Aiding and abetting in international criminal law: The responsibility of corporate agents and businessmen for "trading with the enemy" of mankind

International Criminal Law Review

Volumn 5, Issue 4, 2005, Pages 623-696

  Reggio, Andrea ^a  

^a NONE

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EID: 34248032216     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/157181205775093793     Document Type: Article

References (352)

1. See the study by the Organization for Economic Co-operation and Development (Directorate for Financial, Fiscal and Enterprise Affairs): Multinational Enterprises in Situations of Violent Conflict and Widespread Human Rights Abuses (Working Paper on International Investment, Number 2002/1, May 2002).
2. See also Pau Collier/Anke Hoeffler, Greed and Grievance in Civil War, 2001, available at http://econ. worldbank.org/files/12205-greedgrievance-23oct. pdf.
3. See Benjamin B. Ferencz, Less Than Slaves: Jewish Forced Labor and the Quest for Compensation, 2002.
4. Enslavement as a crime against humanity does encompass forced labor; see for example M. Cherif Bassiouni, Crimes Against Humanity in International Law, 1999, 2nd rev. ed., p. 311;
5. Christopher K. Hall, Article 7 - Enslavement (in particular § 29-30, § 96), Otto Triffterer (editor), Commentary on the Rome Statute of the International Criminal Court, 1999.
6. Regarding Angola see U. N. Security Council Resolutions 1173 of 12 June 1998, 1176 of 24 June 1998, 1237 of 7 May 1999 and the reports of the Monitoring Mechanism on Sanctions against UNITA S/2002/486, S/2002/1119, S/2002/1139; regarding Sierra Leone see U. N. Security Council Resolutions 1306 of 5 July 2000 (Part A on the role of illicit trade in diamonds in fuelling the conflict) and 1343 of 7 March 2001, and the Report of the Panel of Experts appointed pursuant to Security Council resolution 1306, paragraph 19(2000) (UN. Document S/2000/1195); regarding Liberia see UN. Security Council Resolutions 1478 of 6 May 2003 and 1521 of 22 December 2003; regarding the Democratic Republic of Congo see UN. Security Council Resolutions 1291 of 24 February 2000, 1304 of 16 June 2000, 1355 of 15 June 2001, 1445 of 4 December 2002, 1493 of 28 July 2003. For all the countries mentioned see the reports and studies by Global Witness (www.globalwitness.org) and Partnership Africa Canada (www.pacweb.org).
7. The UN. Security Council appointed the "Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo" (the "Panel") to investigate this complicate situation. The Panel issued two reports: a first Final Report (UN. Document S/2002/1146, 16 October 2002) and a second Final Report (UN. Document S/2003/1027, 23 October 2003) taking into account the reactions and observations of individuals, companies, and States that were nominated in the first Final Report. The study by Rights and Accountability in Development (RAID) "Unanswered Questions: Companies, Conflict, and the Democratic Republic of Congo", available at http://www.oecdwatch.org/docs/RAID% 20DRC%20Executive%20Summary.pdf.pdf, affirms that behaviour issues regarding many companies, contrary to what is stated in the Second Final Report, have not been resolved.
8. Press conference of the Prosecutor - Press release, The Hague, 16 July 2003, page 3, available at www.icc-cpi.int, Media Alert Section.
9. Amnesty International (AI Index: AFR 62/050/2003), Democratic Republic of Congo - Addressing the present and building a future - A Memorandum to the DRC transitional government of national unity, armed groups and foreign governments involved in the DRC conflict, and the international community, page 3.
10. See also the Report by Global Witness, Same Old Story: A background study on natural resources in the Democratic Republic of Congo, June 2004, available at http://www.globalwitness.org/reports/show.php/en. 00054.html.
11. Amnesty International (AI Index: AFR 62/050/2003), Democratic Republic of Congo - Addressing the present and building a future - A Memorandum to the DRC transitional government of national unity, armed groups and foreign governments involved in the DRC conflict, and the international community, page 6. On the contribution of multinational companies to the conflict in DRC see also Stephen Kabel, Our Business is People (Even If It Kills Them): The Contribution of Multinational Enterprises to the Conflict in the Democratic Republic of Congo, 12 Tulane Journal Of International and Comparative Law 461(2004).
12. Generally, international scholars have not considered the potentiality of aiding and abetting for international criminal prosecutions concerning economic actors. Important exceptions are the following studies: William A. Schabas, Enforcing international humanitarian law: Catching the accomplices, 83 International Review Red Cross n. 842, p. 439(2001);
13. Andrew Clapham, On Complicity, in Marc Heanzelin/Robert Roth, Le Droit Penal a L'Epreuve de L'Internationalisation, 2002, p. 241. The same concept of aiding and abetting in international criminal law has not been explored as deeply as other issues.
14. In this article, aiding and abetting is considered a form of the broader category of complicity, which also includes instigating, inciting and procuring. The jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda follows this classification and terminology; see ICTR Case No. ICTR-97-20-T, Prosecutor v. Semanza, Judgement and Sentence, 15 May 2003, § 393. Different terminology found in some considered text will be reconciled with this classification. Probably, the terms "accomplice" and "complicity" are more evocative and clear to common people than "aiding and abetting". Unfortunately, it is not completely correct, from the legal point of view, to define the people considered in this article as "accomplices" instead of "aiders and abettors".
15. See M. Cherif Bassiouni, The Sources and Content of International Criminal Law: A Theoretical Framework, M. Cherif Bassiouni, 1 International Criminal Law, 1999, p. 3, 97-98.
16. A crime with a plurality of people contributing to its commission can be considered to possess the same quality of a crime committed by one single person, or at the contrary to differ in quality; there could even be considered to be as many different crimes as many participants. These theories can be also grouped in the unity of crime doctrine, followed by a majority of States, and in the plurality of crimes doctrine, followed by a minority of States; see Jean Pradel, Droit Pénal Comparé, 2nd ed., 2002, p. 315. As the author states (p. 316), none of these two theories is completely satisfying and there are often exceptions to them.
17. In relation to the differential participation model some general remarks can be made. First, in confront to the law of the 19th century, there are more systems that recognize fewer forms of participation. For example, the original categories of the common law were four: principal in the first degree, principal in the second degree, accessory before the fact, and accessory after the fact. Nowadays, recent codification recognizes only two: assisting and encouraging in the English Law Commission Criminal Code, soliciting and aiding in the U. S. Model Penal Code. Second, there is an attempt to reconcile the protection of individual liberties with an efficient criminal prosecution. On the one hand, the law and the jurisprudence try to define as clearly as possible the forms of participation in a crime. On the other hand, instigation is considered to be an autonomous crime, the concept of commission through an innocent agent (called in German doctrine mittelbarer Täter) is recognized and complicity by omission is admitted. See Jean Pradel, Droit Pénal Comparé, 2nd ed., 2002, p. 317-321.
18. For a survey of complicity in international criminal law conventions not related to genocide, crimes against humanity, and war crimes see Roger S. Clark, Offenses of International Concern: Multilateral State Treaty Practice in the Forty Years Since Nuremberg, 57 Nordic Journal of International Law 49, 78-81(1988).
19. As noted by Albin Eser, Individual Criminal Responsibility, in Antonio Cassese/Paola Gaeta/John R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 767, 784, Article 50 affirms: "No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible", while article 34 "The parlementaire loses his rights of inviolability if it is proved in a clear and incontestable manner that he has taken advantage of his privileged position to provoke or commit an act of treason".
20. I Law Reports of Trials of War Criminals 93 (Brit. Mil. Ct, Hamburg, Germany, 1946).
21. Superior Military Government Court of the French Occupation Zone in Germany (1949), XIV Trials of War Criminals Before the Nuremberg Military Tribunals 1436(1952).
22. For a comment on these cases see Matthew Lippman, War Crimes Trials of German Industrialists: The "Other Schindlers", 9 Temple International and Comparative Law Journal 173(1995).
23. Also the ICTY jurisprudence has recalled these, as well as other, WWII cases; see ICTY Case No. IT-94-1-T, Prosecutor v. Dusko Tadic, Opinion and Judgment, 7 May 1997, § 674-692;
24. ICTY Case No. IT-95-17/1-T, Prosecutor v. Furundzija, Judgement, 10 December 1998, § 193-226.
25. VI Trials of War Criminals Before the Nuremberg Military Tribunals 1217(1952). The Court is referring to the activity of the defendant of assisting crimes committed by the SS.
26. XIV Trials of War Criminals Before the Nuremberg Military Tribunals (1952);
27. IX Trials of War Criminals Before the Nuremberg Military Tribunals 621-622(1952).
28. Half a century later, in the compensation claims against Swiss banks, plaintiffs will rely on the second statement, while defendant banks on the first; see Anita Ramasastry, Secrets and Lies? Swiss Banks and International Human Rights, 31 Vanderbilt Journal of Transnational Law 325(1998).
29. See Rosemary Rayfuse, The Draft Code of Crimes against the Peace and Security of Mankind: Eating Disorder at the International Law Commission, 8 Criminal Law Forum 43, 50-52(1997).
30. Regarding the causal contribution, paragraph 5 states: "There is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act." For a comment to article 16 see Kate Nahapetian, Confronting State Complicity in International Law, 7 UCLA Journal of International Law & Foreign Affairs 99(2002).
31. The Alien Tort Claims Act, originally included in the Judiciary Act of 1789 and now in Section 1350 of the 28 U. S. Code, states: "The districts 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".
32. However, important decisions can be found not only in the United States; see the cases recalled in Jordan J. Paust, Human Rights Responsibilities of Private Corporations, 35 Vanderbilt Journal of Transnational Law 801, 809(2002);
33. for the consideration of the issue in French judgments regarding WWII criminals see Chaterine Grynfogel, De Touvier à Papon, la complicité de crime contre l'humanité, 78 Revue de droit penal et de criminologie 758(1998).
34. Zita Cabello Barrueto et al. v. Armando Fernandez Larios, U. S. District Court for the Southern District of Florida, June 5, 2002, page 24-25.
35. See also Kemal Mehinovic et al. v. Nikola Vuckovic, U. S. District for the Northern District of Georgia, Atlanta Division, April 29, 2002, page 83-85.
