460.heyer - Corporate Complicity Under International Criminal Law-A Case For Applying The Rome Statute To Business Behaviour 03 PDF

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Citation: 6 Hum. Rts. & Int'l Legal Discourse 14 2012

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CORPORATE COMPLICITY UNDER
INTERNATIONAL CRIMINAL LAW:
A CASE FOR APPLYING THE ROME
STATUTE TO BUSINESS BEHAVIOUR
ANTJE K.D. HEYER*
Abstract
The author discusses criteria that should be used in assessing the behaviour of
corporations and their employees under internationalcriminal law as it stands
today.She argues thatcorporateagentsand employees may only be held individually
responsiblefor internationalcrimes if they knowingly create a specific risk that
causes the ultimate crime to be committed and if responsibilityfor that risk can be
imputed to them personally. In that regard, the author scrutinises the Nuremberg
precedents, the ad hoc tribunals' case law and general principles of criminal law.
Based on herfindings, she then contributesto the understandingof the Rome Statute
by refining the actus reus and mens rea of article25(3)(c) and (d). In particular,the
authorproposes that the additional,primafacie subjective elements in article 25(3)
(c) and (d)(i) should best be interpreted objectively. Integratingfurther policy
considerationsandphilosophicalunderpinnings,her conclusionsaim atestablishing
normative parameters that should apply to corporate agents and employees who
become involved in gross human rights violations amounting to international
crimes. She argues that corporateagents and employees do not incur liability if they
only create remote, non-specific risks that eventually result in ultimate harm.
Moreover, creation of crime-specific risks may not be imputed to any employee but
only to corporate agents who assume responsibility by transgressingtheir scope of
duties or who act on theirimmediate or ultimate decision-makingauthority.
Keywords: accomplice liability; corporate complicity; individual responsibility;

international criminal law; Rome Statute
Dipl.-Jur., PhD Candidate (Professor Dr. Claus Kre8, LLM. [Cambridge]), University of Cologne.
14 Intersentia
Corporate Complicity under International Criminal Law
A. INTRODUCTION
Suppression and prevention of gross human rights violations have recently developed
into one of the international community's major issues.1 Furthermore, the
international community has recognised that multinational business corporations
often fuel conflicts that include gross human rights violations, and has also started to
act on this finding. To name only two recent initiatives, the UN Security Council in
2000 issued a ban on diamonds exported from and fuelling the conflict in Sierra
Leone, 2 and the UN Commission on Human Rights mandated John Ruggie as Special
Representative for Business and Human Rights. 3 However, one of the international
community's major instruments in suppressing and preventing gross human rights
violations has until now been neglected in addressing business activities: international
criminal justice.4
1. COMPLICITY IN CRIME UNDER THE ROME STATUTE
With the establishment of various international and hybrid tribunals, including, in

particular, the International Criminal Court (ICC) in The Hague, international
criminal law has left the realm of theory and entered the down-to-earth sphere of
Chr. Burchard, Ancillary and Neutral Business Contributions to "Corporate-Political Core Crime",
8 Journal of International Criminal Justice 919-946 (2010); R. Hefendehl, Addressing White Collar
Crime on a Domestic Level: Any Lessons Learned for International Criminal Law?, 8 Journal of
International Criminal Justice 769-782 (2010); International Commission of Jurists (ed.), Corporate
Complicity and Legal Accountability, Vol. 1. Facing the Facts and Charting a Legal Path: Report of
the International Commission of Jurists Expert Legal Panel on Corporate Complicity in
International Crimes (Geneva, 2008); W. Kaleck and M. Saage-Maa, Corporate Accountability for
Human Rights Violations Amounting to International Crimes: The Status Quo and its Challenges,
8 Journal of International Criminal Justice 699-724 (2010); D. Stoitchkova, Towards Corporate
Liability in International Criminal Law (Antwerp, 2010); H. Vest, Business Leaders and the Modes
of Individual Criminal Responsibility under International Law, 8 Journal of International Criminal
Justice 851-872 (2010).
2 UNSC, Resolution on the Situation in Sierra Leone (S/RES/1306) (2000).
3 Cf. W. Kaleck and M. Saage-Maa, supranote 1, pp. 699-700; D. Stoitchkova, supra note 1,p. 13. On
John Ruggie's mandate see UNHRC, Report of the Special Representative of the Secretary-General
on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises,
John Ruggie (A/HRC/4/35) (2007).
4 Cf. Chr. Brants, Gold-Collar Crime: The Peculiar Complexities an Ambiguities of War Crimes,
Crimes Against Humanity, and Genocide, in: H. Pontell and G. Geis (eds), International Handbook
of White-Collar and Corporate Crime 309 ss. (New York 2007); Chr. Burchard, supra note 1,
pp. 919-946; R. Hefendehl, supra note 1, pp. 780-781; F. Jelberger, On the Origins of Individual
Criminal Responsibility under International Law for Business Activity: IG Farben on Trial,
8 Journal of International Criminal Justice 783-802 (2010); P. Rackow, Neutrale Handlungen als
Problem des Strafrechts 483 ss. (Frankfurt am Main 2007); W. Schabas, Enforcing International
Humanitarian Law: Catching the Accomplices, 83 International Review of the Red Cross 441
(2001); H. Vest, supra note 1, pp. 863-864.
6 HR&ILD 1 (2012) 15
Antje K.D. Heyer
reality.5 This courageous experiment has proved a true success. However, it is a

question of steady evolution and one of the next steps is to observe business cases
more closely.
Gross human rights violations committed or furthered by business corporations
rightfully occupy international law scholars. Under discussion are, for example,
Caterpillar selling bulldozers to the Israeli military, which then used them for
destroying Palestinian houses; Chiquita paying Columbian paramilitary groups in
order to 'keep workers quiet'; and a Boeing subsidiary providing logistics for CIA
'extraordinary rendition' flights.6 These acts might come under the terms of complicity
by furthering the perpetration of crimes.
However, the scope of international criminal law stricto sensu is much narrower
than that of international human rights law or domestic criminal law. 7 International
criminal law is not concerned with any human rights violations but only with those
coming under the terms of war crimes, crimes against humanity and genocide.
International criminal law might thus be applicable in situations where chemicals are
sold and then used in systematic attacks on the civilian population,8 or where military
and IT equipment is supplied to an apartheid regime, thereby enforcing segregation.9
Corporations investing in conflict zones may be confronted with situations of
violent acts that amount to crimes under international law. These acts will often be
committed by government officials or the host state's military. As the corporation will
usually be cooperating with these actors, at least on an administrative basis if not also
in business projects, it may be compelled to take a stand vis-4-vis the conflict or
otherwise become involved in international crimes. Such involvement itself may
amount to an international crime if the corporation's activities have furthered the
commission of genocide, war crimes or crimes against humanity. The same may apply
s Apart from the Nuremberg and Tokyo proceedings, the ad hoc tribunals for Ex-Yugoslavia (1993)
and Rwanda (1994) have marked the beginning of international criminal justice, culminating in the
International Criminal Court (ICC) starting work in 2002.
6 D. Cassel, Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts,
6 Northwestern Journal of International Human Rights 305 (2008) (including further examples and
further references).
7 On this subject see C. Kre8, International Criminal Law, in: R. Wolfrum (ed.), The Max Planck
Encyclopedia of Public International Law (Oxford: Oxford University Press, 2008), online edition
(www.mpepil.com).
8 Cf. W. Huisman and E. van Sliedregt, Rogue Traders: Dutch Businessmen, International Crime and
Corporate Complicity, 8 Journal of International Criminal Justice 803-828 (2010), referring to the
case of van Anraat. For proceedings in this case see Rechtbank's-Gravenhage 23 December 2005,
LJN: AX6406, 09/751003-04 (English translation); Gerechtshof 's-Gravenhage 9 May 2007, LJN:
BA6734, 2200050906-2 (English translation); Hoge Raad der Nederlanden, Strafkamer 30 June
2009, LN: BG4822, 07/10742.
9 United States District Court, Southern District of New York 8 April 2009, In re South African
Apartheid Litigation, Lungisile Ntsebeza et al. v. Daimler AG et al., Khulumani et al. v. Barclays
National Bank Ltd. et al., Opinion and Order, pp. 42-44.
16 Intersentia
to corporations not investing in conflict zones but doing business with criminal
regimes or with rebel groups committing crimes in their home country.
Originally, international criminal law was mainly customary law that derived
from state practice accompanied by opinio iuris. International criminal law was
deployed for the first time against German war criminals in the aftermath of World
War II by the International Military Tribunal (IMT) as well as by US, British and
French military courts. Customary norms are therefore reflected in the precedents
from this epoch as well as in the more recent case law of the ad hoc tribunals. Finally,
elaborating the Rome Statute led to a restatement of international criminal law as it
stands today.10 The drafters of the Rome Statute were working towards codifying
customary international criminal law norms, while consciously further developing
and shaping the less detailed and less determined customary rules. The wording of the
Rome Statute is therefore the main and most prominent authority on the elements of
complicity in international crimes. However, it cannot and is not intended to exclude
recourse to customary norms and general principles of criminal law as set forth in
article 21. The Rome Statute's future interpretation and application will therefore
authoritatively shape international criminal law as a whole, embracing statutory
norms as well as case law and customary rules.
As announced by the prosecutor of the ICC,11 the court may be expected to hear
future criminal cases involving multinational business corporations and their agents.
In this case, the ICC will have to apply article 25 Rome Statute to business behaviour.
12
According to article 25(1), the ICC has jurisdiction only over natural persons.
Article 25(3)(c) and (d) sets forth aiding and abetting liability.13 According to these
10 Cf. for a detailed discussion of customary law and the Rome Statute R. Cryer, H. Friman, D.
Robinson and E. Wilmshurst, An Introduction to International Criminal Law and Procedure 151
(Cambridge, 2007).
" See ICC, The Office of the Prosecutor, Press Release No. ICC-OTP-20030926-37. See also
Prosecutorial Strategy 2009-2012, para. 19 at p. 6; R. Gallmetzer, Prosecuting Persons Doing
Business with Armed Groups in Conflict Areas, 8 Journal of International Criminal Justice 950-951
(2010) (including further references).
12 On the question whether corporations as such are already bound by customary international
criminal law see J.Knox, The Ruggie Rules: Applying Human Rights Law to Corporations, available
at: http://papers.ssrn.com/sol3/Delivery.cfm/SSRNID1916664_code88471.pdftabstractid=191666
4&mirid=1 (last visited 15 October 2011) (edited edition forthcoming), pp. 22 ss. However, Knox
rightly acknowledges that neither the ICC nor the ad hoc tribunals have jurisdiction over natural
persons and that the war crimes trials after World War II did not prosecute corporations.
13 '[Al person shall be criminally responsible and liable for punishment for a crime within the
jurisdiction of the Court if that person: (...)
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in
its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a
group of persons acting with a common purpose. Such contribution shall be intentional and shall
either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where
such activity or purpose involves the commission ofa crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime (...).'
6 HR&ILD 1 (2012) 17
Antje K.D. Heyer
provisions, any natural person who aids, abets or otherwise assists in the commission
or attempted commission of crimes under the Statute is individually responsible for
such crimes. Refining this definition with a view to business activities, as I will attempt
to do in the following sections, will contribute to further promoting the principles of
nullum crimen sine lege stricta et certa in international criminal law and to providing
guidance for corporate agents and employees in their decision making.
2. THE RUGGIE APPROACH TO CORPORATE COMPLICITY
In his reports, including, in particular, 'Protect, Respect and Remedy' (2008) and
'Clarifying the Concepts of "Sphere of Influence" and "Complicity"' (2008), Special
Representative John Ruggie emphasises the importance of the term 'complicity' and
also refers to criminal law concepts of complicity.14 In particular, Ruggie seeks
guidance from international criminal law in order to elaborate on his concept of
corporate complicity in human rights violations.15 Ruggie acknowledges that
international criminal complicity as yet only applies to natural persons and that
caution has to be exercised when analogising standards from individuals to
companies. 16 However, he rightfully attaches considerable weight to analysing the
elements of international criminal complicity." His analysis is mainly based on the
case law of the International Criminal Tribunal for Ex-Yugoslavia (ICTY) and gives a
very dense summary of the tribunal's jurisprudence on aiding and abetting liability.
Naturally, Ruggie's focus lies on what kind of conduct might amount to complicity in
international crimes when applied to corporations. According to his analysis,
knowingly providing the means for the commission of a crime will amount to
complicity, whereas merely being present in a country where human rights violations
8
are occurring or benefitting from such abuses is not likely to incur liability.' These
findings will arguably be accepted, even within a politically delicate context. However,
international criminal complicity merits an even more detailed analysis, as I will try
to show subsequently.
3. THE ATS APPROACH TO CORPORATE COMPLICITY
With regard to civil liability for corporate complicity in human rights violations,
much attention has already been drawn to the US case law on the Alien Tort Statute
14 UNHRC, Protect, Respect and Remedy: a Framework for Business and Human Rights (A/HRC/8/5)
(2008) ('Framework'), paras 73-81; UNHRC, Clarifying the Concepts of "Sphere of Influence" and
"Complicity" (A/HRC/8/16) (2008) ('Clarifying'), paras 26-48.
15 UNHRC, supra note 14 ('Clarifying'), paras 33-44.
16 UNHRC, supra note 14 ('Clarifying'), para. 34.
17 He devotes nine paragraphs to this analysis (see UNHRC, supranote 14 ('Clarifying'), paras 36-44).
1 See UNHRC, supra note 14 ('Clarifying'), paras 38-41.
18 Intersentia
(ATS).' 9 This statute allows non-US citizens to claim compensation for violations of
international law before US District Courts. 20 It was initially intended to cover damage
caused by pirates and comparable situations. As yet, many of the cases heard under
the ATS have been settled by the parties and therefore the courts have not yet adopted
a clear line on the prerequisites of liability. It appears that breach of a well-established
norm of international law has to be proved. Here again, the courts have referred to the
elements of aiding and abetting liability in international criminal law and have applied
them to corporations. In this regard, it is worth noting that the ability of national
courts to impose liability on corporations for violation of an international criminal
law standard does not evidence the existence of a customary international law rule
with regard to corporate criminal responsibility.21 Traditionally, international law
addresses only subjects of international law, in particular states. By way of international
criminal law, it also addresses natural persons. International law therefore imposes a
clear erga omnes obligation to refrain from committing international crimes. The ATS
arguably allows US courts to impose civil liability on any natural or legal person
violating this international obligation. However, this US law viewpoint merely
evidences a rather rare state practice relating to civil liability for violating international
criminal law norms. Moreover, imposing tort liability for breach of a criminal norm
by way of a separate statute does not imply that the breached norm on its own would
also apply to the addressee of such statute. On this point, the ATS and its application
remain silent. Some decisions have, however, elaborated on the elements of complicity
under international law; reference to such decisions will be made where appropriate.
4. REFINING INTERNATIONAL CRIMINAL COMPLICITY
In contrast to these approaches, this article's focus is on complicity under the Rome
Statute as the main instrument of international criminal justice in today's practice,
and thus on individual responsibility as opposed to responsibility of the corporation.
However, I do agree with John Ruggie and many proponents of ATS cases that the
rules on complicity in international criminal law, as reflected, in particular, by
international case law, evidence minimal obligations on the part of corporations
19 There is an abundant literature on the ATS. Inter alia see D. Cassel, supra note 6, pp. 304-326;
K. Gallagher, Civil Litigation and Transnational Business: An Alien Tort Statute Primer, 8 Journal
of International Criminal Justice 745-767 (2010); K. Hutchens, International Law in the American
Courts - Khulumani v. Barclay National Bank Ltd.: The Decision Heard "Round the Corporate
World", 9 German Law Journal 639-681 (2008); W. Kaleck and M. Saage-Maas, supra note 1,
pp. 699-724; Ch. Keitner, Conceptualizing Complicity in Alien Tort Cases, 60 Hastings Law Journal
61-104 (2008); D. Stoitchkova, supra note 1, pp. 9-10.
20 See 28 U.S.C. §1350 (adopted in 1789): 'The district courts shall have original jurisdiction of any
civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the
United States.'
21 J.Knox, supra note 12, pp. 25-26.
6 HR&ILD 1 (2012) 19
Antje K.D. Heyer
under international law. 22 Refining international criminal complicity under the Rome
Statute may thus further contribute to stating more precisely the duties multinational
corporations have to comply with.
When applying international criminal complicity and in particular article 25(3)(c)
and (d) Rome Statute to business activities, we need to consider under what
circumstances agents and employees of multinational corporations act. 23 Doing
business is supposed to assist both parties in their activities. However, if one party is
involved in criminal activities, the other cannot, as a general rule, be supposed an
accomplice to those crimes. As Judge Scheindlin stated in her ATS decision on
corporate complicity in the crime of apartheid in South Africa: 24
It is (or should be) undisputed that simply doing business with a state or individual
who violates the law of nations is insufficient to create liability under customary
international law. International law does not impose liability for declining to boycott
a pariah state or to shun a war criminal. Aiding a criminal "is not the same thing as
aiding and abetting [his or her] alleged human rights abuses".
The aim of this article is thus to discuss criteria that might help practitioners of
international law, including prosecutors and judges of the ICC as well as in-house
counsel and legal officers of domestic authorities, who often have to approve e.g. arms
transactions, to draw a line between ordinary business activity that can be found
criminally 'neutral' and conduct outside the scope of standard business behaviour
entailing individual criminal responsibility.
Hence, I will firstly discuss hitherto existing international criminal case law.
Precedents from the Nuremberg epoch clearly highlight the difficulties for judges
sitting in international criminal law business cases and provide valuable hints as to
what criteria might be helpful in solving these problems. However, due to their
precedential character, these judgements are less clear on the technical elements of
22 In this regard, we need to distinguish between the obligation as such, i.e. the legal imperative to
refrain from infringing the norm, and possible consequences resulting from breach of such
obligation. On the premise that international law addresses not only states and international
organisations but, where applicable, natural and legal persons as well, including in particular
corporations, international customary law commands by way of an erga omnes obligation to refrain
from aiding and abetting genocide, war crimes and crimes against humanity. When we accept, as
we do under commercial law, that a corporation is capable of acting, we may also acknowledge the
fact that a corporation may infringe such a norm. Another question is whether legal consequences,
e.g. civil or criminal liability, will apply to this infringement and to whom they will attach, e.g. the
corporation or the individual. Therefore, analysing what kind of behaviour in a business context
may entail individual criminal responsibility might help us draw conclusions regarding what
behaviour corporations should abstain from, regardless of whether and under what preconditions
legal consequences will apply thereto, e.g. imputation of an employee's behaviour to the corporation.
23 Cf. Chr. Brants, supra note 4, pp. 309 ss.; Chr. Burchard, supra note 1, pp. 919-946; R. Hefendehl,
supranote 1,pp.780-781; F. Je~berger, supranote 4, pp. 783-802; H. Vest, supranote 1,pp. 863-864.
24 United States District Court, Southern District of New York, supra note 9, p. 42.
20 Intersentia
accomplice liability under international criminal law. 25 The latter have, however, been
refined in the case law of the ad hoc tribunals for Ex-Yugoslavia and Rwanda, which
will be analysed in turn, although the ad hoc tribunals have not heard business cases
so far. 26 In sum, the present case law leaves us with many open questions regarding
business activities furthering the commission of international crimes. I will thus
discuss whether general principles of criminal law and criminal law theory can help
in elaborating criteria that apply to commercial activities furthering the commission
of international crimes. Ultimately, I will propose a refined interpretation of aiding
and abetting that is particularly tailored to stimulating in-depth scholarly discussion
of individual responsibility in international criminal law and to help practitioners
applying international criminal complicity in business cases.
B. FIRST PRECEDENTS: BUSINESSMEN AND EMPLOYEES

