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  • The African Court of Justice and Human and Peoples' Rights in Context
  • Development and Challenges
  • Online publication date: May 2019
  • pp 741-742
  • Publisher: Cambridge University Press

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C Modes of Participation, Immunity, Defences, Sentences and Reparations

26 Modes of Liability and Individual Criminal Responsibility

Wayne Jordash QC and Natacha Bracq
1. Introduction

The last two decades have been a period of remarkable growth in the prospects for accountability at the international level through the establishment of an array of international criminal tribunals, including the International Criminal Court (ICC). Despite well documented (and ongoing) travails, these institutions have driven understanding, debate and codification of important aspects of the legal framework required to ensure individual criminal liability for serious violations of international humanitarian law (IHL).

For reasons and motivations that will remain a source of debate and a degree of understandable cynicism, these developments appear to have breathed life into the African Union (AU)’s own efforts towards a regional mechanism governed by its own African Court of Justice and Human Rights Statute (AU Statute).1 On one view, the proposed AU Statute represents an attempt to improve on its predecessors, such as the Rome Statute that governs the ICC, including expanding the range of applicable crimes and modes of liability, as well as containing an unprecedented recognition of corporate liability in international criminal law.

However, obviously, expansions and modifications do not necessarily equate to genuine progression or enhanced effectiveness. As will be discussed in this Chapter, the AU’s approach to modes of liability in Article 28N of the proposed Statute, whilst being ambitious and innovative, particularly with regard to the addition of new modes of liability that provide an expanded range of ways that crimes may be committed, may not foreshadow improvement or increased efficiency in the AU’s putative adjudicative processes.

On examination, in many instances, it is questionable whether these additions will produce sufficiently specific or certain modes of liability to facilitate effective or more efficient prosecutions. Modes of liability are ‘linking principles’ used to connect accused with particular actions, criminals with other criminals, past decisions with consequences, either foreseen or unforeseen and punishment with moral desert.2 As such, especially in complex cases, they must be clearly and specifically defined if they are to prove fit for purpose in the practical setting of a courtroom. As will be discussed in this Chapter, the proposed AU Statute’s approach to liabilities and their probable impact upon these linking capabilities raise many preliminary concerns. If Article 28N proceeds in its current form, the new African Court of Justice and Human Rights (AU Court) will face difficult challenges concerning many of the proposed new modes of liability, including their application to a range of old (e.g. genocide or crimes against humanity) and new (e.g. corruption or piracy) crimes and new types of entities (e.g. legal persons) and their overall impact upon future trials.

This Chapter does not purport to address each and every concern arising from the drafting of Article 28N. It is a preliminary analysis of some of the most obvious and pressing issues that suggest that the overall approach to modes of responsibility in Article 28N lacks the clarity and required to provide routes to the effective adjudication of the range of crimes and to keep trials moving. Some of these problems may have arisen due to simple drafting errors, such as, perhaps, the absence of a clear distinction between principal and accessory liability; others however appear to originate from (well intentioned) practical missteps that include the introduction of a range of new modes of liability (e.g. organizing, directing, facilitating, financing and counselling) that appear to be duplicative or overlapping, with no apparent purpose other than to provide anxious prosecutors with the reassurance that every iota of conceivable misconduct is captured within its reach.

Nonetheless, throughout this Chapter, the authors have endeavoured to keep in mind an obvious practical reality, namely that every international tribunal must engage ‘in a ‘continuous quest’ for theories of liability that can adequately address the systemic character of international crimes’.3 Modes of participation inspired by domestic legislation and integrated into international tribunals’ statutes may not always be a perfectly good fit to address the challenges confronting international criminal law. They must continuously evolve (or be revealed) as new types of involvement or means of participation are exposed in real life trials. Bringing individuals to justice under the (sometimes restrictive) confines of international criminal statutes demands a considerable degree of judicial creativity with regard to honing their utility if misconduct is to be captured and individuals are to be allowed due process and fairly held accountable for any crimes.

As for the latter, due process demands that any judicial creativity must proceed cautiously. Modes of liability may only be interpreted in light of the objectives and principles of international criminal justice. Tribunals must ensure respect for fundamental due process considerations, such as the principles of nullum crimen sine lege, and nulla poena sine lege that are well-established principles in customary international law and apply to the various modes of liability, as well as being codified in the Rome Statute.4 Amongst several other prerequisites, such principles demand clarity of pleading of the modes of liability5 and that criminal liability should be individual, and sufficiently foreseeable and accessible at the time of the commission of the act or omission.6

Whatever the rights or wrongs of Article 28N, the AU Court’s challenges will be no different and, in the end, much will depend on the inventiveness and practical knowhow of the judges working to meet the multifarious demands of the trial processes. However, as will be discussed in this Chapter, given the serious ambiguities and anomalies that run through the critical terms of Article 28N, the drafters have handed these judges a herculean, if not impossible, task. In summary, Article 28N’s drafting may give rise to insuperable obstacles that stand in the way of both the practical and principled application of international law within the AU Court.

Criminal law frameworks generally rest on one of two basic models of criminal liability ‘the unitary perpetrator model’ and ‘the differential participation model’.7 The first Section of the Chapter examines whether the drafters of 28N intended to opt for one of these models. On the face of the pleading, Article 28N may have adopted a unitary participation model. It contains a broad mix of modes that include both principal and accessorial modes of liability. However, as will be discussed, this is far from clear. Article 28N contains a myriad of overlapping modes of liability that suggest that the drafter may have been more focused on ensuring that the provision captured every conceivable form of conduct, rather than making an active selection for one and not the other. As unlikely as it may seem, it may be that the drafter simply stumbled into the unitary participation model whilst focused upon this objective.

The second Section of the Chapter examines the various modes of liability contained in Article 28N Statute and discusses some of the interpretative issues that will arise. Article 28N introduces an array of modes of responsibility that have not been part of modern international criminal law statutes. While reproducing many of the modes of liability that are usual, Article 28N includes new forms of complicity, namely organizing, directing, facilitating, financing, counselling and ‘accessory before and after the fact’. As will be discussed, these ‘new’ and overlapping modes of liability may not in the final analysis prove necessary, let alone useful, as vehicles for practical criminal process and adjudication. Most indictments and trials at the international level suffer from overload and vagueness and the pleading of a multitude of liabilities that play no meaningful role in the proceedings, proceedings are likely to do nothing more than distract from the core issues in contention. Additionally, many trials over the last few decades have already suffered the deleterious effects of judicial attempts to assemble joint enterprise forms of liability from statutes that failed to adequately contemplate the challenges of linking remote ‘masterminds’ to those directly perpetrating the crimes. As will be discussed in the second Section, there is little to suggest that several of the liabilities that constitute ‘commission’ in the AU Statute will not lead to the same process problems and appear to have been included without a reasoned consideration of necessity or practical utility.

Finally, the third Section of the Chapter will examine Article 46C of the AU Statute and the manner in which it innovates to define a form of corporate criminal liability in international criminal law. Article 46C appears to describe a mode of liability that is close to the Australian ‘corporate culture’ model of corporate criminal liability which is a variant of the organizational liability model (and not the identification or vicarious model). However, many questions concerning its physical and mental elements remain unanswered and in need of significant judicial interpretation if it is to provide a useful mechanism for determining whether corporations are responsible for criminal conduct. One thorny but essential question concerns more generally how Article 46C will interact with Article 28N, particularly with regard to the aiding and abetting mode of liability.

A. The Distinction between Principal and Accessory Modes of Liability in the Proposed AU Statute
1. International Criminal Law’s Approach

Criminal law processes at the domestic or international level generally opt for one of two approaches when ascribing liability for action against individuals, either the ‘unitary perpetrator model’ or the ‘differential participation model’.8 According to the unitary perpetrator model, every person who contributes to the crime is considered a perpetrator regardless of the nature of his or her participation.9 This ‘expansive’ notion of perpetratorship is based on the premise that a plurality of persons implies a plurality of offences.10 Whoever ‘contributes any cause to the commission of a crime, regardless of how close or distant the cause from the final result, they must be considered as (co-) author of the crime’11 and ‘[q]uestions of causation, mens rea, justification and excuse arise independently from the participant’s own act and a conviction is of the crime proper’.12 The unitary model obviates any need for distinguishing between participants in wrongdoing: ‘[t]here are no accomplices; all are principals’.13 Under this theory, the actual contribution of the individual is significant only with regard to sentencing.14

In contrast, the ‘differential participation model’ distinguishes between perpetrators and accessories. In basic terms, perpetrators are those at the centre of the crime, while accessories assist in, or prompt its commission and act, for instance, as solicitors, instigators, or aiders and abettors.15 This model is based on the assumption that participation in a crime can be so different in weight and proximity that each person should be treated differently according to their involvement.16 This model is not only relevant for assessing an appropriate sentence, but also for clarifying the individual criminal liability for acts or omissions.17

Jackson identifies three stages of differentiation in the participation in wrongdoing: (1) the doctrinal differentiation that distinguishes amongst participants in wrongdoing at the level of legal doctrine. At this level, the law recognizes the category of accomplices with certain doctrinal requirements of conduct and fault; (2) the differentiation in the attribution of responsibility which distinguishes among participants in wrongdoing at the stage of conviction or responsibility. The attribution of responsibility is not linked to the wrong of the principal but to the accessories’ own contribution to that wrong; and (3) the differentiation in the consequences of responsibility which distinguishes among participants at the sentencing or remedial stage of the system.18 In stage (3), variance in role is expressed at the sentencing level.19 According to Jackson, the principles of culpability and fair labelling require differentiation amongst participants at each of these three stages.20

At the sentencing stage, this model allows ‘for both sentencing guidelines according to the various modes of participation and also a unitary range of sentencing’.21 In the latter case, each contribution to the crime is considered on its own:22 ‘by either upgrading perpetrators or downgrading accessories’.23 Courts thus determine the penalty according to the mode and degree of participation.24

Many international criminal law commentators consider that distinguishing between principal perpetrators and accomplices is an important asset to international criminal law, especially in the identification of the masterminds behind the crimes.25 This support was echoed most recently during the academic debate arising from Stewart’s argument that accomplice liability in international criminal law should be reduced to a single notion of perpetration.26

Stewart observes (correctly) that complicity has not been sufficiently dealt with ‘in the scholarly revolt against international modes of liability’.27 Instead the debate has mainly focused on joint criminal enterprise, command responsibility, perpetration and co-perpetration.28 Consequently, complicity has escaped some of the criticism that has befallen other modes of liability.29 Stewart argues that complicity conflicts with both: (1) the existence of congruence between the mental element of the crime and the mental element required of the accomplice and (2) the need for a causal connection between the accomplice’s acts and the harm contemplated in the crime.30 In the end, he concludes, that the differentiated approach violates the principles of culpability31 and fair labelling.32

Stewart suggests ‘the source of complicity’s departures from basic principles […] stems from international criminal law’s emulation of objectionable domestic criminal doctrine’.33 He further argues, ‘complicity’s most objectionable characteristics are inherited from domestic exemplars that some scholars denounce as a conceptual “disgrace”’.34 For example, referring to the debate on the mental element for accessorial liability, more particularly the competing rationale for the purpose/knowledge/recklessness standards, Stewart states:

On closer inspection, none of the three highly debated standards (purpose, knowledge, recklessness) is theoretically justifiable. Like other modes of liability in international criminal justice, all three violate the principle of culpability in certain circumstances because they all tolerate the imposition of a crime’s stigma in situations in which the person convicted of the offence did not make the blameworthy choice necessary to be found guilty of that particular offence. Many point out the perversity of using JCE III to escalate blame for genocide in this manner, but what about instances in which complicity has an identical effect? With accessorial liability, individuals are also held responsible for genocide where they knew or were merely aware that genocide was one of a number of crimes that would probably be committed. These scenarios, which are actually more common in practice, violate culpability too. Tellingly, these violations are explicitly based on examples drawn from a host of Western systems.35

As a consequence, Stewart argues that complicity ‘should collapse along with all other modes of liability into a single broad notion of perpetration’,36 where a principal is any participant who ‘made a substantial causal contribution to a prohibited harm while harboring the mental element necessary to make him responsible for that crime’.37 In line with the unitary model, the accomplice’s contribution to the crime can be accounted for at the sentencing stage.38

However, several well respected academics in area of analysis, including Jackson, Ohlin, Robinson, Werle and Burghardt have rejected this radical proposal and reiterated their support for a differentiated system of responsibility for international crimes.39 While agreeing with Stewart’s criticism that the current interpretation of accessorial modes of liability in international criminal law is far from perfect, they consider that distinguishing between principal perpetrators and accomplices remains important to international criminal law, especially in the identification of the masterminds behind the crimes.40

According to Werle and Burghardt, Jackson’s arguments that the principles of culpability and fair labelling are conflicted do not hold water.41 They suggest that both models (unitary and differentiated) may be appropriate for international criminal law. Nevertheless, they conclude that, ‘certain normative and empirical features of international criminal law, in general, and of the system of the ICC Statute in particular, weigh heavily in favor of a differentiation model, where modes of participation are indicative of the degree of criminal responsibility’.42 To their minds, international criminal law is charged with developing ‘normative criteria for gradation of responsibility’ insofar as the discipline deals with ‘the most serious crimes committed by a large number of persons in complex factual scenarios’.43

Accordingly, they consider that modes of participation are necessary indicators of the degree of individual criminal responsibility.44 The differentiation model involves key procedural consequences such as the obligation of the prosecution to set out facts and legal elements of the charges in detail; the application of different legal thresholds to the different modes of participation; and a more transparent and predictable sentencing process.45 By contrast, the unitary model avoids the ‘thorny issue of normative gradation for the purpose of a guilty verdict, only to find it again at the sentencing stage’.46

No matter how difficult is the task of defining the criteria that may be used to establish the degree of blameworthiness, it is one we cannot shy away from without abandoning the constitutive idea of international criminal law itself – the idea of individual criminal responsibility.47

For Jackson, Stewart’s proposal is also flawed and the expressive benefits of a unitary model of responsibility are more illusory than real.48 According to Jackson, even if there were some benefit to Stewart’s proposal, it overrides the fundamental principles of culpability and fair labelling that underpin a differentiated model of participation in crime.49 Jackson argues that eliminating complicity would potentially violate the principle of fair labelling in criminal law, which requires that ‘wrongdoing is labelled accurately and, with a sufficient degree of specificity to distinguish law-breaking of a different kind or gravity’.50 Jackson and Ohlin highlighted that otherwise ‘some participants’ responsibility would be radically over-weighted, others radically under-weighted, and the system would tell us virtually nothing about what the wrongdoer did’.51

Jackson eloquently summarizes the importance of the differentiated model:

A unitary model of participation is inconsistent with how we do, and ought to, think about responsibility. To borrow Darryl Robinson’s example, the groom, bartender, and guest are all participants in a wedding. Indeed, they may all causally contribute to it. But we would not deny profound differences in their roles. Likewise, in the context of wrongdoing, complicity is a necessary element of a complete account of morality and responsibility. Gardner argues that ‘the distinction between principals and accomplices is embedded in the structure of rational agency. As rational beings, we cannot live without it’. There are two elements to Gardner’s account. The first concerns the wrongness of complicity: we should be concerned with not only the harms we do ourselves but also those we help or influence others to do. The second concerns the scope of that wrong: both principals and accomplices should be responsible for their own actions.52

Finally, according to Robinson, the differentiation model has an expressive function by reflecting ‘meaningful moral differences between those who cause or control the crime and those who made blameworthy but minor and secondary contributions’.53 As an illustrative example, Robinson explains that the ‘should have known’ standard of command responsibility has been accepted as a justifiable element in the context of a command relationship. The unitary model will not provide such flexibility and would have to either allow the ‘should have known’ standard in all contexts or prohibit it entirely.54

Therefore, unsurprisingly perhaps, the ad hocs have tended to interpret their Statutes to distinguish between principals and accomplices and have to a greater or lesser degree adopted the ‘differential participation model’. The classic principal modes of liability at these tribunals are commission and joint commission. Among the accessory modes of liability, there are two main ways in which an individual may act as an accomplice; either ordering, planning, and instigating (which describe proximity between the perpetrator and the commission of the crime), or aiding and abetting (which generally entails a subsidiary contribution to the criminal act).

However, the ad hocs Statutes do not contain these express distinctions and instead place principal liability at the same level and within the same category as accessorial liability.55 Instead, these distinctions have largely evolved through a process of incremental interpretation and jurisprudential development. As is now part of international justice’s well known legacy, it was only in 1999, when grappling with the complexity of how to define a joint criminal enterprise (JCE) liability to cope with contributions to collective action, that the Tadić ICTY Appeals Chamber distinguished between principal and accessory liability:

In light of the preceding propositions it is now appropriate to distinguish between acting in pursuance of a common purpose or design to commit a crime, and aiding and abetting.

  1. (i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal. (…)56

In 2003, the ICTY Appeal Decision in the Milutinović case further clarified that, under customary international law (and therefore under Article 7 of the ICTY Statute), the doctrine of JCE gave rise to principal liability.57 Subsequently, the ICTY has relied upon these two decisions as a basis upon which they could distinguish between principal and accessory liability.58 Similarly, at the ICTR, the Court relied upon the Tadić Decision to hold that Article 6 of their Statute (which mirrors Article 7 of the ICTY Statute) expresses a distinction between principal and accessory liability.59 Consistent with the maintenance of these distinctions, accessory modes of responsibility generally attract a lower sentence than those resulting from responsibility as a co-perpetrator.60

This distinction is more apparent on the face of the Rome Statute. However, judicial interpretation has created a degree of uncertainty concerning the nature of the distinction that is yet to be resolved. In the first place, the Rome Statute expressly enumerates four types of criminal responsibility: (1) committing a crime – perpetration and co-perpetration61; (2) ordering and instigating62; (3) aiding and abetting63; and (4) contributing to the commission of a crime by a group of persons acting with a common purpose.64 In Lubanga, the first case at the ICC, Pre-Trial Chamber I drew several distinctions between these modes of liability, noting that:

[The Rome Statute] distinguished between (i) the commission stricto sensu of a crime by a person as an individual, jointly with another or through another person within the meaning of Article 25(3)(a) of the Statute, and (ii) the responsibility of superiors under Article 28 of the Statue and ‘any other forms of accessory, as opposed to principal liability provided for in Article 25(3)(b) to (d) of the Statute’ [ordering, soliciting and inducing, aiding and abetting and contribution].65

Similarly, in 2010, the Mbarushimana Pre-Trial Chamber found that Article 25(3) entailed a hierarchy of responsibility and described the modes of liability as being arranged in accordance with ‘a value oriented hierarchy of participation in a crime under international law’, where the ‘control over the crime decreases’ as one moves down the sub-paragraphs.66 This is consistent with a value-oriented hierarchy of participation in a crime that places commission as the highest degree of individual responsibility and contribution to a group crime as the ‘weakest mode of participation’.67

However, with specific focus upon sentencing principles, the Katanga Trial Chamber appears to have chipped away at this erstwhile clarity. Whilst using the ‘differential participation model’ to classify principals and accessories, the Katanga Trial Chamber rejected the Mbarushimana Pre-Trial Chamber’s decision and held that the distinction between the different modes of liability as principal or accomplice did not amount to a hierarchy of blameworthiness. The Chamber also stated that there was no rule in the Statute or the Rules of Procedure that necessitated the imposition of lower sentences for accomplices as against principals. Referring to national criminal codes, such as that operative in Germany, where the sentence for each is identical (even if mitigation may lower the eventual sentence of the aider68), the Chamber concluded that there was no automatic correlation between modes of liability and penalty.69 Accordingly, a person responsible as an instigator may incur a penalty akin or even identical to that handed down against a person found responsible as a perpetrator of the same crime.70

In sum, the ICCs’ precise approach to these foundational issues remains a work in progress. Although the modes of liability in the Rome Statute appear embedded in a differential participation model, there is still plenty of room for manoeuvre before the Appeals Chamber proffers some certainty to these issues, especially with regard to the sentencing provisions.71

2. Article 28N’s Approach

Turning to Article 28N of the AU Statute and which of the two models are intended, it begins with the phrase: ‘An offence is committed by any person who, in relation to any of the crimes or offences provided for in this Statute: [sub-paragraphs]’.72 The three subsequent sub-paragraphs contain a broad mix of overlapping modes that include both principal and accessorial modes of liability. Sub-paragraph (i) lists a series of liabilities, namely, ‘incites, instigates, organizes, directs, facilitates, finances, counsels or participates as a principal, co-principal, agent or accomplice in any of the offences set forth in the present Statute’. The second and third sub-paragraphs respectively refer to accessorial liability: ‘aiding and abetting’ and a mode of joint liability for anyone who ‘is an accessory before or after the fact or in any other manner participates in a collaboration or conspiracy’.

As may be seen, this construction is anything but straightforward. On the face of the pleading, Article 28N adopts a unitary participation model whereby anyone who contributes to the crime is to be held liable as principal. The overarching definition of commission suggests that Article 28N entails only one main mode of liability (i.e. ‘commission’) that is sub-divided into several forms (as outlined in the three sub-paragraphs referenced above). In the AU Statute, the imputation of the conduct of a principal to an accomplice is achieved by including complicit conduct within the terms of commission. This approach appears to be broadly consistent with the approach taken by certain African States (e.g. Kenya,73 Tanzania,74 Nigeria75 and Zambia76) whereby commission is elaborated as a catchall category into which falls all manner of other forms: for example, the person who aided and abetted, counselled or procured a person to commit the act is regarded as the person who committed the act.

As outlined above, the AU Statute’s approach contrasts with the current trend in international criminal law. Consequently, the adoption of the unitary participation model in the proposed AU Statute may have adopted a path that veers away from a strict adherence to principles of culpability and fair labelling. As discussed above, in international criminal law, these principles suggest differentiation amongst participants in crime, not only at the sentencing stage, but also in the attribution of responsibility. Accordingly, a statute where modes of participation are indicative of the nature and degree of individual criminal responsibility may more accurately and adequately reflect the complex factual situations, the large number of perpetrators, the variance in involvement, and the seriousness of the crimes that may be considered by the new Court. Therefore, as with the ICC, the guarantee of a distinction between these different forms of individual responsibility may be important to ensure the legitimacy of the work of the AU Court.77

A closer examination of Article 28N’s unitary participation formulation raises even more doubts about its ability to achieve some of these aims. Not only does Article 28N define the commission of an offence as the same as an attempted commission of an offence (an ‘offence is committed by a person who, in relation to any of the crimes or offences provided for the Statute also attempts to commit any of the offences set forth’), many of the forms of commission, beyond reassuring the anxious drafter that every conceivable direct or indirect act or omission falls within its terms, appear to serve little or no useful purpose.

As will be further discussed below,78 irrespective of whether they are forms of direct or indirect commission, the appearance of a number of these overlapping modes of liability serves only to confuse rather than clarify or enhance effective assessment of individual culpability. A striking illustration of this potential may be seen in the use of ‘co-principal’ in sub-paragraph (i) which suggests that Article 28N is designed to encompass a mode of joint commission. However, this reference appears to overlap with, or even mirror, the notion of ‘collaboration’ in sub-paragraph (iii). Similarly, incitement and instigation are both included in Article 28 as forms of commission. However, as instigating requires acts that influence the direct perpetrator by inciting, soliciting or otherwise inducing him to commit the crime,79 Article 28N’s inclusion of both incitement and instigation may therefore have created unhelpful overlap or even duplication.

Therefore, although Article 28N may reflect an intention to adopt a ‘unitary participation model’, this intention is made less clear by the myriad of additional modes of liability. As unlikely as it may seem, it may be that the drafter simply stumbled into adopting the unitary participation model but then departed from this model through a determination not to be caught short.

Moreover, other aspects of the Statute, such as Article 43A addressing sentencing, fails to proffer any decisive clarification of these important questions. In stating that ‘[i]n imposing the sentences, the Trial Chambers shall take into account such factors as the gravity of the offence and the individual circumstances of the convicted persons’80 it reproduces the provision of the ICTY and ICC Statutes. As discussed above, the ICTY has interpreted these provisions as reflective of the differential model,81 whereas the ICC Trial Chamber in Katanga has done otherwise.

3. Overloading the Statute with Multiple Modes of Liability

As mentioned above, Article 28N introduces an array of modes of responsibility that have not been part of modern international criminal law statutes. While reproducing many of the modes of liability that are the norm in the ad hocs Statutes, Article 28N includes new forms of complicity, namely organizing, directing, facilitating, financing, counselling and ‘accessory before and after the fact’.

However, these ‘new’ and overlapping modes of liability may not be necessary, let alone useful, to cope with the rigours of practical criminal process and adjudication. Whether one accepts the (persuasive) arguments of commentators such as Ambos, who have recommended a radical reduction in the range of modes of liability and ‘a rule limiting complicity (secondary participation) to inducement/instigation and other assistance (“aiding and abetting”)’,82 it is difficult to understand the purpose of loading the AU Statute in this manner. In particular, it is already difficult to delineate some of the modes of accessory liability contained in the ad hocs and ICC Statutes: planning, ordering, instigating, aiding and abetting and contributing are in practice almost impossible to separate from each other,83 especially when viewed through (anticipated) complexity of a range of concurrent criminal and non-criminal action. There are many such overlaps, including between abetting, ordering and inducing,84 as well as a lack of a clear demarcation between soliciting and inducing, that each appear to encompass a situation where a person is influenced by another to commit a crime.85

In reality, the tendencies of most international prosecutors to overload and plead as vague an indictment as loose pleading standards allow, often leads to indictments and trials at the international level that suffer from a multitude of overlapping liabilities that play little role in the proceedings other than to distract from the core issues in contention. As will be discussed below, there is little to suggest that several of the liabilities that constitute ‘commission’ in the AU Statute do not equally foreshadow a level of distraction that may serve to undermine the precision and the accuracy of the adjudication.

B. The New Modes of Liability

As noted above, Article 28N sub-paragraph I includes organizing, directing, facilitating, financing and counselling as forms of commission. These are modes of liability that have not been deployed at the ad hocs or the ICC. Indeed, most of these new modes of liability seem to have been derived or adopted from the UN Convention on Transnational Organized Crime (UNTOC) which requires State parties to adopt legislative measures to establish as specific criminal offences the following conduct: organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group.86

1. Organizing and Directing

As noted, ‘organizing’ and ‘directing’ are forms of liability that are not employed at the ad hocs or at the ICC. Nevertheless, their insertion in Article 28N appears to have been inspired by international and regional instruments that seek to address and criminalize terrorism and organized crime. Organizing and directing, along with facilitating (see below), are contained in UNTOC Article 5(1)(b) that lists modes of liability in relation to an array of organized crime. The Council of Europe Convention on the Prevention of Terrorism also requires state parties to adopt such measures as may be necessary to establish as a criminal offence ‘organizing or directing others to commit’ the offences of public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism.87 Research, however, suggests that most states have not chosen to incorporate these particular modes of liability into their criminal legislation and the majority have instead elected to utilize more classic modes of liability such as aiding and abetting.88

Undoubtedly, although there are lessons to be learnt from the ad hocs and the ICC, these ‘new’ modes of liability will require novel and extensive judicial interpretation if they are to be useful. Although organizing is not a form of liability at the ad hocs or the ICC, the conduct encapsulated appears to be the same as, or closely resembles, that captured by the ‘planning’ mode of liability deployed at the ad hocs. Organizing is commonly defined as making arrangements for something to happen.89 According to the ad hocs’ jurisprudence, an individual may be held liable when he did not physically commit a crime but participated in its planning. Planning is defined as one or several persons contemplating the commission of a crime at both the preparation and execution phases.90 The actus reus of planning requires that one or more persons design the criminal conduct that is later perpetrated. The planning should have been a factor substantially contributing to the criminal conduct.91 The required mens rea is the intent to plan the commission of the crime or, at a minimum, the awareness of a substantial likelihood that a crime will be committed in the execution of that plan.92 An accused cannot be charged with both planning and committing (or ordering) on the same facts. However, planning may be considered an aggravating circumstance.93

Similar convergence and overlaps may be seen with regard to Article 28N’s ‘directing’ mode of liability. Directing appears to be the same as ordering someone, especially officially,94 and this appears to be similar to, or the same as, ‘ordering’ (as commonly applied at the ad hocs and the ICC). At the ad hocs, responsibility for ordering requires proof that a person in a position of authority used that authority (de jure or de facto) to instruct another to either commit an offence that in fact occurs or is attempted or perform an act or omission in the execution of which a crime is carried out.95 The order must have been a factor substantially contributing to the physical perpetration of a crime or underlying offence.96 The ICC has taken a similar approach.97

In addition, the accused need only instruct another to carry out an act or engage in an omission – and not necessarily a crime or underlying offence per se – if he has the intent that a crime or underlying offence be committed in the execution of the order, or if he is aware of the substantial likelihood that a crime or underlying offence will be committed.98 The ICC similarly requires the person to be at least aware that the crime would be committed in the ordinary course of events as a consequence of the execution or implementation of the order.99

2. Facilitation

In international criminal law, facilitation does not constitute a stand-alone mode of liability but is closely related to, or the same as, the concept of aiding and abetting: ‘mere’ facilitation may suffice for aiding and abetting.100

Similar to the inclusion of ‘organizing’ and ‘directing’, Article 28N’s adoption of ‘facilitation’ appears to have been inspired by UNTOC and the need for modes of responsibility suited for the prosecution of specified crimes such as terrorism, trafficking in persons or drugs. As noted above, Article 5(1)(b) states that each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (…) (b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group. However, likewise, the Convention does not offer any insight into the essential constituent elements, preferring to allow States a degree of flexibility in transposing the provision into their domestic legislation. A study of a selection of 15 countries suggests that very few countries have opted to rely upon facilitation as a specific mode of liability and instead rely on the aiding and abetting mode of liability.101

3. Financing

In international criminal law, financing is not considered as a mode of liability per se. On the contrary, it is generally an act or conduct that constitutes a way or form of aiding and abetting the crime. An emblematic example may be seen in the Stanišić and Simatović case at the ICTY wherein the accused are charged with aiding and abetting war crimes and crimes against humanity for, inter alia, allegedly financing training camps and special units of the Republic of Serbia State Security and other Serb Forces.102

Similar to the above-mentioned modes of liability, the inclusion of ‘financing’ within Article 28N appears to be inspired by the introduction of an array of economic crimes within the AU Statute, such as terrorism, trafficking in humans or drugs, and piracy. The UN Convention for the Suppression of the Financing of Terrorism observes that the ‘financing of terrorism is a matter of grave concern to the international community as a whole’ and states that ‘any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used…’.103 Recently, on 31 March 2017, the European Union took a similar approach; publishing Directive 2017/541 on combating terrorism, thereby imposing on member states the obligation to criminalize the financing of terrorism.104 The Directive states, inter alia, that ‘criminalization should cover not only the financing of terrorist acts, but also the financing of a terrorist group, as well as other offences related to terrorist activities, such as the recruitment and training, or travel for the purpose of terrorism, with a view to disrupting the support structures facilitating the commission of terrorist offences.’105

Financing terrorism is defined as providing or collecting funds, by any means, directly or indirectly, with the intention that they be used, or in the knowledge that they are to be used, in full or in part, to commit, or to contribute to the commission of, any of specific offences such as terrorist offences and offences related to a terrorist group and offences related to terrorist activities (i.e. public provocation to commit a terrorist offence, recruitment or providing training for terrorism).106 For certain offences, such as terrorist offences, it is not necessary that the funds be in fact used, in full or in part, to commit, or to contribute to the commission of, any of those offences, nor is it required that the offender knows for which specific offence or offences the funds are to be used.107

Thus, one can see where the drafter of Article 28N was headed. However, less clear is its value – particularly in light of the implicit incorporation of financing at the ad hocs as one of a range of similarly incriminating acts (alongside such acts as the provision of logistics, training or propaganda) alleged to support terrorism. It appears as if the drafters, without considering need or utility, merely adopted the literal terms of the UN Convention for the Suppression of the Financing of Terrorism and other similar international agreements thereby creating a ?new? liability that is at best duplicative.