36. See Zita Cabello Barrueto et al. v. Armando Fernandez Larios, U. S. District Court for the Southern District of Florida, June 5, 2002, page 19-24
37. and Kemal Mehinovic et al. v. Nikola Vuckovic, U. S. District for the Northern District of Georgia, Atlanta Division, April 29, 2002, page 83-85. In the first case, Plaintiffs brought claims against defendant for his participation in the so-called Caravan of Death, during the Pinochet's years in Chile, where Winston Cabello (Plaintiff's decedent) was executed. In the second case, four refugees from Bosnia-Herzegovina brought claims against Nikola Vuckovic, a former Bosnian Serb soldier, for torture, cruel, inhuman or degrading treatment, arbitrary detention, war crimes, crimes against humanity, genocide, and municipal torts, based on the acts of brutality against them committed by the Defendant in detention facilities in Bosnia-Herzegovina during the so-called "ethnic cleansing". The defendant was found to have "both provided assistance and encouragement to those who directly perpetrated acts of torture and abuse against plaintiffs, and that he knew that his own participation in and encouragement of these actions would [have] assist[ed] others in committing these acts" (page 85-87).
38. See Craig Forcese, ATCA's Achilles Heel: Corporate Complicity, International Law and the Alien Tort Claims Act, 26 Yale Journal of International Law 487(2001);
39. Michael D. Ramsey, Multinational Corporate Liability Under the Alien Tort Claims Act: Some Structural Concerns, Symposium: Holding Multinational Corporations Responsible Under International Law, 24 Hastings International & Comparative Law Review 361(2001);
40. Beth Stephens, Corporate Liability: Enforcing Human Rights Through Domestic Litigation, Symposium: Holding Multinational Corporations Responsible Under International Law, 24 Hastings International & Comparative Law Review 401(2001);
41. Saman Zia-Zarifi, Suing Multinational Corporations in the U. S. for Violating International Law, 4 UCLA Journal of International Law and Foreign Affairs 81(1999).
42. For a consideration of whether De Beers, the company holding the majority of the uncut diamonds market, could be successfully sued in U. S. Courts under the ACTA see Lucinda Saunders, Rich and Rare are the Gems They War: Holding De Beers Accountable for Trading Conflict Diamonds, 24 Fordham International Law Journal 1402(2001).
43. For a comment on this decision, besides the references in the articles enumerated in the previous footnote, see Tawny Aine Bridgeford, Imputing Human Rights Obligations on Multinational Corporations: The Ninth Circuit Strikes Again in Judicial Activism, 18 American University International Law Review 1009(2003).
44. It is interesting to note that the Court did not find necessary to examine other legal theories, such as joint venture, agency, negligence, and recklessness, but, at the same time, the Court stated that they "may, like aiding and abetting, be viable theories on the specific facts of this ATCA case" and that "on the facts of other ATCA cases, joint venture, agency, negligence, or recklessness may in fact be more appropriate theories than aiding and abetting." John Doe et al. v. Unocal Corporation; Total S. A., U. S. Court of Appeals for the Ninth Circuit, 18 September 2002, page 49, note 20. In his concurring opinion (page 84) Judge Reinhardt, even though agreeing with the final outcome of the sentence, dissented regarding the law to apply, which he thought to be the "general federal common law tort principles, such as agency, joint venture, or reckless disregard"
45. John Doe et al. v. Unocal Corporation; Total S. A., U. S. Court of Appeals for the Ninth Circuit, 18 September 2002, page 48.
46. John Doe et al. v. Unocal Corporation; Total S. A., U. S. Court of Appeals for the Ninth Circuit, 18 September 2002, page 50 and 54. In the definition of mens rea, it is to be noted the inclusion of constructive knowledge; few sentences after the quoted text, the judgment says also: "UNOCAL... should reasonably have known".
47. Bao Ge et al. v. Li Peng et al, U. S. District Court for the District of Columbia, August 28, 2000, page 16.
48. See Iwanowa v. Ford Motor Company and Ford Werke A. G., 67 F Supp. 2d 424, 1999;
49. In Re World War II Era Japanese Forced Labor Litigation, U. S. District Court for the Northern District of California, 2001;
50. Princz v. Basf Group, Hoechst AG, Bayer Group, Daimler-Benz AG. On these cases see Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon. An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations, 20 Berkeley Journal of International Law 91(2002).
51. More generally on the holocaust claims question see Sean D. Murphy, World War II Era Claims Against Japanese Companies, 95 American Journal of International Law 139(2001);
52. Sean D. Murphy, Nazi-Era Claims Against German Companies, 94 American Journal of International Law 682(2000);
53. William Bratton, Two Observations On Holocaust Claims, Symposium: Holding Multinational Corporations Responsible Under International Law, 24 Hastings International & Comparative Law Review 321(2001);
54. Peter Van der Auweraert, Holocaust Reparation Claims Fifty Years After: The Swiss Banks Litigation, 71 Nordic Journal of International Law 557(2002);
55. Vagts Detlev - Murray Peter, Litigating the Nazi Labor Claims: The Path Not Taken, 43 Harvard International Law Review 503(2002).
56. For a proposal arguing the legal feasibility of such an action see Nancy Morisseau, Seen but not Heard: Child Soldiers Suing Gun Manufacturers Under the Alien Tort Claims Act, 89 Cornell Law Review 1263(2004).
57. Article 6(1) of the Statute of the Special Court for Sierra Leone, available at http://www.sc-sl.org/, has exactly the same wording.
58. Albin Eser, Individual Criminal Responsibility, in Antonio Cassese/Paola Gaeta/John R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 767, 786.
59. "The basic assumption must be that in international law as much as in national systems, the foundation of criminal responsibility is the principle of personal culpability: nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some other way participated (nulla poena sine culpa).", ICTY Case No. IT-94-1-A, Prosecutor v. Tadic, Appeals Chamber Judgement, 15 July 1999, § 186.
60. ICTY Case No. IT-96-21-T, Prosecutor v. Delalic et al, Judgement, 16 November 1998, § 319.
61. ICTY, Case No. IT-94-1-T, Prosecutor v. Dusko Tadic, Opinion and Judgment, 7 May 1997, § 666-669;
62. ICTY Case No. IT-96-21-T, Prosecutor v. Delalic et al., Judgement, 16 November 1998, § 321.
63. The two situations have not to be present at the same time, as they are considered two disjunctive requirements ICTR. ICTR Case No. ICTR-96-4-T, Prosecutor v. Jean-Paul Akayesu, Judgement, 2 September 1998, § 484.
64. The Court concludes: "In sum, the Trial Chamber holds that the actus reus of aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime." This explanation of actus reus requirements, as well as the other quotations, are taken from ICTY Case No. IT-95-17/1-T, Prosecutor v. Furundzija, Judgement, 10 December 1998, § 232-235.
65. A contrary opinion has never been followed by following jurisprudence: "Complicity by aiding and abetting implies a positive action which excludes, in principle, complicity by failure to act or omission", ICTR Case No. ICTR-96-4-T, Prosecutor v. Jean-Paul Akayesu, Judgement, 2 September 1998, § 536.
66. Interestingly, the Appeals Chamber recently stated: "The Appeals Chamber leaves open the possibility that in the circumstances of a given case, an omission may constitute the actus reus of aiding and abetting", ICTY Case No. IT-95-14-A, Prosecutor v. Blaskic, Appeals Chamber Judgement, 29 July 2004, § 47.
67. ICTY Case No. IT-02-60, Prosecutor v. Blagojevic and Jokic, Trial Chamber I Judgement, 17 January 2005, § 726.
68. ICTY Case No. IT-02-60, Prosecutor v. Blagojevic and Jokic, Trial Chamber I Judgement, 17 January 2005, § 731.
69. ICTY Case No. IT-94-1-T, Prosecutor v. Dusko Tadic, Opinion and Judgment, 7 May 1997, § 689 and 691.
70. In the same way ICTR Case No. ICTR-96-4-T, Prosecutor v. Jean-Paul Akayesu, Judgement, 2 September 1998, § 484.
71. Presence must be knowing and not ignorant or unwilling, ICTY Case No. IT-94-1-T, Prosecutor v. Dusko Tadic, Opinion and Judgment, 7 May 1997, § 689.
72. ICTY Case No. IT-95-14/1-Tl, Prosecutor v. Aleksovski, "Lasva Valley, Judgement, 25 June 1999, § 65. This is considered to be an "indicium" to infer the required mens rea; however, it should be considered first of all an indicium to infer the requirements of the actus reus.
73. ICTR Case No. ICTR-95-1-T, Prosecutor v. Kayishema and Ruzindana, Judgement, 21 May 1999 § 202;
74. ICTY Case No. IT-98-29-T, Prosecutor v. Galic, Judgement and Opinion, 5 December 2003, § 169 (see also §170-172).
75. An author comments: "in those cases where the legitimacy of command responsibility can hardly be questioned - in the case of positive knowledge of the superior - the delimitation between liability for omission (command responsibility) and acting as an accomplice (complicity) is vague. Apart from the structural similarities between these two forms of derivative liability, evidence in war crimes trials normally permits conclusions in both directions.... In fact, the Rule 61 decisions of the ICTY have used both forms of liability [Prosecutor v. Karadzic and Mladic (Case Nos. IT-95-5-R 61/IT-95-18-R 61), Review of Indictment Pursuant to Rule 61, July 11, 1996, § 83-94].... The apparent contradiction may be reconciled by arguing for a prevalence of liability for acts over liability for omission (principle of subsidiarity) if the different forms of conduct in question are temporarily and subjectively interrelated";
76. see Kai Ambos, General Principles of Criminal Law in the Rome Statute, 10 Criminal Law Forum 1, 20(1999).
77. Prosecutor v. Furundzija, Judgement, 10 December 1998, §245. In this Judgement, this solution is applied to distinguish perpetration of torture from aiding and abetting torture. To this end, it is "crucial to ascertain whether the individual who takes part in the torture also partakes of the purpose behind torture": " (i) to be guilty of torture as a perpetrator (or coperpetrator), the accused must participate in an integral part of the torture and partake of the purpose behind the torture, that is the intent to obtain information or a confession, to punish or intimidate, humiliate, coerce or discriminate against the victim or a third person. (ii) to be guilty of torture as an aider or abettor, the accused must assist in some way which has a substantial effect on the perpetration of the crime and with knowledge that torture is taking place.", ICTY Case No. IT-95-17/1-T, Prosecutor v. Furundzija, Judgement, 10 December 1998, § 252.
78. "in addition to knowledge that his acts assist the commission of the crime, the aider and abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct." ICTY Case No. IT-95-14-T, Prosecutor v. Blaskic, Judgement, 3 March 2000, § 286.
