Article by Aparimita Pratap and Varsha Maria Koshy
The plight of the Cambodian farmers drew world-wide attention in the year 2016, when the International Criminal Court (ICC) was called to initiate action against the Cambodian Government and certain corporations for widespread and systematic illegal land grabbing and environmental destruction. These illegal activities displaced and killed millions in the four-year reign of Khmer Rouge in Cambodia. These crimes were inflicted to transfer hectares of land to business corporations and these corporations were complicit in the atrocities committed against the unlawfully displaced persons. For the same reason, the Prosecutions Policy Selection Paper in 2016 was broadened to include cases of land grabbing and environmental destruction. This piece seeks to examine the import of prosecuting corporations and corporate officers in the International Criminal Court (ICC) with reference to other international tribunals and domestic courts. In particular, it seeks to analyse the different modes of liability on corporate officers as per Article 25 of the ICC Statute (Rome Statute) and analyse of the concept of ‘indirect co-perpetration’ devised by the ICC. With the ever-increasing atrocities committed by corporations spreading across nations, it becomes pertinent to see how the ICC addresses it.
Article 25(1) of the Rome Statute restricts jurisdiction of the ICC only to natural persons and not legal persons. Hence, corporations cannot be tried under the Statute. During the drafting of the Rome Statute, the extension of jurisdiction to legal persons was deliberated upon. However, the drafters did not pursue it due to practical considerations as at that time, a majority of the national jurisdictions did not hold corporations criminally liable in their domestic courts, restricting the corporations’ liability to civil tort cases. This is no longer the case, with legal systems across Asia, South America and Europe recognizing corporate liability for committing international crimes that are criminal in nature. This highlights the need to revisit the jurisprudence on Article 25(1) and to examine the scope of an amendment to that section. Any amendment to the Rome Statute requires a two-thirds majority and a subsequent ratification by member States as per Article 121. However, scholars argue that member States might be reluctant to try legal persons, especially corporations, as it would directly impinge on their economies. An alternative method, proposed by certain scholars, is to expand jurisdiction under article 25(1) only for those member States who welcome such an amendment. This alternative will also need to pass the two-third majority threshold. Thus, in the present scenario corporations cannot be tried within the Rome Statute without adequate amendments.
However, actions of corporate officers have triggered jurisdiction of various international criminal tribunals and domestic Courts if their actions constitute as crimes and pass the gravity requirements under the Statute. The prosecutor of the ICC in his policy paper had opined on the Court’s willingness to try corporate officers for their involvement (both direct and complicit) in crimes present under the Statute. The International Military Tribunal (IMT) in the IG Farben case and the Krupp case prosecuted corporate officers due to their personal involvement in the execution of crime. Like most Statutes of international tribunals, the IMT’s jurisdiction was also limited to natural persons. But the IMT made pertinent observations in the IG Farben case (despite lacking jurisdiction) when it stated that Farben, in its capacity as a corporation, violated the laws and customs of war. However, the Allied Control Council imposed sanctions on corporations for actions violative under international law.
Corporate officers are those individuals who are responsible for a corporation’s criminal conduct. For instance, The ICTR, in the Media case, convicted executives and directors of the media corporation Radio Télévision des Mille Collines (RTLM) for genocide, incitement of genocide and crimes against humanity among other crimes. They were convicted for using the media (radio) as a weapon for dissemination of hatred which ultimately led to the commission of these crimes. The ICC in Prosecutor v. William Samoei Ruto and Joshua Arap Singh tried the defendants as indirect co-perpetrators under Article 25(3) of the Rome Statute for disseminating coded messages through telecommunication broadcasts. However, the charges were vacated due to the lack of evidence.
Crimes under International law are usually committed by a group of actors with a common purpose which may range from physically carrying out the crime to being complicit in the crime by hatching the plan, providing finances and ammunitions, etc. Due to this collective nature of the crime, various modes of liability were devised under international law. The Rome Statute under article 25(3)(a) through 25(3)(d) recognizes two modes of liability: – primary and accessorial liability. Under article 25(3)(a), three modes of liability are recognized- direct perpetration, joint perpetration or (co-perpetration) and indirect perpetration i.e., perpetration through another person. Roxin’s control theory of crime first propagated these modes of liability.
Article 25(3)(c) deals with aiding and abetting of crimes and because it is in the nature of accessorial crimes, corporate officers can be easily brought within the ambit of 25(3)(c) and other secondary modes of liability. This piece aims on assessing how corporate officers can be made perpetrators under article 25(3)(a) as the threshold for proving a 25(3)(a) liability is the highest compared to the other modes of liability prescribed under article 25(3).