BEING HELD RESPONSIBLE IN NUREMBERG
The first precedents of businessmen and their employees being held responsible as
accomplices in international crimes date from the Nuremberg epoch. 27 The Military
Tribunals sitting in Nuremberg applied complicity to the conduct of natural persons
25 Cf. K. Ambos, Der Allgemeine Teil des Volkerstrafrechts: Ansitze einer Dogmatisierung 361
(Berlin, 2002); H.-H. Jescheck, Die Verantwortlichkeit der Staatsorgane nach Volkerstrafrecht: Eine
Studie zu den Niurnberger Prozessen 400-401 (Bonn, 1952); F. Jefiberger, supra note 4, p. 795;
Chr. Tomuschat, Die Arbeit der ILC im Bereich des materiellen Violkerstrafrechts, in: G. Hankel
and G. Stuby (eds), Strafgerichte gegen Menschheitsverbrechen: Zum Volkerstrafrecht 50 Jahre
nach den Nuirnberger Prozessen 287 (Hamburg, 1995); G. Werle, Individual Criminal Responsibility
in Article 25 ICC Statute, 5 Journal of International Criminal Justice 955 (2007).
26 As H. Vest (supranote 1, p. 858) rightly notes, the ICTR has judged businessmen and entrepreneurs
(cf. ICTR Trial Chamber III 17 November 2009, Prosecutor v. Michel Bagaragaza, Sentencing
Judgement, No. ICTR-05-86-S; ICTR Trial Chamber I 3 December 2003, Prosecutor v. Ferdinand
Nahimana, Jean-Bosco Barayagwiza & Hassan Ngeze, Judgement and Sentence, No. ICTR-99-52-T
ICTR Trial Chamber I 21 February 2003, Prosecutor v. Elizaphan and G6rard Ntakirutimana,
Judgement and Sentence, No. ICTR-96-10 & ICTR-96-17-T; ICTR Trial Chamber I 27 January
2000, Prosecutor v. Alfred Musema, Judgement and Sentence, No. ICTR-96-13-A), yet their
participation in crime was not linked to their business activities.
27 Military Tribunal VI 29 and 30 July 1949, I.G. Farben Case, The United States of America v. Carl
Krauch et al., Opinion and Judgment, Trials of War Criminals before the Nilrnberg Military
Tribunals Vol. VIII; Military Tribunal IV 11-13 April 1949, The United States of America v. von
Weizsaecker et al., Judgment, Trials of War Criminals before the Nirnberg Military Tribunals Vol.
XIV; Military Tribunal 11131 July 1948, The United States of America v. Alfried Felix Alwyn Krupp
von Bohlen und Halbach et al., Opinion and Judgment, Trials of War Criminals before the Niirnberg
Military Tribunals Vol. IX; Military Tribunal IV 22 December 1947, The United States of America
v. Friedrich Flick et al., Opinion and Judgment, Trials of War Criminals before the Nilrnberg
Military Tribunals Vol. VI; The Zyklon B Case: Trial of Bruno Tesch and two others, in: United
Nations War Crimes Commission (ed.), Law Reports Vol. 1 93-103 (London, 1947). The Allies
renounced prosecuting businessmen in Tokyo. For more details see N. Boister and R. Cryer, The
Tokyo International Military Tribunal: A Reappraisal 62-63 (Oxford, 2008).
6 HR&ILD 1 (2012) 21
Antje K.D. Heyer
who had been involved in Nazi crimes due to their occupation. These precedents
clearly highlight the legal and factual as well as the policy-related questions raised by
so-called 'neutral' business activities furthering international crimes.
1. INITIATIVE, NECESSITY, AND RESPONSIBILITY
In the Flick case, business tycoon Friedrich Flick and five of his top managers were
accused of employing slave labourers in their factories. However, the military court
found that the accused had no control, either over the administration of the slave
labour programme or over the allocation of slave labourers to their own factories. 28 To
the contrary, the slave labour programme was purely governmental and purely
governed by state agencies. The court strongly emphasised that plant managers were
not realistically able to refuse allocation of slave labourers. Had they refused, they
would not have been able to comply with quotas prescribed by law. The accused had
not desired to employ slave labourers. They were aware that refusing allocation of
slave labourers would have been useless and dangerous. They had taken no active
steps to employ slave labourers and had no actual control and supervision over the
camps affiliated to their plants. The court therefore concluded that the accused could
successfully raise the defence of necessity.29 In one instance, the court refused to grant
the defence of necessity to one of the accused on the ground that he had taken active
steps to recruit slave labourers.
Under other counts as well, the judgement in the Flick case emphasised the need
for active participation, control over the causal chain entailing the proscribed harm,
and the accused's personal interest in the criminal outcome. With regard to one
30
instance of spoliation, the court found:
[The accused] Weiss, Burkart, and Kaletsch had minor roles in this transaction.
They were Flick's salaried employees without capital interest in his enterprises. They
furnished him with information and advice. But the decisions were his. He alone
could gain or lose by the transaction. (...) We cannot see in their conduct any
culpability for which they should now be punished.
However, in the IG Farben case some of the accused were held responsible for
employing slave labourers in building the Buna plant in Auschwitz.31 Among others,
IG Farben had voted for Auschwitz as a building site due to its proximity to the
concentration camp. Although the court found that IG Farben was pursuing no
inhumane policy vis-A-vis the slave labourers, individual liability of those managers
directly involved in the building process was established. They had applied for the
allocation of forced labourers; they had received and accepted them. They had taken
28 Cf. Military Tribunal IV 22 December 1947, supranote 27, pp. 1196-1999.

29 Military Tribunal IV 22 December 1947, supra note 27, p. 1202.
30 Military Tribunal IV 22 December 1947, supra note 27, pp. 1208-1209.
31 Cf. Military Tribunal VI 29 and 30 July 1949, supra note 27, pp. 1180-1187.
22 Intersentia
the initiative leading to, and thus were responsible for, employing forced labour. For
example, with regard to the main accused Krauch the court held: 32
The evidence does not convince us that Krauch was either a moving party or an
important participant in the initial enslavement of workers in foreign countries.
Nevertheless, he did (...) participate in the allocation of forced labour to Auschwitz
and other places where such labour was utilized within the chemical field. The
evidence does not show that he had knowledge of, or participated in, mistreatment of
workers at their points of employment. In view of what he clearly must have known
about the procurement of forced labour and the part he voluntarily played in its
distribution and allocation, his activities were such that they impel us to hold that he
was a willing participant in the crime of enslavement.
The court was aware of the judgment in the Flick case granting the defence of
necessity in similar circumstances. The court specified that an accused, being under
constraint to commit the actus reus, had nevertheless to be deemed individually
responsible where he was accountable for the existence or execution of such order or
decree imposing the constraint, or 'where his participation went beyond the
requirements thereof, or was the result of his own initiative'.33
2. PROVIDING THE MEANS FOR THE COMMISSION OF THE CRIME
Two of the Nuremberg precedents were concerned with the procurement of Cyclon-B
used in the crime of extermination in concentration camps.
In the IG Farben case, three of the 23 accused members of the company's top
management were at the same time members of the supervisory board of the 'Degesch'
company, a sales subsidiary of IG Farben and other companies manufacturing
insecticides and related products.3 4 The proof was quite convincing that large
quantities of Cyclon-B were supplied to the SS by Degesch and that it was used in the
35
mass extermination of inmates of concentration camps, including Auschwitz.
However, the court found that the supervisory board members did not have persuasive
influence on the business policy or management.36 Moreover, the court did not admit
37
of inferring the accused's intent from the circumstances. It held:
[N]either the volume of production nor the fact that large shipments were destined
to concentration camps would alone be sufficient to lead us to conclude that those who
knew of such facts must also have had knowledge of the criminal purposes to which
this substance was being put. Any such conclusion is refuted by the well-known need
32 Military Tribunal VI 29 and 30 July 1949, supra note 27, p. 1189.

3s Military Tribunal VI 29 and 30 July 1949, supra note 27, p. 1169.
36 Military Tribunal VI 29 and 30 July 1949, supranote 27, p. 1169.
6 HR&ILD 1 (2012) 23
Antje K.D. Heyer
for insecticides wherever large numbers of displaced persons, brought in from widely
scattered regions, are confined in congested quarters lacking adequate sanitary
facilities.
Some accused were further charged with supplying pharmaceuticals and vaccines
that were used to conduct criminal experiments on concentration camp inmates.
Here again, the court applied the principle of in dubio pro reo and therefore held that
there was no mens rea.38
However, even if it proved difficult to show the necessary mens rea, the direct
suppliers of Cyclon-B were held responsible for crimes committed in the concentration
camps by a British military court. 39 The 'Testa' company's founder, Tesch, its proxy,
Weinbacher and its chief gas technician, Drosihn were accused of aiding and abetting
murder by gasification. The defence argued that supplying the means for committing
the crime of murder could only be criminal if it was 'necessarily intended to' kill
people.40 Procuring a means that could be used for completely legal purposes as well
could not amount to a crime under international law. Had Tesch not cooperated with
the SS, the latter would still have committed their crimes. The defence further argued
that Tesch was merely an aider and even then an unimportant one, implying that the
assistance rendered was easily replaceable.4 1 The defence for the proxy Weinbacher
particularly argued that he was only an employee - albeit a powerful one - among
others who knew about the criminal use of the supplied gas. 42 However, both Tesch
and Weinbacher were sentenced to death, the court apparently not following the
defence's reasoning. 43
By contrast, the technician Drosihn was acquitted of all charges.44 Drosihn was
not concerned with any of the business affairs. 45 He was not informed of the quantities
of Cyclon-B that were delivered. His position was a subordinate one with a relatively
low salary. Half the year, he was not present at the firm but travelling on company
business. The Judge Advocate emphasised Drosihn's subordinate position: as there
were no hints that Drosihn was in a position to influence or frustrate supplies to
Auschwitz, it was irrelevant whether he knew about the use of the gas, implying that
38 Cf. Military Tribunal VI 29 and 30 July 1949, supra note 27, pp. 1171-1172.
3 The Zyklon B Case, supra note 27, pp. 93 ss.
40 The Zyklon B Case, supra note 27, p. 98.
42 The Zyklon B Case, supranote 27, p. 100.
4s Cf. The Zyklon B Case, supra note 27, pp. 98, 100 ss.
24 Intersentia
mens rea was not decisive as there was no actus reus.46 In acquitting Drosihn, the
court patently embraced this reasoning. 47
3. MONEY AS A CRIMINAL AGENT
Two charges heard in Nuremberg were concerned with money as a criminal agent.
On the one hand, the Reichsbank's president, Funk,48 and its executive director
and vice president, Puhl, 49 were accused of furthering the crimes committed by the SS
in the concentration camps through accepting the victims' money, jewels, pearls,
dental gold and golden eyeglass frames. Puhl was fully in charge of all duties
incumbent upon the Reichsbank's president during the latter's absence.50 The extreme
secrecy with which these activities were conducted was held to indicate that they were
'not looked upon as an ordinary transaction within the scope of [the Reichsbank's]
corporate purposes or official functions'. 51 The bank account to which proceeds were
transferred was kept under a fictitious name. The court ruled that Puhl 'went beyond
the ordinary range of his duties to give directions that the matter be handled secretly
by the appropriate departments of the bank' and convicted him of complicity in war
crimes and crimes against humanity.52
By contrast, the Dresdner Bank's chief executive Rasche was found not guilty of
complicity in war crimes and crimes against humanity by granting loans to SS
ventures that, among others, were employing slave labourers. Although the court
found the accused to have participated in, and known about, the crimes in question,
it held that Rasche's mere business activity did not entail individual criminal
responsibility.53 The court compared granting a loan to selling building material to
someone building a house while knowing that the builder intends to use the house for
criminal purposes: 54

