Tufts University, Medford, MA, Estados Unidos
Abstract: The present study aims to explore the
relationship of criminal liability and compulsory in international criminal
justice according the founding of international individual criminal
responsibility in relation on the Transnational Corporations. There are few
cases in which an International Criminal Court has used previous international
jurisprudence to establish a crime of conduct in international customary law,
and in any case the importance of international judgments can not be
underestimated as a general interpretative tool. The offer of incriminating
solution that serves as an extrema ratio for
the criminal penalties that are imputable to multinational companies and which
completes the sanctioning apparatus of international law is one of the solution
offered and the result of a reconstruction that started mainly from the
examples of national laws, but it should not be overlooked, that the penal
responsibility of the multinational companies was expressly foreseen and
regulated in the draft of the Statute of the International Criminal Court.
Keywords: TNCs, international crimes, international
criminal justice, international responsibility, criminal liability, IMN.
Resumen: El presente estudio
tiene como objetivo explorar la relación de responsabilidad penal y obligatoria
en la justicia penal internacional de acuerdo con la fundación de la
responsabilidad penal individual internacional en relación con las empresas
transnacionales. Hay pocos casos en los que una Corte Penal Internacional ha
utilizado jurisprudencia internacional anterior para establecer un delito de
conducta en el derecho internacional consuetudinario, y en cualquier caso, la
importancia de las sentencias internacionales no puede ser subestimada como una
herramienta interpretativa general. La oferta de solución
incriminatoria que sirve como una proporción extrema para las sanciones penales
que son imputables a las empresas multinacionales y que completa el aparato
sancionador del derecho internacional es una de las soluciones ofrecidas y el
resultado de una reconstrucción que comenzó principalmente a partir de ejemplos
de leyes nacionales. Leyes, pero no debe pasarse por alto, que la
responsabilidad penal de las empresas multinacionales fue expresamente prevista
y regulada en el proyecto de Estatuto de la Corte Penal Internacional.
Palabras claves: TNCs, crímenes
internacionales, justicia penal internacional, responsabilidad internacional,
responsabilidad penal, IMN.
1 INTRODUCTION
The
multinational companies are identified as actors in the current political and
economic reality which also have significant benefits, such as the economic and
technological growth of developing countries[2]. But it should not be forgotten
that the work of multinational companies has sometimes conditioned the
protection of fundamental rights, which, very often, are subject to strong restrictions.
This would make it necessary to "moralize" multinational companies
and regulate their activity in the current globalized market environment. This
question brings with it a series of questions, just consider the examination of
the most relevant cases that may arise; the identification of the current
measures aimed at preventing and repressing the illicit conduct of the
multinational companies and the effects of their imputed behaviors that derive
to the detriment of the interests of individuals and collective interests. One
can perhaps speak of a process of structural metamorphosis of international
law. This is due, for two reasons, connected to each other. The first is to
refer to the "subversive" or "revolutionary" nature of the
theory of human rights with respect to the ratio that permeates the relations
between States, since it is in contrast with the principle of sovereignty,
which is the basic principle of traditional international law[3]. The reference runs to the
so-called international law of coexistence, all set on an individualistic and
"privatistic" conception of relations between States, on the
principles of reciprocity and bilateralism in matters of responsibility among
States, while surviving the so-called international law of cooperation, which
has increasingly been open to the protection of collective interests.
International law is no longer exclusively a right between States, but it is
only "primarily" a right between States; or that its "main"
aim is to regulate relations among States, but it can sometimes also regulate
individual relations[4] arriving to the punishment of
serious crimes that enter the global sphere of international criminal justice.
2
GAPS
IN INTERNATIONAL SOURCES REGARDING THE RESPONSIBILITY OF MULTINATIONAL COMPANIES
FOR INTERNATIONAL CRIMES
The
greatest difficulty, which has always met with respect to multinational
companies, is the absence of an organic regulatory framework. Difficulties were
reduced through the intervention of international organizations, which developed
international documents aimed at filling the regulatory gap[5].
The main
regulatory sources[6], which could allow the interpreter
to find the criminal responsibility of multinational companies[7], it is necessary to start from a
certain datum dating back to the draft of the Statute of the International
Criminal Court (St-ICC)[8]. In particular according to the
International Criminal Court (ICC), company officials who are involved in
committing crimes under international law are susceptible to the increased
risks of being investigated, prosecuted, and punished in a wide range of
jurisdictions, including to the articles of the StICC. This may not result in
legal consequences to the corporation itself, the involvement of corporate
leaders in human rights abuses cases can damage a company’s reputation and cash
flow?!. A genuine consideration of what it means to be complicit in human
rights violations and a change in company policy to prevent criminal liability[9] can save corporations money, time,
and the risk of negative publicity. There have been significant developments in
clarifying the standards of liability for companies under criminal
international law[10], there still remains some confusion
in the courts as to the proper test for determining the mens rea element[11] needed to link a corporation to a
human rights abuse[12]. In particular, it is known that
the criminal liability of legal persons is not an abstract data, but a concrete
fact that found in the draft of the statute of the ICC (St-ICC) a full
normative recognition.
The
arguments, rectius the open questions
according to our opinion regarding a more solid, concrete and effective regime
regarding the responsibility of the multinationals are: To a corporation that
can be held liable internationally?, If a corporation brought before an
international court or tribunal is prosecuted for complicity of some sort, what
are the feasible measures that can be taken against them and why?
According
to our opinion multilateral corporations can become implicated in gross human
rights abuses fall into four categories: a) businesses and their managers are
accused of being the main perpetrators; b) businesses supply equipment or
technology in the context of a commercial trading relationship that is then
used abusively or repressively; c) businesses are accused of providing
information, or logistical or financial assistance, to human rights abusers
that has “caused” or “facilitated” or exacerbated the abuse; and d) businesses
are accused of being “complicit” in human rights abuses by virtue of having
made investments in projects, joint ventures, or regimes that have poor human
rights records or connections to known abusers[13].
In the
round-up of the mandate of Professor John Ruggie, the Special Representative of
the United Nations (UN) Secretary-General on the Issue of Human Rights and
Transnational Corporations and Other Business Enterprises (SRSG), attention to
the particular promise of this field of international law as a key means of
addressing the worst manifestations of business-related human rights abuse[14].
The desire to prosecute legal entities found recognition in the
Nuremberg Tribunal precedents This proposal was to be included in Article 23 of
the Statute, in paragraph 5, where it was specifically foreseen that: “without
prejudice to any individual criminal responsibility of natural persons under
this Statute, the Court may also have jurisdiction over a juridical person for
a crime under this Statute. Charges may be filed by the Prosecutor against a
juridical person, and the Court may render a judgement over a juridical person
for the crime charged, if: a) The charges filed by the Prosecutor against the
natural person and the juridical person allege the matters referred to in sub
paragraphs (b) and (c); and b) The natural person charged was in opposition of
control within the juridical person under the national law of the State where
the juridical person was registered at the time the crime was committed; c) The
crime was committed by the natural person acting on behalf of and with the
explicit consent of that juridical person and in the course of its activities;
and d) The natural person has been convicted of the crime charged. For the
purpose of this Statute, “juridical person” means a corporations whose
concrete, real, or dominant objective is seeking private profit or benefit, and
not a State or other public body in the exercise of State authority, a public
international body or an organisation registered and acting under the national
law of a State as a non-profit organisation (...)“[15].
Despite this, even today there is a current international orientation[16] according to which it is possible
to recognize the criminal responsibility of multinational companies using the
St-ICC rules. In particular, the art. 25, number 3, letter (d) should be read
in conjunction with art. 21, number 1, letter (c)[17]. The two rules can also be applied
to legal entities by implementing the so-called extensive interpretation.
Besides the draft of the St-ICC, there are other normative sources that
allow to recognize de relato the
criminal responsibility of multinational companies. That said, in primis it is held against the Alien
Tort Statute (ATS, also known as the Alien Tort Claims Act or ATCA)[18]. The relevance of corporate
liability for international crimes[19] to contemporary transitional
justice efforts is most prominently evinced in the spate of Alien Tort Statute
(“ATS”)[20] cases launched against
transnational corporate defendants, which have wound their way into the U.S.
court system.
The American legislative system adopted in 1789 the Alien Tort Act[21], as a law that allows foreign
actors to bring cases of damages in the federal district courts for violations
of the rules established by international law[22] and by the treaties signed by the
USA. Its application in fundamental rights cases began to be invoked by the
1980s, provoking mixed reactions[23].
The reasons for such interest in a civil proceeding law in the United
States lie in the inability of international law to provide effective instruments
of protection when the active subject of criminal conduct is a society. The
difficulty lies in the fact that the aforementioned traditional orientation
recognizes only states as subjects of international law[24].
It is
necessary to clarify that other subjects have entered the international scene[25]. The extension to other subjects
can be found also taking into account the greater emphasis placed on the rights
of the individual, who is the owner of the inalienable rights. As a result, it
seems rather anomalous that states do not provide regulatory recognition for
companies, especially for multinational corporations. For years, therefore, the
United States has represented a unique opportunity for the repression of such
crimes, offering, through the Alien Tort Act, a forum for claims for
compensation. Indeed, many companies have a strong economic power that in some
ways exceeds the one given to the States in which they invest, which,
consequently, are not always able to ensure respect for the human rights of
their citizens[26].
Another important source in chronological order is found with the work
of the United Nations since 1972[27]. The objective of the Organization
was clarified by authoritative doctrine that supported "the conclusion of
a general agreement on multinational corporations having the force of an
international treaty and containing provisions for machinery and sanctions
(...)"[28]. It should be noted that the Draft
Code does not regulate the criminal liability of multinational companies, but
its relevance in this area can not be denied since the Code of Conduct is an
instrument of moral persuasion aimed at soliciting responsible and respectful
conduct. of the values of the international community. As a result, the
Commission on Transnational Corporations[29], starting in 1975, drafted a Code
of Conduct on Transnational Corporations to be proposed to the Member States.
In 1988 a first official version was drafted, but this tool has never received
a unanimous consent. The debate continued until the 1990s when there was a
further version of the draft code of conduct, which however was never approved
by the General Assembly: the negotiations in this regard were therefore
officially terminated in 1992 without a positive outcome.
The other
regulatory source to refer to to build adequate regulatory coverage of the
criminal liability of multinational companies is the Rules on the
Responsibilities of Transnational Corporations and Other Businesses on Human
Rights from 2003. Also for the 2003 Standards it is necessary to clarify that
they do not regulate the criminal liability of multinational companies, but the
relevance of the 2003 rules in this area can not be denied as they are
considered as a tool that sets the rules for responsible and respectful conduct
of the values of the international community. The 2003 rules recall, on the one
hand, the principles and obligations deriving from the UN Charter (in
particular its Preamble and articles 1, 2, 55 and 56) and, on the other hand, a
series of international documents from which the general principles of the
international community draw[30].
The 2003 rules assume that transnational companies and other commercial
enterprises have a good capacity to support economic well-being and
development. The capacity found is counterbalanced by the ability to produce a
painful impact on human rights and the standard of living of individuals. As a
result, the 2003 rules contribute to regulatory production and the development
of international law regarding liability and related obligations, but they are
not binding. With regard to obligations, the 2003 rules specify the behavior
that States must take. In particular, States have the primary responsibility to
promote, guarantee the implementation, respect, enforcement and protection of human
rights recognized in international law and in national legislation.
Furthermore, States must ensure that transnational corporations and other
commercial enterprises respect human rights. The 2003 standards are guaranteed
by a control and monitoring system. Transnational corporations and other
commercial enterprises are subject to periodic verification by the UN and other
international and national mechanisms. This control system is based on the
reports that send the subjects involved in the entrepreneurial activity
(stakeholders) (including non-governmental organizations). The source in its
final part also provides remedial tools for people, institutions and the
community that have been victims of the offensive conduct of transnational
companies and other commercial enterprises. The regulatory framework of the
liability of multinational corporations for international crimes should be
supplemented with the reports, which took place in 2007 and 2011, of the UN
Special Representative, who are united by the same ratio, ie to charge multinational companies "(...)
responsibility to respect human rights (...)"[31].
It is worth pointing out that relations do not regulate the criminal
liability of multinational companies, but the relevance in this area can not be
denied since there are instruments of moral persuasion aimed at encouraging
responsible and respectful conduct of the values of the international
community. The examination of the reports is limited, mainly, to the
terminology used as it is found the use of the term "responsibility"
and not the term "duty". With the term "responsibility" we
do not want to refer to a "legal obligation" imposed by international
law, but we prefer to recall a "standard of expected conduct", which
is confirmed in the conventional instruments and in the so-called soft law on corporate social
responsibility[32].
The responsibility of multinational companies implies for companies
themselves the need to: a. avoid committing violations of human rights; b.
consider the possible negative-current or potential-effects that its activities
may determine or may contribute to[33]. It emerges in the various reports
that the companies should incorporate the modus
operandi that is given to them and that would allow them to behave
according to the guidelines; in particular, it is urged to implement the
so-called due diligence process[34], as "step a company must take
to become aware of, prevent and address the human rights impacts (...)"[35]. Consequently, an enterprise should
always take into account three factors: a. The specific context of the country
in which it carries out its activities, in order to identify the particular
problems that may arise in relation to human rights; b. the impact that their
activities can have on these rights in that particular context; c. the
possibility that the company itself may contribute to the violation of human
rights through relations with other subjects connected to its activities.
Ultimately, if the multinational company conforms correctly and quickly
to the indications provided in the due diligence process, the multinational
company must adopt certain behaviors. In June 2014, the UN Human Rights Council
adopted two human rights and business resolutions. One was advanced by the Core
Group of states supportive of the Gps. The other, proposed by the group of
States led by Ecuador and South Africa, "proposed the establishment of an
intergovernmental working group with a mandate to elaborate an international
legally binding instrument on human rights and transnational corporations as it
is currently stands"[36]. Phase II of the UN Framework, with
a focus on examples from the regions of Asia and Europe[37]. In particular we are talking about
the following criteria of behavior: 1. the elaboration of a document that
declares the policies adopted by the company in order to respect human rights
(Human Rights Policy)[38]; 2. the periodic assessment of the
impact, current or potential, that the activities of the company or its
economic relations with other subjects may have on human rights (Impact
Assessment); 3. the integration of these policies and assessments into the
internal control and supervision mechanisms of the company (Integration); 4.
the adoption of procedures aimed at monitoring and reporting on the
developments achieved[39]. It is clear
that respect for human rights and the consequent responsibility represent a de facto situation that unites all
multinational companies, being able to refer to all human rights recognized by
international law, "because companies can affect the entire spectrum of
internationally recognized rights (...)"[40]. In fact, as observed by the RS,
"the principles of these instruments are the foundational elements of the
international human rights regime"[41]. It should also be noted that the
due diligence process must be objectively connected to a precise parameter, ie
the actual, direct or indirect, actual or potential impact that the activities
of multinational companies can determine on recognized rights[42].
Finally,
through the adoption of the due diligence criteria in their activities,
companies can avoid being complicit in the abuses committed by other actors.
The notion of "complicity/collusion" emerging in the 2008 report
derives from international jurisprudence regarding individual responsibility
and complicity for committing international crimes[43].
1 COLLUSION AND INTERNATIONAL CRIMINAL RESPONSIBILITY
The
definition of "complicity" is, in fact, that defined in reference to
the international crimes from the jurisprudence of the International Criminal
Tribunal for the Former Yugoslavia (ICTY) and the International Criminal
Tribunal for Rwanda (ICTR) and perfected, with reference to the enterprises,
from the recent practice of the United States courts following the petitions
filed against some IMNs under the Alien Tort Claims Act (ATCA): "knowingly
providing practical assistance or encouragement that has substantial effect on
the commission of a crime (...)"[44]. The complicity of a company in the
commission of a violation of human rights can not derive from the mere presence
of this, or from its fulfillment of the tax burdens, in the country in which
this violation is committed, or from the silence in relation to possible abuses
the company is aware of it. The complicity could not be derived even from the
simple fact that the company has derived an economic benefit indirectly from
the misconduct of other subjects, even if-it has specified the
RS-"benefiting from the public perception (...)[45].
When the complicity of the multinational company turns into a violation
of human rights, it is not necessary for the company to be aware of or have
called for the commission of a specific offense. It is sufficient, rather, that
the factual circumstances show that the undertaking was aware-or should have
been, as might reasonably have been claimed in the specific circumstances-of
the fact that its actions or omissions contributed, in the present case, to the
infringement of human rights. The fact, therefore, that a company is executing
an order, fulfilling contractual obligations or even acting in accordance with
specific national legislation, does not apply to the exclusion of punishment.
The reports examined so far serve as a prerequisite for the 2011 intervention
when the Guiding Principles for the Implementation of the United Nations
"Protect, Respect and Remedy Framework" were drafted, the draft of
which was made public on November 22, 2010 at advisory purposes, with a view to
the adoption by the Council of Human Rights at the end of June 2011.
In
particular, the reports of the five-year period 2006-2010 and the recent
Guiding Principles "sanction the definitive abandonment by the United
Nations of the mandatory approach of the Norms (...) (and have decreed) the
prevalence of the voluntary approach to social responsibility. even within the
UN, disappointing the expectations of those-especially NGOs-hoped that the
Special Representative would encourage the process of transforming the Norms
from a soft law source into a binding source.
In June 2011 the United Nations Human Rights Council (UN) unanimously
adopted a document prepared by John G. Ruggie, then Special Representative of
the UN Secretary General, entitled "Guiding Principles on Business and
Human Rights" (Principles Guide)[46]. This document defines a set of
rules of behavior in the field of human rights both for companies and for the
States that have the task of controlling them, and responds to the need to fill
the international regulatory gap regarding the potential negative impacts of
the activity entrepreneurship on the protection of human rights. On the one
hand, in fact, companies are not-at the current state of international
law-recognized as subjects having full international legal personality. As a
consequence, they are not direct recipients of international obligations to protect
human rights. On the other hand, within the framework of the traditional
vertical relationship between the individual and the international human rights
regime, it is still difficult to determine for the States a clear obligation to
prevent, punish and/or remedy any abuses perpetrated by companies in the
context of the horizontal enterprise-individual relationship. The Guiding
Principles have responded to this problem by establishing: 1. the duty of
States (now consolidated in international law) to guarantee the protection of
human rights from entrepreneurial activity, intervening through the adoption of
appropriate policies, norms and judicial measures (State duty to protect-Pillar
I); 2. the responsibility of companies (still not consolidated according to
international law and, therefore, not comparable to the international
obligations of States) to respect human rights and to act promptly in the event
that their activity in some way jeopardizes their enjoyment (corporate
responsibility to respect-Pillar II); 3. The need to provide victims of
business abuse with access to effective remedies (right to effective
remedy-Pillar III).
The Guiding Principles, despite their non-binding nature, soon became an
important reference point at the international level. In May 2011, the Member
States of the Organization for Economic Cooperation and Development (OECD),
together with States that are not Members but adhere to the OECD Declaration on
International Investment and Multinational Enterprises, have updated the
"OECD Guidelines for Multinational Enterprises", introducing a new
chapter on human rights (Chapter IV) with specific reference to the UN
document. In October 2011, the European Commission then published the
Communication "Renewed European Union Strategy for the period 2011-2014 on
Corporate Social Responsibility" with which it formally invited all Member
States to prepare a Plan of National Action to implement the Guiding Principles[47].
The
so-called "Fundamental principles" of the report shows that States
must protect against possible violations of human rights by third parties,
including commercial enterprises within their territory and/or jurisdiction.
From the beginning of the report it is clarified that there is a duty of the
State to protect, which is qualifiable as a standard of behavior. In fact,
states are held accountable only when they violate their international human
rights legislative obligations or when they fail to take appropriate measures
to prevent, investigate, punish and correct abuses of private actors. The
obligation to protect should be read in conjunction with the obligation to take
preventive measures and repressive measures to ensure the protection of human
rights. Having clarified what is the prerequisite for the second part of the
report, it is now possible to focus on the obligations imposed on multinational
companies[48].
The legal question makes it possible to
identify, even if de relato, a
normative suggestion, which recognizes the responsibility of multinational
companies for international crimes. This means that companies must refrain from
violating the human rights of third parties, being, inter alia, obliged to intervene on any negative effects on human
rights to which they may have contributed. This responsibility goes beyond the
mere compliance with the regulations of the national standards on the
protection of human rights. Intervening on possible negative effects on human
rights requires the adoption of appropriate measures for prevention and
mitigation and, where necessary, interventions to remedy abuses committed.
Businesses can make further commitments or initiate other activities to support
and promote human rights, thus contributing to their dissemination; however
this does not offset any failure to respect human rights in their respective
activities. Corporate responsibility for respect for human rights requires that
two necessary conditions exist. Businesses must: a) avoid causing adverse
effects on human rights, or contribute to such effects through their respective
activities, intervening to remedy them where they occur; b) work towards the
objective of preventing or mitigating those negative effects on human rights
that are directly related to their respective activities, products and services
by reason of their business relationships, even if they have not contributed to
such impacts. The obligation taken on by multinational companies inevitably
passes through an ad hoc procedure,
ie due diligence on human rights. The procedure must provide for the assessment
of the actual and potential impact on human rights, the integration of
conclusions and the adoption of the related measures, the verification of the
results and the communication on the modalities with which the impact was
recorded. It is necessary to intervene on this potential impact through
prevention or mitigation, while the actual impact, ie the consequences that
have already had practical effects, must be the subject of compensation
interventions. Finally, after examining the system for monitoring the effectiveness
of the measures adopted by the companies, the report also focuses on remedial
measures, such as compensation for damages. If the companies find that they
have been or have contributed to adverse effects, they must remedy or cooperate
in order to achieve this end through legitimate processes. Ultimately, the 2011
report makes it possible to find some interesting insights that lead to a
criminal liability of multinational companies when there is a violation of
human rights.