4. Counselling

Although this mode of liability is new in international criminal law, it has been widely used by national jurisdictions,108 and is also contained in several African Criminal Codes (e.g. Ghana,109 Kenya,110 Tanzania,111 Nigeria112 and Zambia113). For example, under the United Kingdom (UK) Serious Crime Act 2007, a person may become a party to a crime as a secondary party (who aids, abets, counsels or procures the commission of an offence).114

However, the mode of liability appears to overlap substantially with abetting as well as instigating that, as argued above, might itself be considered as an umbrella term that also encompasses incitement and encouragement. UK courts, for example, have accepted that counselling and abetting were very similar. In Attorney General’s Reference (No 1 of 1975), it was held that a meeting of minds between two persons was necessary to hold someone liable for abetting or counselling a crime.115 While abetting involves some form of encouragement communicated to and known by the principal to commit the crime (before or during the act), counselling refers to conduct prior to the commission of the crime such as advising on an offence or supplying information necessary to commit the offence.116 Counselling involves ‘advising, soliciting, encouraging, or threatening the principal to commit an offence’. In Canada, a similar approach has been taken: counselling involves ‘actively inducing’.117 It includes procuring, soliciting or inciting.118

Nevertheless, it might be argued that the Article 28N’s term ‘counselling’ evokes a particular type of instigation and therefore may in turn have a useful delineating and expressive purpose. It may help to capture conduct and express specific wrongdoing that is particularly relevant for the new financial crimes, such as the liability of a lawyer or accountant who knowingly provides advice in furtherance of money laundering or corruption. However, in the context of Article 28N and the many new modes of liability, some doubt must arise whether another mode of liability adds to the confusion or will prove to be of real benefit in delineating and prosecuting specific conduct or otherwise promoting fair labelling. As with many of these concerns, only time and practical adjudication will tell.

C. The Classic Modes of Liability in International Criminal Law
1. Aiding and Abetting

Article 28N includes the aiding and abetting mode of liability. It does not elaborate on the constituent elements. Its definition is limited to the statement that an offence is committed by any person who, in relation to any of the crimes or offences provided for in the Statute, aids or abets the commission of any of the offences set forth in the Statute.

Aiding and abetting has been commonly used by the prosecution at the ad hocs and will likely be frequently used at the ICC in its future trials. Similarly, the Statutes of the ad hocs and the ICC include aiding and abetting as a form of liability but without elaboration. However, those terms and the way in which the ad hocs have approached the liability provide a number of lessons for any future AU Court.

The ad hocs and the ICC Statutes define the mode of liability differently. The ad hocs Statutes consider that a person who aided and abetted in the planning, preparation or execution of a crime shall be individually responsible for the crime.119 The Rome Statute states that:

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

  1. (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.120

The Rome Statute definition appears to contain additional elements: ‘for the purpose of facilitating’, ‘otherwise assists’, ‘attempted’ and ‘including providing the means’. There is little guidance thus far concerning how the ICC will interpret these defining elements. Although two accused have been recently convicted of aiding and abetting or otherwise assisting the commission of the offence of presenting false evidence and corruptly influencing witnesses in the recent contempt case in Prosecutor v. Bemba Gombo et al., the ICC judges did not provide any real insight into Article 25(3)(c).121. In Blé Goudé, the ICC provided the following clarification: ‘In essence, what is required for this form of responsibility is that the person provides assistance to the commission of a crime and that, in engaging in this conduct, he or she intends to facilitate the commission of the crime.’122

In contrast, the ad hocs have clarified the basic elements of this mode of liability. The ad hocs define the actus reus of aiding and abetting as carrying out acts to assist, encourage or lend moral support to the commission of a certain specific crime and this support has a substantial effect upon the perpetration of the crime.123 The criminal participation must have a direct and substantial effect on the commission of the offence.124 In other words, ‘the criminal act most probably would not have occurred in the same way had not someone acted in the role that the accused in fact assumed’.125 The ICTY has interpreted the notion of ‘substantial contribution’ in a broad way by including encouragement of the perpetrator or tacit approval.126

However, as the debate concerning whether ‘specific direction’ was part of international customary law and an element of aiding and abetting shows, the development, or clarification, of the elements of aiding and abetting at the ad hocs has not been without controversy. On the contrary, in the Perišić case, the ICTY Appeals Chamber considered whether specific direction was an element of aiding and abetting. After reviewing the ICTY and ICTR case law, it concluded that specific direction was an element of the actus reus of aiding and abetting.127 As the Chamber explained, the element of specific direction establishes a culpable link between assistance provided by an accused and the crimes of principal perpetrators.128 The Chamber further explained that for acts geographically or otherwise proximate to the crimes of principal perpetrators, specific direction might be demonstrated implicitly through discussion of other elements of aiding and abetting liability, such as substantial contribution. However, where an aider and abettor is remote from the crimes the other elements of aiding and abetting may not be sufficient to establish specific direction. In such cases, specific direction should be specifically considered.129

However, this decision was highly controversial and subsequently reversed by ICTY Appeals Chamber decisions. In 2014, in the Šainović et al. case, the Appeals Judgment concluded that ‘specific direction’ was not an element of aiding and abetting liability ‘accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability.’130 The Appeals Chamber noted that, prior to the Perišić Appeals Judgment, ‘no independent specific direction requirement was applied by the Appeals Chamber to the facts of any case before it’.131 The Appeals Chamber affirmed that ‘under customary international law, the actus reus of aiding and abetting consists of practical assistance, encouragement, or moral support with a substantial effect on the perpetration of the crime’.132 Recently, the ICTY Appeals Chamber in the Stanišić and Simatović case re-affirmed the Šainović ruling overturning decisions that rested upon the application of this element.133

With regards to the mens rea, the ad hocs determined that an aider and abettor should have known that his acts would assist in the commission of the crime by the principal perpetrator and must be aware of the ‘essential elements’ of the crime. It does not require that he share the intention of the principal perpetrator of such crime.134 The ICTY recognized that knowledge is an element of aiding and abetting under customary international law.135 However, it is not necessary that the aider and abettor knew the precise crime that was intended or actually committed, as long as he was aware that one or a number of crimes would probably be committed, and one of these crimes was in fact committed.136

As noted above, Article 25(3)(c) of the Rome Statute further requires that the assistance be made ‘for the purpose of facilitating the commission of [the] crime’, thus introducing an additional subjective threshold to the ordinary mens rea requirement of aiding and abetting.137 This new element departs from customary international law as considered and determined in the ad hocs’ case law detailed above. As outlined above, in the Blé Goudé case, the ICC stated that: ‘what is required for this form of responsibility is that the person intends to facilitate the commission of the crime.’138

Whether this interpretation of ‘purpose’ is wholly justified will remain an ongoing debate for many years. However, what is plain is that ‘purpose’ implies a subjective element stricter than mere knowledge that the accomplice aided or abetted the commission of the crime.139 This higher threshold however only refers to the act of facilitation, not the crime itself. Accordingly, this version of aiding and abetting requires a double mental element: one for the act of assistance and one for the crime.140

Given Article 28N’s failure to elaborate on the elements of the aiding and abetting mode of liability, it is not clear what path will be taken by the AU Court to its constituent elements. As the experience at the ICTY has shown, international courts have considerable discretion in interpreting the plain words of a statute. Given that Article 28N fails to proffer any meaningful insight into the constituent elements of aiding and abetting, any future AU Court have considerable room to decide whether to opt for the ICC’s more demanding approach – requiring a demonstration of the purpose of facilitation of the crime – or the ICTY’s ‘purposeless’ approach.

Instigating – Inciting

Like the ad hocs and ICC statutes, Article 28N includes both incitement and instigation. However, although the ad hocs’ and ICC statutes provide for both concepts, they draw a distinction between ‘incitement or instigation generally and direct and public incitement to genocide’.141

While the first category (incitement/instigation)142 is considered as encompassing accessory modes of liability (punishable only where it leads to the actual commission of an offence intended by the instigator143), the second category (direct and public incitement)144 has been held to be an inchoate crime only applicable to the crime of genocide.145

The AU Statute fails to draw these distinctions, namely incitement is only included as a mode of liability (first category). Unlike the AU Statute, the ad hocs and the ICC statutes expressly refer to the inchoate crime of direct and public incitement to commit genocide.146 Incitement is only mentioned once in the AU Statute, as the first in a long line of modes of liability that include instigating, organizing, facilitating and financing.

Turning to the potential interpretation of this mode of liability, the ad hocs’ jurisprudence determines that conduct that constitutes incitement is also encompassed by instigation. Instigating has been defined at the ad hocs as ‘prompting’, ‘urging or encouraging’ another to commit an offence.147 In sum, instigating requires acts that influence the direct perpetrator by inciting, soliciting or otherwise inducing him to commit the crime.148

As noted above, although the Rome Statute does not expressly refer to instigating, inducing and soliciting have been interpreted as substantially covering the same ground.149 In Harun, the ICC considered inducing equivalent to inciting.150

Whilst it is sufficient at the ad hocs to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime,151 the ICC requires the inducement (instigation) to involve exertion of influence over another person to commit a crime and the existence of a direct effect on the commission of the crime.152 An analysis of the case law at the ICC suggests that the ‘direct effect’ criterion is the same as the ad hoc’s ‘substantial effect’ criterion.153 At both the ad hocs and the ICC, it needs to be shown that the accused should have been aware of the likelihood that the commission of a crime would be a probable consequence of his acts.154

In sum, the case law of the ad hocs and the ICC suggests that instigating (as a mode of liability) may be considered to be an umbrella term that includes inciting/inducing the crime. The inclusion of both incitement and instigation in Article 28N appears to disregard this jurisprudential history in favour of more duplication.

2. Joint (Principal and Accessory) Liability

Article 28N appears to address crimes committed as part of joint plans involving various masterminds and physical perpetrators. It states, inter alia, that:

An offence is committed by any person who, in relation to any of the crimes or offences provided for in this Statute:

  1. i. Incites, instigates, organizes, directs, facilitates, finances, counsels or participates as a principal, co-principal, agent or accomplice in any of the offences set forth in the present Statute;

    (…)

  2. iii. Is an accessory before or after the fact or in any other manner participates in a collaboration or conspiracy to commit any of the offences set forth in the present Statute.155

This aspect of Article 28N may represent some form of tacit recognition of the experience of the ad hocs and the ICC and international criminal law in general, namely that in most instances cases are likely to be largely focused upon crimes and accountability involving criminal plans, collective action and the examination of ‘a multi-perpetrator setting’.156 Modern international criminal law has continuously wrestled with the collective nature of crime involving multiple masterminds and many physical perpetrators that make it difficult to isolate the conduct of each accused.157

As a consequence, this area of international criminal law has given rise to a degree of judicial innovation that has led to understandable critique and controversy.158 Indeed, arguably, this area is the most contentious area of substantive international criminal law.159 In sum, to take into account the manner in which superiors or individuals remote from the crimes actually operate, the ad hocs and the ICC have sought to develop expansive interpretations of the notion of commission. However, these hand-made developments have raised legitimate due process concerns, such as those revolving around fundamental principles of law such as nullum crimen sine lege and nulla poena sine lege.160 The AU Court will have to grapple with these same issues. As will be discussed below, in light of the drafting, the path through many of these thorny issues is far from clear.

Firstly, it is important to note that international criminal law has not arrived at a universally accepted doctrine or approach to these collective criminal actions. Each attempt has been widely criticized and little agreement seems to exist on the most appropriate model to prosecute collective crimes. There are three main doctrines that have been used at the international level: conspiracy (inchoate crime), JCE and co-perpetration (modes of liability). These will be briefly considered below.

Conspiracy was introduced into international criminal law through the Nuremberg and Tokyo Charters.161 However, conspiracy is an inchoate crime (and not a mode of liability).162 It was a crime that assisted in linking ‘several individuals in one general criminal scheme, facilitating their prosecution and making it easier to obtain convictions against the alleged defendants.’163 The Tokyo tribunal defined conspiracy to wage aggressive or unlawful war as an agreement by two or more persons to commit this crime.164 The accused must have participated or contributed in the aggressive war. Additionally, the accused must have had knowledge of the conspiracy’s aggressive aims and the special intention to support the objects of the conspiracy.165 Both the Nuremberg and Tokyo tribunals restricted conspiracy to crimes against peace and rejected its application to other crimes.166 Conspiracy was later introduced in the ad hocs Statutes in relation to the crime of genocide.167

In addition, Articles 25(3)(d) of the Rome Statute provides for a new accessory mode of liability for collective actions: the contribution to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. This paragraph was adopted as a compromise with conspiracy and was taken from the 1998 Anti-terrorism Convention.168 The drafters of the Rome Statute rejected the concept of conspiracy as an inchoate crime and instead adopted a concept of complicity in a group crime as a mode of participation in crime. Conspiracy was deemed as a ‘very divisive issue’ by the drafters.169 In the Katanga judgement, the Trial Chamber noted that this accessory mode of liability was introduced in the Rome Statute in order to ensure that the accomplices whose conduct do not amount to aiding and abetting are prosecuted before the ICC.170 It further explained that this mode of liability is not a form of JCE in so far as the accused is only liable for the crimes he contributed to the commission of and not all the crimes part of the common plan.171 Regarding the level of contribution, the ICC found that the individual criminal responsibility under Article 25(3)(d) needed to reach ‘a certain threshold of significance below which responsibility under this provision [did] not arise’.172 It further held that the contribution must be at least significant.173

To hold criminally liable individuals committing collective crimes, the ad hocs developed a new mode of participation, the concept of JCE, a common law influenced doctrine174 that attempted to capture the collective nature of international crimes. It is a form of commission to assign responsibility to individuals, who did not physically commit the criminal acts but acted with the intent to aid those who did, that arose from an expansive interpretation of the word ‘committing’ under Article 7(1) of the ICTY Statute.175 In summary, ‘[w]hoever contributes to the commission of crimes by the group of persons or some members of the group, in execution of a common criminal purpose, may be held to be criminally liable, subject to certain conditions.’176 All the participants are equally guilty of the crime regardless of the role each played in its commission.177

The doctrine of JCE comprises three forms where accused have associated with other criminal persons, intended to commit a crime, joined others to achieve this goal and made a significant contribution to the commission of the crime. Thus, an individual can be held liable for the actions of other JCE members, or individuals used by them, that further the common criminal purpose (first category of JCE -basic) or criminal system (second category of JCE – systemic or ‘concentration camp cases’), or that are a natural and foreseeable consequence of the carrying out of this crime (third category of JCE – extended).

The three forms of JCE share the same actus reus, namely (i) a plurality of persons (ii) the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute (iii) the participation of the accused in the common plan involving the perpetration of one of the crimes provided for in the Statute (physical participation, assistance in, or contribution to, the execution of the common plan or purpose).178

Regarding the mens rea, each form requires its own elements: JCE I requires proof that all participants shared the same criminal intent. It is necessary to establish that the accused voluntarily participated in the enterprise and intended the criminal result.179 JCE II requires that the accused must have personal knowledge of the system of ill-treatment (whether proven by express testimony or inferred from the accused’s position of authority), as well as the intent to further this concerted system of ill-treatment.180

For JCE III, a member of the joint criminal enterprise may be held liable for a crime or crimes which he did not physically perpetrate if, having the intent to participate in and further a common criminal design or enterprise, the commission of other criminal acts was a natural and foreseeable consequence of the execution of that enterprise, and, with the awareness that such crimes were a ‘natural and foreseeable’ consequence of the execution of that enterprise, he participated in that enterprise.181

Finally, the ICC has taken a different approach to these ‘joint action’ challenges. Instead of conspiracy as an inchoate crime or JCE as a mode of liability, the ICC has enunciated the notion of co-perpetration using the concept of control over the crime. This implies that principals to a crime are not limited to those who physically carry out the objective elements of the offence, but also include those who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed.182 The ICC has also expanded this collective mode of liability to include indirect co-perpetration to capture the relationship between co-perpetrators who controlled separate militias, each committing crimes that were part of the common plan.183

An in-depth analysis of the merits of each approach to joint action crimes is outside the confines of this Chapter. However, as noted above, there is extensive commentary examining each approach with critics of each and every approach.184

In sum, conspiracy was extensively criticized and rapidly abandoned. The records of the international tribunals show that the prosecution of conspiracy proved to be a difficult task.185 As a result, the tribunals adopted a strict approach to the conspiracy charge.186 These narrow definitions failed to comprehensively encompass the criminal conduct and arguably created a system that permitted defendants to evade criminal responsibility for conduct deserving of it.187

Regarding JCE, the lack of distinction between principals and accessories and the foreseeability requirement at the centre of JCE III are considered to be major problems. Commentators argue that the JCE doctrine systematically eviscerates the distinction between principals and accessories. All accused will be convicted of the same thing if they intended to contribute to the common plan.188 Furthermore, it is correctly argued, JCE III endangers the principle of individual and culpable responsibility by introducing a form of collective liability, or guilt by association.189 Convictions ultimately rest upon a lowered mens rea – a type of recklessness (dolus eventualis) and not a clear intent that the crimes be committed or awareness that those crimes were going to be committed.

The ICC concept of (indirect) co-perpetration is thought to reflect a more objective rationale than JCE.190 Commentators argue that the participants’ contribution to a criminal endeavour is defined more precisely.191 Moreover, the concept maintains a distinction between principal and accessory.192 Only those who had control over the crime would be held liable as perpetrators, the others will be liable as accomplices.

However, a closer examination of these apparent benefits raises serious questions concerning whether the control theory has really improved upon the JCE doctrine in these culpability and legality aspects. Critics argue that the ‘control over the crime’ approach requires an ‘essential’ contribution of the perpetrator to the crimes, departing from the ‘significant’ contribution required for JCE. Commentators have highlighted the difficulty of assessing what constitutes the ‘essential contribution’, particularly that this ‘requires a hypothetical and nearly impossible counterfactual inquiry into whether the defendant’s behavior constituted an essential contribution to the crime’.193

The mens rea requirements of co-perpetration also raise serious culpability issues that mirror some of the concerns with JCE III. Co-perpetrators ‘intend’ the crime if they are aware of the risk that the physical perpetrators will commit the offence and the co-perpetrators reconcile themselves to this risk or consent to it.194 As stated by Ohlin, at most this is a form of recklessness/dolus eventualis, which closely resembles JCE III.195 As discussed above, mere awareness even of a high risk that the crime will occur is not sufficient to found liability under JCE I and II.196 As Ohlin has also correctly concluded, this approach consists of a ‘combination of awareness of joint control over the crime with an intentionality requirement that is so watered down that the control requirements appears to be doing all the heavy lifting’.197

As may be seen from this brief discussion concerning commonly held due process critiques with regard to conspiracy, JCE and co-perpetration, the AU will be required to steer a path through these various approaches to design an appropriate and practical liability that links individuals to crimes of this nature whilst avoiding this entangled history of due process concerns.

However, the drafters of Article 28N have not provided the basis for a firm beginning. Article 28N appears to suffer from a range of problems that provides fertile ground for a range of confused judicial responses to these most complex problems. First, Article 28N does not appear to expressly opt for, or favour, any of these aforementioned approaches. As the ad hocs and the ICC have demonstrated, this fact alone is not an obstacle to developing expanded notions of commission to deal with joint action crimes. However, on the face of Article 28N, the drafters have hamstrung any future deliberation by failing provide a clear indication of what was intended or which option might best be employed at the future AU Court. Instead, the drafting leaves the door open for all of the above.

As discussed above, unlike the ICC, the ad hocs Statutes failed to articulate any mode of liability that encompassed joint action crimes. Instead, JCE was read into the statutes through a series of creative decisions at the trial and appellate level. Article 28N appears to suffer from the opposite problem and includes a range of definitions that might (or might not) be referencing expanded notions of commission or accessory with a view to encompassing joint action conduct. These include, participation as ‘a principal, co-principal, agent or accomplice’; as an ‘accessory before or after the fact’; or any individual that ‘in any other manner participates in a collaboration or conspiracy to commit any of the offences set forth in the present Statute’. It is therefore difficult, if not impossible, to assess what was in the drafters’ mind. The duplication of distinct notions such as the civil law notion of collaboration (also known as association) and the common law notion of conspiracy sitting alongside the conduct of ‘principals, co-principals, agent or accomplice’ is likely to challenge even the best of jurists and academicians, let alone those advocates struggling in the trenches of a future court room.

It appears that the inclusion of conspiracy and collaboration (association) in Article 28N was at least in part heavily influenced by Article 6(1)(b)(ii) of the UNTOC. Article 6(1)(b) states that State Parties shall establish as criminal offences the ‘participation in, association with or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of [laundering of proceeds of crime].’ However, the interpretative guide of the UNTOC explains that the two approaches were not introduced into the instrument with the expectation that both would be transposed into the same domestic law. It was to reflect the fact that some countries had conspiracy in their law, while others had criminal association (association de malfaiteurs) laws and effective transposition of the Convention at the domestic level involved respect for respective legal tradition and culture.198

As a means of incorporating differing legal traditions, this latitude makes practical sense. However, including both in a statute, less so. The two concepts have different elements but essentially cover the same conduct. Conspiracy may be shown through mere proof of an intentional agreement to commit serious crimes for the purpose of obtaining a financial or other material benefit. Since most civil law countries do not recognize conspiracy or do not allow the criminalization of a mere agreement to commit an offence, association focuses on the conduct of the accused. It requires proof of the participation in criminal activities and the general knowledge of the criminal nature of the group or of at least one of its criminal activities or objectives.199 If a person takes part in non-criminal action that nonetheless may be supportive of criminal activities, the knowledge that such involvement will contribute to the achievement of a criminal aim of the group will also need to be established.200

In addition to this duplication, the current reference in Article 28N of the AU Statute to ‘accessory before or after the fact’ and ‘participation in any other manner’ adds more repetition. Accessory before the fact traditionally encompasses ordering, soliciting or inducing.201 Therefore, this provision appears to reiterate the accessory modes of liability already detailed in paragraph (i) of Article 28N.

In sum, not only is Article 28N duplicative and confused, it fails to offer any clarity as to what joint liabilities were intended or are favoured. It appears to do little more than leave the entirety of the interpretation of these complex issues to the (unfortunate) judges who will be forced to grapple with these issues in the course of future proceedings with little or no guidance of the drafters’ intent.

D. Corporate Criminal Liability

The AU Statute is the first to introduce the concept of corporate criminal liability in international criminal law.

Article 46C

Corporate Criminal Liability

  1. 1. For the purpose of this Statute, the Court shall have jurisdiction over legal persons, with the exception of States.

  2. 2. Corporate intention to commit an offence may be established by proof that it was the policy of the corporation to do the act which constituted the offence.

  3. 3. A policy may be attributed to a corporation where it provides the most reasonable explanation of the conduct of that corporation.

  4. 4. Corporate knowledge of the commission of an offence may be established by proof that the actual or constructive knowledge of the relevant information was possessed within the corporation.

  5. 5. Knowledge may be possessed within a corporation even though the relevant information is divided between corporate personnel.

  6. 6. The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.

Although it was discussed during the negotiation of the Rome Statute, the French proposal to include corporate criminal liability was rejected by the States.202 However, several domestic regimes have granted their courts jurisdiction over international crimes committed by corporations. Corporate criminal liability has been recognized in the Anglo-American legal systems since the mid-90s and there has been progressive adoption of laws extending the court’s jurisdiction to companies in other legal systems in the last decades.203 Two surveys of national jurisdictions revealed that over twenty states in America, Europe, Asia, and Oceania (e.g. Australia, Belgium, Canada, France, India, Japan, the Netherlands, Norway, the United Kingdom and the United States) have adopted laws allowing the prosecution of corporate entities.204 Several African states have also adopted corporate criminal liability provisions, such as Ethiopia,205 Botswana,206 Kenya,207 Malawi,208 Namibia,209 Rwanda,210 South Africa211 and Zimbabwe.212 As will be discussed below, there have been a variety of approaches with regard to the form and scope of the liability adopted, in sum, vicarious liability, the identification model and the ‘organizational’ liability framework. An analysis of the various models of criminal liability suggests that the drafters of the AU Statute appear to have intended to design a mode of liability that is close to the Australian ‘corporate culture’ approach which is a variant of the organizational liability approach. These issues will be discussed below.

1. The Various Models of Corporate Liability in Domestic Legislations

In the common and civil law legal systems, three main types of corporate liability may be distinguished. The common law variant is the vicarious liability, or respondeat superior, used in Austria, Ethiopia, Namibia, South Africa, the United States and Zimbabwe. Under this model, any crime committed by individual employees or agents are directly imputed to the corporation provided that the offence was committed in the course of their duties, and intended to benefit the corporation.213 The actus reus and mens rea are therefore related to the employee and not the company. A company may however avoid liability by demonstrating that they put in place effective due diligence programmes.214 For example, in Ethiopia, a corporation can be held liable if a crime has been committed by one of its director or employee in connection with the activities of the corporation.215 The act of the director or the employee should have been committed with the intent of promoting the interest of the corporation by using unlawful means, by violating its legal duty or by unduly using the corporation as a means.216

Another model is the identification model used in Canada, Rwanda and the United Kingdom. Under this model, only the crimes committed by individual senior officers and employees may be imputed to the corporation. The conduct and state of mind of these senior officers and employees is considered as that of the corporation. The definition of senior officer or employee, however, varies between the countries. For example, in the United Kingdom, directors and senior managers are the corporation’s ‘directing mind and will’.217 These individuals are considered to be the embodiment of the company.218 This theory has been widely criticized for being too restrictive and not representative of the horizontal or decentralized decision-making structure of many companies.219

The final model is the ‘organizational’ liability. Under this model, ‘a corporation is liable because its “culture”, policies, practices, management or other characteristics encouraged or permitted the commission of the offence’.220 The liability of the company is not only limited to the acts of its employees, senior officials or agents but also applies to the ‘corporate culture’. These provisions are ‘arguably the most sophisticated model of corporate criminal liability in the world’.221 Our research did not identify any African states countries with similar models. Australia appears to be the best example of this model,222 and will be discussed further below in an attempt to shine light on Article 46C.

Under the Criminal Code of Australia, where an employee, agent or officer of a body corporate, acting within the actual or apparent scope of their employment, or within their actual or apparent authority, commits a crime, the actus reus must also be attributed to the body corporate.223 If intention, knowledge or recklessness is the requisite subjective element, it will only be attributed to the body corporate if that body corporate expressly, tacitly or impliedly authorized or permitted the commission of the offence.224 Authorization or permission for the commission of a crime may be established on four bases, including where ‘a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance’.225

The ‘corporate culture’ model seems to encompass the notion of policy included in the AU Statute. As noted, Article 46C of the AU Statute states that: ‘Corporate intention to commit an offence may be established by proof that it was the policy of the corporation to do the act which constituted the offence.’ This appears to suggest that a company will be directly liable for any criminal act committed in furtherance of the corporate policy.

In this regard, companies may be involved as a perpetrator in international crimes in various contexts. First, direct liability will exist where a company may directly take part in the crime as a perpetrator when the company’s general goal is to commit a crime (e.g. money laundering or trafficking in drugs) or indirectly, when, in accomplishing its economic objective, the company commits a crime with intent or knowledge (e.g. corruption, trafficking in persons).226 These will be discussed below.

2. Principal Corporate Liability

With regards to direct liability, the role of a company usually does not raise complex legal issues.227 The general principle of the principal liability developed in international criminal law may easily be applied. The company should have directly perpetrated the crime (through its employees, agents or officials) with knowledge and intent.