4 K. Jacobson, Doing Business With the Devil: The Challenges of Prosecuting Corporate Officials
Whose Business Transactions Facilitate War Crimes and Crimes against Humanity, 56 The Air
Force Law Review 195 (2005).
48 International Military Tribunal for the Trial of German Major War Criminals 30 September and
I October 1946, Judgment, p. 103. However, the International Military Tribunal (IMT) did not
discuss this charge in detail, as in the case of Funk it was only a minor one.
4 Military Tribunal IV 11-13 April 1949, supra note 27, pp. 620-621.
so Military Tribunal IV 11-13 April 1949, supra note 27, p. 620.
st Cf. Military Tribunal IV 11-13 April 1949, supra note 27, p. 618.
52 Military Tribunal IV 11-13 April 1949, supra note 27, pp. 620-621. At that time, Funk had already
been convicted by the IMT without much discussion of the issue, as it was only a minor charge in
his case.
s3 Military Tribunal IV 11-13 April 1949, supra note 27, p. 622.
s4 Military Tribunal IV 11-13 April 1949, supra note 27, p. 622.
6 HR&ILD 1 (2012) 25
Antje K.D. Heyer
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 realises from the transaction, out of which it
must deduct its business costs, and from which it hopes to realise a net profit. Loans
or sale of commodities to be used in an unlawful enterprise 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. Our duty is to try and
punish those guilty of violating international law, and we are not prepared to state that
such loans constitute a violation of that law, nor has our attention been drawn to any
ruling to the contrary.
However, the military court sitting in the Flick case does not seem to have shared
the opinion that money is (always) comparable to ubiquitous commodities. The
accused Flick and Steinbrinck had made large annual contributions to the SS by
donating to Himmler's Freundeskreis (circle of friends).55 They were convicted of
financially supporting a criminal organisation which, by virtue of Control Council
Law No. 10, was made a separate crime. The defence invoked the principle of nullum
crimen, nulla poena sine lege et praeviaet certa: at the time of the actus reus, neither
had such a crime been defined, nor had the SS been declared a criminal organisation.56
The court hereto responded that, according to well-founded legal principles, anyone
who knowingly contributed to a crime by virtue of his influence and money had to be
deemed an accomplice, if not a principal, to the crime.57 Although the conviction was
entered under the separate statutory crime of financially supporting a criminal
organisation, according to the court's reasoning the established principle of complicity
applied to the facts of the case.
Justifying the different outcomes in the Reichsbank, Dresdner Bank and Flick
cases by way of general principles is not obvious. From the cases it is clear that simply
because a rational and otherwise lawful business trade-off is involved, financing
crime will not go unpunished. But why then should such conduct not in any case be
criminal when undertaken with knowledge of the principal's deeds?
One may observe that both the cases in which a conviction was entered comprehend
a component of abetting, ie psychological assistance, in addition to the material help
rendered by providing money. In the Reichsbank case, accepting the victims' valuables
in exchange for currency not only allowed the SS to finance further crimes but also
morally encouraged them to do so. The transaction in itself was compromising and
therefore required trust and secrecy between the SS, the principals and the
Reichsbank's agents, their accomplices. Furthermore, it was based on a continuous
business relationship embracing mutual promise of ongoing performance. These two
elements distinguish the Reichsbank from the Dresdner Bank case. In the former
5s Cf. Military Tribunal IV 22 December 1947, supra note 27, pp. 1219, 1221.
56 Cf. Military Tribunal IV 22 December 1947, supra note 27, p. 1217.
57 Military Tribunal IV 22 December 1947, supra note 27, p. 1217.
26 Intersentia
case, they add to the mere physical contribution of surrendering money the reproof of
encouraging the principals' criminal activity by ensuring valorisation of the criminal
proceeds, while such were not shown in the latter. These elements also apply to the
facts in Flick. Membership in and contributions to Himmler's circle of friends
established a permanent relationship between the committed businessmen and
Himmler's SS enterprises. Himmler and his SS were encouraged to rely on these
annual donations and therefore to commit further crimes.
Although letting money at first glance seems morally and criminally neutral, we
may therefore conclude from the Nuremberg precedents that it may serve as a criminal
agent where allocations to criminals - be they gratuitous or non-gratuitous - by
virtue of their accompanying circumstances purport moral encouragement to commit
future crimes.
4. CONCLUSIONS TO BE DRAWN FROM THE NUREMBERG

PRECEDENTS
The Nuremberg precedents reveal many uncertainties as to what preconditions must

be met for business activities to entail individual criminal responsibility on the part
of the acting manager or employee.
In one case, an express exemption from individual criminal liability was made.
Other cases evinced moral hesitation to assess the criminal nature of business
activities without taking into account the particular social context in which they are
initiated, facilitated and embedded. In their discussions of business activities, the
courts emphasised that the accused acted for reasons independent of the criminal
purpose they were assisting. This may come as a surprise to the criminal law theorist,
as motive is usually deemed irrelevant for well-founded reasons. But maybe it is short-
sighted to qualify the question as one of motive alone. In the IG Farben case, the court
based the defendants' acquittal of the charge of contributing to the waging of war on
the reasoning that the accused's contribution did not exceed that of ordinary,
economically influential citizens and businessmen.58 When granting the defence of
necessity in the Flick case, the court elaborated largely on the defendants' lack of
influence and control as well as on their abstention from undertaking active steps, but
only very little on the imminent danger emanating from the totalitarian regime. 59
The intricate implications of these ideas form the leitmotif underlying the
judgments against German industrialists cooperating with the Nazi regime. Hence, at
least within a totalitarian regime, 'neutral' business activity that merely responds to
prevailing circumstances might be exempt from criminal liability by virtue of its
passive and disinterested character.60 Although the courts sitting in Nuremberg did
ss Military Tribunal VI 29 and 30 July 1949, supranote 27, p. 1120.

59 Cf. Military Tribunal IV 22 December 1947, supra note 27, pp. 1201-1202.
60 Cf Chr. Burchard, supra note 1, pp. 925-926; W. Huisman and E. van Sliedregt, supra note 8, p. 827.
6 HR&ILD 1 (2012) 27
Antje K.D. Heyer
not unequivocally pronounce on the issue, it is fair to say that they implicitly
considered that there was not even actus reus in such cases.
C. THE CASE LAW OF THE AD HOC TRIBUNALS
After more than four decades of discontinuity, two of the - unfortunately far more -
contemporary conflicts led to a resurrection of international criminal law practice.
The UN Security Council established the ICTY in 199361 and the International
Criminal Tribunal for Rwanda (ICTR) in 199462 respectively. The case law of both
these tribunals has contributed not only to the development of international criminal
law as such but also immensely increased scholarly interest in this formerly unattended
branch of law.
Both the ad hoc tribunals have repeatedly applied the particular mode of 'aiding
and abetting' to acts committed on the territory of the former Yugoslavia and in
Rwanda. However, they were never faced with a genuine business case.63 Their case
law still gives valuable hints as to the general thresholds of accomplice liability in
contemporary international criminal law.
1. ACTUS REUS AND CAUSATION IN THE LAW
The objective threshold of aiding and abetting liability as defined by the ad hoc
tribunals' case law is that 'the acts of the accused must be direct and substantial'.64
Possible conduct entailing accomplice liability includes providing resources under the
accused's authority, e.g. personnel, as well as identifying and suggesting modes of
capturing the future victims. 65
The first element of the ad hoc tribunals' definition of aiding and abetting is that
the acts of the accused must be 'specifically directed to assist, encourage, or lend
moral support to the perpetration of a certain specific crime'. 66 However, this element
has never gained practical relevance in the case law and has thereby lost much of its
61 See UNSC, Resolution 827 (S/RES/827) (1993).