The 2011 report repeatedly uses a terminology that reveals the
identifying elements of the criminal liability, just consider the severity of
the conduct, the offense to a good intended as relevant to the international
community and, again, we can not even identify the link of material causality,
where it is specified that companies are required to adopt the most appropriate
measures to repair the damage inflicted on human rights. These elements, as
indicated, which will be the subject of a specific treatment in the following
paragraph, are added to the compensatory measure, which, generally, finds its
place in the legal system following an illegal act. The International
Convention on the Prohibition of the Crime of Apartheid is exemplary for the
recognition of the criminal liability of multinational companies, where it is
clearly stated that apartheid is an international crime and that juridical
persons are held criminally liable in the same way as individuals[49]. In support of the criminal
liability of legal persons, it should not be forgotten that the Convention has
also provided for an ad hoc tribunal
by means of an Additional Protocol for such a crime. Ultimately, from the
examination of the international documents we can deduce the will of the
international bodies to prosecute also the conduct of the multinational
companies confirming the choice contained at first in the StICC[50].
2
THE
CONSTITUENT ELEMENTS OF THE CRIMINAL RESPONSIBILITY OF MULTINATIONAL COMPANIES
FOR INTERNATIONAL CRIMES
The violation
of an international (customary or conventional) obligation by a State through
omissive or commissive behaviors determines the juridical consequence of the
emergence of international responsibility from an unlawful act against it. The
commission of an internationally wrongful act is therefore the presupposition
of the international responsibility of the State[51]. State responsibility was based on
some judgment agreed by international arbitration and practice. In practice, it
established that the offending State was responsible internationally and had to
provide for reparation, and that the injured State could react to the offense
even with the use of armed force. In reality the cases in which it could be
considered an illicit, or even what were the consequences linked to it, had
never been determined.
As a rule,
when a litigation took place the injured State could ask the counterparty for
monetary compensation or the c.d. satisfaction (official presentation of
excuses, etc.). In fact it was the most used mode. However, it was the whole
state that had to pay the violation on an international level, even for acts
committed by bodies or individuals belonging to it. In the Tadić from the ICTY case, the "global control criterion"
was introduced[52]. The Chamber states in particular
that the degree of control must vary according to the circumstances of the
specific case and that for the purpose of allocating private behavior to the
State, a general State control over the operation in which the abuses took
place is sufficient.
According
to our opinion, a regulatory reform on the international level would be the
best and the only genuinely effective way to close the gaps in the current
regulation. In practice, the reform would most likely mean the adoption of a
new human rights treaty, in which the adhering states would acknowledge the
direct responsibility of Transnational Corporations (TNCs)-and possibly some
other non-State actors-for human rights violations under international law,
along with the responsibility of the home states to regulate their corporate
citizens and to protect individuals from abuses also outside their
jurisdiction, as well as the remaining duty of the host state to provide
protection. A the best alternative to close the regulatory loopholes would be
the establishment of an international legal framework through a multilateral
treaty. International cooperation is needed to effectively regulate
international actors and their international operations. International
regulation would help to ensure that TNCs cannot escape responsibility by
simply moving their operations or headquarters to another state. Victims of
human rights violations would benefit from a legal framework acknowledging
corporate responsibility and establishing the obligation of the company’s home
state to provide access to remedies. Furthermore, a legal framework which would
set down the legal obligations of companies would benefit the companies as well
by clarifying their duties, by eliminating the “free-rider” effect, and by helping
those companies willing to exceed their legal duties to truly show that
commitment. Finally, while concerns can be expressed of the content and the
effectiveness of the possible future treaty, a legally binding document would
be important due to its moral significance. A binding treaty would show the
commitment of states to effectively protect human rights against infringements
by all actors, and it would confirm that violations of international law will
be responded to, regardless of the identity of the perpetrator.
Only in some exceptional cases was the individual being sued
internationally, such as for piracy and war crimes. In the current discipline
we can distinguish two norms: the "Primary", ie the set of rules of
international law that impose obligations of a substantive nature, and the
"Secondary", a set of rules that establish: 1) the conditions for
which it can be said that an offense occurred; 2) the legal consequences
arising from that offense. Also the degree of responsibility can vary in
"ordinary" responsibility, that is the one normally applicable in the
relations between States following the commission of an offense, and the
"aggravated" responsibility, which arises from violations of
fundamental norms of the community. Individual responsibility has also changed
with respect to the traditional discipline[53]. In fact individuals can be
responsible at international level for serious violations of international law,
committed both in wartime and in peacetime. In the "ordinary" regime
of liability, the international offense occurs with the existence of two
factors, one of a "subjective" nature, according to which the offense
committed by a subject is attributable to a state, and one of an
"objective" nature ", according to which the offense occurs when
the conduct: 1) is contrary to an international obligation; 2) causes a
material or moral damage to another international subject.
Firstly, with regard to the objective element, namely the anti-juridical
behavior, it may consist of an action (unlawful commission) or omission
(unlawful act of omission), where it is expected that the conduct is unlawful
when it contravenes customary international obligation or deriving from a
treaty. If this action is committed prior to the issuing of the law, it does not
involve illicit behavior. So, what matters is that the rule is in force for the
state at the time the conduct was put in place, according to the tempus regit actum principle. For
example, conduct contrary to a multilateral treaty will engage the international
responsibility of the state, only from the moment the treaty is in force for
the state in question. The offense can take place either for an action
("commission wrong") or for an omission ("omission") and
can be instantaneous or continuous[54].
This norm is an expression of the general principle of
"intertemporal law"[55], according to which a situation of
fact must be assessed in the light of the international law in force at that
precise moment. On the one hand, this represents a guarantee for States not to
retroactively react to international law in matters of state responsibility, on
the other it does not reduce liability if, as a result of the violation, the
obligation lapses or international law molting.
With regard to the subjective element, it is necessary to ascertain
whether a particular action or omission is imputable to the State. First of
all, the conduct of one of its bodies is imputable to the State, as provided
for in art. 4 of the Project, which may belong to the legislative, executive
and judicial power[56]. The International Court of Justice
(ICC) in the Genocide case has argued that, for the purposes of international
accountability, it is possible to equate to public bodies even persons who do
not have such qualification under national law, but it must be demonstrated
that the State is responsible for exercised a full control over them[57]. As a rule, the conduct of
individuals is not imputable to the State, subject to certain exceptions.
In the
exceptions according to opinion, the criterion of the instructions also enters;
it is doubtless conceivable that these are supplied through a contract between
the State and the multinational company, which makes it comparable to an
"extended arm" of the State. The hypothesis of the direction or
control by the State is that which, certainly more than the others, leaves room
for uncertainty, especially considering the two different interpretative
addresses elaborated respectively by the ICJ and from ICTY if we share the
consolidated criterion of the effective against[58], the illicit conduct would not be
attributable to the State in all cases in which it has not entrusted the
exercise of public functions to a company and does not exert a stringent
control on the private operator. If, on the other hand, the criterion
elaborated by the ICTY acquires greater consensus at the international level,
no doubt, there would be new openings regarding the possibility of affirming
the responsibility of the host State on the basis of the attribution criterion
under examination. The behaviors most likely related to this case are those of
companies in public ownership, that is to say those joint-stock companies in
which the State or other public bodies hold all or most of the shares or, in
any case, a sufficient number to ensure, even in fact, the control of the
company[59] (State-Owned Enterprises-SOE). Examining the practice, not only in terms of human rights but
also international terrorism, would leave no doubt about the emergence of the
concept of "continuous complicity" consisting of "military,
financial, logistical and organizational support" that the State provides
in a stable way to an organized group, which can be a multinational company,
"for the achievement of internationally illegal objectives, on which both
the will of the State and the will of the group converge". Here emerges a
connection between the theory of state responsibility and the so-called Drittwirkung concept, that is to say the
horizontal effectiveness of international human rights norms, particularly
those of a contractual origin, in inter-private relations and not only in those
between State and individual.
Suffice it
to consider with regard to the exceptional hypotheses, the case in which the
State adopts the behavior of individuals, as happened for the hostages in
Tehran[60], where the behavior held by Islamic
students at one point has been endorsed by the State[61]. Finally, the case in which the
State can be held responsible when it exercises control over the individual
acts committed by individuals by excluding the so-called global control. The
acts put in place are subject to control or to the management of the State and
therefore the injurious event is immediately imputable to it[62]. Finally, we examine the damage can
be material or moral.
The first consists in an economic and patrimonial prejudice to the
interests of a State; the second is the prejudice caused to the dignity and
honor of a state. According to the ICJ, however, the damage is not considered
in the illicit, since it is constituted only by the injury of a subjective
right. Thus the case of an offense can also occur without material or moral
damage. Furthermore, guilt is not a constitutive element of the unlawful act,
including both the fraud and the fault[63]. The subjective element can be
operative only when there is an explicit recognition of the norm and,
obviously, it will never be imputable to the State, as an abstract entity, but
only to the individual-organ. In the case of hostages in Tehran, the ICJ
charged Iran with the commission of the offense for failing to activate the
prevention measures necessary for the protection of American diplomats[64]. In fact, the liability regime
normally applicable in the relationship between states as a result of offenses
requires the existence of material or moral damage as a necessary objective
requirement. Having identified the essential elements of liability for illicit
fact, the question that arises in practice is: when the illicit conduct of a
Multinational Enterprise (IMN), therefore of a subject "other" than
the State, involves international responsibility of the latter? Given the above
illustration on state human rights obligations, the circumstances that can
determine such liability according to our opinion are: 1.the case where an IMN
takes a behavior contrary to international human rights law and this behavior
it is attributable to the State, determining the international responsibility
of the latter for the violation of the obligation to respect human rights; 2.If an IMN adopts a behavior contrary to international human
rights law which is not in itself attributable to the State but in respect of
which the State has not taken appropriate measures of prevention and sanction,
determining the international responsibility of this last for the violation of
the obligation to protect human rights. In general, in order for a state
behavior to be qualified as "internationally illegal", giving rise to
the responsibility of the State, there must be two elements: a. The attribution
of the behavior, active or omissive to the State; b. the contrariness of the
behavior, active or omissive, to an international obligation, of any kind.
First of all, it should be noted that the need to ascertain the attribution of
the behavior to the State also exists in the case of MN owned or controlled by
the State: in fact, since these are generally companies in which the State is a
single shareholder or majority shareholder State controls through intermediary
holdings of public ownership that owns the shares, such IMN are entities
endowed with distinct legal personality and, therefore, not automatically
assimilable to the State. In principle, the conduct of an IMN (like that of any
other "private" actor) can be attributed to a State if the conditions
codified in the draft article on the responsibility of States for
internationally unlawful acts are satisfied (2001)[65]. The problem that remains to be
faced is that according to which the multinational company can be held
criminally liable for the violation of human rights. It is possible to compose
an adequate normative substratum, starting from the draft of the St-ICC[66].
The problem concerning the regulatory coverage is soon solved, but what
is causing difficulties are the identification of the elements constituting the
criminal responsibility of the multinational companies and the direct
imputation of the violation of human rights. The responsibility of
multinational companies for international crimes, at present, can be solved in
two ways: a) not to intervene with the sanctions, but this would mean leaving
the conduct of multinational companies unpunished; and b) report the conduct of
multinational companies to the host State[67].
The
consequences that derive from this are well known, considering that the
international offense which is materially prejudicial to the rights of
individuals is subject to the jurisdiction of the State that is the author. On
the other hand, as regards the first profile, there is the risk of making
unpunished the conduct of multinational companies violating indirectly the
principle of legality and directly the principles underlying the international
community. In other words, if the system of international law does not operate
the instruments envisaged by the legislation examined above for the protection
of human rights, a double violation of the latter can be determined.
Consequently, the need to activate suitable instruments provided for by the
international legal system makes it possible to use an instrument suitable for
finding the direct imputability of multinational companies, ie the extensive
interpretation[68].
It is known that the penal system repudiates the analogy, but at the
same time allows extensive interpretation. Consequently, even for the
multinational companies it will be possible to find, as a result of the
extensive interpretation, the existence of the constituent elements of the
unlawful act[69]. Both elements (subjective and
objective) are directly attributable to the conduct of multinational companies,
which can be understood as an active conduct or an omissive conduct. In other
words, the conduct may be active when the companies directly violate the
provisions of the law protecting human rights for their own profit, causing
incident effects on individuals, which are permanently located in the area
where multinational companies operate; instead, the conduct is omitted, when
the multinational companies fail to adopt the prevention measures (which could
correspond to the c.d. compliance programs)[70] aimed at reducing or eliminating
the offensive consequences deriving from their conduct to the detriment of
human rights. Ultimately, having ascertained that the activity of multinational
companies is covered by the norms of international organizations and that the
extensive interpretation of the essential elements constituting the illicit
fact of the State is admissible, multinational companies can be responsible for
international crimes[71] “(...)governmental regulation still
remains the most significant level of regulation. Emergent regional and
multilateral regulatory orders remain insufficiently developed to replace the
nation State as the principal focus for the regulation of MNEs, while informal
and regulation by non-state actors is likely to be selective and probably
self-serving“[72].
3
LEADING
CASES OF INTERNATIONAL RESPONSIBILITY OF MULTINATIONAL COMPANIES
The
jurisprudence confirmed the existence of the direct responsibility of the
multinational companies following the violations of human rights. American
jurisprudence establishes the conditions for inciting an appeal under the Alien
Tort Act. Reference is made to the decision of the Second Circuit Court of
Appeals in the Filártiga case v.
Peña-Irala[73] and the subsequent decision of the
same Court in the Kadic case v. Karadi[74]. Regarding the first decision, the
Federal Court extended the application of the Alien Tort Act to violations of
international human rights law committed by an individual. On the other hand,
the second case allows the Court to add that private conduct can, in the case
of genocide and war crimes, integrate a breach of international law that can be
compensated in accordance with the applicable legal provisions on the matter.
It should be noted that, generally, violations of human rights presuppose State
action, as emerges in acts of torture. In such cases, the personal
responsibility of a private individual could arise only if the private
individual acted at the same time as the action of the State involved.
Ultimately, the decision in this case appears to be particular in that it
allows an appeal to be raised under existing legislation against a private
person for the direct violation by the latter of international human rights
law, if such violation excludes the intervention of a state. On the other hand,
in the case of offenses that presuppose the intervention of the State, the
private entity can be considered complicit and concurrent with the State as we
have noted in the case Doe v. Unocal[75].
The Court of Appeals of the Ninth Circuit has, for the first time,
applied such clarifications of the Alien Tort Act to a multinational company.
The Court took a position with respect to the US multinational company, which
was held responsible for complicity with the host state (Myanmar) for seriously
offending the human rights of Burmese citizens through despicable actions (in
particular summary executions, sexual violence and work forced). From this it
emerges that a civil liability of multinational companies can derive from the
Alien Tort Act when serious actions are carried out such as to integrate the
"jus cogens violations"
(for example, torture, slavery, forced labor and summary executions).
The New
York District Court also ruled on this point in the Presbyterian Church of
Sudan v. Talisman Energy Inc.[76], stating that, in the presence of
serious violations of human rights, the criminal liability of multinational
companies would be the general rule, never the exception2[77].
Regarding the Alien Tort Act, the case of Royal Dutch Shell (RDS)
operating with the publicly owned NNPC company[78]. The RDS, a multinational company,
has been settled before the US courts twice and, precisely, in the case Wiwa et al. v. Shell[79] and in case Kiobel et al. v. Shell[80]. The cases indicated refer to the
alleged complicity of the RDS, through the subsidiary Shell-Nigeria, in the
serious violations of human rights carried out by the Nigerian military junta
against the Ogoni people. The residents of the area, object of the RDS's
activity, began to protest against the oil company because it had polluted and
destroyed the local ecosystem. Furthermore, in the case Kiobel et al. v. Shell[81], the applicants claimed that
Shell-Nigeria paid the members of the Nigerian army[82]. Regarding the case Wiwa et al. v. Shell the applicants
accused the Anglo-Dutch multinational company of having "directed,
ordered, confirmed, ratified, and/or conspired with the military regime"[83] in the commission, of summary
executions of the group "Ogoni 9", of crimes against 'humanity,
torture and other cruel, inhuman or degrading treatment, arbitrary arrests and
detentions, violations of the right to life, liberty, personal security, as
well as the right of association and peaceful assembly, illegal killing,
aggression and mistreatment[84].
In addition, they also blamed Shell, more generally, for negligence and
for violating the US Racketeer Influenced and Corrupt Organizations (RICO) Act[85]. The other case law to refer to is
the case Kiobel et al. c. Shell,
where the charges were the same as in the Wiwa
case, in addition to the additional charges of forced exile and destruction of
property. The three appeals relating to the Wiwa
case v. Shell settled on June 8, 2009 out of court with an agreement
between the parties, which ordered compensation of $ 15.5 million to the
applicants, of whom 4.5 million for the creation of a trust fund, "The
Kiisi Trust" "helping defendants portray the settlement as a
humanitarian gesture" rather than an implicit acknowledgment of fault
(...)"[86]. The case Kiobel et al. v. Shell, on the other hand, ended (unfavorably for
the applicants) on 17 September 2010 with a ruling by the Court of Appeal. The
ruling is relevant because the jurisdictional conditions are established to
resort directly to the multinational corporations carrying out international crimes.
In the Kiobel case, the judicial
requirements for the application of the Alien Tort Act start, which are
identified as follows: 1) the applicant's foreign nationality; 2) the
commission of a civil offense by the defendant; 3) the violation of a customary
norm of international law or of a treaty ratified by the United States.
According to the Court, if the defendant is a legal person, it must be
ascertained in what terms the violation of a customary norm of international
law or of a treaty ratified by the United States may exist. In particular (ie,
the third requirement mentioned above):“(...) we must ask whether a plaintiff
bringing an ATS suit against a corporation has alleged a violation of customary
international law (...)“[87]. The Court has
therefore held that it should be international law and not the US
"municipal law" to define the applicability of the Alien Tort Act
with regard to companies, as suggested by the Supreme Court itself in the Sosa
case: “a related consideration is whether international law extends the scope
of liability for a violation of a given norm to the perpetrator being sued, if
the defendant is a private actor such as a corporation or an individual“[88]. This is known as the “Holmes test”
because it finds its clearest expression in Justice Holmes’s opinion (American
Well Works Co. v. Layne & Bowler Co.34). Since the general federal
question statute is narrower in scope than the “arising under” clause of
Article III, 35 any suit that satisfies the Holmes test necessarily falls within
the scope of Article III. It is also clear that a suit that arises under
federal common law arises under the “laws of the United States” within the
meaning of section 133 and hence also within the meaning of Article III. The
section 1350 easily satisfies Article III insofar as it grants the federal
courts jurisdiction over the federal common law[89] cause of action recognized in Sosa[90]. The Court of
Appeal therefore wondered whether, under customary international law, a
multinational company could be held responsible for international crimes:“(...)
together, those authorities demonstrate that imposing liability on corporations
for violations of customary international law has not attained a discernible,
much less universal, acceptance among nations of the world in their relations
inter se. Because corporate liability is not recognized as a “specific,
universal, and obligatory” norm, it is not a rule of customary international
law that we may apply under the ATS (...)“[91].
The Court also referred to the statement by the Nuremberg Military
Criminal Court that "crimes against international law is committed by men,
not by abstract entities"[92]. Ultimately, only individuals can
be accountable under international law for international crimes, thus excluding
juridical persons. Therefore, the defendants in the Kiobel case were companies
and the Court decided to dismiss the appeal, for lack of jurisdiction ratione materiae. Furthermore, on 4
February 2011, the Court refused to re-examine the case requested by the
applicants in October 2010. The only possibility for victims could be to bring
an appeal against individuals who have operated "on behalf of
corporations". Ultimately, the case studies examined confirm the absence
of direct responsibility of multinational companies[93]. In June 2005, an appeal against
Shell-Nigeria by the Nigerian citizen, who acted as a representative of the Iowakan community of the Niger Delta
State, was incriminated before the Nigerian Federal Court of Benin City[94]. The applicants accused the company
of having violated: a) articles 33 (1) and 34 (1) of the Nigerian Constitution
of 1999[95], which enshrine, respectively, the
right to life and the right to the dignity of the human person; b) articles 4,
16 and 24 of the African Charter of Human and Peoples' Rights (ACHPR),
concerning the right to life and the integrity of the human person, physical
and mental health and a satisfactory environment; -art. 2 (2) of the Nigerian
Environmental Impact Assessment Act, which requires companies to carry out an
environmental impact assessment in case of highly polluting practices. The
present case concerned, in fact, the practice of the so-called gas flaring[96], which consists of the open-air
combustion of gases associated with oil during extraction phases and which is
banned in industrialized countries because of its harmful effects on the
environment. Also in Nigeria the gas flaring process was restricted by the law
in 1984; but, in any case, it is foreseen that companies can, in special cases,
obtain a ministerial certificate that authorizes them. The applicants
complained that Shell-Nigeria and its related companies had caused considerable
environmental pollution as they had not bothered to carry out an environmental
impact assessment (as required by the Nigerian law)“massive, relentless and
continuous gas flaring in their community“[97].
The gas flaring practices implemented "in open and uncontrolled
manner"[98] by the two companies involved,
compromised the health of local inhabitants, causing them serious respiratory
illnesses, when not even death. In November 2005, the Nigerian Federal Court
recognized the violation by Shell-Nigeria of the claim to the life and human
dignity of the applicants claiming that these rights "inevitably include
the right to clean poison-free, pollution-free and healthy environment"[99]. Furthermore, art. 3 (2) (a) and
(b) of the Associated Gas Re-Injection Act (which derogates from the general
prohibition of gas flaring) has declared
unconstitutional, null and void, ordering Shell-Nigeria and the NNPC to suspend
this practice and to take immediate measures in order to permanently interrupt
it in the territory of the Iwherekan community[100]. The jurisprudential case,
differently from the previous one, makes it possible to support the existence
of the responsibility of multinational companies for the violation of human
rights, but as it emerged, there are strong limits to enforce the sentence.
From this impossibility emerges the need for the international system to
implement the instruments that are present in the legal system. In fact, the
victims could have resorted to civil courts for compensation for damages
suffered or in administrative cases for the revocation of the authorization to
continue in the practices of gas flaring, granted to the two companies
involved. However, the civil proceeding would have led to the difficulty of
proving a causal connection between the polluting practice and the
environmental and physical damage suffered by the applicants (and a greater
need for technical expertise) and could not in any case order the interruption
of the flaring gas. The administrative appeal, in addition to confirming this
last limit, presented further procedural problems related to the lack of
transparency of the authorization management mechanisms. Finally, the
ascertainment of the criminal responsibility for international crimes could be
subject to the same obstacles, but it should not be overlooked that the
interpreter should impute criminal action by sticking to the objective element and
the subjective element. In particular, the regulatory coverage and the presence
of the constituent elements of the illicit fact that can be extended to
multinational companies, would allow to criminalize the violation of human
rights and, presumably, to achieve an immediate result by bypassing the
restrictions of the connection establishment causal place for the protection of
multinational companies.