79. ICTY Case No. IT-94-1-A, Prosecutor v. Tadic, Appeals Chamber Judgement, 15 July 1999, § 229;
80. ICTR Case No. ICTR-95-1-A, Prosecutor v. Kayishema and Ruzindana, Appeals Chamber Judgement, 1 June 2001, § 186;
81. ICTY Case No. IT-97-25-A, Prosecutor v. Krnojelac, Appeals Chamber Judgement, 17 September 2003, § 33 and §51;
82. ICTY Case No. IT-98-32-A, Prosecutor v. Vasiljevic, Appeals Chamber Judgement, 25 February 2004, § 102;
83. ICTY Case No. IT-95-14-A, Prosecutor v. Blaskic, Appeals Chamber Judgement, 29 July 2004, § 49, explicitly reversing the Trial Chamber Judgement.
84. See recently ICTY Case No. IT-02-60, Prosecutor v. Blagojevic and Jokic, Trial Chamber I Judgement, 17 January 2005, § 727.
85. These two approaches have been somewhat mixed in ICTY Case No. IT-01-42-T, Prosecutor v. Strugar, Trial Chamber II, Judgement, 31 January 2005, § 350.
86. ICTY Case No. IT-98-34-T, Prosecutor v. Naletilic and Martinovic, Trial Chamber I, Judgement, 31 March 2003, § 63;
87. ICTY Case No. IT-98-30/1-T, Prosecutor v. Kvocka et al, Judgement, 2 November 2001, § 255;
88. Case No. IT-95-14-T, Prosecutor v. Blaskic, Judgement, 3 March 2000, § 287;
89. ICTY Case No. IT-95-17/1-T, Prosecutor v. Furundzija, Judgement, 10 December 1998, § 246.
90. ICTY Case No. IT-95-14/1 Prosecutor v. Aleksovski, "Lasva Valley", Appeals Chamber, 30 May 2001, § 162;
91. ICTY Case IT-95-9-T, Prosecutor v. Simic et al, Judgment, 17 October 2003, § 163;
92. ICTY Case No. IT-97-25-T, Prosecutor v. Krnojelac, Judgment, 15 March 2002, § 90;
93. ICTY Case No. IT-96-23&23/1, Prosecutor v. Kunarac et al., "Foca", Trial Chamber II, Judgement, 22 February 2001, § 392;
94. ICTY Case No. IT-02-60, Prosecutor v. Blagojevic and Jokic, Trial Chamber I Judgement, 17 January 2005, § 727.
95. ICTY Case No. IT-94-1-T, Prosecutor v. Dusko Tadic, Opinion and Judgment, 7 May 1997, § 692.
96. ICTY Case No. IT-98-30/1-T, Prosecutor v. Kvocka et al, Judgement, 2 November 2001, § 262.
97. In the same way ICTY Case No. IT-97-25-A, Prosecutor v. Krnojelac, Appeals Chamber Judgement, 17 September 2003, § 49-52;
98. ICTY Case No. IT-02-60, Prosecutor v. Blagojevic and Jokic, Trial Chamber I Judgement, 17 January 2005, § 753.
99. On complicity in genocide in the ICTR jurisprudence see Alex Obote-Odora, Complicity in genocide as understood through the ICTR experience, 2 International Criminal Law Review 375(2002);
100. generally, on complicity in genocide see William A. Schabas, Genocide in International Law, 2000, 285-303.
101. See also Alexander K. A. Greenwalt, Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation, 99 Columbia Journal Law Review 2259, 2282(1999).
102. An author makes the case that there is a distinction between the two concepts, rooted in the their different purposes: the object of articles 2(3) (e) ICTR Statute and 4(3) (e) ICTY Statute (as well as more in general of articles 2 to 4 ICTR Statutes and articles 2 to 5 ICTY Statute) is "to nominate substantive crimes and give to the Tribunal jurisdiction over those crimes", while the object of articles 6(1) ICTR Statute and 7(1) ICTY Statute is "to provide an adjectival formula for the personal attribution of the prime legal responsibility for the substantive crimes nominated" in articles 2 to 4 ICTR Statute and articles 2 to 5 ICTY Statute; see Chile Eboe-Osuji, 'Complicity in Genocide" versus 'Aiding and Abetting Genocide' - Construing the Difference in the ICTR Statute and ICTY Statutes, 3 Journal of International Criminal Justice 56(2005).
103. ICTR Case No. ICTR-96-4-T, Prosecutor v. Jean-Paul Akayesu, Judgement, 2 September 1998, § 485, 538-547;
104. see also ICTR Case No. ICTR-96-10-T & ICTR-96-17-T, Prosecutor v. Elizaphan and Gérard Ntakirutimana, Judgement and Sentence, 21 February 2003, § 787. According to the Akayesu judgement (§ 548), another difference "between complicity in genocide and the principle of abetting in the planning, preparation or execution a genocide as per Article 6(1), is that, in theory, complicity requires a positive act, i.e. an act of commission, whereas aiding and abetting may consist in failing to act or refraining from action"
105. ICTR Case No. ICTR-97-20-T, Prosecutor v. Semanza, Judgement and Sentence, 15 May 2003, § 394-395;
106. followed by ICTY Case No. IT-97-24-T, Prosecutor v. Stakić, Judgement, 31 July 2003, § 531-534.
107. ICTY Case No. IT-98-33-A, Prosecutor v. Krstic, Appeals Chamber Judgement, 19 April 2004, § 139.
108. ICTY Case No. IT-98-33-A, Prosecutor v. Krstić, Appeals Chamber Judgement, 19 April 2004, § 140-142;
109. see also the Partial Dissenting Opinion of Judge Shahabuddeen, Part G.1: There is a crime of aiding and abetting the commission of genocide, § 59-68.
110. The same solution is endorsed in ICTR Case No. ICTR-96-10-A & ICTR-96-17-A, Prosecutor v. Elizaphan and Gérard Ntakirutimana, Appeals Chamber Judgement, 13 December 2004, § 500-501;
111. ICTY Case No. IT-02-60, Prosecutor v. Blagojevic and Jokic, Trial Chamber I Judgement, 17 January 2005, § 678-680.
112. ICTY Case No. IT-02-60, Prosecutor v. Blagojevic and Jokic, Trial Chamber I Judgement, 17 January 2005, § 638.
113. As noted in ICTR Case No. ICTR-96-4-T, Prosecutor v. Jean-Paul Akayesu, Judgement, 2 September 1998, footnote 105, the travaux préparatoires of the Genocide Convention show that "only complicity in the completed offence of genocide was intended for punishment and not complicity in an attempt to commit genocide, complicity in incitement to commit genocide nor complicity in conspiracy to commit genocide, all of which were, in the eyes of some states, too vague to be punishable under the Convention"
114. ICTY Case No. IT-97-25-T, Prosecutor v. Krnojelac, Judgment, 15 March 2002, § 74-77
115. confirmed in appeal: ICTY Case No. IT-97-25-A, Prosecutor v. Krnojelac, Judgement, 17 September 2003, § 75.
116. See also ICTY Case No. IT-95-14-T, Prosecutor v. Blaskic, Judgement, 3 March 2000, § 791, where it is stated: "although direct participation by the commander does constitute an aggravating circumstance, the fact that he does not participate directly may not conversely justify a reduction in the sentence".
117. ICTY Case No. IT-97-25-T, Prosecutor v. Krnojelac, Judgment, 15 March 2002, § 75 (see also §77)
118. recalling the Delalic Appeal Judgment, § 429-430
119. and Aleksovski Appeal Judgment, § 182. The Trial Chamber is considering participation in a joint criminal enterprise, but the principle stated can be safely applied to aiding and abetting.
120. IcTy Case No. IT-98-32-T, Prosecutor v. Vasiljevic, 29 November 2002, § 71;
121. recalled verbatim in ICTY Case No. IT-99-36-T, Prosecutor v. Brdjanin, 1 September 2004, § 274.
122. In a joint criminal enterprise "the actus reus consists of participation in a joint criminal enterprise and the mens rea required is intent to participate", ICTY Case No. IT-95-17/1-T, Prosecutor v. Furundzija, Judgement, 10 December 1998, § 210-216;
123. In ICTY Case No. IT-97-25-A, Prosecutor v. Krnojelac, Judgement, 17 September 2003, § 100 it is affirmed: "The Appeals Chamber agrees with the Prosecution that shared criminal intent does not require the co-perpetrator's personal satisfaction or enthusiasm or his personal initiative in contributing to the joint enterprise"
124. See also ICTY Case No. IT-98-33-T, Prosecutor v. Krstić, Judgement, 2 August 2001, § 602-646 (§636-645 on the relationship between joint criminal enterprise and article 4(2) (3) (a) (e));
125. ICTY Case No. IT-98-30/1-T, Prosecutor v. Kvocka et al., Judgement, 2 November 2001, § 265-312;
126. ICTY Case No. IT-98-32-T, Prosecutor v. Vasiljevic, 29 November 2002, § 63-69;
127. ICTY Case No. IT-97-24-T, Prosecutor v. Stakić, Judgement, 31 July 2003, § 421-442;
128. ICTY Case No. IT-97-25-A, Prosecutor v. Krnojelac, Appeals Chamber Judgement, 17 September 2003, § 28-33 and §64-124;
129. ICTY Case IT-95-9-T, Prosecutor v. Simic et al., Judgment, 17 October 2003, § 139-160.
130. ICTY Case No. IT-94-1-A, Prosecutor v. Tadic, Appeals Chamber Judgement, 15 July 1999, § 220.
131. See ICTY Case No. IT-94-1-A, Prosecutor v. Tadic, Appeals Chamber Judgement, 15 July 1999, § 229.
132. For the prosecutorial implications of joint criminal enterprise see Nicola Piacente, Importance of the Joint Criminal Enterprise Doctrine for the ICTY Prosecutorial Policy, 2 Journal of International Criminal Justice 446(2004).
133. ICTY Case No. IT-98-30/1-T, Prosecutor v. Kvocka et al, Judgement, 2 November 2001, § 273, 282-289.
134. It is not possible to aid and abet the third category of joint criminal enterprise according to Steven Powles, Joint Criminal Enterprise - Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?, 2 Journal of International Criminal Justice 606, 612(2004).