Intent may be established by proving that it was ‘the policy of the corporation to do the act which constituted the offence’.228 Policy is defined as ‘the most reasonable explanation of the conduct of that corporation’.229 As may be seen, this AU Statute requirement, however, raises a number of potential due process issues. The policy of a company may prove to be difficult to identify. Whilst a wide interpretation of the concept of policy may facilitate the prosecution of corporations, an overly expansive interpretation or acceptance of any reasonable explanation proffered by the Prosecution, will have a substantial impact on fair trial rights and ultimately the legitimacy of such prosecutions.

The Australian Criminal Code provides an interesting way of interpreting the notion of policy so as to ameliorate some of these concerns. To attribute the crime to the corporate culture, the authority to commit an offence should have been given by a high managerial agent of the body corporate. If not, the employee, agent or officer of the body corporate who committed the offence should have believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the company would have authorised or permitted the commission of the offence.230

Turning now to the AU concept of knowledge, Article 46C states ‘corporate knowledge of the commission of an offence may be established by evidence that the actual or constructive knowledge of the relevant information was possessed within the corporation’. While the Statute requires the corporation to be aware of the crime, this knowledge does not have to be centralized and can be ‘divided between corporate personnel’.231 This last characteristic of the knowledge seems to capture the reality of modern corporate decision-making, which tends to be more horizontal and decentralized. One aspect needs to be further considered: the recipient of the information. Article 46C does not define who should have the information: whether the concepts of ‘corporation’ and ‘corporate personnel’ may equate to a mere employee or must be senior officials. Another important question concerns whether it is enough if only one person possesses the required information. The Statute has left these essential points unanswered.

The Australian experience offers some insight into these issues. As outlined in the Criminal Code, a high managerial agent, and not merely any employee in the company, should possess knowledge – except if the latter reported the commission of the crime to a higher ranked agent or the information is widely known among the employees.232

Apart from these issues, Article 46C fails to define the physical element of corporate criminal liability. It seems to only require that the conduct reflected the corporation’s policy in order for it to be attributable to the company. However, it fails to explain whose action within the corporation may be attributable to the company (employees, agents, board of directors etc.) and the conditions for the attribution of responsibility (whether the particular actor acted in the course of their employment duties, etc.,). This vagueness may be contrasted with Division 12.2 of the Australian Criminal Code, which provides for a degree of specificity on these critical issues: in sum, the physical element of an offence committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, can be attributed to the body corporate.

3. Accomplice Corporate Liability

As a general proposition, apart from principal liability, companies may also be involved in international crimes as accomplices. Generally speaking, a company may contribute to a crime as an accomplice in three different ways. First, the company may act as a direct accomplice when it assists the perpetrators in the commission of the crime (e.g. assistance in the transportation of trafficked hazardous waste, financial contribution, or providing (raw or military) material or arms that will or are likely to be used for the commission a crime); as a beneficial accomplice when the company benefits from the crimes committed by the perpetrators (e.g. buying diamond, oil or any product whose production or extraction involved the commission of a crime)233; and finally, companies may act as a silent accomplice when they fail to ‘raise systematic or continuous human rights abuses with the appropriate authorities’234 (e.g. doing business with a government that has unconstitutionally taken power or with a group involved in drug trafficking). This last category will not be further considered since this complicity has more in common with moral rather than legal culpability. Such complicity does not generally engage criminal liability since the company is not involved in any manner in the commission of the crime.235

A comprehensive discussion of each form of accomplice liability as they might relate to corporations is outside the confines of this Chapter. However, as discussed, actus reus and mens rea requirements vary according to the particular mode of liability. In 2006, the International Commission of Jurists asked eight experts to explore when companies and their officials could be held legally responsible on the basis of accomplice liability. They concluded that aiding and abetting was the form of accomplice liability most relevant to the question of corporate conduct.236 As outlined above, this chapter seeks to open the discussion and identify preliminary concerns with regard to the various modes of liability in the AU Statute. Therefore, we will briefly discuss this vital accessory mode of liability and some of the problems that may arise in relation to holding corporations to account as accomplices on the basis of Article 46 C.

As discussed, customary international law requires that the aider and abettor made at least a substantial contribution to the principal’s act. The act of assistance must have had a substantial effect on the perpetration of the crime e.g., in the case of a company that provides weapons or logistics that enable the perpetrator to commit the crime. This type of action appears relatively straightforward but in practice has not proven to be so. In reality the term ‘substantial contribution’ is a ‘very indeterminate concept’ and the identification of the ‘relevant proximate causes (of the crimes) among the many causes will depend upon several aspects, including policy decisions’.237

This intermingling of causes increases the more the accused’s assistance is remote from the crimes. In contradiction to the specificity and certainty that is essential to ensuring respect for the principle of individual culpability, the accused risks being held liable on the basis of the effect of his assistance – namely on what use the principal makes of the aid given – rather than on the basis of his own acts and control. Therefore, convictions may rest on how much the principal used the accused’s assistance, which may be entirely beyond the aider’s control. The aider will be criminally liable if the perpetrator made significant use of his assistance – no matter how general and removed the assistance was from the criminality, even if the aider took all reasonable steps to prevent the aid being used in furtherance of criminality or intended it to promote only the lawful activities of the principal.

Any new AU Court interpreting Article 46C will need to address these thorny issues, not least of which will be whether, in cases where the aider and abettor is remote from the crimes, the ‘specific direction’ assessment (discussed above238) is an appropriate means of ensuring respect for the principle of individual culpability. As discussed above, according to many experienced commentators and courts, including the present authors, this element is required in cases of remote assistance to enable general assistance to the perpetrator and assistance that is directed specifically at the commission of the crime to be properly distinguished in the confines of complex trial processes. Accordingly, the actus reus of aiding and abetting may require sufficient proximity and the direct linkage between the aid provided and the relevant crimes.239

As discussed in this chapter, this debate touches on whether knowledge that the acts contribute to the commission of the crimes is the only mental element required to establish aiding and abetting. For example, if the AU Court adopts the ICTY and ICTR interpretation (when interpreting Article 46C), then a company officer that knows that the products he sells are likely to be used by the buyer to commit a war crime will be held liable as an aider and abettor, even if he did not intend to commit the crimes. On the other hand, the ICC’s mental element for aiding and abetting appears to require (at least something close to) intent and knowledge.240 Mere awareness that the accused’s assistance will be used for the commission of the crime will not be sufficient.241 Adoption of the ICC’s approach will therefore place additional demands upon the Prosecution and make a conviction less likely. On the other hand, as the following domestic cases discussed below show, the application of the knowledge threshold to Article 46C would ensure a more all-encompassing liability approach but not necessarily one that stays on the right side of the principle of culpability.

The Dutch case of van Anraat is of particular relevance. Although the accused was the businessman and not the company, the findings of the Court provides an interesting insight into these issues and potential manifestations of corporate criminal liability. Van Anraat was charged with complicity in war crimes. He was accused of selling thiodiglycol (TDG) to Saddam Hussein’s regime – a chemical used to produce mustard gas. Van Anraat claimed that his chemicals were intended for the textile industry. While no findings about the purpose of facilitating the use of chemical weapons against civilians were found,242 the Court, applying the ‘knowledge standard’ only, held that van Anraat ‘knew that the TDG which was supplied by him would serve for the production of poison/mustard gas in Iraq and that efforts were made to conceal that purpose’.243 Had the Dutch Court applied the ICC’s intent and knowledge standard, van Anraat would certainly not have been convicted.

In contrast, in the Presbyterian Church of Sudan v. Talisman Energy, Inc.244 and Aziz v. Alcolac cases,245 US courts have required both purpose and knowledge. In the Talisman case, a Canadian company was charged with aiding and abetting the Government of Sudan to advance human rights abuses that facilitated the development of Sudanese oil concessions by Talisman affiliates. The lower court held that it could not be established that Talisman acted with the intention to assist the violation of international human rights. On appeal, the Court relied on the elements of aiding and abetting under international law, as defined in Article 25(3)(c) of the Rome Statute, and concluded that ‘applying international law, we hold that the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone’.246 Accordingly, the knowledge standard might have caused the court to reach a different conclusion.247 As noted by Finnin, ‘reliance on Article 25(3)(c) [instead of customary international law as defined by the ad hocs] is having a real and immediate impact on the scope of corporate liability for aiding and abetting international crimes’.248

In sum, the AU judges will be required to grapple with these difficult and oft argued issues and craft innovative answers to questions that will arise in the application of Article 46C. As this brief sojourn through the immediate issues shows, there is no certainty concerning the precise actus reus and mens rea elements and creative and thoughtful decisions are required if Article 46C is to live up to its exciting potential. Given the scale of the challenges, and the experience at the ICC and ad hocs to date, it is difficult to be too optimistic: Article 46C may well prove, at least for the early years of any AU Court, to be a triumph of good intention and hope over fairness and utility.

2. Conclusion

As discussed throughout this Chapter, the AU drafters have taken an extravagant approach to their enumeration of modes of liability. In an attempt to avoid accountability gaps, the AU Statute attempts to do too much and what emerges is a degree of imprecision and duplication that creates a high risk of unhelpful complexity and confusion. International courts need to learn a number of salutary lessons. In particular, as experience has shown, effective and efficient criminal adjudication of international crimes (or complex trials more generally) require clear, precise and distinct modes of liability. Anxious prosecutors will always use whatever is at their disposal, whether it makes for an efficient or fair process. Providing them with modes of liability beyond those that are strictly necessary may seem like a useful “belts and braces’ approach, but as experience has shown, it unlikely to assist with these essential objectives.

In this regard, Article 28N would undoubtedly benefit from a paired down approach informed by close attention to years of experience at the ad hocs and some from the ICC. Whilst the historic introduction of the concept of corporate criminal liability into international justice by way of Article 46C represents and exciting innovation at the international level, there is not much, if anything, to be gained by many of the other (additional) proposed modes of liability. Conversely, if efficient adjudication and judicial economy and consistency are worthy goals achievable through concrete and careful judicial process orientated steps, in many instances, there is much to be lost.

However, as noted above, much will also depend upon the skills and determination of the judges of the new AU Court. Inevitably, they must grapple with the challenge of interpreting their respective modes of liability in light of the objectives and principles of international criminal justice. One thing is for certain; the drafters have left them with a formidable task.

International Human Rights Lawyer (n.bracq@anslaw.fr). Natacha Bracq joined legal teams working before the various UN tribunals, including the ICTY and ICTR.

1 For the purpose of this article, the AU Statute refers to the proposed Statute of the African Court of Justice and Human Rights as amended by the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol) adopted in June 2014.

2 J. D. Ohlin, ‘Second-Order Linking Principles – Combining Vertical and Horizontal Modes of Liability’, 25 Leiden Journal of International Law (2012) 771, at 772.

3 M. Cupido, ‘Pluralism in Theories of Liability: Joint Criminal Enterprise versus Joint Perpetration’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014) 128–65, at 128, see also H.G. van der Wilt, ‘The Continuous Quest for Proper Modes of Criminal Responsibility’, 7 JICJ (2009), at 307.

4 Art. 15 International Covenant on Civil and Political Rights. See also Art. 11(2) Universal Declaration of Human Rights; Articles 22 and 23, Rome Statute (ICCSt.). See also, ‘Commentary of the Rome Statute: Part 3’, Case Matrix Network, available online at: www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/commentary-rome-statute/commentary-rome-statute-part-3/; H. Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes, (Portland: Hart Publishing, 2009), at 29, ft.103; B. Swart, ‘Modes of International Criminal Liability’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice, (Oxford: Oxford University Press, 2009), at 92.

5 M. Aksenova, ‘Returning to Complicity for Core International Crimes’, FICHL Policy Brief Series No. 17 (2014), at 2.

6 B. Swart, ‘Modes of International Criminal Liability’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice, (Oxford: Oxford University Press, 2009), at 92. See also K. Ambos, Treatise on International Criminal Law, Volume I: Foundations and General Part, (Oxford: Oxford University Press, 2013), at 93; S Bock, ‘The Prerequisite of Personal Guilt and the Duty to Know the Law in the Light of Article 32 ICC Statute’, 9 Utrecht Law Review (2013) 184, at 184; Judgment, Tadić (IT-94–1-A), Appeals Chamber, 15 July 1999, § 186.

7 S. Finnin, Elements of Accessorial Modes of Liability: Article 25(3) (b) and (c) of the Rome Statute of the International Criminal Court, (Leiden: Martinus Nijhoff Publishers, 2012), at 12.

8 A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002), at 781–3.

9 A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002) 767822, at 767, 781–2. See also S. Finnin, Element of Accessorial Modes of Liability: Article 25(3) (b) and (c) of the Rome Statute of the International Criminal Court, (Leiden: Martinus Nijhoff Publishers, 2012), at 12; E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press 2012), at 66.

10 E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012), at 66.

11 A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002) 767822, at 767, 781.

12 E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012), at 66.

13 M. Jackson, Complicity in International Law (Oxford: Oxford University Press, 2013), at 18.

14 S. Finnin, Element of Accessorial Modes of Liability: Article 25(3) (b) and (c) of the Rome Statute of the International Criminal Court, (Leiden: Martinus Nijhoff Publishers, 2012), at 13, see also A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002), 767822, at 767, 781.

15 A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002), 767822, at 767–822, 767, 782. See also E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012), at 66.

16 A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002), 767822, at 767–822, 767, 782. See also E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press 2012), at 66.

17 G. Werle, ‘Individual Criminal Responsibility in Article 25 ICC Statute’, 5 Journal of International Criminal Justice (2007) 953, at 955.

18 M. Jackson, Complicity in International Law (Oxford: Oxford University Press 2013), at 22.

19 E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012), at 67.

20 M. Jackson, Complicity in International Law (Oxford: Oxford University Press, 2013), at 22.

21 H. Vest, ‘Problems of Participation – Unitarian, Differentiated Approach, or Something Else?12 (2) J. Int. Criminal Justice (2014) 295309, at 307.

22 E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012), at 66.

23 A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002) 767822, at 782.

24 H. Vest, ‘Problems of Participation – Unitarian, Differentiated Approach, or Something Else?12 (2) Journal of International Criminal Justice (2014) 295309, at 307.

25 H. Vest, ‘Problems of Participation – Unitarian, Differentiated Approach, or Something Else?12 (2) Journal of International Criminal Justice (2014) 295309, at 302. See also E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012), at 80 and M. Jackson, The Attribution of Responsibility and Modes of Liability in International Criminal Law, 29 Leiden Journal of International Law (2016) 879–95; G. Werle and B. Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 319.

26 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 165.

27 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 168.

28 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 165; M. Jackson, The Attribution of Responsibility and Modes of Liability in International Criminal Law, 29 Leiden Journal of International Law (2016) 879–95, at 882.

29 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 171.

30 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 185.

31 Stewart argues that the accessory modes of liability ‘tolerate the imposition of a crime’s stigma in situations in which the person convicted of the offence did not make the blameworthy choice necessary to be found guilty of that particular offence’. J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 193.

32 Stewart argues that the label of a crime is a key element of punishment that must match an accused’s guilt, regardless of the number of years in prison an accused is to serve. J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 176–7.

33 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 165 and 171.

34 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 169.

35 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 193–4.

36 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 166.

37 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 207.

38 J. Stewart, ‘The End of “Modes of Liability” for International Crimes’, 25 LJIL (2012), at 207.

39 See e.g. G. Werle and B. Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 304; D. Robinson, ‘LJIL Symposium: Darryl Robinson comments on James Stewart’s “End of Modes of Liability”‘, Opinio Juris, (21 March 2012), available at opiniojuris.org/2012/03/21/ljil-robinson-comments-on-stewart/; T. Weigend, ‘LJIL Symposium: Thomas Weigend comments on James Stewart’s “The ‘End of Modes of Liability for International Crimes’”, Opinio Juris, (22 March 2012), available at opiniojuris.org/2012/03/22/ljil-weigend-comments/; J. Ohlin, ‘LJIL Symposium: Names, Labels, and Roses’, Opinio Juris, (23 March 2012), available at opiniojuris.org/2012/03/23/ljil-names-labels-and-roses/; M. Jackson, The Attribution of Responsibility and Modes of Liability in International Criminal Law, 29 Leiden Journal of International Law (2016) 879–95; B. Van Schaak, ‘The Many Faces of Complicity in International Law’, 109 Proceedings of the Annual Meeting (American Society of International Law) (2015) 184–8.

40 H. Vest, ‘Problems of Participation – Unitarian, Differentiated Approach, or Something Else?12 (2) Journal of International Criminal Justice (2014) 295309, at 302. See also E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford: Oxford University Press, 2012), at 80 and M. Jackson, The Attribution of Responsibility and Modes of Liability in International Criminal Law, 29 Leiden Journal of International Law (2016) 879–95; G. Werle and B. Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 319.

41 G. Werle and B. Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 304 and 305.

42 G. Werle and B. Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 304 and 306.

43 G. Werle and B. Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 318.

44 G. Werle and B. Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 318.

45 G. Werle and B. Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 318.

46 G. Werle and B. Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 318.

47 G. Werle and B. Burghardt, ‘Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute’, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 319.

48 M. Jackson, The Attribution of Responsibility and Modes of Liability in International Criminal Law, 29 Leiden Journal of International Law (2016) 879–95, at 889, J. D. Ohlin, ‘LJIL Symposium: Names, Labels, and Roses’, Opinio Juris, (23 March 2012), available at opiniojuris.org/2012/03/23/ljil-names-labels-and-roses/.

49 Jackson, The Attribution of Responsibility and Modes of Liability in International Criminal Law, 29 Leiden Journal of International Law (2016) 879–95, at 891.

50 M. Jackson, The Attribution of Responsibility and Modes of Liability in International Criminal Law, 29 Leiden Journal of International Law (2016) 879–95, at 888.

51 M. Jackson, The Attribution of Responsibility and Modes of Liability in International Criminal Law, 29 Leiden Journal of International Law (2016) 879–95, at 890, J. D. Ohlin, ‘LJIL Symposium: Names, Labels, and Roses’, Opinio Juris, (23 March 2012), available at opiniojuris.org/2012/03/23/ljil-names-labels-and-roses/.

52 M. Jackson, Complicity in International Law (Oxford: Oxford University Press, 2013) at 18. Footnotes omitted.

53 D. Robinson, ‘LJIL Symposium: Darryl Robinson comments on James Stewart’s “End of Modes of Liability”‘, Opinio Juris, (21 March 2012), available at opiniojuris.org/2012/03/21/ljil-robinson-comments-on-stewart/.

54 D. Robinson, ‘LJIL Symposium: Darryl Robinson comments on James Stewart’s “End of Modes of Liability”’, Opinio Juris, (21 March 2012), available at opiniojuris.org/2012/03/21/ljil-robinson-comments-on-stewart/.

55 Art. 7(1) reads as follows: A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be individually responsible for the crime. A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002), 767822, at 767–822, 767, 781.

56 Judgment, Tadić (IT-94–1-A), Appeals Chamber, 15 July 1999, § 229.

57 Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, Milutinović et al. (IT-99–37-AR72), Appeals Chamber, 21 May 2003, §§ 20–1.

58 H. Olásolo, ‘Developments in the Distinction between Principal and Accessorial Liability in Light of the First Case-Law of the International Criminal Court’, in C. Stahn and G. Sluiter (ed.), The Emerging Practice of the international Criminal Court, (Leiden: Koninkljke Brill NV, 2009), 339–60, at 344–45. Judgment, Krnojelac (IT-097–25-A) Appeals Chamber, 17 September 2003, §§ 30 and 73; Judgment, Blaskić (IT-95–14-A), Appeals Chamber, 29 July 2004, § 33; Judgment, Kvočka et al. (IT-98–30/1-A), Appeals Chamber, 28 February 2005, §§ 79 and 91; Judgment, Vasiljević, (IT-98–32-A), Appeals Chamber, 25 February 2004, §§ 95, 102 and 181–2; Judgment, Krstić (IT-98–33-A), Appeals Chamber, 19 April 2004, §§ 134, 137, 266–9.

59 H. Olásolo, ‘Developments in the Distinction between Principal and Accessorial Liability in Light of the First Case-Law of the International Criminal Court’, in C. Stahn and G. Sluiter (ed.), The Emerging Practice of the international Criminal Court, (Leiden: Koninkljke Brill NV, 2009), 339–60, at 346. Judgment, Ntakirutimana et al. (ICTR-96–10-A and ICTR-96–17-A), 13 December 2004, § 462. Judgment, Simba (ICTR-01–76-T), Trial Chamber, 13 December 2005, § 389.

60 Judgment, Vasiljević, (IT-98–32-A), Appeals Chamber, 25 February 2004, § 182; Judgment, Krstić (IT-98–33-A), Appeals Chamber, 19 April 2004, § 268.

61 Art. 25(3)(a) ICCSt.

62 Art. 25(3)(b) ICCSt.

63 Art. 25(3)(c) ICCSt.

64 Art. 25(3)(d), ICCSt.

65 Decision on the Confirmation of Charges, Lubanga Dyilo (ICC-01/04–01/06), Pre-Trial Chamber, 29 January 2007, § 320, citing Arrest Warrant Decision, Lubanga Dyilo (ICC-01/04–01/06), Pre-Trial Chamber, 10 February 2006, § 78; Judgment, Katanga (ICC-01/04–01/07), Trial Chamber, 8 March 2014, § § 486–8.

66 Confirmation of Charges, Mbarushimana (ICC-01/04–01/10) Pre-Trial Chamber, 16 December 2011, § 279.

67 G. Werle, ‘Individual Criminal Responsibility in Article 25 ICC Statute’, 5 J Int Criminal Justice (2007) 953, at 957.

68 Sections 25–7 German Criminal Code.

69 Judgment, Katanga (ICC-01/04–01/07), Trial Chamber, 8 March 2014, § 1386.

70 Judgment, Katanga (ICC-01/04–01/07), Trial Chamber, 8 March 2014, § 1386.

71 H. Vest, ‘Problems of Participation – Unitarian, Differentiated Approach, or Something Else?’ 12 (2) J Int Criminal Justice (2014), 295–309, at 307.

72 Emphasis added.

73 Section 20 2012 Penal Code (Chapter 63).

74 Section 22 1981 Penal Code (Chapter 16).

75 Section 529 Criminal Code Act (Chapter 77) (1990).

76 Section 2 Penal Code (Amendment) Act, 2012 [No. 1 of 2012].

77 M. Aksenova, ‘The Modes of Liability at the ICC’, International Criminal Law Review (2015) 629–64, at 659.

78 See Section ‘Overloading the Statute with New Modes of Liability’.

79 Judgment, Orić (IT-03–68-T), Trial Chamber, 30 June 2006, § 271.

80 Art. 24(2) ICTYSt. See also Art. 78(1) ICCSt.

81 Judgment, Vasiljević, (IT-98–32-A), Appeals Chamber, 25 February 2004, § 182; Krstić (IT-98–33-A), Appeals Chamber, 19 April 2004, § 268.

82 K. Ambos, ‘Article 25’ in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, 3rd ed, (München/Oxford/Baden-Baden: C.H. Beck Hart Nomos 2016), 9791029, at 1022: See also Stewart, footnote 2844 above.

83 K. Ambos, ‘Article 25’ in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, 3rd ed, (München/Oxford/Baden-Baden: C.H. Beck Hart Nomos 2016), 9791029, at 1022.

84 W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), at 434.

85 B Goy, ‘Individual Criminal Responsibility before the International Criminal Court: A Comparison with the Ad hoc Tribunals’, 12 International Criminal Law Review (2012) 1, at 57.

86 Art. 5(1) (b) which states that each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (…) (b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group.

87 Council of Europe Convention on the Prevention of Terrorism, 2005, Council of Europe Treaty Series No.196, Art. 9.

88 See e.g. Art. 234a Criminal Code of Albania; Art. 109 Criminal Code of Bulgaria; Art. 11 Cyprus Combating Terrorism Act of 2010.

89 Cambridge Dictionary. Available online at: http://dictionary.cambridge.org/dictionary/british/organize?q=organise.

90 Judgment, Akayesu (ICTR-96–4-T), Trial Chamber, 2 September 1998, §.480, reiterated in Judgment, Krstic (IT-98–33-T); Trial Chamber, 2 August 2001, § 601; Judgment, Blaškić (IT-95–14-T), Trial Chamber, 3 March 2000, § 279; Judgment, Kordić and Cerkez (IT-65–14/2), Trial Chamber, 26 February 2001, § 386; and Judgment, Naletilić et al. (IT-98–34-T), Trial Chamber, 31 March 2003, § 59. The Rome Statute does not contain a specific planning liability.

91 Judgment, Kordić and Cerkez (IT-65–14/2-A), Appeals Chamber, 17 December 2004, § 26; Judgment, Limaj et al. (IT-03–66-T), Trial Chamber, 30 November 2005, § 513; Judgment, Dragomir Milosević (IT-98–29/1-T), Trial Chamber, 12 December 2007, § 956.

92 Judgment, Kordić and Cerkez (IT-65–14/2-A), Appeals Chamber, 17 December 2004, § 31; Judgment, Limaj et al. (IT-03–66-T), Trial Chamber, 30 November 2005, § 513.

93 Judgment, Stakić (IT-97–24-T), Trial Chamber, 29 October 2003, § 443; Judgment, Dragomir Milosević (IT-98–29/1-T), Trial Chamber, 12 December 2007, § 956.

94 Cambridge Dictionary. Available online at: http://dictionary.cambridge.org/dictionary/british/direct.

95 Judgment, Kordić and Cerkez (IT-65–14/2-A), Appeals Chamber, 17 December 2004, § 28; Judgment, Limaj et al. (IT-03–66-T), Trial Chamber, 30 November 2005, § 515; Judgment, Semanza (ICTR-97–20-A), Appeals Chamber, 20 May 2005, § 361; Judgment, Muhimana (ICTR-9501B-T), Trial Chamber, 28 April 2005, § 505; Judgment, Karera (ICTR-01–74-A) Appeals Chamber, 2 February 2009, § 211; Judgment, Nahimana et al. (ICTR-99–52-A) Appeals Chamber, 28 November 2007, § 481.

96 Judgment, Milutinović et al. (IT-05–87-T), Trial Chamber, 26 February 2009, § 88; Judgment, Strugar (IT-01–42-T), Trial Chamber, 31 January 2005, § 332.

97 Decision on the Prosecutor’s Application under Article 58, Mudacumura (ICC-01/04–01/12), Trial Chamber, 13 July 2012, § 63, see also Decision on the Confirmation of Charges, Natanga (ICC-01/04–02/06) Pre-Trial Chamber, 9 June 2014, § 145.

98 Judgment, Milutinović et al. (IT-05–87-T), Trial Chamber, 26 February 2009, § 85, fn. 94

99 Arrest Warrant Decision Mudacumura (ICC-01/04–01/12–1-Red) Pre-Trial Chamber, § 63, see also Decision on the Confirmation of Charges, Natanga (ICC-01/04–02/06) Pre-Trial Chamber, 9 June 2014, § 145.

100 Judgment, Orić (IT-03–68-T), Trial Chamber, 30 June 2006, §§ 271–2. See also Article 25(3)(c) ICCSt.

101 Among 15 countries, facilitation was only found in 2 criminal legislations (Spain and Germany). The other 13 did not contain facilitation as a specific accessory mode of liability (France, Ukraine, the United States, Poland, the Netherlands, Norway, Estonia, Austria, Albania, Portugal, Sweden, Croatia, Finland). Several domestic criminal codes consider an accomplice any person who aided or abetted the principal perpetrator(s) through acts that facilitated the crime: Art. 66, Belgium Criminal Code; Art. 121–7 French Criminal Code, Art. 27 Criminal Code of Ukraine and §2, US Criminal Code, Art. 18(3), Polish Penal Code, Sections 48 and 49, Dutch Criminal Code.

102 Third Amended Indictment, Stanišić and Simatović (ICTY-03–69-T), 10 July 2008.

103 International Convention for the Suppression of the Financing of Terrorism, General Assembly Resolution 54/109 of 9 December 1999, Art. 2.

104 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, OJ L 88 of 31/3/2017, at 6, available online at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2017.088.01.0006.01.ENG&toc=OJ:L:2017:088:FULL.

105 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, OJ L 88 of 31/3/2017, at 6, § 14.

106 Art. 11(1) Directive (EU) 2017/541.

107 Art. 11(1) Directive (EU) 2017/541.

108 E.g. Section 11(2) 1995 Australian Criminal Code; Sections 4(1.1) and 6(1.1) Crimes Against Humanity and War Crimes Act 2000 (Canada); Section 8 UK Accessories and Abettors Act 1861; Section 2, Title 18 US Criminal Code.

109 Section 20 Criminal Code of Ghana, 1960 (Act 29).

110 Section 20 Penal Code 2012 of Kenya (Chapter 63).

111 Section 22 Penal Code 1981 of Tanzania (Chapter 16).

112 Section 529 Criminal Code Act of Nigeria (Chapter 77) (1990).

113 Section 2 Penal Code (Amendment) Act of Zambia, 2012 [No. 1 of 2012].

114 N. Jain, ‘The Control Theory of Perpetration in International Criminal Law’, 12 Chi. J. Int’l L. (2013) 159, at 156.

115 Attorney General’s Reference (No 1 of 1975) [1975] 1 QB 773 (CA), 779.

116 N. Jain, ‘The Control Theory of Perpetration in International Criminal Law’, 12 Chinese Journal of International Law (2013) 159, at 160.