62 See UNSC, Resolution 955 (S/RES/955) (1994).
63 References supranote 26.
64 ICTY Trial Chamber 7 May 1997, Prosecutor v. Dugko Tadik, Opinion and Judgement, No. IT-94-
1-A, para. 691. This definition is also cited by UNHRC, supra note 14 ('Clarifying'), para. 36, and
applied by United States District Court, Southern District of New York, supra note 9.
65 ICTR Appeals Chamber 28 November 2007, Ferdinand Nahimana, Jean-Bosco Barayagwiza &
Hassan Ngeze v. Prosecutor, Judgement, No. ICTR-99-52-A, para. 672; ICTY Appeals Chamber
9 May 2007, Prosecutor v. Vidoje Blagojevit & Dragan Joki, Judgement, No. IT-02-60-A, para. 127.
66 ICTY Appeals Chamber 9 May 2007, supra note 65, para. 127; ICTY Trial Chamber 7 May 1997,
supra note 64, para. 229.
28 Intersentia
initial importance.67 Its main impact is that aiding and abetting a crime presupposes
neither involvement in the physical perpetration of the actus reus nor presence at the
crime scene.68 Accordingly, John Ruggie rightly notes that under international
criminal law standards, assistance need not be related temporally or physically to the
abuse. 69
The second criterion stipulates that the acts of the accused must have had a
substantial effect on the commission of the crime. The ad hoc tribunals have not
clearly defined when this criterion is met. However, a closer look at the case law reveals
that any act of complicity in international crimes must show a causal link with the
ultimate resulting harm.70 In the Blagojevie & Jokie case, Jokid had divulged
information about the future victims' whereabouts. 71 However, he had passed that
information on to a person who was not involved in the commission of the crime.
Hence, this specific act had no effect on the commission of the crime at all. Jokid was
found not guilty under this charge. Still, causality as assessed by applying the formula
of conditio sine qua non is not deemed necessary.72 Instead, the test applied is whether
the actus reus most probably would not have taken place as it did had nobody acted in
the role of the accused.73
The test of causality applied thus refers to the concept of 'harm as it took place'.
The accomplice's act must have influenced the modalities of how the crime was
committed, e.g. time, place, identity of victims, weapons used, or methods employed
in impeding and discarding causal chains that could have prevented its commission.
As the accomplice's act causes the criminal harm only indirectly, the ad hoc tribunals'
67 Cf. ICTY Appeals Chamber 5 May 2009, Prosecutor v. Mile Mrklid & Veselin 9ljivanianin,
Judgement, No. IT-95-13/1-A, para. 159; ICTY Appeals Chamber 27 September 2007, Prosecutor v.
Fatmir Limaj et al., Judgement, No. IT-03-66-A, para. 123; ICTY Appeals Chamber 9 May 2007,
supra note 65, paras 184-189; ICTY Trial Chamber 1110 June 2010, Prosecutor v. Vujadin Popovi6
et al., Judgement and Sentence, No. ICTY-05-88-T, para. 1014; N. Farrell, Attributing Criminal
Liability to Corporate Actors: Some Lessons from the International Tribunals, 8 Journal of
International Criminal Justice 890 (2010); H. Vest, supra note 1, p. 857.
68 Cf. ICTY Trial Chamber 7 May 1997, supra note 64, paras 689, 691.
69 UNHRC, supra note 14 ('Framework'), para. 77.
70 Cf. ICTY Trial Chamber 10 December 1998, Prosecutor v. Anto Furundiija, Judgement, No. IT-95-
17/1-T, para. 233; ICTY Trial Chamber 7 May 1997, supra note 64, para. 688. John Ruggie's finding
(see UNHRC, supra note 14 ('Clarifying'), para. 37) that according to the ad hoc tribunals, the
accomplice 'need not cause, or be a necessary contribution to', the commission of the crime, does
not oppose this understanding, as is clearly shown by his following statement (ibid., para. 38) that
the assistance 'must facilitate the crime in some significant way'.
n Cf. ICTY Trial Chamber 1 17 January 2005, Prosecutor v. Vidoje Blagojevi6 & Dragan Jokid,
Judgement, No. IT-02-60-T, para. 765 and ICTY Appeals Chamber 9 May 2007, supra note 65,
para. 310.
72 ICTY Appeals Chamber 5 May 2009, supra note 67, para. 200; ICTY Appeals Chamber 9 May 2007,
supra note 65, paras 127, 134; ICTR Trial Chamber II 22 January 2004, Prosecutor v. Jean de Dieu
Kamuhanda, Judgement, No. ICTR-95-54A-T, para. 597; ICTY Trial Chamber 10 December 1998,
supra note 70, para. 233.
7 ICTY Trial Chamber 7 May 1997, supra note 64, para. 688.
6 HR&ILD 1 (2012) 29
Antje K.D. Heyer
test does not require absolute certainty of the accomplice's influence. Rather, the
relation between the accomplice's act and the occurrence of criminal harm is assessed
against probability considerations. This is especiallyimportant in cases ofpsychological
assistance. Apart from the philosophical controversy concerning whether any decision
taken by an individual is, as a matter of principle, independent from other causes, we
can conclude from observation and experience whether it is probable or not that one
person will perform a certain act after having interacted with another in a certain
way. Hence, in each case the test of causality can be formulated in terms ofa conditional
clause with the relationship between condition and consequence being expressed in
terms of statistical correlation.
In applying the 'substantial' criterion, the case law assesses the significance of the
assistance rendered by the accused. According to this test, the accused's position of
authority and his capacity to act independently and proactively can be decisive
factors. 4 However, assessing the accused's position of authority and his capacity to
act independently and proactively implies a concept distinct from causality, namely, a
purely normative assessment of responsibility. So far, this criterion has not yet come
into operation in the case law of the ad hoc tribunals, as they have never been
confronted with cases necessitating its application, in particular business cases.
2. MENS REA AND THE KNOWLEDGE APPROACH
With regard to mens rea, the aider and abettor must, in principle, know that his acts
are furthering the commission of the crime by the principal perpetrator. 75 In his
analysis, Special Representative John Ruggie embraces this standard.76 It has, however,
been recently challenged by an appellant in the Sainovie et al. case.77 The appellant
refers to a recent decision78 by a US court in the 2nd circuit under the ATS in the
Talisman case, requiring purpose as an adequate standard for criminal complicity
under international custom. This decision emphasises the difficulties US courts face
in applying customary international law. The court refrained from pronouncing on
whether the knowledge standard was already firmly established by international
7 Cf. ICTY Appeals Chamber 9 May 2007, supra note 65, paras 132, 194-198; ICTY Appeals Chamber
28 November 2006, Prosecutor v. Blagoje Simid, Judgement, No. IT-95-9-A, paras 114-116.
7s ICTY Appeals Chamber 9 May 2007, supra note 65, para. 127; ICTY Appeals Chamber 28 November
2006, supra note 74, para. 86; ICTR Appeals Chamber 7 July 2006, Le Procureur c. Andr6 Ntagerura
et al., Judgement, No. ICTR-99-46-A, para. 375; ICTY Trial Chamber 1110 June 2010, supra note 67,
para. 1016; ICTR Trial Chamber II 22 January 2004, supra note 72, para. 599.
77 Cf. ICTY Appeals Chamber 4 December 2009, Prosecutor v. Nikola Sainovi6 et al., Decision on
Dragoljub Ojdanik's Second Motion to Amend his Notice of Appeal, No. IT-05-87-A, para. 9.
78 United States Court of Appeals for the Second Circuit 2 October 2009, The Presbyterian Church of
Sudan v. Talisman Energy, Inc., Judgement, No. 07-0016-cv.
30 Intersentia
custom and therefore applied a very narrow purpose standard as a'fallback position'.79
One may wonder whether the court's ruling was further influenced by policy
considerations, as the District Court sitting in first instance largely elaborated on the
assumption that the alleged corporate behaviour 'generally accompan[ies] any natural
resource development'.80 However, one may reliably assume that the ICTY's Appeals
Chamber will not declare its ten-year history of case law null and void.81 According to
this case law, knowledge of the commission of the crime in its general outlines is
sufficient to establish mens rea.82 The aider and abettor need not know the specific
crime that will be committed.8 3 However, he needs to be conscious that his acts assist
the commission of the crime.84 Purpose is required with regard neither to assisting
the perpetrator nor to furthering the occurrence of the ultimate harm.85 Lawful
purposes concurrently pursued by the accused are considered irrelevant motives.86
Knowledge maybe proved, as John Ruggie points out, through records of meetings or
7 Cf. United States Court of Appeals for the Second Circuit, supra note 78, pp. 39-56.
so United States District Court, Southern District of New York 12 September 2006, The Presbyterian
Church of Sudan v. Talisman Energy, Inc., Opinion and Order, No. 01 Civ. 9882 (DLC), pp.71-72.
1 Somewhat controversial is the question whether the aider and abettor must, if applicable, share the
special intent of the principal perpetrator. The ICTY Appeals Chamber found that the aider and
abettor in persecution, an offence with a specific intent, need not share the intent but merely must
be aware of the discriminatory context in which the crime is to be committed (see ICTY Appeals
Chamber 28 November 2006, supra note 74, para. 86; ICTY Appeals Chamber 28 February 2005,
Prosecutor v. Miroslav Kvodka et al., Judgement, No. IT-98-30/1-A, para. 110; ICTY Appeals
Chamber 17 September 2003, Prosecutor v. Milorad Krnojelac, Judgement, No. IT-97-25-A,
paras 52, 111). According to the same chamber, the same applies to aiding and abetting the crime of
genocide (see ICTY Appeals Chamber 9 May 2007, supra note 65, paras 119-124, 127; ICTY Appeals
Chamber 19 April 2004, Prosecutor v. Radislav Krstid, Judgement, No. IT-98-33-A, paras 140-141).
However, the ICTR held that where a person is accused of aiding and abetting genocide, it must be
proved that such a person acted with specific genocidal intent (see ICTR Trial Chamber I 2 September
1998, Prosecutor v. Jean-Paul Akayesu, Judgement, No. ICTR-96-4-T, para. 547). Most convincing
is the concept argued inter aliaby C. Kre8 (The Darfur Report and Genocidal Intent, 3 Journal of
International Criminal Justice 562-578 (205)) that the genocidal intent of all individual perpetrators
consists of the individual's (a) knowledge of a genocidal campaign and (b) at least dolus eventualis
as regards the at least partial destruction of a protected group.
82 ICTR Appeals Chamber 28 November 2007, supra note 65, para. 482; ICTY Appeals Chamber
28 November 2006, supra note 74, para. 86; ICTY Trial Chamber 11 10 June 2010, supra note 67,
para. 1017; ICTR Trial Chamber 1122 January 2004, supra note 72, para. 599.
8 ICTY Appeals Chamber 5 May 2009, supra note 67, paras 49, 159; ICTY Appeals Chamber
28 November 2006, supra note 74, para. 86; ICTR Trial Chamber 1122 January 2004, supra note 72,
para. 599. This finding is endorsed by John Ruggie (see UNHRC, supra note 14 ('Clarifying'),
para. 42).
84 Cf. ICTY Appeals Chamber 5 May 2009, supra note 67, para. 210; ICTY Appeals Chamber
25 February 2004, Prosecutor v. Mitar Vasiljevid, No. IT-98-32-A, Judgement, para. 102; ICTY Trial
Chamber 1110 June 2010, supra note 67, para. 1500; ICTR Trial Chamber 1122 January 2004, supra
note 72, paras 599-600.
8 ICTY Appeals Chamber 5 May 2009, supra note 67, para. 159; ICTY Appeals Chamber 29 July 2004,
Prosecutor v. Tihomir Blalkit, Judgement, No. IT-95-14-A, para. 49.
86 ICTY Trial Chamber 1110 June 2010, supra note 67, paras 1500-1501, 2011.
6 HR&ILD 1 (2012) 31
Antje K.D. Heyer
the context of the business transaction, such as unusually large orders for harmful
chemical substances.8 7
3. CONCLUSIONS TO BE DRAWN FROM THE AD HOC

TRIBUNALS' CASE LAW
The case law indicates that any act of complicity in international crimes must show a
causal link with the ultimate resulting harm. However, causality is assessed in relation
to the harm as it took place and against probability considerations. The ad hoc
tribunals have not yet dealt with business cases and, in particular, the question of
'neutral' acts furthering the commission of crimes under international law. Their case
law, however, shows that the accused's position of authority and his capacity to act
independently and proactively may be relevant in assessing individual criminal
responsibility. The actus reus of aiding and abetting in crime must be committed with
knowledge. The accomplice must hence be aware both that the ultimate harm will
probably occur in the ordinary course of events and that his act is designed to further
the crime.
4. ATS PERSPECTIVES IN LIGHT OF THE AD HOC TRIBUNALS'

CASE LAW
Given the continuous account of the ad hoc tribunals' case law on accomplice liability
under customary international law, further reference to this jurisprudence by US
courts applying the ATS could help in aligning international law standards. In
particular, US courts might reconsider what mens rea standard should be applied to
complicity under the ATS. As discussed above, the ad hoc tribunals have clearly taken
their stand for the knowledge approach. Their authority concerns international
criminal law, whereas the ATS jurisprudence deals with civil tort liability. However,
when considering that from a moral viewpoint, criminal culpability weighs more
heavily than tort liability and therefore should be more narrowly defined, theoretical
considerations should not prevent US courts from applying the knowledge standard
to complicity cases under the ATS.
D. GENERAL PRINCIPLES OF CRIMINAL LAW: CURTAILING

ACCOMPLICE LIABILITY IN BUSINESS CASES
According to article 21(l)(c) Rome Statute the ICC may take into account general
principles of criminal law. Finding general principles of criminal law requires a
comparative analysis of distinct legal systems. National legal systems are often
32 Intersentia
classified as 'Civil Law' or 'Common Law' systems. Research on business criminality

and on how national legal systems deal with this phenomenon reveals that in particular
German and US courts and theorists address the corresponding legal problems in a
domestic context. German doctrine and practice have, over the last twenty years,
elaborated on the problem of business activities furthering the commission of crimes
under the heading of 'neutral acts'.88 Likewise, Anglo-American doctrine and practice
discuss whether and under what preconditions assisting the perpetrator of a crime in
the ordinary course of business might incur criminal liability.89 Furthermore, a
review of US and German law allows comparison of approaches in two major
representatives of both a 'Common Law' and a 'Civil Law' system. 90 The following
analysis demonstrates that these approaches may also help in addressing similar
problems arising on a transnational scale.
1. DOMESTIC CRIMINAL LAW AND THE COMPLEXITIES OF

BUSINESS CASES
The paradigmatic case of both these discussions is the shopkeeper who sells a
commodity with knowledge about his customer's intention to use the merchandise in
the commission of a crime.91 On the one hand, the shopkeeper's act is objectively fit to
assist the principal. 92 Furthermore, the act has an effect on the commission of the
88 Several monographs have been published, in particular by H. Kudlich, Die Unterstuitzung fremder
Straftaten durch berufsbedingtes Verhalten (Berlin, 2004) and by P. Rackow, Neutrale Handlungen
als Problem des Strafrechts (Frankfurt am Main, 2007). See also K. Pilz, Beihilfe zur
Steuerhinterziehung durch neutrale Handlungen von Bankmitarbeitern (Frankfurt am Main,
2001); M. Wolff-Reske, Berufsbedingtes Verhalten als Problem mittelbarer Erfolgsverursachung:
Ein Beitrag zu den Grenzen der Beihilfestrafbarkeit (Baden-Baden, 1995).
89 Cf. A. Ashworth, Principles of Criminal Law 419 (Oxford, 2006, 5th ed.); J.Herring, Criminal Law:
Text, Cases, and Materials 916 (Oxford, 2006, 2nd ed.); K. Smith, A Modern Treatise on the Law of
Criminal Complicity 143 ss. (Oxford, 1991); G. Williams, Textbook of Criminal Law 342 (London,
1983, 2nd ed.); W. Wilson, Criminal Law: Doctrine and Theory 594-595 (London/New York, 1998).
9o Although affirmatively defining general principles of criminal law features comparative analysis of
as many domestic legal systems as possible, focusing on two influential representatives of both
major systems can help in carving out their common denominator. This is especially true for very
specific and controversially discussed problems such as the one in question here. On the topic of
comparative legal analysis in an international criminal law context see P. Rackow, supra note 4,
437 ss. On comparison of 'common' and 'civil' criminal law see F. Morrison, No Left Turn: Two
Approaches to International Law, in: K. Dicke et al. (eds), Weltinnenrecht: Liber amicorum Jost
Delbrick 461 (Berlin, 2005); H. Vest, Genozid durch organisatorische Machtapparate: An der
Grenze von individueller und kollektiver Verantwortlichkeit 235 (Baden-Baden, 2002).
91 I. Dennis, The mental element for accessories, in: P. Smith (ed.), Criminal Law: Essays in Honour of
J.C. Smith 42 (London, 1987). See also American Law Institute (ed.), Model Penal Code and
Commentaries (Official Draft and Revised Comments): Part I.General Provisions 316 (Philadelphia,
1985).
92 Cf. A. Ashworth, supra note 89, p. 419.
6 HR&ILD 1 (2012) 33
Antje K.D. Heyer
crime.93 On the other hand, the act is part of an otherwise lawful activity that bears no
inherent or necessary relation to criminal conduct. 94 It is 'normal' in a positive sense.
Among the examples in doctrine and practice of both legal systems, we can
distinguish several types of economic relationship between the principal perpetrator
and the potential aider and abettor. The 'basic version' is the individual businessman
offering services or goods on own account, e.g. selling chemicals. However, most
services and goods nowadays are provided by smaller or larger business corporations.
Although their executives do not trade on their own account, they can be considered
to be in a position similar to that of the individual businessman. They act as agents of
the corporation and make decisions on behalf of the corporation, which they have to
justify vis-a-vis other stakeholders. Their remuneration is often dependent on the
company's profit. By contrast, simple employees of the corporation come within a
distinct category. They merely execute decisions taken by the management, e.g.
delivering the chemicals sold by the corporation. Decisions of executives might be
specific or leave leeway for modifications by the employee on a case-by-case basis.
The comparative analysis of Anglo-American and German law reveals a variety of
conceptual approaches to business behaviour furthering crime. These approaches
allow for modifications of accomplice liability standards with regard to business-
related activities. In principle, five conceptual approaches are under discussion:
adjusting objective elements of aiding and abetting liability;95 adjusting subjective
elements of aiding and abetting liability;96 admitting a particular defence; 97 balancing
evils on a case-by-case basis;98 and providing for particular exemptions from criminal
9 Cf. A.Ashworth, supra note 89, p. 419.

94 A. Simester, The Mental Element in Complicity, 22 Law Quarterly Review 589 (2006). See also
A. Ashworth, supra note 89, p. 419.
9s Cf. L.Alexander and K. Ferzan, Crime and Culpability: a Theory of Criminal Law 224 (Cambridge,
2009); G. Dannecker, Die Dynamik des materiellen Strafrechts unter dem Einfluss europiischer
und internationaler Entwicklungen, 117 Zeitschrift fir die gesamte Strafrechtswissenschaft 717
(2005); J. Dressler, Reassessing the Theoretical Underpinnings of Accomplice Liability: New
Solutions to an Old Problem, 37 Hastings Law Journal 102 ss. (1985/86); W. Frisch, Beihilfe durch
neutrale Handlungen: Bemerkungen zum Strafgrund (der Unrechtskonstitution) der Beihilfe, in:
C. Prittwitz et al. (eds), Festschrift fir Klaus Luderssen 544 ss. (Baden-Baden, 2002); W. Frisch,
Tatbestandsmdliges Verhalten und Zurechnung des Erfolgs 295 ss. (Heidelberg, 1988); W. Hassemer,
Professionelle Adiiquanz, 24 wistra 81 ss. (1995); I. Puppe, Die Lehre von der objektiven Zurechnung,
dargestellt an Beispielsfallen aus der hochstrichterlichen Rechtsprechung: IV. Zurechnung bei
mehreren Beteiligten, 20 Juristische Ausbildung 27 (1998); Th. Weigend, Grenzen strafbarer
Beihilfe, in: A. Eser et al. (eds), Festschrift fir Haruo Nishihara zum 70. Geburtstag, Vol. 5 208-209
(Baden-Baden, 1998).
96 K. Smith, supra note 89, pp. 15 0 - 16 0 . For similar reasoning see B. Weiss, What Were They Thinking?
The Mental States of the Aider and Abettor and the Causer under Federal Law, 70 Fordham Law
Review 1487 ss. (2002).
9 Cf. P. Rackow, supra note 88, pp. 552-553. W. Wilson, supra note 89, p. 596; W. Wilson, A Rational
scheme of Liability for Participating in Crime, Criminal Law Review 16 (2008).
98 Cf. A. Ashworth, supra note 89, p. 420. See also A. Simester et al., Criminal Law: Theory and
Doctrine 226 (Oxford/Portland, 2010, 4th ed.).
34 Intersentia
liability.99 The latter three approaches are based on inductive reasoning. They take up
the phenomenon of 'normal', 'unsuspicious', 'ordinary' acts and then concentrate on
attaining the most equitable outcome. By contrast, solutions based on adjusting either
objective or subjective elements of accomplice liability rely on criminal law principles
and are thus deductive approaches. Most authors from both legal systems combine
inductive and deductive reasoning as well as two or more of the aforementioned
approaches.
However, in both legal systems doctrine and practice have not yet settled on one
technically best approach. Furthermore, Anglo-American doctrine and practice
slightly favour a solution based on general considerations of mens rea or a particular
defence, whereas German doctrine and practice prefer a combination of objective and
subjective elements. From a technical point of view, a comparative analysis of these
two important legal systems shows that it is not possible to formulate a general
principle of criminal law on business-related acts that further the commission of
crimes but are nevertheless criminally 'neutral'.
2. GENERALLY APPLICABLE CRITERIA FOR ASSESSING