135. More generally, for a call to a more careful and less broad approach to joint criminal enterprise see Allison Marston Danner - Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 California Law Review 75(2005);
136. Shane Darcy, An Effective Measure of Bringing Justice?: The Joint Criminal Enterprise Doctrine of the International Criminal Tribunal for the Former Yugoslavia, 20 American University International Law Review 153(2004).
137. Section 14(3) of Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences committed in East Timor (available at http://www.un.org/peace/etimor/untaetR/Reg0015E.pdf)
138. and article 15 (b) of the Statute of the Iraqi Special Tribunal (available at http://www.cpa-iraq.org/human-rights/Statute.htm) have the same wording of article 25(3) of the ICC Statute.
139. For a comparison with previous international codification, including the two Statutes of the ad hoc Tribunals, see Albin Eser, Individual Criminal Responsibility, in Antonio Cassese/Paola Gaeta/John R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 767, 774.
140. For an examination of complicity from Nuremberg to the Rome Statute see also Kai Ambos, Individual Criminal Responsibility in International Criminal Law: A Jurisprudential Analysis - From Nuremberg to The Hague, in Kirk McDonald/Gabrielle Olivia Swaak-Goldman, Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, Volume 1: Commentary, 2000, p. 1.
141. See Albin Eser, Individual Criminal Responsibility, in Antonio Cassese/Paola Gaeta/John R. WD. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 767, 787-788, enumerating the possible cases in favor of the unitary perpetrator model or the differential participation model. The Author however states: "When trying to decide into which of the above-mentioned models of perpetration and participation the Rome Statute fits, it is difficult to find an unambiguous answer. When keeping in mind that we are moving in the area of macro-criminality and perhaps state-supported crimes, it appears advisable for an effective fight against crime to judge the responsibility of individual parties to a crime on their own merits as far as is possible. This aim seems best served by interpreting the Rome Statute's regulation in terms of 'unitary perpetration model' as in this system the responsibility of a party is less, if at all, dependent on the responsibility of the principal perpetrator"
142. See also Ferrando Mantovani, The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer, 1 Journal of International Criminal Justice 26, 34-35(2003).
143. According to some authors, the wording of Article 25 would indicate that a low threshold has to be met. For example, Professor Schabas observes: "The absence of words like 'substantial' in the Rome Statute, and the failure to follow the International Law Commission draft, may suggest that the Diplomatic Conference meant to reject the higher threshold of the recent case law of The Hague and Arusha.", see William A. Schabas, An Introduction to the International Criminal Court, 2nd ed., 2004, p. 102.
144. Maria Kelt/Herman Von Hebel, General Principles of Criminal Law and the Elements of Crimes, in Roy S. Lee, The International Criminal Court - Elements of Crimes and Rules of Procedure and Evidence, 2001, p. 19, 37.
145. For contrary, distinguished opinions see Albin Eser, Individual Criminal Responsibility, in Antonio Cassese/Paola Gaeta/John R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 767, 803;
146. Kai Ambos, General Principles of Criminal Law in the Rome Statute, 10 Criminal Law Forum 1, 13(1999).
147. Generally, in several points article 25 leaves at least something to be desired; see Albin Eser, Individual Criminal Responsibility, in Antonio Cassese/Paola Gaeta/John R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 767, 783, 789, 803.
148. Per Saland, International Criminal Law Principles, in Roy S. Lee, The International Criminal Court - The Making of the Rome Statute - Issues, Negotiations, Results, 1999, p. 189, 199-200.
149. According to Mahnoush H. Arsanjani (who acted as Secretary of the Committee of the Whole during the Rome Conference) conspiracy and even other forms of responsibility are included, see Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 American Journal of International Law 22, 36(1999). Letter d) refers with slight modifications to article 2(3) of the 1997 International Convention for the Suppression of Terrorist Bombings. In turn, this article was taken from a treaty on extradition of the European Union, the 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, September 27, 1996.
150. On the International Convention for the Suppression of Terrorist Bombings see Samuel M. Witten, The International Convention for the Suppression of Terrorist Bombings, 92 American Journal of International Law 774(1998).
151. Article 25 (d) is considered to uphold the doctrine of joint criminal enterprise by ICTY Case No. IT-94-1-A, Prosecutor v. Tadic, Appeals Chamber Judgement, 15 July 1999, § 222.
152. An author states: "To be liable for conspiracy, the accused must have intended the crime which was the subject matter of the agreement committed. It is submitted that if Article 25(3) (d) was intended as an alternative, compromise basis of liability to conspiracy, it may not have been the intention of the drafters to include a basis of liability that could render an accused guilty even if he did not intend the ultimate outcome of his actions pursuant to the common purpose. Accordingly, it remains to be seen whether the ICC will interpret Article 25(3) (d) as giving rise to liability similar to the third category of joint criminal enterprise as articulated in Tadi, for which only a foreseeable risk and no such intent to commit the specific crime is required." See Steven Powles, Joint Criminal Enterprise - Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity? 2 Journal of International Criminal Justice 606, 617(2004).
153. A possible reason (maybe only implicitly and not explicitly considered by the drafters) for this difference between letter c) and letter d) of article 25(3) could be that common purpose crimes (and in general crimes involving more persons) are considered more serious than crimes committed by a single person. In national systems crimes involving more than one person are generally considered more serious than crimes committed by a single person; see Andrew Ashworth, Principles of Criminal Law, 3rd ed., 1999, p. 425. Indeed, collaboration makes possible a division of roles: this makes the group more efficient and able to keep ahead with the plan even if some people desist. Moreover, a plurality of people creates a reciprocal psychological support.
154. On the relationship between multinational companies and human rights see Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale Law Journal 443(2001);
155. Gilles Carbonnier, Corporate responsibility and humanitarian action - What relations between the business and humanitarian worlds?, 83 International Review Red Cross n. 844, p. 947(2001);
156. Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights, 20 Berkeley Journal of International Law 45(2002).
157. U. N. Document E/CN.4/Sub.2/2003/12/Rev. 2, available at http://unhchr.ch. The Norms are accompanied by a Commentary, U. N. Document E/CN.4/Sub.2/2003/38/Rev. 2.
158. See the comments by Amnesty International in the booklet "The UN Human Rights Norms for Business: Towards Legal Accountability", available at http://web.amnesty.org/aidoc/aidoc-pdf.nsf/Index/IOR420022004ENGLISH/ $File/IOR4200204.pdf.
159. On this issue see also the Code of Conduct for Law Enforcement Officials, Adopted by General Assembly resolution 34/169 of 17 December 1979, available at http://www.unhchr.ch/html/menu3/b/h-comp42.htm
160. and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, available at http://www.unhchr.ch/html/menu3/b/h-comp43.htm.
161. The UN Global Compact is a UN purely voluntary initiative seeking to advance ten Principles in the areas of human rights, labour standards, the environment, and anti-corruption. The Global Compact is a network: at its core there are the Global Compact Office and five UN agencies, namely the Office of the High Commissioner for Human Rights, the United Nations Environment Programme, the International Labour Organization, the United Nations Development Programme, and the United Nations Industrial Development Organization. Then, all relevant social actors are included: participating companies, governments, labor and business associations, universities and research centers, and organizations from the civil society. On 24 June 2004, the first Global Compact Leaders Summit at the UN Headquarters in New York gathered hundreds of corporate executives, government officials and civil society leaders to evaluate the results achieved by the UN Global Compact and to consider new actions for the future. The Principles and more in general the whole UN Global Compact are available at www.unglobalcompact.org. See also in the website the "Global Compact Business Guide for Conflict Impact Assessment and Risk Management".
162. On the possible ways to hold a company accountable for gross human rights violations see the articles in Symposium: Holding Multinational Corporations Responsible Under International Law, 24 Hastings International & Comparative Law Review 285(2001) and in particular, for an overview of national courts cases regarding not necessarily only gross human rights violations but also human rights abuses
163. see the article by Halina Ward, Securing Transnational Corporate Accountability Through National Courts: Implications and Policy Options, p. 451;
164. see also Sarah Joseph, Taming the Leviathans: Multinational Enterprises and Human Rights, 46 Netherlands International Law Review 171(1999).
165. For a suggestion in favor of a "multilateral approach" and especially, among the various alternatives, "an international treaty that specifies the human rights obligations of corporations and requires states parties to provide criminal, civil, or administrative remedies for violations of those obligations" see Developments in the Law - International Criminal Law: Corporate Liability for Violations of International Human Rights Law, 114 Harvard Law Review 2025, 2045(2001). Initiatives of States and local authorities in the United States (as well as initiatives by a singular State in the European Union) against companies conducting business in countries where gross human rights violations are taking place could not be a viable solution;
166. see David Schmahmann - James Finch, The Unconstitutionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar), 30 Vanderbilt Journal of Transnational Law 175(1997).
167. This is retained probably by the majority of scholars; moreover, the definitive Draft articles on the Responsibility of States for Internationally Wrongful Acts (2001) has deleted the provision (article 19), included in the past versions of the Draft, envisaging international crimes of States. However, among the others, a leading international criminal law scholar has a different opinion, M. Cherif Bassiouni, The Sources and Content of International Criminal Law: A Theoretical Framework, in M. Cherif Bassiouni (editor), 1 International Criminal Law, 1999, p. 18-19.
168. For the responsibility of "judicial organs" see Simonetta Stirling-Zanda, The Individual Criminal Law Responsibility of Judicial Organs in International Law in the Light of International Practice, 48 Netherlands International Law Review 67(2001).
169. Albin Eser, Individual Criminal Responsibility, in Antonio Cassese/Paola Gaeta/John R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 767, 778.
170. Nazi Conspiracy and Aggression, Opinion and Judgment of the IMT, p. 66(1947).
171. See ICTY Case No. IT-95-17/1-T, Prosecutor v. Furundzija, Judgement, 10 December 1998, § 217-223, referring to WWII cases.
172. Also, in the Farben case Judgement it can be read: "under the conception of personal individual guilt to which previous reference has been made, the prosecution, to discharge the burden imposed upon it in this case, must establish by competent proof beyond a reasonable doubt that an individual defendant was either a participant in the illegal act or that, being aware thereof, he authorized or approved it. Responsibility does not automatically attach to an act proved to be criminal merely by virtue of a defendant's membership in the Vorstand [administration board]. Conversely, one may not utilize the corporate structure to achieve an immunity from criminal responsibility for illegal acts which he directs, counsels, aids, orders, or abets.", Trials of War Criminals Before the Nuremberg Military Tribunals, Volume VIII, Part 2, p. 1153(1952).
