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If you want to indict industrialists who helped to rearm Germany, you will have to indict your own too. The Opel Werke, for instance, who did nothing but war production, were owned by your General Motors.--No, that is no way to go about it. You cannot indict industrialists. (1)
--Hjalmer Horace Greeley Schacht, major war crimes defendant at the International Military Tribunal at Nuremberg
I. INTRODUCTION
When the chief prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo, signaled that persons involved in the trade of "blood diamonds" may be subject to charges of complicity in war crimes and genocide, (2) at least one reader of the ABA Journal cried foul: "Doesn't the ICC have any sense of the foundations of criminal law: a legitimate definition of the proscribed act, mens rea, and conscious and deliberate action? The sort of arbitrary, unlimited liability nonsense espoused by prosecutor Luis Ocampo is sufficient to reject the ICC and its jurisdiction out of hand." (3) Mr. Ocampo's statements have been a bit more guarded than the summary in the ABA Journal: "If they received diamonds and knew that the people delivering them were getting them because of genocide then they could well be part of the crime." (4)
But the dilemma remains: at what point should a corporate official be held liable for facilitation of the four core international crimes--war crimes, crimes against humanity, genocide or wars of aggression (5)--when his or her central motive is to make a profit? And should that determination also account for the great harm that can be caused by the amoral decision making of corporations? (6)
If one doesn't ordinarily think of businessmen and businesswomen as war criminals, such a prosecution is not without precedent. Even though concerns about corporate involvement in wars and in international crimes are not new, (7) history shows that prosecution is difficult when the acts forming the basis of the charges are the corporation's everyday acts of commerce with persons who also commit core international crimes. Part of the hesitance to prosecute people for just "doing business" is the difficulty that "aggressive pursuit of accomplices ... may reach so far into the realm of ordinary and 'legitimate' commercial activity." (8) Although prosecution is feasible when corporate officials supply a means or instrumentality while knowing it will be used to commit a crime, it is far more difficult to criminalize the conduct of a corporate official whose business transactions provide criminals with funds or multipurpose goods. Both to deter facilitation of crimes and to provide proper notice of criminality, this paper proposes that future prosecutions be based on a decision regarding, or notice of, criminality given by the United Nations Security Council or other authoritative international body, rather than at the initiation of the ICC prosecutor
II. HISTORICAL PRECEDENTS--POST-WORLD WAR II CASES
In order to understand how successful modern prosecutions against corporate officials might be, it is best to first look at the circ*mstances under which business or corporate officials (9) were convicted in the past. It is also helpful to understand the general principles of accessory liability as determined by international tribunals.
A. The Trial of Major German War Criminals before the International Military Tribunal at Nurnberg (10)
It is hard to overstate the significance of the strengthening of international humanitarian law that resulted from the charter and judgment of the International Military Tribunal. (11) There was a general failure to bring war criminals to justice following World War I, (12) and even when war criminals were tried, their criminal liability was somewhat dependent on, and hampered by, domestic law. (13) The charter of the tribunal, which set out the composition, jurisdiction, principles and powers of the tribunal, (14) was heralded as a statement of international law almost by acclamation. Although it was initially an agreement of only four states--the United States, the U.S.S.R., the United Kingdom and France, (15) nineteen additional states joined the agreement later in 1945, (16) and the principles of the charter and the judgments of the tribunal were affirmed as customary international law by the United Nations General Assembly in 1946. (17) As noted by the International Criminal Tribunal for the Former Yugoslavia (ICTY), (18) crimes against humanity were officially recognized for the first time in the Nurnberg Charter. (19) Individual criminal responsibility for crimes against humanity was likewise recognized for the first time. (20) Thus, in many ways, the charter and judgment of the International Military Tribunal at Nurnberg set the standard for future prosecutions of persons responsible for core international crimes and are the "basic documents" of prosecutions for war crimes, crimes against peace, and crimes against humanity, particularly the latter.
The prosecutors charged the major German war criminals under four multi-faceted counts. (21) Count One, entitled "Common Plan or Conspiracy", charged all of the defendants with being "leaders, organizers, instigators, or accomplices in the formation or execution of a common plan or conspiracy to commit, or which involved the commission of, Crimes against Peace, War Crimes, and Crimes against Humanity." (22) This count charged the Nazi Party as being the "central core of the common plan or conspiracy," (23) the central aim of which was to wage aggressive war to acquire lebensraum ("living space") for the German "master race." (24) In the course and in furtherance of the plan, the Nazi conspirators were charged with using "organizations of German business as instruments of economic mobilization for war" and they, "in particular the industrialists among them, embarked upon a huge re-armament program." (25)
Count Two charged the defendants with crimes against peace by their participation "in the planning, preparation, initiation, and waging of wars of aggression." (26) Count Three charged the defendants with war crimes in that they murdered and mistreated civilians in occupied territory or on the high seas, (27) forced civilians in occupied territories to unwillingly migrate for the purpose of slave labor and other purposes, (28) murdered and mistreated prisoners of war, (29) took and killed civilian hostages, (30) plundered public and private property, (31) imposed collective punishment on the civilian populations in occupied territories, (32) destroyed cities, towns and villages without having any military necessity for doing so, (33) and forced civilians to labor beyond the requirements needed to sustain the basic needs of occupation and to also labor for the German war effort. (34) Count Four charged the defendants with crimes against humanity in that they murdered, persecuted, exterminated, enslaved, deported and committed other inhumane acts against the civilian populations of Germany and of the occupied territories, particularly against the Jewish population. (35)
Chief among the defendants was Hermann Goring. As noted in Appendix A to the indictment, Goring held a number of leadership positions in Nazi Germany, including generalship in the SS, Trustee of the Four-Year Plan (to prepare the German economy for war), Commander-in-Chief of the German Air Force, membership in the Secret Cabinet Council, and Successor Designate to Adolf Hitler. (36) There were initially twenty-four defendants, and the ones whose cases dealt with criminal liability for their assistance to the commission of crimes will be of greatest significance in examining the issue of criminal liability for corporate officials whose dealings facilitate the commission of war crimes and crimes against humanity.
The International Military Tribunal rejected the prosecution's position "that any significant participation in the affairs of the Nazi Party or Government is evidence of a participation [sic] in a conspiracy that is in itself criminal," concluding that "conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and action." (37) Only those participants in a "concrete plan" could be held criminally liable. (38) The judgment of the International Military Tribunal set out what levels of participation would result in criminal liability.
Among the participants in the concrete plan were Goring and others who were privy to one or more of the secret meetings at which Hitler disclosed his plans for aggression. (39) One who did not attend and was nevertheless still convicted was Rudolf Hess. Hess was convicted of participating in the common plan to wage aggressive wars because as "Hitler's closest personal confidant," he "must have been informed of Hitler's aggressive plans when they came into existence." (40) For the International Military Tribunal, this conclusion was confirmed by Hess' concrete actions in support of Hitler's plans of wars of aggression. (41) Alfred Rosenberg, who held a number of high-level Nazi Party posts and was Reich Minister for the Eastern Occupied Territories, (42) was convicted as well despite his non-attendance. His conviction was due instead to his involvement in laying the groundwork for the invasion of Norway and his involvement in pre-invasion preparations for the occupation of the U.S.S.R. and other eastern countries. (43) Alfred Jodl was also not present at the four secret meetings, but his diary and other documentary evidence showed his prior knowledge and assistance in planning wars of aggression. (44)
Another person not present at one of the four secret meetings was Joachim yon Ribbentrop, who was involved heavily in Germany's foreign affairs, including holding the posts of Ambassador Extraordinary and Reich Minister for Foreign Affairs. (45) Nonetheless his involvement in the preparation for wars of aggression was clear, even to the point of suggesting wars of aggression to Germany's east. (46) The International Military Tribunal saw his diplomatic maneuverings to be conducted in clear knowledge of Hitler's ultimate plans. (47) He was, for example, notified in advance of the invasions of Norway, Denmark, Belgium, Luxemburg and the Netherlands and prepared the official justifications for the attacks. (48)
The tribunal found inadequate evidence as to a number of other defendants. A number of these acquittals involved defendants who did not attend the early secret planning conferences at which Hitler announced his plans for wars of aggression. These included Ernst Kaltenbrunner and Franz von Papen, who had both been heavily involved in the taking of Austria (an aggressive act not deemed a "war" by the tribunal) but not in any other conquest, (49) and the "avid Nazi" Wilhelm Frick, (50) who was a general in the SS and held a number of positions overseeing occupied territories (51) but who only aided the aggression after it began. (52) Similarly, the vicious anti-Semite Julius Streicher may have been "a staunch Nazi and supporter of Hitler's main policies[, but] there [wa]s no evidence to show he was ever within Hitler's main circle of advisers" or that he was "closely connected with the formulation of the policies which led to war." (53)
Walter Funk was Reich Minister of Economics, President of the Reichsbank, and economic advisor to Hitler, and he also held press and propaganda posts. (54) He was also acquitted of being part of the common plan to wage aggressive war because he "was not one of the leading figures in originating the Nazi plans for aggressive war." (55) Yet, Funk was found guilty of planning and waging war due to his participation in the economic preparations for war "after the Nazi plans to wage aggressive war had been clearly defined." (56) The tribunal particularly described how Funk participated heavily in the economic planning for the attack on the U.S.S.R. (57) In essence, he was convicted for joining in once the plan for aggressive war was more widely revealed.
Admiral Karl Donitz was Commander-in-Chief of the Germany Navy and had been an advisor to Hitler. (58) He was found guilty of waging an aggressive war, but he too was acquitted of participating in the common plan or conspiracy. (59) The tribunal observed that Admiral Donitz "was a line officer performing strictly tactical duties," and it found that "[h]e was not present at the important conferences when plans for aggressive wars were announced, and there is no evidence he was informed about the decisions reached there." (60) Hans Fritzsche, who held significant press and propaganda posts, (61) also never "achieved sufficient stature to attend the planning conferences which led to aggressive war ... [n]or is there any showing that he was informed of the decisions taken at these conferences." (62) Martin Bormann was also acquitted of participation in the common plan or conspiracy to wage aggressive wars because he did not attend the meetings and because knowledge of the plans could not "be conclusively inferred from the positions he held," (63) which included being chief of staff to Hitler's deputy when the plans were formed. (64)
Allied prosecutors did attempt to hold corporate interests accountable, but the major industrialist defendant, Gustav Krupp von Bohlen und Halbach, was never tried due to the onset of dementia. (65) Gustav Krupp was president of the Reich Union of German Industry and head of the Group for Mining and Production of Iron and Metals under the Reich Ministry of Economics. (66) He led efforts to coordinate industrial reorganization to complement Hitler's political aims, reorganization that was essential to German rearmament and preparedness for war. (67) As the International Military Tribunal noted, "In this reorganization of the economic life for military purposes, the Nazi Government found the German armament industry quite willing to cooperate, and to play its part in the rearmament program." (68)
Hjalmer Schacht was in a similar position to Gustav Krupp and other industrialists (69) subsequently prosecuted for supporting the Nazi regime because he too provided economic support to the Nazi government; he was in a sense the first "corporate" war crimes defendant. (70) During rearmament, Schacht was Minister of Economics, President of the Reichsbank, and Plenipotentiary General for the War Economy. (71) He "was seen as the genius behind the Nazi economic miracle ... and a major player in Germany's rearmament." (72) Schacht was believed by the prosecution to be individually responsible because he was a supporter of Hitler and a member of Hitler's cabinet during a number of early events in the war, including the Anschluss and the capture of the Sudetenland. (73) The prosecutor leading the case against Schacht summarized the case against Schacht by noting, "Certainly in this setting Schacht did not proceed in ignorance of the fact that he was assisting Hitler and Germany along the road to armed aggression." (74)
Perhaps fortunate for his later prospects as a defendant before the International Military Tribunal, Schacht had resigned from two of his positions, was sacked by Hitler from the third long before the war was over, and was imprisoned for almost the entire last year of the war in various concentration camps. (75) Schacht was charged with participating in the German wars of aggression and with conspiracy, but he was acquitted because the prosecution failed to prove the key "inference that Schacht did in fact know of the Nazi aggressive plans" to wage war. (76) The tribunal specifically refused to find criminal liability based on his economic activities, and it rejected the argument that Schacht could have figured out the plans, despite not having specific notice of them, due to the information he had at his disposal. (77) The tribunal specifically considered the argument that, "Schacht, with his intimate knowledge of German finance, was in a peculiarly good position to understand the true significance of Hitler's frantic rearmament, and to realize that the economic policy adopted was consistent only with war as its object." (78)
The tribunal clearly recognized Schacht's contribution to rearmament, but the language the tribunal used showed that his activities could have easily been conducted in ignorance of Hitler's plans: "He made detailed plans for industrial mobilization and the coordination of the Army with industry in the event of war." (79) The tribunal found that Schacht may have carried out plans for the rearmament of Germany but that the evidence did not prove he did so in preparation to wage aggressive war. (80) As the tribunal put it, "rearmament of itself is not criminal under the Charter." (81) Re-emphasizing the need for notice and knowledge, the tribunal stated that Schacht "was clearly not one of the inner circle around Hitler, which was most closely involved with this common plan." (82)
The International Military Tribunal did not set out much in the way of firm criteria in its decision making, but some principles can be gleaned from the judgment. The International Military Tribunal cautioned that all subsequent tribunal cases should be conducted "in accordance with well-settled legal principles, one of the most important of which is that criminal guilt is personal, and that mass punishments should be avoided." (83) It distinguished between a person with mere membership in a criminal organization, which is an insufficient basis to convict that person, and members of that organization who committed the criminal acts or who had knowledge of them, a basis upon which they could be convicted. (84)
When later reviewing the acquittals rendered by the International Military Tribunal, the U.S. military tribunal hearing the Farben Case observed, "From the foregoing it appears that the [International Military Tribunal] approached a finding of guilty of any defendant under the charges of participation in a common plan or conspiracy or planning and waging an aggressive war with great caution." (85) The Farben tribunal addressed the knowledge element in depth, noting that what Hitler said in public "differed widely" from the disclosures he made during four secret meetings, during "which Hitler disclosed his plans for aggressive war." (86) The Farben tribunal concluded that the International Military Tribunal only convicted those, "like Hess, [who was] in such close relationship with Hitler that he must have been informed of Hitler's aggressive plans and took action to carry them out, or attended at least one of the four meetings at which Hitler disclosed his plans for aggressive war." (87) Thus, in the view of the Farben tribunal, the basic precedent of the judgment of the International Military Tribunal was that "personal guilt" was dependent upon "personal knowledge" and "motives determined from the situation as it appeared, or should have appeared, to them at the time." (88) In large part, the Farben tribunal concluded, personal knowledge was the sole basis for conviction because "[t]here was no [] common knowledge in Germany that would apprise any of the defendants of the existence of Hitler's plans or ultimate purpose." (89)
B. Prosecutions of Corporate Officials before Post-World War II Tribunals
1. Prosecutions of German Corporate Officials
The industrialists from the Krupp, Farben and Flick concerns were prosecuted as war criminals due to their symbiotic relationship with Adolf Hitler and the Nazi Party--they were inextricably intertwined with Hitler, his rise to power, and the illegal conduct of Germany in World War II. The relationship began early on in Hitler's rise, in February 1933, when representatives of Krupp and Farben met with Hitler and Hermann Goring at Goring's home; it was there that Hitler outlined how he would support private enterprise if brought to power, and it was there that he secured industrialist support. (90) From that point on, the prosecution argued, "Industry organized to support Hitler's political programs, including rearmament and territorial aggrandizement." (91) Although they were in large part convicted of war crimes and crimes against humanity to one degree or another, these industrialists benefited from significant clemency after their trials. (92) "Alfred Krupp even found himself in possession of his properties again, which the American court had earlier confiscated." (93)
a. The Farben Case
In the Farben Case, (94) twenty-four officials of the Farben firm were prosecuted before United States Military Tribunal VI in Nurnberg, Germany. (95) The crimes they were charged with
included planning, preparing, initiating, and waging wars of aggression and invasions of other countries ...; deportation to slave labor of members of the civilian population of the invaded countries and the enslavement, mistreatment, terrorization, torture, and murder of millions of persons ...; plunder and spoliation of public and private property in the invaded countries pursuant to deliberate plans and policies, intended not only to strengthen Germany in launching its invasions and aggressive wars and secure the permanent economic domination by Germany of the Continent of Europe, but also to expand the private empire of the defendants. ... (96)
The prosecution alleged an alliance between Farben and Adolf Hitler and his Nazi party, in which Farben, inter alia, "synchronized" its industrial activities with the military plans of the German High Command and participated in the rearmament of Germany and in the creation and equipping of the Nazi military for wars of aggressions. (97) The defendants as a group were charged with five counts of war crimes:
Count One planning, preparation, initiation and waging of wars of aggression and invasions of other countries; (98)
Count Two plunder and spoliation of public and private property; (99)
Count Three slavery and mass murder; (100)
Count Four membership in Die Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei (the "SS"), which was declared to be a criminal organization by the International Military Tribunal; (101) and
Count Five participation in a common plan or conspiracy to commit war crimes and crimes against humanity. (102)
The tribunal considered Counts One (crimes against peace) and Five (conspiracy) together, considering the judgment of the International Military Tribunal as its main precedent. (103) As to crimes against peace, the tribunal used personal knowledge as its key decisional factor in determining whether the defendants participated in the planning or preparation of aggressive wars: "[P]articipation in the rearmament of Germany was not a crime on the part of any of the defendants in this case, unless that rearmament was carried out, or participated in, with knowledge that it was part of a plan or was intended to be used in waging aggressive war." (104) For each Farben defendant, the tribunal examined the position and activities for Farben and any positions they held in the German government "and their authority, responsibility, and activities thereunder." (105) This approach led to generally favorable results for the Farben defendants.
The primary defendant in the Farben Case was Carl Krauch. (106) Although Krauch held a fairly high-level government position in assisting Goring in the chemical production aspect of German rearmament, (107) the tribunal found insufficient evidence that Krauch planned or prepared aggressive wars, finding that Krauch was not within the "closely guarded circle" privy to Hitler's plans for aggressive wars. (108) The tribunal found that the other Farben defendants were also not involved in planning or preparing for aggressive war because they were "further removed from the scene of Nazi governmental activity than was Krauch." (109) Because the Farben officials did not participate in the secret planning by Hitler and his inner circle, the tribunal also acquitted the defendants of the conspiracy charge under Count Five.