INDIVIDUAL CRIMINAL RESPONSIBILITY IN BUSINESS CASES
Despite these technical differences, both Anglo-American and German law, in

substance, rely on the same criteria for assessing whether business-related acts
furthering the commission of crimes are criminally 'neutral' or relevant. Authors
from both legal systems acknowledge that the question of ordinary business behaviour
furthering crime is one that calls for recourse to the foundations of criminal law,
namely, what acts should be penalised and why.100
Criteria discussed include the probability of harm occurrence, the value at risk,
the social utility of the act furthering crime, and the social context as such.' 0
Individual liberty and social utility resulting from the exercise of this liberty have to
be weighed against protecting victims and society from harm.102 There is much to be
said in favour of individual liberty and social utility. Fundamental economic
relationships between citizens should not become hampered by suspicion and distrust
resulting from threats of criminal liability. The criminal law should not overly
9 G. Williams, Complicity, Purpose and the Draft Code, Criminal Law Review 20-21 (1990).
1oo Cf. Chr. Clarkson et al., Clarkson and Keating: Criminal Law: Text and Materials 20 (London, 2007,
6th ed.). See also A. Ashworth, supra note 89, p. 425; K.-H. Gossel, Oberlegungen zum sog.
'Strafgrund' der Teilnahme, in: Kurakes, Nestar E. (ed.), Hoi poinikes epistames ston 21. ai6na:
timatikos tomos gia ton kathegetZ Dionysio Spinelle, Vol. 1381 (Athens., 2001); S. Kadish, Reckless
Complicity, 87 Journal of Criminal Law and Criminology 391 (1997).
101 Cf. Chr. Clarkson et al., supra note 100, p. 20. See also A. von Hirsch, Extending the Harm Principle:
"Remote" Harms and Fair Imputation, in: A. Simester and A. Smith (eds), Harm and Culpability
261 (Oxford, 1996).
102 A. Simester, supra note 94, p. 591.
6 HR&ILD 1 (2012) 35
Antje K.D. Heyer
discourage activities that benefit society as a whole by adding value and creating
wealth. 103 Economic transactions protected by civil law should not be burdened with
criminal law questions. 104 Economic actors should not be labelled as acting in a prima
105
facie deviant manner and thus bear the burden of proof and the risk of litigation.
The importance attached to these criteria in discussing business activities shows
that ultimately, the judge has to decide whether the accused has merely made use of
liberties he is entitled to or whether he has transgressed these liberties' limitations at
the expense of the value protected by criminal law. The need to make such a judgement
raises the question whether the risk created by the business-related, socially accepted
act is also socially acceptable and thus not criminal.
This question cannot be answered merely by increasing the objective or subjective
thresholds of accomplice liability. In particular, ordinary business behaviour may well
be causally related to the ultimate harm, even when applying a strict theory of sine qua
non. Furthermore, the corporation's agent or employee might only incidentally know
about the criminal intention of the customer, or the crimes of a totalitarian regime
could be common knowledge among the oppressed population. Requiring purpose
for aiding and abetting liability would contravene the well-founded principle that
motive is irrelevant in assessing mens rea. Admitting a particular defence would
presuppose an exceptional situation in which the accused was required to act. But the
opposite is true in our cases: circumstances are so ordinary and ubiquitous that they
appear criminally 'neutral', not the other way round. Relying solely on a balancing of
evils or broad exemptions from liability on a case-by-case basis would strongly
contravene the principle of legal certainty in what is a field of considerable practical
importance.
However, risk evaluation in terms of social utility is not alien to criminal law. This
concept is often referred to in discussing recklessness, which presupposes consciously
taking an unjustifiable or unreasonable risk. 106 Whether a certain risk is unjustifiable
is assessed objectively.10 7,108 Criteria for risk assessment aim at evaluating whether
103 A. Simester, supra note 94, pp. 579, 591.

104 For similar reasoning see G. Mueller, The Mens Rea of Accomplice Liability, 61 Southern California
Law Review 2186 (1988).
10 Cf. L. Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 California
Law Review 944 (2000).
106 Cf. A. Ashworth, Criminal Liability in a Medical Context: the Treatment of Good Intentions, in:
A. Simester and A. Smith (eds), Harm and Culpability 175 ss. (Oxford, 1996); K. Hamdorf, The
Concept of a Joint Criminal Enterprise and Domestic Modes of Liability for Parties to a Crime,
5 Journal of International Criminal Justice 223-224 (2007); M. Lee and J. Gailey, Attributing
Responsibility for Organizational Wrongdoing, in: H. Pontell and G. Geis (eds), International
Handbook of White-Collar and Corporate Crime 56 (New York, 2007); G. Williams, The Mental
Element in Crime 30-31 (Jerusalem, 1965).
107 However, the accused has to be subjectively conscious of it.
1os P. Robinson, Competing Theories of Justification: Deeds v. Reasons, in: A. Simester and A. Smith
(eds), Harm and Culpability 58 (Oxford, 1996).
36 Intersentia
the defendant has made a socially acceptable choice under the circumstances. 109
Hence, if we inquire whether delivering a product or supplying a service to criminals
was criminal or not, this leads us to the question whether the decision was a socially
acceptable one under the circumstances.
Comparative analysis of criminal law principles on business activities furthering
the commission of crimes thus reveals that technically, domestic criminal law
concepts on the matter are not yet elaborated and largely differ from each other.
However, criteria under discussion are comparable in substance. These criteria include
the probability of harm occurrence, the value at risk, the social utility of the act
furthering crime, and the social context as such. All of them are embraced by the
fundamental notion of socially acceptable choice, which refers to general thresholds
of penalisation.
E. ACCOMPLICE LIABILITY IN INTERNATIONAL

CRIMINAL LAW: A THEORETICAL APPROACH
The Nuremberg precedents and comparative analysis of law have revealed that the
problem of criminal complicity through business activity refers to the foundations of
criminal law, namely, what acts transgress the threshold between socially acceptable
behaviour and complicity in crime. To further explore this question I will briefly
discuss the foundations of international criminal law in general and of complicity in
particular, that is, issues of legitimacy. I will in turn concentrate on a criminological
analysis of both crime committed in pursuance of one's occupation and gross human
rights violations. These findings will allow some preliminary conclusions on business
cases under international criminal law that, in turn, call for further research and, in
particular, for application by the concerned actors.
1. LEGITIMACY AND LIMITATIONS OF ACCOMPLICE LIABILITY

IN INTERNATIONAL CRIMINAL LAW
In theory, international tribunals should focus on the most responsible persons. 110
However, international crimes - with the exception of the crime of aggression - are
109 Cf. A. Ashworth, supra note 106, p. 176; M. Lee and J.Gailey, supra note 106, p. 56; A. Smith, On
Actus Reus and Mens Rea, in: P. Glazebrook (ed.), Reshaping the Criminal Law: Essays in Honour
of Glanville Williams 101 (London, 1978); G. Williams, supra note 106, pp. 30-31.
no International criminal law and its legitimacy have been subject to controversial discussion ever
since it came to life in Nuremberg. However, with the accession of more than 110 states parties to
the Rome Statute, the legitimacy of international criminal law as such can no longer be doubted.
Still, shadows of doubt may be cast on international criminal law legitimacy when it comes to
selecting the persons to be indicted. On this subject see St. Parmentier, K. Vanspauwen and
E. Weitekamp, Dealing with the Legacy of Mass Violence: Changing Lenses to Restorative Justice,
6 HR&ILD 1 (2012) 37
Antje K.D. Heyer
not merely leadership crimes. That is, the simple soldier may commit war crimes,
crimes against humanity and genocide as well as his general. Furthermore, the simple
soldier is usually the principal perpetrator because he executes the actus reus of the
crime with his own hands. Hence, the net of participation in international criminal
law is wide open. Consider a large corporation producing various chemicals and
selling them to a criminal government. The president advises the secretary of state to
order the general to use the chemicals in a widespread and systematic attack against
an unwelcome civilian population. The complete political and military chain of
command involved in the attack may incur individual criminal responsibility for
crimes against humanity. Moreover, the corporation's top executives, lower
management and employees may all be involved in concluding the business and
processing the order. The question is whether, and under what preconditions, they all
incur individual criminal responsibility for crimes against humanity.
This question touches upon the legitimacy of international criminal law as such.
Stigmatising complete social groups for involvement in the most serious crimes
recognised by mankind certainly calls for justification. International criminal justice
aims at preventing those serious crimes which concern mankind as a whole. 111 It thus
focuses on deterrence with a special emphasis on educative deterrence. In other words,
enforcing international criminal law norms contributes to raising, increasing and
consolidating global awareness of the values protected by international law, i.e. to
strengthening the international rule of law. International criminal law furthermore
serves to incapacitate actors in ongoing macro-criminal conflicts and helps societies
in dealing with a violent past.
However, these aims and purposes of international criminal justice can only
justify criminalisation of otherwise lawful behaviour if criminalisation is generally
adequate and proportionate to pursuing these aims and purposes effectively under
the circumstances. For this threshold to be met, mankind would need to perceive an
absolute necessity in preventing the business activities in question because they are
in: A. Smeulers and R. Haveman (eds), Supranational Criminology: Towards a Criminology of

International Crimes 339 ss. (Antwerp, 2008). In particular, the ICTY has indicted and convicted
some minnows while the big sharks were still swimming in the ocean of impunity. This may duly be
criticised and commensurate efforts have to be made to reduce selectivity in international criminal
law proceedings.
1 M. Ch. Bassiouni, A Draft International Criminal Code and Draft Statute for an International
Criminal Tribunal 54 (Dordrecht, 1987); R. Cryer, H. Friman, D. Robinson and E. Wilmshurst,
supra note 10, p. 23; N. Roht-Arriaza, Punishment, Redress, and Pardon: Theoretical and
Psychological Approaches, in: N. Roht-Arriaza (ed.), Impunity and Human Rights in International
Law and Practice 17, 23 (New York/Oxford, 1995); Chr. Safferling, The Justification of Punishment
in International Criminal Law, 4 Austrian Review of International and European Law 156 (1999);
0. Triffterer, Der standige Internationale Strafgerichtshof - Anspruch und Wirklichkeit:
Anmerkungen zum "Rome Statute of the International Criminal Court" vom 17. Juli 1998, in:
K. Gossel and 0. Triffterer (eds), Gedichtnisschrift fur Heinz Zipf 449 ss. (Heidelberg, 1999);
G. Werle, Menschenrechtsschutz durch V6lkerstrafrecht, 109 Zeitschrift fiur die gesamte
Strafrechtswissenschaft 821 (1997).
38 Intersentia
furthering international crimes. Our global economy, though, includes and relies on
business activities, such as the arms industry, that are prone to be abused for
committing gross human rights violations. These branches are nevertheless deemed
vital to our economic and political order. Moreover, globalisation of markets causes,
on the one hand, detachment and anonymity in business relationships and, on the
other hand, interdependency of economic, political and social actors. Accordingly, on
the one hand political and social control over supply chains proves difficult and, on
the other, goods and services not inherently linked to violent conflict, such as
chemicals, logistics and financing, also become susceptible to being abused in gross
human rights violations. Furthermore, our age's belief in progress incites the feasible
to be done, regardless of ethical consequences, and to be used commercially.
Investing in conflict zones provides a good example to illustrate these observations.
Typically, two or more opposing social groups, one of them often in government, will
engage in violent conflict involving the commission of gross human rights abuses
amounting to international crimes. Under such circumstances, mechanisms of social
control have failed. The conflicting political actors will usually exercise economic
power as well, e.g. by controlling resources and granting concessions to enterprises.
Economic actors that a prioriare not involved in this conflict, typically multinational
corporations, face the dilemma either of interacting with the conflicting parties or of
abstaining from investing in such a zone. By interacting with the parties, they might
slide into furthering their criminal activity. By abstaining from investing in such a
conflict zone, they might, however, not only miss out on creating value and employment
but also deprive the suffering local population of (re)gaining prosperity, wealth and
thereby peace.
Notwithstanding the moral and political assessment of these findings, we have to
observe their social and economic reality; nor can criminal law theory ignore them.
Accordingly, mankind might abstain from stigmatising by criminal law certain
business activities although they are furthering international crimes because the
benefit of preventing these acts cannot justify the deprivation of individual liberty
and social value. Accordingly, not only comparative law analysis but also considerations
of international criminal law theory compel any interpretation of international
criminal law to take these principles into account.
2. CRIMINOGENIC PATTERNS INFORMING BUSINESS