117 R v. Sharpe [2001] SCC 2, .56.

118 Section 22(3) Canadian Criminal Code.

119 Art. 7(1) ICTYSt and Art. 6(1) ICTRSt.

120 Art. 25(3) (c) ICCSt.

121 Judgment, Bemba Gombo et al. (ICC-01/05–01/13), Trial Chamber, 19 October 2016.

122 Decision on the confirmation of charges against Charles Blé Goudé, Blé Goudé (ICC-02/11–02/11), Pre-Trial Chamber; 11 December 2014, § 167.

123 Judgment, Blagojević and Jokić (IT-02–60-T), Trial Chamber, 17 January 2005, § 726; Judgment, Limaj et al. (IT-03–66-T), Trial Chamber, 30 November 2005, § 517.

124 Judgment, Delalic et al. (IT-96–21), Trial Chamber, 16 November 1998, § 326; Judgment, Furundzija (IT-95–17/1-T), Trial Chamber, 10 December 1998, §§ 223, 234; Judgment, Aleksovski, (IT-95–14/1-T), Trial Chamber, 25 June 1999, § 129.

125 Judgment, Tadić (IT-94–1-A), Appeals Chamber, 15 July 1999, § 688.

126 Judgment, Brđanin (IT-99–36-A), Appeals Chamber, 3 April 2007, § 273.

127 Judgment, Perišić (IT-02–81-A), Appeals Chamber, 28 February 2013, § 36.

128 Judgment, Perišić (IT-02–81-A), Appeals Chamber, 28 February 2013, § 37 citing to Judgment, Blagojević and Jokić (IT-02–60-A), Appeals Chamber, 9 May 2007, § 189; Judgment, Tadić (IT-94–1-A), Appeals Chamber, 15 July 1999, § 229; Judgment, Rukundo (ICTR-2001–70-A), Appeal Judgment, 20 October 2010, §§ 48–52.

129 Judgment, Perišić (IT-02–81-A), Appeals Chamber, 28 February 2013, §§ 39–40.

130 Judgment, Šainović et al. (IT-05–87-A), Appeals Chamber, 23 January 2014, §§ 1649–50. See also, Judgment Mrkšić and Šljivančanin (IT-95–13/1-A), Appeals Chamber, 5 May 2009, § 159; confirmed by Judgment, Milan Lukić and Sredoje Lukić (IT-98–32/1-A) Appeals Chamber, 4 December 2012, § 424.

131 Judgment, Šainović et al. (IT-05–87-A), Appeals Chamber, 23 January 2014, § 1651.

132 Judgment, Šainović et al. (IT-05–87-A), Appeals Chamber, 23 January 2014, § 1649.

133 Judgment, Stanišić and Simatović (IT-03–69-A) Appeals Chamber, 9 December 2015, §§ 104–7.

134 Judgment, Milan Lukić and Sredoje Lukić (IT-98–32/1-A) Appeals Chamber, 4 December 2012, § 428; Judgment, Blagojević and Jokić (IT-02–60-T), Trial Chamber, 17 January 2005, § 727; Judgment, Limaj et al. (IT-03–66-T), Trial Chamber, 30 November 2005, § 518; Judgment, Krnojelac (IT-097–25-A) Appeals Chamber, 17 September 2003, § 51.

135 Judgment, Šainović et al. (IT-05–87-A), Appeals Chamber, 23 January 2014, § 1649.

136 Judgment, Strugar (IT-01–42-T), Trial Chamber, 31 January 2005, § 350; Judgment, Haradinaj et al. (IT-04–84-A), Appeals Chamber, 19 July 2010, § 58.

137 K. Ambos, ‘Article 25’ in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, 3rd ed, (München/Oxford/Baden-Baden: C.H. Beck Hart Nomos 2016), 9791029, at 1009.

138 Decision on the confirmation of charges against Charles Blé Goudé, Blé Goudé (ICC-02/11–02/11), Pre-Trial Chamber, 11 December 2014, § 167.

139 K. Ambos, ‘Article 25’ in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, 3rd ed, (München/Oxford/Baden-Baden: C.H. Beck Hart Nomos 2016), 9791029, at 1009; A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002), at 801.

140 K. Ambos, ‘Article 25’ in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, 3rd ed, (München/Oxford/Baden-Baden: C.H. Beck Hart Nomos 2016), 9791029, at 1009; A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002), at 801. See also J. Stewart, ‘An Important New Orthodoxy on Complicity in the ICC Statute?’ (2015) available online at http://jamesgstewart.com/the-important-new-orthodoxy-on-complicity-in-the-icc-statute/; T. Weigend, ‘How to Interpret Complicity in the ICC Statue’ (2014), available online at: http://jamesgstewart.com/how-to-intepret-complicity-in-the-icc-statute/.

141 W. K. Timmermann, ‘Incitement in international criminal law’, 88 International Review of the Red Cross (2006), 823, at 838, available online at www.icrc.org/eng/assets/files/other/irrc_864_timmermann.pdf.

142 See Art. 7(1) ICTYSt and Art. 6(1) ICTRSt. Although the Rome Statute does not expressly refer to instigation, inducing and soliciting in Article 25(3) (b) have been interpreted as covering the same substantial ground. See Decision on the confirmation of charges against Laurent Gbagbo, Laurent Gbagbo (ICC-02/11–01/11), Pre-Trial Chamber, 12 June 2014, §§ 242–243.

143 Judgment, Musema (ICTR-96–13), Appeals Chamber 16 November 2001, § 120; Judgment, Rutaganda, (ICTR-96–3), Trial Chamber, 6 December 1999, § 38; Judgment, Ndindabahizi, (ICTR-2001–71-I), Trial Chamber, 15 July 2004, § 456; Decision on Motions for Judgment of Acquittal, Bagosora et al. (ICTR-98–41-T), Trial Chamber, 2 February 2005, § 17. See also W. K. Timmermann, ‘Incitement in International Criminal Law’, 88 International Review of the Red Cross (2006), 823, at 839, available online at www.icrc.org/eng/assets/files/other/irrc_864_timmermann.pdf.

144 See Art. 4(3) (c) ICTYSt, Art. 2(3) (c) ICTRSt, and Art. 25(3) (e) ICCSt.

145 W. K. Timmermann, ‘Incitement in International Criminal Law’, 88 International Review of the Red Cross (2006), 823, at 839, available online at www.icrc.org/eng/assets/files/other/irrc_864_timmermann.pdf.

146 Art. 4(3) (c) ICTYSt, Art. 2(3) (c) ICTRSt, and Art. 25(3) (e) ICCSt.

147 Judgment, Akayesu (ICTR-96–4-T), Trial Chamber, 2 September 1998, § 482; Judgment, Blaškić (IT-95–14-T), Trial Chamber, 3 March 2000, § 280; Judgment, Krstic (IT-98–33-T); Trial Chamber, 2 August 2001, § 601, Judgment, Kordić and Cerkez (IT-65–14/2), Trial Chamber, 26 February 2001, § 387; Judgment, Bagilishema (ICTR-95– 1 A-T), Trial Chamber, 7 June 2001, § 30. At the ICC, inducing and soliciting are defined as ‘prompting another commit a crime’. Decision on the Confirmation of Charges, Bemba Gombo et al. (ICC-01/05–01/13) Pre-Trial Chamber, 11 November 2014, § 34.

148 Judgment, Orić (IT-03–68-T), Trial Chamber, 30 June 2006, § 271.

149 Decision on the confirmation of charges against Laurent Gbagbo, Laurent Gbagbo (ICC-02/11–01/11), Pre-Trial Chamber, 12 June 2014, §§ 242–243.

150 Warrant of Arrest for Ahmad Harun, Harun (ICC-02/05–01/07–2), Pre-Trial Chamber, 28 April 2007, § 353. See also S. Finnin, Elements of Accessorial Modes of Liability: Article 25(3) (b) and (c) of the Rome Statute of the International Criminal Court, (Leiden: Martinus Nijhoff Publishers, 2012), at 60.

151 Judgment, Kordić and Cerkez (IT-65–14/2-A), Appeals Chamber, 17 December 2004, § 27; Judgment, Limaj et al. (IT-03–66-T), Trial Chamber, 30 November 2005, § 514; Judgment, (IT-03–68-T), Trial Chamber, 30 June 2006, § 274; Judgment, Nahimana et al. (ICTR-99–52-A), Appeals Chamber, 28 November 2007, § 480.

152 Decision on the Confirmation of Charges, Ntaganda (ICC-01/04–02/06) Pre-Trial Chamber, 9 June 2014, § 153.

153 M. Jackson, Complicity in International Law, (Oxford University Press, 2015), 67.

154 Judgment, Kordić and Cerkez (IT-65–14/2-A), Appeals Chamber, 17 December 2004, § 32; Judgment, Nahimana et al. (ICTR-99–52-A), Appeals Chamber, 28 November 2007, § 480; Judgment, Nchamihigo (ICTR-2001–63-A), Appeals Chamber, 18 March 2010, § 61. See Decision on the Confirmation of Charges, Natanga (ICC-01/04–02/06) Pre-Trial Chamber, 9 June 2014, § 153.

155 Emphasis added.

156 S. Wirth, ‘Committing Liability in International Criminal Law’ in C. Stahn and G. Sluiter (eds), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009), at 329.

157 S. Wirth, ‘Committing Liability in International Criminal Law’ in C. Stahn and G. Sluiter (eds), The Emerging Practice of the International Criminal Court (Leiden: Martinus Nijhoff Publishers, 2009), at 329.

158 See J. D. Ohlin, ‘Joint Intentions to Commit International Crimes’, Vol. 11 No. 2, Cornell Law Faculty Publications Paper 169, at 694; H. Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes, (Portland: Hart Publishing, 2009), at 29, ft.103; B. Swart, ‘Modes of International Criminal Liability’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice, (Oxford: Oxford University Press, 2009), at 92.

159 J. D. Ohlin, ‘Joint Intentions to Commit International Crimes’, Vol. 11 No. 2, Cornell Law Faculty Publications Paper 169, at 694.

160 Art. 15 International Covenant on Civil and Political Rights. See also Art. 11(2) Universal Declaration of Human Rights; Arts 22 and 23 ICCSt. See ‘Commentary of the Rome Statute: Part 3’, Case Matrix Network, available online at: www.casematrixnetwork.org/cmn-knowledge-hub/icc-commentary-clicc/commentary-rome-statute/commentary-rome-statute-part-3/; H. Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes, (Portland: Hart Publishing, 2009), at 29, ft.103; B. Swart, ‘Modes of International Criminal Liability’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice, (Oxford: Oxford University Press, 2009), at 92.

161 J. R. A. Okoth, The Crime of Conspiracy on International Criminal Law (The Hague: Asser Press, 2014), at 3.

162 Conspiracy was considered as an inchoate crime and not a specific mode of liability, either related to the crime of aggression (Nuremberg and Tokyo) or to the crime of genocide (ICTY/ICTR). In general, the international judges have used it to prosecute complete crimes. See J. R. A. Okoth, The Crime of Conspiracy on International Criminal Law (The Hague: Asser Press, 2014), at 143.

163 J. R. A. Okoth, The Crime of Conspiracy on International Criminal Law (The Hague: Asser Press, 2014), at 3.

164 Judgment, IMTFE, 4 November 1948, in J. Pritchard and S. M. Zaide (eds), The Tokyo War Crimes Trial, Vol. 22, at (48, 448).

165 J. R. A. Okoth, The Crime of Conspiracy on International Criminal Law (The Hague: Asser Press, 2014), at 119.

166 See Judgment, IMTFE, 4 November 1948, in J. Pritchard and S. M. Zaide (eds), The Tokyo War Crimes Trial, Vol. 22, at (48, 451).

167 Art. 4(3) (b) ICTYSt and Art. 2(3) (b) ICTRSt.

168 K. Ambos, ‘Article 25’ in Otto Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court, 3rd ed, (München/Oxford/Baden-Baden: C.H. Beck Hart Nomos 2016), 9791029, at 1010; A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002), at 802.

169 W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2010), at 437.

170 Judgment, Katanga (ICC-01/04–01/07), Trial Chamber, 8 March 2014, § 1618.

171 Judgment, Katanga (ICC-01/04–01/07), Trial Chamber, 8 March 2014, § 1619.

172 Confirmation of Charges, Mbarushimana (ICC-01/04–01/10) Pre-Trial Chamber, 16 December 2011, §§ 276, 283.

173 Confirmation of Charges, Mbarushimana (ICC-01/04–01/10) Pre-Trial Chamber, 16 December 2011, § 283. See also Decision transmitting additional legal and factual material (regulation 55(2) and 55(3) of the Regulations of the Court), Katanga (ICC-01/04–01/07), Trial Chamber, 22 May 2013, § 16.

174 N. Jain, ‘The Control Theory of Perpetration in International Criminal Law’, 12 Chinese Journal of International Law (2013) 159, at 162.

175 See Judgment, Tadić (IT-94–1-A), Appeals Chamber, 15 July 1999, §§ 186–90.

176 Judgment, Tadić (IT-94–1-A), Appeals Chamber, 15 July 1999, § 190; Decision on Motion Challenging Jurisdiction, Ojdanić, (IT-99–37) Appeals Chamber, 21 May 2003, .20; Judgment, Krnojelac (IT-097–25-A) Appeals Chamber, 17 September 2003, §§ 28–32, 73.

177 Judgment, Vasiljević (IT-98–32-T), Trial Chamber, 29 November 2002, § 67; Judgment, Krnolejac (IT-97–25-T) Trial Chamber, 15 March 2002, § 82.

178 Judgment, Krnojelac (IT-097–25-A) Appeals Chamber, 17 September 2003, § 31; Judgment, Tadić (IT-94–1-A), Appeals Chamber, 15 July 1999, § 227; Judgment, Blagojević and Jokić (IT-02–60-T), Trial Chamber, 17 January 2005, § 698; Judgment, Stakić (IT-97–24-A), Appeals Chamber, 22 March 2006, § 64; ICTY, Judgment, Brđanin (IT-99–36-A), Appeals Chamber, 3 April 2007, § 430.

179 Judgment, Blagojević and Jokić (IT-02–60-T), Trial Chamber, 17 January 2005, § 703; Judgment, Krnojelac (IT-097–25-A) Appeals Chamber, 17 September 2003, § 30.

180 Judgment, Krnojelac (IT-097–25-A) Appeals Chamber, 17 September 2003, § 32.

181 Decision on Form of Further Amended Indictment and Prosecution Application to Amend, Brđanin (IT-99–36-PT), Pre-Trial Chamber, 26 June 2001, § 30, Judgment, Blagojević and Jokić (IT-02–60-T), Trial Chamber, 17 January 2005, § 703; Judgment, Krnojelac (IT-097–25-A) Appeals Chamber, 17 September 2003, § 30.

182 Decision on the Confirmation of Charges, Lubanga Dyilo (ICC-01/04–01/06), Pre-Trial Chamber, 29 January 2007, §§ 328–30

183 Decision on the Confirmation of the Charges, Katanga and Ngujolo Chui (ICC-01/04–01/0) Trial Chamber, 30 September 2008, § 493.

184 See e.g. J. D. Ohlin, ‘Organizational Criminality, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014); J. D. Ohlin, ‘Joint Intentions to Commit International Crimes’, Vol. 11 No. 2, Cornell Law Faculty Publications Paper 169; S. Manacorda and C. Meloni, ‘Indirect Perpetration versus Joint Criminal Enterprise Concurring Approaches in the Practice of International Criminal Law, 9 Journal of International Criminal Justice (2011) 159; M. Cupido, ‘Pluralism in Theories of Liability: Joint Criminal Enterprise versus Joint Perpetration’, in E. van Sliedregt, & S, Vasilev (eds), Pluralism in International Criminal Law, (Oxford: Oxford University Press, 2014), 128–65; C. Meloni, ‘Fragmentation of the Notion of Co-Perpetration in International Criminal Law?’ in L. van den Herik and C. Stahn (eds), The Diversification and Fragmentation of International Criminal Law (Leiden: Martinus Nijhoff Publishers, 2012).

185 J. R. A. Okoth, The Crime of Conspiracy on International Criminal Law (The Hague: Asser Press, 2014), at 143.

186 J. R. A. Okoth, The Crime of Conspiracy on International Criminal Law (The Hague: Asser Press, 2014), at 143.

187 J. R. A. Okoth, The Crime of Conspiracy on International Criminal Law (The Hague: Asser Press, 2014), at 93.

188 J. D. Ohlin, ‘Organizational Criminality, in E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), at 107126.108. See J. D. Ohlin, ‘Joint Intentions to Commit International Crimes’, Vol. 11 No. 2, Cornell Law Faculty Publications Paper 169, at 714–15.

189 S. Manacorda and C. Meloni, ‘Indirect Perpetration Versus Joint Criminal Enterprise Concurring Approaches in the Practice of International Criminal Law, 9 Journal of International Criminal Justice (2011) 159, at 166.

190 M. Cupido, ‘Pluralism in Theories of Liability: Joint Criminal Enterprise versus Joint Perpetration’, in E. van Sliedregt, & S, Vasilev (eds), Pluralism in International Criminal Law, (Oxford: Oxford University Press, 2014), 128–65, at 128.

191 C. Meloni, ‘Fragmentation of the Notion of Co-Perpetration in International Criminal Law?’ in L. van den Herik and C. Stahn (ed.), The Diversification and Fragmentation of International Criminal Law (Leiden: Martinus Nijhoff Publishers, 2012) 481, at 501.

192 J. D. Ohlin, ‘Organizational Criminality’, in, E. van Sliedregt and S. Vasiliev (eds), Pluralism in International Criminal Law (Oxford: Oxford University Press, 2014), 114.

193 J. D. Ohlin, ‘Co-Perpetration: German Dogmatik or German Invasion’, in Stahn, C., (ed) The Law and Practice of the International Criminal Court, (Oxford: Oxford University Press, 2015), 517–38, at 527.

194 Decision on the Confirmation of Charges, Lubanga Dyilo (ICC-01/04–01/06), Pre-Trial Chamber, 29 January 2007, § 351.

195 J. D. Ohlin, ‘Joint Intentions to Commit International Crimes’, Vol. 11 No. 2, Cornell Law Faculty Publications Paper, 169, at 734.

196 B Goy, ‘Individual Criminal Responsibility before the International Criminal Court: A Comparison with the Ad hoc Tribunals’, (2012) 12 International Criminal Law Review 1, at 42.

197 J. D. Ohlin, ‘Joint Intentions to Commit International Crimes’, Vol. 11 No. 2, Cornell Law Faculty Publications Paper 169, at 724.

198 United Nations Office on Drugs and Crimes, Legislative Guides for the Implementation of the United Nations Conventional against Transnational Organized Crime and the Protocol Thereto, (United Nations, 2004) 51.

199 United Nations Office on Drugs and Crimes, Legislative Guides for the Implementation of the United Nations Conventional against Transnational Organized Crime and the Protocol Thereto, (United Nations, 2004) 5763.

200 United Nations Office on Drugs and Crimes, Legislative Guides for the Implementation of the United Nations Conventional against Transnational Organized Crime and the Protocol Thereto, (United Nations, 2004) 64.

201 A. Eser, ‘Individual Criminal Responsibility’ in A. Cassese, P. Gaeta and J. Jone (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol I, (Oxford: Oxford University Press, 2002), 767822, at 767, 795.

202 W. Schabas, War Crimes and Human Rights: Essays on the Death Penalty, Justice and Accountability (London: Cameron May Publishers, 2008) 507.

203 J. Stewart, Corporate War Crimes: Prosecuting the Pillage of Natural Resources, (Open Justice Initiative Publication 2012), 79.

204 A. Ramasastry and R. C. Thompson, Commerce, Crime and Conflict, Legal Remedies for Private Sector Liability for Grave Breaches of International Law: A Survey of sixteen Countries, Fafo (2006), available online at http://biicl.org/files/4364_536.pdf and M. Donaldson and R. Watters, ‘Corporate Culture’ as a Basis for the Criminal Liability of Corporations, United Nations Special Representative of the Secretary-General on Human Rights and Business, February 2008, available online at: http://198.170.85.29/Allens-Arthur-Robinson-Corporate-Culture-paper-for-Ruggie-Feb-2008.pdf.

205 Art. 34, Criminal Code of the Federal Democratic Republic of Ethiopia, Proclamation No.414/2004.

206 §24, Penal Code of Botswana.

207 §23, Penal Code of Kenya.

208 §25, Malawian Proceeds of Serious Crime and Terrorist Finance Act No. 11 of 2006.

209 §356, Penal Code of Namibia, Act No. 25 of 2004.

210 Art. 33, Penal Code of Rwanda, Organic Law Instituting the Penal Code, No. 01/2012/OL of 2012.

211 §332, South African Criminal Procedure Act of 1977.

212 §277, Zimbabwe Criminal Law (Codification and Reform) Act No. 23/2004 of 2004.

213 See for example J. Kyriakakis, ‘Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge’, 56 Netherlands International Law Review (2009) 333, at 337 or O. De Schutter, A. Ramasastry, M. B. Taylor, R. C. Thompson, Human Rights Due Diligence – The Role of States, International Corporate Accountability Roundtable (ICAR), the European Coalition for Corporate Justice (ECCJ), the Canadian Network on Corporate Accountability (CNCA), (2012), at 12.

214 O. De Schutter, A. Ramasastry, M. B. Taylor, R. C. Thompson, Human Rights Due Diligence – The Role of States, International Corporate Accountability Roundtable (ICAR), the European Coalition for Corporate Justice (ECCJ), the Canadian Network on Corporate Accountability (CNCA), (2012), at 12.

215 Art. 34, Criminal Code of the Federal Democratic Republic of Ethiopia, Proclamation No.414/2004.

216 Art. 34, Criminal Code of the Federal Democratic Republic of Ethiopia, Proclamation No.414/2004.

217 House of Lords, Tesco Supermarkets Ltd v. Nattrass (Tesco) [1972] AC 153.

218 J. Kyriakakis, ‘Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge’, 56 Netherlands International Law Review (2009) 333, at 337–8.

219 J. Kyriakakis, ‘Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge’, 56 Netherlands International Law Review (2009) 333, at 338.

220 M. Donaldson and R. Watters, ‘Corporate Culture’ as a Basis for the Criminal Liability of Corporations, United Nations Special Representative of the Secretary-General on Human Rights and Business, February 2008, at 4, available online at: http://198.170.85.29/Allens-Arthur-Robinson-Corporate-Culture-paper-for-Ruggie-Feb-2008.pdf.

221 M. Donaldson and R. Watters, ‘Corporate Culture’ as a Basis for the Criminal Liability of Corporations, United Nations Special Representative of the Secretary-General on Human Rights and Business, February 2008, at 10, available online at: http://198.170.85.29/Allens-Arthur-Robinson-Corporate-Culture-paper-for-Ruggie-Feb-2008.pdf, quoting J. Clough and C. Mulhern, The Prosecution of Corporations (Melbourne: Oxford University Press, 2002), at 38. See also, N. Cavanagh, ‘Corporate Criminal Liability: An Assessment of the Models of Fault’, 75 Journal of Criminal Law (2011) 414, at 434.

222 Part 2.5 Australian Criminal Code.

223 Division 12.2 Australian Criminal Code.

224 Division 12.3 Australian Criminal Code.

225 Division 12.3 (2) Australian Criminal Code.

226 See A. Reggio, ‘Aiding and Abetting in International Criminal Law: The Responsibility of Corporate Agents and Businessmen for “Trading with the Enemy” of Mankind’, 5 International Criminal Law Review (2005) 623, at 653.

227 A. Reggio, ‘Aiding and Abetting in International Criminal Law: The Responsibility of Corporate Agents and Businessmen for “Trading with the Enemy” of Mankind’, 5 International Criminal Law Review (2005) 623, at 654.

228 Art. 46B (2) AUSt.

229 Art. 46B (3) AUSt.

230 Division 12.3 (4) Australian Criminal Code.

231 Art. 46C (4) and (5), AUSt.

232 Division 12.3 (2) Australian Criminal Code.

233 See A. Clapham and S. Jerbi, ‘Categories of Corporate Complicity in Human Rights Abuses, Symposium: Holding Multinational Corporations Responsible under International Law’, 24 Hastings International & Comparative Law Review (2001), 339.

234 See A. Clapham and S. Jerbi, ‘Categories of Corporate Complicity in Human Rights Abuses, Symposium: Holding Multinational Corporations Responsible Under International Law’, 24 Hastings International & Comparative Law Review (2001), 339.

235 A. Reggio, ‘Aiding and Abetting in International Criminal Law: The Responsibility of Corporate Agents and Businessmen for “Trading with the Enemy” of Mankind’, 5 International Criminal Law Review (2005) 623, at 694.

236 International Commission of Jurist, ‘Corporate Complicity and Legal Accountability. Volume 2 Criminal Law and International Crimes, (2008), at 36.

237 A. Reggio, ‘Aiding and Abetting in International Criminal Law: The Responsibility of Corporate Agents and Businessmen for “Trading with the Enemy” of Mankind’, 5 International Criminal Law Review (2005) 623, at 671.

238 The element of specific direction requires the assistance to be specifically directed towards the crime. In such circumstances, it is necessary to establish a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators.

239 Judgment, Perišić (IT-02–81-A), Appeals Chamber, 28 February 2013, § 44.

240 S. Carsten, The Law and Practice of the International Criminal Court (Oxford: Oxford University Press, 2015), at 23.3.3.

241 S. Carsten, The Law and Practice of the International Criminal Court (Oxford: Oxford University Press, 2015), at 23.3.3.

242 N. Farrell, ‘Attributing Criminal Liability to Corporate Actors: Some Lessons from the International Tribunals’, 8 Journal of International Criminal Justice (2010) 873, at 884.

243 Court of Appeal of The Hague, Van Anraat, Case No. BA6734, Appeal Judgment of 09 May 2007, at 11.12.

244 Presbyterian Church of Sudan v. Talisman Energy, Inc., (Docket No. 07–0016-cv) US. Court of Appeals for the Second Circuit, 2 October 2009, available at: http://ccrjustice.org/files/07-0016-cv_opn.pdf.

245 Aziz v. Alcolac, (Docket No. 10–1908) US. Court of Appeals for the Fourth Circuit, 19 September 2011, available online at: www.ca4.uscourts.gov/opinions/Published/101908.P.pdf.

246 Presbyterian Church of Sudan v. Talisman Energy, Inc., (Docket No. 07–0016-cv) US. Court of Appeals for the Second Circuit, 2 October 2009, at 41, available online at: http://ccrjustice.org/files/07-0016-cv_opn.pdf.

247 N. Farrell, ‘Attributing Criminal Liability to Corporate Actors: Some Lessons from the International Tribunals’, 8 Journal of International Criminal Justice (2010) 873, at 885.

248 S. Finnin and N. Milaninia, ‘Putting Purpose in Context’, (2014), available online at: http://jamesgstewart.com/putting-purpose-in-context/

27 Article 46C Corporate Criminal Liability at the African Criminal Court

Joanna Kyriakakis
1. Introduction

The proposed international criminal section of the African Court of Justice and Human and Peoples’ Rights, or what will be referred to as the African Criminal Court (ACC),1 involves a number of progressive features. Among them is the Court’s proposed adjudicative authority over corporations. According to Article 46C of the ACC’s Statute (the Statute), annexed to the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Malabo Protocol),2 and entitled ‘Corporate Criminal Liability’, ‘the Court shall have jurisdiction over legal persons, with the exception of States.’

Most international criminal courts3 have to date had jurisdiction personae limited to natural persons only.4 What Article 46C will involve (should it come into operation) will therefore mean treading new ground. As a result, there are inevitably ambiguities surrounding how the provision will work. It may also elicit controversy, particularly given its potential to apply to corporations doing business in Africa but emanating from states that are not party to the ACC.5 None of this need surprise, nor deter, practitioners, however it creates new challenges the Court will need to resolve, all the while creating new possibilities.

The inclusion of Article 46C in the ACC is not entirely unexpected. Globally there is an increasing convergence towards corporate criminal liability in domestic systems. This change improves the legal and political landscape upon which Article 46C will operate. Fewer states recognized corporate criminal liability when a similar provision was rejected at the Rome Conference of the International Criminal Court (the ICC). Traditionally, there was a divide between common and civil law jurisdictions, with the latter less likely to recognize corporate criminal responsibility. However, this has narrowed significantly in recent years with the uptake of corporate criminal liability schemes across a number of civil law countries.6 In Africa, there are a number of a states that provide for corporate criminal responsibility.7 Nonetheless, differences in national models for corporate criminal liability remain and some civil law states continue to reject the concept of corporate criminal capacity entirely, considering it antithetical to the individual-ethical concept of guilt that underpins their criminal law.8 Further, the breadth of crimes over which the ACC will have jurisdiction straddles the traditionally discrete categories of international and transnational crimes.9 The trajectories of collective state efforts to address these two broad crime categories, and the way these efforts interplay with the question of corporate liability, have traditionally been distinct. These factors may tend to complicate matters of legitimacy and enforcement as they relate to Article 46C.

In light of these probable sources of tension, the purpose of this chapter is to undertake a close reading of Article 46C, with a view to elucidating the scope of the Court’s proposed jurisdiction over legal persons and the challenges the Court may face in exercising such jurisdiction. It seeks to highlight strengths, weaknesses and uncertainties given current drafting and the contemporary legal landscape. This includes considering the entities contemplated by Article 46C, the principles for attributing criminal liability to legal persons that it adopts, the breadth of corporate sanctions available, enforcement challenges that may arise, and the challenge of complementarity given the remaining differences in corporate criminal liability models in domestic legal systems. Throughout, the question of how the broader range of crimes over which the ACC will have jurisdiction might interplay with Article 46C is considered.