Equally important, the case of the diamonds in blood is the most current
issue and serves as a test bed for the direct and even criminal responsibility
of the multinational companies for the violation of human rights. The case of
the bloodstained diamonds takes its origin in the mid-nineteenth century when
the first diamond was discovered in South Africa and the Kimberley deposits
were also opened. The diamond mining sees the African countries in the
foreground, in fact half of the diamonds extracted comes from central and
southern Africa[101]; Democratic Republic of Congo,
Angola, Botswana, South Africa, Zimbabwe and Central African Republic are the
main producing countries. A peculiarity of the Central African state compared
to other producing countries is the absence of large mining companies. In fact,
the reality confirms that to derive greater profits from the sale of diamonds
it is not the State itself, but unscrupulous mediators, guerrillas and law
enforcement agencies who smuggle them and sell them for sums derisory to the
big multinationals. The problem of illegal diamond trade is not new, especially
in Africa[102]. The diamond trade has affected
Sierra Leone, where the rebel group Revolutionary United Front (RUF) controlled
diamond areas to sell diamonds to multinational companies and obtain money for
the purchase of weapons and war material. The RUF was held responsible for war
crimes and against humanity. In 1997 the Security Council banned the sale of
oil to Sierra Leone, but nothing said about the diamonds[103].
Only in 2000 did the Security Council intervene and banned the Member
States from buying diamonds from Sierra Leone, which, for its part, had to
certify diamonds, so to speak, legal and distinguish them from the bloody ones
coming from the exploitation of individuals.
In the
same years the Council established a group of experts who had to monitor the
traffic of diamonds and had to verify the connection between the diamonds sold
to multinational companies and the purchase of war material. In this context,
the problematic concerning the multinational companies arises, which, for
years, have purchased diamonds in blood that have been damaged[104]. As mentioned earlier, this
represents the test bed of the criminal liability of multinational companies,
as the jurisprudence is still not pronounced in this regard. Regarding their
conduct, it is claimed that it is the result of the violation of human rights
and this would be sufficient to integrate criminal responsibility. But, faced
with a necessary assessment of the specific case, it can be argued that the
conduct of the multinational companies is suitable to integrate the
anti-juridical conduct and the related imputability. In this way, the position
supported so far is maintained, which allows to find the penal responsibility
in relation to the so-called extensive interpretation. Returning to the
intervention of the Group of Experts, following the investigation, it emerged
that the Liberian Government was also involved and supported the work of the
RUF.
As is known from here the trial was derived from President C. Taylor[105], who became responsible for acts of
terrorism, murder, rape, kidnapping and exploitation of child soldiers. In
exchange for the material and tactical support given to rebel groups, he
obtained diamonds extracted from enslaved workers. C. Taylor was convicted by
the Special Court of Sierra Leone (SCSL) and also by the SCSL for behaviors
that have harmed the victims and for threatening the international stability
and security of West Africa[106]. The Security Council also adopted
penalties for the trade in rough diamonds against Angola as the trade in
precious stones fueled civil wars[107]. Despite the intervention of the
Security Council, the traffic of bloodied diamonds resisted. In light of this,
the United Nations General Assembly adopted new instruments and defined the
conflict diamonds: "rough diamonds which are used by rebel movements to
finance their military activities", including attempts to undermine or
overthrow legitimate Governments"[108]. Furthermore, the Assembly invited
all the countries of the United Nations to adhere to the "Kimberley
Protocol" based on consultations of the various heads of government that
determined the establishment of the Kimberley Process Certification Scheme
(KPCS), a certification agreement signed by several Countries with the aim of
ensuring that the profits obtained through the sale of diamonds do not serve to
finance civil wars or other phenomena of violence. The real novelty consists in
the fact that it consists of the international certification system, suitable
for tracing the entire path of diamonds, from extraction to cutting. The
participation of the European Union in the Kimberley process also contributes
significantly to the success of the latter, since in Europe there are mineral
processing centers, such as Antwerp and London, which in the past have
attracted large quantities of "bloody" diamonds. In implementation of
the Protocol, the Council of the European Union adopted Regulation n. 2368/2002
of 20 December 2002[109], which requires the Member States
to establish an internal Community authority to monitor the imports and exports
of diamonds affecting the Union.
In conclusion, the examination of case law allows to find the absence of
a univocal orientation, but, for sure, the cases examined did not absolutely
rule out the existence of the criminal liability of multinational companies,
but rather was recognized and linked to a concrete assessment of the factual
situation in order to verify in what terms the violation of human rights is
carried out[110].
4
ASPECTS
OF COMMAND RESPONSIBILITY UNDER THE JURISPRUDENCE OF THE INTERNATIONAL CRIMINAL
JUSTICE
The position of guarantee, in particular of control, of the superiors,
asserted itself as a consequence of the decentralization of the armed forces,
which made it possible to identify the privileged observers of the subordinates
precisely in the commanders of the peripheral units. The legal nature of this
responsibility, whose value is emphasized with respect to that of subordinates,
is still oscillating: from responsibility for the subordinate, to
responsibility sui generis[111] for non-fulfillment of the duty to
control the work of subordinates, to responsibility for complicity, in the form
of moral or material competition.
On the
defining side, various options have alternated: responsibility for a fact
committed by others[112], which is reflected in a normative
transposition in the statutes of the ad
hoc Tribunals; type of individual criminal responsibility for the illegal
acts of subordinates; type of imputed responsibility or indirect responsibility[113], and finally dereliction of duty,
in the presence of a reprehensible failure to perform an act required by
international law[114].
The alternation of these definitions did not produce purely
terminological effects. In fact, the construction of the case focused on the
dereliction of duty has the merit of reporting the institution of
responsibility by command in the course of responsibility for culpable fact,
but has the demerit of not dissolving the Gordian knot of the link between the
guilty omission of the superior and the crime committed by subordinates[115].
What is certain is that, when the responsibility as a hierarchical
superior lives with a responsibility deriving from a direct participation in
the crime, it is the latter to establish the imputation, while the command
responsibility is degraded to aggravating[116]. It is common for the command
responsibility to be marginalized, favoring the institutions of the People's
Competition or the Joint Criminal Enterprise (JCE)[117], despite presenting not a few
friction points with the principles of criminal responsibility. Arguably, there
is even the accumulation of responsibilities, configuring, at the head of the
hierarchy, contextually direct responsibility and responsibility by command. It
is also the amplitude of the notion of complicity that makes the boundaries
between responsibility for competition and responsibility to be fluid and to
determine double imputations, sometimes stigmatized by jurisprudence[118].
This is
demonstrated by the difference between the solutions offered by the ad hoc
Tribunals and those from the ICC, as well as the ambiguity of the latter. The
reason is to be found in the massive nature of international crimes[119], and in the difficulties inherent
in the control to be operated in macro-levels. Just think of the case Yamashita, declared responsible by the
Supreme Court of the United States for allowing his men to commit atrocities[120]. In his dissenting opinion Judge
Murphy based his dissent on the verdict, based on the absence of knowledge in
which the defendant was involved, as well as the lack of direct links with the
atrocities committed.
Not too much has changed from the case law to the Ðordevic case[121], which has declined the factors
that govern the existence of effective control: power de jure, precise knowledge of events, role-pivotal in the
coordination of operations, presence in the territory, active role in
operations and information received simultaneously with the facts constituting
international crimes. As mentioned, on the regulatory level, the responsibility
of the superior can be traced back to two different paradigms: that of direct
responsibility, consequent to a personal contribution, material or moral,
governed respectively by art. 25 par. c) and b)[122], and the responsibility of command,
governed by art. 28 of the StICC. The latter provides for the
"indirect" responsibility of superiors for crimes committed by
subordinates, structured in a subsidiary form compared to the
"direct" one corresponding to the issue of orders (article 25
subparagraph 3, letter b) or participation in criminal organizations (article
25 subparagraph 3, letter d)[123].
From a formal point of view, the disposition is divided into two parts,
corresponding to two different disciplines: the first concerning the relations
of military subordination; the second, accessory, concerning all non-military
superiors (paramilitaries, heads of irregular militias, armed bands, civilians
and politicians).
Article 28
of the StICC contemplates a specific form of responsibility of the hierarchical
superior for the crimes committed by his subordinates, interpreted by the
doctrine, on the basis of the structure of the case, as a form of negligent
omission of the superior in the offenses of subordinates or as form of autonomous
responsibility for culpable facilitation of an intentional crime. On the basis
of this rule, it is basically aimed at criminalizing the inertia of the
commanders and superiors of the hierarchy, thus affirming the superior's
responsibility for making the commission of crimes committed by the negligence
or superficiality possible or easier for the subordinates prevent or for not
having proceeded to their punishment. Faced with the often omission of the
responsibility of the superior, underlined by the jurisprudence of ad hoc Tribunals[124],one can not help but remember
another dissenting opinion, which moves on the same guaranteeing logic as the
previous one: that of Judge Shahabuddeen in the Hadžihasanović case[125], which emphasizes that the
hierarchical superior should not be held responsible for the crimes committed
by subordinates in the absence of subjective element and any type of
participation in the realization of the typical fact, unless, in fact, did not
know or had a way to know.
With this
in mind, it has been clarified that superiors can not be held responsible for
crimes committed before being invested with power and being able to effectively
exercise it[126]. Tuttavia, non mancano
orientamenti più restrittivi e probabilmente più funzionali ad esigenze repressive.
The Hadžihasanović ruling is just one of the
three important rulings that the Appeals Chamber of the ICTY has recently
issued regarding the command responsibility, in addition to the rulings Orić and Strugar[127].
Also from the
reading of the Statutes of the International Criminal Tribunals, as well as
from the jurisprudence, it is given to extrapolate the assumptions of the
responsibility of the superior: the bond of subordination; the subjective
element constituted by the actual knowledge ("knew") or potential
("had reason to know")[128] and the failure of the obligation
to prevent or punish subordinates[129].
The bond of subordination, even if temporary[130], indirect or mediated[131], is the source of the guarantee
position, therefore of the legal obligation to prevent the event, because it is
in this bond that the superior's power to control the subordinates rests. The
subordinate superior bond is directly linked to the problem of identifying
subordinates[132]. To the bond of subordination is
added[133], for civil or political superiors,
"the inherence" of the crimes committed by the subordinate to his own
service activity, which however risks introducing an unequal treatment with
respect to the other hypotheses. It is not said that a guarantee position must
be present, because in many cases the jurisprudence of the ad hoc Tribunals
disregards it, recognizing a facilitating character also to the omissive
conduct of those who were not obliged to prevent crimes, in the absence of the
superior-subordinate relationship or other source of the obligation to act[134].
In this
way, an exemption is introduced to the fundamental assumptions of the omissive
responsibility and a questionable extension of the details of the insolvency
liability[135]. It would seem to be required, to
configure the omissive responsibility, a duty to act to be found beyond the
criminal law stricto sensu intented[136], therefore a position of guarantee,
whose source is variously identified: by the laws and customs of war for the
Appeals Chamber of the Mrkšić case[137], to international humanitarian law,
to positions of authority or to the situation of danger previously caused for
the Trial Chamber in the Orić case[138]. Until the Šljivancanin case, in which the right of armed conflicts was
invoked[139]. The lowest common denominator of
this jurisprudence is precisely to be directed towards finding a source of the
obligation to act, even found in national rights, instead identifying in the
laws and customs of war an alternative source[140]. The same casuistry on the
configuration of the duty to act is rather rich but above all the duty to act
incardinated on the responsibility of position stands out: think of the case Mucić[141] and the case of Bala, Musliu, Murtezi[142]. If, on the
side of the individual criminal responsibility[143], first stop on the physical and
personal perpetration of the crime, it is noted that the concept of
"commission" has been expanded[144],conflicting tendencies are found in
the case law on the commission by omission. But the same jurisprudence tries to
contain such tendencies by requiring that the commission by omission
presupposes an obligation to act[145]. The doctrine, however, believes
that the question of the position of guarantee is marginal if we consider that
art. 28 of the StICC does not establish a general clause of extension of the
punishment through the asserted equivalence between the act and the omitting,
but proceeds to the typing, even if incomplete, of the omissive case, through
the identification of the obliged subject, the description of the proper
conduct and the indication of the specific subjective element.
Control
must be effective, and must result in the material possibility of preventing or
punishing criminal behavior[146]. This capacity can find its
foundation in official functions, in de
jure or de facto[147], and in the place occupied within
the military or political hierarchy. Not even an appreciable influence can be
compared to an effective control, drawn from specific indices[148]. The fact that there is a de jure power does not imply, at least
until proven otherwise, the effectiveness of control[149]. The Appeals Chamber in the Hadžihasanović and Kubura case confirmed the Čelebici
orientation, and also ruled out legal presumptions and reversals of the burden
of proof in this regard[150]. Also in the Orić case it has been confirmed that de jure power is not synonymous with effective control, it is only
one of the factors from which to infer the existence of the effectiveness of
control[151].
With regard to the subjective element, the required standard fluctuates
from fraud[152], with further complications for
cases that require a specific intent, to negligence so serious as to be
assimilated to acquiescence, to pure and simple negligence[153]. To the variety found on the
subjective side is added, however, a multiplicity of situations compatible with
the omissive responsibility of the superior: from the omission combined with
the choice to be present (approving spectator) that proves to be instigating[154],
to the similar presence nearby, until absentee facilitator.
The
offense that contemplates the responsibility of command is sustained by
subjective attitudes, in derogation from the general subjective parameter of
the intent and knowledge of art. 30 of the StICC, but both in the case of
fraudulent and negligent liability, there is evidence of evidential
simplifications. However, in the case of Brđjanin,
jurisprudence denounced the tendency to impute such a form of responsibility
for competition in the crime based on the passive presence at the scene of the
crime, through a series of presumptions and presumptive deductions. An
essential role assumes the available information.
We need an effective knowledge[155] that the subordinates had committed
or were committing a crime[156], or potential, deriving from the
possession of exhaustive information[157] or that are in any case such as to
lead to investigations. No intrinsic limitation of the relevant information is
established, either in terms of the form, oral or written, or the official
character of the same. It is possible to draw the effectiveness of the
knowledge from circumstantial elements[158]: the number, the type and the
extent of the illegal acts imputed to the subordinates; the era of facts, the
weapons used; the logistical means put in place; the places where the crime was
consummated, their breadth; the times of evolution of the operations; the
methods for carrying out illegal acts; the officers and the people employed;
the place where the superior was at the time of the events. By way of example,
it will be difficult to prove an effective knowledge in the face of a great
physical distance between the place where the superior was located and the one
in which the crime was consumed, on the contrary, instead, in the face of
proximity and reiteration[159].
Effective knowledge
is even more easily demonstrated if the superior is part of a structured
organization that has information and surveillance systems[160].
The superior has the right to know when he has information that will
allow him to know about the crime or anyway information that is so alarming
that it leads to inquiries for obtaining feedback[161]. No detailed information is
necessary, but it is sufficient that they are general[162], being sufficient also the violent
or unstable character traits of certain soldiers or their criminal reputation,
provided they are subordinates[163]. No constant control is necessary,
but only in relation to certain revealing indices[164]. In fact, the by-laws adopted the
so-called theory of alarm signals, through which he wanted to limit the duty of
inquire of superiors: in the presence of certain information, from which he
could clearly deduce the commission of offenses by the subordinates, the
superior can not neglect to evaluate them for the purposes of his due
determinations. It is clear that the information must present a margin of
evaluation, otherwise it would fall under the hypothesis of full knowledge,
with consequent change of the subjective title of responsibility. Among other
things, also regarding information, there is a linguistic problem that lurks in
the discrepancy between the English version (information which clearly
indicated, that the subordinates were committing or about to commit such
crimes) and the French one (informations
leur allow conclusion)[165] of the standard, a difference that
also affects the subjective element, because only the French version emphasizes
the mere objective fact of the availability of information, regardless of their
suitability to be symptomatic of crimes[166], given the circumstances[167], to prevent crime or punish the
perpetrators. The effectiveness and reasonableness of the measures must be
proven case by case[168] on the basis of further indices:
the orders given, the measures taken to make them executive, the measures aimed
at ending illegal acts, the initiation of adequate investigations to bring out
the crime or to bring the guilty to justice. Given the need
to contextualize the adequacy of the measures so that the superior can avoid
the omissive responsibility, it is as if, from the general obligation, one could
derive a particular. The obligation to prevent is separate from that of
punishing. Concerning the obligation to punish, the Appeals Chamber in the Krnojelac case[169] considered that leaving the crimes
of subordinates unpunished can not be considered proof of the superior's
knowledge of the future commission of crimes, and therefore does not reach the
threshold of had reason to know. Evaluation must always be a case[170]. However, in the most recent case Gotovina[171],
it was emphasized that creating a climate of impunity among subordinates
produces an encouraging effect in the commission of crimes.
The
pronunciation Boškoski and Tarćulovski[172], was no less incisive, in which the
hierarchical superior was deemed to be exempted from the obligation to punish
by notifying the competent authorities and soliciting the opening of inquiries,
thus fully fulfilling the duty of inquire. It is not necessary that there is a
causal link between the action or the omission of the superior and the
perpetration of crimes[173],
and the discrepancies found in the same jurisprudence because, if such a
link is required, it would mean demanding a necessary involvement of a material
nature or psychic, thus distorting the responsibility of the superior[174].
In
general, the international legislator in the discipline of the competition of
people does not contemplate the causal contribution to the consummation of the
crime. This inevitably leads to the marginalization of the relevance of the
contribution, which must not necessarily have an etiological efficacy, as long
as it is in some way directed to favor the plan or the purpose[175]. Some conclusive observations on
the structure of art. 28 of the StICC as the norm in several cases, whose
omissive conduct is alternatively related to the prevention of crimes,
punishment of the perpetrators or, in a totally innovative way, to the
collaboration of the superior for justice purposes: a conduct previous or
subsequent to the crime, whose roster realizes an indictment in the sense of
"progressive-dependent"[176], depending on the crime committed,
the position of the superior and the degree of collectability of the dutiful
conduct assessed case by case. What has been outlined above is, essentially,
the responsibility of superiors for complicity in an omissive form. More complex is the "mapping" of the dogmatic
transpositions offered to the various commissions, and can be understood only
by retracing the jurisprudence on the subject, from that of the ad hoc
Tribunals, to that of the ICC. In the jurisprudence of the ad hoc Tribunals, to impute crimes to the leaders, we use the
institute of the competition[177], declined through planning,
instigation and direct order. For the planning activity, on which the
jurisprudence has focused a lot[178], the importance of consumption is
considered controversial, considered necessary by the majority jurisprudence[179], except for isolated rulings[180].
Behind the
conduct of ordering, part of the jurisprudence hides a form not of complicity
but of self-mediated with consequent attribution of primary responsibility to
the hierarchical superior[181]. A concept of author and coauthor
of a teleological and non-formal character is applied, which makes it possible
to equate the conduct of the hierarchical superior who imparts the criminal
order to that of the author, by virtue of his lordship over the fact. In
particular, a teleologically oriented conception of auteur is accepted, based
on the criterion of the domain of conduct. In practice, international
jurisprudence, in particular that of the ICTY, on the basis of this
teleological notion, which is very different from the formal one, succeeds in
making the co-author notion anybody contributing to the JCE, and the Tadić case it's an example. It is just
one of many examples of how we can expand the mesh of the responsibility of
hierarchical superiors, probably because the narrow confines of command
responsibility are not suited to repressive needs.
5 CONCLUDING REMARKS
In particular, we can say that the positive solution proposed in
relation to the criminal liability of multinational companies for international
crimes is certainly not an exhaustive solution since there is still no
unanimous opinion on the matter. The decision to address the issue from a
different perspective angle moves from the desire to use existing tools and
interpret the current legislation to guarantee the values of the international
community. In other words, it was decided to offer an incriminating solution
that serves as an extrema ratio for
the criminal penalties that are imputable to multinational companies and which
completes the sanctioning apparatus of international law. The solution offered
was the result of a reconstruction that started mainly from the examples of
national laws, but it should not be overlooked, even in the general conclusions,
that the penal responsibility of the multinational companies was expressly
foreseen and regulated in the draft of the St-ICC. As a consequence, the
presence of such authoritative regulatory source was read in conjunction with
the current legislation and with the jurisprudential contribution.
Specifically, after examining national and international legislation and case
law, it was possible to find that the elements constituting the illicit act can
be the subject of extensive interpretation. Consequently, making use of the
extensive interpretation would result in the indictment of the illicit conduct
without derogating from the principle of legality and its application
corollaries. Moreover, through the extensive interpretation it would be
possible to dispose of the means present in the international order,
guaranteeing the widest protection to the values of the international
community. Ultimately, it is reiterated that the solution proposed in this
regard does not want to be exhaustive of an issue that has a considerable
operating scope and that has proved to be connected with various factors
(economic, political and social) not always easy to understand.
I will
conclude with the words of the International Military Tribunal, which famously
noted that “crimes against international law are committed by men, not by
abstract entities, and only by punishing individuals who commit such crimes can
the provisions of international law be enforced(...)”[182]. The same idea on the need to
effectively protect human rights in the light of new challenges is echoed in
the discussion of the responsibility of transnational corporations. What has
changed is the legal subject whose responsibility is in question; what remains
is the need for the international legal order to face the reality of today.
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Data de Submissão:
20/10/2018, Data de Aprovação: 13/01/2019
COMO CITAR ESTE
ARTIGO
LIAKOPOULOS, Dimitris. Criminal liability and
compulsory in international criminal justice: the case of corporations. Revista de Direito da Faculdade Guanambi, Guanambi, BA, v. 5, n.
2, p. 13-91, jul./dez. 2018. doi: https://doi.org/10.29293/rdfg.v5i2.216.
Disponível em: http://revistas.faculdadeguanambi.edu.br/index.php/Revistadedireito/article/view/216.
Acesso em: dia mês. Ano.