ACTIVITIES THAT FURTHER INTERNATIONAL CRIMES
Criminological analysis refers less to technical aspects ofcriminal law and concentrates
on the criminal, the victim, the social preconditions and the social effects of the crime.
In our cases, the social role of many potential criminals is such that their milieu
expects them to carry out an act furthering the commission of crime. Those persons
are not driven by political conviction or by emotion. On the contrary, under ordinary,
6 HR&ILD 1 (2012) 39
Antje K.D. Heyer
peaceful socio-political circumstances, those individuals would probably never get

involved in criminal activity.112 Business activities furthering the commission of
international crimes thus show two characteristics amenable to criminological
analysis: first, the macro-criminal context of crimes under international law and
second, the social context of otherwise lawful economic activity.
Macro-criminal behaviour features the nexus of group dynamics and individual
participation. 113 The latter inherently depends on the systemic context which creates
a very special background for individual decision-making. The individual criminal
act presupposes a conflict that involves the community as a whole and as such, is
determined by events and developments on the macro level. 114 On the macro level,
however, social norms are twisted. Government representatives, state agents and
influential individuals disrespect basic human rights on a large scale. In this sense,
individual criminal behaviour is not deviant, but compliant. The criminal individual
is functionally intertwined with a criminally infected society. Under these
circumstances, attribution of responsibility proves far more complex than in ordinary
criminal cases.
Business criminality, more popularly known as white collar crime, shows the
same criminogenic patterns."s Business competition puts economic actors under
pressure to adopt any, even illegal means. Subcultures may evolve that encourage new
members to do'as everybody does'. One feels 'in good company'. Risk of exposure and
punishment is low and is not perceived as a threat, as peers and authorities of the same
social group would not reckon it a stigma. Attribution of responsibility proves difficult
owing to the division of labour and complex decision-making processes.
These general criminogenic patterns apply to all acts of complicity in international
crimes through business activities. However, the scope of such complicity is broad, as
already indicated by the discussion of business complicity in domestic criminal law.
Entrepreneurs and corporate agents, such as executives, have to be distinguished from
112 Cf. A. Smeulers, Perpetrators of International Crimes: Towards a Typology, in: A. Smeulers and
R. Haveman (eds), Supranational Criminology: Towards a Criminology of International Crimes
234 (Antwerp, 2008).
113 H. Jiger, Makrokriminalitit: Studien zur Kriminologie kollektiver Gewalt 12 (Frankfurt am Main,
1989); Th. Rotsch, Individuelle Haftung in Grofunternehmen: Plidoyer fir den Riickzug des
Umweltstrafrechts 25 (Baden-Baden, 1998).
114 Cf. H. Ilger, supra note 113., pp. 27-28; N. Roht-Arriaza, supra note 111, pp. 14-15; D. Stoitchkova,
supranote 1, pp. 23-24.
us Cf. A.-E. Brauneck, Allgemeine Kriminologie 253-254 (Reinbek near Hamburg, 1974);
Chr. Burchard, supra note 1, p. 929; R. Hefendehl, supra note 1, p. 777; W. Huisman, Corporations
and International Crimes, in: A. Smeulers and R. Haveman (eds), Supranational Criminology:
Towards a Criminology of International Crimes 198-200 (Antwerp, 2008); M. Kremnitzer, A
Possible Case for Imposing Criminal Liability on Corporations in International Criminal Law,
8 Journal of International Criminal Justice 912 (2010); N. Shover, Generative Worlds of White-
Collar Crime, in: H. Pontell and G. Geis (eds), International Handbook of White-Collar and
Corporate Crime 89-90 (New York, 2007); D. Vaughan, Criminology and the Sociology of
Organizations, 37 Crime, Law and Social Change 126 (2002).
40 Intersentia
mere employees and business transactions within the criminal regime have to be
distinguished from those with outsiders. I will consider three prototypical examples.
My first example is the businessman being an outsider to the criminal regime. He
is the owner or a top executive of a large corporation that on a daily basis, but not
exclusively, deals with government agencies. He is an influential, well respected citizen
with extensive connections in business and politics. He is independent in his decision
whether to take up business relationships with the criminal regime and in framing
these relationships. Whenever a deal is concluded, contents and terms are fixed in the
agreement. Usually, information on the circumstances that render the activity
criminal will already be disclosed at this stage.
My second example is the criminal regime's employee. He is hierarchically
integrated into the criminal regime's bureaucracy. However, he has no decision-
making power whatsoever and his societal influence is negligible. He is free in joining
the bureaucracy but then his decisions are subject to his superior's directives. His only
option is to leave the system and thereby to accept the loss of his, and often also his
family's, economic livelihood. The contents of his work will be basically lawful except
for criminal directives given in a later stage of the economic relationship.
My third example is a combination of both the aforementioned types, that is, the
employee of the businessman in our first example. Let us recall chief gas technician
Drosihn from the Cyclon-B case. 16 His acquittal was based on his lack of involvement
in the company's business affairs and his inferior position. Half the year he was not
present at the company but travelling on business. He was not in a position to influence
or hinder the supply of Cyclon-B to Auschwitz. He thus represents a third type
combining aspects of the first and the second. Like his superior, he is not part of the
criminal regime's bureaucracy. However, like the criminal regime's employee he has
no decision-making power in business transactions but simply follows his superior's
directives. He generally will not get in touch with the principal perpetrators. In the
social and economic hierarchy, he stands below his superior. He cannot influence the
latter's decisions. However, he could withdraw his expertise and manpower from the
criminal undertaking. It might be that both his expertise and manpower are more or
less easily replaceable. Still, in making them available to the criminal undertaking, he
contributes causally to the occurrence of criminal harm.
Arguably, the Nuremberg Judgements were right in not qualifying this latter type
of contributor as an international criminal. International policy considerations
suggest a focus on the most responsible persons, and criminal law theory calls for the
criminal law instrument to be used as a last resort and proportionally. Last but not
least, common sense cautions against penalising whole societies or societal groups
that have undergone violent conflict. Exemplification of distinct prototypical business
accomplices thus shows that the aforementioned criteria - proximity with the
116 Cf. The Zyklon B Case, supra note 27, pp. 98-102.
6 HR&ILD 1 (2012) 41
Antje K.D. Heyer
principal perpetrators, i.e. the criminal regime, social and hierarchical position - do
play a role in normatively assessing responsibility.117
3. THE CASE OF BUSINESS COMPLICITY IN INTERNATIONAL

CRIMES: SPECIFIC RISK CREATION AND RESPONSIBILITY
Against the backdrop of the foregoing considerations, I will formulate a possible

approach to drawing a line between lawful business activity and business complicity
in international crimes.
To incur individual criminal responsibility for international crimes, corporate
agents and employees must further the commission of an international crime, that is,
increase the risk that the ultimate crime be committed. However, not all risk creation
entails criminal liability. As was demonstrated by analysing domestic criminal law
systems, only socially unacceptable risk creation constitutes criminal wrongdoing.
Still, the notion of socially unacceptable risk creation is rather vague and has to be
specified with regard to business cases and their particularities.
In assessing which risks are socially unacceptable, we may consider tracing the
foundations of the law back to the concept of a social contract.118 On the basis of
rational choice theory, individuals agree on a social contract for the mutual benefit of
all. Mutually granting and respecting each other's rights benefits each individual on
the long term. The social contract thus defines which acts are lawful because they
either benefit the acting individual without prejudicing another or because the acting
individual's or the society's benefit weighs more heavily than the individual or societal
prejudice caused. The result of this evaluation depends on what individual and societal
values a given society seeks to protect.
The given society we have to deal with in international law is a diversified, only
loosely constituted global society. Truly international institutions are rare. However,
today no one can deny that nation states are closely intertwined politically and
economically. The 'global village' is a reality, yet a uniform international regulatory
regime remains the exception. This value-pluralistic reality is based on formal-
procedural rationality as introduced by Max Weber. Procedural rationality is thus a
mode of decision-making global society can agree on as an intrinsic value. Formal-
procedural rationality also governs economic processes and market behaviour as well
as organisation and the division of labour.119 Individual procedural rationality is thus
not only socially acceptable by global consensus but is conceived of as a value in its
117 Chr. Burchard, supra note 1, p. 925; W. Huisman and E. van Sliedregt, supra note 8, p. 827.
us Cf. Chr. Safferling, supra note 111, pp. 131, 134.
n1 Cf. R. Matthews, Ordinary Business in Nazi Germany, in: R. Michalowski and R. Kramer, State-
Corporate Crime: Wrongdoing at the Intersection of Business and Government 131 (New
Brunswick, 2006).
42 Intersentia
own right. Economic activity has become the basis of individual survival, in particular
when employment is concerned.
In macro-criminal contexts, criminal leaders often abuse these mechanisms. They
use their positions as superiors to organise criminal activity. They exploit the division
of labour in order to diversify their power over the organised apparatus. Subordinates
and - in the case of totalitarian regimes - citizens become jammed in their narrowly
defined roles. The last resort of individual liberty is to make use of remaining rational
choice liberties. However, it is not only the individual who profits by making use of
such remaining liberties. In fact, society as a whole benefits from preserving the
exercise of such liberty.120 The rational exercise of individual liberties remains the
basis of functioning societies. Accordingly, restoring, rebuilding and keeping peace
within a society requires the exercise of such liberties.
These considerations have to be kept in mind when ascribing individual
responsibility for international crimes. The aims and purposes of international
criminal law must be weighed against the benefits resulting from the rational exercise
of individual liberties. Such evaluation can draw on the probability of the occurrence
of harm, on the one hand, and on the values benefitting from the act that contributes
to the occurrence of harm, on the other. Minor and remote risks to values protected
by criminal law may be socially acceptable as well as activities that benefit competing
values. The probability of the occurrence of harm can be described by the kind and
proximity ofthe created risk. Social context elements that may influence the evaluation
include securing existential liberties by way of rational activity and rejecting
responsibility that has not actively been assumed. Social acceptance of such behaviour
is in accordance with realising optimal rational choice liberty from a utilitarian
perspective. In light of the previous findings, thresholds of accomplice liability in
business cases may be formulated.
The first threshold element is that the creation of risk that the ultimate crime be
committed must be crime-specific. Everyday risks, i.e. socially accepted dangers such
as driving in accordance with rules of circulation, are not criminally relevant. Such
risks do not belong to the individual's sphere of responsibility. A risk is crime-specific
if it may be conceived of as designed to further the occurrence of the particular harm.
A line has to be drawn between the principal abusing an everyday risk outside the
scope of individual responsibility, on the one hand, and exposing the protected value
to a particular danger adapted for the principal's needs, on the other.
Whether there is an everyday risk intrinsic to the act in question or whether there
is a crime-specific risk depends in the first instance on the danger being permanent
and independent of the commission of the crime. We can refer to such a danger as
permanent and independent when the person rendering assistance has been
120 Cf. Chr. Safferling, supra note 111, p. 132; Chr. Tietje, Internationales Wirtschaftsrecht und Recht
auf Entwicklung als Elemente einer konstitutionalisierten globalen Friedensordnung, in: K. Dicke
et al. (eds), supranote 90, p. 811.
6 HR&ILD 1 (2012) 43
Antje K.D. Heyer
continually executing the act in question in the same way and the principal perpetrator
has merely taken advantage of this continuous behaviour in the commission of crime.
In this case, the risk is intrinsic to the way markets are organised, the way labour is
divided and the way responsibility is dispersed.
However, the same does not apply when the person rendering assistance changes
his usual behaviour in order to adapt it to the needs of the principal perpetrator. Such
modifications may be arrangements of concealment or other provisions of covering
and safeguarding. Furthermore, the risk is not permanent and independent from
crime when the person rendering assistance each time has to decide on how the
product is designed or how the service is performed and when the person then decides
to customise the product or service in light of the principal perpetrator's crime-related
needs.
In case the risk created is not permanent and independent from the commission of
the crime, it may still be too remote or too minor to impute responsibility.
Responsibility may thus only be imputed if firstly abusing the assistance rendered in
the commission of crime was probable in view of the assistance's nature and if secondly
the person rendering assistance should have perceived the probability of the abuse.
Accordingly, we can generally speak of a crime-specific risk where principal and
accomplice collaborate collusively since in that case the criminal abuse of the
assistance rendered has blatantly been its sole cognisable purpose. However, there will
be less clear-cut cases of complicity. Selling ubiquitously available commodities will
seldom come under the terms set out above. 121 But selling specifically manufactured
products will generally meet the requirements. The same applies to products that
apparently by their nature invite criminal abuse, such as arms and certain chemicals.
Cases involving money as a criminal agent are more complex. 122 Complicity by
lending money for commercial purposes should not be excluded.123 However, the
lender would have to have been able to perceive a high risk that the money lent would
be used for criminal purposes. This may apply in cases where a blatantly criminal but
notoriously skint regime takes out high loans to balance its military budget. Other
pertinent cases are those of supply chains where goods or products are sold that have
been obtained or manufactured by way of committing international crimes or whose
proceeds are used for committing such crimes. 124 As in the case of commercial loans,
the assistance rendered consists of providing money to the principal perpetrators and,
as the case may be, also in encouraging further crime by promising continuous
121 International Commission of Jurists (ed.), Corporate Complicity & Legal Accountability: Vol. 2,
supra note 139, p. 37.
122 See inter alia, Chr. Burchard, supra note 1, p. 931; International Commission of Jurists (ed.),
Corporate Complicity & Legal Accountability: Vol. 2, supra note 139, pp. 39-40.
123 Cf. J.Bohoslavsky and V. Opgenhaffen, supra note 139, passim.
124 International Commission of Jurists (ed.), Corporate Complicity & Legal Accountability: Vol. 2,
supra note 139, p. 41.
44 Intersentia
purchase. Risk probability and perceptibility may be established if the purchaser can
secure a very low price due to the nexus with international crimes.
The second threshold element in complicity under international criminal law is
that of responsibility for the previously discussed creation of crime-specific risk. The
question is whether each and every person involved in rendering assistance to the
principal perpetrators should incur liability. Even if all contributions have to be
considered causal in respect of the ultimate resulting harm, normative assessment of
responsibility can and must distinguish between those in charge and those not
accountable for executed decisions. This distinction needs to take into account the
corporate division and organisation of decision-making and labour. Executives and
management usually will incur individual responsibility when they had decision-
making authority over the act in question. Responsibility for crime-specific risk
creation may generally not be assumed where an employee acts within the scope of
directives issued by his supervisor and where he has no discretion in discharging his
duties. However, this kind of simple employee may also incur individual responsibility,
particularly when acting outside his scope of duties, when freely and on his own
initiative adapting his performance to satisfy the special needs of the principal
perpetrator, or when consenting to or remaining within employment that solely
comprises activity furthering the commission of crimes.
Corporate complicity in international crimes under the Rome Statute and, outside
the scope of the Rome Statute, under customary law as well may thus be duly
characterised by knowingly creating crime-specific risk. Individuals acting on behalf
of the corporation only incur individual criminal liability if they are accountable for
creating the crime-specific risk. In practice, such risk creation can be avoided by
conducting due diligence, as proposed by John Ruggie.125
When applying these principles to the current litigation In re South African
Apartheid pending before a US district court, it becomes clear why Judge Scheindlin
distinguished between fungible resources and killing agents: 126
The provision of goods specifically designed to kill, to inflict pain, or to cause
other injuries resulting from violations of customary international law bear a closer
causal connection to the principal crime than the sale of raw materials or the provision
of loans. Training in a precise criminal use only further supports the importance of
this link. Therefore, in the context of commercial services, provision of the means by
which a violation ofthe law is carried out is sufficient to meet the actus reus requirement
of aiding and abetting liability under customary international law.
Under the political circumstances of the case, Judge Scheindlin's decision is more
than welcome and her distinction relies on the pertinent criteria for assessing business
complicity. However, one would have wished that she had examined the role of money
125 UNHRC, supra note 14 ('Framework'), paras 25, 56-64.