In the main, this chapter does not address the question of the desirability of corporate criminal liability at the ACC. Indeed, an implication of the African Union’s adoption of Article 46C is that the hurdle of desirability has been overcome in the African context. This also reflects what appears to be a relatively solid consensus among African civil society groups on the need for civil and criminal liability frameworks to address the impunity with which corporations continue to operate in many African jurisdictions.10 Instead, the analysis in this chapter takes as its starting point that the development is, in theory, a welcome one. In 2005, Wells and Elias argued that the ‘debate is perhaps no longer whether to have corporate liability but what form it should take.’11 To be sure, there is ample literature on the ‘why’ of corporate liability elsewhere.12 Instead, the focus here is upon the form of corporate criminal responsibility adopted by the Statute, in order to provide some guidance to stakeholders engaging with the ACC. However, before turning to Article 46C specifically, the first section of the chapter provides a snapshot of international legal efforts to address the role of legal persons involved in international and transnational crime to date. The purpose of Section 1 is to demonstrate not only the historical context within which Article 46C arises, but also how parallel legal developments have converged towards a legal environment increasingly receptive to an international criminal court with jurisdiction over corporations.

2. Towards an International Criminal Court with Competence over Corporations

The ACC is not the first time the idea of an international criminal court with competence over corporations has been seriously considered. From as early as the first UN Committee towards the establishment of a permanent international criminal court in 1951, members considered whether it should provide for corporate criminal liability given that corporate penal responsibility was known to some states.13 This interest was unsurprising given that just a few years earlier the role of German business in Nazi atrocities of World War II had been of keen interest to Allied states when planning and executing their post-war peace and justice programmes.14 The issue of extended court competence was revisited during meetings of the second UN Committee of 1953, with Australia arguing that the ‘criminal responsibility of corporations was not excluded either by doctrine or by jurisprudence.’15 The principal concern pressing against the proposal was the lack of penal responsibility for corporations in some states (the comparative law challenge), together with the wisdom of a conservative approach and the benefit to brevity of decision making by setting the issue of corporate responsibility aside.16 A similar comparative law challenge was again a key issue when the proposal was debated during the Rome Diplomatic Conference in 1998, particularly given the ICC’s intended complementarity to domestic justice systems.17 The concern at Rome was how the ICC would account for those states that do not provide for corporate criminal liability when determining the admissibility of a case against a corporate defendant involving such states, as well as how such states would enforce corporate criminal sanctions ordered by the ICC.18 Despite this, and other, challenges, a Working Group developed sophisticated draft articles on juridical persons during the Rome meetings.19 Due to a lack of time to resolve outstanding state concerns, the relevant articles were omitted.20 The final iteration of the draft ICC corporate liability provision is attached as Appendix A, to assist in comparative analysis.

There are other contexts, too, in which an international criminal court with competence over legal persons has been mooted. In 1981, an Ad Hoc Working Group of Experts on Southern Africa proposed an international penal tribunal for the suppression and punishment of the crime of apartheid with competence over legal entities.21 The Draft Statute for the tribunal was intended to implement the Apartheid Convention, which anticipated such an institution.22 The Apartheid Convention acknowledges (at Articles I and X) the capacity of organizations and institutions to commit the crime of apartheid, although it goes on to describe international criminal responsibility as that of the members of such organizations and institutions.23 The view of the Group of Experts was that the proposed tribunal competence over corporations derived from the stipulation within the Apartheid Convention that apartheid is a crime under international law, together with established norms of criminal responsibility. They opined that while international criminal law contemplates individual criminal responsibility, such norms allow for the ‘quasi-criminal responsibility’ of corporate entities for which ‘fines and punitive damages are appropriate remedies.’24 Notably, the expectation of an international penal tribunal to address apartheid was one of the reasons that a court in the nature of the ACC did not proceed many years earlier, when something of its ilk was being considered in the 1970s.25

Likewise, in 1991, a group of experts submitted a draft statute for an international criminal court to the Eighth United Nations Congress on Crime Prevention and the Treatment of Offenders with similar extended jurisdiction.26 Most recently, the Appeals Panel of the Special Tribunal for Lebanon (STL) found that legal persons (in those cases, TV and print news corporations) come within the Tribunal’s jurisdiction for crimes against the administration of the Tribunal.27 Importantly, this is in the nature of contempt jurisdiction, which is inherent in the authority of a criminal tribunal, and does not correspond to the same type of material jurisdiction as we see in the ACC. Nonetheless, and as Bernaz notes, given the effective silence (or ambivalence) discernible within international criminal law sources on the existence of corporate criminal responsibility under international law and given that the STL corporate contempt decisions are the first time an international tribunal has addressed the possibility of holding a corporation criminally liable, they are ‘of utmost symbolic importance, even if [their] scope is rather narrow.’28 This is not least given the kind of argumentation undertaken by the Appeals Panel to justify its finding of capacity over corporations, which included considering the status of corporate criminal liability as a general principle of international law and the need for competence over corporations in order to render the Tribunal’s contempt powers effective.

There have been repeated calls since the Rome Conference that the idea of ICC competence over corporations be revisited. The reasons animating such calls vary but, much like the development of corporate criminal liability domestically, the drivers are often pragmatic rather than doctrinal, with an emphasis on the most efficacious ways of dealing with the reality of corporate crime.29 Today, this pragmatism can focus upon gaps in governance, such as the dynamics of globalization that render transnational corporations peculiarly impervious to human rights accountability, particularly for harms related to business activities in the global South and in conflict zones. There is ample reporting on the role of corporations in a number of contemporary conflicts in Africa, which have in turn been linked to the need for international criminal courts to be directed towards the complicity of such (predominantly Northern) actors in otherwise apparently localized conflicts.30 Various panels of experts established by the UN Security Council in relation to resource related conflicts such as those in Angola, Sierra Leone, Liberia and the Democratic Republic of the Congo have demonstrated the diverse ways in which transnational business practices have fuelled those conflicts while facilitating a flow of economic benefit to foreign actors, with effective impunity.31 Involvement ranges from exploitation of natural resources controlled by rebel groups, smuggling natural resources, breaching UN arms embargoes, and purchasing conflict resources as part of consumer good supply chains.32 Long before these modern examples, there are the gross violations that date back to King Leopold’s search for resources in the Congo, famously catalogued as the first major atrocity crimes linked to the plunder of that state.33 The impunity dynamics include accountability challenges associated with complex corporate structures that transcend national borders and the economic imperatives that undermine the governance capacities of individual states competing for foreign direct investment.34 In cases involving atrocity, there are in fact overlapping sources of impunity, as there are also those that inhere to international crimes.35 These dynamics negatively impact some parts of the world more than others and may help explain why a regional response has been more forthcoming than an international one.

The influence of critical scholarship attuned to the power relations underpinning international law and focused upon the lived experiences of peoples of the Third World, such as Third World Approaches to International Law (TWAIL), has also been felt. This literature challenges atrocity law to acknowledge the ways in which ‘violence has been displaced in part from the first to the Third World’ through an international economic order that favours the North.36 While there are limits to how a criminal justice response can do this, TWAIL scholars suggest that one means is by broadening systems of accountability to inquire into the role of foreign economic actors in promoting and exacerbating local conflicts.37 Similar ideas are becoming mainstreamed into international criminal law discourse. As international criminal lawyers adopt insights from political science on the ways in which many modern conflicts are rooted in competition over resources and in economic under-development, calls for a new generation of international criminal law addressing economic actors and economic crimes are being made.38 From this perspective, the degree to which international criminal practice has ignored property crimes, such as pillaging, and the role of corporate accomplices, is problematic.39 It is thus unsurprising that it is at this moment and in the context of a regional court that will deal with crimes afflicting Africa that the idea of extended court jurisdiction to include corporate defendants (and a wider range of crimes) has been revived.

The trajectory of international action in respect of transnational and economic crimes has been, however, different to that related to atrocity crimes. Rather than move towards international adjudicative mechanisms, states have addressed non-atrocity crimes with cross border qualities principally through agreements that seek to progress, harmonize and coordinate state criminal justice responses within their own territories. These efforts have also not ignored the liability of entities. Particularly since the 1990’s, a range of regional and international instruments addressing crimes as diverse as bribery,40 terrorism,41 corruption,42 the environment,43 human trafficking,44 and the sexual exploitation of children,45 among others, (transnational crime agreements) address the liability of legal persons.46 While specific models differ, the general approach is to require states to introduce laws domestically, and in some instances with extraterritorial effect, outlawing certain behaviours when undertaken by natural or legal persons. To address differences in legal cultures, these instruments give scope to states to use non-criminal measures, such as administrative sanctions, in respect of legal persons, provided sanctions are effective, proportionate and dissuasive so as to reflect the seriousness of the offences in question.

Transnational crime agreements have played a crucial role in the growing convergence towards corporate criminal liability across domestic legal systems. Prior to the 1990s, many states within the civil law tradition opposed the concept of corporate criminal capacity. The picture has since changed dramatically, with even formerly ‘restrictive’ systems introducing laws that enable corporate prosecutions.47 For example, as at 2013, only Greece, Germany and Latvia remain without some kind of corporate criminal liability in Europe.48 In Germany, there exists a system of administrative penalties, elements of which have been compared to corporate criminal liability49 and there is an open debate as to whether a true criminal sanction against companies is needed.50 This phenomenon of convergence has altered the legal and political landscape since the Rome debates, which is now more amendable to a development like Article 46C than ever before. It does not, however, eradicate the challenges of a diverse comparative law landscape for an international court cutting across such diversity. There remain differences across national corporate criminal liability models, which can include the entities and crimes contemplated by domestic schemes, the principles for attributing the physical and mental elements of crimes to a legal entity, and the sanctions available. How this plurality may interact with Article 46C is considered further in Sections 3 and 4.

There is a genuine question as to whether the historically distinct approaches to the criminalization of international and transnational crimes respectively (where one tends towards international adjudicative mechanisms and the other towards harmonized state responses) is grounded in qualitative differences between the wrongs in question or whether it is a symptom of historical-political realities. In terms of corporate liability, it is likely that different types of crimes may implicate different kinds of organizational structures and behaviours, and thus invite different criminal justice responses, though such differences are not necessarily split across the two broader crime categories. Further, it is not self-evident that it is only in respect of atrocity crimes that the capacity and willingness of the territorial state to act may be compromised and the international community share an interest in the direct enforcement of repressive measures. This seems to be reflected in points of interplay between the two legal movements that belie a neat divide between appropriate responses.

For example, in 1989, when movement towards a permanent international criminal court had stalled for decades, it was the efforts of Trinidad and Tobago at the General Assembly regarding the possibility of an international criminal court with jurisdiction over drug trafficking offences that revived the initiative.51 At the Rome Conference years later, Thailand indicated that the question of ICC competence over drug offences would influence its position on the question of the liabilities of organizations.52 The 1991 draft statute for a permanent international criminal court, noted earlier, envisaged a court dealing with over 22 categories of crimes spanning both international and transnational crime categories, on the basis that these are crimes over which states have an inability ‘unilaterally to control and suppress’.53 In its 2005 Final Report, the Truth and Reconciliation Commission of Liberia recommended an ‘Extraordinary Criminal Court for Liberia’ with jurisdiction over legal entities and over economic crimes in light of the crucial role of economic actors and economic activities in the Liberian armed conflict.54 The Commission defined economic crimes to include contributions by business entities to human rights and humanitarian abuses for profit, as well as economic crimes such as money laundering, bribery, tax evasion, environmental harms, and illegal natural resource extraction, to name a few.55

Demonstrating cross-pollination in the opposite direction is the recent ‘Crimes against Humanity Initiative’ where legal experts produced a draft convention on the prevention and punishment of crimes against humanity hoped to encourage state action.56 The text proposes that states provide for the liability of legal persons within domestic law but allows scope as to the form of corporate liability in terms modelled on the transnational crime agreements.57 The matter has now been taken up by the International Law Commission, which is considering the issue of the criminal responsibility of legal persons in any convention directed towards improving state performance on crimes against humanity.58 In general it can be said that international criminal justice is moving towards a de-centralized approach, where complementarity is intended to activate and complement domestic efforts.

The combinations of these discrete but interconnected threads of legal developments demonstrate how routinely the liability of legal persons has arisen as a matter of importance in international dialogues related to serious crimes in recent years. Furthermore, they demonstrate the growing convergence and cross-pollination of efforts directed at international and transnational crimes. Article 46C, as well as the wider substantive jurisdiction of the ACC, does not appear unannounced. An international criminal court with jurisdiction over legal persons may well be an idea whose time has come.59 The challenge of an overburdened institution does, however, loom large. While timely, can the ACC manage the breadth of crimes and of actors with which it will be tasked? A preliminary response to this question is that the Court will need to develop policies to guide and justify situation and case selections. A similar challenge is faced by the ICC that, while tasked with core international crimes by natural persons only, must also practice radical selectivity in terms of what is pursued.60 The challenge to be faced by the ACC may well be different in scale, but it will not be unique in kind. The benefits of corporate prosecutions, including in financial terms such as the potential for meaningful reparations, may well outweigh the costs of the added burden to the Court.

3. Article 46C: Corporate Criminal Liability at the ACC

With this context in mind, this section turns to the substance of Article 46C, discussing the legal entities over which the ACC would enjoy jurisdiction, the principles of attribution adopted, sanctions that may be applied against legal persons, and how complementarity might operate.

The general part of criminal statutes that provide for the liability of legal persons serve to translate substantive crimes and modes of liability provisions, generally defined in terms reflective of the human person, into terms enabling attribution of the wrong to the legal person. Serious crimes and the modes by which they can be committed generally involve a combination of physical actions and subjective mental states such as intent, recklessness or knowledge. The principal function of Article 46C is to set out how those kinds of human qualities can be attributed to legal persons; otherwise referred to as the principles of attribution. It states:

Article 46C

Corporate Criminal Liability

  1. 1. For the purpose of this Statute, the Court shall have jurisdiction over legal persons, with the exception of States.

  2. 2. Corporate intention to commit an offence may be established by proof that it was the policy of the corporation to do the act which constituted the offence.

  3. 3. A policy may be attributed to a corporation where it provides the most reasonable explanation of the conduct of that corporation.

  4. 4. Corporate knowledge of the commission of an offence may be established by proof that the actual or constructive knowledge of the relevant information was possessed within the corporation.

  5. 5. Knowledge may be possessed within a corporation even though the relevant information is divided between corporate personnel.

  6. 6. The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.

A. The Entities and Crimes Contemplated

A first question that arises is which entities are contemplated by Article 46C. Article 46C (1) provides that ‘the Court shall have jurisdiction over legal persons, with the exception of States’. In addition, Article 1 states that the term ‘person’ as it appears in the Statute ‘means a natural or legal person’. The term ‘legal person’ is not defined. Despite this broad language, it is argued below that Article 46C grants the ACC jurisdiction over a limited range of legal entities, namely those incorporated under domestic law. However, no further limitation is evident on a plain reading of the text.

Generally speaking, the term legal person is understood to denote organizations with some formal legal status, in terms of enjoying some of the rights and responsibilities of legal personality.61 A dominant form of legal person is the corporation; limited liability companies given a legal status distinct to shareholders through incorporation. However, there are other entities that may also have distinct legal personality under national laws including unincorporated associations, trusts, trade unions, sporting clubs, partnerships and non-governmental or religious organizations. The legal status of particular entities varies from state to state.62 From the international perspective, legal persons can also denote not only states but also some international organizations and belligerent groups.63

The way the issue of entities was addressed in the ICC draft articles was to define the preferred term ‘juridical persons’ narrowly as ‘a corporation whose concrete, real or dominant objective is seeking private profit or benefit, and not a State or other public body in the exercise of State authority, a public international body or an organization registered, and acting under the national law of the State as a non-profit organization.’64 By way of contrast, transnational crime agreements tend to leave terms such as legal person or legal entity un-defined. The difference in these two approaches might be explained on a few grounds. First, there is the state interest in controlling an international court’s jurisdiction, which would otherwise be left to judicial interpretation. Clapham notes that a crucial concern at Rome was to ensure states would be excluded, both collectively, individually and in their composite parts, as well as the concern to protect the humanitarian efforts of non-profit organizations from ‘unscrupulous States’.65 Second, the nature of the crimes may also play a role. The transnational crime agreements that address the liability of legal persons deal with crimes such as bribery, corruption, the transport of hazardous waste, terrorism, and organized crime. The goals of criminalization in these areas may be frustrated if a narrow definition were adopted, given the variety of entities that can be vehicles for such crimes.

Turning to the ACC, apart from sub-section (1), the title and remaining provisions of Article 46C refer repeatedly to the corporation (‘corporation’, ‘corporate intention’, ‘corporate knowledge’). This suggests that the concept of legal person in the Statute is, in fact, limited to incorporated entities; artificial entities that are granted a legal existence separate from that of the individual members through some domestic process of incorporation.66 The question of incorporation would be a matter of fact based upon the national laws where incorporation is said to have occurred. There are implications that flow from this interpretation. First, if correct, this would preclude ACC jurisdiction over belligerent groups or criminal organizations per se, such as terrorist groups, as it is unlikely they would be registered under any national law. However, as Clapham has argued in the ICC context, it is likely such entities would operate through registered legal persons and in any event, it is not clear how one could indict organizations that do not exist in law.67 Second, it might be argued that to ‘speak of corporations … would limit the scope to incorporated organizations in the economic field.’68 However, in many countries the term ‘corporate’ is not necessarily so limited. For example, in Australia, ‘incorporation’ includes incorporated associations, trade unions, and building societies.69 Without qualifying terms related to the purposes of the entity, it is submitted that a narrow interpretation limited to incorporated businesses, is unduly limiting.

There is also the question as to whether the African Criminal Court will have competence over state owned and controlled corporations. This is a considerable issue given that in many countries, government owned corporations play a crucial role in various sectors, such as utilities, infrastructure, natural resources, postal services, telecommunications, transport, and financial services. Furthermore, there is today a significant degree of foreign investment by state owned transnational corporations.70 The ACC Statute expressly excludes states from the jurisdiction of the Court but it is silent as to the status of public entities.

From a comparative perspective, the question of whether public entities are responsible within domestic corporate criminal liability schemes differs across national legal systems. In some states, governments, their organs and agencies may enjoy a limited degree of immunity from prosecution, which may extend to non-state actors that are ‘highly integrated into national or international political processes’.71 Engelhart notes that, comparatively speaking, in the main a mixed approach to this issue is adopted, meaning that public entities can be held criminally responsible only in so much as they are not exercising state authority72 (or ‘functions of constitutional relevance’ as is the determinant in some states).73 In other words, they are treated comparably to other legal persons where they are acting in a comparably private capacity, such as participating in the marketplace. This offers one possible interpretation of Article 46C, that the Court is limited to corporations engaging in commercial activity. However, this approach involves reading into the Statute a limitation that is not present on a plain reading of the text. On its plain terms, Art 46C grants the ACC jurisdiction over legal entities incorporated in domestic law whether they are public or private in nature and irrespective of the degree of state control over the corporation’s activities. This conclusion is reached on a few grounds.

First, and by way of direct contrast to the draft ICC provision on legal persons, Article 46C excludes only states. States are, as a general rule, treated as legally distinct from corporations, on the basis that international law recognizes the doctrine of corporate separation with the exception of lifting the veil in cases of fraud and evasion.74

Second, it is true that in transnational corporate litigation contexts, there are a number of distinct, but related, legal doctrines that serve to limit either the jurisdiction or the willingness of foreign courts to adjudicating matters that implicate the official actions of foreign states. These doctrines can have implications for cases involving state majority-owned corporations or against corporations concerning abuses committed by government partners on joint venture developments.75 One of these is the doctrine of sovereign immunity, which provides a jurisdictional immunity to sovereigns deriving from international law, including conduct undertaken through majority-owned separate legal entities, but with the exception of activity characterized as commercial in kind.76 The second is foreign court deference to acts of state, where foreign courts abstain from hearing claims relating to a foreign sovereign’s official acts within its own territory. This deference is animated by domestic concerns as to comity, separation of powers, and foreign relations.77

However, neither of these doctrines should be taken to limit the jurisdiction of the ACC. Taking sovereign immunity, in the context of international courts, states can agree to relinquish their immunities through ratification.78 The ACC Statute contemplates immunities only for heads of state and senior state officials during terms of office (Art 46Abis), which by their nature seem to preclude application to corporations. If this is incorrect and Article 46Abis immunities could feasibly apply to corporate entities, Article 46C should not be interpreted in a way that expands immunities in the case of corporate defendants beyond those envisaged for natural persons. What is open to adjudication when responsibility is atomized to the individual level should not become protected when undertaken through the guise of incorporation. Act of state doctrines can also be set aside as they do not have purchase in the context of an international court given they are animated by concerns peculiar to the reach of foreign domestic courts. Furthermore, even in such contexts, common law courts have found the act of state doctrine is less likely to apply when a state is accused of behaviour that is widely condemned under international law (such as those the subject of ACC jurisdiction) on the basis that such conduct cannot be characterized as official state acts.79

Finally, international rules of state responsibility for internationally wrongful acts (with the exception of what is taken to constitute the state itself) set out in the International Law Commission’s 2001 Articles on Responsibilities of States for Internationally Wrongful Acts,80 do not preclude the concurrent criminal responsibility that might also exist at the level of the individual (or the corporate person), the function of each site of responsibility being distinct.81 In short, Article 46C can be said to grant the ACC jurisdiction over legal entities incorporated in domestic law whether they are public or private in nature and irrespective of the degree of state control over the corporation’s activities.

Before moving to the model of attribution set out under Article 46C, also important is the range of crimes that the Statute contemplates can be attributed to a corporation under Article 46C. In short, the absence of an exclusion clause means that there is no limit as to the crimes within the ACC Statute that will apply to corporations. This approach is common in states that fully embrace corporate criminal capacity; to provide a uniform provision on corporate criminal responsibility applicable to all crimes within their penal codes, notwithstanding the diversity of conduct such crimes engage.82 It reflects the progressive view that corporations are, in theory, capable of committing any wrong, rather than precluding mens rea offences or limiting liability to crimes ‘typically associated with the economic, environmental, or social impact of the modern (multinational) corporation’.83 This is true even of crimes of specific intent, such as genocide, with historical examples that demonstrate the potential for corporations to knowingly participate in genocidal programmes. For example, in the 1946 Trial of Bruno Tesch and Two Others before the British Military Court, two co-accused were convicted and executed for their business of supplying the poison gas, Zyklon B, to the SS for use in concentration camps with knowledge that the gas was being used to exterminate human beings.84 Having said this, the ACC may identify certain ACC crimes that cannot be committed by corporations and in particular the leadership clause of the crime of aggression may render corporate prosecutions incongruous.85

B. Attribution Principles: How the Corporation Acts and Attracts Blame

As mentioned, attribution principles serve to translate how the elements of substantive crimes and of particular modes of participation in crimes can be attributed to a legal person. Such principles are necessary given that corporations can only act through human beings and that primary criminal law principles are generally defined in terms reflective of a human actor. To understand the attribution model adopted in the ACC Statute, it is useful to first review the main models that currently exist.

1. Models of Attribution

Generally speaking, models for the attribution of criminal liability to legal persons are either ‘derivative’ or ‘organizational’. Derivative models base the liability of the entity entirely upon the liability of a specific individual or individuals, rather than identifying the fault located within the organization itself. Vicarious liability is an example of derivative liability, where the legal person is automatically criminally responsible for the wrongful conduct of any employee, officer or agent, if that conduct was committed within the scope of their employment.86 Scope of employment is not precluded due to the act being criminal,87 though some states do require the act to be at least in part intended to benefit the entity.88 In other words, vicarious liability involves the determination that a specific individual or individuals committed the crime, liability for which is then transposed to the sufficiently related entity.

Vicarious liability has the benefit of relative simplicity and is often employed to render legislation enforceable where it otherwise would tend to fail if personal liability were required.89 However, it has been criticized for its over-inclusivity, particularly when applied beyond strict liability and regulatory crimes, on the basis that it does not necessarily reflect any fault on the part of the organization, which may well have taken steps to avoid wrongdoing by corporate officers.90 An effective means of avoiding corporate harms and encouraging best practice is through recognizing due diligence in corporate responsibility schemes. Due diligence is, in essence, the opposite of negligence. It allows an organization to avoid responsibility by showing that it took all reasonable steps to ensure compliance with the relevant law. This might be through adequate corporate management, control, and supervision, or through adequate systems for conveying relevant information to relevant persons. As corporate fault flows automatically from the relationship of the entity to the offending individual in vicarious liability models, there is no capacity for the corporation to point to organizational efforts to avoid such behaviours as a means of avoiding liability. This may undermine the normative messaging of a verdict of corporate fault and can de-incentivize due diligence efforts, as they may have little bearing on responsibility.91 The United States, which adopts the vicarious liability model of corporate criminal liability even for serious crimes, mitigates the problem of over-inclusivity through prosecutorial discretion and detailed sentencing guidelines that bring into focus compliance efforts on the part of the organization.92

Another form of derivative liability is the identification model. A restricted form of vicarious liability, this approach likewise links the liability of the organization to a specific individual’s wrongful conduct, however only persons of sufficient standing within the organization are considered to represent it and to thus be capable of fixing it with criminal responsibility. While precise national approaches vary, this model of corporate criminal responsibility is the most commonly adopted in respect of mens rea crimes.93 Similarly, while many transnational crime agreements requiring corporate liability do not suggest a specific method of attribution, those that do tend towards the identification model. For example, the International Convention for the Suppression of the Financing of Terrorism (1999) provides that state parties ‘shall take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity’, committed Convention offences.94 Likewise, a number of European instruments adopt a model where corporate liability emerges via offences by persons with a leading position within the legal person, or through offences made possible by such persons’ failure to supervise or control others.95 This latterly feature, basing corporate liability on a lack of adequate supervision or control by persons in leading positions in the company, has been described as a form of ‘expanded identification’ that incorporates an element of organizational due diligence.96 The draft ICC articles adopted a particularly restrictive ‘identification’ approach, requiring that the individual offender not only be ‘in a position of control’ of the juridical entity, but also acting on behalf of the legal person and with its explicit consent.97

A difficulty with the identification approach is determining the point at which an individual can be said to constitute the ‘directing mind and will’ of the company. States take different approaches to the issue. Further, it can encourage organizations to be structured so as to insulate senior management, hence ‘the company’, from liability ‘by delegating the management of criminogenic activities to lower level managers’.98 It has also been widely critiqued as inadequate in the context of large complex corporate structures where decision making and action is diffuse. As a result, it fails to secure convictions in such circumstances, even where corporate fault seems to be strongly suggested.99 It also suffers the same paradoxical problems of both over-inclusivity and under-inclusivity that plague any vicarious liability model. Over-inclusivity is described above. Under-inclusivity flows from the fact that the entity’s liability still depends upon the wrongdoing of a single individual.100 Notably, the impetus for many modern corporate criminal liability schemes is dealing with the problem of being unable to identify physical persons responsible for an offence.101

Modern corporate criminal liability statutes now adopt variants of the conceptually distinct ‘organizational’ approach to corporate criminal responsibility. This approach has emerged in direct response to the problems associated with derivative models of attribution and to reflect the growing influence of realist schools of thought regarding the ontology of corporate behaviour. Such schools posit that the fault of an organization is distinct from the acts of any particular individuals therein and is instead something that ‘inheres in the organization itself’.102 In such a model, the fault of the corporation does not lie in the decisions of a single organ or individual within the corporation, but within the ‘policies, standing orders, regulations and institutionalized practices of corporations … [that are] … authoritative, not because any individual devised them, but because they have emerged from the decision making process recognized as authoritative within the corporation’.103 The organizational model has yet to be subject to significant criticisms apart from its possible conceptual complexity, albeit that this may be due to being, as yet, largely untested.104

2. Article 46C: An Organizational Model

With this overview in mind, the approach adopted in the ACC Statute can be better understood. Before examining Article 46C in detail, a few preliminary comments. Article 46C appears to be derived from, or at least influenced by, an approach developed by Professor Eric Colvin in a law article from 1995, as the drafting is strikingly similar.105 As a result, reference is made to that 1995 article to aid interpretation of Article 46C. Colvin’s recommendations were developed after a critical review of the Australian federal corporate criminal liability laws,106 which are often held up as a well-devised and progressive example of the organizational approach. Colvin’s proposal does not correspond to any specific state’s model. It is thus unique and also elegantly simple, but there is some uncertainty as to its scope. There is no reason why the ACC model of corporate criminal liability needn’t be sui generis. It might necessarily be so given the uniqueness of the project. Certainly, the proposed ICC model was peculiar to it. Simplicity also has its advantages as it may both maximize scope for the Court to develop jurisprudence best suited to the cases it confronts and to accommodate domestic variants operating concurrently. On the other hand, the less specificity of the provision, the more it is open to the criticism of unpredictability. Lack of specificity and the resulting unpredictability of application are of greater concern in the criminal law context. The reason is the added significance of due process rights for criminal defendants flowing from the unique stigmatic implications of a finding of criminal guilt and the nature of criminal punishment, all of which is reflected in the fundamental criminal law principle nullum crimen sine lege (no crime without law). It is also noteworthy that Colvin’s drafting was not adopted in its entirety in the original draft of Article 46C and was also modified, presumably following consultations and negotiations over the earlier draft. The result is that Article 46C may no longer fully reflect the rationales that justified the drafting recommended in the first instance.

Article 46C adopts an organizational model for corporate responsibility. This is because it does not rely upon the attribution of the conduct and state of mind of specific individuals to the corporation but rather it situates corporate culpability within the corporate policies and corporate knowledge that enabled the offence. It does so by specifying how the distinct mental states of intent and knowledge can be attributed to the legal person without deriving those from the mindset or knowledge of specific individuals within the company. Instead, such fault lies within the decision-making processes of the entity itself.