Although Krauch and the other defendants knew that Germany was rearming and indeed participated in the rearmament, (110) "[e]ven people in high places were kept in ignorance and were not permitted to disclose to each other their individual activities in behalf of the Reich." (111) The tribunal did add, "If we were trying military experts, and it was shown that they had knowledge of the extent of rearmament," they could conclude "that the magnitude of the rearmament effort was such to convey" knowledge "that what they did in aid of rearmament was preparing for aggressive war." (112) As to one defendant, the tribunal commented that "his support of the war," which included approving cooperation between German army officials and Farben, "did not exceed that of the normal, substantial German citizen and businessman." (113)
When the tribunal faced the issue whether the Farben officials committed the crime of waging wars of aggression, the tribunal saw the precise issue to be resolved:
In this case, we are faced with the problem of determining the guilt or innocence with respect to the waging of aggressive war on the part of men of industry who were not makers of policy but who supported their government during its period of rearmament and who continued to serve that government in the waging of war, the initiation of which has been established as an act of aggression ... (114)
The tribunal decided this issue in the context of an important legal principle that the crime of waging a war of aggression could not "apply to any and all persons who aided, supported, or contributed to the carrying on of an aggressive war" in light of the declaration of the International Military Tribunal that "mass punishments should be avoided." (115)
The tribunal observed that, "[o]f necessity, the great majority of the population of Germany supported the waging of war in some degree. They contributed to Germany's power to resist, as well as to attack." (116) The International Military Tribunal had determined that the leaders of Germany bore criminal responsibility for leading their country into an aggressive war, but the Farben tribunal was "unable to find, once we have passed below those who have led a country into a war of aggression, a rational mark dividing the guilty from the innocent." (117) The Farben tribunal adopted what they viewed as the only rational mark they could find, which was also the mark that limited criminal responsibility the most:
We leave the mark where we find it, well satisfied that individuals who plan and lead a nation into and in an aggressive war should be held guilty of crimes against peace, but not those who merely follow the leaders and whose participations, like those of Speer, "were in aid of the war effort in the same way that other productive enterprises aid in the waging of war." (118)
From this judgment of acquittal in the Farben Case, a legal principle emerges that individuals--including corporations and their officials--cannot be held criminally liable for crimes against peace (planning, preparing for or waging an aggressive war) if they "merely follow the leaders" of their country, however despicable those leaders might be. However, a different outcome would result from charges arising from Count 2, the plunder and spoliation of property. (119)
Farben officials were not so fortunate in the tribunal's consideration of Count Two. The Farben tribunal used the 1907 Hague Regulations (120) as a guide in determining what property offenses constitute war crimes:
[T]he Hague Regulations are broadly aimed at preserving the inviolability of property rights to both public and private property during military occupancy. They admit of exceptions of expropriation, use, and requisition, all of which are subject to well-defined limitations.... Where private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action, not being expressly justified by any applicable provision of the Hague Regulations, is in violation of international law. The payment of a price or other adequate consideration does not, under such circ*mstances, relieve the act of its unlawful character. Similarly where a private individual or juristic person becomes a party to unlawful confiscation of public or private property by planning and executing a well-defined design to acquire such property permanently, acquisition under such circ*mstances subsequent to the confiscation constitutes conduct in violation of the Hague Regulations. (121)
The Farben tribunal found that commercial agreements during military occupation may be found to be involuntary, but that involuntariness must be proven by more than the existence of the occupation itself; there must be proof of illegal pressure applied during the transaction, and that illegal pressure must affect the resulting transaction. (122)
The Farben defendants argued that they could not be held liable because they were following the direction, or acting on the approval, of the German government. (123) The Farben tribunal quickly dismissed this argument, holding that "[i]t is beyond the authority of any nation to authorize its citizens to commit acts in contravention of international penal law." (124) The defendants also argued that their actions were taken to fulfill the occupying power's obligation under the Hague regulations to "restore an orderly economy in the occupied territory." The tribunal also rejected this argument, finding that Farben acted to enrich itself "as part of a general plan to dominate the industries involved." (125)
The Farben tribunal reviewed the findings of the International Military Tribunal, which had determined that "the territories occupied by Germany 'were exploited for the German war effort in the most ruthless way, without consideration of the local economy, and in consequence of a deliberate design and policy.'" (126) The Farben tribunal found that Farben and its officials were in the thick of this exploitation. In some cases, Farben took permanent title to property already illegally confiscated by the German government, and in others, Farben permanently acquired "substantial or controlling interests in property contrary to the wishes of the owners." (127) The tribunal found that their actions as private individuals were in essence no different than the illegal plundering and pillaging of German government officials and included a "studied design" to take property in order to build Farben a "chemical empire through the medium of the military occupancy at the expense of the former owners." (128) The tribunal then held those individuals who knowingly participated in any act of plunder or spoliation individually responsible. (129)
The tribunal explained that individual criminal liability could only be predicated on "evidence [that] clearly establishes some positive conduct on [a defendant's] part which constitutes ordering, approving, authorizing or joining in the execution of a policy or act which is criminal in character." (130) To be convicted, the corporate official that authorized an illegal action had to know "those essential elements of the authorized act which give it its criminal character. With regard to transactions apparently legal in form, this means positive knowledge that the owner is being deprived of his property against his will during military occupancy." (131)
In determining individual responsibility, the tribunal looked at the positions held in the company when the crimes were committed. The Farben defendants had differing responsibilities within the firm. Some were members of the company's aufsichtsrat, an entity much like a supervisory board of directors not involved in day-to-day administration; (132) others were members of the vorstand, a group whose members actually managed the company. (133) These vorstand members in turn managed different specific activities of the company. (134) For example, each major Farben unit was usually personally supervised by an individual member of the vorstand. (135)
Significantly, the Farben tribunal did not impute knowledge to individual officers due to the actions of the company as a whole. For example, the tribunal observed that defendant Hermann Schmitz, as chairman of the vorstand, had responsibilities and opportunities for knowledge "far beyond those" of an ordinary member of the vorstand. (136) Yet, due to the dispersed power structure of the company, he apparently did not know the details, including any coercion, of certain acquisitions the company made--those made in Poland, Russia and Alsace-Lorraine. Indeed, the minutes and reports of the meetings he presided over or attended did not reveal anything incriminating. Although he could have concluded that Farben made illegal acquisitions, the tribunal concluded that he could have also inferred from the information before him "that the acquisitions might have been effected in a legal manner." (137) Yet, the tribunal ultimately found Schmitz guilty under Count Two as to a different acquisition. Schmitz was shown to be aware of pressure tactics being used by Farben to acquire a French company and "was in a position to influence policy and effectively to alter the course of events." (138) The tribunal found that his knowledge and power together constituted his approval of this acquisition. (139)
A third count of slavery and mass murder was also before the tribunal. The Farben tribunal continued to critically examine the personal responsibility of the defendants under Count Three. The prosecution charged the defendants with involvement in the government's slave-labor program, with supplying poison gas that was used to kill inmates at concentration camps, with supplying pharmaceutical drugs for medical experimentation on slave laborers, and with the illegal and inhumane practices committed at the Farben plant at Auschwitz. (140) With regard to the poison gas, the tribunal found no guilt because the gas was actually supplied by a company organized as a joint venture with two other companies; no one outside the management of the joint venture company clearly knew the grim purpose for which the gas was supplied. (141) As to the medical experiments, the tribunal found that although there was illegal Nazi experimentation, there was no evidence that Farben officials, at the onset of their supply activities, suspected any unlawful experimentation; there was, however, evidence that when they clearly did suspect it, Farben stopped supplying the drugs. (142)
As to Farben's participation in the slave-labor program, the defendants pled a defense of necessity, arguing that they were bound by the strict labor regulations of the German government, the violation of which included "[h]eavy penalties, including commitment to concentration camps and even death." (143) The Farben tribunal reviewed other war crimes cases that had also involved asserted defenses of necessity. (144) From these cases, the Farben tribunal concluded that
a law or governmental decree will not justify the defense of necessity unless, in its operation, it is of a character to deprive the one to whom it is directed of a moral choice as to his course of action. It follows that the defense of necessity is not available where the party seeking to invoke it was, himself, responsible for the existence of execution of such order or decree, or where his participation went beyond the requirements thereof, or was the result of his own initiative. (145)
Utilizing this rule, the Farben tribunal found little support for the asserted defense of necessity. The tribunal found that Farben officials had "considerable freedom and opportunity for initiative," which they used to decide upon their plant location at Auschwitz (they had factored in the availability of concentration-camp labor), to decide to acquire interests in two mines (that could not have been operated successfully without slave labor), and to decide to procure and use forced laborers and concentration camp inmates. (146) Not only did the tribunal find that the use of slave labor constituted war crimes and crimes against humanity, but it also found the treatment of the concentration-camp inmates at the Farben plant aggravated their already miserable condition. (147) Officials that held positions responsible for production and construction--the Farben efforts that benefited from slave labor--were convicted as a result. (148)
Yet once again, knowledge was not imputed throughout the company or even throughout divisions of the company. For example, defendant Fritz ter Meer was chairman of Farben's technical committee and was heavily involved in the labor at the Auschwitz plant, (149) but other members of the technical committee, as a group of individual plant leaders, were not privy to the conditions at other plants, particularly those at Auschwitz, where Farben's crimes occurred. (150) At the end of the case, the tribunal fully acquitted ten defendants and sentenced the remainder to terms of confinement ranging from one and one-half years to eleven years. (151)
b. The Krupp Case
In the Krupp Case, twelve officials from the Krupp firm were prosecuted before United States Military Tribunal IIIA in Nurnberg. (152) Like the Farben defendants, they were charged with participating in wars of aggression, in enslavement, in plunder and spoliation of property, and in a common plan or conspiracy to commit crimes against peace. (153) The Krupp tribunal granted a defense motion for a judgment of acquittal as to Counts One and Four, which charged conspiracy and participating in wars of aggression. (154) The tribunal therefore was ultimately concerned with Krupp's use of forced labor and appropriation of foreign property.
The lead defendant was Alfried Krupp, the "sole owner, proprietor, [and] active and directing head" of the company, (155) the commercial purpose of which was the production of metals, particularly steel and iron, the mining or other acquisition of the raw materials for these metals, and the processing of these metals into war materials, including ships and tanks. (156) Similar to the Farben company, the Krupp company was governed principally by the vorstand, and individual members of the Krupp vorstand were personally involved in one or more subsidiaries. (157) The Krupp vorstand, however, coordinated closely on the firm's major undertakings. (158)
As to the count of plunder and spoliation, there was particularly damning evidence against Alfried Krupp, detailing how he and other industrialists began planning to take private property as soon as they finished listening to a May 1940 radio broadcast describing how the German army had firmly occupied Holland:
At the conclusion of the broadcast the four men talked excitedly and with great intensity. They pointed their fingers to certain places on the map indicating villages and factories. One said, "This one is yours, that one is yours, that one we will have arrested, he has two factories." They resembled, as the witness Ruemann put it, "vultures gathered around their booty." (159)
Similarly, six months before the entry of the United States into the war, Krupp officials also discussed plans to obtain interests in American companies should the German government confiscate them in retaliation for future U.S. involvement in the war. (160) This sort of behavior at the outset of the war gave great insight to Alfried Krupp's motives and intentions throughout the war, insight specifically used by the Krupp tribunal. (161)
The Krupp firm turned the above division-of-spoils discussion into reality in France; it took advantage of German occupation and the German confiscation of Jewish properties to seize machinery and to take control of a number of factories and other properties. (162) The Krupp firm also participated in the systematic removal of machinery and materials from the Netherlands when it appeared the Allies would regain control of that country. (163) There was also evidence that Krupp officials used the German military to exert pressure on owners who did not wish to sell to Krupp. (164) There was a great deal of evidence of personal involvement in these activities by Alfried Krupp and certain other Krupp officials, and they were thus convicted under Count Two.
The circ*mstances that were insufficient to establish individual criminal responsibility gives one a better idea of where the tribunal set the bar on criminality. Defendants Max Ihn, Karl Pfirsch, Friedrich von Buelow, and Heinrich Korschan were acquitted on Count Two even though Pfirsch, Ihn and Korschan were deputy members of the Krupp vorstand. (165) In May 1941, Pfirsch, Korschan and other Krupp officials received a circular from one of the convicted officials, Loeser, asking that they keep him apprised of any information that would be essential to the acquisition of other plants in France. (166) Pfirsch and Korschan were also provided with information on the company's credits, which included one item describing "booty machines." (167) Although the Krupp tribunal simply stated there was insufficient evidence against these men, (168) the evidence failed to show that these men had any critical information on Krupp's illegal activities and, as deputy members of the vorstand, apparently no substantial powers to stop it.
With respect to the count of enslavement, the tribunal had no doubt that the Krupp firm participated extensively in the German forced labor program. In August 1943, 2412 prisoners of war (in violation of the 1907 Hague Regulations) and 11,557 foreign workers were forced to produce war materials at the firm's main plant at Essen. (169) There was significant evidence that Krupp managers were explicitly aware of the illegality of this arrangement, (170) and a number were aware of the deplorable treatment of prisoners, particularly Russian prisoners. (171) As to the foreign workers, even those who were "free" workers were subject to harsh and punitive conditions of employment. (172) Workers from Eastern Europe were "subject to obligatory service for an unlimited period" and were treated the same inhumane way the company treated prisoners of war. (173)
Krupp was not simply following governmental direction in these matters. Krupp officials specifically sought concentration camp labor, (174) Russian prisoners of war, (175) and conscripted foreign workers (176) for the company's production efforts. (177) Krupp sought increased numbers of impressed foreign workers (178) and not only maintained penal camps for foreign workers but created a new camp just for Krupp workers. (179) Krupp imposed horrid conditions; not only did Krupp condone beatings of workers, the company supplied the "[w]eapons with which the workers were beaten." (180)
The tribunal found all but one defendant, Pfirsch, guilty under Count Three. The tribunal adopted American law on individual liability of corporate officials for acts by their company or by other corporate officials. (181) The Krupp tribunal thus used a rule of criminal liability for (1) acts personally done, (2) acts done by others but by one's permission or at one's direction, and (3) acts done where one knows of the crime and has authority over the matter. (182) This is consistent with the formulation of the Farben tribunal that established criminal liability for "ordering, approving, authorizing or joining in the execution of a policy or act which is criminal in character." (183)
c. The Flick Case
In the Flick Case, Friedrich Flick and five other officials of the Flick concern were tried before Military Tribunal IV at Nurnberg, Germany. (184) The principle charges of war crimes and crimes against humanity against them were:
Count One (all defendants): Forced deportation, enslavement, use of prisoners of war for war production. (185)
Count Two (all defendants): Plunder and spoliation of property in occupied territories. (186)
Count Three (defendants Flick, Otto Steinbrinck & Konrad Kaletsch): The "Aryanization," or illegal acquisition, of Jewish properties. (187) Count Four (defendants Flick & Steinbrinck): Complicity in murders and other crimes by the Nazi party and other Nazi organizations. (188)
As to the use of forced or slave labor, the tribunal found that the slave-labor program was run wholly by the German government and that the Flick officials could not object to its mandates, including the use of the labor in Flick plants. (189) Moreover, the tribunal found that the government set production quotas for industrial plants, and the failure to meet these quotas would have resulted in penalties, including losing control of the Flick plants and perhaps tenure in a concentration camp for Flick officials. (190) The tribunal observed that the criminal combinations that were generally present in Germany between industry and the slave-labor program "did not prevail in the plants and establishments of the defendants." (191)
The tribunal acquitted four defendants because of this "mere" compliance with the German government's mandate. Even though acting pursuant to government orders was specifically disallowed as a defense to criminal liability under Control Council Law No. 10, the tribunal distinguished the defense of necessity and also reasoned that corporate officials are not like military men who might claim the defense of superior orders. (192) The one exception to the success of this duress claim was certain activity by defendant Bernhard Weiss, who with the knowledge and approval of Friedrich Flick, sought an increase in one production quota (which would necessitate more forced labor) and specifically sought Russian prisoners of war to meet the increased quota. (193) Both were convicted on Count One, Weiss for going beyond the government mandate and Flick for his knowledge and approval of Weiss' initiative. (194)
As to Count Two, Flick himself was found guilty of one instance of exploiting a seized factory in an occupied territory, but the remaining defendants were acquitted. The facts did not support any other plunder or spoliation because Flick officials generally did nothing to take advantage of the occupation of territories; they simply entered into business arrangements as they did in peacetime. Those crimes that occurred in occupied territories grew from actions of the government generally and not from Flick officials. (195) In the case of the seized factory for which Flick was convicted, the other defendants had no decisional authority in the matter. (196)
None of the defendants were convicted under Count Three (charging crimes against humanity), despite their "taking advantage of the ... Aryanization program by seeking and using State economic pressure to obtain from the owners, not all of whom were Jewish, the four properties in question." (197) The Flick concern, for example, was able to take title to the Petschek coal mines after the German government expropriated them and put them in trust for sale; the tribunal reasoned that the crime of expropriation had already been completed by the time Flick became involved (198) even if they received stolen property, whether or not it was considered "stolen" under the German law of the Nazi era. Moreover, the tribunal reasoned, even if the Flick concern had gained property through the misery of others, crimes against humanity were traditionally considered crimes against people and not their property. (199)
As to their membership in the SS, both Flick and Steinbrinck were not only members of the SS but were also members of an industrialist group that became known as the Himmler Circle of Friends after the head of the SS, Heinrich Himmler. (200) Both Flick and Steinbrinck made substantial contributions to the Himmler Circle beginning in 1936, "[w]hen the criminal nature of the SS was not generally known." (201) "Flick suggested in his testimony that he regarded membership in the Circle as in the nature of insurance," and the tribunal recognized that it might be dangerous for Flick and Steinbrinck to terminate their contributions after the SS's criminal activities became known. (202) Nonetheless, the tribunal convicted both men for giving Himmler a "blank check" that he could use to maintain his criminal organization. (203) For all of their crimes, Flick was sentenced to seven years' confinement, Steinbrinck to five and Weiss to two and one-half. (204)
d. Commissioner v. Roechling
Hermann Roechling and four other leading officials of his family firm, Roechling Enterprises, were tried for war crimes before a military tribunal in the French Zone of Occupation in Germany. (205) The trial was premised on a similar principle as that of the Farben Case: German wars of aggression and war crimes "could not have been rendered possible, except with the conscious assistance of certain great German industrialists and financiers." (206) All five defendants were also accused of plunder and spoliation and for using forced labor, and Hermann Roechling himself was also tried for participation in the preparation and planning of wars of aggression. (207) By his own admission, Roechling was at several secret conferences with Hermann Goring in 1936 and 1937 where long-term national plans were discussed, but he denied being privy to any discussion of wars of aggression, merely to discussions on German rearmament and economic development, the purposes of which were not necessarily the same as those for the waging of aggressive war. (208) Roechling was also credited with proposing the use of poor-grade iron ore found in Germany (when proper iron ore could not be obtained from abroad) to support mass production of German armaments. (209) At trial, the tribunal found no evidence to show Roechling knew of the eventual wars of aggression and acquitted him of preparing for wars of aggression, but the tribunal convicted him for contributing to their continuance. (210) The tribunal pointed out that Roechling "stepped out of his role of industrialist, demanded and accepted high administrative positions in order to develop German ferrous [iron] production." (211)
For the other counts against him, the Roechling tribunal relied on Roechling's administrative role in the German government, in which he endeavored to maximize steel production. (212) To do this, he plundered plants in occupied territory and exploited them to "produce for the German war effort," (213) for which the tribunal convicted him. (214) The tribunal also recounted how Roechling "lavished advice on the Nazi government in order to utilize the inhabitants of occupied countries for the war effort of the Reich." and specifically requested certain categories of workers in occupied territories that he believed would aid production. (215) Given his conduct in requesting laborers who would be mistreated, mistreatment to which he was at best indifferent, the tribunal convicted him of crimes by using forced labor. (216)
As to the defendant Ernst Roechling, Hermann Roechling's cousin, he was acquitted largely due to his limited duties as a company liaison in Paris, even if he was a company official involved "mainly in the control and supervision of iron and steel plants and enterprises in the occupied countries. (217) Hermann Roechling's son-in-law, Hans Lothar yon Gemmingen-Hornberg, did not fare as well; he was convicted of war crimes and crimes against humanity because, as plant manager, he knew of the horrid conditions in the plant and failed to use his power to alleviate the conditions of the workers. (218) His subordinate, Wilhelm Rodenhauser, was also convicted as he was "especially in charge of labor" and also failed to alleviate the conditions of the laborers despite his power to do SO. (219)
Under the French tribunal system, an appeal was allowed. (220) On appeal, the Superior Military Government Court of the French Occupation Zone in Germany held that Roechling's involvement in rearmament and in supporting the war efforts (once they began) did not amount to participation in the waging of wars. (221) The court made this determination because Roechling
--in spite of his participation in certain conferences with Goering, in spite of his determination to get the principle of the utilization of low-grade ores accepted, in spite of his letter to Hitler of June 1940, in spite of his program for the Germinization of the annexed provinces, in spite of his appointment as "General Plenipotentiary," "Reich Plenipotentiary," and president of the Reich Association Iron, in which capacity he gave a lecture in Knuttange in order to explain his authoritative power, ... in spite of numerous other actions, which are besides evaluated as component parts of war crimes--remains outside the boundary which "has been fixed very high by the" International Military Tribunal. (222)
Hermann Roechling's other convictions were essentially upheld, but his cousin's earlier acquittal was reversed on appeal. The appellate court found that he played an important role "in the enslavement of French industry and in its systemic spoliation." (223) The court specifically noted how Ernst obtained a large sum from the occupied French government to cover operating deficits in certain enterprises and how he surveyed French companies to see how they could be exploited. (224) Hermann Roechling's sentence on appeal included ten years' confinement and confiscation of his entire property, and the other defendants received lesser punishments, all of which included confinement. (225)
e. The Zyklon B Case (226)
The Zyklon B Case contains perhaps the clearest example of criminal facilitation seen in any of the prosecutions of corporate officials. Dr. Bruno Tesch, the owner of a firm that supplied Zyklon B gas and other products, and two of his employees, Karl Weinbacher and Joachim Drosihn, were charged with a war crime for supplying "poison gas used for the extermination of allied nationals in concentration camps, well knowing that the said gas was to be so used." (227) Although Zyklon B was manufactured and shipped by another company, Tesch's firm was the exclusive agent for the supply of the gas east of the Elbe River and thus arranged for the shipments, which included "vast quantities to the largest concentration camps in Germany east of the Elbe." (228)
The key issue in the case was whether the defendants knew the criminal purpose for which the camp officials used the Zyklon B. Several officials in Tesch's firm presented evidence that Tesch did in fact know how the gas was used. They described how Tesch revealed his knowledge in statements both made in his travel reports and made to them in conversations with Tesch. One witness reported he saw one of Tesch's travel reports that recounted how Tesch himself had refined the idea of using gas to kill Jews and how "[h]e undertook to train the SS men in this new method of killing human beings." (229) There was no such smoking gun with which to convict Weinbacher, but he held the role of "procurist" in the firm, which essentially made him the alter ego of the head of the firm, and as such, he could conclude any business as if he were the head of the firm. (230) The prosecutor argued that due to Weinbacher's position within the firm, he must have known everything that Tesch knew, particularly so because he ran the firm for 200 days of the year and had to be familiar with all of the firm's efforts, including those recounted in Tesch's travel reports. (231) The prosecutor also argued that due to the large quantities of Zyklon B used by the concentration camps, particularly Auschwitz (it was the firm's second biggest customer for 1942 and 1943), neither could have failed to know the purposes behind such large shipments. (232)
The third defendant, Drosihn, was admitted by the prosecution to be on the technical, rather than the sales or management, side of the firm, (233) and Drosihn testified that he spent about half the year traveling to resolve technical issues. (234) He admitted to have inspected the proper workings of the delousing chambers at two camps, but he had never been to Auschwitz. (235) He also testified that he had reported to Tesch that he had seen inhumane treatment at the camps. (236) The judge advocate assisting the tribunal asked the tribunal to evaluate Drosihn's "subordinate position in the firm, and asked whether there was any evidence that he was in a position either to influence the transfer of gas to Auschwitz or to prevent it. If he were not in such a position, no knowledge of the use to which the gas was being put could make him guilty." (237) The tribunal appeared to agree that he had no ability to influence the matter and acquitted Drosihn.