126 United States District Court, Southern District of New York, supra note 9, pp. 44-45.
6 HR&ILD 1 (2012) 45
Antje K.D. Heyer
as a criminal agent in more detail instead of generally barring it from aiding and
abetting liability. Her findings on this point1 27 might - and in my view, should - be
confined to cases where criminal abuse of money lending is evident under the
circumstances.
4. IS INTERNATIONAL CRIMINAL LAW PIERCING THE

CORPORATE VEIL?
In light of the above findings on individual criminal responsibility, we might further

enquire to what extent the executives of holding companies can be held responsible
for acts of their subsidiaries. This question is of particular interest when comparing
criminal responsibility with tort liability. Whereas private law, including, in particular,
company and tort law, focuses on the organisational structure of multinational
corporations and the legal autonomy of each incorporated entity,128 criminal law
concentrates on the individual and the consequences of the individual's behaviour.
The latter are assessed against the definition of causality as established by the relevant
criminal law norms. The normative concept of causality is, however, to a great extent
based on the factual relationship between human behaviour and its impacts on values
protected by criminal law. Assessing causality in criminal law therefore focuses on
whether the accused has had actual influence on the criminal result.129 With regard to
multinational corporations, we may therefore find situations in which executives of
the holding company have exerted actual influence on decisions taken within a
subsidiary, in particular when established by a control agreement. Such influence,
however, has to be assessed on a case-by-case basis and is not bound by corporate law
findings. The test that needs to be applied is whether the holding company's acts and
decisions have caused the subsidiary's criminal activity. As discussed above, causation
with regard to accomplice liability can be established where the crime most probably
would not have taken place as it did had nobody acted in the role of the accused.
Accordingly, international criminal law can be said to be piercing the corporate veil
whenever criminal activity conducted by employees of a subsidiary would most
probably not have taken place as it did had employees of the holding company not
acted as they did. The latter may then, subject to further requirements discussed
above, be criminally responsible for the resulting harm.
127 United States District Court, Southern District of New York, supra note 9, p. 44.
128 UNHRC, supra note 14 ('Framework'), paras 13-14.
129 This principle has already been applied in the IG Farben case (see Military Tribunal VI 29 and
30 July 1949, supra note 27, p. 1169).
46 Intersentia
F. THE FUTURE OF ACCOMPLICE LIABILITY UNDER THE

ROME STATUTE
With the findings from the Nuremberg precedents, from the case law of the ad hoc
tribunals and from comparative law analysis in mind, I will now turn to the
interpretation of accomplice liability under the Rome Statute. Individual criminal
responsibility is provided for in article 25(3) Rome Statute. Article 25(3)(a) elaborates
on principal perpetration, 130 article 25(3)(b) provides for incitement liability and
article 25(3)(c) and (d) covers aiding and abetting. First, I will discuss the phenomenon
of macro-criminality and how theories of participation can help us to describe it.
Against this backdrop, I will further inquire into the objective and subjective elements
of accomplice liability under the Rome Statute.
130 As the ICC has expressly clarified in its very first decisions, article 25(3)(a) Rome Statute does not
embrace the joint criminal enterprise doctrine developed by the ad hoc tribunals (see ICC Pre-Trial
Chamber I 28 September 2010, Prosecutor v. Callixte Mbarushimana, Decision on the Prosecutor's
Application for a Warrant of Arrest against Callixte Mbarushimana, No. ICC-01/04-01/10, paras
35-36; ICC Pre-Trial Chamber I 29 janvier 2007, Prosecutor v. Thomas Lubanga Dyilo, Decision on
the Confirmation of Charges, No. ICC-01/04-01/06, paras 334-335). This doctrine has been
intensively criticised both from within and from outside the ad hoc tribunals (cf. ICTY Appeals
Chamber 21 May 2003, Prosecutor v. Milan Milutinovid et al., Separate Opinion of Judge David
Hunt on Challenge by Ojdani6 to Jurisdiction Joint Criminal Enterprise, No. IT-99-37-AR72,
passim; ICTY Trial Chamber 11 17 October 2003, Prosecutor v. Blagoje Simi6 et al., Separate and
Partly Dissenting Opinion of Judge Per-Johan Lindholm (Judgement), No. IT-95-9-T, para. 3;
A. Danner and J. Martinez, Guilty Associations: Joint Criminal Enterprise, Command
Responsibility, and the Development of International Criminal Law, 93 California Law Review 79,
75-169 (2005); J.Ohlin, Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise,
5 Journal of International Criminal Justice 69-90 (2007); M. Sass6li and L. Olson, The Judgment of
the ICTY Appeals Chamber on the Merits in the Tadi6 Case, 839 International Review of the Red
Cross 733-769 (2000)). It is argued that the precedents from the Nuremberg epoch the ICTY
Appeals Chamber cites in order to justify its doctrine do not support this form of liability. In
particular, the extended version of joint criminal enterprise has been criticised for overextending
the scope of international criminal law and mistakenly introducing negligence as mens rea.
Notwithstanding these harsh critics, many authors have speculated whether the ICC would adopt
this doctrine. However, the ICC has decided to introduce the notion of control over the crime as the
criterion defining principal perpetration under the Rome Statute. Accordingly, principal
perpetration may occur as executing the actus reus with one's own hands, as committing the crime
jointly with or through another, and as a combination of the two latter concepts. Each of these
manifestations of principal perpetration is defined by the notion of control or hegemony over the
crime. The required mens rea is intent and knowledge. This concept of principal perpetration
applies well to leaders who use their state apparatus or other organisation to commit the most
egregious crimes without dirtying their hands. Its theoretical basis is far clearer than that of the
joint criminal enterprise doctrine. Control or hegemony over the act is a well-founded principle of
criminal law that allows responsibility to be attributed to the individuals pulling the strings in a
criminal plan. The particular concept of committing a crime jointly with other leaders by using
subordinates within a large organisation or apparatus rightfully mirrors the phenomenon of
macro-criminality.
6 HR&ILD 1 (2012) 47
Antje K.D. Heyer
1. MACRO-CRIMINALITY AND THEORIES OF PARTICIPATION

UNDER THE ROME STATUTE
International crimes are usually not committed by single perpetrators but by

government officials, military units, rebel groups, members of an ethnic group, or
other collectives. This so-called phenomenon of macro-criminality is typical of
international crime. Collective criminal activity embraces such criminal typologies
as leaders, masterminds, ideologists, demagogues, organisers, executers and followers.
Accordingly, international criminal law scholars have repeatedly acknowledged that
merely translating domestic criminal law concepts into international law will not
suffice to deal adequately with macro-criminal phenomena. 131
The definition of international crimes takes into account their macro-criminal
dimension. In particular, crimes against humanity must be part of a widespread and
systematic attack, acts of genocide require a genocidal campaign, and war crimes
suppose military action. Although in the latter case the military action need not be
illegal as such, it certainly involves collective violent activity, e.g. killings that under
ordinary circumstances would be criminal. Committing a war crime must emanate
from this collective activity and thereby exceed the extent of violence that can be
tolerated under the circumstances. We may thus say that an international crime and
132
its particular wrong presuppose a pattern of collective criminal activity. The
collective criminal activity consists of various offenses, each comprising actus reus
and mens rea. Together, they form a collective offense. The collective offense is the
reason for penalising such deeds under international law. It constitutes the specific
dimension of criminal wrongfulness under international law.
The concept of collective offense is thus of theoretical and technical relevance. 33
It can also help in analysing participation in international crimes. Any participant in
a crime shows a particular relationship with the collective offense. The political leader
may have control over the entire collective offense, e.g. a genocidal campaign. The
ideological mastermind may have promoted it. The bureaucrat may organise and
thereby control the execution of one part of the genocidal campaign. Profiteers may
supply weapons necessary for execution. Followers may be ordered to execute victims.
Each of these relationships can and must be described in technical criminal law terms
as well. Each of them needs to be classified in the categories of participation established
by article 25(3) Rome Statute. Reference to the collective offense facilitates this task as
it rightfully attributes sections of the collective offense to individuals. Hence, the
more sections of the collective offense an individual is involved in, the greater his
responsibility.
131 K. Ambos, supranote 25, pp. 536 ss., with further references.
132 Cf. H. Vest, supra note 90, 218-219.
133 See H. Vest, supranote 90, 240-241, passim.
48 Intersentia
The ICC implicitly follows this approach. The court has based its definition of
principal perpetratorship on the notion of control. In the view of the court, control
over the occurrence of harm may be exercised by directing subordinates within an
organised apparatus, that is, by piloting the collective offense. Piloting the collective
offense or sections thereof, on one's own or jointly with others, thus establishes
principal perpetratorship with regard to each particular actus reus within that
collective offense or section thereof.
If principal perpetratorship under article 25(3)(a) Rome Statute is defined by the
notion of control over the crime, article 25(3)(b), (c)and (d) cover accomplice liability,
that is, contributing causally to the commission of a crime under the statute without
having control over the occurrence of harm.
2. INDIVIDUAL CRIMINAL RESPONSIBILITY UNDER

ARTICLE 25(3)(C) AND (D) ROME STATUTE
Accomplice liability under article 25(3)(c) and (d) refers to consummated principal
perpetration under article 25(3)(a) or attempted principal perpetration under
article 25(3)(f). It is thus accessorial in nature.
The actus reus of complicity under article 25(3)(c) is assisting in the commission or
attempted commission of a crime under the statute. Assisting includes aiding, abetting
and, in particular, providing the means for committing the crime. However, as John
Ruggie notes, the intriguing element of article 25(3)(c) is the prima facie subjective
element of assisting the commission of the crime 'for the purpose of facilitating' such
crime. 134 This element has widely been interpreted as a form of 'special intent',
supposing dolus directus in the first degree, i.e. intention in the narrow sense.135
However, this approach clearly differs from the well-founded knowledge standard
under customary law that has already been discussed.
We therefore have to assess carefully whether the wording of article 25(3)(c) Rome
Statute compels us to abandon the customary law standard of knowledge. 136 We
observe that in domestic criminal law theory and practice, the notion of purpose does
not unequivocally stand for dolus directusin the first degree.13 7 Usage of terminology
134 See UNHRC, supra note 14 ('Clarifying'), para. 42 in footnote 25.

135 A. Eser, in: A. Cassese, P. Gaeta, and J.Jones, The Rome Statute of the International Criminal Court:
A Commentary, Vol. I 801, 901-902 (Oxford/New York, 2002).
136 Cf. UNHRC, supra note 14 ('Clarifying'), para. 42 in footnote 25. Ruggie raises the question without
answering it.
137 Cf. American Law Institute (ed.), Model Penal Code and Commentaries, supra note 91, p. 235 fn. 11;
A. Ashworth, supra note 106, p. 179, passim; M. Jefferson, Criminal Law 178 (Harlow et al., 2007,
8th ed.); G. Mueller, supra note 104, p. 2175; U. Rofkopf, Die innere Tatseite des
Volkerrechtsverbrechens: Ein Beitrag zur Auslegung des Art. 30 IStGH-Statut 28-29 fn. 111 (Berlin,
2007). See also H. Vest, supra note 1, p. 862 (suggesting, with regard to the Rome Statute, that
'purpose' be equated with 'intent' as set forth in Article 30 Rome Statute).
6 HR&ILD 1 (2012) 49
Antje K.D. Heyer
is often unclear. Intention, intent and purpose may be employed interchangeably. One
traditional view is that knowingly causing harm implies desiring the occurrence of
that harm. 13 8 Another approach is to ask whether the prescribed harm is to be
considered a means to an end the acting person is pursuing.' 39 If so, the act is
committed with purpose as to the prescribed harm. Some commentators on
article 25(3)(c) Rome Statute have rightfully referred to the US-American Model Penal
Code's formulation of aiding and abetting the commission of a crime as 'for the
purpose of facilitating'.140 However, interpretation and application of this element are
unclear as well.141On the one hand, desire might be positively required. On the other
hand, knowledge may be deemed sufficient in itself, or knowledge suffices in general
and can only be rebutted by evidence showing that there was no desire at all to cause
the harm. The other authentic versions of article 25(3)(c) Rome Statute are no clearer
in their terminology than the English one. We may thus conclude that there is no
constraint to construe 'for the purpose of facilitating' as dolus directus in the first
degree or special intent.
In light of the foregoing, a systematic and teleological approach to article 25(3)(c)
Rome Statute is more promising for capturing the meaning of 'for the purpose of
facilitating'. Let us first consider the consequences of understanding this element as
dolus directus in the first degree or special intent. Apparently, the scope of aiding and
abetting liability in international criminal law would be significantly narrowed.
Accordingly, objective thresholds of aiding and abetting liability would probably
remain unclear, as no practical need would arise to define them clearly. More
importantly, difficult questions of proof would arise. The motives of individuals
assisting international crimes would have to be investigated. Therefore, thresholds of
accomplice liability might fall short of the constructive certainty required by the
principle of determinate criminal law, in particular when applied to business cases.
Furthermore, motive would be promoted as an element establishing the specific
wrongdoing dimension of aiding and abetting liability. Unlike in genocide, such
138 Cf. A. Ashworth, supra note 106, pp. 173-174, 177 ss.; U. Rolkopf, supra note 137, p. 28; J. Turner,
Kenny's Outlines of Criminal Law 117 (Cambridge, 1966, 19th ed.); G. Williams, supra note 106,
pp. 22 ss.
139 Cf. J.Bohoslavsky and V. Opgenhaffen, The Past and Present of Corporate Complicity: Financing
the Argentinean Dictatorship, 23 Harvard Human Rights Journal 168 (2010); D. Cassel, supra
note 6, pp. 312-313. See also A. Ashworth, supra note 106, p. 179; International Commission of
Jurists (ed.), Corporate Complicity and Legal Accountability, Vol.2. Criminal Law and International
Crimes: Report of the International Commission of Jurists Expert Legal Panel on Corporate
Complicity in International Crimes 22 (Geneva, 2008); A. Simester and A. Smith, Criminalization
and the Role of Theory, in: A. Simester and A. Smith (eds), Harm and Culpability 14 (Oxford, 1996).
140 K. Ambos, in: 0. Triffterer, Commentary on the Rome Statute of the International Criminal Court:
Observers' Notes, Article by Article (including Special Print [update of the pages 743-770]:
Individual Criminal Responsibility, Article 25 Rome Statute) Article 25 para. 23 (Munich, 2008,
2nd ed.); Chr. Burchard, supra note 1, pp. 940-941; H. Vest, supra note 1, p. 861.
141 On this subject see G. Mueller, supra note 104, pp. 2180 ss.; U. Rolikopf, supra note 137, pp. 16-37.
50 Intersentia
element of special intent is not in substance related to the specific wrong of the crime.
In genocide, the intention to destroy, in whole or in part, the protected group points
to further harm that does not necessarily have to materialise for the crime to be
consummated. Such intention exceeding the elements of actus reus rightfully
constitutes a special element of the wrongfulness of the crime of genocide. However,
such is not the case in aiding and abetting liability. If there were a kind of special
intent on the part of the individual furthering the commission of a crime by assisting
the principal perpetrator, this special intent would necessarily have materialised for
the individual to incur aiding and abetting liability. Had it not materialised, either
because the principal perpetrator had neither committed nor attempted the crime, or
because the assistance had not reached the principal perpetrator, accessorial liability
could not be established. In the first case, there is no crime to which liability could
attach at all. In the second case, there is no connection between the assistance rendered
and the occurrence of harm; it is a case merely of 'attempted aiding and abetting',
which is not punishable either under customary law or under the Rome Statute.
In light of the foregoing, construing 'for the purpose of facilitating' as special
intent or dolus directus in the first degree would amount to making aiding and
abetting liability hinge on an element of pure motive. Punishment would thus depend
on findings on a purely subjective state of mind. Blatantly, such purpose would more
often than not have to be inferred from circumstantial evidence. As many scholars
argue and as can be concluded from the ad hoc tribunals' jurisprudence, customary
international law embraces the knowledge standard.142 Moreover, neither general
principles of criminal law nor theoretical considerations call for a requirement of
dolus directus in the first degree in criminal complicity.
To the contrary, construing the element 'for the purpose of facilitating' objectively
would contribute to a more balanced system of participation in crimes under the
Rome Statute. Article 25(3)(c) Rome Statute would then codify a 'classic' form of
aiding and abetting liability, as known from international customary and domestic
criminal law. 'For the purpose of facilitating' would then merely refine the definition
of actus reus in aiding and abetting. The assistance rendered by the accused would not
have to be assessed in light of the rather vague criterion of 'substantial effect'. Rather,
the requirement of causality implicit in the ad hoc tribunals' case law could be
maintained as such under the Rome Statute, while the element of 'for the purpose of
facilitating' would define more clearly that any - as such, causal - assistance needs to
show the objective purpose of facilitating the commission of the crime in question.
Such objectification of the 'purpose' element would relieve prosecutors and judges of
imputing a desire to bring about the criminal harm. On the mens rea side, the aider
and abettor would simply have to have known about the quality of his act as objectively
142 See supraC.2., including references.
6 HR&ILD 1 (2012) 51
Antje K.D. Heyer
designed to further the commission of the crime in question.143 This interpretation