173. Direct complicity occurs when "a company knowingly assists a state in violating human rights" ("an example of this is in the case where a company assists in the forced relocation of peoples in circumstances related to business activity"); beneficial complicity happens when "a company benefits directly from human rights abuses committed by someone else" ("for example, violations committed by security forces, such as the suppression of a peaceful protest against business activities or the use of repressive measures while guarding company facilities, are often cited in this context"); silent complicity is the situation when a company fails "to raise the question of systematic or continuous human rights violations in its interactions with the appropriate authorities" ("for example, inaction or acceptance by companies of systematic discrimination in employment law against particular groups on the grounds of ethnicity or gender could bring accusations of silent complicity"). See the UN Global Compact website at http://www.unglobalcompact.org/content/AboutTheGC/TheNinePrinciples/prin2.htm.
174. For a commentary of the enumerated forms of complicity see Andrew Clapham/Scott Jerbi, Categories of Corporate Complicity in Human Rights Abuses, Symposium: Holding Multinational Corporations Responsible Under International Law, 24 Hastings International & Comparative Law Review 339(2001).
175. For other classifications of forms of corporate responsibilities see also International Council on Human Rights Policy, Beyond Voluntarism - Human rights and the developing international legal obligations of companies - Summary, 2002, p. 11;
176. Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon. An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations, 20 Berkeley Journal of International Law 91, 101-104(2002).
177. Yves Ternon, L'État Criminel: Les Genocides au 20. Siecle, 1995.
178. Harold Hongju Koh, A World Drowning in Guns, 71 Fordham Law Review p. 2333(2003).
179. Two authors instead argue that a gun control policy, that makes a people disarmed, creates one of the conditions that allows a part of that people to turn against the other part and commit a genocide, Daniel D. Polsby/Don B. Kates, Of Holocausts and Gun Control, 75 Washington University Law Quarterly 1237(1997).
180. According to an author, it is even emerging a rule of customary law requiring States to refrain from exporting arms in places where they will be used in violation of the principles of international law. See Emanuela Gillard, What is legal? What is illegal? Limitations on Transfers of Small Arms under International Law, Lauterpacht Research Centre for International Law, Cambridge, p. 1. At least at the present time, this opinion probably goes too far. More grounded it is the opinion arguing that Common Article 1 of the Geneva Conventions, affirming that States have the obligation "to respect and ensure respect" for international humanitarian law, among the other things forbids providing arms to groups likely to use them to commit international humanitarian law violations.
181. See for example by Barbara Frey, Special Rapporteur on these issues for the Sub-Commission on the Promotion and Protection of Human Rights of the UN Commission on Human Rights, the Working Paper: The question of the trade, carrying and use of small arms and light weapons in the context of human rights and humanitarian norms (30 May 2002)
182. and the Preliminary Report: Prevention of human rights violations committed with small arms and light weapons (25 June 2003).
183. See also the study by the International Committee of the Red Cross: Arms availability and the situation of civilians in armed conflict: a study presented by the ICRC (1999) available at www.icrc.org, Section Info resources > ICRC catalogue > Publications > Humanitarian law.
184. See Robert Muggah/Peter Batchelor, "Development Held Hostage": Assessing the Effects of Small Arms on Human Development - A preliminary study of the socio-economic impacts and development linkages of small arms proliferation, availability and use, United Nations Development Programme (UNDP); Control Arms, Guns or Growth? Assessing the impact of arms sales on sustainable development, June 2004.
185. All the mentioned instruments are available at http://ue.eu.int in the Section Policies > Foreign & Security Policy > Security-related export controls.
186. The Wassenaar Arrangement on export controls for conventional weapons and sensitive dual-use goods and technologies, operative since 1996, aims at promoting "transparency, exchange of views and information and greater responsibility in transfers of conventional arms and dual-use goods and technologies". See its website http://www.wassenaar.org.
187. The U. N. Program of Action has been adopted at the UN Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, New York, 9-20 July 2001; the UN. Register of Conventional Arms has been established by General Assembly Resolution 46/36 L entitled "Transparency in Armaments". See all this material at the website of the Conventional Arms Branch of the U. N. Department for Disarmament Affairs, at http://disarmament. un.org: 8080/cab/index.html.
188. See in the US the "Leahy Amendments", banning military aid and training to foreign forces committing human rights abuses, and the 1996 Brokering Amendment. On the latter see Elise Keppler, Preventing Human Rights Abuses by Regulating Arms Brokering: The U. S. Brokering Amendment to the Arms Export Control Act, 19 Berkeley Journal of International Law 381(2001), where it is affirmed that "the statute suffers from at least three major impediments to holding violators accountable: (1) inadequate and ineffective procedures for administering the law; (2) practical challenges of enforcement; and (3) a specific intent requirement"
189. For similar critics and some reform proposals see Ronald J. Sievert, Urgent Message to Congress - Nuclear Triggers to Libya, Missile Guidance to China, Air Defense to Iraq, Arms Supplier to the World: Has the Time Finally Arrived to Overhaul the U. S. Export Control Regime? - The Case for Immediate Reform of Our Outdated, Ineffective, and Self-Defeating Export Control System, 37 Texas International Law Journal 89(2002).
190. For other U. S. regulations regarding arms transfer see Jonathan T. Stoel, Codes of Conduct on Arms Transfers-The Movement Toward a Multilateral Approach, 31 Law and Policy in International Business 1285(2000).
191. See Amnesty International - Oxfam, Shattered Lives - The Case for International Arms Control, 2003, p. 75. The UN Disarmament Commission defined illicit transfer the "international trade in conventional arms which is contrary to the laws of states and/or international law"; this definition was endorsed by the 2001 UN Conference on small arms.
192. see Lisa Misol, Weapons and War Crimes: The Complicity of Arms Suppliers, in Human Rights Watch World Report 2004, paragraph "The potential to prosecute: Illustrative examples", available at http://hrw.org/wr2k4/13. htm.
193. In 1995 Nobel Prize Laureate Oscar Arias Sanchez and other Nobel Prize winners started to advocate for an International Code of Conduct about Arms Transfer. The initiative soon gained support from NGOs and personalities. At the end of 2000, with the collaboration of the Lauterpacht Research Centre for International Law of the University of Cambridge, the Code developed into the Framework Convention about International Arms Transfer. The Conference leading to the adoption of the Treaty by States is expected to be held in 2006. See the website http://www.arias.or.cr/english/tratado.html.
194. In 1998 the NGO Global Witness (shortly after helped by the NGO Partnership Africa Canada) organized an information and denunciation campaign on the role of diamonds in funding the conflict in Angola; see the Report A Rough Trade - The Role of Diamond Companies and Governments in the Angolan Conflict, December 1998, available at http://www.globalwitness.org/reports/download.php/ 00103.pdf.
195. For the relationship between diamonds and conflicts see generally Greg Campbell, Blood Diamonds. Tracing the Deadly Path of the World's Most Precious Stones, 2002.
196. The role of diamonds in fuelling the conflict has been officially recognized in the U. N. Security Council Resolutions regarding the situations in the Democratic Republic of Congo, Angola and Sierra Leone (see supra in the Introduction the relevant footnote) in the and in the U. N. General Assembly Resolutions A/Res/55/56 (adopted on 1 December 2000) and A/Res/56/263 (adopted on 13 march 2002), both of them entitled "The role of diamonds in fuelling conflict: breaking the link between the illicit transaction of rough diamonds and armed conflict as a contribution to prevention and settlement of conflicts", also referring to the Kimberley Process in appreciative and encouraging terms.
197. The Joint Resolution, as other relevant material, is available at www.worlddiamondcouncil.com.
198. See the Essential Guide to Implementing the Kimberley Process, available at www.kimberleyprocess.com.
199. On the Kimberley Process see the study by Ian Smillie, Motherhood, Apple Pie and False Teeth: Corporate Social Responsibility in the Diamond Industry, Occasional Paper No. 10 of the Diamonds and Human Security Project, developed by the organizations Partnership Africa Canada, International Peace Information Service, Network Movement for Justice and Development, available at www.pacweb.org/e/pdf/pac-csr-e.pdf.
200. For a discussion of these concerns see Margo Kaplan, Carats and Sticks: Pursuing War and Peace Through the Diamond Trade, 35 New York University Journal of International Law & Politics 559, 580(2003).
201. While the Kimberley Process requires participant States not to import or export from or to non-participant States, at the opposite article XI of the GATT prohibits WTO members to adopt bans or restrictions against the product of any other member. See Tracey Michelle Price, The Kimberley Process: Conflict Diamonds, WTO Obligations, and the Universality Debate, 12 Minnesota Journal of Global Trade 1(2003).
202. Unfortunately, according to Global Witness, major United States and international retailers selling diamonds are falling short in their promises to combat the trade in combat diamonds. See Broken Vows - Exposing the "Loupe" Holes in the Diamond Industry's Efforts to Prevent the Trade in Conflict Diamonds, March 2004, available at http://www.globalwitness.org/ reports/showphp/en. 00050.html.
203. This cannot be doubted. See however the arguments in favor of considering the Kimberley agreement as having force of law in Daniel L. Feldam, Conflict Diamonds, International Trade Regulation, and the Nature of Law, 24 University of Pennsylvania Journal of International Economic Law 835(2003).
204. The U. S. has enacted the Clean Diamond Trade Act, 19 U. S. C. 3901 (April 2003).
205. For a proposal of an international convention criminalizing illegal timber trade see Rudy S. Salo, When the Logs Roll Over: The Need for an International Convention Criminalizing Involvement in the Global Illegal Timber Trade, 16 Georgia International Environmental Law Review 127(2003).
206. Philip Swanson, Fuelling Conflict - The Oil Industry and Armed Conflict, 2002, available at http://www.fafo.no/pub/rapp/378/378.pdf, explores the relationship between oil exploitation and armed conflict.
207. On the emergence, and other issues of, international environmental criminal law see René Provost, International Criminal Environmental Law, in Guy S. Goodwin-Gill/Stefan Talmon (editors), The Reality of International Law - Essays in Honour of Ian Brownlie, 1999, p. 439;
208. Byung-Sun Cho, Emergence of an International Environmental Criminal Law? 19 UCLA Journal of Environmental Law & Policy 11 (2000/2001).