Beginning with the attribution of intent; paragraph (2) provides that the corporation is taken to have intended an offence where ‘it was the policy of the corporation to do the act which constitutes the offence’. A first question is what is meant by policy and in particular what kind of evidence the Court would be entitled to consider in determining such policies. On its own, some may interpret paragraph 2 as limiting the evidence to which the Court can have recourse in determining intent to the corporation’s formal policies. If this were the case it would be problematic, as formal corporate policies may denote one position while corporate attitudes, unwritten rules, or previous practice and courses of conduct, de facto authorize something quite different. To protect against this kind of criminogenic risk, for example, Australian federal corporate criminal liability provisions define ‘corporate culture’ as ‘an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place’.107 Limiting corporate intent to formal policies is insufficient.

Given its basis in the Colvin model, paragraph (3) of Article 46C is arguably intended to extend what can be considered by the ACC in determining a corporation’s policy to include a wider range of evidence strongly suggestive of the company’s internal culture. As Colvin describes it, ‘intent is the rationale that presents the best explanation of the corporation’s policies, rules, and practices considered as a whole.’108 This is expressed in paragraph (3) as the power of the Court to attribute a policy to a corporation ‘where it provides the most reasonable explanation of the conduct of that corporation.’ It is intended to convey that a Court is entitled to infer that corporate members understood something to be ‘an implied directive’, and hence policy, of the corporation, where ‘organizational practices and failures were so bad that they made more sense if viewed as embodying a determination to avoid the regulations, rather than as a product of inadvertent negligence or even recklessness.’109 The challenge is that this reading is not self-evident from the drafting of paragraph (3). A risk is that it might instead be read to reduce the burden of proof regarding corporate intent to the balance of probabilities, which is not the intent behind the original design.

It is also here worth noting a difference between Article 46C and Colvin’s drafting in respect of attributing intent, which may or may not be significant. Article 46C requires a finding that the corporate policy was ‘to do the act which constituted the offence.’ By contrast, the Colvin model speaks to a policy of non-compliance with the relevant provision. This change of language may make proof of corporate intent more difficult, particularly if the term ‘act’ is interpreted narrowly to refer to the specific actions of a specific individual perpetrator, rather than to a broader lack of compliance directive. However, reading the provision this restrictively would tend to re-train corporate liability upon that of an individual which is contrary to the underlying philosophy of the organizational approach, and so it is likely the changes in language were not intended to be so limiting. Again, on this issue and by way of contrast, the Australian corporate crime provisions allow a finding of responsibility where the crime was enabled through a corporation’s culture that directed, encouraged, tolerated or led to non-compliance or, alternatively, where the corporation failed to maintain a culture of compliance.110 A narrow reading of ‘policy to do the act’ may lead to under-criminalization where an organization cannot be shown to have actively sought the specific underlying act constituting the wrong but permitted, acquiesced, or tolerated, precisely that kind of wrongdoing. When interpreting these provisions, the ACC should therefore take care not to inadvertently encourage official but unrepresentative policies to be used to shield responsibility, nor to exclude egregiously poor compliance environments as sufficient to satisfy corporate intent.

In summary, the ACC might consider taking a more liberal rather than formal approach to policy, as paragraph 3 appears to allow, by going beyond corporate written policies, in order to better account for the informal day to day policies of the corporation as manifested in the conduct of its officers. Furthermore, it should not adopt an overly literal reading of ‘policy to do the act’ and thus fail to capture corporate environments where non-compliance with the relevant norm is tolerated and condoned, if not explicitly directed. To do otherwise might create loopholes that companies could strategically exploit in order to avoid criminal responsibility.

Corporate knowledge is then addressed in paragraphs (4) and (5). They provide that where knowledge is an element of an offence, such knowledge can be attributed to the corporation ‘by proof that the actual or constructive knowledge of the relevant information was possessed within the corporation.’ This in turn can be satisfied through the aggregation of such knowledge across corporate personnel. Aggregation of knowledge can be a legitimate means of locating fault within an organizational model of culpability, as it links to the broader theme of internal structures and systems that will ensure compliance. Aggregated knowledge models operate on the basis that an organization may ‘know’ a fact or situation even where no single individual embodies completely such knowledge and that organizations have the capacity to establish information sharing systems that will ensure compliance with law. In other words, the principle that the knowledge of personnel will be aggregated and attributed to the corporation can encourage best information management practices that are valuable in ensuring good corporate citizenship. As Kelly has argued, claims that a company was too big to have shared in knowledge held by individuals diffusely across the corporate structure so as to undercut any entity responsibility are disingenuous ‘in the modern age, when technology can ensure that large multinational corporations know very well what’s going on within their structures.’111 Like concepts of corporate culture, aggregated knowledge is another example of how due diligence principles are often embedded in organizational models.

Having said this, the way the principle of aggregating knowledge is adopted in Article 46C might be criticized on a few bases. It is worth here reflecting on the original drafting proposed by Colvin in respect of the attribution of knowledge. It was as follows:

  1. 3. (a) If knowledge is a required fault element of an offense, that fault element may be established by proof that the relevant knowledge was possessed by a corporation.

    1. (b) Knowledge may be attributed to a corporation where it was possessed within the corporation and the culture of the corporation caused or encouraged knowing noncompliance with the relevant provision.112

Colvin explains the rationale behind this drafting as follows:

What justifies invoking the idea of collective knowledge is that not only is the knowledge possessed but also the corporate culture positively favored the commission of the offense with that knowledge.113

This foundational rationale seems to be undermined by the current drafting of Article 46C which dilutes corporate culpability in two ways. First, the Statute allows an aggregation of not only actual but also constructive knowledge. The choice to widen the kind of knowledge that can be attributed to a corporation might be defended in that it tends to further incentivize good corporate management by making the corporation responsible for failures among personnel to inquire where they ought. Moreover, it may reflect an expectation that corporate liability is more likely to be in the form of complicity, for which constructive knowledge is sufficient under customary international law.114 Notwithstanding, it sets up a uniformly different standard for corporate, relative to individual, fault in terms of the degree of knowledge needed generally to satisfy guilt. The level of knowledge required for international criminal law offences and modes of liability in most cases is actual knowledge, with a few instances where knowledge would be expected. A uniform lower standard of knowledge in the case of corporate responsibility relative to individual responsibility, rather than one determined by the substantive crime and its mode of commission, may undermine the normative force of a finding of corporate criminal responsibility.

Second, Article 46C removes the requirement that the corporation must also be shown to have caused or encouraged non-compliance, in light of such knowledge, although this might be remedied by the requirements for attributing corporate intent. In general, there is a risk that paragraphs (4) and (5) may criminalize a company that is not aware of wrongdoing at a level relevant to avoiding the kind of harm suffered, irrespective of reasonable oversight systems. Risks of over-criminalization could be mitigated through the Court separately considering due diligence issues at the sentencing stage. This might be permitted by the concept of ‘circumstances of the convicted person’ under Article 43A, although the explicit power to consider this issue may be preferable. Furthermore, the exercise of prosecutorial discretion could weed out inappropriately tenuous corporate prosecutions.

It is also worth noting that Article 46C is silent as to the principles by which the physical elements and the specific fault element of recklessness can be attributed to the corporation. In respect of recklessness, the omission of principles for attributing this mental state to a corporation might reflect the view that international crimes require actual or deemed intent and not recklessness.115 If this is true across the substantive crimes and modes of liability contemplated under the ACC Statute, the mental elements relevant to international crimes are fully addressed in Article 46C.

The situation in terms of attributing physical elements is a bit more complex. In general, organizational models tend to articulate how a physical offender must be related to the defendant corporation in order for their conduct to bear on the determination of the criminal responsibility of the corporation itself.116 In the Australian model, for example, the physical element is attributed to the corporation where it was committed by an employee, agent or officer acting in the actual or apparent scope of their employment.117 In other words, a vicarious liability model is adopted for the physical element only. Having said this, a common exception is where the liability of the legal person is established through a failure to take reasonable care (negligence crimes) that is causatively linked to the harm, in which case the lack of care is what constitutes the corporation’s ‘act’.118 Swiss and Finnish models go further and allow for corporate responsibility where anonymous guilt constitutes the corporate wrong. This is where the way in which the corporation is organized precludes identification of the offender.119 Colvin has argued that attribution of the physical element of an offence is not required in his model on the basis that the fact that the corporation’s criminogenic culture has made a positive contribution to the offence supplies the requisite link to relevant conduct.120 This causative link is not explicit in Article 46C, however arguably it is supplied through the requirements that the corporate policy was to do the act (intent) and that the corporation possessed all of the relevant knowledge via its ‘corporate personnel’ (knowledge).

An open question is whether the concept of ‘corporate personnel’ (as mentioned in paragraph (5) and referring to how corporate knowledge is ascertained) is limited to employees or whether it includes agents, contractors or even corporate subsidiaries. If the corporation’s culpability lies in its criminogenic culture, then in theory any crime enabled through that culture would be sufficiently tied to the corporation to render it culpable regardless of the physical actors also implicated. Indeed, the point of this model appears to be that the nature of the actors undertaking the various aspects of the physical commission of the crime and the legal quality of their relationship to the corporation is less relevant to the corporation’s liability than the corporation’s relationship to the crime per se in the form of knowing and intending its commission. Whether a person related to the corporation is an agent, contractor or employee is a matter of legal form tending to reflect a more or less temporary or task related relationship with the corporation, which may have little to do with the specific activities they are engaged in on behalf of the corporation, how closely those tasks relate to the corporation’s core business, and the degree of control exercised by the corporation over how such activities are undertaken. Likewise, while corporate subsidiaries are legally distinct from their parent, this may say little about the real degree of parent control over the subsidiaries’ activities. The wider the net is cast, the more amenable the model will be to corporate prosecutions, particularly in transnational settings where business is often transacted through local subsidiaries and contract chains and where parent company control can be and is often exercised. But at the same time, and particularly given the permissive grounds for attributing knowledge to the corporation, the wider the net the further determinations may move from genuine situations of corporate misfeasance. To address this problem, if it is seen as such, prosecutorial discretion may again have a role to play. For example, a guiding consideration may be that the actor in question should be authorized (for example, contractually) by the corporation to perform a function that benefits or advances its interests.

Finally, it is important to note that corporate criminal liability in the ACC Statute is not predicated upon the liability or conviction of a natural person. The ACC Statute is thus consistent with most models of corporate criminal responsibility in this regard, derivative and organizational.121 It is also an improvement upon the ICC draft model that appended corporate liability to that of an individual person. This development is crucially important; as wrongs that occur in corporate settings can mean that no individual can or necessarily should be liable for the same wrong, even where such person can be identified.122 Moreover, the wrong of the corporation and any individual offenders therein may be qualitatively different. But likewise, and importantly, paragraph (6) clarifies that corporate responsibility is in no sense a shield, should individual responsibility also be appropriate. With crimes as serious as those with which the ACC will be concerned and given the goals of international criminal justice, should evidence disclose that a particular individual or individuals within the corporation fully embodies an offence; such person(s) should be individually called to account. As a starting point, where individuals in positions of senior management in a corporation or those at a middle management level responsible for corporate policy direction are implicated in ACC crimes, it is reasonable to anticipate that individual criminal responsibility would be pursued alongside any corporate criminal responsibility. This recognizes the distinct purposes and effects of individual and corporate criminal liability. As a subsidiary question, it should be a matter for the Prosecutor and the Court as to if, and how, any corporate and individual prosecutions relating to the same conduct should be joined, determined on a case by case basis. The ACC may wish to develop Rules of Procedure that provide some direction in that regard, recognizing that the interests of an individual defendant may conflict with those of a corporation being prosecuted for related conduct.

The choice to adopt a progressive organizational model for the ACC is understandable and defensible. It makes sense for a modern corporate criminal responsibility scheme to reflect the recent lessons and experiences gained through past efforts around national corporate prosecutions for intent crimes. It has been argued, in the context of proposals for the ICC, that the identification model may be more palatable to a wider range of states given it is reflected in some transnational crime agreements, is the more common national model, and can be accommodated more readily even in states that adopt a vicarious liability approach, given it is simply a limited derivative liability model.123 This may well be true, although it is important not to overstate similarities across national schemes even when apparently in keeping with the same broad approach. But it can likewise be seen as a backward step for a Court that is likely to influence national legislative progress to adopt an approach increasingly criticized as outdated, particularly in the context of large and complex corporate settings. Any model should be capable of successful application where evidence of corporate blameworthiness is justifiable. It should aim to neither over- nor under-criminalize the behaviour of legal persons, considering how the resources available to corporations empowers them to take serious measures to curb criminogenic tendencies but also bearing in mind the need to uphold the normative sway of criminal law. The challenge for the ACC will be to balance these two imperatives. To an extent, the amenability of the current model to that balancing act can only be tested through the doing.

C. Corporate Sanctions

According to Article 43A, available sanctions against a convicted legal person will be limited to pecuniary fines and the forfeiture of ‘any property, proceeds or any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to an appropriate Member State’. In addition, Article 45 provides that convicted persons can be ordered to make reparations to victims, in terms of restitution, compensation and rehabilitation. Finally, Article 46M provides that the ACC can order money and property collected through fines and confiscation to be transferred to a Trust Fund for legal aid and assistance to the benefit of victims. These measures reflect the most common forms of sanctions recognized across domestic legal systems that provide for corporate criminal liability. By keeping sanctions limited in this way, the Statute may simplify the mutual assistance situation for the ACC, as seeking inter-state cooperation to enforce such measures is less controversial than if the Statute allowed a wider range of options.

But the Statute is otherwise quite conservative in regard to corporate sanctions. Effective and appropriate sanctions in respect of legal persons can differ depending on the circumstances of the crime and of the entity. Pluralizing sanction options can provide a court with discretion to adopt measures best directed to the circumstances at hand. The Council of Europe (COE), for example, in its Recommendation No. R (88) on the Liability of Enterprises for Offences, took the view that a wide range of corporate criminal sanctions should be introduced by states, on the basis that ‘it is doubtful … whether pecuniary sanctions – be they criminal or quasi-criminal – are sufficiently effective to produce the desired deterrent effect.’124 Sanctions alternative or additional to financial penalties and forfeiture can serve to demonstrate the moral condemnation attendant on a finding of entity guilt for serious crimes. It can also provide a court with the capacity to intervene directly with the operation of the corporation in ways likely to engendered behavioural changes or to meaningfully punish, though secondary effects for related third parties need to be managed. Proposals for the ICC were more ambitious in that regard and included dissolution (a form of corporate death penalty); prohibitions for a period of time or in respect of certain activities; and closure of corporate premises used in the commission of a crime.125 The COE, in its list of suggested sanctions added prohibition from doing business with public authorities, exclusion from fiscal advantages and subsidies, prohibition upon advertising goods or services, annulment of licenses, removal of managers, appointment of provisional caretaker management, closure or winding up, and publication of the decision to impose a sanction or measure.126 While this broader range of sanctions appear to be explicitly precluded by Article 43,127 it is also possible that some of these non-pecuniary measures may have in any event been more difficult to sell as they are often the only attraction offered to corporates in risky environments that tend to be in poorer parts of the world, including some contexts in Africa.

Despite the limited nature of corporate sanctions within the ACC Statute, those that do exist may add significant value to the work of the ACC in terms of the recovery of monies and assets for the purpose of reparation, both specific and general. Schabas notes that ‘[m]ost defendants before international criminal tribunals have claimed indigence’.128 The risk of indigence is, through common sense, lower in respect of corporate defendants. McGregor argues, in his work on pillaging in the Democratic Republic of the Congo, that even if international courts exercise jurisdiction over corporate directors and officers, the ‘international community is allowing corporations to walk away with billions of dollars in profits’ obtained from the pillaging of natural resources.129 However, the potential of asset recovery through corporate sanctions will depend significantly upon prosecutorial strategy and the cooperation of states. States parties are obliged to comply with any requests or orders of the Court in identifying, tracing, freezing, and seizing proceeds, property and assets for the purpose of eventual forfeiture,130 as well as with the execution of any final judgment.131 Mindful use of interim powers and state party cooperation is crucial given the risks of corporate movement of assets. For example, there is the risk that local ‘shell’ subsidiaries in the place of an offence may have limited assets or be folded with their assets removed to another jurisdiction. The benefit of an international court in this respect is the ability to follow such assets across territorial borders and seek the assistance of states parties to access corporate assets wherever they are located across their collective territories.132 However, the experience of the ICC to date in securing cooperation and assistance from states constitutes a cautionary tale. The challenge, of course, becomes greater where the assets are moved, or the corporate defendant itself is domiciled, in a third-party state. This may certainly arise in the work of the Court, given that the majority of transnational corporations continue to emanate from the global North.133 In such situations, third states will need to be prevailed upon to cooperate and establishing agreements to have judgments of the ACC recognized will be needed.

Finally, it is worth noting that the enforcement of fines and forfeiture measures must be undertaken ‘without prejudice to the rights of bona fide third parties’.134 It is sometimes suggested, as a critique of corporate criminal responsibility, that sanctions against corporations harm innocent third parties, such as shareholders and employees. To be fair, if this were a legitimate critique, it would preclude all forms of corporate penalty, criminal or otherwise. While the Court should always be mindful of the secondary effects of any judgment, shareholders (to take one example) should not be considered ‘bona fide third parties’ nor are they necessary innocent ones. As Colvin notes, shareholders reap the benefit of corporate operations and it is ‘therefore not unreasonable to make them bear some of the social costs’ of corporate misfeasance.135 He also goes on to note that the argument of shareholder innocence is even less compelling where an organizational model of liability is adopted, as it is a lack of compliance efforts within the corporation that grounds its culpability. Concerned shareholders are not entirely disempowered in that regard, and can press for protective action to be taken or can sell shares if they are dissatisfied with corporate behaviour.136 Likewise, any rises in prices resulting from corporate penalties137 are arguably the transmission of the real cost of the goods or services in question to consumers. Moreover, the problem of innocent party impacts is a reality of any punishment, corporate or individual. One need only consider the material and emotional costs to the families, friends and dependents of an incarcerated person to see that this is so. On the other hand, the potential impact on workers is a more complicated issue, given the potential for many to be innocent of the corporation’s misconduct. There is, for example, the risk that a corporate fine may be ‘socialized’ by the corporation in the form of laying off workers or reducing employment conditions138 or that a fine is so heavy that it affects the corporation’s ability to comply with contractual terms agreed with other actors that are innocent bystanders and have nothing to do with its bad (criminal) conduct. These interests most likely cannot be fully accommodated under any corporate punishment scheme. However, the Court could and should think seriously about who can and should be accommodated as ‘bona fide third parties’ when deciding corporate penalties, using its discretion to avoid situations that will cause severe and sufficiently direct costs on identifiable bona fide third-party interests.

D. The Challenge of Complementarity

As mentioned earlier, a challenge for states in deciding whether to adopt corporate criminal liability at the ICC was how the Court could operate in a manner genuinely complementary to domestic systems, given the plurality of national approaches to the issue of corporate crime. According to Article 46H, the ACC is intended to act in a similarly complementary fashion to national justice systems (and presumably to the ICC). The same challenge as to how the ACC will address national desire to deal with a corporate offender they are also contemplating is thus likewise raised. Corporate liability provides a source of tension, both legal and philosophical, between states that do not recognize corporate criminal capacity and the ACC though, as noted earlier, fewer states than ever maintain this absolute position. While the philosophical tension is removed, a question also arises regarding prosecutorial efforts by states where the model of corporate criminal responsibility differs from that of the Court. In short, is the ACC precluded from deferring to national measures in respect of corporate defendants (and hence operating complementarily thereto) if such measures are non-criminal in nature or if the national model of attribution narrows the implications for corporate responsibility?

Before considering this question, it is important to bear in mind that the ACC Statute (like the ICC Statute) does not oblige states to modify their substantive criminal law to reflect its elements of crimes and of criminal responsibility. States may choose to do so, to maximize capacity to take carriage of a given case. In this sense, no doubt the ACC Statute (like the ICC Statute before it) may well catalyze domestic legislating, which is part of its very goal to further the creation of a robust legal environment in Africa. Despite this, the way the complementarity challenge is sometimes discussed in the literature as it pertains to the corporation’s proposal seems to presume that substantive criminal law uniformity across states is both a precondition and a requirement of a functioning complementary international criminal institution. That this is not correct is demonstrated plainly by the fact that the ICC Statute came into operation despite the divergence of national systems on numerous principles of criminal law.139 The control of crime theories that are currently applied at the ICC to determine individual criminal responsibility, which are known to very few domestic legal systems,140 and even the joint criminal enterprise principles that came before them, likewise put paid to the suggestion that criminal law principles at an international court are only legitimate and functional where they reflect majority global practice. Indeed, the unique modes of liability that have developed in international criminal law have done so not only on the basis of national practices, but also to deal with the unique qualities of blameworthy participation in atrocity. Having said this, the question of how international criminal law deals with the plurality of national approaches to criminalization is a real one, and perhaps it is more pronounced in respect of corporate prosecutions than otherwise (though, from a legal rather than political perspective, of this I am not convinced).

As it stands, and without modifying the ACC Statute, it is likely that Article 46H precludes the ACC from deferring to national measures in respect of a corporate actor that fall short of a criminal process. This is strongly suggested by the use of the terms ‘prosecution’ and ‘tried’ therein. This means that states that do not have corporate criminal liability schemes in whatever form would be precluded from taking carriage of a case involving a legal person and this may have implications for willingness to engage with the Court. A way to modify this situation, and potentially increase the political palatability of the ACC to some states, might be to adopt a derivative of the transnational crime agreements and explicitly allow the ACC to defer to non-criminal national efforts if certain conditions are met. To be defensible, this option would need to predicate deference upon local non-criminal proceedings meeting certain conditions, such as sufficiently individuated processes and exposure to sufficiently severe penalties, so that they are an effective and proportionate response given the nature of the wrong.141 The Statute might go even further, as does the OECD Bribery Convention, and allow such deference to national non-criminal schemes only where the jurisdiction in question does not recognize the principle of corporate criminal liability. This option could be actioned through relatively straightforward modifications to the ACC Statute, and in particular to Article 46H.

There are various policy factors that alternatively push towards or away from this reform option. First, there is the potential that recognition of non-criminal processes may minimize the message of wrongdoing and blameworthiness that is delivered via the non-criminal trial and punishment of the corporate defendant. Having said this, it has been argued that social messaging related to legal practices are particular to a relevant legal community rather than universal, in which case it is the local legal culture that is significant and ought to determine responsibility practices.142 Second, while recognizing non-criminal local mechanisms tends against the trend towards a primary requirement of corporate criminal liability emerging under public international law,143 it may have the pragmatic benefit of moving us collectively closer to a legal environment of corporate accountability across the globe, however locally characterized.144 Third, there may be some potential implications of this kind of reform for individual prosecutions: whether similar deference to non-criminal measures in admissibility decisions related to individual defendants (for example, recognizing credible truth commissions) would be demanded by a principled approach. However, there may be a solid rationale for differentiating the treatment of natural and legal persons on this issue.

What about national variant models for corporate criminal responsibility? As it stands, Article 46H seems to empower the ACC to defer to national criminal justice efforts irrespective of the national model of attribution adopted. At the ICC, the pertinent issue in deciding the adequacy of domestic efforts involves the interpretation of a number of concepts, such as what constitutes action in respect of the same ‘case’, and interpretations surrounding the content and breadth of the unwillingness and inability provisions. These ideas are undergoing evolution. The ACC would need to develop its interpretations of these concepts, and apply them in logically consistent ways to cases involving both legal and natural persons, ideally synergistically with the ICC. Having said this, it seems prudent for the ACC to do so in a way that enables the widest possible deference to differences in national approaches to corporate criminal responsibility in order to ensure the spirit of complementarity is maintained.

A final question that may arise is whether there is any necessary relationship between admissibility determinations regarding related corporate and individual prosecutions. In other words, could the ACC refuse to admit a case against an individual defendant on the basis that an interested state was taking sufficient action with regard to that person, while simultaneously admitting a corporate prosecution for related conduct for want of sufficient state action, or vice versa? The correct answer in my view would be yes, with the question of admissibility for each defendant being considered individually, irrespective that their charges may relate to the same underlying conduct. At the ICC, case admissibility determinations rest upon the question of whether the relevant state is acting with regard to the same person and the same conduct.145 If the same interpretation of complementarity is adopted at the ACC, this would mean that admissibility determinations for each separate defendant, corporate and individual, would be a distinct question for the court. This, too, would again reflect that corporate and individual prosecutions for related conduct are distinct inquiries, involving distinct processes, questions and concerns.

4. Enforcement Challenges

This section of the chapter provides some final, brief, thoughts regarding issues of enforcement. As with any criminal justice system, without appropriate investigative and procedural powers, any model of liability will be ineffective. There are challenges involved in prosecuting serious crimes of an international or transnational kind that will require mutual legal assistance involving one or more states. While corporate prosecutions can be more complex, the difficulties likely to be faced are in many respects the same as for those faced generally by any international criminal court. Having said this, there are some challenges that are peculiar to the effort to bring corporations to account or that can be more pronounced due to the corporate character of the defendant. For example, specific procedural arrangements will be needed to enable corporate prosecutions. These include provision as to who must be served to qualify for proper service, and who is entitled to represent the legal person in proceedings. These are matters properly addressed in the Court’s Rules.146

As discussed above in the context of enforcing sanctions, corporations implicated in Statute offences may be transnational in character and this creates specific complexities. In many cases, a legal person may be incorporated in one jurisdiction and act through subsidiaries or other related entities incorporated in another jurisdiction. It may therefore be necessary to consider whether and when one corporation can be liable for its role in the offence of another corporation.147 This can be particularly important where a local subsidiary directly implicated in an offence has limited assets or where it may be made a scapegoat for an offence that is more properly located in the culture and behaviours of the parent corporation. The Statute does not address this question directly however a few options are available when prosecutors are deciding the prosecutorial strategy in any given case. For example, it may be possible to pursue a parent company as an accessory to the offence of a subsidiary or for conspiring to commit the offence in accordance with Article 28N. This might be difficult to prove. An alternative is to argue the responsibility of a parent company where it can be shown that it exercised a requisite level of control over an offending subsidiary company such that the fault lies with it. This may be possible to argue under Article 46C in that the policy of the parent company as to the wrongful act of a subsidiary or related entity under its control may be sufficient to satisfy that provision. In other words, to demonstrate that the parent corporation’s policies and actions were sufficiently connected to the crime to warrant its direct responsibility.

The transnationality of corporations and corporate groups also raises challenges of mutual legal assistance in accessing witnesses and documentary evidence, compelling attendance or document disclosure, and enforcing orders across states. As mentioned above, the Statute requires cooperation by states parties. This gives the Court a legal basis to access corporate documents, personnel, property, and assets that are located within the collective territories of those states. More difficult is where assistance is required from states that are not parties to the Court. It may be necessary for the ACC to enter into agreements with third-party states to enable investigation and enforcement in corporate prosecutions, as with any of its work. Article 46L(3) provides explicitly for this, stating that the Court ‘shall be entitled to seek the co-operation or assistance of regional or international courts, non-States Parties or co-operating partners of the African Union and may conclude Agreements for that purpose.’

A complexity that might be encountered in such efforts is with jurisdictions that do not recognize corporate criminal responsibility or where models of corporate criminal responsibility are markedly different and more limited than that provided for under Article 46C. It is difficult to see how this can be avoided, aside from focusing on the corporation’s presence in jurisdiction. Perhaps, the limited corporate sanctions available to the ACC may soften the challenges in reaching mutual agreements regarding enforcement of orders. Furthermore, adopting an approach to corporate admissibility determinations that provides as great a deference to domestic alternatives for dealing with the same corporate defendant as is defensible may also serve to maximize good relations between the ACC and states. Separately, third-party states that consider the ACC’s corporate responsibility scheme an impermissible legal over-reach into global or external economic affairs, may dispute the legitimacy of efforts to enforce the Statute against corporate nationals. That being said, a number of factors press against the weight of such political critiques. These include the codified and consent-based nature of the ACC’s corporate criminal liability scheme, the limitation of the Court’s jurisdiction to territorial, nationality, or protective grounds, and the serious nature of the crimes in question.

A related challenge is the problem that a corporation cannot be extradited (though business executives can be when individually prosecuted).148 According to Article 46A an accused has the right to be tried in his or her presence. This should be read to include corporate accused, given the intent of the Statute seems to be the consistent treatment of natural and legal persons to the degree that is logical, the serious nature of the crimes in question, and the lack of any specific, defendant rights provisions directed to legal persons. This is despite the presence of gendered language in Article 46A. In the case of a corporate prosecution, this equates to the entitlement for the corporation to have hearings conducting in the presence of a chosen representative. As noted, such representative cannot be compelled through extradition processes to appear and speak on behalf of the company. However, there are ways in which to ensure, so far as possible, such representatives are duly appointed and appear in ACC processes.

First, Rules of Procedure and Evidence will need to clarify how a corporation may appoint a representative and the kind of documentation that will function as proof of such appointment. Such Rules may also stipulate penalties where a corporation fails to duly appoint a representative or to appear when indicted, constituting as that would an act of contempt, so as to further incentivizing corporate defence participation. Notably, such contempt penalties would give rise to the need to ensure enforcement cooperation by states, against corporate assets located in their jurisdictions. Second, it should be noted that it is entirely feasible that corporations, local or foreign, may simply submit to ACC proceedings. As Clough has noted, it may well be in the interests of corporations to submit to foreign proceedings where there are significant business interests that might be jeopardized by failing to do so, a factor that seems to have influenced corporate cooperation with US Foreign Corrupt Practices Act proceedings.149 For example, a company may well be concerned to protect its reputation against allegations of serious violations against international law. Short of access to the corporation within a state party territory or willing submission, a couple of other suggestions have been mooted. The first is that leading individuals within the foreign corporation sufficiently implicated in the offence might be indicted alongside the company. Through their personal extradition and proceedings, the Court may gain access to documents pertinent to corporate proceedings and a representative to appear as the company.150 The problem, however, is that despite being personally charged, this would not compel such persons to appear as the company in respect of the corporate charges.151 The ICC model to some extent avoids this problem by appending corporate prosecutions to those of the individual, though the pay-off noted above is the substantially reduced utility of a corporate responsibility scheme limited in this way. An alternative is to allow a trial to proceed in absentia, should the corporation fail to produce a representative.152 Proceeding against an accused in absentia, even for serious crimes, is allowed in some jurisdiction in such circumstances, although the challenge of enforcing the verdict against the person and their assets beyond the territory of states parties remains.153 To further protect defence rights, protections may be built into any such trial in absentia scheme, for example allowing for retrial should a corporate representative be subsequently appointed.

