Aiding and Abetting: The Responsibility of Business Leaders under the Rome Statute of the International Criminal Court

• Author: Caspar Plomp
• Position: Graduate Institute of International and Development Studies, Switzerland
• Pages: 4-29

Caspar Plomp, ‘Aiding and Abetting: The Responsibility of Business

Leaders under the Rome Statute of the International Criminal Court’

(2014) 30(79) Utrecht Journal of International and European Law 4,

DOI: http://dx.doi.org/10.5334/ujiel.cl

‘We just send them to Syria. Ask the Syrians where they put them.’

- Anatoly P. Isaikin, Director General of Rosoboronexport1

I. Introduction

A. The international legal separation of justice and economics

Following the Second World War, international criminal law was expanded, ostensibly, to ensure that the

greatest criminals would be held accountable for their actions. However, it has been argued that interna-

tional criminal law ‘was used, contrary to early indications, to conceal rather than address the economic

causes and imperialist nature of the war, so as to enable the continuation or rehabilitation of trade rela-

tions’ (emphasis in original).2 In spite of ‘telling exceptions’,3 war crime trials and other post-conflict

institutions such as truth and reconciliation commissions are inclined to overlook the involvement of

businesses and other economic actors in armed conflict, as well as of economic crimes such as extensive

corruption and tax evasion.4 Indeed, ‘the responsibility of corporations or their staff for their involvement

1 AE Kramer, ‘Russia Sending Missile Systems to Shield Syria’ The New York Times (New York, 15 June 2012)

com/2012/06/16/world/europe/russia-sending-air-and-sea-defenses-to-syria.html?_r=0> accessed 16 March 2014.

2 G Baars, ‘Law(yers) congealing capitalism: On the (im)possibility of restraining business in conflict through international criminal

law’ (PhD dissertation, University College London 2012) 3.

3 One such notable exception is war crimes against property. The Rome Statute includes, in this regard, the destruction, appropria-

tion, seizure and pillage of property; Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force

1 July 2002) art 8(2)(a).

4 J Kyriakakis, ‘Justice after War: Economic Actors, Economic Crimes, and the Moral Imperative for Accountability after War’ in L

May and A Forcehimes (eds), Morality, Jus Post Bellum, and International Law (CUP 2012).

RESEARCH ARTICLE

Aiding and Abetting: The Responsibility of Business

Leaders under the Rome Statute of the International

Criminal Court

Caspar Plomp1

1 Graduate Institute of International and Development Studies, Switzerland

casparplomp@outlook.com

UTRECHT JOURNAL OF

INTERNATIONAL AND EUROPEAN LAW

Keywords: International criminal law; aiding and abetting; Rome Statute of the International

Criminal Court; Article 25(3)(c); business leaders; arms trade; Syria; Rosoboronexport

While no business leaders have yet been charged before the International Criminal Court (ICC),

such future proceedings will typically be conducted with reference to the accessorial mode of

liability of aiding and abetting, under Article 25(3)(c) of the Rome Statute of the ICC. There

exist diverse and competing interpretations of Article 25(3)(c). This paper aims to advocate the

creation of a dominant interpretation of Article 25(3)(c) and, conse quently, to the clarication

of the potential responsibility of business leaders who aid or abet crimes under the jurisdiction

of the Rome Statute, in two ways. First, it asks whether Article 25(3)(c) can be interpreted in

harmony with the dominant practice on aiding and abetting in international criminal law gener-

ally. Second, it presents a case study on the provision of arms by the Russian corporation Rosob-

oronexport to the Syrian government, which is likely to have committed crimes against human-

ity since March 2011 and war crimes since mid-2012. The theoretical conclusions are applied to

a discussion on the potential criminal responsibility of the Director General of Rosoboronexport

for aiding and abetting the commission of international crimes by high-level Syrian ocials.

Plomp 5

in international crimes has hitherto been at most of marginal interest in international prosecution efforts

(…)’.5

B. Landmark cases in international criminal law involving business leaders

This is not to say, however, that international criminal law has been entirely negligent of the economic

aspects of armed conflict. To illustrate this, this paper only mentions some of the most important trials in

international criminal law in which business leaders were tried.