In the Lubanga case, the ICC held that perpetration under Article 25(3) hinged on whether the accused had “control over the crime”, i.e, directly, jointly (co-perpetration) or indirectly. The Pre-trial chamber (PTC) in Lubanga enlisted the factors resulting in co-perpetration: – existence of a common plan, co-ordinated essential contribution, the requisite mens rea under Article 30 of the Rome Statute. Further, indirect perpetration occurs when the perpetrator acts through an organizational apparatus. Thus, he is the “perpetrator behind the perpetrator” and this model is identified by its strict hierarchy and an element of easy replaceability within the apparatus. The former forms part of a horizontal control theory and the latter forms part of a vertical control theory both formulated by Roxin. Often, when used independently, these modes of liability were not capable of strictly capturing the elaborate nature of crimes. Therefore, the ICC combined these modes of liability to formulate the theory of indirect co-perpetration in the Katanga and Chui case. Here, the accused Katanga and Chui hatched a common plan to take over a village by acting through subordinate officers thereby, resulting in an indirect co-perpetration. The ICC combined the objective and subjective elements of both modes of liability and enlisted eight elements for the crime of indirect co-perpetration namely: -the existence of a common plan, co-ordinated essential contribution, organized power apparatus, control over the organization, automatic compliance by subordinate officers, satisfying the subjective elements of the crime under the Statute. This was coupled with the fact that the perpetrators must be mutually aware that an implementation of the common plan will satisfy the objective elements of the crime. This formula of indirect co-perpetration devised by the ICC takes the form of an inverted L shaped structure and serves as a progressive interpretation of pre-existing law.
However, the elements set out by the ICC is tailored for the above-mentioned structure in Katnaga. Indirect co-perpetration might adopt different structures without necessarily satisfying the eight elements enlisted by the ICC in Katanga. However, most corporations with their extensive hierarchies can be better tried using the control/domination theory (Tatherrschaft) used in the Fujimori judgement (Peruvian Supreme Court). Here the will of the direct perpetrator is dominated by the indirect perpetrator through an organizational apparatus (organisationscherraft) and unlike the traditional theory of indirect co-perpetration, the direct perpetrators may not be absolved of liability. In such intricate hierarchies the control of the indirect perpetrator is due to the power structure in which they operate. The Organisationscherraft doctrine aims at imputing liability to the individuals who supervise and control the criminal enterprise (organisation). Thus, there can be an organisational domination of stages whereby control can be imputed. There can be different degrees of participation in an organisational apparatus. The first level comprises the main perpetrators who act at a leadership level by planning and organising the criminal event and exercises the highest degree of control. The second level comprises the mid-level hierarchy which exercises some degree of control albeit, not as extensive as the first level or main perpetrators. The third level comprises the section of people who physically carry out the crimes without exercising any control. This three-tiered criminal structure could be seen in the Fujimori judgement where the Court applied the Organisationscherraft doctrine. In Fujimori, the perpetrator devised a power structure with his aides to act against his opponents and was supported by various mid-level operators who helped in co-ordinating the crimes at a lower level and the actions were successfully carried out by the direct perpetrators. The Court in Fujimori laid various criterion for indirect perpetration through an organisational apparatus. These include- presence of a hierarchical organisation, an existing command over the organisation, the fungibility (interchangeability) of direct perpetrators, the direct perpetrator’s intention to commit the act and finally, the organisation should be detached from law.
Though the Organisationscherraft doctrine has not yet found its way in the ICC, it can be used by the Court to import culpability on the leaders of the corporate officers who exercise control over the organisation i.e., the culpability is not merely limited to the high level organisers (The CEO’s and then CFO’s) but also the mid-level officers which cannot be adequately addressed by the traditional understanding of the Court on indirect co-perpetration. Thus, a shift to other theories such as the Organisationsherraft is needed to tackle the macro-crimes perpetuated by gargantuan corporations over a protracted period of time.
About the Authors
Aparimita is a final year student at the West Bengal National University of Juridical Sciences Kolkata. Through her work with human rights activists and lawyers, she has developed a keen interest in human rights law and policy. She also closely follows and has conducted research on issues relating to international criminal law, public international law, refugee law, migration law and humanitarian law. She has previously worked with Centre of Policy Research where she got insight into issues faced by indigenous tribes with respect to their land, and at chambers of Jawahar Raja where she worked extensively on queer issues, sexual harassment, domestic violence, trafficking and labour law. She has also previously written on issues on the overlap of human trafficking and international criminal law. Through moot courts, research projects and everyday reading, Aparimita has nurtured an avid interest in rights-based approaches to law and legal theory.
Varsha Maria Koshy is a final year student at the West Bengal National University of Juridical Sciences, Kolkata. She takes keen interest on various aspects of international criminal and humanitarian law and has written on various issues on the same. She has previously interned with the Human Rights Commission and the Centre of Policy research which gave her broadened her exposure on various socio-legal issues.