would be in line with more than 60 years of international custom. It also meets with
policy expectations.14 4 Instead of inferring the accused's state of mind from
circumstantial evidence, it suffices a priori to prove the objective element of assisting
the principal perpetrator 'for the purpose of facilitating'. It is clear that the same kind
of evidence that proves the objective purpose might also be indicative of the accused's
desire to bring about the criminal harm. However, in absence of a confession such
attribution is purely speculative. Furthermore, it is not the accused's attitude as such
that is reproachable but his being conscious about the prospective effects of his acts
and nevertheless deciding to execute them. Therefore it is only fair to base his
conviction on these elements. From the viewpoint of corporations, due diligence
procedures that might be implemented with a view to avoiding liability have to be
based on purely objective elements as well. Corporations and their employees would
therefore profit from receiving guidance on what objective rather than subjective
criteria might entail criminal liability.
Examples for applying the element 'for the purpose of facilitating' are, accordingly,
cases where the economic transaction solely takes place in view of the envisaged
international crime, such as when a criminal group sells precious stones for an
unusual price significantly below market rates. The assistance then rendered by the
buyer - transferring money to criminals using it to finance their committing of
international crimes - objectively aims at assisting the principal perpetrators as the
favourable transaction would not have been concluded but for the commission of
international crimes: had the sellers not have needed to sell the stones urgently and
clandestinely for the purposes of their criminal activity, the buyer could not have
obtained such a favourable price below market rates. To put it differently, in cases
where certain profit sought can only be achieved subject to the assistance rendered
being used for committing the crime in question, the assistance is rendered for the
purpose of facilitating the crime.
If article 25(3)(c) Rome Statute therefore covers a classic form of aiding and
abetting liability, article 25(3)(d) provides for two specific modes of aiding and
abetting crime that take into account the dimension of macro-criminality typical of
crimes under international law. The point of reference for participation under
article 25(3)(d) is not the commission or attempted commission of a crime under the
Statute but the commission or attempted commission of such a crime by a group of
persons acting with a common purpose.
14 Such quality is a circumstance in terms of article 30(3) Rome Statute (requiring 'awareness that a
circumstance exists').
144 On this subject see Legislative Guide to the Universal Regime against Terrorism, United Nations
Publication No. E.08.V.9, 26-27. (www.unodc.org/documents/terrorism/LegislativeGuide2008.pdf,
visited 7 September 2010). With regard to genocidal intent see C. Kreg, supra note 81, pp. 571-572.
52 Intersentia
But what precisely does the Statute mean by referring to the 'commission of such a
crime by a group of persons'? Article 25(3)(d) has been largely copied from an
international convention on terrorism 45 that, in turn, has been copied from a
European extradition covenant. 146, 147 However, this evolutionary history shows that
the wording of article 25(3)(d) refers not to any domestic concept of participation in
crime but derives from international compromise formulation. It thus has to be
construed in light of the nature of participation in international crimes. I have already
discussed the characteristics of macro-criminality. The main characteristic is that of
a collective offense in which individuals participate in very distinct ways and to very
unequal extents. The commission or attempted commission of a crime by a group of
persons acting with a common purpose thus refers to such collective action. The term
may designate a collective offense, e.g. a whole genocidal campaign or a campaign of
unlawful attacks on civilians, or a section of such a collective offense, e.g. one
particular extermination camp or an unlawful attack on one civilian village.
In this way, article 25(3)(d) makes sense in complementing article 25(3)(c) Rome
Statute. While the latter covers the classic mode of aiding and abetting liability,
article 25(3)(d) allows for a participation model tailored to the specific needs of
systemic criminality. Furthermore, the existence of article 25(3)(d) Rome Statute
shows that there is no need for the ICC to adopt the ad hoc tribunals' joint criminal
enterprise doctrine. Article 25(3)(d) Rome Statute sustains the positive aspects of the
joint criminal enterprise, i.e. taking account of the particularities of macro-criminal
activity, but restricts and refines the scope of participation in international criminal
law in that not just any contribution to a common political or otherwise lawful
purpose is sufficient to incur liability for crimes committed in implementing that
purpose. Instead, contributing to a collective offense, e.g. a genocidal campaign, or to
a section thereof, e.g. the functioning of an extermination camp, is necessary.
Accordingly, many cases of today's joint criminal enterprise doctrine will be classified
as principal perpetration under article 25(3)(a) Rome Statute as construed by the court
in its first decisions, and others will come under aiding and abetting a collective
offense as set out in article 25(3)(d). However, most cases of the 'extended version' of
joint criminal enterprise will rightfully go unpunished under the Rome Statute, as has
been argued by many international criminal law scholars.148
145 International Convention for the Suppression of Terrorist Bombings, United Nations Treaty Series,
No. 37517, Vol. 2149, p. 256 (2001).
146 Convention drawn up on the basis of Article K.3 of the Treaty on European Union, relating to
extradition between the Member States of the European Union, OJ C 313, 23 October 1996,
pp. 12-23.
147 See M. Arsanjani, The Rome Statute of the International Criminal Court, 93 American Journal of
International Law 36-37 (1999); G. Werle, supranote 25, p. 970.
148 See A. Danner and J. Martinez, supra note 130, passim; J.Ohlin, supra note 130, passim; M. Sassbli
and L. Olson, supranote 130, passim.
6 HR&ILD 1 (2012) 53
Antje K.D. Heyer
With regard to mens rea, subparagraphs (i) and (ii) of article 25(3)(d) have to be
construed in accordance with customary law and article 25(3)(c) as set out above.
Accordingly, 'with the aim of furthering' signifies the same as 'for the purpose of
facilitating'. It presupposes assistance rendered that contributes causally to the
occurrence of harm and is particularly designated to do so, as well as knowledge
thereof. Subparagraph (ii) dispenses with such a close connection between the
assistance rendered and the collective offense. In return, it stipulates a narrower
requirement of mens rea, namely, actual knowledge of the intention of the group to
commit the collective offense, e.g. a criminal regime's strategy for a genocidal
campaign or the planning and scheduling thereof.149
G. POTENTIALS AND CONSTRAINTS OF BUSINESS CASES

IN INTERNATIONAL CRIMINAL LAW
Individual responsibility for corporate complicity in international crimes is a

pertinent issue in the discussion of human rights and business. Clearly, international
criminal law cannot address all issues relating to business and human rights, as it only
deals with the most egregious human rights violations committed by natural persons,
and not with any adverse effects of business activity on human rights. However,
criminal law considerations can help advance the debate on business and human
rights mainly in two ways. Firstly, international criminal law provides not only a well-
established body of thoroughly defined norms penalising gross human rights
violations but also judicial mechanisms effectively addressing the commission of such
crimes, including, in particular, the ICC and, arguably, universal jurisdiction
exercised by domestic courts. Secondly, international criminal law theory allows for
the elaboration of precise criteria for individual responsibility, which can guide
business actors in their daily decision-making. 50 Both these qualities provide a solid
basis for future research and practical application. With regard to the Ruggie
principles, international criminal justice comes within the state's duty to protect
against human rights abuses by third parties, and not violating international criminal
law norms certainly is a core corporate responsibility within the framework of
respecting human rights.15
What are then the challenges of such research on international criminal law and
its application in business cases? In my view, the international community needs to
strengthen the role of the ICC in effectively pursuing international criminals
regardless of their political position, societal influence and geographical provenance.
149 K. Ambos, supra note 140, Article 25 para. 30.

150 This is also noted by John Ruggie (see UNHRC, supra note 14 ('Framework'), para. 74; UNHRC,
supra note 14 ('Clarifying'), para. 33).
151 On these core principles see UNHRC, supra note 14 ('Framework'), para. 9.
54 Intersentia
In this regard, research can help by elaborating on the theoretical underpinnings,

including in particular legitimacy and necessity, of international criminal law. The
ICC itself and the states parties to the Rome Statute can contribute by maintaining
their politically courageous approach and by prosecuting, as announced, 152 agents of
multinational business corporations as accomplices in international crimes.
Admittedly, such prosecutions will prove difficult not only politically but also with
regard to collecting evidence in conflict zones. The overall outcome of the ad hoc
tribunals' work has, however, demonstrated that such difficulties can be resolved by
applying specifically adapted standards of proof while at the same time ensuring a fair
trial. Research can further contribute towards translating international criminal
responsibility standards into guidelines on how to avoid such responsibility, as the
Ruggie reports have already demonstrated. 53 Such guidelines cannot be conclusive as
to good business practice with regard to human rights as they only address core
imperatives. However, they can help in raising awareness among business leaders
with regard to what behaviour is criminal under international law and, therefore,
implies the threat of individual punishment. Clearly defining international criminal
complicity can also help national courts in applying rules of international law. In
particular, US courts might wish to consider the actus reus and mens rea elements of
international criminal complicity as reflected in the ad hoc tribunals' case law and the
Rome Statute.
Last but not least, international criminal law can highlight the role ofthe individual
when it comes to massive human rights violations. It provides instruments for
assessing individual contributions in macro-criminal contexts. In particular, it helps
in attributing culpability in very complex social situations. Different degrees of
participation in crime can be described by adequate legal concepts. Criminal law
opposes the concept of collective guilt and therefore allows for the rehabilitation of
concerned populations and communities, thereby contributing to the restoration of
societal peace. Prosecuting those who are responsible as aiders and abettors for gross
human rights violations amounting to international crimes also raises awareness of
the international legal order and rule of law. International criminal justice can
therefore contribute to protecting human rights from corporate abuses if responsibility
is determined in an effective and equitable way. Accordingly, every single assessment
of individual criminal responsibility has to take carefully into account appropriate
and commensurate balancing of individual liberty and social accountability.
152 See supra note 11.

153 They would thus form part of the due diligence process proposed by the Special Representative (see
UNHRC, supranote 14 ('Framework'), paras 25, 56-64).
6 HR&ILD 1 (2012) 55

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ANTJE K.D. HEYER*

Keywords: accomplice liability; corporate complicity; individual responsibility;

1. COMPLICITY IN CRIME UNDER THE ROME STATUTE

With the establishment of various international and hybrid tribunals, including, in

reality.5 This courageous experiment has proved a true success. However, it is a

2. THE RUGGIE APPROACH TO CORPORATE COMPLICITY

3. THE ATS APPROACH TO CORPORATE COMPLICITY

4. REFINING INTERNATIONAL CRIMINAL COMPLICITY

B. FIRST PRECEDENTS: BUSINESSMEN AND EMPLOYEES

1. INITIATIVE, NECESSITY, AND RESPONSIBILITY

28 Cf. Military Tribunal IV 22 December 1947, supranote 27, pp. 1196-1999.

2. PROVIDING THE MEANS FOR THE COMMISSION OF THE CRIME

32 Military Tribunal VI 29 and 30 July 1949, supra note 27, p. 1189.

3. MONEY AS A CRIMINAL AGENT

6 The Zyklon B Case, supra note 27, p. 102.

4. CONCLUSIONS TO BE DRAWN FROM THE NUREMBERG

The Nuremberg precedents reveal many uncertainties as to what preconditions must

ss Military Tribunal VI 29 and 30 July 1949, supranote 27, p. 1120.

C. THE CASE LAW OF THE AD HOC TRIBUNALS

1. ACTUS REUS AND CAUSATION IN THE LAW

61 See UNSC, Resolution 827 (S/RES/827) (1993).

2. MENS REA AND THE KNOWLEDGE APPROACH

3. CONCLUSIONS TO BE DRAWN FROM THE AD HOC

4. ATS PERSPECTIVES IN LIGHT OF THE AD HOC TRIBUNALS'

D. GENERAL PRINCIPLES OF CRIMINAL LAW: CURTAILING

87 UNHRC, supra note 14 ('Clarifying'), para. 44.

classified as 'Civil Law' or 'Common Law' systems. Research on business criminality

1. DOMESTIC CRIMINAL LAW AND THE COMPLEXITIES OF

9 Cf. A.Ashworth, supra note 89, p. 419.

2. GENERALLY APPLICABLE CRITERIA FOR ASSESSING

Despite these technical differences, both Anglo-American and German law, in

103 A. Simester, supra note 94, pp. 579, 591.

E. ACCOMPLICE LIABILITY IN INTERNATIONAL

1. LEGITIMACY AND LIMITATIONS OF ACCOMPLICE LIABILITY

in: A. Smeulers and R. Haveman (eds), Supranational Criminology: Towards a Criminology of

2. CRIMINOGENIC PATTERNS INFORMING BUSINESS

peaceful socio-political circumstances, those individuals would probably never get

3. THE CASE OF BUSINESS COMPLICITY IN INTERNATIONAL

Against the backdrop of the foregoing considerations, I will formulate a possible

125 UNHRC, supra note 14 ('Framework'), paras 25, 56-64.

4. IS INTERNATIONAL CRIMINAL LAW PIERCING THE

In light of the above findings on individual criminal responsibility, we might further

F. THE FUTURE OF ACCOMPLICE LIABILITY UNDER THE

1. MACRO-CRIMINALITY AND THEORIES OF PARTICIPATION

International crimes are usually not committed by single perpetrators but by

2. INDIVIDUAL CRIMINAL RESPONSIBILITY UNDER

134 See UNHRC, supra note 14 ('Clarifying'), para. 42 in footnote 25.

142 See supraC.2., including references.

designed to further the commission of the crime in question.143 This interpretation

G. POTENTIALS AND CONSTRAINTS OF BUSINESS CASES

Individual responsibility for corporate complicity in international crimes is a

149 K. Ambos, supra note 140, Article 25 para. 30.

In this regard, research can help by elaborating on the theoretical underpinnings,

152 See supra note 11.

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