[1] Full professor of European Union Law in Fletcher School-Tufts University. Full professor in international criminal law and criminal procedural law in De Haagse Hogenschool-Aja. Attorney at law in New York. ORCID: 0000-0002-1048-6468
[2] According to Higgins the Multinational societies: "(...) as participants with differing degrees of participation in the international law-making process is a very persuasive one in light of the fact that international law is no longer simply a body of rules for the regulation of interstate relations (...)". R. HIGGINS, Problems and process: International law and how we use it. In: J. ZERK, Multinationals and corporate social responsibility, Cambridge University Press, Cambridge, 2006, pag. 74. In the same opinion see. O.K. FAUCHALD, J. STIGEN, Corporate responsibility before International institutions, in George Washington International Law Review, 40, 2008, pp. 1025, 1029ss. M. NOORTMANN, A. REINISCH, C. RYNGAERT, Non-State actors in international law, Hart Publishing, Oxford & Portland, Oregon, 2015, pp. 154ss.
[3] T. MERON, International law in the age of human rights. General course on public international law, in Recueil des Cours, 301, 2004, pp. 12ss.
[4] R.Y. JENNINGS, International law, in Encyclopedia of Public International Law, 2, 1995, pp. 1159-1178.
[5] A. CLAPHAM, The question of jurisdiction over multinational corporations under international criminal law, in M. T. KAMMINGA, S. ZIA-ZARIFI, Liability of multinational corporations under international law, Kluwer Law International The Hague, 2000, pp. 145 ss. N. JÄGERS, Corporate human rights obligations: in search of accountability, ed. Intersentia, Anversa, Oxford, New York, 2002, pp. 230ss.
[6] International Military Tribunal, case No. 57, I.G. Farben Trial, 14 August 1947-29 July 1948, in Law Reports of the Trials of War Criminals, vol. X, pp. 1 ss.
[7] I. KYRIAKAKIS, Corporations before international criminal courts: Implications for the international justice project, in Leiden Journal of International Law, 30 (1), 2017, pp. 222ss.
[8] A. CLAPHAM, The question of jurisdiction over multinational vorporations under international criminal law, op. cit. N. JÄGERS, corporate human rights obligations: in search of accountability, op. cit..
[9] As we can see in the case of German, which remains a “bastion” of the traditional principle societas delinquere non potest, with the result that under the German legal system a corporation as a legal person cannot be held criminally liable. Instead, the prosecutor must identify the individuals responsible and only prosecute those particular individuals, a task that can prove significantly difficult when dealing with the complex corporate structures of modern-day MNCs. In argument: B. SWART, International trends towards establishing some form of punishment for corporations, in International Criminal Justice, 6, 2008, pp. 947, 949ss. P. MUCHLINSKI, Limited liability and multinational enterprises: A case of reform, in Cambridge Journal of Economics, 34, 2010, pp. 920ss.
[10] The aggregation principle grounds the criminal liability of corporations on the combined acts or omissions of individual agents where each act or omission is in itself insufficient. Mental states and conduct on the part of different individuals are joined together and considered as a whole. The underlying rationale is that a combination of personal transgressions or minor failures might reveal a gross breach of duty on the part of the company, or collective awareness that warrants the entity’s responsibility for a criminal consequence. Some jurisdictions have been hesitant to extend the application of aggregation to crimes requiring proof of intent as opposed to only knowledge. Other legal systems have recognised the utility of the principle with regard to situations entailing recklessness and even gross negligence. E. POSNER, A. PORAT, Aggregation and law, in J.M. Olin Program in Law and Economics Working Paper No. 587, 2012. M. FINDLAY, J. CHAH HUI YUNG, Principled international criminal justice: Lessons form tort law, ed. Routledge, London & New York, 2018. M. FINDLAY, R. HENHAM, Exploring the boundaries of international criminal justice, ed. Routledge, London & New York, 2016, pp. 83ss.
[11] The mens rea purpose test is not unique to the ICC. The provisions for complicity by aiding and abetting-which appear in the legal instruments of the East Timor Panels of Judges and the IHT955Article 15(2)(c) of the IHT Statute. A similar purpose test is applied in a number of domestic jurisdictions: Canada‘s Section 21(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 and New Zealand‘s Section 66(1) Crimes Act 1961; the Model Penal Code of the American Law Institute; Section 14(3)(c) of Regulation 2000/15. East Timor was annexed as a province to Indonesia from 1975 up until 1999 when the East Timorese population voted for their independence. Following a violent campaign allegedly perpetrated by pro-Indonesian militias against the Timorese population, East Timor gained its independence in 2002. UNTAET, the provisional authority established in East Timor in the aftermath of Indonesia‘s withdrawal, set up Panels of Judges with Exclusive Jurisdiction over Serious Criminal Offences Established within the East Timor District Courts to deal with the grave violations of international humanitarian law and human rights that were committed in East Timor during 1999 (see generally, United Nations Mission of Support in East Timor. Farrell‘s approach here seems to be in keeping with the brief observations made by the Pre-trial Chamber in The Prosecutor v. Callixte Mbarushimana, and also the manner in which the Panels of Judges attributed accomplice liability in East Timor. See, Deputy Prosecutor General for Serious Crimes and the U.C. Berkeley War Crimes Studies Center American Law Institute, Model Penal Code: Official Draft and Explanatory Notes, Complete Text of Model Penal Code as Adopted at the 1962 Annual Meeting of the American Law Institute at Washington, D.C., May 24, 1962 (1985); The Prosecutor v Callixte Mbarushimana (Decision on the Confirmation of Charges) (ICC, Case No ICC-01/04-01/10, 16 December 2011) (281), where the Chamber noted that: “(...) the jurisprudence of the ad hoc tribunals does not require the aider and abettor to share the intent of the perpetrator to commit the crime, whereas under article 25(3)(c) of the Statute the aider and abettor must act with the purpose of facilitating the commission of that crime (...)“, and for the UNTAET, see, Section 14(3)(c) of Regulation 2000/15. G. PLOMP, Aiding and abetting. The responsibility of business leaders under the Rome statute of the International Criminal Court, in Utrecht Journal of International and European Law, 30, 2014, pp. 8ss.
[12] The ILC’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind proposes to impose criminal responsibility for genocide, crimes against humanity and war crimes (as well as other crimes) on an individual who “knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime, including providing themeans for its commission”. The ICTY deemed the ILC Draft Code an “authoritative international instrument” In the Einsatzgruppen case (Trial of Otto Ohlendorf and Others (Einsatzgruppen), 4 Trials of War Criminals Before the Nurenberg Military Tribunals Under Control Council Law No. 10, 572 (William S. Hein & Co., Inc. 1997) (1949) quoted in Furundzija, case No. IT-95-17/1-T, par. 218), the American military court also used a knowledge test, in contrast to the aforementioned purpose test, to convict defendant Fendler; the court determined that the defendant knew that executions were taking place. The ICTY Trial Chamber in Furundzija adopted a knowledge test: “(...) the mens rea required is the knowledge that these acts assist in the commission of the offence (...)”. The ILC code also adopted the knowledge test. Under the ILC code, a person can only be found guilty of aiding and abetting, or otherwise assisting if they know that their help will facilitate a crime. The ILC Code is consistent with the subsequent findings of the Appeals Chamber of the ad hoc tribunals. The mens rea of aiding and abetting is knowledge that the acts performed by an individual assist the commission of the specific crime by the principal perpetrator. Under this code, the aider and abettor need not share the mens rea element of the principal; but instead, must be aware of the essential elements of the crime that was ultimately committed by the principal. In crimes of specific intent, such as genocide, the aider and abettor must know of the principal perpetrator’s specific intent. In particular in the case of genocide, the aider and abettors must know that the people whom they are helping intend to destroy a particular national, ethnic, religious or ethnic group.
[13] Opinion concluded partially from: D. OLSON, Corporate complicity in human rights violations under international criminal law, in International Human Rights Law Journal, 5 (1), 2015. J.P. BOCHOSLAVSKY, V. OPGENHAFFEN, The past and present of corporate complicity: financing the argentinean dictatorship, in Harvard Human Rights Journal, 23, 2010, pp. 160ss.
[14] See, 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. 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. 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, parr. 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, Principle 7, pp. 10-11. 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. According to Seck: “(...) 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 (...)“. S.L. SECK, Collective responsibility and transnational corporate conduct, in T. ISAACS, R.VERNON, Accountability for collective wrongdoing, Cambridge University Press, Cambridge, 2011, pp. 142ss.
[15] In United States v. Goering, the Nuremberg Tribunal found that:
"(...) those who execute the plan do not avoid responsibility by showing
that they acted under the direction of the man who conceived it (...) he had to
have the cooperation of statesmen, military leaders, diplomats and businessmen.
When they, with knowledge of his aims, gave him their cooperation, they made
themselves parties to the plan he had initiated. They are not to be deemed
innocent (...) if they knew what they were doing (...)". UN Doc.
A/Conf.183/C.1/WGGP/L.5/Rev.2, del 3 July 1998.
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[19] M. SAIF-ALDEN WATTAD, Natural persons, legal entities and corporate criminal liability under the Rome statute, in UCLA Journal of International Foreign Affairs, 391, 2016, pp. 394ss.
[20] See from the Supreme Court of the U.S. the case: Jerner et al., v. Arab Bank, PLC n. 16-499 of 24 April 2018.
[21] The ATS declared that: “(...) U.S. district courts shall have jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the U.S.“. See: H. WARD, Securing transnational corporate accountability through National Courts: Implications and policy options, in Hastings International and Comparative Law Review, 24, 2000-2001, pp. 451ss. M. I. MOULLIER, Observations sur l’Alien Tort Claims Act et ses implications internationales, in Annuaire Française de Droit International, 49, 2003, pp. 129ss. C.T. SALAZAR, Applying international human rights norms in the United States: Holding multinational corporations accountable in the United States for international human rights violations under the Alien Tort Claims Act, in St. John’s Journal of Legal Commentary, 19, 2004-2005, pp. 111ss. J. KURLANTZICK, Taking multinational to Court: How the Alien Tort Act promotes human rights, in World Policy Journal, 21, 2004, pp. 62ss. A.J. BELLIA, B.R. CLARK, The Alien Tort statute and the law of Nations, in The University of Chicago Law Review, 70 (2), 2011, pp. 8ss. In 2004, the Supreme Court interpreted the ATS for the first time in Sosa v. Alvarez-Machain. The Court held that the ATS was solely a jurisdictional statute and did not create a federal cause of action. At the same time, the Court assumed that the statute permitted aliens to bring claims like those that the First Congress had in mind when it enacted the ATS. Although the opinion is not a model of clarity, the Court repeatedly emphasized the importance of historical context to a proper understanding of the ATS. See, E.A. YOUNG, Sosa and the retail incorporation of international law, in Harvard Law Review, 28, 2007 (observing that the Sosa opinion-has become something of a Rorschach blot‖). C.A. BRADLEY, The Alien Tort Statute and Article III, 42 Vanderbilt Journal of International Law, 42, 2002, pp. 587, 630-631 (describing how the ATS was-consistent with the law of international responsibility in the late 1700s‖). M.G. COLLINS, The diversity theory of the Alien Tort Statute, Vanderbilt Journal of Internaional Law, 42, 2002, pp. 649, 652 (describing sovereigns‘ obligation to remedy law of nations violations). D.H. MOORE MEDELLIN, The Alien Tort Statute and the domestic status of international law, Vanderbilt Journal of Internatonal Law, 50, 2010, pp. 485 (arguing that Medellin reinforces Sosa‘s separation of powers approach to reading the ATS). T.H. LEE, The safe-conduct theory of the Alien Tort Statute, in 106 Columbia Law Review, 106, 2006, pp. 830, 871.
[22] M. NATARAJAN, International crime and justice, Cambridge University Press, Cambridge, 2010, pp. 52ss.
[23] D. SHAPIRO, Kiobel and corporate immunity under the Alien Tort Statute: The struggle for clarity post-sosa, in Harvard International Law Journal, 52, 2011. D.P. STEWART, I. WERTH, Kiobei v. Royal Dutch Petroleum Co.: The Supreme Court and the Alien Tort Statute, in American Journal of International Law, 107 (3) 2013, pp. 602ss.
[24] E. BRANDABERE, Non-State actors and human rights corporate responsibility and the attemps to formalize the role of corporations as participants in the international legal system, in J. D’ASPREMONT (ed.), Participants in the international legal system multiple perspectives on non-State actors in international law, ed. Routledge, London & New York, 2011, pp. 270ss.
[25] P. MILLIET, Droits de l’homme et responsabilité des entreprises, in Covalence Intern Analyst Paper, 30.07.2009.
[26] See also: International Law Commission (ILC), "Draft articles on Responsibility of States for Internationally Wrongful Acts (2001)" (ARSIWA), submitted to the UN General Assembly as part of the Report of the International Law Commission on the work of its 53rd session (23 April-1 June and 2 July-10 August 2001) UN Doc A/56/10, with commentaries on the articles. The General Assembly included the articles in Resolution 56/83, "Responsibility of States for internationally wrongful acts" (28 January 2002) UN Doc A/RES/56/83. The ultimate case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair (30 April 1990), XX UNRIAA 215 (“Rainbow Warrior”), par. 75. see, P.P. MIRETSKI, S.D. BACHMANN, The UN norms on the responsibility of transnational corporations and other business enterprises with regard to human rights: A requiem, in Deakin Law Review, 17 (1), 2012, pp. 12ss. KE. BOON, New directions in responsibility: Assessing the International Law Commission’s Draft Articles on the responsibility of International Organizations, in Yale Journal of International Law, 37, 2011.
[27] See, ECOSOC, Official records-53rd session, 3-28 July 1972-Resolutions-Supplement No. 1 (E/5209). With this Resolution, adopted unanimously on July 2, 1972, ECOSOC asked the UN Secretary-General to set up a study group, composed of "eminent people"-selected in the public and private sector and representative of the different geographical areas-strictly informed about international economic, social and commercial issues and the consequent international relations, in order to study, in particular, the role of multinational corporations and their impact on development processes, especially in developing countries. In 1971, in fact, the World Economic Survey elaborated by the Department of Economic and Social Affairs of the UN Secretariat had affirmed, with reference to the multinational corporations, that: “(...) while these corporations are frequently effective agents for the transfer of technology as well as capital to developing countries, their role is sometimes viewed with awe since their size and power may surpass the host country’s entire economy (...)“. The international community was therefore (and for the first time) called to define a "positive policy" and to create an "effective machinery" to address the issues raised by the activity of the IMN. See: Department of Economic and Social Affairs, World Economic Survey, 1971-Current Economic Developments, United Nations - New York, 1972 (E/5144, ST/ECA/159), pp. 10.
[28] Department on Economic and Social Affairs (DESA), The Impact of Multinational Corporations on Development and on International Relations, 1974, ST/ESA/6 DESA, pp. 54ss.
[29] ECOSOC established this Commission as its advisory body with Res. ECOSOC n. 1913 (LVII) of 5 December 1974, The Impact of Transnational Corporations on the Development Process and on International Relations, in ECOSOC, Official records-Resumed 57th session, 14 and 18 October, 19, 26 and 19 November, 5, 10 and 16 December 1974-Resolutions-Supplement No. 1° (E / 5570/Add.1). In the same resolution the ECOSOC also established that the Information and Research Center on Transnational Corporations (CTC), established with the Expert Group, had suggested the development of a Code of Conduct, as a non-binding act, which was to operate as an instrument of "moral persuasion" Ris. ECOSOC n. 1908 (LVII) of 2 August 1974, The Impact of Transnational Corporations on the Development Process and on International Relations, in ECOSOC, Official records-57th session, 3 July-2 August 1974-Resolutions-Supplement No. 1 (E/5570), conducted its activities under the guidance of the Commission. Some have defined the creation of these two organs, “the most ambitious effort of the United Nations to influence the behaviour of transnational firms“.
[30] Preamble and article 30 of the Universal Declaration of Human Rights, which clearly states that “every individual and every organ of society (...) shall strive (...) to promote respect for these rights and freedoms (...) to secure their universal and effective recognition and observance (...). The General Assembly has been affirming the TNC duty to respect human rights in recent resolutions concerning globalization and its impact on the full enjoyment of all human rights. Since the 65th session, resolutions in this series contain standard provisions: “Emphasizing that transnational corporations and other business enterprises have a responsibility to respect all human rights”, and that: “(...) recognizes that (they) can contribute to the promotion, protection and fulfilment of all human rights and fundamental freedoms, in particular economic, social and cultural rights (...)”. The resolutions were adopted by large majorities comprised chiefly of developing and the least developed countries. Although significant members in the minorities, including some countries in North America and Europe, opposed their adoption. Caution is then required from the interpreter assessing the effects of such resolutions G.A. Res. 65/216, supra note 48, was adopted by a 132-to-54 vote; G.A. Res. 66/161 (Mar. 22, 2012) (addressing globalization’s impact on the full enjoyment of human rights) was adopted by a 137-to-54 vote (G.A. Dec. 66/161, annex, XI, U.N. Doc. A/11/1198 (Dec. 24, 2011)); and G.A. Res. 67/165 (Mar. 13, 2013) (also addressing globalization’s impact on human rights) was adopted by a margin of 133-to-54 with 2 abstentions (G.A. Dec., annex, VII, U.N. Doc A/11/331 (Dec. 20, 2012)). Human Rights Council Res. 17/4, U.N. Doc. A/HRC/RES/17/4 (July 16, 2011); Human Rights Council Res. 21/5, U.N. Doc. A/HRC/RES/21/5 (Oct. 16, 2012). Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN ESCOR, 55th sess, 22nd mtg, Agenda Item 4, UN Doc E/CN.4/Sub.2/2003/12/Rev.2 (13 August 2003). See, C.F HILLEMANNS, UN norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, in German Law Journal, 4, 2003, pp. 1065, 1071ss. D. WEISSBRODT, M. KRUGER, Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, in American Journal of International Law, 97, 2003, pp. 901, 902-915. L. CATÁ BACKER, Multinational corporations, transnational law: The United Nation’s norms on the responsibilities of transnational corporations as harbinger of corporate responsibility in international law, in Columbia Human Rights Law Review, 37, 2006, pp. 287ss. D. KINLEY, R. CHAMBERS, The UN human rights norms for corporations: The private implications of public international law, in Human Rights Law Review, 6 (3), 2006, pp. 447ss. O. MARTIN-ORTEGA, Business and human rights in conflict, in Ethics & International Affairs, 22(3), 2008, pp. 273, 280ss. T. RULE, Using norms to change international law: UN human rights laws sneaking in through the back door, in Chicago Journal of International Law, 5, 2004, pp. 326ss. UN Draft Code of Conduct for Transnational Corporations (UNCTC, Transnational Corporations, Services and the Uruguay Round (United Nations, 1990) 231-243 (see particularly art 4)); the International Labour Organization in the Tripartite Declaration (International Labour Organization, ‘Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (MNE Declaration)’(ILO, 1977); International Labour Organization, ‘Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (MNE Declaration)-3rd Edition, ILO, 1 January 2000); International Labour Organisation, ‘Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (MNE Declaration)-4th Edition’(ILO, 1 January 2006); as well as in the OECD in its Guidelines for Multinational Enterprises (J. KARL, The OECD Guidelines for multinational enterprises, in M.K. ADDO (ed), Human rights standards and the responsibility of transnational corporations, Martinus Nijhoff Publishers, Leiden, 1999, pp. 98-106. OECD: The guidelines have since been reviewed five times, the latest in 2011. See The Organisation for Economic Co-operation and Development (OECD), "Declaration on International Investment and Multinational Enterprises" (adopted 21 June 1976, last reviewed 25 May 2011), Annex 1: "OECD Guidelines for Multinational Enterprises". Organization for Economic Co-Operation and Development, "OECD Guidelines for Multinational Enterprises" (Guidelines, OECD, 27 June 2000) Sub-Commission on the Promotion and Protection of Human Rights; Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Relationship between the Enjoyment of Human Rights, in Particular, International Labour and Trade Union Rights, and the Working Methods and Activities of Transnational Corporations, 47th sess, Agenda Item 8, UN Doc E/CN.4/Sub.2/1995/11 (24 July 1995); Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Impact of the Activities and Working Methods of Transnational Corporations on the Full Enjoyment of All Human Rights, in Particular Economic, Social and Cultural Rights and the Right to Development, Bearing in Mind Existing International Guidelines, Rules and Standards Relating to the Subject-Matter, 48th sess, Agenda Item 8, UN Doc E/CN.4/Sub.2/1996/12 (2 July 1996); Sub-Commission on Prevention of Discrimination and Protection of Minorities, Working Document on the Impact of the Activities of Transnational Corporations on the Realization of Economic, Social and Cultural Rights, Prepared by Mr. El Hadji Guissé, Pursuant to Sub-Commission Resolution 1997/11, UN ESCOR 50th sess, UN Doc E/CN.4/Sub.2/1998/6 (10 June 1998). International Labour Organization Convention concerning Freedom of Association and Protection of the Right to Organize, July 4, 1950, ILO No. 87, 68 U.N.T.S. 17; Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, July 18, 1951, ILO No. 98, 96 U.N.T.S. 257. International Labour Organization Convention concerning Forced or Compulsory Labour, May, 1, 1932, ILO No. 29, 39 U.N.T.S. 55; Convention concerning the Abolition of Forced Labour), January 17, 1959, ILO No. 105, 320 U.N.T.S. 291. International Labour Organization Convention concerning the Minimum Age for Admission to Employment, June 19, 1976, ILO No. 138, 1015 U.N.T.S. 297; Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, November 19, 2000, ILO No. 182, 2133 U.N.T.S. 161. International Labour Organization Convention 100 concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, May, 23, 1953, ILO No. 100, 165 U.N.T.S. 303; Convention concerning Discrimination in Respect of Employment and Occupation, June 15, 1958, ILO No. 111, 362 U.N.T.S. 31. See: R. BISMUTH, Mapping a responsibility of corporations for violations of international humanitarian law sailing between international and domestic legal orders, in Denver Journal of International Law & Policy, 38, 2010, pp. 210ss. J.N. DROBAK, The Alien Tort Statute from the perspective of Federal Court procedure, in Washington University Global Studies Law Review, 13, 2014, pp. 422ss. L. VAN DEN HERIK, J. LETNAR ČERNIČ, Regulating corporations under international law: From human rights to international criminal law and back again, 8 Journal of International Criminal Justice, 8, 2010, pp. 725-743.