209. In some national criminal law systems crimes of "facilitation" are present, even if generally they are few and not covering the most important and complicate situations. In some systems where they are not present, like the English system, their introduction has been proposed to solve the most problematic situations. See Andrew Ashworth, Principles of Criminal Law, 3rd ed., 1999, p. 435;
210. Wayne R. La Fave, Criminal Law, 2000, p. 629.
211. The Model Penal Code does not include a crime of facilitation, but some of the States criminal codes, revised looking at the Model Penal Code as a reference, do; see for example the complex Section 115 of the N. Y. Penal Law, Markus D. Dubber, Criminal Law: Model Penal Code, 2002, p. 117.
212. On contraband in warfare see Werner Meng, Contraband, Encyclopedia of Public International Law, volume I, p. 809;
213. G. G. Fitzmaurice, Some Aspects of Modern Contraband Control and the Law of Prize, 22 British Year Book of International Law 73(1945);
214. S. W. D. Rowson, Prize Law During the Second World War, 24 British Year Book of International Law 160(1947);
215. Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, Volume II - The Law of Armed Conflict, 1968, p. 616-623;
216. L. Oppenheim, International Law - A Treatise, Volume II - Disputes, War and Neutrality, 7th ed. by Lauterpacht, 1952, p. 798-830.
217. See A. Gervais, Le droit des prises maritimes dans la seconde guerre mondiale, Revue Generale de Droit International Public, Jurisprudence française, Vol. 52, p. 88-161(1948);
218. Jurisprudence britannique, Vol. 53, p. 201-274(1949);
219. Jurisprudence italienne, Vol. 54, p. 251-316(1950);
220. Jurisprudence française, Vol. 55, p. 481-543(1951).
221. See also Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, Volume II - The Law of Armed Conflict, 1968, p. 620;
222. L. Oppenheim, International Law - A Treatise, Volume II - Disputes, War and Neutrality, 7th ed. by Lauterpacht, 1952, p. 805-808.
223. On trading with the enemy see Cynthia D. Wallace, Trading with the Enemy, Encyclopedia of Public International Law, volume IV, p. 884;
224. Martin Domke, Trading with the Enemy in World War 2, 1943;
225. Martin Domke, The Control of Alien Property - Supplement to Trading with the Enemy in World War 2, 1947;
226. L. Oppenheim, Internatonal Law - A Treatise, Volume II - Disputes, War and Neutrality, 7th ed. by Lauterpacht, 1952, p. 273-275, 318-321.
227. L. Oppenheim, Internatonal Law - A Treatise, Volume II - Disputes, War and Neutrality, 7th ed. by Lauterpacht, 1952, p. 319.
228. Texts available respectively in 12 American Journal of International Law (1918), Suppl., p. 27
229. and 36 American Journal of International Law (1942), Suppl., p. 56.
230. For the evolution of the Trading with the Enemy Acts and other related Acts in the United States until present days see Bethany Kohl Hipp, Defending Expanded Presidential Authority to Regulate Foreign Assets and Transactions, 17 Emory International Law Review 1311(2003).
231. L. Oppenheim, International Law - A Treatise, Volume II - Disputes, War and Neutrality, 7th ed. by Lauterpacht, 1952, p. 321.
232. These and other relevant cases are quoted in Elihu Lauterpacht, The Hague Regulations and the Seizure of Munitions de Guerre, 32 British Year Book of International Law 218, 230-233 (1955-6). After considering relevant cases and texts, the author concludes (p. 242-43): "Perhaps the only general principle of any assistance to be derived from the authorities which have been considered is that the term munitions de guerre comprises such articles as can reasonably be employed in the actual conduct of hostilities.... The essential element would appear to be that the object which is made the subject of seizure should, without substantial modification, be capable of playing a part in the battle, in the sense either of causing or preventing physical injury to persons or military objectives. It is not necessary that it should, by itself, be capable of playing such a role: but it must, at least, be something which forms part of the necessary equipment of an instrument of attack or defence"
233. On war materials see Armin A. Steinkam, War Materials, Encyclopedia of Public International Law, volume IV, 2000, p. 1389.
234. In this case Judge Tally, knowing that somebody had sent a warning telegram to the person that Judge Tally's brothers-in law were going to kill, sent a telegram to the telegraph operator telling him not to deliver the warning telegram. The telegraph operator did not send the telegram and Judge Tally's brothers-in-law killed their victim. Judge Tally was convicted of aiding and abetting, even if his brothers-in-law did not know of his assistance. This case is also relevant to show that it is not necessary, to make an accessory criminal responsible, that the principal knew of the accessory contribution. See Andrew Ashworth, Principles of Criminal Law, 3rd ed., 1999, p. 435;
235. Wayne R. La Fave, Criminal Law, 2000, p. 629.
236. Markus D. Dubber, Criminal Law: Model Penal Code, 2002, p. 113.
237. Sanford H. Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 California Law Review 323, 356-361(1985) notes that while causation is a but-for relationship, causation in complicity is the possibility of a but-for relationship; the author attributes this difference to the difference between causation and causation in complicity.
238. Consider for example using Liberia as a "flag of convenience" country: ships carrying conflict timber and diamonds, as well as arms, are registered there to avoid stricter, and fairer, regulations in their home countries. On Liberia as a Flag of Convenience country and its consequences see the Report by Global Witness The Pivotal Role of Liberia's Forest and Flag of Convenience in Regional Conflict, September 2001, p. 30-36, available at http://www.globalwitness.org/reports/download.php/00057.pdf.
239. The case is reported in ICTY Case No. IT-95-17/1-T, Prosecutor v. Furundzija, Judgement, 10 December 1998, § 224.
240. ICTR Case No. ICTR-96-10-A & ICTR-96-17-A, Prosecutor v. Elizaphan and Gérard Ntakirutimana, Appeals Chamber Judgement, 13 December 2004, § 530.
241. This is in part the case of the doctrine of joint criminal enterprise. It is also the case for a proposal to use the doctrine of conspiracy in ICTY rape trials, see Richard P. Barrett/Laura E. Little, Lessons of Yugoslav Rape Trials: A Role for Conspiracy Law in International Tribunals, 88 Minnesota Law Review 30(2003).
242. On the mental element in international criminal law, besides the works quoted below, see Roger S. Clark, The mental element in international criminal law: the Rome Statute of the International Criminal Court and the elements of offences, 12 Criminal Law Forum 291(2001);
243. Catherine Elliott, The French Law of Intent and its Influence on the Development of International Criminal Law, 11 Criminal Law Forum 35(2000).
244. For a survey of the mental element in international criminal law conventions see Roger S. Clark, Offenses of International Concern: Multilateral State Treaty Practice in the Forty Years Since Nuremberg, 57 Nordic Journal of International Law 49, 72-78(1988).
245. For early consideration of the issue see Stefan Glaser, La culpabilité en droit international pénal, Recueil Des Cours p. 467, I, 1960;
246. Stefan Glaser, Élément moral de l'infraction internationale, Revue Generale De Droit International Public troisième série v26 (v59), p 537(1955).
247. For an examination of the ICTY jurisprudence regarding mens rea see William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New England Law Review 1015(2003).
248. For a comprehensive study on mens rea in the ICC Statute see Johan D. Van der Vyver, The International Criminal Court and the Concept of Mens Rea in International Criminal Law, 12 University of Miami International and Comparative Law Review 57(2004).
249. An author notes: "article 30 ignores the difference between "intent" and "knowledge" and mixes up two different categories of conduct characterized in German doctrine as knowing and wanting (Wissen und Wollen) ", see Kai Ambos, General Principles of Criminal Law in the Rome Statute, 10 Criminal Law Forum 1, 22(1999).
250. See also Albin Eser, Mental elements - Mistake of fact and mistake of law, in Antonio Cassese/Paola Gaeta/John R. WD. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 889, 904-905;
251. Ferrando Mantovani, The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer, 1 Journal of International Criminal Justice 26, 32(2003). An author considers article 30 not only "confusing and ambiguous" but also "superfluous", since "[the] judges of the International Criminal Court, like their colleagues at the ICTY, would easily have understood the mental element of crimes without them having to be told"
252. see William A. Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, 37 New England Law Review 1015, 1025(2003). If the degree of the mens rea has been addressed, the scope of the mens rea has not been considered;
253. for an examination of this issue see Kai Ambos, Some Preliminary Reflections on the Mens Rea Requirements of the Crimes of the ICC Statute and of the Elements of Crimes, in L. C. Vorah et al., Man's Inhumanity to Man, 2003, p. 11;
254. see also Albin Eser, Mental elements - Mistake of fact and mistake of law, in Antonio Cassese/Paola Gaeta/John R. WD. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p 889, 908-920.
255. The presence of both intent and knowledge seems clearly required by the use of the conjunctive word "and". However, according to a distinguished author, applying proper rules of treaty interpretation makes "admissible to construe the word 'and' as also including the word 'or' when this is logically required.", Antonio Cassese, International Criminal Law, 2003, p. 176-177.
256. Kai Ambos, General Principles of Criminal Law in the Rome Statute, 10 Criminal Law Forum 1, 21(1999)
257. supports the exclusion of dolus eventualis; this opinion is endorsed also by Elies Van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, 2003, p 51-52.
258. Albin Eser, Mental elements - Mistake of fact and mistake of law, in Antonio Cassese/Paola Gaeta/John R. WD. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 889, 933 supports a more
259. Maria Kelt/Herman Von Hebel, General Principles of Criminal Law and the Elements of Crimes, Roy S. Lee, The International Criminal Court - Elements of Crimes and Rules of Procedure and Evidence, 2001, p. 19, 24-25.
260. See Gerhard Werle/Florian Jessberger, "Unless Otherwise Provided": Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law, 3 Journal of International Criminal Justice 35(2005), arguing that Article 30 "should be interpreted as a default rule that is applied only if there are no specific rules on the mental element at all in either the other provisions of the ICC Statute, the Elements of Crimes or customary international law"; indeed, "the rule-exception relationship envisaged by Article 30 ICCSt. is in fact reversed"
261. Certainly, the concept of strict responsibility is not introduced, as noted by Hans-Heinrich Jescheck, The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute, 2 Journal of International Criminal Justice 38, 45(2004).
262. Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808, UN Doc. S/25704, paragraph 56(1993).