This brief survey of the procedural challenges of corporate prosecutions, as well as the earlier discussion of conceptual challenges in substantive law, gives a sense of the complexity that faces the Court in pursuing the goal of corporate accountability. This should not deter it, as the rewards of a stronger compliance environment for corporate conduct in Africa could be significant. It does demonstrate that, ideally, the ACC would be sufficiently resourced such that it might create specialized corporate crime branches within its various organs that can focus energies on the particularities of corporate prosecutions and forge links with national and international institutions that operate in this space.154

5. Conclusion

Article 46C on the criminal liability of corporations is a significant step in the direction of justice. Corporations can facilitate the crimes of natural persons as well as commit offences in their own right. The criminal liability of corporations for transnational and international crimes is an emerging general principle of public international law. Enabling corporate prosecutions at the ACC reflects empirical evidence of corporate involvement in serious crimes affecting the African continent and the growing appreciation of the distinctive nature of corporate criminality relative to that of individuals therein. This development may well strengthen the prospects of meaningful reparative and restitutive sanctions that can be used to repair victim communities. It also addresses the moral outrage that exists where corporations benefit financially from involvement in serious crime. The political neutrality of the ACC as an independent international institution also speaks in its favour.155 As Deya notes, Africa has long pioneered in the international law arena, with ‘the rest of the international community “catching up” later’.156 The prospect of an international criminal court with jurisdiction over legal persons, long debated and much deferred, may well come to fruition under African leadership.

Appendix A Working Paper on Article 23, Paragraphs 5 and 6 A/Conf.183/C.1/WGGP/L.5/Rev.2 3 July 1998 (Footnotes Omitted)

  1. 5. Without prejudice to any individual criminal responsibility of natural persons under this Statute, the Court may also have jurisdiction over a juridical person for a crime under this Statute.

Charges may be filed by the Prosecutor against a juridical person, and the Court may render a judgement over a juridical person for the crime charged, if:

  1. (a) The charges filed by the Prosecutor against the natural person and the juridical person allege the matters referred to in subparagraphs (b) and (c); and

  2. (b) The natural person charged was in a position of control within the juridical person under the national law of the State where the juridical person was registered at the time the crime was committed; and

  3. (c) The crime was committed by the natural person acting on behalf of and with the explicit consent of that juridical person and in the course of its activities; and

  4. (d) The natural person has been convicted of the crime charged.

For the purpose of this Statute, “juridical person” means a corporation whose concrete, real or dominant objective is seeking private profit or benefit, and not a State or other public body in the exercise of State authority, a public international body or an organization registered, and acting under the national law of the State as a non-profit organization.

  1. 6. The proceedings with respect to a juridical person under this article shall be in accordance with this Statute and the relevant Rules of Procedure and Evidence. The Prosecutor may file charges against the natural and juridical person jointly or separately. The natural person and the juridical person may be jointly tried.

If convicted, the juridical person may incur the penalties referred to in article 76. These penalties shall be enforced in accordance with the provisions of article 99.

My thanks to participants of the Miami 2015 and Arusha 2016 ACRI Project Meetings and to my anonymous referees for insightful comments that have helped shape and inform this chapter.

1 Following the style adopted by others in this compendium, the use of the term ‘African Criminal Court’ or ‘the ACC’ is used to distinguish the African Court of Justice and Human and Peoples’ Rights’ criminal jurisdiction from its other competencies.

2 (adopted 27 June 2014).

3 The term ‘international criminal court’ is used in a broad sense to denote any court or tribunal, other than a purely domestic court, that exercises criminal jurisdiction over international and/ or domestic crimes.

4 See, e.g., Art. 25 of the Rome Statute of the International Criminal Court (opened for signature 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute); Art. 6 of the Statute of the International Tribunal for the Former Yugoslavia, UNSC Res 827 (25 May 1993) UN Doc S/RES/827; Art. 5 of the Statute of the International Tribunal for Rwanda, UNSC Res 995 (8 November 1994) UN Doc S/RES/955. While it is often said that all international criminal courts to date have been limited to prosecutions of natural persons, the instruments establishing the International Military Tribunal and the American Military Tribunal at Nuremberg can be interpreted to allow the prosecution of corporations, and at least one legal contemporary proposed doing so: J. Bush, ‘The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said’, 109 Colum L Rev (2009) 1094, at 1115, 1149–57, 1176–8, 1198–1200 and 1239 (on the proposal to indict corporations) and 7–1248 (reprinting, Memorandum from A.L. Pomerantz, Feasibility and Propriety of Indicting I.G. Farben and Krupp as Corporate Entities (27 August 1946)). See also, N. Bernaz, ‘Corporate Criminal Liability under International law: The New TV S.A.L and Akhbar Beirut S.A.L. Cases at the Special Tribunal for Lebanon’, 13 JICJ (2015) 313, at 330 (on the implications of recent decisions of the Special Tribunal for Lebanon regarding its jurisdiction over corporations).

5 According to Art. 46Ebis of the ACC Statute, the ACC can exercise jurisdiction over nationals of a state that is not a party to the Court where the conduct is committed on the territory of a state party, where the victim is a national of a state party, or where the conduct in question threatens a vital interest of a state party.

6 J. Kyriakakis, ‘Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge’, 56(3) NILR (2009) 333, at 336–348; M. Pieth and R. Ivory, ‘Emergence and Convergence: Corporate Criminal Liability Principles in Overview’, in M. Pieth and R. Ivory (eds), Corporate Criminal Liability: Emergence, Convergence and Risk (Springer, 2011) 360.

7 These include and are not limited to: Botswana (Section 24 of the Penal Code 1964); Ethiopia (Art. 34 of the Criminal Code 2004); Ghana (Section 192 of the Criminal Procedure Code 1960); Kenya (Section 23 of the Penal Code 1930); Malawi (Nyasaland Transport Company Limited v R 1961–63 ALR Mal 328 and Section 24 of the Penal Code); Nigeria (Sections 65–6 of the Companies and Allied Matters Act 1990); South Africa (Section 332 of the Criminal Procedure Act 1977); Zambia (Section 26(3) of the Penal Code Act 1950); Zimbabwe (Section 277 of the Criminal Law [Codification and Reform] Act 2004). Some of these provisions do not establish corporate criminal responsibility but are premised upon its existence pursuant to other statutory or common law sources.

8 In Egypt, for example, only natural persons can be criminally liable, on the basis that free will and awareness can only exist in human beings: M. Omara, Criminal Liability of Companies – Egypt (2008), available at www.lexmundi.com/Document.asp?DocID=1063. This position is sometimes reflected in the principle of societas delinquere non potest (a legal entity cannot be blameworthy). For an overview of this philosophical position, see T. Weigend, ‘Societas delinquere non potest? A German Perspective’, 6 JICJ (2008) 927.

9 The term ‘international crimes’ or ‘atrocity crimes’ is used to denote the crimes of genocide, crimes against humanity, war crimes and aggression that have been the traditional categories of crimes over which international criminal courts have had jurisdiction. The term ‘transnational crimes’ is used to denote other crimes with actual or potential trans-border effects: Robert Cryer and others, An Introduction to International Criminal Law and Procedure (3rd edn, Cambridge University Press 2014) 5.

10 See, e.g., the ‘Declaration of the African Coalition for Corporate Accountability (ACCA)’ (November 2013), which has been endorsed by 89 organizations from 28 countries across the continent. Available at https://the-acca.org/declaration/.

11 C. Wells and J. Elias, ‘Catching the Conscience of the King: Corporate Players on the International Stage’, in P. Alston (ed), Non-State Actors and Human Rights (Oxford University Press 2005) 141, 160.

12 For an excellent review of the three major debates regarding corporate criminal liability (corporate criminal liability as a concept; criminal versus civil liability; and corporate versus individual liability of corporate officers) evaluated in the context of international crime, see James Stewart, ‘A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity’, 16 (2) New Crim L Rev. (2013) 261.

13 UNGA ‘Report of the Committee on International Criminal Jurisdiction’ (1952) UN Doc A/2136 [86]–[90].

14 K. Priemel, ‘Tales of Totalitarianism: Conflicting Narratives in the Industrialist Cases at Nuremberg’, in K. Priemel and A. Stiller (eds), Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives and Historiography (Berghahn Books 2012) 163167. This was principally achieved through zonal military trials of individual industrialists that had headed notable German industrial concerns. For a discussion of those trials, see Bush (n 4); M. Lippman, ‘War Crimes Trials of German Industrialists: The “Other Schindlers”’, 9 Temp Int’l & Comp L J (1995) 173.

15 UNGA ‘Report of the 1953 Committee on International Criminal Jurisdiction’ (1953) UN Doc A/2645 [85].

16 UNGA ‘Report of the Committee on International Criminal Jurisdiction’ (1952) UN Doc A/2136 [85]; UNGA ‘Report of the 1953 Committee on International Criminal Jurisdiction’ (1953) UN Doc A/2645 [85].

17 For an excellent summary of the debates at Rome regarding the legal persons’ proposal, see A. Clapham, ‘The Question of Jurisdiction under International Criminal Law Over Legal Persons: Lessons from the Rome Conference’, in M. Kamminga and S. Zia-Zarifi (eds), Liability of Multinational Corporations under International Law (Kluwer Law 2000).

18 For an analysis of this critique and possible responses to it, see: J. Kyriakakis, ‘Corporations and the International Criminal Court: The Complementarity Objection Stripped Bare’, 19(1) Crim LF (2008) 115; Kyriakakis (n 6).

19 ‘Working Paper on Article 23, Paragraphs 5 and 6’, UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome 15 June–17 July 1998) (3 July 1998) UN Doc. A/Conf.183/C.1/WGGP/L.5/Rev.2.

20 ‘Summary records of the meetings of the Committee of the Whole, 26th Meeting’, UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome 15 June–17 July 1998) (8 July 1998) U.N. Doc A/CONF.183/C.1/SR.26 [10]. See also, Per Saland, ‘International Criminal Law Principles’ in Roy Lee (ed), The International Criminal Court. The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International 1999) 199.

21 ‘Implementation of the International Convention on the Suppression and Punishment of the Crime of Apartheid’ (19 January 1981) UN Doc E/CN.4/1426, Draft Convention Art. 4–6.

22 Art. V of the International Convention on the Suppression and Punishment of the Crime of Apartheid (opened for 30 November 1973, entered into force 18 July 1976) 1015 UNTS 243 (Apartheid Convention).

23 Art. I, X and III of the Apartheid Convention.

24 ‘Implementation of the International Convention on the Suppression and Punishment of the Crime of Apartheid’ (19 January 1981) UN Doc E/CN.4/1426 [58]–[60].

25 A. Abass, ‘Prosecuting International Crimes in Africa: Rationale, Prospects and Challenges’, 24(3) EJIL (2013) 933, at 936–7. Reflecting on the failure of such a court to materialize, Abass states: ‘The impact of this “dupe”, so to speak, had on Africans was significant, but it underscored the fact that not every crime committed in Africa would be of prosecutorial interest to the rest of humanity’: 937.

26 UNGA ‘Draft Statute International Criminal Tribunal’ (31 July 1990) UN Do. A/CONF.44/NGO ISISC, Art. XIV, reprinted in (1991) 15 Nova L Rev 373.

27 New TV S.A.L (Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings) (Case No STL-14–05/PT/AP/AR126.1, 2 Oct 2014); Akhbar Beirut S.A.L. (Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings) (Case No STL-14–06/PT/AP/AR126.1, 23 Jan 2015).

28 Bernaz (n 4) 321.

29 Stewart (n 12) 261.

30 See, e.g., M.J. Ezeudu, ‘Revisiting Corporate Violations of Human Rights in Nigeria’s Niger Delta Region: Canvassing the Potential Role of the International Criminal Court’, 11 AHRLJ (2011) 23; I. Eberechi, ‘Armed Conflicts in Africa and Western Complicity: A Disincentive for African Union’s Cooperation with the ICC’, 3 Afr J Leg Stud. (2009) 53; C. Jalloh, ‘Special Court for Sierra Leone: Achieving Justice’, 32(3) MJIL (2011) 395, at 424 (on the failure of the SCSL to prosecute foreign businessmen and profiteers who financed and benefited from the war).

31 See, e.g., ‘Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo’ (16 October 2002) UN Doc S/2002/1146; ‘Final Report of the Monitoring Mechanism on Angola Sanctions’ (21 December 200) UN Doc S/2000/1225; ‘Report of the Panel of Experts Appointed Pursuant to Security Council Resolution 1306 (2000), paragraph 19, in relation to Sierra Leone’ (20 December 2000) UN Doc S/2000/1195.

32 For an excellent overview of the dynamics of resource-related armed conflicts and the actors implicated in such wars, see Daniëlla Dam-de Jong, International Law and Governance of Natural Resources in Conflict and Post-Conflict Situations (Cambridge University Press 2016) 130.

33 For a powerful account of this history, see Adam Hochschild, King Leopold’s Ghost: A Story of Greed, Terrorism and Heroism in Colonial Africa (Mariner Books 1998).

34 UNGA, ‘Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and Other Business Enterprises’ (7 April 2008) UN Doc A/HRC/8/5, in particular [11]–[16], [34]–[36], [47]–[49] (describing the dynamics of the current ‘governance gap’ in respect of corporate related human rights abuses). Another issue is the rise of private military companies and accountability therein.

35 Atrocity crimes tend to be under-enforced within a wholly state based justice framework because many of the crimes can occur only with the participation of the state, resulting in unwillingness to prosecute. Other states also have reasons to refrain from intervening. Alternatively, the territorial state may be unable to act because its justice system is weak or even collapsed due to conflict: Antonio Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’ in Cesare Romano and others (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford University Press 2004) 46. See also Ezeudu (n 30) 48–49 (noting that this is true whether the offender is a natural or legal person).

36 A. Anghie and B.S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, 78 Chinese JIL (2003) 77, at 89.

37 Ibid, 90–2; C. Nielsen, ‘From Nuremberg to The Hague: The Civilizing Mission of International Criminal Law’, 14 Auckland U L Rev (2008) 81, at 98–9.

38 See, e.g., L. van den Herik and D. Dam-De Jong, ‘Revitalizing the Antique War Crime of Pillage: The Potential and Pitfalls of Using International Criminal Law to Address Illegal Resource Exploitation during Armed Conflict’, 15 Crim LF (2011) 237; Eberechi (n 30).

39 J. Kyriakakis, ‘Justice after War: Economic Actors, Economic Crimes, and the Moral Imperative for Accountability after War’, in L. May and A. Forcehimes (eds), Morality, Jus Post Bellum, and International Law (Cambridge University Press 2012) 113–20 (for a discussion on the way in which these issues are marginalized in international criminal law theory and practice).

40 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (opened for signature 17 December 1997, entered into force 15 February 1999) 37 ILM 1, arts 2, 3(2) and (4).

41 International Convention for the Suppression of the Financing of Terrorism (opened for signature 9 December 1999, entered into force 10 April 2002) 39 ILM 270, arts 5 and 7; Council Framework Decision of 13 June 2002 on Combating Terrorism [2002] OJ L 164/3, arts 7, 8 and 9.

42 United Nations Convention against Corruption (opened for signature 31 October 2003, entered into force 14 December 2005) arts 26 and 42; African Union Convention on Preventing and Combating Corruption (adopted 11 July 2003, entered into force 5 August 2006) art 11; Joint Action of 22 December 1998 adopted by the Council on the Basis of Article K.3 of the Treaty on European Union, on Corruption in the Private Sector [1998] OJ L 358/2, arts 1, 5, 6 and 7; Criminal Law Convention on Corruption (opened for signature 27 January 1999, entered into force 1 July 2002) CETS no 173, arts 1(d), 17, 18, and 19(2); Inter-American Convention against Corruption of 19 March 1996 (opened for signature 29 March 1996, entered into force 3 June 1997) art VIII.

43 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (opened for signature 22 March 1989, entered into force 5 May 1992) 28 ILM 649, arts 2(14) and 9; Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (adopted 30 January 1991, entered into force 22 April 1998) arts 1(16) and 9; Council Framework Decision of 27 January 2003 on Protection of the Environment through Criminal Law [2003] OJ L 29/55, arts 6, 7 and 8.

44 United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003) art 10; Council Framework Decision of 19 July 2002 on Trafficking in Human Beings [2002] OJ L 203/1, arts 4, 5 and 6.

45 Council Framework Decision of 22 December 2003 on Combating the Sexual Exploitation of Children and Child Pornography [2004] OJ L 13/44, arts 1(d), 6, 7 and 8.

46 For further examples see, Marc Engelhart, ‘Corporate Criminal Liability from a Comparative Perspective’ in Dominik Brodowski and others (eds), Regulating Corporate Criminal Liability (Springer 2014) 54–5.

47 Ibid at 56–7.

48 Ibid at 57.

49 Kyriakakis, (n 18) 343–4.

50 Engelhart (n 46) 57.

51 M Cherif Bassiouni, ‘From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court’, 10 Harv Hum Rts J (1997) 11, at 55–56.

52 ‘Committee of the Whole, Summary Record of the First Meeting’ UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome 15 June–17 July 1998) (20 November 1998) UN Doc A.CONF.183/C.1/SR.1 [49].

53 ‘Draft Statute International Criminal Tribunal’ (n 26) 380.

54 Truth and Reconciliation Commission of Liberia, ‘Volume 2: Consolidated Final Report’ (30 June 2009) 426–59 (Annex 2: Draft Statute: Extraordinary Criminal Court, 426–59, Art. 14(11) and 15(2)). For the Commission’s findings on economic crimes in general see, Truth and Reconciliation Commission of Liberia, ‘Volume 3, Title III: Economic Crimes and the Conflict, Exploitation and Abuse’ (2009).

55 Truth and Reconciliation Commission of Liberia, ‘Volume 3, Title III: Economic Crimes and the Conflict, Exploitation and Abuse’ (2009) 2–6.

56 ‘Crimes against Humanity Initiative’ (Whitney R Harris World Law Institute, 2015) http://law.wustl.edu/harris/crimesagainsthumanity/.

57 Crimes Against Humanity Initiative, ‘Proposed International Convention on the Prevention and Punishment of Crimes against Humanity’ (August 2010), art 8(6).

58 Sean Murphy, Special Rapporteur for Crimes against Humanity, ‘Second Report on Crimes against Humanity’ (21 January 2016) UN Doc A/CN.4/690 [41]–[44]; ILC, ‘Statement of the Chairman of the Drafting Committee, Mr. Pavel Šturma’ 68th Session (9 June 2016) 16 (on the intent of the Drafting Committee to consider shortly the three options proposed by the Special Rapporteur on how the Convention may address that issue).

59 See, e.g., K. Tiedemann, ‘Corporate Criminal Liability as a Third Track’, in D. Brodowski and Others (eds), Regulating Corporate Criminal Liability (Springer 2014) 18 (quoting Victor Hugo’s words: ‘Nothing else has the force of an idea the time of which has come’, in reflecting on the idea of corporate criminal liability as a common ‘third track’ of national criminal justice systems).

60 See, e.g., M. deGuzman, ‘Choosing to Prosecute: Expressive Selection at the International Criminal Court’, 33 Mich J Intl L (2012) 265 (advocating expressivism as the best basis for determining selectivity issues at an international criminal court).

61 UNODC ‘Liability of Legal Persons, article 10 of the United Nations Convention against Transnational Organized Crime, Background Paper by the Secretariat’ (6 June 2014) UN Doc CTOC/COP/WG.2/2014/3, [15]. It should be noted, however, that the term is not universally understood in this kind of restrictive fashion: Engelhart (n 46) 59.

62 UNODC ‘Liability of Legal Persons, article 10 of the United Nations Convention against Transnational Organized Crime, Background Paper by the Secretariat’ (6 June 2014) UN Doc CTOC/COP/WG.2/2014/3, [16]-[17].

63 J. Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press 2012) 115–21.

64 See Appendix A.

65 Clapham (n 17) 156.

66 According to Art. 31(1) of the Vienna Convention on the Laws of Treaties (adopted 22 May 1969, entered into force 17 January 1980) 1155 UNTS 331: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. There is also the principle of interpreting criminal statutes, that in cases of ambiguity the matter should be resolved in favor of the defendant.

67 Clapham (n 17) 156–7. Having said this, the notion of criminal organizations that is adopted in some criminal justice contexts demonstrates how such an approach can operate: see, e.g., Shane Darcy, Collective Responsibility and Accountability under International Law (Transnational Publishers 2007) ch V.

68 Engelhart (n 46) 59 (emphasis added).

69 See, e.g., in the Australian context: Jonathan Clough and Carmel Mulhern, The Prosecution of Corporations (Oxford University Press 2002) 65–7.

70 See, e.g., United Nations Conference on Trade and Development (UNCTAD), World Investment Report 2014, Investing in the SDGs: An Action Plan (United Nations 2014) 20.

71 Pieth and Ivory (n 6) 17. See generally 14–17.

72 Engelhart (n 46) 59.

73 See, e.g., C. de Maglie, ‘Soceitas Delinquere Potest? The Italian Solution’ in M. Pieth and R. Ivory (eds), Corporate Criminal Liability: Emergence, Convergence and Risk (Springer 2011) 255, 261 (on the Italian and French approach to this issue).

74 Barcelona Traction, Light and Power Co Ltd Case (Belgium v. Spain) [1970] ICJ Rep 3, [39]–[49] and [56]–[58].

75 See, e.g., S. Joseph, Corporations and Transnational Human Rights Litigation (Hart 2004) 40–4, 121; M. Bühler, ‘The Emperor’s New Clothes: Defabricating the Myth of “Act of State” in Anglo-Canadian Law’ in C. Scott (ed), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart 2001) 343–71.

76 R. Wai, ‘The Commercial Activity Exception to Sovereign Immunity and the Boundaries of Contemporary International Legalism’ in C. Scott (ed), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart 2001) 213–45. See also, ‘Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction by Roman Anatolevich Kolodkin, Special Rapporteur’ (10 June 2010) UN Doc A/CN.4/631 [71]–[77] (on the relationship between act of state doctrines and principles of sovereign immunity).

77 S. Zia-Zarifi, ‘Suing Multinational Corporations in the U.S. for Violating International Law’, 4 UCLA J. Intl L & For. Aff. (1999) 81, at 128–40 (on the US context).

78 Cryer et al (n 9) 557–9 (discussed in the context of the ICC).

79 Banco Nacional de Cuba v Sabbatino 376 US 398 (SCt 1964) 428; Kadic v Karadzic 70 F 3d 232 (2d Cir 1995) 250 (from the US context).

80 ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’, Report of the International Law Commission on the Work of Its Fifty-Third Session (3 August 2001) UN Doc A/56/10.

81 See, e.g., A. Clapham, ‘Issues of Complexity, Complicity and Complementarity: From the Nuremberg Trials to the Dawn of the New International Criminal Court’, in P. Sands (ed) From Nuremberg to The Hague: The Future of International Criminal Justice (Cambridge University Press 2003) 30, at 31–50.

82 This is known as the ‘all crimes’ approach: Pieth and Ivory (n 6) 20.

83 Ibid 18 and generally 17–21.

84 United Nations War Crimes Commission (UNWCC), 1 Law Reports of Trials of War Criminals (1947), 93. While the case dealt with individual criminal responsibility, the findings of the Tribunal could likewise support corporate criminal responsibility. For further examples of possible scenarios of corporate involvement in genocide, see Michael J Kelly, Prosecuting Corporations for Genocide (Oxford University Press 2016) ch 4.

85 ACC Statute, Art. 28M of the Statute (crime of aggression).

86 For an outline of the principles of vicarious liability in the common law tradition, see Clough and Mulhern (n 69) 79–88. It should be noted that vicarious liability is also a principle of attribution for civil liability, however it is used here to refer to its contours in the criminal law.

87 Ibid 86–7; C. Ntsanyu Nana, ‘Corporate Criminal Liability in South Africa: The Need to Look Beyond Vicarious Liability’, 55(1) J Afr L (2011) 86, at 99 (noting that vicarious liability is often rationalized on the basis that it is necessary where a ‘statute would be rendered nugatory if liability was not imposed on the company’).

88 This is the approach, for example, of federal US criminal law: see, e.g., Allens Arthur Robinson, ‘“Corporate Culture” as a Basis for the Criminal Liability of Corporations’, (February 2008) 29–30; and in South African law: see, e.g., Nana (n 87) 93–8.

89 Clough and Mulhern (n 69) 80.

90 See, e.g., Nana (n 87) 98–103 (criticizing the use of vicarious liability for corporate criminal liability in South African on this basis); Celia Wells, Corporations and Criminal Responsibility (2nd edn, Oxford University Press 2001) 152–4 (summarizing the debate over vicarious liability and noting that similar critiques can be extended to the identification model).

91 Though it should be noted that due diligence does have some bearing on vicarious liability schemes even if not explicitly provided for, as the diligent organization minimizes risks of harms flowing from corporate activity in the first instance and thus in theory reduces situations in which it might be strictly liable for harm.

92 Allens Arthur Robinson (n 88) 30–3.

93 Ibid 64.

94 International Convention for the Suppression of the Financing of Terrorism (opened for signature 9 December 1999, entered into force 10 April 2002) 39 ILM 270, Art. 5.

95 See, e.g., Criminal Law Convention on Corruption (opened for signature 27 January 1999, entered into force 1 July 2002) CETS no 173, Art. 18; Second Protocol to the EU Convention on the Protection of the European Communities’ Financial Interests (adopted 19 July 1997) OJ C 221 of 19.7.1997, Art. 3.

96 Allens Arthur Robinson (n 88) 4, 7–8, 65–6.

97 See Appendix A. For a discussion on how these requirements may be broader than they appear at first glance, see Clapham (n 17) 153–5.

98 Nana (n 87) 100.

99 E. Colvin, ‘Corporate Personality and Criminal Liability’, 6(1) Crim LF (1995) 1, at 15–18. For critiques of the identification model see J. Coffee, ‘Corporate Criminal Liability: An Introduction and Comparative Survey’, in A. Eser, G. Heine and B. Huber (eds), Criminal Responsibility of Legal and Collective Entities (Freiburg im Breisgau 1999) 1618; Nico Jorg and Stewart Field, ‘Corporate Manslaughter and Liability: Should we be going Dutch?’ (1991) Crim LR 158–62.

100 Ibid.

101 See, e.g., Allens Arthur Robinson (n 88) 34 (on the impetus for the Swiss corporate criminal liability laws).

102 Colvin (n 99) 22. See generally 23–5 on the basic elements of the realist view.

103 Jorg and Field (n 99) 159.

104 Allens Arthur Robinson (n 88) 69.

105 Colvin (n 99) 40–1. This is suggested by the fact that Art. 46C doesn’t appear to reflect a particular state’s approach, as well as that, in its original draft form it closely mirrors Colvin’s recommended model. The earlier drafting of Art. 46C can be found in: AU, ‘Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights’ (15 May 2012) AU Doc Exp/Min/IV/Rev.7.

106 Criminal Code Act (Cth) (Aus), Part 2.5, sections 12.1–12.4. Colvin also considered similar laws in Canada.

107 Criminal Code Act (Cth) (Aus), subsection 12.3 (6).

108 Colvin (n 99) 33–4.

109 Ibid 38–9.

110 Criminal Code Act (Cth) (Aus), subsections 12.3 (1), (2)(c) and (2)(d).

111 Kelly (n 84) 80–1.

112 Colvin (n 99) 41. It’s worth noting that the original draft Art. 46C, while different, showed greater fidelity to Colvin’s recommended wording.

113 Ibid 39.

114 For a discussion of the elements of complicity under international criminal law and how these are likely to interact with corporate culpability see, International Commission of Jurists Expert Panel on Corporate Complicity in International Crimes, Corporate Complicity & Legal Accountability, vol. 2 (ICJ 2008) 21–4.

115 This seems to be broadly correct, although command responsibility, for example, can be based in recklessness. Under the Rome Statute, most, if not all, offences require actual or deemed intent. For a discussion of the concept of mens rea in international criminal law see, J. Van der Vyver, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal Law’, 12 U Miami Int’l & Comp L Rev (2004) 57.

116 Allens Arthur Robinson (n 88) 72–3.

117 Criminal Code Act (Cth) (Aus), section 12.2.

118 Allens Arthur Robinson (n 88) 72.

119 Art. 102(1) of the Swiss Penal Code; Chapter 9, Section 1 of the Penal Code of Finland (relevant translated extracts available in Allens Arthur Robinson (n 88) Appendices 5 and 6).

120 Colvin (n 99) 41.

121 Allens Arthur Robinson (n 88) 73.

122 B. Fisse and J. Braithwaite, ‘The Allocation of Responsibility for International Crime: Individualism, Collectivism, and Accountability’, 11 Syd LR (1988) 468.

123 L. Verrydt, ‘Corporate Involvement in International Crimes: An Analysis of the Hypothetical Extension of the International Criminal Court’s Mandate to Include Legal Persons’, in D. Brodowski and others (eds), Regulating Corporate Criminal Liability (Springer 2014) 286–92.