[31] Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Protect, Respect and Remedy: a Framework for Business and Human Rights, 7 April 2008, A/HRC/8/5, par. 54.
[32] Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework, 9 April 2010, A/HRC/14/27, par. 55.
[33] Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Protect, Respect and Remedy: a Framework for Business and Human Rights, 7 April 2008, A/HRC/8/5, par. 56.
[34] K.E. BOON, Are control tests fit for the future? The slippage problem in attribution doctrines, in Melbourne Journal of International Law, 15, 2014, pp. 6ss.
[35] Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, cit, par. 57.
[36] Vicarious-type corporate liability has been embraced in e.g. South Africa (Criminal Procedure Act, No. 51 of 1977, par. 332) and applied as a matter of common law by US federal courts (e.g. Western International Hotels Co. v. United States, 409 US 1125 (1973)). Variants of the identification principle have been espoused by legislators or courts in, inter alia, the UK (e.g. Tesco Supermarkets Ltd. v. Nattrass, AC 153 (1971); R. v. P&O European Ferries (Dover) Ltd., 93 Cr App R 72 (1990)), Canada (e.g. Canadian Dredge & Dock Co. v. R., 1 SCR 662 (1985)), Australia (Review of Commonwealth Criminal Law, Third Interim Report of Criminal Responsibility and Other Matters par. 4BA (3)(a) 1990; and subsequently Model Criminal Code par. 501.2 codified in the Criminal Code Act par. 12.3 (2)(a)-(b)), Israel (Penal Law 1977 as amended in 1994, par. 23 (a)(2) (3rd ed. 1999)), some US state courts (e.g. State v. Christy Pontiac-GMC Inc., 354 NW 2d 17, 19-20 (1984). And in the same spirit from the Extraordinary Chambers in the Courts for Cambodia (ECCC) see: Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Case No. ICC-01/09-01/11, Public redacted version of Decision on Defence Applications for Judgments of Acquittal, 5 April 2016. The lack of legal framework among the majority of international Courts and Tribunals, corporate criminal liability is becoming more acceptable as a form of liability in international criminal law. Domestic law serves as legal basis for interpretation and application of criminal law when grave crimes have been commenced by corporate bodies and provide the courts with concise examples on how it is best applied in prace. Justice demands to hold legal entities liable for the commence of illicit acts regardless of the gravity of involvement; therefore, it is time for international criminal law to develop to the better. M.J. KELLY, The status of corporations in the travaux preparatoires of the Genocide convention: The search for personhood, in Case Western Reserve Journal of International Law, 43, 2010, pp. 483-490. I. EBERECHI, Rounding up the usual suspects: Exclusion, selectivity and impunity in the enforcement of international criminal justice and the African Union's emerging resistance, in African Journal of Legal Studies, 4, 2011, pp. 52ss. G. SIMPSON, Linear law: The history of international criminal law, in C. SCHWÖBEL (ed), Critical approaches to international criminal law: An introduction, ed. Routledge, London & New York, 2014, pp. 162ss. J. HERWIG, S. MAUS, A. MEYER ZU SCHWABEDISSEN, M. SCHULER, Global risks: Constructing world order through law, politics and economics, ed, Peter Lang, Frankfurt am Main, 2010, pp. 120ss.
[37] See, UNHRC Res.26/...of 23 June 2014, Human rights and transnational corporations and other business enterprises, UN Doc.A/HRC/26/L.22/Rev.1. This resolution was supported by 22 countries. UNHRC Res. 26/...of 24 June 2014, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, UN Doc. A/HRC/26/L.22/Rev.1. This resolution was supported by 20 countries.
[38] Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Protect, Respect and Remedy, op. cit., par. 57.
[39] Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy, op. cit., par. 83.
[40] Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy , cit., par. 59.
[41] Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy.
[42] Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy, op. cit., par. 72.
[43] See the next cases: ICTY, Prosecutor v. Anto Furundija, n. IT-95-17/1-T, 10 December 1998 par. 235. ICTR, Prosecutor v. Jean-Paul Akayesu, n. ICTR-96-4-T, 10 december 1998, par. 545. See, ICTY, Prosecutor v. Jovica Stanišiæ and Franko Simatoviæ (Simatoviæ), the Appeals Chamber held that the Trial Chamber had erroneously applied a “specific direction” standard for aiding and abetting liability and remanded the case back to the Trial Chamber for retrial with explicit instructions to use the knowledge standard. This blunt instruction came as no surprise, because the ICTY Appeals Chamber had reaffirmed the knowledge standard and explicitly rejected the specific intent standard in its early 2015 ruling in Prosecutor v. Vujadin Popoviæ (Popoviæ).117Prosecutor v. Stanišiæ, Case No. IT-03-69-A, Judgment of 9 December 2015, parr. 43-50. See in argument: D. SCHEFFER, Reflections on contemporary responses to atrocity crimes, in Genocide studies International, 110, 2016, pp. 123ss.
[44] United States Court of Appeals, Ninth Circuit, Decision of 18 september 2002, case John Doe I et al. v. Unocal Co. et al., 395 F.3d 932, C.A.9 (Cal.) 2002, Section II. Analysis, par. 8. This decision applies to the behavior of Unocal the notion of complicity as formulated in particular by the ICTY in the case Prosecutor v. Anto Furundija (referred to in the previous note) without considering the reference to "moral support" in the present case (concerning a company and not an individual). It should be noted, however, that the recent ruling by the Second Circuit Court of Appeal concerning the Presbyterian Church of Sudan v. Talisman Energy, Inc, has rather affirmed the need for the applicants to demonstrate that a company has ““purposedly” (and not only “knowingly”) aided and abetted“ the commission of crime, why it can be considered complicit in a violation of human rights. See: United States Court of Appeals, Second Circuit, sentence of 2 October 2009, Presbyterian Church of Sudan v. Talisman Energy, Inc, 582 F.3d 244 (2nd Cir. 2009).
[45] Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, 9 February2007, A/HRC/4/35., par. 32.
[46] Council of Human Rights: Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework , A/HRC/17/31, 21 March 2011 and Council of Human Rights: Protect, Respect and Remedy: a Framework for Business and Human Rights, A/HRC/8/5, 7 April 2008.
[47] Communication from the European Commission, Renewed European Union Strategy for the period 2011-2014 on Corporate Social Responsibility, COM(2011) 681, 25 October 2011, par. 14. See also the Council Directive 14/95 2014 O.J. (L 330) 1 (regarding disclosure of nonfinancial and diversity information by certain large undertakings and groups). In argument: A. POITEVIN, Towards mandatory corporate human rights due diligence at the EU level?, in Institute of Human Rights & Business, 2015. S. DOUGLAS-SCOTT, M. HATZIS, Research handbook on European Union law and human rights, E. Elgar Publishing, London & New York, 2017.
[48] In First National City Bank v. Banco Nacional de Cuba, a three-justice plurality accepted the so-called “Bernstein exception,” pursuant to which courts will not apply the act of state doctrine if the State Department says that they should not. First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 764–70 (1972). Six justices explicitly rejected the exception, however. Id. at 772–73 (Douglas, J., concurring in result); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964) (expressing skepticism about a Reverse-Bernstein exception); W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 408 (rejectingan expansion of the act of state doctrine for cases that the State Department determines would embarrass foreign sovereigns). P. STRAUSS, “Deference” is too confusing: Let’s call them “Chevron space” and “Skidmore weight", in Columbia Law Review, 112, 2012, pp. 1144ss. D. JINKS, N.K. KATYAL, Disregarding foreign relations law, in Yale Law Journal, 116, 2007, pp. 1232ss. J. BELLINGER, Enforcing human rights in U.S. Courts and abroad: The Alien Tort Statute and beyond, 42 in Vanderbilt Journal of Transnational Law, 42, 2009, pp. 12ss (focusing specifically on the difficulties that case-by-case submissions create for the executive).
[49] Direct liability would arise where the parent company has itself engaged in wrongful or criminal conduct. Direct liability need not necessarily impute liability to any one of the parent corporation’s subsidiaries though this is possible. Using in U.S. courts across different circuits have consistently pointed out the hybrid civil/criminal nature of liability questions under the ATS. See, e.g., Doe v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002); Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 270, 310 n.5 (2d Cir. 2007) (Katzman, J., concurring). Judge Scheindlin illustrates this inherent tension when she notes in In re South African Apartheid Litigation that “(...) the (ATS) provides an alternative civil remedy for violations of customary international law that are traditionally addressed as crimes (...)” 617 F.2d 228, 257 n.144 (S.D.N.Y. 2009). A group of prominent international law scholars have discussed the normative implications of this blended criminal approach in the context of a (civil) tort statute in their Brief of Amici Curiae International Law Scholars in Support of Plaintiff-Appellees, Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2009) (No. 09-2778-CV), 2009 WL 7768619 at 9-10. in argument see: D. SCHEFER, C. KAEB, The five levels of CSR compliance: The resiliency of corporate liability under the Alien Tort Statute and the case for a counterattack strategy in compliance theory, in Berkeley Jounral of International Law, 29, 2011, pp. 335ss.
[50] A. CLAPHAM, The question of jurisdiction over multinational corporations under international criminal law, in M. T. KAMMINGA, S. ZIA-ZARIFI, Liability of multinational corporations under international law, op. cit. p.p. 145 ss. N. JÄGERS, Corporate human rights obligations: in search of accountability, op. cit., pp. 230ss.
[51] Art. 1 of the project of the articles: “Every internationally wrongful act of a State entails the international responsability of that State“.
[52] ICTY, Prosecutor v. Tadić, Case n. IT-94-1-T, 1999 I.L.M., vol. 38, p.1518.
[53] In particular see from the Special Court for Siera Leone the next cases: The Prosecutor v. Sam Bockarie (Withdrawal of Indictment) (Special Court for Sierra Leone, Case No. SCSL-03-04-I-022, 8 December 2003); The Prosecutor v. Sesay, Kallon & Gbao (RUF Case) (Trial Judgement) (Special Court for Sierra Leone, Case No. SCSL 04-15-T, 25 February 2009); The Prosecutor v. Sesay, Kallon & Gbao (RUF Case) (Appeal Judgement) (Special Court for Sierra Leone, Case No. SCSL 04-15-A, 26 October 2009); The Prosecutor v. Brima, Kamara & Kanu (AFRC Case) (Trial Judgement) (Special Court for Sierra Leone, Case No. SCSL 04-16-T, 20 June 2007); The Prosecutor v. Brima, Kamara & Kanu (AFRC Case) (Appeal Judgement) (Special Court for Sierra Leone, Case No. SCSL 04-16-A, 22 February 2008); The Prosecutor v. Johnny Paul Koroma (Indictment) (Special Court for Sierra Leone, Case No. SCSL-03-I, 7 March 2003); The Prosecutor v. Fofana and Kondewa (CDF Case) (Trial Judgement) (Special Court-xxii-for Sierra Leone, Case No. SCSL 04-14-T, 2 August 2007); The Prosecutor v. Fofana and Kondewa (CDF Case) (Appeal Judgment) (Special Court for Sierra Leone, Case No. SCSL 04-14-T, 28 May 2008); The Prosecutor v. Foday Saybana Sankoh (Withdrawal of Indictment) (Special Court for Sierra Leone, Case No. SCSL-03-02-PT-054, 8 December 2003); The Prosecutor v. Charles Ghankay Taylor (Indictment) (Special Court for Sierra Leone, Case No. SCSL-03-01-T, 29 May 2007).
[54] International Court of Justice (ICJ), in its advisory opinion of 1999, on Immunity from the jurisdiction of a special rapporteur of the Commission on Human Rights, affirmed the customary nature of the art. 4 of the Project and the rule according to which the conduct of any body of the State itself is attributed to the State (ICJ, Reports,1999, 87-88, par. 62
[55] See the opinion of judge Max Huber in case Island of Palmas (1928, R.I.A.A., vol. II, p. 831, par. 845): "(...) a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when the dispute in regard to it arises or falls to be settled (...)".
[56] ICJ, Bosnia and Herzegovina v. Serbia and Montenegro, sentence of 26 February 2007. see also from the same Court: Reparations for Injuries suffered in the service of the United Nations (Advisory Opinion) (1949) ICJ Rep 174, p. 179 Reparations for Injuries, op. cit., at p. 179; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) (1996) ICJ Rep 66, para 25. These cases on the legal personality of non-state entities have concerned organizations created by States. See in argument: J. CRAWFORD, The system of international responsibility, in J. CRAWFORD, A. PELLET, S. OLLESON, (eds.), The law of international responsibility, in Oxford Commentaries on International Law, Oxford University Press, Oxford, 2010, pp. 18-19, where Crawford draws a distinction between international organizations and other non-state entities, noting that the existence of legal personality is less clear with respect to the latter.
[57] The International Court of Justice (“ICJ”) expert legal panel described the actus reus element as satisfied if the company’s conduct had “enabled,” “exacerbated,” or “facilitated” the abuses. "(...) if a company facilicated a gross human rights violation by enabling, exacerbating, or facilitating human rights abuses, the company or its officials would enter a zone in which they could be held criminally liable as an aider or abettor of a crime or as a participant in a common criminal plan, or under the law of civil remedies for intentionally or negligently causing harm to a victim (...). See, D. CASSEL, Corporate aiding and abetting of human rights violations: Confusion in the courts, in Northwestern Journal of International Human Rights, 6, 2008, pp. 305ss. The ICTY Trial Chamber in Furundzija adopted a knowledge test for aiding and abetting, the Rome Statute of the ICC adopted a purpose test. Article 25(3)(c) of the Rome Statute makes one who, “(...) for the purpose of facilitating the commission of such a crime, aids, abets, or otherwise assists in its commission or its attempted commission, including providing the means for its commission (...) criminally responsible (...)". This phrase introduced a mental element that went beyond the ordinary mens rea requirement of intent and knowledge required for other crimes under the Rome Statute and from the knowledge test.
[58] Y. BEIGBEDER, International criminal tribunals: Justice and politics, ed. Palgrave Macmillan, London, 2011, pp. 63ss. M. ENGELHART, Corporate criminal liability from a comparative perspective, in D. BRODOWSKI, Regulating corporate criminal liability, ed. Springer, Berlin, 2014, pp. 54ss.
[59] See the case: Leo Hertzberg et al. v. Finland,Leo Hertzberg et al. v. Finland, Communication n. 61/1979, U.N. Doc. CCPR/C/OP/1 at 124 (1985)
[60] And rpecedent the case: Phosphates in Morocco, Preliminary Objections, 1936, PCIJ, Series A/B, n. 74, p. 28.
[61] ICJ, Diplonatic and Consular staff in Teheran (United States v. Iran) sentence of 24 May 1980.
[62] ICJ, Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States), sentence of 27 June 1986.
[63] Zschernig v. Miller, 389 U.S. 429, but the immunity example suggests that they are not as damaging over the long-term as State Department decisions made on a case-by-case basis. Indeed, in Zschernig, the U.S. government disagreed with the Court: it did not believe that the state court statute and the court decisions applying it harmed U.S. foreign relations. K.M. STACK, The President’s statutory power to administer the law, in Columbia Law Review, 106, 2006, pp. 264ss. I.B. WUERTH, The Alien Tort Statute and federal common law: A new approach, 85 in Notre Dame Law Review, 85, 2010, pp. 1932. C. VÁZQUEZ, Alien Tort Claims and the status of customary international law, in American Journal of International Law, 106, 2012, pp. 531, 642-543. M. LANGER, The diplomacy of universal jurisdiction: The political branches and the transnational prosecution of international crimes, in American Journal of International Law, 105, 2011, pp. 1, 42ss. M.D. RAMSEY, International law limits on investor liability in human rights litigation, in Harvard International Law Journal, 50, 2009, pp. 280ss.
[64] ICJ, Diplonatic and Consular staff in Teheran (United States v. Iran) op. cit.
[65] OHCHR, State Responsibilities to Regulate and Adjudicate Corporate Activities under the United Nations’ core Human Rights Treaties, Report No. 3, Individual Report on the International Covenant on Civil and Political Rights, June 2007. Report No. 3 (ICCPR), parr. 128 and 148. V. NERLICH, Core crimes and transnational business corporations, in Journal of International Criminal Justice, 8, 2010, pp. 898ss.
[66] A. CLAPHAM, The question of jurisdiction over multinational corporations under international criminal law, in M. T. KAMMINGA, S. ZIA-ZARIFI, Liability of multinational corporations under international law, op. cit. pp. 145ss. N. JÄGERS, Corporate human rights obligations: in Search of accountability, op. cit., pp. 230ss.
[67] L.VAN DEN HERIK,
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262ss. L. VAN DEN HERIK, D.D. DAM JONG, Revitalizing
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[68] A. CLAPHAM, The question of jurisdiction over multinational corporations under international criminal law, in M. T. KAMMINGA, S. ZIA-ZARIFI, Liability of multinational corporations under international law, op. cit. pp. 145ss. N. JÄGERS, Corporate human rights obligations: in Search of accountability, op. cit., pp. 237ss.
[69] As we can notice from the domestic courts: Australia: Commonwealth v. Beneficial Finance Co, 275 NE 2d 33 (1971) Hamilton v. Whitehead (1988) 161 CLR 121; Canada: R v. Hibbert, 1995 CanLII 110 (S.C.C.); New Zealand: R v. Samuels (1985) 1 NZLR 350 (CA); United Kingdom: Anon (1701) 12 Mod 88 ER 1518 Director of Public Prosecutions v. Kent & Sussex Contractors Ltd (1944) KB 146 Lennard‟s Carrying Co Ltd v Asiatic Petroleum Co Ltd (1915) AC 705 Meridian Global Funds Management Asia Ltd v. Securities Commission [1995] AC 500 Moore v. I Bresler Ltd (1944) 2 All ER 515; R v. ICR Haulage Ltd (1944) KB 551; P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72 Salomon v. Salomon & Co Ltd (1897) AC 22 Spiliada Maritime Corp. v. Cansulex Ltd (1987) AC 460 Tesco Supermarkets Ltd v. Nattrass (1972) AC 153, HL; United States: Adra v. Clift, 195 F Supp 857 (D Md 1961); Boimah Flomo, et al v. Firestone Natural Rubber Co, No. 10-3675 (11 July 2011) Boim v. Holy Land Foundation, 549 F 3d 685 (3 December 2008); Bolchos v. Darrel, 1 Bee 74, 3 F Cas 810 (DSC 1795); Filártiga v. Peña-Irala, 630 F 2d 876 (2nd Circuit, 1980); Inland Freight Lines v. United States, 191 F 2d 313 (10th Circuit, 1951) In Re South African Apartheid Litigation (relates to the matters of Lungisile Ntsebeza, et al v Daimler AG, et al and Khulumani, et al v. Barclays National Bank Ltd, et al) 02 MDL 1499 (SAS) (8 April 2009); John Doe VIII v Exxon Mobil Corporation, No. 09-7125 (8 July 2011); New York Central & Hudson River Railroad Co. v. United States, 212 U S 481(1909); Standard Oil Co. of Texas v. United States, 307 F 2d 120 (5th Circuit, 1962); Steere Tank Lines v. United States, 330 F 2d 719 (5th Circuit, 1964); United States v. Hilton Hotels Corp., 467 F 2d 1000 (9th Circuit, 1972); United States v. Bank of New England, 821 F 2d 844 (1st Circuit, 1987); United States v. Peoni (1938) 100 F 2d 401; Wiwa v. Royal Dutch Petroleum Co, et al, 96 Civ 8386 (KMW) (HBP) (April 23, 2009).
[70] V. NERLICH, Core crimes and
transnational business corporations, in Journal of International Criminal
Justice, 8, 2010, pp. 896ss. D. LUBAN, After the honeymoon:
Reflections on the current state of international criminal justice, in Journal
of International Criminal Justice, 11, 2013, pp. 506ss. J. MBOKANI, La cour pénale internationale: Une cour contre
les africains ou une cour attentive À la souffrance des victimes Africaines?,
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law, in American Journal of Inyernational Law, 109, 2016, pp. 256ss. S. KENDALL, Commodifying global justice: Economies of
accountability at the International Criminal Court, (2015) 13 in Journal of
International Criminal Justice, 13, 2015, pp. 114ss. P. MUCHLINSKI, The changing face of transnational business
governance: Private corporate law liability and accountability of transnational
groups in a post financial crisis world, in Indiana Journal of Global Legal
Studies, 18 (2), 2011, pp. 667, 685-690.
U. KOHL, Corporate human rights accountability: The
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[71] A. CLAPHAM, The question of jurisdiction over multinational corporations under international criminal law, in M. T. KAMMINGA, S. ZIA-ZARIFI, Liability of multinational corporations under international law, op. cit. pp. 145ss. N. JÄGERS, Corporate human rights obligations: in Search of accountability, op. cit., pp. 228ss.
[72] P.T. MUCHLINSKI, Multinational enterprises and the law, Oxford University Press, Oxford, 2007, pp. 114ss.
[73] See: United States Court of Appeals, Second Circuit, sentence of 30 June 1980: case Dolly M. E. Filártiga and Joel Filártiga v. Americo Norberto Peña-Irala, in 19 International Legal Material, 966, 1980. D. LIAKOPOULOS, Multilatateral corporations and international criminal responsibility. The case of United States, in International and European Union Legal Matters, working paper series, 2018.
[74] United States Court of Appeals, Second Circuit, sentence of 13 October 1995: case S. Kadic v. Radovan Karadi, in 34 Internatonal Legal Material, 1595, 1995. Banco Nacional de Cuba v. Sabbatino 376 US 398 (SCt 1964) 428; Kadic v. Karadzic 70 F 3d 232 (2d Cir 1995). D. DEYA, Worth the wait: Pushing for the African Court to exercise jurisdiction for international crimes, in OpenSpace on International Criminal Justice, 2012, pp. 224ss. M. PIETH, R. IVORY, Emergence and convergence: Corporate criminal liability principles in overview, in M. PIETH, R. IVORY (eds), Corporate criminal liability: Emergence, convergence and risk, ed. Springer, Berlin, 2011, pp. 12ss. J. STEWART, A pragmatic critique of corporate criminal theory: Lessons from the extremity, in New Criminal Law Review, 6 (2), 2012, pp. 261-299. J. SUNDELL, Ill-Gotten gains: The case for international corporate criminal liability, in Minnesota Journal of International Law, 20, 2011, pp. 650ss.