263. See ICTY Case No. IT-94-1-A, Prosecutor v. Tadic, Appeals Chamber Judgement, 15 July 1999, § 220.
264. Donald K. Piragoff, Article 30, Otto Triffterer (editor), Commentary on The Rome Statute of the International Criminal Court 527, 531(1999) seems to limit exceptions to the ones included in the Statute and in the Elements of Crimes. Professor Schabas affirms: "It would seem to be going too far to suggest that the Article 30 standard in the Statute could be amended if an exception is provided for in the Elements [of Crimes]", but he adds that this has been done by the Elements of Crimes in some situations
265. see William A. Schabas, An Introduction to the International Criminal Court, 2nd ed., 2004, p. 109.
266. Maria Kelt/Herman Von Hebel, General Principles of Criminal Law and the Elements of Crimes, Roy S. Lee, The International Criminal Court - Elements of Crimes and Rules of Procedure and Evidence, 2001, p. 19, 30.
267. It is submitted that article 30 has not changed existing international criminal jurisprudence on the mens rea of aiding and abetting; see Donald K. Piragoff, Article 30, Otto Triffterer (editor), Commentary on the Rome Statute of the International Criminal Court 527, 530(1999).
268. However, according to an author, "there is a remarkable common denominator to [these] scholarly efforts however much they otherwise differ. The common denominator has to do with escaping the doctrinal traps of complicity law, and finessing the cause and double-mens rea problems, by reconceiving accessorial liability as a species of recklessness", Robert Weisberg, Reappraising Complicity, 4 Buffalo Criminal Law Review 217, 247(2000).
269. Backun v. United States, 112, F.2d 635 (4th Cir. 1940). Judge John J. Parker stated (at 637): "one who sells a gun to another knowing that he is buying it to commit a murder, would hardly escape conviction as accessory to the murder by showing that he received full price for the gun".
270. See also the Supreme Court decision in the civil case Hanauer v. Doane, 79 U. S., 342, 1870;
271. Bacon v. United States, 127 F.2d 985, 10th Cir., 1942;
272. Bozza v. United States, 330 U. S. Supreme Court 160, 1947
273. In this case the House of Lords held that a doctor, who gave contraceptive treatment to a girl under the age of 16 without her parents' consent knowing that this would have encouraged or facilitate sexual intercourse by the girl with a man, was not to be considered an aider or abettor. However, generally scholars seem to consider this case as based on, even if not explicitly, on necessity; see Smith & Hogan, Criminal Law, 10th ed., 2002, p. 152.
274. United States v. Peoni, 100 F. 2d 401, 2d Cir., 1938.
275. This criterion has been approved by the U. S. Supreme Court in Nye & Nissen v United States v. United States, 336 U. S. 613(1949).
276. Among the Federal Courts of Appeals that have followed the Judge Learned Hand formulation are: United States v. Irwin, 149 F3d 565, 7th Cir., 1998;
277. United States v. Morrow, 977 F. 2d 222, 6th Cir, 1992;
278. United States v. Blitz, 533 F. 2d 1329, 2nd Cir., 1976;
279. United States v. Cruz-Paulino, 61 F 3d 986, 1st Cir. 1995;
280. United States v. Monroe, 990 n F 2d 1370, D. C. Cir., 1993. An author affirms that "there has been an almost universal failure to recognize that Peoni is not an ordinary aiding and abetting case. Rather, it is a "natural and probable consequences" case that does not even purport to determine the mental state of the aider and abettor; in fact, it explicitly leaves that question open"
281. Weiss Baruch, What were they thinking?: The Mental States of the Aider and Abettor and the Causer under Federal Law, 70 Fordham Law Review 1341, 1424(2002).
282. See Smith & Hogan, Criminal Law, 10th ed., 2002, p. 153, affirming: "A distinction between indifference and unwillingness of this nature is, however, too uncertain to form the basis of a legal rule"
283. See United States v. Greer, 467 F. 2d 1064, 7th Cir., 1972;
284. United States v. Miller, 552 F. Supp. 827, N. D. Ill. 1982
285. aff'd sub nom. United States v. Matook, 729 F. 2d 1464, 7th Cir., 1984;
286. United States v. Zafiro, 945 F2d 881, 7th Cir., 1991
287. aff'd on other grounds, 506 U. S. 534(1993).
288. United States v. Campisi, 306 F. 2d 308, 2nd Cir., 1962.
289. See People v. Lauria, 251 Cal. App. 2d 471 (Cal. Ct. App. 1967);
290. United States v. Fountain, 768 F. 2d 790, 7th Cir.
291. modified, 777 F2d 345, 7th Cir., 1985;
292. United States v. Ortega, 44 F. 3d 505, 7th Cir., 1995.
293. According to an author, this principle has not been retained in English law, see Smith & Hogan, Criminal Law, 10th ed., 2002, p. 155.
294. The decision continues to say: "Can he wrap himself up in his own selfishness and heartless indifference and say, "What business is that of mine? Am I the keeper of another man's conscience?" No one can hesitate to say that such a man voluntarily aids in perpetration of the offence, and, morally speaking, is almost, if not quite, as guilty as the principal offender." See Hanauer v. Doane, Supreme Court of the United States, November 27, 1871, Decided, 346-347. Notwithstanding the case is not a criminal one, it is a leading case on the issue and accordingly reference to it should be made. The decision also states (349): "Where to draw the precise line between the cases in which the vendor's knowledge of the purchaser's intent to make an unlawful use of the goods, will vitiate the contract, and those in which it will not, may be difficult. Perhaps it cannot be done by exact definitions. The whole doctrine of avoiding contracts for illegality and immorality is founded on public policy"
295. Weiss Baruch, What were they thinking?: The Mental States of the Aider and Abettor and the Causer under Federal Law, 70 Fordham Law Review 1341, 1375(2002). The author also explores the advantages and disadvantages of each approach (1479-1486) and recommends a modified derivative approach (1487-1488): in the ordinary case "the defendant is an aider and abettor [or a causer] only if he or she deliberately (not by mistake or accident) commits an act that aids and abets (or counsels, commands, procures, or induces) [or causes] the principal's commission of the offense, and does so with the same mental state as that required of the principal", while in cases involving knowledge offenses, it is opportune "to confine liability to cases where the aider and abettor has rendered not just any act of assistance, but rather one that is substantial".
296. On U. S. jurisprudence see also Candace Courteau, The Mental Element Required for Accomplice: A Topic Note, 59 Louisiana Law Review 325(1998).
297. Further differences regarding mens rea are present in relation to peculiar provisions; see Tyler B. Robinson, A Question of Intent: Aiding and Abetting Law and the Rule of Accomplice Liability Under § 924(c), 96 Michigan Law Review 783(1997).
298. This trend is confirmed by international, but also national, legislation on international terrorism. See Angela A. Barkin, Corporate America - Making a Killing: An Analysis of Why it is Appropriate to Hold American Corporations Who Fund Terrorist Organizations Liable for Aiding and Abetting Terrorism, 40 California Western Law Review 169(2003).
299. Otherwise, "complicity in genocide would remain largely unpunished, because the destruction of a particular group is often not the aim or goal of the accomplice, rather he simply accepts it as a predictable side-effect." An interesting example is provided: "Think for example, of a company that utilizes forced labourers who belong to a particular group and imposes conditions of life upon them calculated to lead to the partial or complete bodily destruction of the group in question (article 6 (c)), but whose primary goal is not the destruction of the group but profit maximization through the use of cheap labour." See Kai Ambos, Some Preliminary Reflections on the Mens Rea Requirements of the Crimes of the ICC Statute and of the Elements of Crimes, L. C. Vorah et al., Man's Inhumanity to Man, 2003, p. 11, 23.
300. The Model Penal Code rejects the Pinkerton rule, Markus D. Dubber, Criminal Law: Model Penal Code, 2002, p. 113.
301. See Smith & Hogan, Criminal Law, 10th ed., 2002, p. 158.
302. In the opinion of Professor Cassese: "It would seem that, given the intrinsic nature of international crimes (which always amount to serious attacks on fundamental values) in international criminal law negligence operates as a standard of liability only when it reaches the threshold of gross or culpable negligence (culpa gravis) [i.e. conscious negligence (inadvertent recklessness)].... However, given the aforementioned nature of international crimes, it would seem that the mental element just referred to only becomes relevant when, in addition, there exist some specific conditions relating to the objective elements of the crime, that is, the values attacked are fundamental and the harm caused is serious.", Antonio Cassese, International Criminal Law, 2003, p. 172.
303. See Elies Van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, 2003, p49-50.
304. For an opinion in favor see Elies Van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, 2003, p. 52.
305. Sanford Kadish believes "unwise any radical extension of the reach of the criminal law [to embrace a doctrine of reckless complicity] in view of the realities of the administration of criminal justice, at least in America", and identifies three reasons for this opinion: culpability (the secondary needs to satisfy the culpability requirement of the principal in order to be found guilty of it), the policy of safeguarding lawful conduct from risk, and the ethic of individualism and self-determinism; see Sanford Kadish, Reckless Complicity, 87 Journal of Criminal & Criminology 369(1997).
306. In Smith & Hogan, Criminal Law, 10th ed., 2002, p. 153 it can be read: "... Mere recklessness, still less negligence, whether assistance be given, is probably not enough. D's realization that he may have left his gun-cupboard unlocked and that his son has a disposition to commit armed robbery, is probably not sufficient to fix D with liability for the armed robbery and homicide which the son commits using one of D's guns. There was no intention to do any act of advice or assistant"
307. See ICTR Case No. ICTR-95-1A-A, Prosecutor v. Bagilishema, 3 July 2002, § 34
308. recalled by ICTY Case No. IT-95-14-A, Prosecutor v. Blaskic, Appeals Chamber Judgement, 29 July 2004, § 63. In the former case, the Appeals Chamber affirmed also that "the test for criminal negligence as advanced by the Trial Chamber cannot be the same as the "had reason to know" test in terms of Article 6(3) of the Statute." The Appeals Chamber held that "References to "negligence" in the context of superior responsibility are likely to lead to confusion of thought", and it seemed to suggest that negligence could entail a disciplinary and not criminal responsibility, but it did not expand on this point (see § 32-37). The Appeals Chamber in the Bagilishema case replied to the findings of the Trial Chamber. The Trial Chamber Judgement declared "gross negligence" to be a "third basis of liability" other than article 6(1) responsibility and command responsibility (article 6(3)), and defined it as "a species of liability by omission" (in the form of criminal dereliction of a public duty) (§ 897).