Tesch and Weinbacher, however, were convicted and sentenced to death by hanging. (238) The judge advocate advised the tribunal that, to convict, they had to be sure that the defendants knew that the gas would be used for killing human beings when they supplied it. (239) The judge advocate also discussed what amounts to a "deliberate avoidance" or "conscious avoidance" instruction: (240)
To my mind, although it is entirely a question for you, the real strength of the Prosecution in this case rests rather upon the general proposition that, when you reali[z]e what kind of a man Dr. Tesch was, it inevitably follows that he must have known every little thing about his business. The Prosecution ask[s] you to say that the accused and his second-in-command Weinbacher, both competent business men, were sensitive about admitting that they knew at the relevant time of the size of the deliveries of poison gas to Auschwitz. The Prosecution then ask[s]: "Why is it that these competent business men are so sensitive about these particular deliveries? Is it because they themselves knew that such large deliveries could not possibly be going there for the purpose of delousing clothing or for the purpose of disinfecting buildings?" (241)
Although the tribunal did not state the grounds upon which its decision rested, there was no out-of-court admission by Weinbacher as to his knowledge, and the decision would thus appear to rest on the inference that a competent business person in a leadership position will know the context behind the major efforts of his business. Indeed, it is only logical that a person selling a product will try to assess the needs of his or her customer in order to increase sales. Thus, tribunals will impute knowledge to certain corporate officials if the officials ordinarily must have knowledge of that type to effectively carry out his or her duties.
2. Prosecutions of Japanese War Criminals
a. Economic and Financial Leaders Tried before the International Military Tribunal for the Far East
There were two prominent financial leaders who were defendants before the International Military Tribunal for the Far East: Hoshino Naoki and Kaya Okinori. (242) Both were convicted of the same five counts, although each had been charged with other crimes. (243) Both were convicted of conspiring to wage and indeed of aiding in the waging of various wars of aggression against China, the United States, the British Commonwealth, and the Netherlands. (244) Both were sentenced to prison for life, (245) but both were paroled in 1955. (246)
Hoshino served in several important posts, particularly financial posts, in Japanese occupied Manchuria (Manchukuo). "In these positions he was able to exercise a profound influence upon the economy of Manchukuo and did exert that influence towards Japanese domination of the commercial and industrial development of that country." (247) Further, he was "[i]n effect, if not in name, ... a functionary of [the Japanese] Army whose economic policy was directed to making the resources of Manchujuo serve the warlike purposes of Japan." (248) His later cabinet roles also allowed him to join in planning for and waging aggressive wars. (249)
Kaya was twice Finance Minister and twice was an advisor to the Finance Ministry; he also held posts in the Manchurian Affairs Bureau, on the Asia Development Committee and as President of the North China Development Company. (250) "In these positions he took part in the formulation of aggressive policies of Japan and in the financial, economic and industrial preparation of Japan for the execution of those policies." (251) More specifically, "he was actively engaged in the preparation for and the carrying out of aggressive wars in China and against the Western Powers," and thus played an active role in the conspiracy to wage aggressive war. (252) The judgment of the tribunal revealed that the guilt of these men was derived from their role as government officials rather than from any of their personal or corporate commercial activities, but their convictions nonetheless serve as a reminder that war--and war crimes--are dependent in part upon economic support.
b. In re Awochi
Washio Awochi was tried by the Netherlands Temporary Court-Martial at Batavia for forcing Dutch women into prostitution during the Japanese occupation of Batavia. (253) After the Japanese occupied the Dutch East Indies, Awochi began operating the Sakura Club, which consisted of a restaurant, bar and brothel, all of which was exclusively reserved for Japanese civilians. (254) Awochi initially recruited women to be staff at the restaurant or bar without revealing his brothel operation. Then, once they were hired, he gave them a choice: work as a prostitute in his brothel or be turned over to the Japanese police for imprisonment, deportation or beatings. (255)
Awochi argued that his mistress, Lies Beerhorst, actually ran the brothel and issued the threats that forced these women into prostitution. (256) The court-martial found that Awochi's financial interest and profits were too great, and his relationship with Beerhorst too close, for him to be unaware of the compelled nature of the prostitution. *** Despite Awochi's additional argument that he was compelled to conduct this business at the order of the Japanese government, the court-martial found Awochi guilty of the war crime of "enforced prostitution" and sentenced him to ten years' imprisonment. (258) Awochi is another example of a business person, like many of the industrialists in Germany, who took illegal advantage of military occupation to make a greater profit and thus committed a crime.
3. The Acquittal of Karl Rasche in the Ministries Case (259)
In the Ministries Case, twenty-one defendants, including three Reich ministers, were tried for crimes alleged to have occurred as a result, principally, of their authority as officials of the Reich government. (260) Of what is particular concern to a discussion of prosecution of corporate officials is the judgment of U.S. Military Tribunal IV regarding defendant Karl Rasche. Rasche was a member of the vorstand of Dresdner Bank, an official in a number of other banks and firms, an officer in the SS, a member of the Nazi party, and a member of the Himmler Circle of Friends. (261)
The tribunal characterized Rasche as "a banker by profession," whose main activities were that of an executive officer of Dresdner Bank. (262) The tribunal noted that the bank was involved in financing Nazi activities in which crimes occurred: "The evidence clearly establishes that Dresdner Bank loaned very large sums of money to various SS enterprises which employed large numbers of inmates of concentration camps, and also to Reich enterprises and agencies engaged in the so-called resettlement program." (263) As part of this charge (Count Five), Rasche also funneled large contributions from Dresdner Bank to the Himmler Circle of Friends. (264) The tribunal declined to find Rasche criminally responsible for the donations to the Himmler Circle of Friends as there was no evidence "that Rasche knew any part of the fund to which the bank made contributions was intended to be or was ever used by Himmler for unlawful purposes." (265)
Although the tribunal found the bank loans made by Dresdner bank to be a closer case, the tribunal also acquitted (266) Rasche of aiding crimes through his approval of Dresdner Bank loans, reasoning--in essence--that a business transaction does not convert the businessman into a partner of a criminal enterprise:
The defendant is a banker and businessman of long experience and is possessed of a keen and active mind. Bankers do not approve or make loans in the number and amount made by Dresdner Bank without ascertaining, having, or obtaining information or knowledge as to the purpose for which the loan is sought, and how it is to be used. It is inconceivable to us that the defendant did not possess that knowledge, and we find that he did. The real question is, is it a crime to make a loan, knowing or having reason to believe that the borrower will use the funds in financing enterprises which are employed in using labor in violation of either national or international law? Does he stand in any different position than one who sells supplies or raw materials to a builder building a house, knowing that the structure will be used for an unlawful purpose? A bank sells money or credit in the same manner as the merchandiser of any other commodity. It does not become a partner in enterprise, and the interest charged is merely the gross profit which the bank realizes from the transaction, out of which it must deduct its business costs, and from which it hopes to realize a net profit. Loans or sale of commodities may well be condemned from a moral standpoint and reflect no credit on the part of the lender or seller in either case, but the transaction can hardly be said to be a crime. (267)
Rasche was also acquitted of financing the use of slave labor and the illegal use of prisoners of war for labor (Count Seven) on a number of grounds, including inadequate proof as to knowledge of the criminal activities that were funded, but the tribunal again emphasized the reasoning that they did in his acquittal under Count Five: "We cannot go so far as to enunciate the proposition that the official of a loaning bank is chargeable with the illegal operations alleged to have resulted from the loans or which may have been contemplated by the borrower." (268)
Because of this reasoning that makes the arms-length business transaction a safe harbor for a corporate official, the prosecution of Rasche in the Ministries Case may be one of the more important precedents to consider in future prosecutions of corporate officials for violations of international humanitarian law. Can Mr. Ocampo's statement, that purchasers of blood diamonds, knowing that their payments will be used to finance a group that commits genocide, may be prosecuted, be correct in light of the judgment of Rasche in the Ministries Case? Does the crime of complicity in genocide, as it stands today, differ enough from Rasche's prosecution for his financial support (through Dresdner Bank) of SS and Reich efforts to "Aryanize" occupied territories, to deport maltreat civilians in occupied territories, and to persecute Jews and other "undesirables"? (269)
III. MAKING GENOCIDE A CRIME
In 1948, the world community established the crime of genocide with the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). (270) Under the convention, genocide consists of killings and other acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." (271) The Genocide Convention specifically allows prosecution of the designated crimes in both domestic and international courts. (272) Naturally, genocide itself is punishable as a crime, but the Genocide Convention also separately lists the crimes of conspiracy to commit genocide, incitement to commit genocide, attempted genocide, and complicity in genocide. (273)
As William Schabas points out, "©omplicity is sometimes described as secondary participation, but when applied to genocide, there is nothing 'secondary' about it. The 'accomplice' is often the real villain, and the 'principal offender' a small cog in the machine." (274) However, complicity is not an offense additional to aiding, abetting, assisting or whatever other term of facilitation one chooses to use. For example, when the United Kingdom incorporated the Genocide Convention into its domestic law, it did not include a separate provision on complicity in genocide because of the redundancy of such a provision with the existing UK law on aiding and abetting. (275)
IV. MODERN PROSECUTIONS OF PERSONS COMPLICIT IN GENOCIDE, IN WAR CRIMES AND IN CRIMES AGAINST HUMANITY: CASES ARISING BEFORE THE INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND FOR RWANDA
There have been only a few opportunities since World War II for any international tribunals to develop the law concerning war crimes and crimes against humanity. The two principal tribunals that have developed that law are the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Although the conflicts in Yugoslavia and in Rwanda were not generally considered to be conflicts between states, the international community saw to it that the crimes that occurred during these "internal" conflicts would be prosecuted. Accordingly, in Prosecutor v. Tadic, the ICTY Appeals Chamber ruled that certain crimes arising in internal armed conflicts are crimes under international law, allowing for jurisdiction by the tribunal. (276) When ICTR was created, the rule announced in Tadic was made part of ICTR's charter. (277) Although neither tribunal has heard a case of an industrialist, financier or corporate official, their decisions on individual responsibility for assistance rendered to persons engaged in criminal activity are important analogies in the analysis of how corporate officials may become criminally liable for their business transactions.
A. Prosecutor v. Tadic
Dusko Tadic was a leading member of the Serb Democratic Party and a soldier in Serb paramilitary forces. (278) He was ultimately convicted of, among other things, participating in killings "committed during an armed conflict as part of widespread or systematic attack on a civilian population." (279) His case was one of the first cases decided by either of the ad hoc tribunals. As part of a wide-ranging judgment, the trial chamber in Tadic examined the "Parameters of Individual Responsibility" that may allow a person to be held criminally responsible for rendering assistance in the planning, preparation or execution of a crime against humanity. (280) The Trial Chamber turned to "the Nurnberg war crimes trials, which resulted in several convictions for complicitous conduct," and distilled the criteria those tribunals used to determine guilt. In what amounted to a restatement of post-World War II tribunal law, the Tadic trial chamber concluded that before an individual could be convicted, the prosecution must prove intent, (281) direct contribution to the commission of the crime, (282) and sufficient individual participation. (283)
With regard to intent, the Tadic Trial Chamber's review of the post-World War II cases revealed that intent can be shown when a person renders assistance to a person in committing a crime while knowing specifically that the crime will be committed. (284) These post-World War II cases also showed that knowledge can be presumed or inferred from certain circ*mstances, such as killings in a concentration camp where the accused is employed in any capacity due to the systematic and widespread nature of the killing, making such knowledge unavoidable. (285) The Tadic Trial Chamber also concluded that criminal liability is not dependent upon a prior agreement to render assistance in a crime; the person assisting need only know that his or her acts were done in furtherance of the shared criminal activity. (286)
The Tadic Trial Chamber also found in post-World War II cases a requirement for "a deliberate act if an accused is to be held criminally culpable[,] and this deliberate act must directly affect the commission of the crime itself." (287) Although physical presence without direct contribution to the crime is insufficient for criminal liability, direct contribution without physical presence during the commission of the crime, on the other hand, can allow for criminal liability. (288) The Trial Chamber in Tadic used the Zyklon B Case as an example of direct contribution without physical presence: the prosecutor had argued that because the suppliers "put the means of committing the crime of extermination in the hands of concentration camp officials," knowing "'that the gas was to be used for the purpose of killing human beings,'" the suppliers themselves were war criminals. (289) Since two of the Zyklon B suppliers had been found guilty after a court finding that the act of supplying the gas was done with the knowledge of its intended purpose, the trial chamber in Tadic reasoned that the military "court necessarily must have made the determination that without the supply of gas the exterminations would not have occurred in that manner, and therefore that the actions of the accused directly assisted in the commission of the illegal act of mass extermination." (290)
The Tadic Trial Chamber then turned to the tricky question of what extent of participation is required for criminal liability. A review of post-World War II cases revealed several examples of sufficient participation: (1) providing information that enables the commission of a crime is sufficient participation; (291) (2) preventing interference in a joint criminal enterprise is sufficient participation; (292) and (3) failure to intervene and prevent a crime when empowered to do so is sufficient participation. (293) The Trial Chamber then went on to announce its findings on the state of the law:
The Trial Chamber finds that aiding and abetting includes all acts of assistance by words or acts that lend encouragement or support, as long as the requisite intent is present. Under this theory, presence alone is not sufficient if it is ignorant or unwilling presence. However, if the presence can be shown or inferred ... to be knowing and to have a direct and substantial effect of the commission of the illegal act, then it is sufficient. ... However, actual physical presence when the crime is committed is not necessary; ... an accused can be considered to have participated in the commission of a crime ... if he is found to be "concerned with the killing." However, the acts of the accused must be direct and substantial. In sum, the accused will be found criminally culpable for any conduct where it is determined that he knowingly participated in the commission of an offence that violates international humanitarian law and his participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident. He will also be responsible for all that naturally results from the commission of the act in question. (294)
As an example of this reasoning, the trial chamber examined evidence that a Muslim prisoner, who had been severely beaten, was thrown into a room by Tadic, who stated, "You will remember, Sivac, that you cannot touch a Serb or say anything to a Serb." (295) Even though there was no direct evidence that Tadic had physically beat the man, his act of throwing the man and his verbal parting shot, which occurred after the beating, was found to directly and substantially assist the common purpose of the group of Serbs to beat this prisoner severely. (296)
Upon Tadic's appeal, the appeals chamber explained further, while distinguishing aiding and abetting from criminal liability arising from a joint criminal enterprise:
(i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal.
(ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre existence of such a plan. No plan or agreement is required: indeed, the principal may not even know about the accomplice's contribution.
(iii) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose.
(iv) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed), as stated above. (297)
In its explanation, the Appeals Chamber supported the Trial Chamber's conclusion that the prosecution must prove, in an aiding or abetting prosecution, that the accused's actions had a direct and substantial effect on the commission of the offense.
B. Prosecutor v. Akayesu
Jean-Paul Akayesu was convicted by the ICTR Trial Chamber of various crimes against humanity--murder, rape, extermination, torture and other inhumane acts--and of genocide. (298) The Akayesu judgment was an early judgment rendered by ICTR, and this decision--like Tadic--included a wide-ranging review of basic law of the tribunal. Although the trial chamber ultimately acquitted Akayesu of complicity in genocide because it found the prosecution had established the underlying crime of genocide (he could not be both the perpetrator and accomplice to the same offense), (299) the discussion in the ruling gave some guidance on how one can be found guilty for facilitating a crime. For example, the Akayesu judgment cited with approval one key determination of the Tadic judgment, that aiding and abetting requires intent, knowledge and a direct and substantial contribution to the commission of an offense. (300)
Although it is somewhat unclear since Akayesu actually ordered some attacks, (301) the trial chamber seemed to find that he was also complicit in genocide by not exercising his authority to stop the killings of Tutsis: "Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts." (302) This is similar to the criminal liability imposed in the Industrialist Cases upon corporate officers who, while having authority to intervene, fail to stop a crime being committed by the corporation.
Along the way, the Akayesu trial chamber did state its opinion on what constitutes the crime of complicity in genocide. The trial chamber first held that one could not be complicit in genocide unless in fact genocide did occur. (303) The trial chamber also concluded that an accused need not share the specific intent to commit genocide as long as "he knowingly aided or abetted or instigated one or more persons in the commission of genocide, while knowing that such a person or persons were committing genocide...." (304) In other words, an accomplice may not even wish the crime to occur, but he is still willing to provide the aid to the principal offender for another reason, such as profit. (305)
The tribunal also discussed the forms that the crime of complicity can take. It noted that "three forms of accomplice participation are recognized in most criminal Civil Law systems: complicity by instigation, complicity by aiding and abetting, and complicity by procuring means." (306) The tribunal saw little difference in common law systems, which punished "aiding and abetting" and "counseling and procuring." (307) The tribunal described these forms of complicity simply:
Complicity by aiding or abetting implies a positive action which excludes, in principle, complicity by failure to act or omission. Procuring means is a very common form of complicity. It covers those persons who procured weapons, instruments or any other means to be used in the commission of an offence, with the full knowledge that they would be used for such purposes. (308)
What seems to be clear is that "any other means" would include items that are directly useful in committing genocide, like weapons or like Zyklon B gas. What is far from certain is whether "any other means" includes items--like money--that are indirectly useful for committing genocide.
C. Further Development on the Nature of Intent Required to be Proven for Aiding and Abetting
Radoslav Brdjanin was tried before ICTY, charged with the crime of genocide based on joint criminal enterprise liability, specifically the "third category of joint criminal enterprise liability," which concerns "criminal liability of an accused for crimes which fall outside of an agreed upon criminal enterprise, but which crimes are nonetheless natural and foreseeable consequences of that agreed upon criminal enterprise." (309) The Trial Chamber determined that the specific intent required for a conviction of genocide could not be "reconciled with the mens rea required for a conviction pursuant to the third category of [joint criminal enterprise]," (310) which "requires that the Prosecution prove only awareness on the part of the accused that genocide was a foreseeable consequence of the commission of a separately agreed upon crime." (311)
The appeals chamber in Brdjanin reversed the trial chamber, agreeing that the prosecution need only prove "that accused entered into a joint criminal enterprise to commit a different crime with the awareness that the commission of that agreed-upon crime made it reasonably foreseeable to him that the crime charged would be committed by other members of the joint criminal enterprise, and it was committed." (312) The appeals chamber elaborated further:
For example, an accused who enters into a joint criminal enterprise to commit the crime of forcible transfer shares the intent of the direct perpetrators to commit that crime. However, if the Prosecution can establish that the direct perpetrator in fact committed a different crime, and that the accused was aware that the different crime was a natural and foreseeable consequence of the agreement to forcibly transfer, then the accused can be convicted of that different offence. Where that different crime is the crime of genocide, the Prosecution will be required to establish that it was reasonably foreseeable to the accused that an act specified in Article 4(2) would be committed and that it would be committed with genocidal intent. ... This is the approach that the Appeals Chamber has taken with respect to aiding and abetting the crime of persecution. An accused will be held criminally responsible as an aider and abettor of the crime of persecution where, the accused is aware of the criminal act, and that the criminal act was committed with discriminatory intent on the part of the principal perpetrator, and that with that knowledge the accused made a substantial contribution to the commission of that crime by the principal perpetrator. (313)
Judge Shahabuddeen wrote a concurring opinion to emphasize that the prosecution still needed to prove an accused's specific intent to commit another crime and to prove that the accused had full awareness that genocide was a foreseeable result of the other crime intended:
In Tadic, the Appeals Chamber did use the word "aware" but its judgment shows that it was speaking of more than awareness. It was referring to a case in which the accused, when committing the original crime, was able to "predict" that a further crime could be committed by his colleagues as the "natural and foreseeable consequence of the effecting of [the] common purpose" of the parties--and not the consequence of "negligence"--and that he nevertheless "willingly" took the "risk" of that further crime being committed. In effect, for the purposes of determining a no-case [motion for judgment of acquittal] submission..., the accused in this case knew that genocide could be committed; any uncertainty in his mind went to the question whether it would in fact be committed, not to acceptance by him of it (if and when it was committed) as something which he could "predict" as the "natural and foreseeable consequence" of the activities of the joint criminal enterprise to which he was a willing party. In that important sense and for the purposes of determining such a submission, he contributed to the commission of the genocide even though it did not form part of the joint criminal enterprise. Putting it another way, his intent to commit the original crime included the specific intent to commit genocide also /f and when genocide should be committed. (314)
Although the decision in Brdjanin explains the mens rea required for joint criminal enterprise well, it is not particularly instructive for aiding and abetting as there are key differences in the mens rea. As the Appeals Chamber explained in Prosecutor v. Vasiljevic:
Participation in a joint criminal enterprise is a form of "commission" under Article 7(1) of the Statute. The participant therein is liable as a co-perpetrator of the crime(s). Aiding and abetting the commission of a crime is usually considered to incur a lesser degree of individual criminal responsibility than committing a crime. In the context of a crime committed by several co-perpetrators in a joint criminal enterprise, the aider and abettor is always an accessory to these co-perpetrators, although the co-perpetrators may not even know of the aider and abettor's contribution. Differences exist in relation to the actus reus as well as to the mens rea requirements between both forms of individual criminal responsibility: (i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design. (ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite mens rea is intent to pursue a common purpose. (315)
The Appeals Chamber in Vasiljevic found that there was insufficient evidence that Vasiljevic shared an intent to commit genocide, (316) but the court concluded that he was nevertheless guilty of aiding and abetting murder. (317) The Appeals Chamber was faced with a rather clear-cut set of facts with which to find support that Vasiljevic criminally facilitated murder:
The Appeals Chamber has already found that the Appellant knew that the seven Muslim men were to be killed; that he walked armed with the group from the place where they had parked the cars to the Drina River; that he pointed his gun at the seven Muslim men; and that he stood behind the Muslim men with his gun together with the other three offenders shortly before the shooting started. The Appeals Chamber believes that the only reasonable inference available on the totality of evidence is that the Appellant knew that his acts would assist the commission of the murders. The Appeals Chamber finds that in preventing the men from escaping on the way to the river bank and during the shooting, the Appellant's actions had a "substantial effect upon the perpetration of the crime." (318)
Thus, this is an example of assistance that comprises "substantial effect" in an aiding and abetting case. Even if Vasiljevic played a supporting role, his containment of the victims was a direct contribution to the crime.
In Prosecutor v. Krstic, the Appeals Chamber again distinguished between joint criminal enterprise and aiding and abetting. Radislav Krstic was an officer in the Bosnian Serb Army, the VRS, (319) and he assumed command of the Drina Corps of the VRS in July 1995. (320) Krstic was sentenced to forty-six years' confinement by the ICTY Trial Chamber, which had convicted him of genocide, murder, persecution through murders, cruel and inhumane treatment, and other war crimes and crimes against humanity. (321) One of Krstic's convictions was based on the conclusion of the Trial Chamber that Krstic was part of a joint criminal enterprise to commit genocide. (322)
The Appeals Chamber had set aside some findings of the trial chamber that pointed to direct participation by Krstic in a joint criminal enterprise to commit genocide and to specific intent on his part to commit genocide. (323) The Appeals Chamber summed up the now changed case against him, noting that even without the direct participation, the "evidence can establish ... Krstic was aware of the intent to commit genocide on the part of some members of the VRS Main Staff, and with that knowledge, he did nothing to prevent the use of Drina Corps personnel and resources to facilitate those killings." (324) Therefore, the Appeals Chamber did not uphold Krstic's conviction for taking part in a joint criminal enterprise but instead found him guilty of aiding and abetting genocide. (325)
One final example of aiding and abetting comes from an ICTR case. Prosecutor v. Rutaganda, decided by the ICTR trial chamber in 1999, contains a classic example of aiding by providing the means or instrumentality to commit an offense. The evidence showed that Rutaganda thrice supplied guns for killing Tutsis. On the first occasion, he distributed both guns and machetes he had brought in his pick-up truck and noted that "there was a lot of dirt that needed to be cleaned up." (326) The trial chamber determined that Rutaganda aided the killing of and the causing of serious bodily harm to various Tutsis. (327)
V. COMPARISON OF THE LAW DEVELOPED BY POST-WORLD WAR II TRIBUNALS AND THE LAW OF THE AD HOC U.N. TRIBUNALS
There are a number of important legal principles that were established or reiterated in the post-World War II tribunals. A critical principle that was established was that civilians (including corporate officials) could be held individually responsible for war crimes and crimes against humanity. These tribunals also established a number of principles regarding individual responsibility, particularly as to business officials.
First, personal guilt was generally dependent upon personal knowledge. The tribunals refused to impute knowledge of criminal activity to all officials of a company. A person must have actual knowledge of another's crime to be held guilty for assisting that crime; having the facts with which to deduce that a crime is being or will be committed is not enough. For example, Hjalmer Schacht avoided criminal liability for Hitler's wars of aggression, even though he held a significant government post, because he wasn't privy to Hitler's plans. On the other hand, in certain concentration camps, knowledge of crimes was unavoidable for all who ran the camp, even the lowest-level guard because the abuses were widespread, open and notorious. Similarly, in the Zyklon B case, the tribunal held that a competent business official in a key leadership post will have knowledge of the activities under his direction.
The Zyklon B case also reveals a second important principle--that a business official cannot escape liability for selling a multi-use product if that official had personal knowledge of the criminal purpose for which that multi-use product was used. The other side of that principle is that no matter how much one assisted a criminal, one cannot be liable without knowledge if that assistance could have been used for non-criminal purposes. For example, Schacht's efforts were central to rearmament (he helped provide the instrumentality of the wars of aggression), but in pre-war Germany, arms were dual-use products--they could be used both for aggression and for national defense.
A third principle is that a corporation is not liable for merely operating in a criminal system it finds itself in. If a corporation has no freedom of decision about a government policy (i.e., they are penalized for not adhering to its mandates), and if they have taken no steps to expand on the criminal mandates of that policy, then the corporate officials may escape liability. The Farben case examined this idea in light of the crime of spoliation, determining that a company could not be convicted for apparently legal business transactions absent some positive knowledge that the other party to the transaction was concluding it against his will.
However, there are many instances of business officials going beyond mere participation in the system by taking advantage of and participating in ongoing crimes to commit crimes of their own. Awochi, for example, used the coercive power of Japanese occupation to force women into prosecution at his brothel. This individual responsibility also included acts that directly facilitated the criminal conduct of others. Similarly, Tesch and Weinbacher didn't kill the inmates at the concentration camps, but they knowingly made those crimes more "efficient" by supplying Zyklon B gas.
Because the current ad hoc tribunals, ICTY and ICTR, have not faced a corporate or business case, a comparison can only be made as to the general principles of individual responsibility that those tribunals have examined. The most important principle (at least for purposes of this paper) that both tribunals recognize is the requirement for direct and substantial assistance to sustain a conviction for aiding and abetting. There are other important points as well, such as the Tadic trial chamber's determination that a person can be held criminally liable for aiding and abetting by providing direct and substantial assistance after the crime has been committed. Like Tadic, who assisted a beating after the fact by throwing a prisoner back into his room and implying the prisoner's beating was punishment for talking to or touching a Serb, a corporate official could assist after the fact as well if a business transaction constituted direct and substantial assistance. The tribunals have also clarified the mens rea required for aiding and abetting; it is an intent to aid another while knowing that the aid will assist the other person in the commission of a crime or while intending that the crime itself be committed.
VI. THE LAW APPLICABLE TO THE INTERNATIONAL CRIMINAL COURT (ICC)
The Rome Statute of the International Criminal Court (328) is the extent of the law for the ICC since the ICC is still in its infancy and is without any court decisions to elaborate on the Rome Statute. Moreover, the law of the ICC is essentially static as no amendments may be made to the statute until seven years after its entry into force (July 1, 2002). (329) What the statute reveals is that the ICC is a permanent court with its own legal personality, and the jurisdiction of the ICC is complementary to domestic criminal jurisdiction. (330)
The ICC may exercise jurisdiction if a state party or the U.N. Security Council refers a case to it or if the ICC prosecutor initiates the case. (331) However, the ICC can only exercise jurisdiction over crimes committed in the territory of, or by a national of, one of the states parties to the Rome Statute, but those limitations do not apply to cases referred to the ICC by the Security Council. (332) The ICC also cannot try a case if a state that has domestic jurisdiction is exercising, or has exercised, that jurisdiction to investigate and to consider prosecuting the case. (333)
The ICC has jurisdiction over only four classes of crimes: genocide, war crimes, crimes against humanity and the crime of aggression. (334) Unlike previous international criminal tribunals, (335) the ICC does provide a mechanism for the court to determine appropriate levels of reparations and to order persons convicted by the court to pay reparations to victims as a means of restitution, compensation or rehabilitation. (336)
The ICC operates under an agreed-upon set of general principles of criminal law that are generally the same as used by ICTY and ICTR. One of these is nullum crimen sine lege, which directs that no one may be held criminally responsible under the Rome Statute "unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court." (337) Further, for purposes of the ICC, it is criminal conduct for a person, "[f]or the purpose of facilitating the commission of [a crime within the jurisdiction of the Rome Statute], aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission." (338) As to the mens rea required to commit an offense, one must have both knowledge and intent. (339) One has knowledge when one is aware "that a circ*mstance exists or a consequence will occur in the ordinary course of events." (340) For the offense of aiding, abetting or assisting another crime, intent is present when the "person means to cause that consequence or is aware that it will occur in the ordinary course of events." (341) Thus, in some circ*mstances knowledge subsumes intent--where one assists while aware that criminal conduct will occur in the ordinary course of events. This is similar to ICTY and ICTR decisions, with the caveat that ICTY and ICTR clarify the need for direct and substantial assistance.
Professor William A. Schabas has pointed out that the statute creating the ICC (the "Rome Statute") does not specifically mention any degree of aiding or abetting required for conviction like the requirement in Tadic that participation must be direct and substantial. (342) Schabas also points out the absence of such a requirement may actually imply that there is no such requirement: "The absence of words like "substantially" in the Statute, and the failure to follow the International Law Commission draft, may imply that the Diplomatic Conference meant to reject the higher threshold of the recent case law of the Hague." (343) The counter argument to Schabas' point is that neither the ICTR statute (in Article 6) nor the ICTY statute (in Article 7) includes language requiring direct and substantial assistance, yet those tribunals adopted it nonetheless.
VII. OTHER MEANS OF DETERRING COMMERCE WITH PERPETRATORS OF WAR CRIMES AND CRIMES AGAINST HUMANITY
A. Domestic Enforcement Mechanisms
1. Civil Liability Schemes
Criminal prosecution is certainly not the only way to try to deter corporations from facilitating violations of international humanitarian law. Victims of human rights violations may also try to hold corporations civilly accountable for their facilitation of crimes. What is beneficial about this method of deterrence is that the victims are highly motivated to hold corporations accountable. As Professor Craig Forcese points out, criminal prosecutions are dependent upon the impetus of a government--or a collection of governments--while civil actions against a corporation can provide a personal, individual remedy for victims of crimes in which that corporation may be complicit. (344) It is very beneficial in certain circ*mstances for victims to be able to vindicate their rights without waiting on a politically unwilling or unable government, but in certain cases, like genocide, civil actions cannot speak for every victim.
In the United States, the Alien Tort Claims Act (ATCA) (345) provides U.S. district courts with original jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or by a treaty of the United States." (346) In Filartiga v. Pena-Irala, (347) the U.S. Court of Appeals for the Second Circuit held that ATCA opens "the federal courts for adjudication of the rights already recognized by international law," (348) at least as to "well-established, universally recognized norms of international law. (349) Two of the more recent ATCA cases that followed the Second Circuit's decision in Filartiga are Sinaltrainal v. Coca-Cola (350) and Doe I v. Unocal (351) Both cases allege that these corporations' overseas operations benefited from human rights abuses committed in Columbia (as to Coca-Cola) and in Burma (as to Unocal). In Doe I v. Unocal, the district court held, in granting Unocal's motion for summary judgment, that Unocal could only be held liable for active participation of the human rights abuses in its host country, not for its mere knowledge and acceptance of the benefits of forced labor. (352) The Sinaltrainal court followed this reasoning in granting summary judgment for Coca-Cola as well. (353) Thus, these courts reflect a hesitancy similar to that of the tribunals following World War II, a hesitancy to hold a corporation or its officials liable unless they took special advantage of, or increase, the abuses in order to increase profits. Yet, the civil liability mechanism is nonetheless there--in a limited fashion--to deter the more egregious cases where corporations are actively engaged in human rights abuses.