[75] United States Court of Appeals, Ninth Circuit, sentence of 18 September 2002, case John Doe I et al. v. Unocal Corporation, in 41 International Laegal Material, 1367, 2002, “(...) generally deemed a milestone with respect to suing companies, including foreign ones, under ATCA for alleged complicity with host State’s violation of international human rights (...)“.
[76] United States District Court, Southern District of New York, Decision of 19 March 2003: caso Presbyterian Church of Sudan v. Talisman Energy Inc., 244 F.Supp.2d 289 (S.D.N.Y.2003), parr. 308-313. Brief for the United States as Amicus Curiae at 2-3, Khulumani v. Barclay Nat’l Bank Ltd. (Nos. 05-2141, 05-2326), supra note 15; Brief for the United States as Amicus Curiae at 4, Doe v. Unocal Corp., 403 F.3d 708 (9th Cir. 2005) (Nos. 00-56603, 00-56628); see generally Stephens, Beth, Judicial Deference and the Unreasonable Views of the Bush Administration, 33 Brook. J. Int’l L. 773 (2008). See also: Al Shimari v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc) (alleging that human rights abuses took place in Abu Ghraib prison, Iraq, when it was under the complete control of the United States). W.F. BAXTER, Separation of powers, prosecutorial discretion, and the “common law” nature of antitrust law, in Texas Law Review, 60, 1982, pp. 661, 663. M.H. LEMOS, The other delegate: Judicially administered statutes and the non delegation doctrine, in South California Law Review, 81, 2008, pp. 405, 429-430. J. KNOX, A presumption against extrajurisdictionality, in American Journal of International Law, 104, 2010, pp. 35, 379-388. W.S. DODGE, Understanding the presumption against extraterritoriality, 16 in Berkeley Journal of International Law, 16, 1998, pp. 85, 99ss.
[77] Presbyterian Church of Sudan v. Talisman Energy, 582 F.3d 244 (2nd Cir. 2009) (finding that purposes and not knowledge is required for aiding and abetting with the ATS context, and interpreting purpose as going to the consummated offence). For cases applying a “knowledge” standard, see In Re South African Apartheid Litigation 617 F. Supp. 2d 288 (2009); Romero v. Drummond Co., 552 F3d 1303 (11th Cir. 2008); Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir. 2009). Khulumani v. Barclay National Bank Ltd, 504 F.3d 254 (2d Cir. 2007); Ntsebeza v. Daimler Chrysler Corp, 504 F.3d 254 (2d Cir 2007), n.15. In expressing apprehension about the curious idea of “specific direction” as a form of actus reus, one appellate judge in the Khulumani litigation pointed out that: "(...) a possible tension in the tribunals’ definition aiding and abetting under which the necessary mens rea is knowing assistance (...) yet requires that the act of assistance be specifically directed to assist the perpetration of a specific crime (...) this possible tension might be resolved. In the same spirit (...)". The ICTY overturned its own previous caselaw that had upheld the “specific direction” standard. See Prosecutor v. Šainović et al, case No. IT-05-87-A, Judgment, 2014: "(...) view “specific direction” as a contradiction when treated as part of the actus reus, I have pointed to the need to consider these types of considerations as justifications in international criminal law (...). See also the ICTY Trial Chamber in Furundzija adopted a knowledge test for aiding and abetting, the Rome Statute of the ICC adopted a purpose test. Article 25(3)(c) of the Rome Statute makes one who, “(...) for the purpose of facilitating the commission of such a crime, aids, abets, or otherwise assists in its commission or its attempted commission, including providing the means for its commission (...) criminally responsible (...)". This phrase introduced a mental element that went beyond the ordinary mens rea requirement of intent and knowledge required for other crimes under the Rome Statute and from the knowledge test. S. DROUBI, Transnational corporations and international human rights law, in Notre Dame Journal of International & Comparative Law, 6 (1), 2016.
[78] S. DROUBI, transantional corporations and international humna rights law, in Notre Dame journal of International & Comparagive Law, 6 (1), 2016, pp. 2ss. W. KALECK, M. SAAGE-MAAB, Corporate accountability for human rights violations amounting to international crimes-The status quo and its challenges, in Journal of International Criminal Justice, 8, 2010. M. KREMNITZER, A possible case for imposing criminal liability on corporations in international criminal law, in Journal of International Criminal Justice, 8 (3), 2010. P. MUCHLINSKI, Limited liability and multinational enterprises: A case for reform, in Cambridge Journal of Economics, 34, 2010.
[79] Compare Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 103-06 (2d Cir. 2000) (forum non conveniens disfavored in ATS cases),with Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance, Kiobel v. Royal Dutch Petroleum (No. 10-1491) at 25 n.13 (explicitly disagreeing with the Second Circuit’s analysis in Wiwa). EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). Compare Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 284-292 (2d Cir. 2007) (Hall, J.), aff ‘d sub nom due to lack of a quorum, Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008) (mens rea for aiding and abetting supplied by federal common law), with Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009) (mens rea supplied by customary International law). See also I.K. CHIMËNE, Conceptualizing complicity in Alien Tort Cases, in Hastings Law Journal 60, 2008, pp. 62ss. H. THOMAS, The safe-conduct theory of the Alien Tort Statute, in Columbia Law Review, 106, 2006, pp. 832ss.
[80] Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). Kiobel v. Royal Dutch Petroleum Co, 133 S. Ct. 1659, 1665 (2013). Kiobel, 621 F.3d at 152 (Leval, J., concurring in part and dissenting in part). Judge Leval states that: “(...) the fact that international tribunals do not impose criminal punishment on corporations in no way supports the inference that corporations are outside the scope of international law and therefore can incur no civil compensatory liability to victims when they engage in conduct prohibited by the norms of international law (...). In the same case: Justice Carbanes held that since corporations cannot be liable for international crimes under international law, they could not be held accountable under the ATS cause of action. In a separate opinion, the third judge, Justice Leval, attacked the judicial logic of the majority decision. He suggested that the majority’s argument was “illogical, misguided, and based on misunderstandings of precedent (...)”. See the Ninth Circuit, through Doe I v. Nestle USA, 766 F.3d 1013 (9th Cir. 2014), all endorse corporate liability under the ATS. The Second Circuit has followed its earlier ruling in Kiobel v. Royal Dutch Petroleum Co. against corporate liability, arguing that “the Supreme Court in Kiobel II (has not) overturned (the Second Circuit’s) holding in Kiobel I because the Supreme Court failed to address the specific question of whether corporations are liable for violations of international laws under the ATS.” Balintulo, 796 F.3d at 166 n.28 (reasoning that: "(...) there is no authority for the proposition that when the Supreme Court affirms a judgment on a different ground than an appellate court it thereby overturns the holding that the Supreme Court has chosen not to address (...) hold otherwise would undermine basic principles of stare decisis and institutional regularity (...)". According to our opinion, both judicial opinions based their reasoning on interpretations of Nuremberg-era jurisprudence. See in argument also: C. KAEB, D. SCHEFFER, The paradox of Kiobel in Europe, American Journal of International Law, 107, 2013, pp. 852, 854-855. C.M. VÁZQUEZ, Customary international law as U.S. law: A critique of the revisionist and intermediate positions and a defense of the modern position, in Notre Dame Law Review, 86, 2011, pp. 1495, 1515-1516, 1538-1554. D. LUSTIG, Three paradigms of corporate responsibility in international law: The Kiobel moment, in Journal of International Criminal Justice, 12 (3), 2014, pp. 596ss. E. KONTOROVICH, Kiobel surprise: Unexpected by scholars but consistent with international trends, in Notre Dame Law Review, 89, 2014, pp. 21ss. (stating that the only treatment of the question of extraterritoriality came in 2003, within a student note, and the issue was not raised by scholars or anyone else; There were, however, early calls for jurisdictional limitations on the scope of the ATS). A.L. PARRISCH, Kiobel, unilateralism, and the retreat from extraterritoriality, in Maryland Journal of International Law, 28, 2013, pp. 208, 213ss. (“(...) extraterritorial jurisdiction has innocuous forms, for example, jurisdiction over one’s own nationals or jurisdiction to punish offenses directed at state security, it becomes contentious when one state purports to tell foreigners what they can or cannot do on foreign soil (...)"). See also, M. KUNZ, Conceptualizing transnational corporate groups for international criminal law, ed. Nomos, Baden Baden, 2017, pp. 27ss. A.L. PARRISH, Domestic responses to transnational crime: The limits of national law, in Criminal Law Forum, 23, 2012, pp. 275-293 (arguing that extraterritorial exercises of criminal law are highly problematic in practice, and should not undermine multilateral attempts at regulating global criminal offending). L. VAN DEN HERIK, J. LETNAR ČERNIČ, Regulating corporations under international law: From human rights to international criminal law and back again, Journal of International Criminal Justice, 8, 2010, pp. 725-743. (“(...) in situations where a multinational corporation outweighs a developing host state in terms of economic power, that state may not be inclined toregulate a corporation too stringently. The investment and economic activity coming from the multinational may be more appealing to the developing state than the need to protect its citizens from violations committed by the multinational (...)"). J. VON ERNSTORFF, M. JACOB, J.D. STONE, The Alien Tort Statute before the US Supreme Court in the Kiobel case: Does international law prohibit US courts to exercise extraterritorial civil jurisdiction over human rights abuses committed outside of the US?, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 72, 2012, pp. 580ss.
[81] In the same spirit see also the enxt case: Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011). The court concluded that: "(...) deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties (...) if the alleged torturer is found and served with process by an alien in the United States, then the ATS provides federal jurisdiction because the alien is suing for a tort in violation of the law of nations (...) its exercise of jurisdiction was consistent with the limits of Article III because the case arose under-the law of nations, which has always been part of the federal common law (...)". See also: Hiloa v. Estate of Marcos, 25 F3d 1467 (9th Cir 1994) (aligning its reasoning with that of the Second Circuit-in concluding that the Alien Tort Act, 28 USC par. 1350, creates a cause of action for violations of specific, universal, and obligatory international human rights standards). Alvarez-Machain v. United States, 331 F3d 604, 641 (9th Cir 2003). R. GOODMAN, D.P. JINKS, Filartiga‘s firm footing: International human rights and federal common law, in Fordham Law Review, 66, 1997, pp. 463ss. M.D. RAMSEY, International law limits on investor liability in human rights litigation, in Harvard International Law Journal, 50, 2009, pp. 284-292 (discussing the limits of prescriptive jurisdiction under customary international law). S. JAY, The status of the law of Nations in early american law, in Vanderbilt Law Review, 42, 1989, pp. 42ss. Given America‘s status as a global superpower, modern Congresses may be less concerned with how other nations will react to a decision to grant aliens a federal cause of action against other aliens in exceptional circumstances. See also: Torture Victims Protection Act of 1991 (TVPA), Pub L No 102-256, 106 Stat 73 (1992), codified at 28 USC par. 1350 (establishing a civil right of action against individuals who torture or subject individuals to extrajudicial killing). Unlike ATS claims, suits under the TVPA do not depend on diversity jurisdiction because they arise under a federal statute and thus satisfy both Article III and 28 USC par. 1331. Murray v Schooner Charming Betsy, 6 US (2 Cranch) 64 (1804); Bellia & Clark. Sarei v. Rio Tinto PLC, 650 F Supp 2d 1004, 1020-1026 (CD Cal 2009) (concluding that torture, genocide and war crimes-but not environmental torts-are of universal concern). Sinaltrainal v. Coca-Cola Co, 578 F3d 1252, 1265 (11th Cir 2009) (stating that-ATS claims generally require allegations of state action because the law of nations are the rules of conduct that govern the affairs of a nation, acting in its national capacity). Jones v. Saudi Arabia [2006] UKHL 26, (13)-(14) (appeal taken from Eng.). D.F. DONOVAN, A. ROBERTS, The emerging recognition of universal civil jurisdiction, 100 in American Journal of International Law, 100, 2006, pp. 142, 146-149, 153-154. J.J. PAUST, Human rights responsibilities of private corporations, in Vanderbilt Journal of Transnational Law, 35, 2002, pp. 801, 802-809. J. WRIGHT, Retribution but no recompense: A critique of the torturer’s immunity from civil suit, in Oxford Journal of Legal Studies, 30, 2010, pp. 143, 160-162. See also the Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, para. 30, UN Doc. A/HRC/4/35 (Feb. 19, 2007). H.H. KOH, Is international law really State law?, in Harvard Law Review, 111, 1998, pp. 1825ss. D.J. BEDERMAN, International law advocacy and its discontents, 2 in Chicago Journal of International Law, 2, 2001, pp. 476ss.
[82] G.L. SKINNER, Beyond Kiobel: Providing access to judicial remedies for violations of international human rights norms by transnational business in a new (Post-Kiobel) World, 46 in Columbia Human Rights Law Review, 46, 2014, pp. 158, 168ss. D. DE FELICE, Challenges and opportunities in the production of business and human rights indicators to measure the corporate responsibility to respect, in Human Rights Quarterly, 37, 2015.
[83] Case Wiwa at al. v. Shell , Fifth Amended Complaint (2009), cit., par. 121-193.
[84] According to article 9 (1) of the London Charter, Charter of the International Military Tribunal-Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, 8 August 1945, 82 U.N.T.S. 280, art. 9(1),which states: "(...) at the trial of any individual member of any group or organization, the Tribunal may declare (in connection with any act of which the individual may be convicted that the group or organization of which the individual was a member was a criminal organization (...)".
[85] See also: In Hartford Fire Ins. Co. v. California, Justice Souter noted the American Banana cases but then said without explanation that “the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States.” 509 U.S. 764, 795–96 (1993); see also id. at 814 (Scalia, J., dissenting) (stating that the presumption has been “overcome” in Sherman Act litigation and citing earlier decisions of the Court and the Second Circuit). Even when the Court declines to apply the Sherman Act to conduct abroad, it does not do so based on the presumption. see F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 169 (2004). Today, amendments to the Sherman Act may make its extraterritorial application clear, but the Court had already ruled that the statute applied extraterritorially in Hartford Fire Ins. Co. See, W.N. ESKRIDGE, E.L. BAER, The continuum of deference: Supreme Court treatment of agency statutory interpretations from Chevron to Hamdan, 96 Georgetown Law Journl, 96, 2008, pp. 1083, 1111-1115. E.A. POSNER, C.R. SUNSTEIN, Chevronizing foreign relations law, 116 in Yale Law Journal, 2007, pp. 1170, 1198 (noting that: “(...) the Law has-peculiarly-not settled on a general principle of deference when an executive agency advances an interpretation of a statute that has foreign relations implications (...)”).The decision to impose a compliance monitor depends on the specific facts of the case. According to the Resource Guide to the U.S. Foreign Corrupt Practices Act (FCPA) by the U.S. Department of Justice (DOJ) and U.S. Securities and Exchange Commission (SEC), the following factors: "(...) determine whether a monitor is appropriate, namely: “seriousness of the offense; duration of the misconduct; pervasiveness of the misconduct, including whether the conduct cuts across geographic and/or product lines; nature and size of the company; quality of the company’s compliance program at the time of the misconduct; subsequent remediation efforts (...)”. Department of Justice, Criminal Divise and seccurity, Enf't Divise, A Resource guide to the U.S. Foreign corrupt practices Act, at 71 (2012). J. JORDAN, Recent developments in the foreign corrupt practices act and the new UK Bribery Act: A global trend towards greater accountability in the prevention of foreign bribery, in New York Journal of Law & Business, 2011, pp. 853ss.
[86] I. WUERTH, Case Wiwa v. Shell: The $15.5 Million Settlement, in ASIL Insights (American Society of International Law), 9 September 2009, pp. 2ss.
[87] United States Court of Appeals, Second Circuit, Sentence of 17 September 2010: case Kiobel et al. v. Royal Dutch Petroleum Co. et al., Co. 569, U.S. 108 (2013), pp. 6.
[88] 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. In argument: G.P. CALLIESS, Introduction: Transnational corporations revisited, in Indiana Journal of Global Legal Studies, 18 (2), 2011, pp. 604-605. See, W.S. DODGE, Alien Tort litigation and the prescriptive jurisdiction fallacy, in Harvard International Law Journal, 51, 2010, pp. 35ss. C.A. BRADLEY, J.L. GOLDSMITH, D.H. MOORE, Sosa, customary international law, and the continuing relevance of erie, in Harvard Law Review, 120, 2007, pp. 870ss. B. STEPHENS, Comment, Sosa v. Alvarez-Machain: The door is still ajar for human rights litigation in U.S. Courts, in Brooklyn Law Review, 70, 2005, pp. 534ss. E. KONTOROVICH, Implementing Sosa v. Alvarez-Machain: What piracy reveals about the limits of the Alien Tort Statute, in 80 Notre Dame Law Review, 80, 2004, pp. 112ss. B. STEPHENS, The curious history of the alien tort statute, in Notre Dame Law Review, 89 (4) 2014, pp. 147ss.
[89] In fact, as early as 1701, Sir John Holt C.J., in obiter dictum, reflected upon the existing common law position when he said that: “(...) corporations were incapable of committing criminal offences. According to Holt C.J., only particular members of the corporation could be indicted for criminal offences, but not the corporate entity itself (…) changed at the turn of the century. Anon (1701) 12 Mod 560, 88 ER 1518 (...)“. Positions discussed in A. PINTO, M. EVANS, Corporate criminal liability, ed. Sweet & Maxwell, London, 2008, pp. 6ss. D. STOITCHKOVA, Towards corporate liability in international cirminal law, ed. Intersentia, Antwerp, Oxford, 2010. C. WELLS, Corporate criminal liability: Exploring some models in United Kingdom, the Law Commission, criminal liability in regulatory contexts, Consultation Paper N. 195, 2010, pp. 198ss. J. CLOUGH, Bridging the theoretical gap: The search for a realist model of corporate criminal liability, in Criminal Law Forum, 18, 2007, pp. 268ss.
[90] In the same spirit see also. Mohamed v. Jeppesan Dataplan, Inc.579 F.3rd 943 (9th Cir. 2009), "(...) the five plaintiffs had been suspected of terrorism, thus subject to rendition to countries such as Egypt in which security personnel subjected them to torture and long periods of confinement, bereft of any judicial proceedings or intervention. Defendant Jeppesan had provided fueling and flight guidance to the aircraft and crews which had transported the plaintiffs (...)". In the same spirit: United States v. Krauch (the I.G. Farben Case) United States v. Krauch (The I.G. Farben Case), Trials of War Criminals Before the Nuremberg Military Tribunals 1117 (1952), offers a reverse conclusion: "(...) pharmaceutical corporate executives were actually acquitted because the prosecution could not show that defendants knowingly participated in the planning, preparation or initiation of an aggressive war (...) is an important aspect of knowledge and, perhaps, a required component. In the I.G. Farben Case, the executives believed the gas they manufactured was put to the purpose of delousing prisoners. They were, in fact, unaware of the criminal purposes for which it was being used (...)".
[91] United States Court of Appeals, Second Circuit, Sentence of 17 September 2010: case Kiobel et al. v. Royal Dutch Petroleum Co. et al., cit ., pp. 43.
[92] United States Court of Appeals, Second Circuit, Sentence of 17 September 2010: case Kiobel et al. V Royal Dutch Petroleum Co. et al., cit ., pp. 7.
[93] See: Articles on Responsibility of States for Internationally Wrongful Acts, Art. 8, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 47, UN Doc. A/56/10 (2001) (“(...) the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct (...)").
[94] The Corporate Responsibility (CORE) Coalition, The Reality of Rights: Barriers to Accessing Remedies When Business Operates Beyond Borders, May 2009, pp. 51ss.
[95] African Charter on Human and Peoples Procedure Rules (Ratification and Enforcement) Act , in Laws of the Federation of Nigeria, 2004, Vol. I, Cap. A9
[96] A. SINDEN, An emerging human right to security from climate change: The case against gas flaring in Nigeria, in W. BURNS, O.H. SOFSKY (a cura di), Adjudicating climate change: Sub-national, national, and supra-national approaches, Temple University Legal Studies Research Paper No. 2008-77, 2008, pp. 5ss.
[97] Federal High Court of Nigeria (Benin Judicial Division), Sentence of 14 November 2005: case Gbemre v. Shell Petroleum Development Company of Nigeria and Nigerian National Petroleum Corporation, Case n. FHC/B/CS/53/05, p. 4.
[98] Federal High Court of Nigeria (Benin Judicial Division), Sentence of 14 November 2005: case Gbemre v. Shell Petroleum, op. cit., pp. 5.
[99] Federal High Court of Nigeria (Benin Judicial Division), Sentence of 14 November 2005: case Gbemre v. Shell Petroleum, op. cit., pp. 30.
[100] Federal High Court of Nigeria (Benin Judicial Division), Sentence of 14 November 2005: case Gbemre v. Shell Petroleum, op. cit., pp. 31ss.