309. See Melody J. Stewart, How Making the Failure to Assist Illegal Fails to Assist: An Observation of Expanding Criminal Omission Liability, 25 American Journal of Criminal Law 385(1998), arguing that in these situations the duty to act should be left to individual's morality and that, as a matter of policy, it is better to make help easier than to criminalize the failure to act.
310. Andrew Ashworth, Principles of Criminal Law, 3rd ed., 1999, p. 433.
311. Smith & Hogan, Criminal Law, 10th ed., 2002, p. 68.
312. Albin Eser, Individual Criminal Responsibility, in Antonio Cassese/Paola Gaeta/John R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 767, 818-820.
313. As stated by Per Saland, chairman of the working group which during the Rome Conference drafted Part 3 of the Rome Statute and Article 21 on Applicable Law; see Per Saland, International Criminal Law Principles, in Roy S. Lee, The International Criminal Court - The Making of The Rome Statute - Issues, Negotiations, Results, 1999, p. 189, 212-213.
314. These proposals are present in the few post-WWII scholarly works devoted exclusively to the examination of crimes of omissions in international criminal law. See Paul Speyer, Les crimes de guerre par omission, 30 Revue De Droit Penal Et De Criminologie 903, 934 and conclusive lines (Juin 1950);
315. Stefan Glaser, L'élément moral des infractions de commission par omission en droit international pénal, 73 Revue Penale Suisse 263(1958) (see also the other works by Stefan Glaser quoted supra).
316. ICTR Case No. ICTR-99-46-T, Prosecutor v. Ntagerura, Bagambiki and Imanishimwe, Judgement and Sentence, 25 February 2004, § 659.
317. See also ICTY Case No. IT-94-1-A, Prosecutor v. Tadic, Appeals Chamber Judgement, 15 July 1999, § 188, stating: "This provision [Article 7(1)] covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law"
318. On this issue see Elies Van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, 2003, p. 55-56, 93-94.
319. See the cases illustrated in J. Edwards, The Criminal Degrees of Knowledge, 17 Modern Law Review 294, 298-306(1954).
320. Among the problems, it has to be included the respect of the principles of legality; see Douglas N. Husak/Craig A. Callender, Wilful Ignorance, Knowledge, and the "Equal Culpability" Thesis: A Study of the Deeper Significance of the Principle of Legality, 1994 Wisconsin Law Review 29(1994).
321. United States v. Giovannetti, 919 F.2d 1223 (7th Cir. 1990): "If Janis strongly suspected that his house was being used as a wireroom, and to avoid confirming his suspicions he expended resources on avoiding a confrontation with the facts (as by taking a circuitous route to work), then his actions, far from showing that he was not an aider and abettor under Judge Hand's formulation, would show that he was - would show that he wanted the gambling enterprise to succeed so badly that he expended time and effort to avoid acquiring proof of the enterprise's character and with it indisputably guilty knowledge that might compel him to withdraw for fear of being prosecuted with no chance of avoiding conviction by pleading ignorance of what the enterprise was up to".
322. See Andrew Ashworth, Principles of Criminal Law, 3rd ed., 1999, p. 196-7 and 438 (the author also believes that negligence in failing to make reasonable inquiries is not sufficient);
323. Glanville Williams, Textbook of Criminal Law, 1978, p. 86 ("The best view is that [wilful blindness] applies only when a person is virtually certain that the fact exists and takes no steps to establish the contrary"). An author affirms that definitions of willful blindness are generally different from knowledge; to be correctly equated to knowledge, the following definition of willful blindness is proposed: "A person is willfully ignorant of a material fact if the person (1) is aware of very good information indicating that the fact exists; (2) almost believes the fact exists; and (3) deliberately avoids learning whether the fact exists (4) with a conscious purpose to avoid the criminal liability that would result if he or she actually knew the fact.";
324. see Robin Charlow, Wilful Ignorance and Criminal Culpability, 70 Texas Law Review 1351(1992).
325. See Ira P. Robbins, The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens Rea, 81 The Journal of Criminal Law & Criminology 191(1990).
326. See Alan C. Michaels, Acceptance: The Missing Mental State, 71 Southern California Law Review p. 953, 995-1002(1998).
327. David Luban, Contrived Ignorance, 87 Georgetown Law Journal 957(1999). In his insightful article, the author also affirms that the structure of wilful blindness involves two set of actions: "the first consists of the actions or omissions by which an actor shields herself from unwanted knowledge" (screening actions), while "the second set of action consists of whatever misdeeds the actor subsequently commits that would be innocent if, but only if, she was legitimately ignorant" (unwitting misdeeds). According to the author, it is a mistake to treat the screening actions and the wrongful misdeeds in isolation from each other; they have to be combined and considered together.
328. See United States v. Jewell, 532 F.2d 697 (9th Cir. 1976), where the defendant accepted the task of driving a car across the United States-Mexico border knowing that the car had a concealed compartment but avoiding to make any inquiries about its content.
329. Model Penal Code, Section 2.02(7): "Requirement of knowledge satisfied by knowledge of high probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes it does not exist." In the Comment to that Section it is explicitly affirmed that knowledge has been defined in this way to address willful blindness situations. An author approves the method of resolving the issues of willful blindness with an appropriate definition of knowledge, and proposes a slightly modified Model Penal Code definition: "Knowledge of a fact is established if the defendant believes it is highly probable that the fact exists", Jonathan L. Marcus, Model Penal Code Section 2.02(7) and Willful Blindness, 102 Yale Law Journal 2231(1993).
330. Glanville Williams, Criminal Law: The General Part, 1961, 2nd ed., p. 159.
331. R. v. Finta, [1994] S. C. R. 701.
332. See the ICTY Case No. IT-95-14/1, Prosecutor v. Aleksovski, "Lasva Valley", Appeals Chamber, 30 May 2001, Judgement on Appeal by Anto Nobilo against Finding of Contempt, § 49-52. The Chamber equates willful blindness to actual knowledge (see paragraph 52).
333. See Albin Eser, Mental elements - Mistake of fact and mistake of law, in Antonio Cassese Paola Gaeta/John R. W. D. Jones, The Rome Statute of the International Criminal Court: A Commentary, 2002, p. 889, 931-932.
334. Similarly to ATCA actions, commentators are divided regarding the opportunity of these actions. Arguing for a complementary role for the tort system in policy making see Timothy D. Lytton, Lawsuits Against the Gun Industry: A Comparative Institutional Analysis, 32 Connecticut Law Review 1247(2000);
335. arguing against the lawsuits see H. Sterling Burnett, Suing Gun Manufacturers: Hazardous to Our Health, 5 Texas Review Of Law & Politics 433(2001).
336. Several theories have been advanced by the plaintiffs to support their actions: strict liability for abnormally dangerous activities, strict product liability, negligence, public nuisance, and deceptive trade practices; see Timothy D. Lytton, Tort Claims Against Gun Manufacturers for Crime-Related Injuries: Defining a Suitable Role for the Tort System in Regulating the Firearms Industry, 65 Missouri Law Review 1(2000).
337. See Hamilton v. Beretta U. S. A. Corp., 264 F.3d 21 (2d Cir. 2001)
338. and especially Hamilton v. Beretta U. S. A. Corp., 96 N. Y.2d 222, 242
339. 750 N. E.2d 1055, 1068
340. 727 N. Y. S.2d 7, 20(2001).
341. On this case see Daniel L. Feldman, Not Quite High Noon for Gunmakers, But It's Coming: Why Hamilton Still Means Negligence Liability in Their Future, 67 Brooklyn Law Review 293(2001);
342. Aaron Twerski/Anthony J. Sebok, Liability Without Cause? Further Ruminations on Cause-In-Fact as Applied to Handgun Liability, 32 Connecticut Law Review 1370(2000);
343. John C. P. Goldberg/Benjamin C. Zipursky, Concern for Cause: A Comment on the Twerski-Sebok Plan for Administering Negligent Marketing Claims Against Gun Manufacturers, 32 Connecticut Law Review 1411(2000).
344. Similar responsibility of gun manufacturers have been upheld in Halberstam v. S. W. Daniel, Inc and Merril v. Navegar; for a comment see May Edwards, Mail-Order Gun Kits and Fingerprint-Resistant Pistols: Why Washington Courts Should Impose a Duty on Gun Manufacturers to Market Firearms Responsibly, 75 Washington Law Review 941(2000).
345. On the relationship between values and policies in international criminal law and national systems see M. Cherif Bassiouni, The Philosophy and Policy of International Criminal Justice, L. C. Vohrah et al. (editors), Man's Inhumanity to Man, 2003, p. 65, 97-103.
346. Bringing food and drink to the perpetrators at the place of torture is considered a form of aiding and abetting for example in ICTY Case No. IT-95-17/1-T, Prosecutor v. Furundzija, Judgement, 10 December 1998, § 257. Glanville Williams, while agreeing that there can be criminal responsibility for the supplier of things that can be used both for criminal and necessary purpose, affirms that "a person should not be regarded as implicated in a crime because he supplies the ordinary necessities of life to another person who is of known habits. A grocer is not responsible for his customer's burglary, even if he knows that his customer is a burglar.";
347. see Glanville Williams, Textbook of Criminal Law, 1978, p. 294. But the mentioned situation is different. The water and the food should be considered as the fuel for the tanks: they are not the ordinary food to feed normal people in ordinary days but the rations necessary to make an army functioning.
348. William A. Schabas, Enforcing international humanitarian law: Catching the accomplices, 83 International Review Red Cross n. 842, p. 439, 451 (June 2001).
349. Considering the large number of people who can be held as accomplices in a society, Andrew Clapham states: "Once we understand that individual criminal complicity can extend so far into the structure and networks that assist the principal perpetrators, repression and prosecution at the end of the complicity cascade becomes political prerogatives rather than legal imperatives.", Andrew Clapham, On Complicity, in Marc Henzelin/Robert Roth, Le Droit Penal A L'epreuve De L'internationalisation, 2002, p. 241, 256.
350. For these issues see generally Craig Forcese, Globalizing Decency: Responsible Engagement in an Era of Economic Integration, 5 Yale Human Rights & Development Law Journal 1(2002), calling for a "responsible engagement".
351. See Francisco Rivera, A Response to the Corporate Campaign Against the Alien Tort Claims Act, 14 Indiana International & Comparative Law Review 251(2003).
352. William A. Schabas, Enforcing international humanitarian law: Catching the accomplices, 83 International Review Red Cross n. 842, p. 439, 456 (June 2001).