocities committed in the relevant regions of Liberia at the time.
Case study applied
Concerning the case at hand, in order to charge RWM Italia Officials of aiding and abetting the Saudi-led Coalition in the commission of war crimes in Yemen, it is necessary to establish a number of points: whether RWM Italia’s export of arms facilitates the commission of war crimes by the Saudi-led Coalition pursuant to Article 25(3)(c), whether the officers intended to assist in the principal crime, and whether they were aware that exporting the arms would have brought about the commission of war crimes by the Saudi-led Coalition. The first point is the objective element, the actus reus, while the last two are subjective elements, mens rea. As clarified in Furundžija, Akayesu and Bemba, in order to proof actus reus, the accused need to have facilitated the commission of the crime in some significant way, either practically or psychologically. Based on the actus reus standard set out in Taylor, Kamuhanda, Kouwenhoven, Van Anraat and Bemba, the supply of arms to parties engaged in armed conflict can form a substantial contribution to the commission of international crimes. As set out in Bemba and Taylor, evidence that a specific supplied weapon was indeed used to commit a specific crime is not required.81 Moreover, perpetration in the physical commission of the
act is not required, as clarified in Tadic. One could therefore conclude that the actus the first requirement is met: the weapons exports of RWM Italia facilitated the commission of war crimes in Yemen pursuant to Article 25(3)(c), as arms deliveries increased the risk that the Coalition would commit crimes against civilians. Concerning the mental element, the mens rea, while the extent of the company officer’s knowledge and awareness might not match that of Article 30 of the Rome Statute, it would arguably be comparable to the knowledge and awareness of Van Anraat and Kouwenhoven. the Dutch courts, using a dolus eventualis standard, deemed such knowledge sufficient to establish mens rea for arms exporters. Compared to
79 Van Anraat case, Court of Appeal The Hague, para 11.6 (May 2007)
80 Among others, he was charged of aiding and abetting by sypplying arms and ammunition to Charles Taylor and his
armed forces, para 3 of the judgment.
26 International law, domestic standards may indeed prove less strict when it comes to assessing the mens rea of the accomplice.82 These domestic trials convey the message that individuals enjoying the financial benefits
of atrocities can be held responsible. 83
Depending on the interpretation of the mens rea requirement of Article 25(3)(c) of the ICC Statute, one could argue that officers of arms trading companies meet mens rea standard through their export decisions: the arms dealer’s intent to export arms can be deduced from the profit motive. An intent to assist the main perpetrators’ crimes may be deduced from the knowledge that the assistance is indeed enabling the commission of war crimes. This could be argued due to the large amount of information concerning the Coalition’s warfare practices and war crimes committed in Yemen, as well as the arms exporters’ understanding of the legal framework under which they act.84 It would be relevant to inquire into the
diffusion of the dolus eventualis threshold among different national penal codes and then assess the desisability to include it in the Rome statute explicitly.
82 Van der wilt, Harmen, “Genocide, Complicity in Genocide and International v. Domestic Jurisdiction” in Journal of
International Criminal Justice, 2006, Vol 4(2) p. 240
83 Van der Wilt, Harmen, “Genocide v. War Crimes in the Van Anraat Appeal”, in Journal of International Criminal
Justice, 2008, Vol. 6(3), 567
27 Chapter III
CORPORATE CRIMINAL LIABILITY
The International Criminal Court can only hold individuals, including company officials, responsible for gross human rights abuses that amount to international crimes under the jurisdiction of the Court. 85 On the other
hand, as national legal systems incorporate international criminal law into their domestic legislation, they often include legal entities, in the list of potential perpetrators. The most explicit rejection of corporate responsibility at the International level came with the Farben case. The United States Military Tribunal at Nuremberg held that “corporations act through individuals and, under the conception of personal individual guilt […], the prosecution […] must establish by competent proof beyond a reasonable doubt that an individual defendant was either a participant in the illegal act or that, being aware thereof, he authorized or approved it”.86
Due to a more interconnected world, a broadening concept of ethical responsibility has emerged. Victims of human rights abuses and organizations representing them “have increasingly turned to the law to constrain company power” in order to seek reparation. This triggered discussions and research about whether and how the International law system should be adapted in order to hold criminally accountable not only governments or individuals but also companies. 87
The question would be to what extent an introduction of corporate criminal liability at the ICC would be desirable. In relation to the case study of this research, one would then wonder whether in case RWM Italia could be held responsible by the ICC, international criminal justice would then be enhanced.
Some expert judges of the International Commission of Jurists formed in 2006 the Expert Legal Panel on Corporate Complicity in International Crimes. They believe that since international criminal law develops and companies operate in new contests, the implementation of the former in domestic and international jurisdictions will become more and more relevant to companies. The Panel, indeed, believes that criminal law provides a “powerful and appropriate” tool to deter and punish companies and their officials participating in the commission of wrongful acts. However, they stress that the aim of criminal law is also to shape corporate conduct, therefore contributing to the building of a culture of compliance and prevention. The Panel outlines that applying national or international criminal law at national level might present considerable obstacles, especially for crimes committed in other countries. It outlines that often Prosecutors
85 Article 1 of the Rome Statute
86 Trial of Carl Krauch and Twenty-Two Others (I.G. Farben Trial), United States Military Tribunal, Nuremberg, 14th
August 1947–29th July 1948, Law Reports of Trials of War Criminals (UNWCC), Volume X (His Majesty’s Stationary Office 1949), 52
87 Corporate Complicity & Legal Accountability – Volume 1 (facing the facts and charting a legal path) - Report of the