[101] See also from the Special Ttribunal for Lebanon (STL) the next cases: Akhbar Beirut S.A.L. Ibrahim Mohamed Ali Al Amin, Case. No. STL-14-06/T/CJ, Trial Chamber Judgement, 15 July 2016 (Akhbar, Trial Chamber Judgement) the Court: "(...) stressed that in order to see the differences in the assessment of corporate criminal liability across nations, there is a need to look beyond the systems of common law nations. By finding that the notion of corporate criminal liability is of such divergent nature in the international domain of domestic practices that there is a lack of consensus on it, the Court re-affirmed the Defence’s argument stating that the corporate accused not have been expected to know that its acts would result in a violation of international law (...) held that the mens rea can only be fulfilled if the natural accused has knowingly and wilfully interfered with the administration of justice and that the act has been committed merely knowingly and wilfully in order to show culpability (...) the Amicus had to prove that the accused “(1) deliberately published information on purported confidential witnesses, and (2) in doing so, they knew that their conduct was objectively likely to undermine public confidence in the Tribunal’s ability to protect the confidentiality of information about, provided by, witnesses or potential witnesses (...) actual knowledge that the disclosure poses a threat to the public’s confidence in the Tribunals work can be inferred from various circumstances (...) if only wilful blindness is established, that alone suffices knowledge whichgives reason to impute criminal liability (...). Dee also: Akhbar Beirut S.A.L. Ibrahim Mohamed Ali Al Amin, Case. No. STL-14-06/S/CJ, Reasons for Sentencing Judgement, 5 September 2016, para. 2. (Akhbar, Sentencing Judgement) the STL established: "(...) the actus reus and mens rea of corporate entities and found a corporate body criminally liable for contempt of court (...) references made to the case-law of this Court might seem misleading as the corporate body did not commit atrocity crimes. However, this case has been carefully chosen to stress that domestic practices lay the necessary foundation for the development of international criminal law to include corporate criminal liability (...)". New TV S.A.L, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, Case No STL-14-05/PT/AP/AR126.1, 2 October 2014; Akhbar Beirut S.A.L., Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, Case No STL-14-06/PT/AP/AR126.1, 23 January 2015. For a summary of the cases see N. BERNAZ, Corporate criminal liability under international law: The New TV S.A.L and Akhbar Beirut S.A.L. Cases at the STL, in Journal of International Criminal Justice, 13, 2015, pp. 314ss. See also: Prosecutor v. Ayyash et al., STL-11-01, Public Redacted Version of Judgment on Appeal, par. 2 (STL, Mar. 8, 2016). Contempt charges are based on Rule 60 bis. See STL, Rules of Procedure and Evidence, STL-BD-2009-01-Rev.6-Corr.1 (Apr. 3, 2014). In the Case Against New TV S.A.L. and Karma Mohamed Tahsin al Khayat, STL-14-05/PT/AP/ARI26.1, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, par. 74 (STL, Oct. 2, 2014): The case illustrates how heavily debated is the issue of corporate liability before the international tribunals and under international law. Contempt Judge took: "(...) the traditional view by finding the respective corporate manager criminally liable, but not the corporate entity itself (...) several problems with the premise that the prosecution of responsible, natural persons within the corporation would be sufficient to render effective the contempt authority of the STL (...) the approach to impose criminal liability solely on the responsible individual within the corporation runs the risk of producing significant accountability gaps and would “potentially lead to unacceptable impunity,” as the STL Appeals Panel concluded (...)". C. KAEB, The shifting sand of corporate liability under international criminal law, in The Georgetown Washington International Law Review, 49, 2016, pp. 354ss. N. BERNAN, Corporte criminal liability under international law: The new TV S.A.L. Anmd Akhbar Beirut S.A.L. cases at the Special Tribunal for Lebanon, in Journal of International Criminal Justice, 13, 2015, pp. 314ss.
[102] Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Malabo Protocol) (adopted 27 June 2014). These include and are not limited to: Botswana (Section 24 of the Penal Code 1964); Ethiopia (Article 34 of the Criminal Code 2004); Ghana (Section 192 of the Criminal Procedure Code 1960); Kenya (Section 23 of the Penal Code 1930); Malawi (Nyasaland Transport Company Limited v R 1961-63 ALR Mal 328 and Section 24 of the Penal Code); Nigeria (Sections 65-66 of the Companies and Allied Matters Act 1990); South Africa (Section 332 of the Criminal Procedure Act 1977); Zambia (Section 26(3) of the Penal Code Act 1950); Zimbabwe (Section 277 of the Criminal Law (Codification and Reform) Act 2004). (Some of these provisions do not establish corporate criminal responsibility but are premised upon its existence pursuant to other statutory or common law sources). precluding mens rea offences or limiting liability to crimes “typically associated with the economic, environmental, or social impact of the modern (multinational) corporation“. Having said this, the Court (Prosecutors, Judges) may identify certain ACC crimes that cannot be committed by corporations and in particular the leadership clause of the crime of aggression may render corporate prosecutions incongruous (Art 28M). Art 46C states that the: “(...) Court shall have jurisdiction over legal persons, with the exception of States and Art 1 states that that the term “person“ as it appears in the Statute “means a natural or legal person“ (…) the title of Art 46C and repeated use of derivations of “corporate“ within Art 46 strongly suggest that the Statute is directed to a limited range of legal persons: entities incorporated under domestic laws (...)“. See also in that spirit the “Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo“ (16 October 2002) UN Doc S/2002/1146; “Final Report of the Monitoring Mechanism on Angola Sanctions“ (21 December 200) UN Doc S/2000/1225; “Report of the Panel of Experts appointed pursuant to Security Council Resolution 1306 (2000), paragraph 19, in relation to Sierra Leone“ (20 December 2000) UN Doc S/2000/1195. The “Declaration of the African Coalition for Corporate Accountability (ACCA)“ (November 2013), According to Article 31(1) of the Vienna Convention on the Laws of Treaties (adopted 22 May 1969, entered into force 17 January 1980) 1155 UNTS 331: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. There is also the principle of interpreting criminal statutes, that in cases of ambiguity the matter should be resolved in favour of the defendant. See also: I. EBERECHI, Rounding up the usual suspects: Exclusions, selectivity and impunity in the enforcement of international criminal justice and the African Union's justice and emerging resistance, in African Journal of Legal Studies, 4, 2011, pp. 52ss.
[103] Security Council, Resolution n. 1156 (1998) of 16 March 1998 and Resolution n. 1151 (1998) of 5 June 1998.
[104] SCSL, Prosecutor v Sessay, Kallon and Gbao, SCSL-04-15-T, sentence of 8 April 2009, e SCSL-04-15-A, sentence of Appeals Chamber of 26 October 2009.
[105] SCSL, Prosecutor v. Charles Ghankay Taylor, SCSL-03-01-PT, 29 May 2007. This process has received particular attention from the media, due to the testimony given to the Court by the model Naomi Campbell, regarding a diamond that she received as a gift-presumably from the former dictator-during a party at home. Nelson Mandela in 1997, both of whom were guests. Naomi Campbell claims she was woken up the night after the party by two men, who would have given her a huge diamond, but did not tell her who the gift was. On the contrary, according to the testimony given to the court by the actress Mia Farrow-also a guest of the party-for breakfast, the model, in reporting to the actress the gift received during the night, would have clearly stated that the diamond was given to her from Charles Taylor.
[106] African Charter on Human and Peoples’ Rights (ACHPR), "The Banjul Charter" (adopted 28 June 1981, entry into force 21 October 1986) OAU Doc. CAB/LEG/67/3 rev. 5, 1520 UNTS 217. For an overview of the African Commission’s jurisprudence with respect to the rights provided under the African Charter, see for instance O. AMAO, Civil and Political Rights in the African Charter, and M. SSENYONJO, Economic, Social and Cultural Rights in the African Charter, in M. SSENYONJO (ed.), The African Regional Human Rights System: 30 years after the African Charter on Human and Peoples' Rights, Martinus Nijhoff Publishers, Leiden, Boston, 2012.
[107] UN, Conflict diamonds: sanctions and war, comunication paper of 21 March 2001.
[108] General Assembly, UN Doc. A/RES/55/56 of 29 January 2001.
[109] Regulation (EC) n. 2638/2002 of the Council of 20 December 2002 on the implementation of the Kimberley Process certification system for the international trade in rough diamonds, in GU L 358/28 of 31 December 2002, art. 2.
[110] C. STAHN, Liberals vs Romantics: Challenges of an emerging corporate international criminal law, in Case Western Reserve Journal of International Law, 50, 2018, pp. 94ss.
[111] ICTY, Prosecutor v. Halilović, Trial Chamber I, op. cit., par. 78: "(...) a debate has recently been taking place at the crimes of subordinates or is a sui generis responsibility for dereliction of duty (...)". S. DARCY, The doctrine of superior responsibility, in A.A.V.V., Rethinking international criminal law-The substantive part, Europa Law Publishing, Groningen, 2007, pp. 131ss.
[112] ICTY, Prosecutor v. Halilović, Trial Chamber I, op. cit., par. 54. ICTY, Prosecutor v. Enver Hadžihasanovic and Amir Kubura, Case n. IT-01-47-T, Trial Chamber, 15 March 2006, parr. 69-75.
[113] ICTY, Prosecutor v. Zejnil Delalić, Zdravko Mucić (alias "Pavo"), Hazim Delic and Esad Landžo (alias "Zenga") (Čelebici case), n. IT-96-21-A, Appeals Chamber, judgment, 20 February 2001, par. 225.
[114] ICTY, Prosecutor v. Naser Orić, n. IT-03-68-A, Appeals Chamber, judgment, 3 July 2008, par. 293.
[115] C. GOSNELL, Damned if you don't liability for omissions in international criminal law, Ashgate Publishing, Farnham, 2013.
[116] ICTY, Prosecutor v. Blaškic, Case n IT-95-14-PT, Pre-Trial Chamber, 4 April 1997, par. 91. ICTR, Prosecutor v. Juvénal Kajelijeli, Case n° ICTR-98-44A-A, Appeals Chamber, judgment, 23 May 2005, par. 85.
[117] Prosecutor v. Krstić, Judgment, Case No. IT-98-33-A, A. Ch., 19 April 2004, parr. 266-269; Prosecutor v. Kvoćka et al., Judgment, Case No. IT-98-30/1-A, A. Ch., 28 February 2005, parr. 79-91. H. ALONSO, Current trends on modes of liability for genocide, crimes against humanity and war crimes, in C. STAHN, L. VAN DEN HERIK (eds.), Future perspectives on international criminal justice, T.M.C. Asser Press, The Hague, 2010, pp. 522-524. S. MANACORDA, C. MELONI, Indirect perpetration versus Joint Criminal Enterprise: Concurring approaches in the practice of international criminal law?, in Journal of International Criminal Justice, 2011, pp. 165ss. A. CASSESE, The nexus requirement for war crimes, in Journal of International Criminal Justice, 10, 2012. B. DON TAYLOR III, Crimes against humanity in the Former Yugoslavia, in R. BELLELLI (a cura di), International criminal justice. Law and practice from the Rome Statute to its review, Ashgate Publishing, Farnham, 2010, pp. 285-294.
[118] ICTY, Prosecutor v. Brđanin,
Trial Chamber II, Case n. IT-99-36-T,
Trial Chamber II, 1 September 2004, parr. 284-285. ICTY, Prosecutor v.
Krnojelac, Trial Chamber II, judgment, n. IT-97-25-A, Appeals Chamber,
judgment, 17 September 2003, par.
173. Unlike the Krstić and
Vasiljević judgments, in the Krnojelac case the judges did not motivate the
choice in favor of appearance. A dissenting opinion was expressed by Judge
Shahabuddeen in the Krstić case, in which the latter declared to comply with
the conclusion reached by the majority of the Chamber of Appeal only because of
the existence of two precedents (the aforementioned cases Vasiljević and
Krnojelac ) which affirmed the appearance of the competition. It is interesting
to report a significant passage of the partially dissenting opinion in which,
after having said that the two cases present distinct elements, the judge
affirmed that: "(...) were it otherwise, the legal elements of the crime
of persecution would vary according to the legal elements of the particular
crime on which the persecution is based. The legal elements of the crime of
persecution would include the legal elements of the crime of enslavement if
enslavement were alleged to be the basis of the persecution charged. Similarly
with respect to deportation, imprisonment, torture and rape. The legal elements
of a charge for persecution would thus vary from case to case; in the present
case, they would include the legal elements of all the crimes on which the
persecution is alleged to have been based. That variability is not reconcilable
with the stability, definitiveness and certainty with which the legal elements
of a crime should be known. Those elements must not depend on accidents of
prosecution; they must clearly appear once and for all from a reading of the
provision defining the crime (...)": ICTY, Prosecutor v. Radislav Krstić,
Partial Dissenting Opinion of Judge Shahabuddeen, AC, IT-98-33-A, 19 April
2004, par. 91. In our opinion, the suggestion proposed by
Judge Shahabuddeen does not take due account of the peculiar normative
construction of the persecution. As mentioned above, persecution presents
itself as a complex crime in which alongside some typical elements of its
own-the discriminatory intent and the victim group-can be added to the
objective and subjective elements of other cases already codified within of the
Statute. Consequently, the configuration of the persecution necessarily depends
on the modality of the conduct with which it is carried out and imputed to the
author. R. ESTUPIŇAN SILVA,
Principios que rigen la responsabilidad internacional penal por crìmenes
internacionales, in Anuario Mexicano de Derecho Internacional, 2012, pp. 136ss.
[119] From
the inter-American Court see the next cases in relation on crimes against
humanity: Almonacid Arellano v. Chile, excepciones preliminares, fondo,
reparaciones y costas, 26.09.2006; Bámaca Velásquez v. Guatemala, fondo,
25.11.2000 Barrios Altos v. Perú, fondo, 14.03.2001; Bueno Alves v. Argentina,
fondo, reparaciones y costas, 11.05.2007; Bulacio v. Argentina, sentencia de
fondo, reparaciones y costas, 18.09.2003; Castillo Páez v. Perù, fondo,
03.11.1997; Comunidad Moiwana v. Surinam, excepciones preliminares, fondo,
reparaciones y costas, 15.06.2005; García Asto y Ramírez Rojas v. Perù,
excepciones preliminares, fondo, reparaciones y costas, 25.11.2005; Gelman v.
Uruguay, fondo y reparaciones, 24.02.2011; Godínez Cruz v. Honduras, fondo,
20.01.1989; Goiburú y otros v. Paraguay, fondo, reparaciones y costas,
22.09.2006; Gomes Lund y otros v. Brasil (Guerrilha do Araguaia), excepciones
preliminares, fondo, reparaciones y costas, 24.11.2010; Heliodoro Portugal v.
Panamá, excepciones preliminares, fondo, rearaciones y costas, 12.08.2008;
Ticona Estrada y otros v. Bolivia, fondo, reparaciones y costas, 12.08.2008;
Trujillo Oroza v. Bolivia, reparaciones y costas, 27.02.2002; Velásquez
Rodríguez v. Honduras, fondo, 29.07.1988.
[120] Trial of General Tomoyuki Yamashita, United States Military Commission, Manila, 8 October-7 December 1945, Case n. 21, IV Law Reports of Trials of War Criminals 1, par. 13.
[121] ICTY, Prosecutor v. Ðordevic, Case n. IT-05-87/1, Trial Chamber, 23 February 2011, Summary of judgment.
[122] H. OLASOLO, Artigo 25 (1)-(3) (a): Responsabilidade individual e autoria, ed. Belo Horizonte, Konrad Adenauer Stiftung, Brazil, 2016, pp. 448ss.
[123] ICTY, Prosecutor v. Delalić and others (Celebici case), Appeals Chamber, judgment, op. cit.
[124] ICTY, Prosecutor v. Aleksovski, Trial Chamber, judgment, op. cit., par. 67: "(...) la théorie de la responsabilité du supérieur hiérarchique fait peser la responsabilité pénale sur un supérieur non en raison de ses actes, sanctionnés sur la base de l’article 7 1) du Statut, mais en raison deses abstentions: un supérieur hiérarchique est tenu responsable des actes de ses subordonnés s’il n’a pas, soit empêché les violations criminelles commises par ses subordonnés, soit puni les auteurs de ces violations (...)". See also: ICTY, Delalić and others (Celebici case), Trial Chamber, judgment, op. cit., par. 346. ICTY, Prosecutor v. Blaškić, Trial Chamber I, judgment, op. cit., par. 484. ICTY, Prosecutor v. Aleksovski, Appeals Chamber, judgment, op. cit., par. 72. ICTY, Kordić and Čerkez, Appeals Chamber, judgment, op. cit., par. 827. ICTY, Prosecutor v. Kvoćka, Kos, Radic, Žigić and Prcać (“Omarska and Keratem Camps”), Trial Chamber I, op. cit., par. 401.
[125] ICTY, Prosecutor v. Hadžihasanović and Kubura, Case n. IT-01-47-T, Trial Chamber, Decision on the Defence Motion on Jurisdiction (in seguito ICTY, Decision Hadžihasanović on the Defence Motion on Jurisdiction), par. 32.
[126] ICTY, Prosecutor v. Hadžihasanović and Kubura, Case n. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in relation to Command Responsibility, 16 July 2003, par. 51. J.A. WILLIAMSON, Some consideration on command responsibility and criminal liability, in International Review of the Red Cross, 90, 2008, pp. 306ss.
[127] ICTY, Prosecutor v. Orić, Appeals Chamber, judgment e ICTY, Prosecutor v. Strugar, Case n. IT-01-47-A, Appeal judgment, 17 July 2008, parr. 34, 55, 60. D. LIAKOPOULOS, La sentenza “Pavle Strugar” per i danni alla città di Dubrovnik del Tribunale penale internazionale per la ex Jugoslavia, in Rivista Gazzetta Ambiente, 3, 2005, pp. 154-167. T. SQUATRITO, O.R. YOUNG, A. FOLLESDAL, G. ULSTEIN, The performance of international Courts and Tribunals, Cambridge University Press, Cambridge, 2018.
[128] S. DARCY, The doctrine of superior responsibility, op. cit., pag. 131 ss.: "(...) in the case of the Statutes of the ad hoc Tribunals the standard is that an accused “knew or had reason to know” that crimes had been or were about to be committed. Around the time of the adoption of the ICTY Statute, the Commission of Experts felt that was needed on the part of a superior is: a) actual knowledge b) such serious personal dereliction or the part of the commander as to constitute wilful and wanton disregard of the possible consequences, or c) an imputation of constructive knowledge, that is, despite pleas to the contrary, the commander, under the facts and circumstances of the particular case, must have known of the offences charged and acquiesced therein (...)", (Final Report of the Commission of Government Experts, U.N. Doc. S/1994/674, 27 May 1994, par. 56, reprinted in M. CHERIF BASSIOUNI (ed.), International Criminal Law-Vol. III: Enforcement, 2 nd Edition, Transnational Publishers, Ardsley, New York, 1999, pp. 443ss.
[129] ICTY, Delalić and others (Čelebici case), Trial Chamber, judgment, op. cit., par. 346. in the same sense: ICTY, Prosecutor v. Halilović, Trial Chamber I, op. cit., par. 56 in which the three elements of the command responsibility doctrine have been extrapolated: a) the existence of a superior-subordinate relationship; b) that the superior knew or had reason to know that subordinates had or were about to commit criminal acts, and c) the superior did not take the necessary and reasonable measures to prevent those crimes or to punish the perpetrators.
[130] ICTY, Prosecutor v. Kunarac, Kovać and Vukovíć (“Foca” Case), Trial Chamber II, judgment, n. IT-96-23-T & IT-96- 23/1-T, Trial Chamber I I, Decision on Motion for Acquittal , 3 July 2000, par. 399
[131] ICTY, Prosecutor v. Strugar, Case n. IT-01-42-T, Trial Chamber II, judgment, 31 January 2005.
[132] "(...) the first element of superior responsibility, the superior-subordinate relationship, must involve the superior having the power to control or influence the acts of subordinates (...)": ICTR, Prosecutor v. Bagilishema, Trial Chamber I, judgment, op. cit., par. 37.
[133] The Appeals Chamber in the Orić case held that, while it is not necessary to identify the subordinates in person, at least “their existence” must be established before superior responsibility ca arise (ICTY, Prosecutor v. Orić, Appeals Chamber, judgment, op. cit., par. 35). The Appeals Chamber reversed the conviction of Oric for crimes committed by the Military Police because the Trial Chamber did not mention the potentially culpable members of the Military Police but only established the existence of the Military Police as an entity (ICTY, Prosecutor v. Orić, Appeals Chamber, judgment, op. cit., par. 35. The identification of the subordinates and finding of their criminal responsibility is particularly important in cases where subordinates of the accused are alleged to be criminally responsible for the crimes of direct perpetrators who are not subordinates of the accused (ICTY, Prosecutor v. Blagojević and Jokić, Case n. IT-02-60-A, Appeals judgment, 9 May 2007, parr. 280, 281). Per questa ricognizione giurisprudenziale si rinvia, più diffusamente, a M. ELEWA BADAR, N. KARSTEN, Current developments at the International Criminal Tribunals, in Internatuonal Criminal Law Review, 8, 2008, par. 238.
[134] ICTR, Prosecutor v. Kayshema and Ruzindana, Trial Chamber II, judgment, op. cit., par. 200. ICTY, Prosecutor v. Boškoski and Tarculovski, Trial Chamber II, Case n. IT-04-82-PT, Pre-Trial Chamber, Decision on Assigned Pro Bono Councel Motion Challenging Jurisdiction, 8 September 2006, par. 402.
[135] The Prosecutor v. Sam Bockarie (Withdrawal of Indictment) (Special Court for Sierra Leone, Case No. SCSL-03-04-I-022, 8 December 2003); The Prosecutor v. Sesay, Kallon & Gbao (RUF Case) (Trial judgment) (Special Court for Sierra Leone, Case No. SCSL 04-15-T, 25 February 2009); The Prosecutor v. Sesay, Kallon & Gbao (RUF Case) (Appeal judgment) (Special Court for Sierra Leone, Case No. SCSL 04-15-A, 26 October 2009); The Prosecutor v. Brima, Kamara & Kanu (AFRC Case) (Trial judgment) (Special Court for Sierra Leone, Case No. SCSL 04-16-T, 20 June 2007); The Prosecutor v. Brima, Kamara & Kanu (AFRC Case) (Appeal judgment) (Special Court for Sierra Leone, Case No. SCSL 04-16-A, 22 February 2008); The Prosecutor v. Johnny Paul Koroma (Indictment) (Special Court for Sierra Leone, Case No. SCSL-03-I, 7 March 2003); The Prosecutor v. Fofana and Kondewa (CDF Case) (Trial judgment) (Special Court- xxii-for Sierra Leone, Case No. SCSL 04-14-T, 2 August 2007); The Prosecutor v. Fofana and Kondewa (CDF Case) (Appeal Judgment) (Special Court for Sierra Leone, Case No. SCSL 04-14-T, 28 May 2008); The Prosecutor v. Foday Saybana Sankoh (Withdrawal of Indictment) (Special Court for Sierra Leone, Case No. SCSL-03-02-PT-054, 8 December 2003); The Prosecutor v. Charles Ghankay Taylor (Indictment) (Special Court for Sierra Leone, Case No. SCSL-03-01-T, 29 May 2007).
[136] "(...) common ground would seem to be that criminal responsibility for omission requires a duty to act (...) quite a few national legal system use legal duties from beyond the criminal law as a constituent element to establish criminal liability for omission (...)": as noticed from. L.C.BERSTER, “Duty to act” and “commission by omission”, in Internatonal Criminal Law Review, 10, 2010, pp. 619, 621-625.
[137] ICTY, Prosecutor v. Mrkšic-Šljivancanin, Case n. IT-95-13/1-A, Appeals Chamber, judgment, 5 May 2009, par. 151.