The limits of ATCA were further explained by the U.S. Supreme Court in Sosa v. Alvarez-Machain. (354) The Supreme Court held "that at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law." (355) Similarly, in the Supreme Court's view, "courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized." (356) The Court did hold out the possibility that federal courts can discern newly developed norms of international law, the violation of which may be the basis for a suit under ATCA, (357) but noted that it would be best for Congress to provide guidance on jurisdiction and that Congress could, if it chooses, to limit further bases for suit at any time. (358)
However, whatever remains of the promise of Filartiga and its progeny, "ATCA plaintiffs face a long haul from filing a claim to actually collecting on a judgment. (359) Even if ATCA plaintiffs successfully complete that long haul, they may never see any money as experience has shown that collection is difficult. (360) However, this failing may be irrelevant to the plaintiff who seeks to hold another responsible for human rights violations. (361)
The difficulty in civil suits litigated in U.S. courts is not unique. Most private claims--worldwide--have failed, with the grounds for failure falling into three primary categories: "individual claims were precluded by a peace agreement; sovereign immunity; or the non-self-executing nature of the right to reparations under international law." (362) Professor Beth Stevens argues that, while there has been some success in the United States in lawsuits alleging human rights abuses abroad, only international regulation and enforcement can regulate corporations that are themselves international in character. (363)
2. Regulatory and Statutory Prohibitions in the United States
Although there may be a number of schemes elsewhere in the world that may be worthy of study, the United States' efforts at using its domestic law to combat human rights violations may be the most important. Because the United States is a world economic and military superpower, (364) its efforts are most especially worthy of study because those efforts have the potential for the greatest world impact. Although the latter-day efforts of the United States are more comprehensive, the United States has for a long time used trade bans and other economic tools to advance foreign policy goals. For example, in United States v. Curtiss-Wright Corporation, the United States Supreme Court upheld a corporation's conviction for trading with Bolivia, one of the belligerents in the war in the Chaco region of South America; this trading was made criminal by the President using power delegated by Congress to impose such a ban on trade if he believed the imposition of the ban would "contribute to the reestablishment of peace." (365) This sort of Presidential power has since become more structured and is now a standing power under International Emergency Economic Powers Act.
a. International Emergency Economic Powers Act (IEEPA) (366)
Under IEEPA, Congress provided the President with the authority to impose certain economic sanctions (367) when the President declares a national emergency due to "any unusual and extraordinary [foreign] threat ... to the national security, foreign policy, or economy of the United States." (368) The sanctions the President may impose include the regulation or ban of "transactions in foreign exchange," "transfers of credit," and "the importing or exporting of currency or securities." (369) The President may further impose restrictions on U.S. property "in which any foreign country or a national thereof has any interest." (370) Anyone violating restrictions imposed pursuant to IEEPA may be fined up to $10,000, and anyone who willfully violates IEEPA restrictions is subject to criminal prosecution and a maximum of ten years' imprisonment and a fine of not more than $50,000. (371) Significantly, IEEPA specifies that corporate officers, directors and agents who knowingly participate in an IEEPA violation may be punished for the acts of their corporations. (372)
Although various Presidents have used IEEPA in the past to counter significant security threats such as terrorism and nuclear proliferation, (373) IEEPA has been used to attempt to influence certain human rights violations to the extent that they affect the foreign policy of the United States (as IEEPA requires). Past efforts include the blocking of property controlled by persons "undermin[ing] Zimbabwe's democratic processes or institutions," (374) blocking the property of the Burmese government and prohibiting certain commercial transactions with Burma, (375) and blocking Sudanese government property and prohibiting most transactions with Sudan. (376)
In certain cases, U.S. efforts under IEEPA are bolstered by additional Congressional legislation. For example, Congress passed the Sudan Peace Act in 2002, which mandated Presidential action if the Sudanese was not moving towards a peaceful resolution to the civil war. (377) The Sudan Peace Act included a Congressional finding that the government of Sudan had committed genocide and a finding that the Sudan government would use sales of oil to finance continued military action to regain control of Sudanese territory, the same military action that led to genocide. (378) Congress also passed the Burmese Freedom and Democracy Act of 2003, which recounted the ethnic cleansing and other human rights abuses of the Burmese military government and banned all trade that would support the military regime in Burma. (379) Thus, in these circ*mstances, Congress allowed or created criminal sanctions for what would otherwise be ordinary corporate trade.
This redoubling of efforts also occurred with respect of the former Yugoslavia in 1992 and 1993, as the bloodshed occurred in the former Yugoslavia, the President exercised his powers under IEEPA to impose sanctions on Yugoslavia and on Serbia and Montenegro individually. (380) Then, Congress passed an act imposing further sanctions against Serbia and Montenegro in November 1993. (381)
IEEPA has also been used to combat the trade in "blood diamonds" (or "conflict diamonds") from Africa. In July 2000, the U.N. Security Council called for a ban on uncertified rough diamonds, asking states parties to take "necessary measures to prohibit the direct or indirect import of all rough diamonds from Sierra Leone to their territory." (382) The resolution of the Security Council also called for a scheme by which non-contraband diamonds certified by the government of Sierra Leone would be exempt from the ban. (383) The Kimberley Process Certification Scheme was thus created to stop the trade in conflict diamonds and to ensure consumers that the diamonds that they purchase have not contributed to violent conflict and human rights abuses in their countries of origin. (384) By itself, it is a "voluntary system of industry self-regulation." (385) However non-binding it may be, the Kimberley Process Certification Scheme was welcomed and strongly supported by the U.N. Security Council, which encouraged all member states to participate in the process. (386)
In January 2001, the President banned trade in rough diamonds from Sierra Leone, citing concerns that trade in rough diamonds was "fueling the conflict in Sierra Leone." (387) The ban did not apply to rough diamonds cleared by the United Nations-sanctioned Kimberley Process Certification Scheme. (388) The President then expanded the ban to rough diamonds from Liberia, citing the Liberian government's complicity in the illegal diamond trade from Sierra Leone. (389) Similar to earlier responses to human rights crises abroad, again Congress bolstered the effects of IEEPA, this time by passing the Clean Diamond Trade Act in 2003. (390)
b. Clean Diamond Trade Act
Under the Clean Diamond Trade Act, Congress instructed the President to ban "the importation into, or exportation from, the United States of any rough diamond, from whatever source, that has not been controlled through the Kimberley Process Certification Scheme," while allowing the President to waive the ban if he determines a waiver is in U.S. national interests. (391) When Congress passed the Clean Diamond Trade Act, it made a number of findings. Among them was that
Funds derived from the sale of rough diamonds are being used by rebels and state actors to finance military activities, overthrow legitimate governments, subvert international efforts to promote peace and stability, and commit horrifying atrocities against unarmed civilians. During the past decade, more than 6,500,000 people from Sierra Leone, Angola, and the Democratic Republic of the Congo have been driven from their homes by wars waged in large part for control of diamond mining areas. (392)
In July 2003, President George W. Bush signed an executive order that implemented the Clean Diamond Trade Act and strengthened previous presidential bans (under IEEPA) on rough diamonds from Sierra Leone and Liberia. (393) The President, in the July 2003 executive order, banned trade, attempted trade, and conspiracy to trade in rough diamonds that had not been cleared through the Kimberley Process Certification Scheme. (394)
3. Evaluating the Success of Domestic Enforcement Schemes
Because international humanitarian law is seen as a part of public international law, which applies to states rather than individuals, individuals often cannot take advantage of international law as private litigants in domestic courts. (395) As a whole, states have eschewed applying international law in domestic courts, even if there is some promise in U.S. and Dutch courts. (396) Further, there is uneven enforcement among states and perhaps no enforcement in failed states. (397) Professor Stephens argues that "[m]ultinational corporations have long outgrown the legal structures that govern them, reaching a level of transnationality and economic power that exceeds domestic law's ability to impose basic human rights norms." (398) She notes that "host state enforcement has seemingly clear advantages, because it permits local control over local events," but that those advantages may be uneven or inconsistent, even in the United States, and that they disappear "if the host government is complicit in the human rights abuses." (399) Thus, with the lack of fully effective domestic schemes, it is important to consider what international schemes can help counter violations of international humanitarian law.
B. International Enforcement Mechanisms
Certain international fora, such as claims commissions, have been successful in providing compensation for violations of international humanitarian law. (400) However, because these fora are usually created by treaty and don't explicitly concern themselves with violations of international humanitarian law, (401) they fail to show widespread promise as they are haphazard at righting wrongs and are generally only in existence due to the impetus of the states involved. Although there is some criticism of international mechanisms, (402) there are some advantages. The ad hoc tribunals for Rwanda and the former Yugoslavia, for example, have the support of the U.N. Security Council and states parties in the investigation and prosecution of cases. (403) Because of this political and financial support, they have the potential for great success, at least within their respective bailiwicks.
1. The Special Court for Sierra Leone
The Special Court for Sierra Leone was created in a process that differed from that of ICTY and ICTR. The U.N. Security Council requested that the U.N. Secretary-General negotiate with the government of Sierra Leone to create a court to prosecute crimes against humanity, war crimes, "other serious violations of international law," and violations of "relevant Sierra Leonean law." (404)
This showed a marked divergence from the approach taken in establishing the ICTY and ICTR, where the governments of the territorial States were not involved in the tribunals' creation, and where the Statutes were drafted by the UN Secretariat and adopted by the Security Council. The manner of the Special Court's creation is directly related to its funding. There was no political support for setting up another, very expensive, international criminal tribunal, and the Court could be established only with the full support and cooperation of Sierra Leone, which, in any event, wanted a mixed tribunal with national and international components. It is thus a sui generis Special Court, not so much because this was necessarily the best or most effective approach to take in the particular circ*mstances of Sierra Leone, but because it was the only politically acceptable option. (405)
Even if the Special Court for Sierra Leone is not the most effective approach, it is a circ*mstance where the international community may be appreciative for having something rather than nothing. The bigger concern may be in deterring future conduct.
2. The Role of the U.N. Security Council
The only international body that has the sort of authority needed to put the world on notice of a group's or government's criminality is the U.N. Security Council. Even if the world is not wholeheartedly behind its every move, it is a deliberative body that no one party can control. With its five permanent veto-wielding members, consensus is difficult in some respects, but that has its advantages and disadvantages. It may be unable at times to act to stop crimes against humanity, and it may seem to move slow and deliberately. But that slowness will also avoid wrongfully labeling a state or group as criminal.
There is criticism of the Security Council concerning its limited representation and its occasional ineffectiveness. As to effectiveness, it appears better at some tasks than others and is not usually effective when involved in places where conditions have deteriorated so much that U.N. peacekeepers are given early authority to use force. (406) Concerning the politics of the Security Council, one commentator observed, "I am concerned about the selectivity involved in a system where the establishment of a tribunal for a given conflict situation depends on whether consensus to apply chapter VII of the UN Charter can be obtained." (407) Yet, the Security Council does have the authority to intervene, even in internal armed conflicts, to prevent further humanitarian crises, (408) and thus it has power to effect change even if it has trouble at times wielding it.
With Rwanda and the former Yugoslavia, the collective security system was unable to effectively stop many atrocities. This may be in part due to the difficulty of getting the Security Council involved in an enforcement action under Chapter VII or with providing a peacekeeping force substantial enough to prevent mass atrocities. (409) With another lesser form of action at its disposal--making it a crime to trade in certain items or with certain groups or countries--the Security Council may not be as paralyzed when faced with ongoing mass atrocities. (410) Consensus may actually be easier to come by since a determination that trade is facilitating crime does not require funds or troops.
Because the Security Council can create ad hoe courts and because it can refer cases to the ICC, it stands in an unequaled position from which to effect change. Arguably, the purchase of blood diamonds cannot be made a basis for ICC prosecution until the Rome Statute is amended, which is something that the statute itself doesn't allow for the first seven years. On the one hand, aiding and abetting is already a proper basis for prosecution, and the determination of the Security Council would merely put corporations on notice of someone else's criminality. Thus, instead of referring a particular case to the ICC under Article 13 of the Rome Statute, the Security Council would give notice of a class of cases it might refer to the ICC or to an ad hoc tribunal.
But on the other hand, one can argue that aiding or abetting by purchasing is not a crime, even with the notice of criminality given by the Security Council. If so, once the initial seven-year period has passed, the Rome Statute could be amended to allow prosecutions for facilitation of crimes when the Security Council has determined that trading with a person or entity provides them the means to commit crimes. Such a change to the Rome Statute would only affect the states parties to that statute, however.
Yet, it is nonetheless possible that the U.N. Security Council could effect worldwide change. Professor Kenneth Gallant argues that the United Nations, acting through its Security Council, has the authority to prescribe international criminal law. (411) The Security Council, he argues, has done so when it created the Rwandan and Yugoslav tribunals and set out the crimes over which they have jurisdiction. (412) The basis for the Security Council's power in this regard comes from its duty to achieve international peace and security under Chapter VII, a power that is, however, limited by the need to "choose substantive international criminal law from a source with international law legitimacy." (413)
Professor Gallant sees further power to prescribe in the Rome Statute since "the referral scheme of the ICC Statute regularizes the exercise of the Security Council's jurisdiction to prescribe that a certain court shall have jurisdiction to adjudicate cases arising from a given situation." (414) He also argues that the ICC has prescriptive authority, at least as limited to the states parties to the Rome Statute, not to define new crimes but to elaborate on the crimes set out by the states parties. (415) Professor Gallant argues that his assertions arise "from traditional notions of jurisdiction in international law" because these international organizations were created under traditional sources of international law--treaties and customary--created agreement or by practice of the various states, states that also connect "the prescribing authority and those individuals for whom acts are proscribed." (416)
Professor Gallant also notes that the Security Council has since "burst the bonds it appeared to impose on itself in creating the ad hoc tribunals." (417) Whereas those tribunals were created to adjudicate cases based on existing international law, the Security Council has since mandated that states ensure that their domestic law criminally punishes terrorism and willful funding of terrorism. Even if the Security Council did not require states to punish terrorism in a uniform manner, "the Security Council acted as though it does have legislative authority to create criminal law, if the creation of that law would lead to restoration of international peace and security." (418) Professor Lois Felding has similarly concluded that "not only are Security Council decisions binding as to the current meaning of 'threats to peace, breaches of peace, and acts of aggression,' but they also affect how to determine certain matters within the domestic jurisdiction of the state. (419) The mandate on states to ban terrorism and funding of terrorism is but one example. The Security Council's decision "that all States shall take the necessary measures to prohibit the direct or indirect import of all rough diamonds from Sierra Leone to their territory" is another. (420)
C. International and Domestic Enforcement Mechanisms Working Together
Given the limitations of both domestic and international enforcement mechanisms, it certainly makes sense to use both in a complementary fashion. Neither is fully effective, and both can help deter facilitation of crimes in their own way. Yet, international efforts are widespread and have more potential for being effective. International criminal prosecution is just one method to deter potential corporate facilitation of crimes. How effective is it?
VIII. THE KNOWLEDGE REQUIREMENT AND THE NEED FOR NOTICE
In order for any law to have a deterrent effect, the persons at whom it is aimed must know its general proscriptions. Corporate officials will not stop doing what they have previously viewed as legitimate business transactions unless they know the transactions are prohibited. They may believe it is the job of the political process to determine what acts are criminal and who they cannot trade with. In other words, they may ask, "Who are we to judge? After all, isn't one person's terrorist another person's freedom fighter?" Because all persons, natural or corporate, rely on the political process to make the determination of who is "bad", criminal prosecution should rest only on clearly-defined prohibitions. (421)
Examples of laws making certain types of ordinary transactions illegal can be found in the United States. As Professor Steven Ratner has pointed out, there are laws such as the U.S. Racketeer Influenced and Corrupt Organizations (RICO) Act that criminalize financing of criminal enterprises. (422) There are also other U.S. laws regulating monetary transactions focusing on specific types of money transactions. (423) However, those are specific statutory provisions (derived from the political process) rather than general principles of criminal law.
Professor Robert Weisberg has explained that the drafters of the Model Penal Code rejected a mens rea for complicity that seems much like the ICTY and ICTR formulations: one could be found complicit if one substantially facilitated a crime, knowing that another person was committing or would be committing that crime. (424) Instead, the Model Penal Code requires that a person have "the purpose or promoting or facilitating the commission of the offense." (425) One of the reasons given by the drafters was that the reach of the law could reach unintended actors, such as "lessors of property or vendors of multi-purpose goods." (426) Weisberg cites People v. Beeman, a 1984 California Supreme Court case that required that an aider or abettor act with the intent to facilitate or encourage the commission of the crime, as an example of a case that follows the Model Penal Code approach. (427) But Weisberg argues that the Model Penal Code formulation has "not kept up with ... the most notable ... developments concerning complicity law." (428) For an example of a different approach, he cites New York statutes on criminal facilitation, which criminalize providing "means or opportunity for the commission" of a crime when one "believ[es] it probable that he is rendering aid. .. to a person who intends to commit a crime." (429) Yet, even that statute will not allow a conviction if the state relies on the actual perpetrator of the offense for proof absent corroboration "by such other evidence as tends to connect the defendant with such facilitation." (430)
Professor Schabas notes that "knowledge that the person or persons being assisted by the accomplice are actually committing international crimes is a sine qua non for criminal liability" and that knowledge may be particularly hard to prove in a domestic criminal court because the criminal probably is not committing crimes in an open, notorious or widespread fashion. (431) For Schabas, however, this difficulty should not present itself as often in prosecutions under international humanitarian law because "establishing knowledge of the end use should generally be less difficult because of the scale and nature of the assistance."
For Schabas, notice can be provided by "intense publicity about war crimes and other atrocities," whether by the media, by organs of the United Nations or by various international non-governmental organizations (NGOs). (432) Professor Ratner makes a similar point with regard to blood diamonds: "The notoriety of the RUF's [Revolutionary United Front's] atrocities--especially amputations of the limbs of innocent civilians--suggests, as a prima facie matter, that the diamond companies that knew they were trading with the RUF also knew of their abuses." (433) He goes on to comment on the potential for criminal liability for diamond purchases: "As to whether purchasing of diamonds constitutes material assistance to the group rising to the level of aiding and abetting, one can lean in favor of a positive answer as it seems that the RUF depended heavily upon the diamonds as a source of income." (434)
The problem with this solution is that the media is often wrong (435) or can be played for effect by one political side or another. Even the most serious assertions by top leaders in a government can be wrong. (436) Beyond that, there is also the problem of the slippery slope. Some may believe the Israeli government--due to their treatment of the Palestinians--is akin to the RUF. One can easily imagine the global defense contractors that would be seen then as criminal facilitators potentially open to prosecution. This proposal begs many questions. What level of notoriety is sufficient? How heavily must a criminal depend upon income supplied by the facilitator for the facilitator to be criminally liable? More importantly, who makes these determinations? Hopefully they are not made by a court post hoc. NGOs are not seen as authoritative either not only due to their lack of power (of the official sort) but also because they are perceived as having an agenda. The one NGO that has considerable status, influence, and the "right of initiative" to investigate human rights abuses is the International Committee of the Red Cross (ICRC). (437) Yet, even the ICRC does not speak for the international community or for states in an area where traditional notions of sovereignty come into play.