It has long been uncontroversial that international crimes often involve a wide range of actors. The

International Military Tribunal (IMT) in Nuremberg stressed that the Nazi regime, in its commission of large-

scale crimes, had relied on the complicity of many:

Hitler could not make aggressive war by himself. He had to have the co-operation of statesmen,

military leaders, diplomats and businessmen. When they, with knowledge of his aims, gave him

their co-operation, they made themselves parties to the plan he had initiated. They are not to be

deemed innocent because Hitler made use of them, if they knew what they were doing.6

After the Judgment of the IMT, ‘[i]n the burst of international law building that took place within the

peace agendas of states after World War II’, several of the subsequent trials conducted in Nuremberg

under Control Council Law No 10 included charges against business leaders.7 Three of these trials, con-

ducted before American military courts, have come to be known as the Industrialists Trials. In the Trial of

Carl Krauch and Twenty-Two Others,8 also known as IG Farben, 13 of 24 high-level members of IG Farben,

a German conglomerate of chemical firms, were found guilty of enslavement, plunder or both.9 All were

acquitted of the charges of crimes against peace and conspiracy to commit crimes. Although four of the

accused had participated in the rearmament of Germany, the fact that they were not military experts

meant that they could not have known that they were aiding Germany in preparing for an aggressive

war and consequently lacked the required mental element.10 The Judgment’s sole remark on economic

offences as war crimes only refers to the relevant sections of the Trial of Alfried Felix Alwyn Krupp von

Bohlen und Halbach and Eleven Others, also known as Krupp.11 This Judgment significantly developed

international criminal law on war crimes against property and also treated forced employment of foreign

civilians and concentration camp inmates. Six of the accused were found guilty of plunder and spoliation

and all but one were convicted for the employment of ‘prisoners of war, foreign civilians and concentra-

tion camp inmates under inhuman conditions in work connected with the conduct of war (…)’.12 In the

Trial of Friedrich Flick and Five Others, also known as Flick, three of the six accused, all of whom held

leading positions in a conglomerate of industrial firms, were convicted of the war crimes of the use of

slave labour and employment of prisoners of war, spoliation of public and private property in occupied

territories and/or financial support and membership of the SS.13 Although the Tribunal did not specify

the relevant mode of liability of every accused, it did conclude that when combined with the required

knowledge, one’s financial assistance to the SS, a criminal organisation, rendered one ‘if not a principal,

certainly an accessory to such crimes’.14

Thus, the Industrialists Trials reveal that ‘[b]usinesses could not avert prosecution solely because a dictator

conceived of the plan to violate international law and the businesses played no role in the initial planning’.15

Similarly, in Trial of Bruno Tesch and Two Others, also known as Zyklon B, Bruno Tesch, who was the owner of

a poison gas firm, Karl Weinbacher and Joachim Drosihn were accused of the war crime of ‘having supplied

poison gas used for killing allied nationals interned in concentration camps, knowing that it was so to be

5 F Jessberger, ‘On the Origins of Individual Criminal Responsibility under International Law for Business Activity’ (2010) 8 J Int’l

Crim Just 783, 801.

6 Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL 172, 223.

7 Kyriakakis (n 4) 115.

8 Trial of Carl Krauch and Twenty-Two Others (1948), X L Rep Trials War Crim 1.

9 A Cassese and others, International Criminal Law: Cases and Commentary (OUP 2011) 248.

10 Trial of Carl Krauch and Twenty-Two Others (n 8) 36-7.

11 Trial of Alfried Felix Alwyn Krupp von Bohlen und Halbach and Eleven Others (1948), X L Rep Trials War Crim 69.

12 ibid 70.

13 Trial of Friedrich Flick and Five Others (1947), IX L Rep Trials War Crim 1.

14 ibid 29.

15 MD Byrne, ‘When in Rome: Aiding and Abetting in Wang Xiaoning v Yahoo’ (2008-2009) 34 Brook J Int’l L 151, 177.