[138] ICTY, Prosecutor v. Orić, Case n. IT-03-68-T, Trial Chamber II, judgment, 30 June 2006, par. 304.
[139] M.G. KOHEN, La promotion de la justice des droits de l'homme et du règlement des conflits par le droit international. Liber amicorum Lucius Caflisch, Martinus Nijoff Publishers, The Hague, 2007. J. WEEKS, Strongmen and straw men: Authoritarian regimes and the initiation of international conflict, in American Political Science Review, 106 (2), 2012, pp. 329ss.
[140] K. AMBOS, Treatise on international criminal law. Volume I: Foundations and general part, Oxford University Press, Oxford, 2013, pp. 97ss.
[141] In Čelebici case the Trial Chamber held that the defendant Mucic had been in a position of de facto superior authority over the Celebici-prison camp and, by virtue of his position, was primarily responsible for the detainees’ living-conditions. By withholding adequate food, water, health care and sanitary facilities from those under his control, Mucic was found to have participated in maintaining the inhumane conditions that prevailed at the prison-camp: ICTY, Delalić and others (Čelebici case), Trial Chamber, judgment, op. cit., par. 1123.
[142] "(...) in Limaj et al., defendant Bala was found guilty for having participated in cruel treatment by omission in that he failed to satisfy the basic needs of detainees under his control (...)": ICTY, Prosecutor v. Limaj, Bala and Musliu, Trial Chamber II, Case n. IT-03-66-T, Trial Chamber II, 30 November 2005, par. 652.
[143] P.J. STEPHENS, Collective criminality and individual responsibility: The constraints of interpetation, in Fordham International Law Journal, 2014, pp. 508ss. V. VIJ, Individual criminal responsibility under aiding and abetting after the specific direction requirement in the Taylor and Perišć cases, in Die Friedens-Warte, 2013, pp. 160ss. C. WAUGH, Charles Taylor and Liberia: Ambition and atrocity in Africa’s lone star State, ed. Zed Books, New York, 2011. J. CCOURTNEY, C. KAOUTZANIS, Proactive gatekeepers: The jurisprudence of the ICC's pre-trial Chambers, in Chicago Journal of International Law, 16, 2015, pp. 525ss. B. GOY, Individual criminal responsibility before the International Criminal Court: A Comparison with the ad hoc Tribunals, in International Criminal Law Review, 2012, pp. 34ss. P. GRÉCIANO, Justice pènale internationale, ed. Mare & Martin, Paris, 2016. L. GROVER, Interpreting crimes in the Rome statute of the International Criminal Court, Oxford University Press, Oxford, 2016. O. KUCHER, A. PETRENKO, International criminal responsibility after Katanga: Old challenges, new solutions, in Russian Law Journal, 3, 2015, pp. 144ss.
[144] ICTR, Prosecutor v. Gacumbitsi, ICTR-2001-64-A, Appeals Chamber, judgment, 7 July 2006, par. 206.
[145] ICTY, Prosecutor v. Galić, Appeals Chamber, IT-98-29-A, Appeals Chamber, 30 November 2006, par. 175. ICTY, Prosecutor v. Blaškic, Appeals Chamber, judgment, op. cit., par. 663. ICTR, Prosecutor v. Ntagerura and others, Case n. ICTR-99-46-A, Appeals Chamber, 7 July 2006, par. 659. ICTY, Prosecutor v. Mrkšic-Šljivancanin, Appeals Chamber, judgment, op. cit., par. 134-146-147. ICTY, Prosecutor v. Popovic and others, n. IT-05-88-T, Trial Chamber II, 10 June 2010, par. 1019.
[146] ICTY, Prosecutor v. Delalić and others (Celebici case), Trial Chamber, judgment, op. cit., par. 378. ICTR, Prosecutor v. Akayesu, Trial Chamber, judgment, op. cit., par. 491. ICTR, Prosecutor v. Kayshema e Ruzindana, Trial Chamber II, judgment, n. ICTR-95-1-A, Appeals Chamber, 1 June 2001, par. 222. The term of: "effective control" was defined as: "(...) the material ability to prevent and punish criminal conduct". ICTY, Prosecutor v. Delalić & Others (Zejnil Delalic, Zdravko Mucic alias "Pavo", Hazim Delic and Esad Landžo alias "Zenga"-Čelebici case), Case n. IT-96-21-T, Trial Chamber, judgment, 16 November 1998, par. 198 and 256. And in the same spirit: SCSL, Prosecutor v. Brima, Kamara and Kanu, Appeals Chamber, judgment, SCSL-04-16-T, Trial judgment, 20 June 2007, par. 257.
[147] ICTY, Prosecutor v. Delalić and others (Čelebici case), Trial Chamber, judgment, op. cit., par. 378. ICTR, Prosecutor v. Akayesu, Trial Chamber, judgment, op. cit., par. 491. ICTR, Prosecutor v. Kayshema e Ruzindana, Trial Chamber II, judgment, op. cit., par. 216 and 222. ICTR, Prosecutor v. Musema, Trial Chamber I, judgment and Sentence, ICTR-96-13-T, Trial Chamber I, judgment and Sentence, 27 January 2000, par. 148. ICTY, Prosecutorr v. Krnojelac, Trial Chamber II, judgment, op. cit., par. 93. ECCC, Prosecutor v. Eav alias Duch, n. 001/18-07-2007/ECCC/TC, Trial Chamber, judgment, 26 July 2010, par. 540, citated the jurisprudence form the case: ICTY, Prosecutor v. Delalić & Others (Čelebici case), Appeals Chamber, judgment, op. cit., par. 191-192. ICTR, Prosecutor v. Kajelijeli, Appeals Chamber, judgment, ICTR-98-44-T, Trial Chamber II, 1 December 2003, par. 85.
[148] ECCC, Prosecutor v. Eav alias Duch, Trial Chamber, judgment, op. cit., par. 541. ICTY, Prosecutor v. Delalić and others (Čelebici case), Trial Chamber, judgment, op cit., par. 364-378. ICTR, Prosecutor v. Bagilishema, n. ICTR-95-1A-A, Appeals Chamber, judgment, 3 July 2002, par. 61:
[149] ICTY, Prosecutor v. Delalić and others (Čelebici case)Appeals Chamber, judgment, op. cit., par. 197.
[150] ICTY, Prosecutor v. Hadžihasanovic and Kubura, Case n. IT-01-47-A, Appeals Chamber, judgment, 22 April 2008, par. 21.
[151] According to our opinion in the Hadžihasanovic and Kubura case and in the Delić case, it was in dispute whether the accused exercised effective control over Mujahedin detachment, which fought alongside with the units of the accused, and whether the accused were responsible for crimes committed by these detachments. The issue was whether the accused bear responsibility since they benefited militarily from the cooperation with those units. The Appeals Chamber clarified that the alleged benefit from the cooperation with other units is not a relevant factor when assessing whether the superior had effective control (ICTY, Prosecutor v. Hadžihasanovic and Kubura, Appeals Chamber, judgment, op. cit., par. 189). It added that it may entail some form of responsibility if the particulars of such responsibility are adequately pleaded in an indictment. However, ultimately the superior responsibility is only triggered upon a showing of effective control (ICTY, Prosecutor v. Hadžihasanovic and Kubura, Appeals Chamber, judgment, op. cit., par. 213). In the Hadžihasanovic and Kubura case, the Appeals Chamber found that the relationship between the accused and the Mujahedin detachment was one of cooperation and did not evolve into a superior- subordinate-relationship (ICTY, Prosecutor v. Hadžihasanovic and Kubura, Appeals Chamber, n. IT-01-47-A, 22 April 2008, par. 21, parr. 200, 210, 214, 217, 221). In the Delic case, the majority found that the Mujahedin detachment was not an independent unit merely cooperating with the army of Bosnia and Herzegovina, although it enjoyed a certain degree of autonomy (ICTY, Prosecutor v. Rasim Delić, Case n. IT-04-83-T, Trial Chamber I, judgment, 15 September 2008, par. 466). The majority found that Delic exercised effective control over the Mujahedin and was, therefore, criminally responsible for a number of crimes committed by the Mujahedin. In his dissenting opinion; Judge Moloto considered that the relationship between the Mujahedin detachment and the Army of Bosnia was throughout one of cooperation rather than one effective control. A. GRESCHKOW, Feindbilder der Nachkriegsgeneration in Bosnien und Herzegowina: Bosniens Jugend zwischen Hoftung und den Schatten der Vergangenheit, Diplomica Verlag GmbH, Hamburg, 2014.
[152] See, judgment, Kunarać (IT-96-23-T & IT-9623/1-T), Trial Chamber, 22 February 2001, par. 390; judgment, Gacumbitsi (ICTR-2001-64-T, Trial Judgment, 17 June 2004, par. 285 (“committing” refers generally to the direct and physical perpetration of the crime by the offender himself”); judgment, Kayishema (ICTR-95-1-A), Appeals Chamber, 1 June 2001, par. 187; judgment, Vasiljević (IT-98-32-T), Trial Chamber, 29 Nov. 2002, par. 62 (”The accused will only incur individual criminal responsibility for committing a crime under Article 7(1) where is it is proved the he personally physically perpetrated the criminal acts in question or personally omitted to do something in violation of international humanitarian law (...)‟); judgment, Kamuhanda (ICTR-99-54A-T), Trial Chamber, par. 595 (“(...) to commit a crime usually means to perpetrate or execute the crime by oneself or to omit to fulfil a legal obligation in a manner punishable by penal law (...)”); judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, par. 188; judgment, Kunarac (IT-96-23-T & IT-9623/1-T), Trial Chamber, 22 February 2001, par. 390; judgment, Krstić (IT-98-33-T), Trial Chamber, 2 August 2001, par. 601; judgment, Krnojelac (IT-97-25-T), Trial Chamber, 15 March 2002, par. 73. judgment, Blagoje Simić (IT-95-9-T) Trial Chamber, 17 October 2003, par. 137 (“(...) any finding of commission requires the personal or physical, direct or indirect, participation of the accused in the relevant criminal act, or a finding that the accused engendered a culpable omission to the same effect, where it is established that he had a duty to act, with requisite knowledge (...)”. M.W. BADAR, The concept of Mens rea in international criminal law. The case for a unified approach, Hart Publishing, Oxford & Oregon, Portland, 2013. J. PEAY, Mental incapacity and criminal liability: redrawing the fault lines?, in International Journal of Law and Psychiatry, 2015, pp. 4ss. M.E. BADAR, The mental element in the Rome Statute of the International Criminal Court: A commentary from a comparative criminal law perspective, in Criminal Law Forum, 19 (4), 2008, pp. 477ss. According to the above author: "(...) a number of theories havve emerged in criminal law to istinguish between dolus eventualis and advertent negligence, among others, consent or approval theory (die Billigungs-oder Einwilligungtheorie), indifference theory (die Gleichgültigkeitstheorie), possibility theory (die Vorstellungs-oder Möglichkeitstheorie), probability theory (die Wahrscheinlichkeitstheorie), combination theory (Kombinationstheorien) etc. The non-exhaustive list of theories is illustrative of the plethora of approaches in the criminal law theory (...)". R.S. CLARK, The mental element in international criminal law: The Rome Statute of the International Criminal Court and the elements of offences, in Criminal Law Forum, 5, 2001, pp. 296ss. R. CRYER, H. FRIMAN, D. ROBINSON, E. WILMSHURST, An introduction to international criminal law and procedure, Cambridge University Press, Cambridge, 2010. A. ESER, Mental elements-Mistake of fact and mistake of law, in A. CASSESE, P. GAETA, G.R.W.D JONES (eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 890ss. A. GIl GIL, Mens rea in co-perpetration and indirect perpetration according to article 30 of the Rome Statute. Arguments against punishment for excesses committed by the agent or the co-perpetrator, in International Criminal Law Review, 14, 2014, pp. 87ss. K.J. HELLER, The Rome Statute of the International Criminal Court, in K.J. HELLER, D. DUBBER (eds.), The handbook of comparative criminal law, Stanford Law Books, Stanford, 2011, pp. 597ss. S. PORRO, Risk and mental element: An analysis of national and international law on core crimes, ed. Nomos, Baden-Baden, 2014. K.M.F. KEITH, The mens rea of superior responsibility as developed by ICTY Jurisprudence, in Leiden Journal of International Law, 14, 2001, pp. 618ss. P.H. ROBINSON, J.A. GRALL, Element analysis in defining criminal liability: The model penal code and beyond, in Stanford Law Review, 35, 1983, pp. 685ss. D. FLECK, The law of non-international armed conflict, in D. FLECK (a cura di), The Handbook of International humanitarian law, Oxford University Press, Oxford, 2013, pp. 581-610. E. WILMSHURTS (a cura di), International law and the classification of conflicts, Oxford University Press, Oxford, 2012.
[153] ICTR, Prosecutor v. Akayesu, Trial Chamber, judgment, op. cit., par. 489, which is noticed that: "(...) negligence so serious as to be tantamount to acquiescence or even malicious (...)", as we can see from the case: ICTY, Prosecutor v. Blaškic, Trial Chamber I, judgment, op. cit., par. 314,
[154] ICTR, Prosecutor v. Mpambara, case n. ICTR-01-65-T, Trial Chamber, 11 September 2006, par. 22; ICTR, Prosecutor v. Akayesu, Trial Chamber, judgment, n. ICTR-96-4-A, Appeals Chamber, 1 June 2001, par. 605, parr. 704-705.
[155] ECCC, Prosecutor v. Eav alias Duch, Trial Chamber, judgment, op. cit., par. 523, whihc is repeated the jurisprudence of the case: ICTY, Prosecutor v. Hadžihasanovic and Kubura, Appeals Chamber, judgment, op. cit., par. 30 ("(...) la Chambre d'Appel souligne que lorsqu'un supérieur ne punit pas un crime dont il a effectivement connaissance, ses subordonnés sont portés à croire qu'il cautionne, voire qu'il encourage de tels agissements et qu'ils sont alors plus enclins à commettre d'autres crimes (...)"). In the same spirit see also: SCSL, Prosecutor v. Sesay, Kallon and Gbao, Trial judgment, Sesay, Kallon & Gbao (RUF Case) (Trial judgment) (Special Court for Sierra Leone, Case No. SCSL 04-15-T, 25 February 2009, par. 311.
[156] ICTY, Prosecutor v. Furundžija, Trial Chamber, judgment and Sentence, Appeals Judgment, TC, IT-95-17/1-T, 10 December 1998, par. 240-243, (according to the spirit of casw: Soering v. United Kingdom of 7 July 1989 from European Court of Human Rights, par. 90).
[157] S. DARCY, The doctrine of superior responsibility, op. cit., pag. 131 ss.: "(...) it is clear that a more exacting standard is required of civilian superiors, while military commanders may be liable for subordinate crime on the basis of their own recklessness or possibly negligence. The latter are said to beunder a “more active duty” to keep themselves informed “of their subordinates” conduct (...)", ICTR, Prosecutor v. Kayshema e Ruzindana, Trial Chamber II, judgment, op. cit., par. 227. The cumulative definition of recklessness in the Model Penal Code is formulated in the following fashion: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
[158] ECCC, Prosecutor v. Eav alias Duch, Trial Chamber, judgment, op. cit., par. 543, citated the jurisprudence of: ICTY, Prosecutor v. Kordić and Čerkez, Trial Chamber, judgment, op. cit., par. 427 and SCSL, Prosecutor v. Sesay, Kallon and Gbao, Trial judgment, SCSL-04-15-A, Appeal judgment, 26 October 2009, par. 309.
[159] ICTY, Prosecutor v. Aleksovski, Appeals Chamber, judgment, IT-95-14/1-A, 24 March 2000, The Appeals Chamber has established that to ensure a reasonable predictability of judgments it is necessary to follow previous decisions, but has foreseen the possibility of departing from them if imperative reasons seem to impose it in the interests of justice. This decision was confirmed in the Semanza judgment of May 31, 2000 of the ICTR, and finds a normative basis also in the art. 21 paragraph 2 of the StICC.
[160] ICTY, Prosecutor v. Naletilić, alias Tuta, and Martinović, alias Štela, Trial Chamber, judgment, IT-98-34-T, Trial Chamber, judgment, 31 March 2003, par. 73. See also in the same spirit the case: ICTY, Prosecutor v. Kordić and Čerkez, Trial Chamber, judgment, op. cit., par. 428.
[161] ECCC, Prosecutor v. Eav alias Duch, Trial Chamber, judgment, op. cit., par. 544, citated the jurisprudence of the case: ICTY, Prosecutor v. Hadžihasanovic and Kubura, Appeals Chamber, judgment, op. cit., par. 28.
[162] ECCC, Prosecutor v. Eav alias Duch, Trial Chamber, judgment, op. cit., par. 544, citated the juripsurdence of case: ICTY, Prosecutor v. Delalić and others (Čelebici case), Trial Chamber, judgment, op. cit., par. 393 and the case from: SCSL, Prosecutor v. Sesay, Kallon and Gbao, Trial judgment, op. cit., par. 310.
[163] ECCC, Prosecutor v. Eav alias Duch, Trial Chamber, judgment, op cit., par. 43, citated the jurisprudence of case: ICTY, Prosecutor v. Orić, Trial Chamber II, judgment, op. cit., par. 57 A 59.
[164] ECCC, Prosecutor v. Eav alias Duch, Trial Chamber, judgment, op. cit., par. 544, citated the jurisprudence of the next cases: ICTY, Prosecutor v. Delalić & Others (Čelebici case), Appeals Chamber, judgment, op. cit., par. 226. ICTY, Prosecutor v. Blaškic, Appeals Chamber, judgment, op. cit., parr. 62, 64 and 406. SCSL, Prosecutor v. Sesay, Kallon and Gbao, Trial judgment, op. cit., par. 312
[165] J. PUSCHKE, Grund und Grenzen des Gefährdungsstrafrechts am beispiel der Vorbereitungsdelikte, in R. HEFENDEHL, Grenzenlose Vorverlagerung des Strafrechts?, BWV Berliner Wissenschafts-Verlag, Berlin, 2010, pp. 10ss.
[166] ICTY, Prosecutor v. Delalić & Others (Čelebici case), Appeals Chamber, judgment, op. cit., par. 256).
[167] ICTR, Prosecutor v. Krnojelac, Trial Chamber II, judgment, op. cit., par. 95. Regarding the relevance of de facto power, in the Celebici case, the Trial Chamber concluded that "a superior can be held criminally responsible even if he has not officially and juridically the power to take the necessary measures to prevent the crime committed by subordinates”. See also: ICTY, Prosecutor v. Delalić and others (Čelebici case), Trial Chamber, judgment, op. cit., par. 395.
[168] ECCC, Prosecutor v. Eav alias Duch, Trial Chamber, judgment, op. cit., par. 545, citated the case: ICTY, Prosecutor v. Halilović, n. IT-01-48-A, Appeals Chamber, judgment, 16 October 2007, par. 63.
[169] ICTY, Prosecutor v. Krnojelac, Appeals Chamber, judgment, n. IT-97-25-A, Appeals Chamber, judgment, 17 September 2003, par. 169.
[170] ICTY, Prosecutor v. Hadžihasanovic and Kubura, Appeals Chamber, judgment, op. cit., par. 30-31.
[171] ICTY, Prosecutor v. Gotovina and others, Trial Chamber, Summary of judgment.
[172] ICTY, Prosecutor v. Boškoski and Tarćulovski, Appeals Chamber, op. cit.
[173] ICTY, Prosecutor v.
Halilović, Trial Chamber I, par. 78, "(...) dans l’affaire Čelebici (ICTY,
Prosecutor v. Delalić and others-Čelebici case, Trial Chamber, judgment, op.
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comme référence que l’ouvrage (...)", according to opinion of de M. CHERIF
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de la responsabilité du supérieur hiérarchique (...)".
[174] ICTY, Prosecutor v. Delalić and others (Čelebici case), Trial Chamber, judgment, op. cit., par. 396-400. On the possibility of establishing the responsibility of the superior, see: ICTY, Prosecutor v. Halilović, n. IT-01-48-A, Appeals Chamber, judgment, 16 October 2007, par. 78.
[175] ICTY, Prosecutor v. Kvoćka, Kos, Radic, Žigic and Prcać (“Omarska and Keratem Camps”), Trial Chamber I, Trial Chamber I, n. IT-98-30/1, Trial Chamber I, 2 November 2001, par. 289.
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[177] ICTY, Prosecutor v. Kordić and Čerkez, Trial Chamber, judgment, op. cit., par. 373. ICTR, Prosecutor v. Akayesu, Trial Chamber, judgment, opò cit., par. 473. ICTR, Prosecutor v. Muvunyi, n. ICTR-00-55-T, Trial Chamber II, 12 September 2006, par. 460. ICTR, Prosecutor v. Kajelijeli, Trial Chamber II, op. cit., par. 757. ICTR, Prosecutor v. Bisengimana, n. ICTR-00-60-T, Trial Chamber II, 13 April 2006, par. 31. ICTR, Prosecutor v. Nzabirinda, Case n. ICTR-2001-77-T, Trial Chamber II, 23 February 2007, par. 15.
[178] In this sense see: ICTR, Prosecutor v. Akayesu, Trial Chamber, judgment, op. cit., par. 40. ICTY, Prosecutor v. Blaškic, Trial Chamber I, judgment, op. cit., par. 279. ICTY, Prosecutor v. Limaj, Bala and Musliu, Trial Chamber II, op. cit., par. 513.
[179] ICTR, Prosecutor v. Jean de Dieu Kamuhanda, n. ICTR-95-54A-T, Trial Chamber II, 22 January 2004, par. 592. ICTY, Prosecutor v. Mrkšic-Radic-Šljivancanin, n. IT-95-13/1-T, Trial Chamber II, 27 September 2007, par. 548. ICTR, Prosecutor v. Seromba, n. ICTR-2001-66-1, Trial Chamber, 13 December 2006, par. 303.
[180] ICTY, Prosecutor v. Kordić and Čerkez, Trial Chamber, judgment, par. 386.
[181] ICTY, Prosecutor v. Kordić and Čerkez, Trial Chamber, judgment, op. cit., par. 367.
[182] Trials of the Major War Criminals Before the International Military Tribunal, vol I (1947), pp. 223ss.