IX. POTENTIAL FOR POSITIVE IMPACT: CAN THE THREAT OF CRIMINAL PROSECUTIONS OF CORPORATE OFFICIALS CURTAIL VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW?
Preventing corporate facilitation of human rights abuses and crimes not only is a morally worthy cause but also is a matter of need. As Professor Ratner points out, "Corporations are powerful global actors that some states lack the resources or will to control." (438) Thus, where corporations do business with persons committing serious international crimes, the threat of prosecution can be another arrow in the quiver of deterrence. Yet, that deterrence may not be effective in every situation.
During the Rwandan genocide in 1994, at the very least hundreds of thousands of people were killed, mainly ethnic Tutsis at the hands of the Hutu government. (439) The genocide began when the Rwandan president's plane was shot down and core members of his "pseudo-party" began a countercoup that included the launch of "a planned, coordinated, directed, controlled attack" to commit genocide. (440) Eventually larger segments of the Hutu population joined in the genocide, leading outside observers to seek to understand why the population participated. (441) Theories as to why genocide occurred in Rwanda generally blame poverty, competition for scarce land, and a successful propaganda campaign by the leaders of the genocide that preached fear of the rebel movement and that sent the message, "kill or be killed." (442) In light of such a situation, where financing seemed to have very little impact on a genocide "horrific even by the standards of a century repeatedly marred by mass political and ethnic slaughters," (443) deterring corporate officials may have made absolutely no difference in outcomes.
The case of Rwanda does reveal another important characteristic of humanitarian crises--the hesitance of the international community to intervene militarily. During the Rwandan crisis, there was an apparent desire to avoid calls to military action by not publicly concluding that genocide was in progress:
[L]egal experts in the U.S. government were asked, in the words of a former State Department lawyer, "to perform legal gymnastics to avoid calling this genocide." And as Rwandan Hutus slaughtered hundreds of thousands of Tutsis, the Clinton administration instructed its spokespeople not to describe what was happening as genocide lest this "inflame public calls for action," according to the New York Times. Instead, the State Department and National Security Council reportedly drafted guidelines instructing government spokespeople to say that "acts of genocide may have occurred" in Rwanda. (444)
Thus, prosecuting corporate officials will not save the world or substantially aid in preventing certain episodes of widespread international crimes. If world leaders want to avoid labeling a humanitarian crisis as certain genocide to avoid calls for military action, they may carry over into a decision whether or not to identify areas of corporate facilitation. If the genocide is still developing, identifying the facilitation is one of many measures short of military intervention that the U.N. Security Council may use. Yet, if genocide can only be stopped by a military intervention the Security Council is unwilling politically to authorize, the members may want to once again avoid using the term "genocide" in any way, including the identification of corporate facilitation.
However, in situations such as those involving blood diamonds or other natural resources at the hands of serious criminals, cutting off the flow of funds and materiel can have a significant impact. The U.N. Security Council has indeed tried to make that impact by deciding that all states should ban trade in noncertified rough diamonds. It is that kind of high-profile act that can be used to effectively change the outlook of corporate officials. Corporate officials can then see that what may seem like an ordinary, amoral, and non-criminal business transaction is actually a method by which criminals obtain the means to commit further atrocities.
Absent prohibitions on its use, money is perfectly fungible, and unlike Zyklon B, it has many, many uses. Money that a warlord or criminal receives could theoretically go to building a school as easily as to weapons and killing. Does a corporation's profit motive necessarily displace the intent to commit a crime against humanity? No, a businessperson may intend to commit a crime or join in a conspiracy to commit a crime in order to make the desired profit. (445) That case is an easy call; that person can and should be prosecuted. The harder case is the businessperson who is deliberately blind to the impact of his or her dealings. It is true that domestic enforcement mechanisms can also prevent a corporate official from avoiding the unpleasant knowledge that corporate money or multipurpose goods are regularly converted into the means by which another commits genocide, war crimes or crimes against humanity. But, only international mechanisms can truly have the reach to have an adverse effect on the transnational criminals of the world.
X. CONCLUSION
Due to the problem of "cascading complicity" inherent in business transactions and due to the problems inherent in proving knowledge on the part of a corporate official whose business transactions have benefited a criminal, the U.N. Security Council should put corporate officials on notice that certain persons or governments are presumed to be committing war crimes and crimes against humanity and that any transactions with them will constitute a criminal violation of international humanitarian law. This alerting of business entities is simply a way to let these entities know that the funds or multipurpose goods they may supply will be transformed into the means or instrumentalities for others to commit crimes. This limited form of prescriptive authority is clearly within the powers of the Security Council. Even if alerting corporate officials to behavior that will be considered criminal complicity cannot by itself prevent genocide and other serious international crimes, such a notice scheme can held deter those who may have otherwise assisted and allow for easier post hoc prosecution.
At the end of the day, Mr. Ocampo's statement that diamond buyers can be prosecuted is correct, albeit in a limited fashion. Buyers of rough diamonds could now be prosecuted in U.S. courts under the Clean Diamond Trade Act, and they could be prosecuted in other states that have similar domestic laws. As to Mr. Ocampo's ICC, assuming the prerequisites to jurisdiction and admissibility are satisfied, the buyers could be prosecuted if part of a conspiracy or joint criminal enterprise if they intended the genocide so that they could receive the diamonds at a lower price. However, the international prosecution of the "mere" diamond buyer is not allowed; such a prosecution would violate the principle of nullum crimen sine lege, a core principal in all international tribunals and one of the principles set out in the Rome Statute. (446) To get there, the U.N. Security Council must first decide that rough diamond purchases represent a de facto facilitation of the crimes committed by the sellers to obtain them. It remains to be seen whether the Security Council will be willing to take that additional step to contain the financing of persons committing genocide in Africa.
(1) G.M. GILBERT, NUREMBERG DIARY 430 (1947). Before his acquittal, Schacht "was being interrogated for information on the German industrialists to be indicted in the next [war crimes] trial," and made this comment to Dr. Gilbert afterwards. Id. Dr. Gilbert had incredible access to Schacht and the other major war crimes defendants in his role as the prison psychologist in the Nuremberg detention facility. Id. at 3.
(2) James Podgers, Corporations in Line of Fire, A.B.A.J., Jan. 2004, at 13, 13. The article reported that Mr. Ocampo suggested that "[i]f, for instance, companies that are engaged in trade of natural resources from the Congo feed money into rebel forces or the government that allows them to continue the fighting, then it is possible that officials of those companies be prosecuted." Id.
(3) James F. Blackstock, 1CC Prosecutor Goes Too Far, A.B.A.J., Mar. 2004, at 10, 10 (letter to the editor).
(4) BBC News, Firms Face "Blood Diamond" Probe (Sept. 23, 2003), available at http://news.bbc.co.uk/go/pr/-/1/hi/business/3133108.stm.
(5) These four types of crimes are ones that are generally considered proper subjects of international criminal tribunals. See, e.g., the Rome Statute of the International Criminal Court, July 17, 1998, art. 5, U.N. Doc. A/CONF.1839/9. The laws captured by the terms, "law of war" and "law of armed conflict," the violations of which are considered war crimes, are often considered to fall within the rubric of "international humanitarian law." See, e.g., Theodor Meron, The Humanization of Humanitarian Law, 94 AM. J. INTL. L. 239, 239 (2000); Louise Doswald-Beck and Sylvain Vite, International Humanitarian Law and Human Rights Law, INT'L REV. OF THE RED CROSS, Apr. 1993, at 94, 94. Crimes against humanity, while potentially occurring during an armed conflict, need no nexus with armed conflict. Id. at 253, 263-64. Although genocide is an international crime that has special significance, it nonetheless falls within the rubric of a crime against humanity. See, e.g., Ronald C. Slye, Apartheid as a Crime against Humanity: A Submission to the South African Truth and Reconciliation Commission, 20 MICH. J. INT'L L. 267, 296-97 (1999). The title to this article thus is intended to include genocide as subject matter as well.
While the four crimes listed are the ones that are subject to adjudication by tribunals, they are certainly not the only international crimes. There are other universal crimes, like piracy, that ordinarily have no connection to armed conflict. One manageable--but still not fully satisfying-term that has been used to describe these four types of crimes is "core crimes." See John F. Murphy, Civil Liability for the Commission of International Crimes as an Alternative to Criminal Prosecution, 12 HARV. HUM. RTS. J. 1 (1999). For the sake of simplicity, terms like "core international crimes," "serious international crimes" and "tribunal crimes" will be used throughout this article.
(6) Professor Beth Stephens has explained the consequences of the profit motive:
Profit-maximization, if not the only goal of all business activity, is certainly central to the endeavor. And the pursuit of profit is, by definition, an amoral goal--not necessarily immoral, but rather morally neutral. An individual or business will achieve the highest level of profit by weighing all decisions according to a self-serving economic scale. Large corporations magnify the consequences of the amoral profit motive. Multiple layers of control and ownership insulate individuals from a sense of responsibility for corporate actions. The enormous power of multinational corporations enables them to inflict greater harms, while their economic and political clout renders them difficult to regulate.
Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights, 20 BERKELEY J. INTL. L. 45, 46 (2002).
(7) See George Wald, Corporate Responsibility for War Crimes, 15 N.Y. REV. OF BOOKS, July 2, 1970, at 4 (suggesting that Dow Chemical Corporation should be prosecuted for supplying napalm to U.S. forces fighting in the Vietnam conflict).
(8) William A. Schabas, Enforcing International Humanitarian Law: Catching the Accomplices, INT'L REV. OF THE RED CROSS, June 2001, at 439, 451.
(9) In this article at least, there is no distinction between the terms "corporations" and "businesses" when discussing officials of those organizations.
(l0) This is the German spelling for the name of this German city, but it has also been spelled "Nuernberg" and "Nuremberg" in post-World War II legal documents. A similar change in spelling can be seen in Hermann Goring's last name.
(11) The International Military Tribunal presided over only one, albeit lengthy, proceeding: the case of the United States et al. v. Goring et al. Afterwards, the prosecution of war criminals was conducted under Control Council Law No. 10. See TELFORD TAYLOR, FINAL REPORT TO THE SECRETARY OF THE ARMY ON THE NUERNBERG WAR CRIMES TRIALS UNDER CONTROL COUNCIL LAW No. 10 at 250. The Control Council was comprised of the commanders-in-chief of the four powers occupying Germany--the United States, the U.S.S.R., the United Kingdom and France. See Statement on Control of Machinery in Germany, June 5, 1945, Instruments of the Initial Occupation and Control of Germany, U.S. DEPT. OF STATE, BULLETIN, June 10, 1945, at 1054.
(12) See, e.g., SHELDON GLUECK, WAR CRIMINALS: THEIR PROSECUTION & PUNISHMENT 19-36 (1944); M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11, 20 (1997).
(13) ROBERT K. WOETZEL, THE NUREMBERG TRIALS IN INTERNATIONAL LAW 35-36 (1960).
(14) Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, annex, 59 Stat. 1544, 82 U.N.T.S. 279. The charter can also be found at 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 10 (1947).
(15) Id.
(16) Id., 82 U.N.T.S. at 280 n.1.
(17) Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal G.A. Res. 95(I), U.N. GAOR, 1st Sess., 2d part, at 188, U.N. Doc. A/236 (1946).
(18) The formal, lengthy name of this tribunal is the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/25704, annex (1993). The opinions of this tribunal may be accessed at http://www.un.org/icty/cases/jugemindex-e.htm.
(19) Prosecutor v. Tadic, Opinion and Judgment, Case No. IT-94-1-T, May 7, 1997, para. 618 (citing ANTONIO CASSESE, VIOLENCE AND LAW IN THE MODERN AGE 109 (1988)). Under Article 6(c) of the Nurnberg Charter, crimes against humanity were defined as
murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecution on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, annex, art. 6(c), 59 Stat. 1544, 82 U.N.T.S. 279. This category allowed prosecution for acts committed against stateless victims and victims who were nationals of the Axis powers (German Jews, for example) that might not have otherwise been possible under the laws of war. Tadic, Opinion and Judgment, para. 619.
(20) Tadic, Opinion and Judgment, para. 618 (discussing effect of Article 6(c) of the Nurnberg
Charter).
(21) The prosecutors charged the major German war criminals both individually and as members of various organizations, including the Reich Cabinet, the Leadership Corps of the Nazi Party, the Gestapo and die Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei (the "SS"). 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT'L MIL. TRIB. 27-28 (1947). So, from the beginning of the case, criminal liability based on associations and assistance to others was at issue.
(22) Id. at 29.
(23) Id. at 30.
(24) Id. at 30-31.
(25) Id. at 35. They were also charged with committing war crimes and crimes against humanity in furtherance of their plan and conspiracy, id. at 41, but the International Military Tribunal "disregarded" this part of Count One because the tribunal's charter only defined conspiracy as a crime when its aim was the waging of aggressive war. Id at 226.
(26) Id. at 42.
(27) Id. at 43. The words, "murder and ill-treatment" fail to fully convey the inhumanity the civilians suffered at the hands of the Nazi-led German government. The indictment includes some detail, detail that fills almost eight full pages of text. See id. at 43-50.
(28) Id. at 51-52.
(29) Id. at 52-54.
(30) Id. at 54-55.
(31) Id. at 55-60.
(32) Id. at 60-61.
(33) Id. at 61-62.
(34) Id. at 62. The defendants were also charged with forcing civilians in occupied territory to swear allegiance to a hostile power and with the "Germanization" of occupied territories. Id. at 63-64
(35) Id. at 65-67.
(36) Id. at 68.
(37) Id. at 226.
(38) Id. at 226.
(39) These meetings were held in November 1937, May 1939, August 1939 and November 1939. Id. at 188. The meeting in November 1937 was attended by three of the defendants: Goring, Erich Raeder and Constantin von Neurath. Id. at 190. The meeting in November 1937 was attended by three of the defendants: Goring, Erich Raeder and Wilhelm Keitel. Id. at 200.
(40) Id. at 284.
(41) Id. at 283-84.
(42) Id. at 70.
(43) Id. at 294-95.
(44) Id. at 322-23.
(45) Id. at 69.
(46) Id. at 285-86.
(47) Id.
(48) Id. at 286.
(49) Id. at 291, 327.
(50) Id. at 299. The tribunal found that "Frick was only concerned with domestic administration within the Reich." Id. The tribunal specifically noted that there was "no evidence that he was ever within Hitler's inner circle of advisers" and that "[h]e was never present.., at any of the important conferences when Hitler explained his decisions to his leaders." Id. at 302.
(51) Id. at 65-67.
(52) Id. at 299-300.
(53) Id. at 302.
(54) Id. at 74.
(55) Id. at 305.
(56) Id. at 304-05.
(57) Id. at 305.
(58) Id. at 78. Admiral Donitz also held a variety of other positions in the German navy, with emphasis on U-boats, and was the actual successor to Hitler as the head of the German government following Hitler's death. Id.
(59) Id. at 310, 315.
(60) Id. at 310.
(61) Id. at 79.
(62) Id. at 337.
(63) Id. at 339.
(64) Id. at 338. The tribunal did note that most of Bormann's power developed later. Id. Similarly, the tribunal noted that Albert Speer did not hold his positions as Reich Minister for Armaments and Munitions and other posts important to German armament early enough to infer knowledge of Hitler's plans. Id. at 330-31.
(65) See 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 143 (1947) (Order of the Tribunal Granting Postponement of Proceedings against Gustav Krupp von Bohlen); see also DONALD BLOXHAM, GENOCIDE ON TRIAL: WAR CRIMES TRIALS AND THE FORMATION OF HOLOCAUST HISTORY AND MEMORY 23 (2001). Gustav Krupp's son, Alfred, was ultimately tried in a later proceeding. See United States v. Krupp (hereinafter The Krupp Case), in 9 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 [hereinafter TRIALS OF WAR CRIMINALS] (1948).
(66) 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT'L MIL. TRIB. at 75.
(67) Id. at 183-84.
(68) Id. at 183.
(69) The trials of industrialists referenced are United States v. Krauch (hereinafter The Farben Case), in 7-8 TRIALS OF WAR CRIMINALS (1948), The Krupp Case, in 9 TRIALS OF WAR CRIMINALS (1948), and United States v. Flick [hereinafter The Flick Case], in 6 TRIALS OF WAR CRIMINALS (1947). These trials are discussed in more detail infra section II-B.
(70) In the view of Major A. Poltorak, an officer on the Soviet delegation to the International Military Tribunal, Schacht's "fate ... was watched with the closest attention by business circles in Germany and abroad. The world of big business was by no means inclined to sacrifice Hjalmar Schacht to Themis in Nuremberg." A. POLTORAK, THE NUREMBERG EPILOGUE 376 (David Skvirsky trans., 1971).
(71) 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT'L MIL. TRIB.307 (1947).
(72) DONALD BLOXHAM, GENOCIDE ON TRIAL: WAR CRIMES TRIALS AND THE FORMATION OF HOLOCAUST HISTORY AND MEMORY 22 (2001).
(73) 5 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT'L MIL. TRIB. 141 (1947).
(74) Id.
(75) 2 DREXEL A. SPRECHER, INSIDE THE NUREMBERG TRIAL: A PROSECUTOR'S COMPREHENSIVE ACCOUNT 936-37 (1999).
(76) 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT'L MIL. TRIB. 310 (1947). Telford Taylor, who assisted Justice Robert Jackson in the prosecution of the major German war criminals, observed that Schacht "escaped by the skin of his teeth." TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS 592 (1992). Schacht was later tried and convicted by the German Spruchkammer (denazification court), but his conviction was later overturned. Id. at 61213.
(77) 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT'L MIL. TRIB. 309 (1947).
(78) Id. The Soviet member of the tribunal, in his dissent, considered the scale and nature of rearmament to be key evidence that should have left Schacht convicted. Id. at 344-45 (Nikitchenko, IMT memb., dissenting).
(79) Id. at 307 (emphasis added).
(80) Id. at 308-09.
(81) Id. at 309.
(82) Id. at 310.
(83) Id. at 256.
(84) Id. at 256.
(85) The Farben case, 8 TRIALS OF WAR CRIMINALS 1102.
(86) Id.
(87) Id.
(88) Id. at 1107-08. The Flick tribunal also applied the requirement of proof of personal guilt before conviction, as well as other principles of "Anglo-American criminal law"--proof beyond a reasonable doubt, the prosecution's bearing the burden of proof, the presumption of innocence, and the requirement that a fact-finder, if choosing between two reasonable inferences, "one of guilt and the other of innocence," must draw the inference that leads to acquittal. The Flick Case, 6 TRIALS OF WAR CRIMINALS 1 189.
(89) The Farben case, 8 TRIALS OF WAR CRIMINALS 1113.
(90) The Farben Case, 7 TRIALS OF WAR CRIMINALS 17.
(91) Id. at 18.
(92) FRANK M. BUSCHER, THE U.S. WAR CRIMES TRIAL PROGRAM IN GERMANY, 1946-55 63 (1989).
(93) Id.
(94) The Farben Case, 7-8 TRIALS OF WAR CRIMINALS.
(95) The Farben Case, 7 TRIALS OF WAR CRIMINALS 11-14.
(96) Id. at 11.
(97) Id. at 15-28.
(98) Id. at 14.
(99) Id. at 39-40.
(100) Id. at 50.
(101) Id. at 59. This article will not discuss this count in the text because the purported criminal liability sprang from personal, rather than corporate, associations. Personal knowledge again played a key role, though, in disposing of Count Four. Using the tribunal case of United States v. Pohl, where Tribunal II required personal knowledge of or involvement in criminal activities of the SS as a prerequisite for conviction, see 5 TRIALS OF WAR CRIMINALS at 1018, and other similar tribunal precedents, the Farben tribunal acquitted four Farben defendants whose involvement in the SS was honorary or, at worst, peripheral.
(102) The Farben Case, 7 TRIALS OF WAR CRIMINALS 59.
(103) The Farben Case, 8 TRIALS OF WAR CRIMINALS 1098. The tribunal did limit the scope of that precedent somewhat with the language used: "That well-considered judgment is basic and persuasive precedent as to all matters determined therein." Id. (emphasis added).
(104) Id. at 1112-13.
(105) Id. at 1108.
(106) Id. at 1108.
(107) Id. at 1109-10.
(108) Id. at 1110.
(109) Id. at 1117. The tribunal also considered the substantial financial contributions made to the Nazi party as potential evidence of Farben officials being privy to Hitler's plan to wage aggressive war. The tribunal opined that what were voluntary contributions during German rearmament became "exactions" after "Hitler's power grew and the Nazi party became more arrogant." Id. at 1119.
(110) The tribunal found that a number of the Farben defendants "participated in the rearmament of Germany by contributing to her economic strength and the production of certain basic materials of great importance to the war." Id. at 1123.
(111) Id. at 1112.
(112) Id, at 1113.
(113) Id. at 1120. This particular defendant, Georg Von Schnitlzer, had made a statement that Farben officials "and all heavy industries well knew that Hitler had decided to invade Poland if Poland would not accept his demands," but the tribunal believed that his statements to interrogators had "questionable evidentiary value" because of his repeated changes and "corrections" to his earlier statements. The tribunal believed that this admission and others reflected Von Schnitlzer's "eagerness to tell his interrogators what he thought they wanted to know and hear." Id.
(114) Id. at 1125.
(115) Id. at 1124 (quoting--without citation--the International Military Tribunal). See 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT'L MIL. TRIB. 256 (1947).
(116) The Farben case, 8 TRIALS OF WAR CRIMINALS 1125.
(117) Id. at 1126.
(118) Id. at 1126-27 (quoting United States et al. v. Goring et al., 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT'L MIL. TRIB. 330 (1947)).
(119) The tribunal followed the precedent of the Flick Case and ruled that, although these offenses were charged as both war crimes and crimes against humanity, if the offense was wholly one against property, it could not constitute a crime against humanity. The Farben case, 8 TRIALS OF WAR CRIMINALS 1129-30 (citing The Flick Case, 6 TRIALS OF WAR CRIMINALS 1215-16). The Farben tribunal also held that offenses against property in Austria and the Sudetenland were not war crimes because there was no actual state of war during the Anschluss and the acquisition of the Sudetenland even if the lack of war was due to an incapacity to resist an aggressor state. The Farben case, 8 TRIALS OF WAR CRIMINALS 1130.
(120) Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 277.
(121) The Farben case, 8 TRIALS OF WAR CRIMINALS 1132-33.
(122) Id, at 1135-36.
(123) Id. at 1137.
(124) Id. at 1137-38.
(125) Id. at 1141.
(126) Id. at 1139 (quoting United States et al. v. Goring et al., 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 329 (1947)).
(127) The Farben case, 8 TRIALS OF WAR CRIMINALS 1140.
(128) Id.
(129) Id. at 1141.
(130) Id. at 1157.
(131) Id.
(132) Id. at 1086, 1154.
(133) Id. at 1086-87.
(134) Id. at 1087.
(135) Id.
(136) Id. at 1154-55.
(137) Id. at 1155.
(138) Id.
(139) Id.
(140) Id. at 1167-68.
(141) Id. at 1168-69. The gas also had been used as an insecticide. Id. at 1168.
(142) Id. at 1171-72.
(143) Id. at 1174.
(144) Id. at 1174-79.
(145) Id. at 1179.
(146) Id. at 1186-87.
(147) Id. at 1187.
(148) Defendant Krauch was also convicted of enslavement, but it resulted from his governmental rather than from any role he held with Farben at the time. Id. at 1187-89.
(149) Id. at 1190-92.
(150) Id. at 1192-93.
(151) Id. at 1206-09.
(152) The Krupp Case, 9 TRIALS OF WAR CRIMINALS 4.
(153) Id. at 1329.
(154) Id.
(155) Id. at 8. Initially, Alfried Krupp's father and the previous head of the company, Gustav Krupp, was to be included as one of the defendants at the major war criminals trial before the International Military Tribunal, but he was advanced in age and suffered from dementia, which made him ineligible for trial. Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory 23 (2001).
(156) The Krupp Case, 9 TRIALS OF WAR CRIMINALS 1332-33.
(157) Id. at 1336.
(158) Id. at 1337.
(159) Id. at 1347-48.
(160) Id. at 1372-73.
(161) Id. at 1348.
(162) Id. at 1348-64.
(163) Id. at 1364.
(164) Id. at 1370.
(165) Id. at 1337.
(166) Id. at 1352.
(167) Id. at 1371.
(168) Id. at 1373.
(169) Id. at 1374-75.
(170) Id. at 1378-79. There was an improbable attempt at legal justification of the prisoner arrangement by Krupp officials at one point when they posited that there would be no violation if the prisoners could not clearly discern that the equipment would become part of a weapon. Id. at 1375.
(171) Id. at 1380-89. The only concern that Krupp officials seemed to have was that the inadequate food given to prisoners adversely affected Krupp productivity. Id.
(172) Id. at 1396-98. Once again, Krupp officials only became concerned at the conditions suffered by these workers when it affected their ability to "recruit" more of these workers. Id. at 1397-98.
(173) Id. at 1405.
(174) Id. at 1412-26, 1441-42.
(175) Id. at 1439.
(176) Id. at 1440-41.
(177) The defendants also sought cover by a plea of necessity, but the tribunal dismissed that argument noting that the defense evidence at best portrayed the belief of the defendants that they were obligated by a sense of duty rather than by necessity. Id. at 1443.
(178) Id. at 1404.
(179) Id. at 1399. This was no benign "company town." The camp was to be used primarily for disciplinary purposes, but the workers would labor at Krupp plants if properly "educated." Id. at 1399-1400.
(180) Id. at 1409.
(181) Id. at 1448 (citing 19 C.J.S. 2D at 363-64 (1940)).
(182) The Krupp Case, 9 TRIALS OF WAR CRIMINALS 1448 (quoting 19 C.J.S. 2D at 363-64 (1940)). The quoted language in the tribunal's opinion is somewhat oblique on the third point: "He is liable where his scienter or authority is established, or where he is the actual present or efficient actor." 9 TRIALS OF WAR CRIMINALS 1448.
(183) The Farben case, 8 TRIALS OF WAR CRIMINALS 1157.
(184) The Flick Case, 6 TRIALS OF WAR CRIMINALS 28.
(185) Id. at 13.
(186) Id. at 17.
(187) Id. at 21.
(188) Id. at 23.
(189) Id. at 1196-97. "This was the only way workers could be procured." Id. at 1197.
(190) Id. at 1197.
(191) Id. at 1199.
(192) Id. at 1200-01.
(193) Id. at 1198.
(194) Id. at 1202.
(195) Id. at 1209-12.
(196) Id. at 1206, 1212.
(197) Id. at 1212.
(198) Id.
(199) Id. at 1213-16.
(200) Id. at 1216-20.
(201) Id. at 1219-20.
(202) Id. at 1220-21.
(203) Id. at 1221.
(204) Id. at 1223.
(205) Commissioner v. Roechling, Indictment, in 14 TRIALS OF WAR CRIMINALS 1061, 1061.
(206) Commissioner v. Roechling et al., Indictment, in 14 TRIALS OF WAR CRIMINALS 1061, 1061-62.
(207) Id. at 1072-74.
(208) Commissioner v. Roechling, Judgment of the General Tribunal of Military Government for the French Zone of Occupation in Germany, June 30, 1948, in 14 TRIALS OF WAR CRIMINALS at 1075, 1077.
(209) Roechling, Indictment, in 14 TRIALS OF WAR CRIMINALS 1061, 1065; see also Roechling, Judgment of the General Tribunal of Military Government, in 14 TRIALS OF WAR CRIMINALS at 1075, 1077.
(210) Id. at 1078-79.
(211) Id. at 1078 (emphasis added).
(212) Id. at 1080.
(213) Id. at 1080-81.
(214) Id. at 1085.
(215) Id. He specifically requested Russian youths of about sixteen years of age "for labor in the iron industry" and specifically requested Belgian males aged eighteen to twenty-five, stating, "If a large number of young Belgians are in our hands in close formations, they will also serve as hostages for the good conduct of their parents." Id.
(216) Id. at 1086-89.
(217) Id. at 1089-91. Another defendant, Albert Maier, was also acquitted because he never "stepped out of his functions as financial director" and was not privy to the facts leading to the charges. Id. at 1093.
(218) Id. at 1092.
(219) Id. at 1093-95. On appeal, they were also found to have approved of the deportation of workers. Commissioner v. Roechling, Judgment of the Superior Military Government Court of the French Occupation Zone in Germany, Jan. 25, 1949, in 14 TRIALS OF WAR CRIMINALS at 1097, 1134.
(220) ANNUAL DIGEST AND REPORTS OF PUBLIC INTERNATIONAL LAW CASES 404 and n.2 (H. Lauterpacht ed., 1948).
(221) Roechling, Judgment of the Superior Military Government Court, in 14 TRIALS OF WAR CRIMINALS at 1097, 1108-09. This French Zone appellate court was international in its composition. See id. at 1097.
(222) Id. at 1109-10.
(223) Id. at 1119.
(224) Id. at 1119-24.
(225) Id. at 1142.
(226) Trial of Bruno Tesch and Two Others (The Zyklon B Case), Brit. Mil. Ct. Hamburg 1946, in UNITED NATIONS WAR CRIMES COMMISSION, 1 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93 (1947).
(227) Id. at 93-94.
(228) Id. at 94.
(229) Id. at 95.
(230) Id.
(231) Id. at 101.
(232) Id.
(233) Id.
(234) Id. at 98.
(235) Id.
(236) Id.
(237) Id. at 102.
(238) Id.
(239) Id. at 101.
(240) "A conscious avoidance instruction permits a jury to find that a defendant had culpable knowledge of a fact when the evidence shows that the defendant intentionally avoided confirming the fact." United States v. Ferrini, 219 F.3d 145, 154 (2d Cir. 2000) (citing United States v. Adeniji, 31 F.3d 58, 62 (2d Cir. 1994)), see also United States v. Brown, 50 M.J. 262 (1999) ("deliberate avoidance" instruction).
(241) The Zyklon B Case, Brit. Mil. Ct. Hamburg 1946, in UNITED NATIONS WAR CRIMES COMMISSION, 1 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93, 101 (1947).
(242) See United States v. Araki, R. at 48414, Int'l Mil. Trib. Far East (1948), reprinted in 101 THE TOKYO MAJOR WAR CRIMES TRIAL: THE JUDGMENT, SEPARATE OPINIONS, PROCEEDINGS IN CHAMBERS, APPEALS AND REVIEWS OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (R. John Pritchard ed., 1998) [hereinafter TOKYO MAJOR WAR CRIMES TRIAL].
(243) These were Counts 1, 27, 29, 31 and 32. Id., R. at 49793-95 (Hoshino) and 49801-02 (Kaya), reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.
(244) Id., R. at 49793-95 (Hoshino) and 49801-02 (Kaya), reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL. For the indictment, see id., R. at 33, 51-52, reprinted in 2 TOKYO MAJOR WAR CRIMES TRIAL.
(245) Id., R. at 49855-58, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.
(246) ARNOLD C. BRACKMAN, THE OTHER NUREMBERG 407-08 (1987).
(247) Araki, R. at 49793, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.
(248) Id., R. at 49793, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.
(249) Id., R. at 49793-94, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.
(250) Id., R. at 49801, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.
(251) Id., R. at 49801, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.
(252) Id., R. at 49801-02, reprinted in 103 TOKYO MAJOR WAR CRIMES TRIAL.
(253) In re Awochi, Neth. Temp. Ct. Martial Batavia 1946, in UNITED NATIONS WAR CRIMES COMMISSION, 13 LAW REPORTS OF TRIALS OF WAR CRIMINALS 122 (1949).
(254) Id. at 122.
(255) Id. at 122-23.
(256) Id. at 123, 125.
(257) Id. at 125.
(258) Id. at 123.
(259) United States v. von Weizsaecker (hereinafter The Ministries Case), in 12-14 TRIALS OF WAR CRIMINALS (1949).
(260) Id., 12 TRIALS OF WAR CRIMINALS at 1.
(261) Id., 12 TRIALS OF WAR CRIMINALS at 18.
(262) Id., 12 TRIALS OF WAR CRIMINALS at 621.
(263) Id., 14 TRIALS OF WAR CRIMINALS at 621.
(264) Id., 14 TRIALS OF WAR CRIMINALS at 621-22.
(265) Id., 14 TRIALS OF WAR CRIMINALS at 622.
(266) Rasche was, however, found guilty of spoliation of property and of membership in a criminal organization, the SS, while knowing of its criminal activities. Id., 14 TRIALS OF WAR CRIMINALS at 784, 863.
(267) Id., 14 TRIALS OF WAR CRIMINALS at 622 (emphasis added).
(268) Id., 14 TRIALS OF WAR CRIMINALS at 854.
(269) See id., 12 TRIALS OF WAR CRIMINALS 49 (Count Five of the indictment).
(270) Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277.
(271) Id,, art. II, 78 U.N.T.S. at 280.
(272) Id., art. VI, 78 U.N.T.S. at 280, 282.
(273) Id., art. III, 78 U.N.T.S. at 280.
(274) WILLIAM A. SCHABAS, GENOCIDE 1N INTERNATIONAL LAW: THE CRIME OF CRIMES 286 (2000).
(275) Id. at 287 (citing 777 PARL. DEB., H.C. (5th ser.) (1969) 480-509).
(276) Prosecutor v. Tadic, Decision on the Def. Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 Oct. 1995, paras.102-03, 127, 141.
(277) International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, between 1 January 1994 and 31 December 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., Annex, art. 1, at 3, UN Doc. S/INF/50 (1994) [hereinafter ICTR Statute]. The tribunal was created at the request of the Rwandan government. Id. at 2.
(278) Prosecutor v Tadic, Case No. IT-94-1-T, T. Ch. II, Sentencing Judgment, 14 July 1997, slip op. at 23.
(279) Prosecutor v. Tadic, Appeals Judgment, Case No. IT-94-1-A, July 15, 1999, para. 233. He was also responsible for cruel and inhumane treatment detainees who were at camps or in the process of being forcibly transferred from their homes; this treatment included beatings and one particularly gruesome sexual mutilation. Tadic Sentencing Judgment, slip op. at 8, 14, 16, 19-20. A number of these victims ultimately died. Id. He was also convicted of taking part in the persecution of Muslims, which included killings and forced transfers. Id. at 21.
(280) Id., paras. 670-87.
(281) Id., paras. 675-77.
(282) Id., paras. 678-80.
(283) Id., paras. 681-87.
(284) Id., para. 675.
(285) Id., paras. 675-76.
(286) Id., para. 677.
(287) Id., para. 678.
(288) Id., para. 679.
(289) Id., para. 680 (citing and quoting The Zyklon B Case, 1 L. Rep. Trials War Crim. 93, 93 (Brit. Mil. Ct. 1946)).
(290) Tadic Opinion and Judgment, para. 680 (citing The Zyklon B Case, 1 L. Rep. Trials War Crim. 93, 93 (Brit. Mil. Ct. 1946)).
(291) Tadic Opinion and Judgment, paras. 684 (citing the case of Karl Hocker in Vol. II, War Crimes Reports 418-19) & 687 (citing the case of France v. Becker et al., 7 L. Rep. Trials War Crim. 67, 70 (Fr. Perm. Mil. Trib.)).
(292) Tadic, Opinion and Judgment, para. 685 (citing Trial of Sandrock et al., 1 L. Rep. Trials War Crim. 35, 43 (Brit. Mil. Ct. 1947)).
(293) Tadic Opinion and Judgment, para. 686 (citing United States v. Goebell et al., Case no. 12-489, Report, Survey of the Trials of War Crimes Held at Dachau, Germany, 2-3 (Sep. 15, 1948)).
(294) Tadic Opinion and Judgment, paras. 689, 691-92.
(295) Id., para. 735.
(296) Id., paras. 735 & 738. Tadic's act was considered both a war crime because the victim was a prisoner and a crime against humanity because it occurred as part of a systematic attack on a civilian population. Id., paras. 734 & 737.
(297) Prosecutor v. Tadic, Appeals Judgment, Case No. IT-94-1-A, July 15, 1999, para. 229.
(298) Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, Sept. 2, 1998, § 8 (verdict).
(299) Id., paras. 700 & 734.
(300) Id., paras. 477 & 548.
(301) Id., para. 704.
(302) Id., para. 705 As to Akayesu's authority, the trial chamber found that
Akayesu, in his capacity as bourgmestre, was responsible for maintaining law and public order in the commune of Taba and that he had effective authority over the communal police. Moreover, as "leader" of Taba commune, of which he was one of the most prominent figures, the inhabitants respected him and followed his orders. Akayesu himself admitted before the Chamber that he had the power to assemble the population and that they obeyed his instructions.
Id., para. 704.
(303) Id., para. 530. The tribunal determined this after reviewing what it means to be complicit in a crime: "[T]he conduct of the accomplice emerges as a crime when the crime has been consummated by the principal perpetrator. The accomplice has not committed an autonomous crime, but has merely facilitated the criminal enterprise committed by another." Id., para. 528. Certain U.S. jurisdictions do punish "attempted complicity." See Robert Weisberg, The Model Penal Code Revisited: Reappraising Complicity, 4 BUFF. CRIM. L. REV. 217, 234 (2000).
(304) Prosecutor v. Akayesu, Judgment, Case No. ICTR-96-4-T, (Sept. 2, 1998), para. 545.
(305) Diane Maria Amann, Capital Punishment: Corporate Criminal Liability for Gross Violations of Human Rights, 24 HASTINGS INT'L & COMP. L. REV. 327, 328 (2001). Although she favors imposing criminal liability on corporations in certain circ*mstances, Professor Amann is troubled by this standard of criminal liability:
It is essential that the standards of knowledge and intent to which corporate defendants are held satisfy strict penal standards. Criminal conviction for what approaches a crime of association ought to be avoided. The Akayesu complicity standard may have value in civil litigation against corporations, but in the criminal context that standard invites doubt about the fairness of conviction even of an individual sentient being. These concerns increase in the context of a collective, artificially intelligent being.
Id. at 336.
(306) Akayesu Judgment, para. 533.
(307) Id., para. 535.
(308) Id., para. 536.
(309) Prosecutor v. Brdjanin, Decision on Interlocutory Appeal, Case No. IT-99-36-A, Mar. 19, 2004, para. 1.
(310) Id., para. 3.
(311) Id., para. 2.
(312) Id., para. 5.
(313) Id., paras. 6 & 8 (emphasis added).
(314) Id., para. 7 (separate op. of Judge Shahabuddeen) (emphasis in original).
(315) Prosecutor v. Vasiljevic, Appeals Judgment, Case No. IT-98-32-A, Feb. 23, 2004, para. 102.
(316) Id., para. 131.
(317) Id., para. 136.
(318) Id., para. 135 (citing Tadic Appeals Judgement, para. 229).
(319) Prosecutor v. Krstic, Appeals Judgment, Case No. IT-98-33-A, Apr. 19, 2004, para. 3.
(320) Id., para. 45.
(321) Id., para. 3.
(322) Id., para. 79.
(323) Id., paras. 80-134.
(324) Id., para. 134.
(325) Id., para. 143.
(326) Prosecutor v. Rutaganda, Judgment and Sentence, Case No. ICTR-96-3-T, Dec. 6, 1999, para. 385.
(327) Id., para. 386.
(328) Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.1839/9, "as corrected by the process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002." See content at http://www.un.org/law/icc/statute/romefra.htm (last visited March 28, 2005).
(329) Id., art. 121.
(330) Id., arts. 1, 3.
(331) Id., art. 13.
(332) Id., art. 12(2). For potential limits on this worldwide jurisdiction, see Kenneth S. Gallant, Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal Courts, 48 VILL. L. REV. 763, 820-41 (2003).
(333) Rome Statute of the International Criminal Court, July 17, 1998, art. 17, U.N. Doc. A/CONF.1839/9. There is an exception allowing the admissibility of the case if the state exercising domestic jurisdiction is genuinely unable or unwilling to carry out the investigation or prosecution. Id., art. 17(1). Although the inability exception has clear application to a failed or failing state, the complete manner in which the unwillingness exception will be applied is unclear even if the Rome Statute does provide some guidance in Article 17(2).
(334) Id., art. 5.
(335) Liesbeth Zegveld, Remedies for Victims of Violations of International Humanitarian Law, INT'L REV. OF THE RED CROSS, Sep. 2003, at 497, 523. Both the ICTY and ICTR statutes allow those tribunals to determine and order restitution of property only. Id.
(336) Rome Statute of the International Criminal Court, July 17, 1998, art. 75(1)-(2), U.N. Doc. A/CONF. 1839/9.
(337) Id., art. 22(1).
(338) Id., art. 25(3)(c). The Statute of the Iraqi Special Tribunal created by the U.S.-led Coalition Provisional Authority has essentially identical language regarding individual criminal responsibility. A person tried by the tribunal may be found criminally responsible if he or she, "[f]or the purpose of facilitating the commission of []a crime, aids, abets, or otherwise assists in its commission or its attempted commission, including providing the means for its commission." Coalition Provisional Authority, the Statute of the Iraqi Special Tribunal, Dec. 10, 2003, 43 I.L.M. 231, 242 (2004).
(339) Rome Statute of the International Criminal Court, July 17, 1998, art. 30(1), U.N. Doc. A/CONF. 1839/9.
(340) Id., art. 30(3).
(341) Id., art. 30(2)(b).
(342) William A. Schabas, Enforcing International Humanitarian Law: Catching the Accomplices, INT'L REV. OF THE RED CROSS, June 2001, at 439, 448.
(343) Id.
(344) Craig Forcese, Deterring "Militarized Commerce": The Prospect of Liability for "Privatized" Human Rights Abuses, 31 OTTAWA L. REV. 171, 201 (2000). See also Liesbeth Zegveld, Remedies for Victims of Violations of International Humanitarian Law, INT'L REV. OF THE RED CROSS, Sep. 2003, at 497, 523.
(345) It is also known as the Alien Tort Statute. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, No. 03-339, slip op. at 1, 2004 U.S. LEXIS 4763 (June 29, 2004).
(346) 28 U.S.C. § 1350 (2004).
(347) 630 F.2d 876 (2d Cir. 1980).
(348) Id. at 887.
(349) Id. at 888.
(350) 256 F. Supp. 2d 1345 (S.D. Fla. 2003).
(351) 110 F. Supp. 2d 1294 (C.D. Cal 2002). This case was vacated in hearing en banc 395 F.3d 978 (9th Cir. 2003).
(352) 110 F. Supp. 2d at 1310.
(353) 256 F. Supp. 2d at 1355.
(354) 124 S. Ct. 2739 (2004).
(355) Id. at 2754.
(356) Id. at 2762.
(357) Id. at 2764 ("[J]udicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today.").
(358) Id. at 2765
(359) Marisa Anne Pagnattaro, Enforcing International Labor Standards: The Potential of the Alien Tort Claims Act, 37 VAND. J. TRANSNAT'L L. 203, 261 (2004).
(360) Ralph G. Steinhardt, International Humanitarian Law in the Courts of the United States: Yamash*ta, Fllartgia, and 9-11, 36 GEO. WASH. INT'L L. REV. 1, 25 (2004).
(361) Id.
(362) Emanuela-Chiara Gillard, Reparations for Violations of International Humanitarian Law, INT'L REV. OF THE RED CROSS, June 2001, at 529, 537.
(363) Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights, 20 BERKELEY J. INT'L L. 45, 90 (2002).
(364) The Central Intelligence Agency World Fact Book describes the United States as the world's "leading industrial power" with an economy that is "the largest and most technologically powerful" in the world. U.S. Central Intelligence Agency, The World Factbook 2004, Country Profile: The United States, available at http://www.cia.gov/cia/publications/factbook/geos/us.html (last visited March 27, 2005). The United States also holds a seat on the U.N. Security Council, see U.N. CHARTER art. 23, and is seen, with its powerful economy and formidable military forces as the world's strongest power, no longer just a superpower but now a "hyperpower." Michael Mandelbaum, The Inadequacy of American Power, FOREIGN AFF., Sept.-Oct. 2002, at 61, 61.
(365) 299 U.S. 304, 312 (1936) Questioned: validity questioned by citing references.
(366) 50 U.S.C. [subsection]1701-1707 (2004).
(367) 50 U.S.C. § 1702 (2004).
(368) 50 U.S.C. § 1701 (2004).
(369) 50 U.S.C. § 1702(a)(1)(A) (2004).
(370) 50 U.S.C. § 1702(a)(1)(B) (2004). When the United States has been attacked or is engaged in armed hostilities, the President also has the power to confiscate certain property. 50 U.S.C. § 1702(a)(1)(C) (2004).
(371) 50 U.S.C. § 1705 (2004).
(372) 50 U.S.C. § 1705(b) (2004).
(373) See, e.g., Exec. Order No. 13159, 65 Fed. Reg. 39,279 (June 21, 2000) (blocking property of the government of the Russian Federation relating to the disposition of highly enriched uranium extracted from nuclear weapons).
(374) See Exec. Order No. 13288, 68 Fed. Reg. 11,457 (Mar. 6, 2003).
(375) Exec. Order No. 13310, 68 Fed. Reg. 44,853 (July 28, 2003). This included a ban on all Burmese imports. Id., §3.
(376) Exec. Order No. 13067, 62 Fed. Reg. 59,989 (Nov. 3, 1997).
(377) Pub. L. No. 107-245, 116 Stat. 1504, § 6 (2002).
(378) Id., § 2. Congress further directed the Secretary of State to collect information on war crimes, genocide, and other violations of international humanitarian law. Id., § 11.
(379) Pub. L. No. 108-61, 117 Stat. 864, [subsection] 2-3 (2003).
(380) See Exec. Order No. 12808, 57 Fed. Reg. 23,299 (May 30, 1992), and Exec. Order No. 12,810, 57 Fed. Reg. 24,347 (June 5, 1992).
(381) Pub. L. No. 103-160, §1511,107 Stat. 1839 (1993).
(382) S.C. Res. 1306, U.N. SCOR, 55th Sess., 4168th mtg. at 2, U.N. Doc. S/RES/1306 (2000).
(383) Id.
(384) Alan Cowell, 40 Nations in Accord on "Conflict Diamonds," N.Y. TIMES, Nov. 6, 2002, at A6; see also www.kimberleyprocess.com. There have been recent assertions that the Kimberley Process is ineffective. Nicol Degli lnnocenti, Retailers Face Flak Over "Blood Diamonds," FIN. TIMES, Mar. 30, 2004, at 1.
(385) U.N. GAOR, 57th Sess., Agenda Item 27, annex 2, at 6, U.N. Doc. A/57/489.
(386) S.C. Res. 1459, U.N. SCOR, 58th Sess., 4694th mtg. at 2, U.N. Doc. S/RES/1459 (2003).
(387) Exec. Order 13194, 66 Fed. Reg. 7389 (Jan. 18, 2001).
(388) Id., § 2.
(389) Exec. Order 13213, 66 Fed. Reg. 28,829 (May 22, 2001).
(390) 19 U.S.C. [subsection] 3901-13 (2004).
(391) 19 U.S.C. § 3903 (2004).
(392) 19 U.S.C. § 3901 (2004).
(393) Exec. Order No. 1,312, 68 Fed. Reg. 45,151 (July 29, 2003) (citing Exec. Order 13194, 66 Fed. Reg. 7389 (Jan. 18, 2001) and Exec. Order 13213, 66 Fed. Reg. 28,829 (May 22, 2001)).
(394) Exec. Order No. 13312, 68 Fed. Reg. 45,151 (July 29, 2003).
(395) See Zegveld, supra note 335, at 507.
(396) Id. at 512.
(397) By definition, law and order holds no sway in failed states. See Daniel Thurer, The "Failed State" and International Law, INT'L REV. OF THE RED CROSS, Dec. 1999, at 731, 731.
(398) Stephens, supra note 363, at 54. She notes, "General Motors, for example, is larger than the national economies of all but seven countries." Id. at 57.
(399) Id. at 82-85.
(400) Gillard, supra note 362, at 539.
(401) Id. at 539-40. The United Nations Compensation Commission, which handles compensation claims resulting from the Iraqi invasion of Kuwait, is an example of a body not created by treaty but rather by the U.N. Security Council. Id. at 540-41.
(402) See M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11, 60 (1997) (arguing that ad hoc tribunals raise questions of fairness and of victors' vengeance and that ad hoc tribunals "generally do not provide equal treatment to individuals in similar circ*mstances who commit similar violations").
(403) E.g., ICTR Statute, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., Annex, art. 28, at 14, UN Doc. S/INF/50 (1994).
(404) S.C. Res. 1315, U.N. SCOR, 55th Sess., 4186th mtg. at 2 (2000).
(405) Avril McDonald, Sierra Leone's Shoestring Special Court, INT'L REV. OF THE RED CROSS, Mar. 2002, at 121, 124.
(406) Erik Suy, Is the United Nations Security Council Still Relevant? And Was it Ever?, 12 TUL. J. INT'L & COMP. L. 7, 22 (2004).
(407) Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 555 (1995).
(408) Alex G. Peterson, Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed Conflict, 171 MIL. L. REV. 1, 61-62 (2002) (citing U.N. Charter art. 39).
(409) Joseph Keeler has observed "six basic factors that delayed and weakened the U.N.'s intervention" in the genocides in Rwanda and Bosnia. They include the "personal interests of the members of the Security Council"; "disinterest of the members of the Security Council"; "aversion to intervene in internal matters of a sovereign state"; "belief that the groups were reciprocating deeply engrained hatred or prior genocidal acts"; "desire to end the conflict peacefully as a 'neutral' intermediary"; and "inadequate funding." Joseph A. Keeler, Genocide: Prevention through Nonmilitary Measures, 171 MIL. L. REV. 135, 172-76 (2002).
(410) Keeler has proposed a system to identify genocide early and prevent before it transforms from small-scale to large-scale genocide. He proposes modifying the Genocide Convention by creating an "early warning system." Id. at 179.
(411) Kenneth S. Gallant, Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal Courts, 48 VILL. L. REV. 763, 783-84 (2003).
(412) Id. at 784.
(413) Id. As noted earlier, this power of the Security Council is global. See Rome Statute of the International Criminal Court, July 17, 1998, arts. 12 & 13, U.N. Doc. A/CONF.1839/9.
(414) Gallant, supra note 411, at 790.
(415) Id. at 790-91.
(416) Id. at 791-92.
(417) Id. at 793-94 (citing S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., UN Doc. S/RES/1373 (2001)).
(418) Id. at 794.
(419) Lois Felding, Taking a Closer Look at Threats to Peace: The Power of the Security Council to Address Humanitarian Crises, 73 U. DET. MERCY. L. REV. 551, 559-60 (1996).
(420) See S.C. Res. 1306, U.N. SCOR, 55th Sess., 4168th mtg. at 2, U.N. Doc. S/RES/1306 (2000) (emphasis added). Resolution 1373, which is the resolution concerning terrorism that Professor Gallant cited, uses similar language and has rather detailed dictates:
[The Security Council] Decides that all States shall:
(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalize the wilful [sic] provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;
(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;
(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;
2. Decides also that all States shall:
(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;
(b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;
(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;
(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;
(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;
(f) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings;
(g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents;
S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., UN Doc. S/RES/1373 (2001) (emphasis in original).
(421) Or, as the U.S. Supreme Court has observed, "We should not derive criminal outlawry from some ambiguous implication." United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221222 (1952).
(422) Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L. J. 443, 529 (2001) (citing a portion of the RICO statute, 18 U.S.C. § 1961-62).
(423) E.g., 18 U.S.C. § 1957 (2004) (prohibiting engaging in monetary transactions in property derived from specified unlawful activity) and § 2314 (2004) (prohibiting the transfer of stolen money).
(424) Robert Weisberg, The Model Penal Code Revisited: Reappraising Complicity, 4 BUFF. CRAM. L. REV. 217, 237-38 (2000).
(425) Id. at 233 (citing Model Penal Code § 2.06(3)).
(426) Id. at 238.
(427) Id. at 241-43 (discussing People v. Beeman, 674 P.2d 1318 (Cal. 1984)).
(428) Id. at 236.
(429) Id. at 262-64 (citing N.Y. Penal Law [subsection] 115.00, 115.01, 115.05, 115.08 (McKinney 1998)).
(430) Id. at 264 n.107 (2000) (citing N.Y. Penal Law § 115.15 (McKinney 1998)).
(431) William A. Schabas, Enforcing International Humanitarian Law: Catching the Accomplices, Int'l Rev. of the Red Cross, June 2001, at 439, 450.
(432) Id. at 450-51.
(433) Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L. J. 443, 528 (2001).
(434) Id. at 529.
(435) See, e.g., David Bianculli, Rush to Judgment: Media Focus on Bomb Suspect is a Crime, FT. WORTH STAR TELEGRAM, Aug. 2, 1996, at 12 (discussing the media labeling of Richard Jewell as the likely Olympic Park bomber).
(436) See, e.g., Warren P. Strobel, Powell Admits Weapons In Doubt: Stance Less Defiant Than White House's, CHARLOTTE OBSERVER, Jan. 25, 2004, at 1A ("U.S. Secretary of State Colin Powell acknowledged Saturday that former Iraqi President Saddam Hussein might not have had the massive weapons stockpiles the Bush administration used to justify a war against him.").
(437) Alex G. Peterson, Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed Conflict, 171 MIL. L. REV. 1, 63 (2002) (citing Herman Salinas Burgos, The Application of International Humanitarian Law as Compared to Human Rights Law in Situations Qualified as Internal Armed Conflict, Internal Disturbances and Tensions, or Public Emergency, with Special Reference to War Crimes and Political Crimes, in IMPLEMENTATION OF INTERNATIONAL HUMANITARIAN LAW 15 (Frits Kalshoven & Yves Sandoz eds., 1989)).
(438) Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L. J. 443, 461 (2001).
(439) Bruce D. Jones, PEACEMAKING IN RWANDA: THE DYNAMICS OF FAILURE 1, 38 (2001).
(440) Id. at 26, 32, 37-39.
(441) Id. at 39.
(442) Id. at 39-41.
(443) Id. at 1.
(444) Diane F. Orentlicher, Genocide, in CRIMES OF WAR: WHAT THE PUBLIC SHOULD KNOW 153, 153 (Roy Gutman & David Rieff eds., 1999). This is not to say that there was no international effort at preventing bloodshed in Rwanda. Before the genocide occurred, "there was a meaningful effort under way long prior to the genocide to mitigate and contain the Rwandan civil war. These efforts were not designed specifically to prevent genocide, but they were designed to prevent an escalation of the crisis and to lay the groundwork for peace." Bruce D. Jones, PEACEMAKING IN RWANDA: THE DYNAMICS OF FAILURE 2-3 (2001).
(445) One commentator makes this point well in the context of the crimes in the former Yugoslavia:
I believe that it is a mistake to treat the [Genocide] convention's use of the term intent as though it were synonymous with motive. That Serb perpetrators of ethnic cleansing may have slaughtered Muslims so that they could obtain control over territory does not negate their intent to destroy Muslims "as such" in order to achieve their ultimate goal.
Diane F. Orentlicher, Genocide, in CRIMES OF WAR: WHAT THE PUBLIC SHOULD KNOW 153, 156 (Roy Gutman & David Rieff eds., 1999) (italics in original).
(446) Rome Statute of the International Criminal Court, July 17, 1998, art. 22(l), U.N. Doc. A/CONF. 1839/9.
Kyle Rex Jacobson *
* Major Kyle R. Jacobson (B.S., Texas A&M University, J.D., Georgetown University Law Center, LL.M., International and Comparative Law, The George Washington University) is presently assigned as the Staff Judge Advocate, 470th Air Base Squadron, Geilenkirchen NATO Air Base, Federal Republic of Germany. This article was submitted in partial completion of the requirements of the Master of Laws program at the The George Washington University.
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