124 Council of Europe, Liability of enterprises for offences. Recommendation No. R (88) 18 adopted by the Committee of Ministers of the Council of Europe on 20 October 1988 and Explanatory Memorandum (COE 1990) [28].

125 ‘Report of the Preparatory Committee on the Establishment of an International Criminal Court’ UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome 15 June–17 July 1998) (14 April 1998) UN Doc A/CONF.183/2/Add.1, Art. 76.

126 Council of Europe, Liability of enterprises for offences. Recommendation No. R (88) 18 adopted by the Committee of Ministers of the Council of Europe on 20 October 1988 and Explanatory Memorandum (COE 1990) arts 6 and 7.

127 Specifically, Art. 43A(2) of the ACC Statute states: ‘For the avoidance of doubt, the penalties imposed by the Court shall be limited to prison sentences and/ or pecuniary fines’ (emphasis added).

128 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 810.

129 M. McGregor, ‘Ending Corporate Impunity: How to Really Curb the Pillaging of Natural Resources’, 42 Case W Res J Int’l L (2009) 469, at 490. He goes on to explain how there are few alternative means for victims of pillaging to recover lost resources: at 492–3.

130 ACC Statute, Art. 46L (Co-operation and Judicial Assistance).

131 ACC Statute, Art. 46Jbis (Enforcement of fines and forfeiture measures).

132 Making a similar point in defense of ICC competence over corporations, see: Jordan Sundell, ‘Ill-Gotten Gains: The Case for International Corporate Criminal Liability20:2 Minnesota J Int’l L (2011) 648, 673.

133 There is a notable geographical distribution of corporate headquarter states. They are predominantly developed states, many being Western European, though this is beginning to change: B. Roach, ‘A Primer on Multinational Corporations’, in A. D. Chandler Jr and B. Mazlish (eds), Leviathans: Multinational Corporations and the New Global History (Cambridge University Press 2005) 24–8.

134 ACC Statute, Art. 46Jbis (Enforcement of fines and forfeiture measures) and 46L (Co-operation and Judicial Assistance).

135 Colvin (n 99) 29.

136 Ibid.

137 G. Baars, ‘“It’s Not Me, It’s the Corporation”: The Value of Corporate Accountability in the Global Political Economy’, 4(1) London Rev Int’l L (2016) 127, at 152 (noting this is one of a number of ways in which corporations can externalize financial penalties).

138 Ibid.

139 For a discussion of the challenges that arose during drafting negotiations at Rome due to differences between states on substantive principles of criminal law, see Saland (n 20).

140 For detailed analysis of this form of liability and its origins and application at the ICC, see the selection of papers in the ‘Special Symposium’, 9 JICJ (2011) 85–226; N. Jain, ‘The Control Theory of Perpetration in International Criminal Law’, 12(1) Chicago J Int’l L (2011) 159200; F. Jessberger and J. Geneuss, ‘On the Application of a Theory of Indirect Perpetration in Al Bashir’, 6(5) JICJ (2008) 853; H. Olasolo, The Criminal Responsibility of Political and Military Leaders as Principles to International Crimes (Hart 2009) 116–34 and 302–30; H.G. van der Wilt, ‘The Continuous Quest for Proper Modes of Criminal Responsibility’, 7(2) JICJ (2009) 307; J. David Ohlin, E. Van Sliedregt and T. Weigend, ‘Assessing the Control Theory’, 26 LJIL (2013) 725.

141 Indeed, Larissa van den Herik has noted that, provided certain conditions are met, the question of whether a process constitutes a ‘criminal charge’ is not always determined in international law solely according to the domestic qualification: ‘Corporations as Future Subjects of the International Criminal Court: An Exploration of the Counter Arguments and Consequences’, in C. Stahn and L. van den Herik, Future Perspectives on International Criminal Justice (TMC Asser Press 2010) 362.

142 The challenge, in turn, with this proposition is the question of who is the intended audience for the purpose of social messaging in cases involving international and transnational crimes.

143 See, e.g., the comments of Mark Pieth in the context of review of the OECD Convention on Bribery, quoted in Allens Arthur Robinson (n 88) 8.

144 For others advocating a similar solution for similar reasons, see Ezeudu (n 30) 52–3; van den Herik (n 141) 361–2.

145 See Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi (Decision on the Admissibility of the Case), ICC Pre-Trial Chamber I, 31 May 2003.

146 ACC Statute, Art. 19bis (4).

147 For a discussion of considerations when deciding which entity to prosecute when dealing with a transnational corporate group and the practical and legal issues that can arise, see J. Gobert and M. Punch, Rethinking Corporate Crime (Butterworths Lexis Nexis 2003) ch 5; J. Clough, ‘Punishing the Parent: Corporate Criminal Complicity in Human Rights Abuses’, 33(3) Brook J Int’l L (2008) 899.

148 Gobert and Punch (n 147) 157; Clough (n 147) 922.

149 Clough (n 147) 923.

150 Gobert and Punch (n 147) 157.

151 Clough (n 147) 922.

152 Ibid 922–3

153 Ibid 923.

154 One example would be the Nigerian Corporate Affairs Commission: Chijioke Okoli, ‘Criminal Liability of Corporations in Nigeria: A Current Perspective’ [1994] 38(1) JAL 35, 39–40 (describing the functions of this body).

155 Sundell (n 132) 660–1 and 672–3; Ezeudu (n 30) 51.

156 D. Deya, ‘Worth the Wait: Pushing for the African Court to Exercise Jurisdiction for International Crimes’, OpenSpace on Int’l Crim Justice (2012) 22, at 26.

28 Administering International Criminal Justice through the African Court Opportunities and Challenges in International Law

Chile Eboe-Osuji
1. International Law and Regional Arrangements

As you may know or recall, in 2014, during their Summit in Malabo, the African Union (AU) adopted a protocol for the stated purpose of conferring criminal jurisdiction upon the African Court of Justice and Human Rights (AC or African Court).

In reflecting upon the opportunities and challenges in international law that lie for the African Court, as an instrument of international criminal justice, a primary normative question of law concerns the attitude of international law towards such a regional arrangement. That is to say: Does international law stand against criminal jurisdiction for the African Court – perhaps out of a perceived need to protect the ICC?

The short and simple answer to that question is: No. International law does not stand against criminal jurisdiction for the African Court – certainly not out of any need to protect the ICC. In fact, no provision in the Rome Statute forbids criminal jurisdiction for a regional court like the AC. Nor, should it.

Notably, the UN Charter recognises regional arrangements – and even positively encourages them. In that regard, article 52 of the UN Charter provides as follows:

  1. 1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

  2. 2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.

  3. 3. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.

And quite significantly, in relation to the administration of international justice, the following may be noted. Having established the ICJ, the UN provided as follows in article 95 of the Charter: ‘Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future’.

So, it is that the European Court of Justice, the African Court of Justice and Human Rights, Ecowas Court of Justice, the East African Court of Justice, the Caribbean Court of Justice, etc, can exist despite the ICJ. And, if they can exist alongside the ICJ, there is very little reason to worry that the mere existence of the ICC is a reason in law against giving criminal jurisdiction to the AC.

It may thus be said with some confidence that international law – certainly in light of the precedents in the UN Charter – is positively disposed towards apparently competing regional arrangements, as long as existing arrangements are not deliberately undermined in bad faith.

2. Administering International Justice through the African Court: Opportunities

Having addressed the question of the normative attitude of international law towards regional arrangements, of which the AC (exercising criminal jurisdiction) is certainly a part, we will next consider the substantive question whether the world is – in whole or in part – improved by conferring criminal jurisdiction upon the AC.

Other things being equal – and I stress that caveat, ‘other things being equal’ – there is potentially immense value in conferring criminal jurisdiction upon the AC.

A. Non-ICC Crimes

We see this value in its clearest relief in relation to crimes on which the Rome Statute is silent.

There are 14 crimes proscribed in the AC amended Protocol,1 as compared to four crimes (including aggression) recognised in the Rome Statute. Ten (10) of the AC crimes are crimes that the Rome Statute does not deal with. They include:

  • Piracy (the oldest international crime)

  • Mercenary activities

  • Treasonous usurpation of political power

  • Corruption

Upon a fair, objective view, it may be that some of these additional crimes speak to especial concerns that African leaders are entitled to have. Take corruption or kleptocracy, for example, some may say that the human toll of corruption can be just as devastating in the long run as the ravages of armed conflict. The point is adequately made in the following words of UN Secretary General Kofi Annan, in a foreword he wrote in 2004 to a publication on the UN Convention against Corruption, he went even further, saying:

Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish.

This evil phenomenon is found in all countries – big and small, rich and poor – but it is in the developing world that its effects are most destructive. Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a Government’s ability to provide basic services, feeding inequality and injustice and discouraging foreign aid and investment. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development.2

African States are thus, without doubt, entitled to take collective regional action against corruption and other troubling crimes – in the face of the silence of the Rome Statute on those crimes.

It is also notable that the AC dispensation recognises the attribution of criminal responsibility to corporations [article 46C].

The foregoing thus shows us how it is that the value of criminal jurisdiction for the AC is seen most clearly from the perspective of the crimes over which the ICC currently lacks jurisdiction

B. ICC Crimes

But, even for crimes under the Rome Statute, there is much value in giving the AC jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression.

The point may be appreciated from the perspective of extension of the notion of complementarity – that being the hallmark of ICC’s jurisdiction. Conferring criminal jurisdiction to the AC over Rome Statute crimes involves an extended notion of complementarity in more ways than one. First, it involves ‘intermediation of complementarity’. This is by the recognition of another adjudicatory forum between the current polarities of national jurisdictions and that of the ICC: all with the viewing to ensuring accountability – with ICC remaining a court of last resort in any event. Second, it also connects rather well with the idea of ‘positive complementarity’ – an ICC-OTP idea – that enables national jurisdictions to try residual cases that the ICC cannot try, in view of limited capacity and resources.

There is thus nothing wrong with systematically building capacity at the regional level to try ICC crimes as well. It fully complements the OTP’s vision of seeing national jurisdictions positively enabled to try the crimes that the ICC is unable to try.

From the foregoing considerations then, there is no doubt at all in my mind that the world – from the particular perspective of Africa – is improved immensely by conferring criminal jurisdiction upon the African Court. Provided there is no obstacle to the role of the ICC as a court of last resort, in relation to those AC crimes over which the ICC also has jurisdiction. The idea being that where either the national jurisdiction or the AC is unable or unwilling to investigate or prosecute, the situation will by default remain admissible at the ICC.

3. Automatic Deferral as A Major Challenge

Having settled the question of the value of conferring criminal jurisdiction to the AC, we now turn to the challenges presented. I recall the lecture topic: ‘Administering International Criminal through the African Court – Opportunities and Challenges in International Law’. The question now is whether we have reason to worry. Should we worry that the rosy vision of the opportunity of administering international criminal justice through the AC stands in danger of being undermined? The direct answer is: Yes, indeed. There is a great big reason to worry.

A normative reason for that worry lies in the automatic deferral that the AU has prescribed for serving Heads of States and senior state officials as an integral part of the AU’s conferment of criminal jurisdiction upon the AC.

A. The Troubling Provision: Deferral v. Immunity

The troubling provision appears in article 46Abis of the amended AC Statute. It provides as follows: ‘No charges shall be commenced or continued before the Court against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.’

Notably, article 46Abis is not presented in the manner of bare-faced immunity for the officials concerned. Indeed, article 46B(2) eschews such immunity on its face, by providing as follows: ‘Subject to the provisions of Article 46Abis, the official position of any accused person shall not relieve such person of criminal responsibility nor mitigate punishment.’

Strictly speaking, then, article 46Abis does not prevent investigation or prosecution. It only defers them automatically until the suspect has left office.

B. Article 46Abis: Anti-Crime Prevention

But, this automatic deferral of investigation or prosecution (of a very broad category of serving officials) is directly significant to the question of the potential value of the AC as an instrument of transnational criminal justice – and crime prevention. This is because the automatic deferral has immense potential to give unwitting cover to potential beneficiaries of the deferral possibly giving them an incentive to either attain power or to retain it in any way that they can in order to delay or escape criminal proceedings.

And that presents a particular paradox even to the AU’s own purpose of criminalising treasonous usurpation of political power. That is to say, there is the curious scenario where anyone who accesses power through treasonous means will be protected by article 46Abis – giving him refuge to engage in further violations of the sub-regional norm against treasonous maintenance of power until he chooses to leave or is ousted. It is thus immediately clear that article 46Abis constitutes a serious contradiction to an important regional norm of the AU – as it potentially does to all of AU’s efforts in proscribing all the crimes contemplated in the Malabo Protocol, to the extent that such crimes can be committed by a Head of State inclined to commit them.

C. The Flawed Premise of Article 46Abis

What is especially worrisome about the normative circumstances of article 46Abis is the false premise that apparently underlies it. That premise is encapsulated in the following AU position statement made by a leading African statesman in 2013 – one year before the adoption of article 46Abis: ‘Our position is that certain Articles of the Rome Statute are of grave concern to Africa. In particular, Article 27 which denies immunity to all persons without regard to customary international law, conventions and established norms, must be amended.’3

It helps to recall that article 27 of the Rome Statute (as referred to) is the provision that forbids official position immunity, even for Heads of States. It provides:

  1. 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

  2. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

The quote from the leading AU statesman, complaining against article 27, has two important elements of interest. The first element is in the coded text ‘certain articles of the Rome Statute are of grave concern to Africa.’ It engages the question as to what it is about the provisions of the Rome Statute that should be ‘of grave concern to Africa’?

In the temporal context of the statement, it is not difficult to think of the complaints often heard from certain quarters to the effect that: the ICC is an instrument of western imperialism and neo-colonialism and is being used as such to target African leaders.

The second element of the leading AU statesman’s speech engages the suggestion that international law (either by treaty or by custom) normally or normatively affords immunity to State officials, while in office.

Taken together, the two elements present the composite idea that by denying immunity to even Heads of States and senior states officials – while in power – article 27 of the Rome Statute is a mischievous, legally aberrant provision, which makes it easy for the ICC to be used as an instrument of neo-colonialism, for the illicit purpose of targeting African Heads of State and senior state officials.

There is no doubt that article 46Abis was motivated by that premise. Seen in that light, article 46Abis thus becomes a corrective that supposedly shows how the Rome Statute must be amended, with a particular view to taming the aberration appearing in article 27, in order to comport it to international law. But, it is a mistaken premise.

D. Article 27 of the Rome Statute as a Codification of the Third Nuremberg Principle

In order to appreciate why it is a mistaken premise, it is necessary to consider that a major event in the history of customary international law, as regards not only individual criminal responsibility but also the rejection of immunity for State officials including Heads of State, was the UN’s approval of the principles of law distilled from both the Nuremberg Charter and the judgment of the Nuremberg Tribunal.

In resolution 95(I) adopted on 11 December 1946, the UN General Assembly affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal. And the UN General Assembly tasked the International Law Commission to formulate the Nuremberg Principles ‘as a matter of primary importance’.

During their second session in 1950, the ILC submitted to the UN General Assembly the Commission’s report covering the work of that session. Included in the report were the Principles of International Law recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, including commentaries.

The third of the Nuremberg Principles appears as follows: ‘The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.’

The development did not have African leaders in mind or sight. It had Nuremberg in mind and hindsight. From then on, every international law basic document establishing an international criminal tribunal – from the ICTY,4 to the ICTR,5 to the SCSL,6 to the ICC7 – has repeatedly restated the Third Nuremberg Principle. The repetition thus firmly established the exclusion of the plea of official position immunity including for Heads of State – as a norm of customary international law, concerning cases before international criminal courts.

As observed earlier, the Third Nuremberg Principle did not have African leaders in mind when it was formulated in 1950.

**

E. A Distinction: Foreign Immunity in National Courts: Par in Parem Non Habet Imperium

But, in excluding official position immunity, the focus of the Third Nuremberg Principle is prosecution before international courts exercising criminal jurisdiction. That is the generally accepted understanding.

Conversely, it is not generally accepted that the Third Nuremberg Principle operates in relation to national courts. For, in that regard, customary international law does indeed recognise immunity for foreign sovereigns in criminal proceedings before national courts.

The immunity that foreign sovereigns enjoy before national courts follows from the principle of sovereign equality of States – a cardinal principle of international law – notably expressed in article 2(1) of the UN Charter: ‘The Organisation is based on the principle of the sovereign equality of all its Members.’ And the principle of sovereign equality of States anchors the idea that among equals none has dominion: par in parem non habet imperium. In my view, the doctrine of sovereign equality of States is the only rational basis for foreign sovereign immunity before national courts. There is no other basis for it.

The doctrine of sovereign immunity before national courts operates to exclude prosecution even for international crimes.8 Hence, the full value of the Third Nuremberg Principle is to preclude immunity before international courts exercising criminal jurisdiction.

**

But how come it was a Nuremberg Principle? It was so because the principle appeared in article 7 of the Nuremberg Charter of 1945, which provided as follows: ‘The official position of defendants, whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment.’ Article 6 of the Charter of the Tokyo Tribunal contained a similar provision. So, too, did the Control Council Law No 10 (CCL No 10).9 It was thus that the Nuremberg Tribunal tried Grand Admiral Dönitz – who had succeeded Hitler as the Head of State of Germany. Similarly at the Tokyo Tribunal, Prime Minister Hideki Tojo was tried. Dönitz was convicted and sentenced to ten years jail term. Tojo was convicted and hanged. They weren’t African leaders.

F. The Provenance of the Third Nuremberg Principle

But, was article 7 of the Nuremberg Charter an accident? No, it was not. It resulted, rather, from a deliberate policy decision taken at the London Conference of 1945, to bar the plea of immunity during the Nuremberg trials. Notably, Justice Robert Jackson (the US representative to the London Conference) played a leading role in championing the norm stated in article 7 of the Nuremberg Charter. He argued fervently for it. And he sought its approval from President Truman in a report that he made to Truman in June 1945. In the report, Jackson repudiated ‘the obsolete doctrine that a head of state is immune from legal liability.’ And, he continued as follows:

There is more than a suspicion that this idea is a relic of the doctrine of the divine right of kings. It is, in any event, inconsistent with the position we take toward our own officials, who are frequently brought to court at the suit of citizens who allege their rights to have been invaded. We do not accept the paradox that legal responsibility should be the least where power is the greatest. We stand on the principle of responsible government declared some three centuries ago to King James by Lord Chief Justice Coke, who proclaimed that even a King is still “under God and the law”.10

*

Mind you, he was writing all of this to his own Head of State – President Truman. And quite significantly, Truman accepted the propositions as the American position. And these are the makings of customary international law in 1945, culminating in the exclusion of immunity for Heads of State and State officials, as eventually articulated in article 7 of the Nuremberg Charter [also article 6 of Tokyo Charter and article II(4)(a) of CCL No 10].

That is the immediate provenance of the norm that is now known colloquially as the Third Nuremberg Principle – which got eventually codified in article 27 of the Rome Statute (adopted in 1998) for purposes of the ICC. The development of the norm had nothing at all to do with any plot to prosecute African leaders at the ICC. Rather, the norm enabled the prosecution of the leaders of the most powerful States in Europe and Asia during World War II.

*

And, it is worth repeating for emphasis that the norm does not then become part of a plot to target African leaders, merely because that old norm has now been restated in article 27 of the Rome Statute. I called it ‘that old norm’ not merely because it was firmly established 71 years ago in the Charters of the Nuremberg and the Tokyo tribunals. Of course, by all accounts, a norm that is 71 years old is ripe enough to qualify as an ‘old norm’ indeed.

*

Notably, still, the repudiation of immunity of Heads of States from the jurisdiction of international criminal tribunals is traceable to the Versailles Treaty of 1919 – making it almost 100 years old – 97 years old to be precise. We see it reflected in article 227 of the Versailles Treaty, according to which the States Parties ‘publicly arraign[ed] William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.’ That agreement also anticipated the creation of a ‘special tribunal … to try the accused …’

And, mark this. Article 227 of the Versailles Treaty similarly was not an accident. In fact, at the drafting stage, Robert Lansing, the American Secretary of State had vigorously objected to the provision, when it was being discussed within the Versailles Treaty’s Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties. In addition to being the US Secretary of State, Lansing was both the Chairman of the Commission, as well as the head of the US delegation to the Commission. But his objection was emphatically opposed and roundly rejected by the majority of the Commission, spearheaded by Great Britain. Notably, in their report, the Commission expressed themselves as follows:

It is quite clear from the information now before the Commission that there are grave charges which must be brought and investigated by a court against a number of persons. In these circumstances, the Commission desire to state expressly that in the hierarchy of persons in authority, there is no reason why rank, however exalted, should in any circumstances protect the holder of it from responsibility when that responsibility has been established before a properly constituted tribunal. This extends even to the case of heads of states. An argument has been raised to the contrary based upon the alleged immunity, and in particular the alleged inviolability, of a sovereign of a state. But this privilege, where it is recognized, is one of practical expedience in municipal law, and is not fundamental. However, even if, in some countries, a sovereign is exempt from being prosecuted in a national court of his own country the position from an international point of view is quite different.

That marked the international community’s earliest contemplation of an international criminal court. It also marked the international community’s earliest statement of the idea of individual criminal responsibility for violation of international law. And it also marked the earliest repudiation of immunity for Heads of State for purposes of the jurisdiction of an international criminal tribunal. That was almost 100 years ago – almost 80 years ahead of the adoption of the Rome Statute in 1998. It had nothing at all to do with the need to prosecute African leaders. The norm was conceived out of the need to prosecute the most powerful European leader during World War I.

4. Accommodating Extraordinary Duties of State at the Highest National Level

It may be possible to consider that the concern of article 46Abis of the amended AC Statute is to prevent disruption to the daily or regular functioning of a national government: if a State’s senior officials are exposed to criminal prosecution. But, the remedy to that mischief could have been achieved with the insertion into the amended AC Statute of a provision similar to rule 134quater of the Rules of Procedure and Evidence of the ICC. Rule 134quater of the Rules provides that an accused who (on the one hand) is summonsed to appear at trial and who (on the other hand) is mandated to fulfil extraordinary public duties at the highest national level may waive the right to be present at trial, and be excused from continuous presence at trial – if he is represented by counsel.

This judicial determination may be made if alternative measures are inadequate, if it is in the interests of justice and if the rights of the accused are fully ensured.

Rule 134quater is a ‘special procedural rule’ designed for the benefit of persons mandated to fulfil extraordinary duties at the highest national level. But it contemplates neither immunity from the jurisdiction of the Court nor automatic deferral of a case. To the contrary, its aim is to ensure that accused persons mandated to fulfil extraordinary duties at the highest national level will remain within the jurisdiction of the Court, with their trials conducted with minimum interruption as a result of the legitimate demands of their public office. Clearly excusal from presence at trial and deferral of investigation or prosecution are different matters.

5. Conclusion

There is immense value in conferring criminal jurisdiction to the AC – both as regards crimes within the Rome Statute and more so as regards crimes over which the ICC has no jurisdiction. It is much to be regretted, however, that such immense value is severely undermined by the regime of automatic deferral of cases against Heads of States and other senior State officials. The challenge will be to find ways of maximizing the opportunity presented, while minimizing the challenges.

1The 14 crimes are as follows:

  1. (1) Genocide

  2. (2) Crimes Against Humanity

  3. (3) War Crimes

  4. (4) The Crime of Unconstitutional Change of Government (this proscribes the commission or ordering of certain acts aimed at illegally accessing or maintaining power)

  5. (5) Piracy

  6. (6) Terrorism

  7. (7) Mercenarism (prohibiting the recruitment, use, financing or training of mercenaries)

  8. (8) Corruption (in both the public and private sector)

  9. (9) Money Laundering

  10. (10) Trafficking in Persons

  11. (11) Trafficking in Drugs

  12. (12) Trafficking in Hazardous Wastes

  13. (13) Illicit Exploitation of Natural Resources

  14. (14) The Crime of Aggression

2 United Nations, Office of Drugs and Crime, United Nations Convention against Corruption (2004) p iii.

3 See text of President Jonathan’s speech at the 11–12 October 2013 Extraordinary Session of the African Union Assembly.

4 See Art. 7(2) ICTYSt.: ‘The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.’

5 See Art. 6(2) ICTRSt.: ‘The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.’

6 See Statute of the Special Court for Sierra Leone, Art. 6(2): ‘The official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.’

7 See Art. 27 of the Rome Statute: ‘1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’

8 See ICJ judgments in both the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), International Court of Justice, 14 February 2002, ICJ Reports (2002) 3; and the Jurisdictional Immunity of the State (Germany v. Italy), International Court of Justice, 3 February 2012, ICJ Reports (2012) 99.

9 Art. II(4)(a) of the Control Council Law No 10 also prohibited official position immunity in proceedings before national or occupation courts exercising jurisdiction in Germany, pursuant to article 6 of the London Agreement of 8 August 1945.

10 Justice Jackson’s Report to the President on Atrocities and War Crimes on 7 June 1945. Available online at http://avalon.law.yale.edu/imt/imt_jack01.asp

29 Article 46A Bis Beyond the Rhetoric

Dire Tladi
1. Introduction

Article 46A bis of the Malabo Protocol has, without a doubt, attracted more attention than any other provision in the protocol. For many, Article 46A bis is the defining feature of the Malabo Protocol. The debates around Article 46A bis have centred on both legal and policy issues. In particular, the debates have focused on the consistency of Article 46A bis with customary international law and the fight against impunity.

Much of the debate has tended to reflect the hero-villain trend that has been so characteristic of International Criminal Court (ICC)–African Union (AU) debates relating to immunities of heads of state in recent years.1 As with other debates in which the self is portrayed as a hero and the other as a villain, much of the positions on both sides of the divide ignore the nuances of what is a complex area of law. In the jockeying for positions, the line between doctrinal positions and normative policy assertions become blurred. Sometimes they disappear altogether. The doctrinal question whether the recognition and application of immunities of certain officials before international courts is consistent with modern international law is very often answered by the normative policy postulation that AU should not have included the immunities provision in the Amendment Protocol. Conversely, the normative postulation questioning the wisdom of prosecuting heads of state is met by a reference to a provision in the Rome Statute, namely Article 27. Added to the mix is very often an empirical assertion, either that a position will result in impunity or will lead to the destabilisation of a country or region. Further complicating the discourse is the resort by commentators to the political rationale or objective behind the Amendment Protocol (Malabo Protocol) i.e. some commentators have asserted that the Amendment Protocol, and the immunity provision in particular, was a response to the prosecutions by the ICC of African heads of state.

In this chapter, I assess the merits of some of the arguments that have been advanced both in support of and against Article 46A bis. I begin, in the next section, by providing the context for the debate, namely the importance of the immunities question in the AU and ICC tension. The following section will then identify the various propositions underlying the arguments for and against Article 46A bis. I then evaluate these propositions on the basis of the rules of international law before offering some concluding remarks.

2. Setting the Context: ICC–AU Tension and the Centrality of Immunities

Central to the ICC–AU tension has been the issue of ‘targeting’ of Africans, i.e. the fact that all the cases currently before the ICC are against Africans. In truth, however, the tension between the ICC and AU arises not because only Africans have been indicted but because African heads of State have been indicted. All the decisions against ICC-related decisions by the AU have concerned situations in which an African head of State has been indicted – Darfur, Libya and Kenya.2 The real complaint of the AU against ICC is therefore, the indictment of African heads of State. In legal language, this complaint finds expression in the debate on immunities.

Discussions on immunities in international law are dominated by two central themes. The first theme relates to the importance of immunity for international law and international relations.3 The International Court of Justice (hereinafter the ‘ICJ’) has, for example, declared that the rule of international law relating to immunities ‘derives from the principle of sovereign equality of States, which … is one of the fundamental principles of the international legal order’.4 The second theme concerns a gradual shift in paradigm and the emergence of a new vision of international law challenging the dominant state-centred and sovereignty based paradigm. This competing vision of international law is characterised by an emphasis on values, where sovereignty no longer trumps other values.5 This shift in paradigm is consistent with a restricted view of immunities and an emphasis on accountability.6 This shift which has been recognised in the literature is also reflected in judicial practice.7 Explaining the expansion of grounds of jurisdiction, Judges Buergenthal, Higgins and Kooijmans referred to ‘the emergence of values which enjoy an ever-increasing recognition in international society’.8 However, it is important to understand that while there is a gradual shift, it cannot be said that international law has lost its state-centric nature. Jouannet describes the current state of the law as, ‘a more multiform and complex law, characterised by greater solidarity, which still flirts with this idea of sovereignty while at the same time seeking to surpass it in favour of a common good’.9

In the context of immunities, these sentiments about the current state of international law are echoed by the joint separate opinion of Judges Buergenthal, Higgins and Kooijmans:

These trends reflect a balancing of interests. On the one scale, we find the interest of the community of mankind … on the other, there is the interest of the community of States to allow them to act freely on the inter-State level … Reflecting these concerns, what is regarded as permissible jurisdiction and what is regarded as the law on immunity are in constant evolution.10

This tussle between the traditional and emerging international law and their respective influence on the law of immunities is central also to the understanding of the debate surrounding Article 46A bis. Thus, some see Article 46A bis as antithetical to the modern vision of international law while others see it as reflecting existing rules of international law.

3. Immunity before the African Court: Unpacking the Case for and Against
A. Scope of Immunity in the Amendment Protocol

Before addressing some of the issues that have been raised concerning the immunity provision in the Amendment Protocol, it is useful to set out the provision and attempt to identify its scope. Article 46A bis of the Amendment Protocol provides as follows: ‘No charges shall be commenced or continued against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office’.

As a preliminary point, and irrespective of doctrinal and normative issues, the text of Article 46A bis is ambiguous and not well drafted. Firstly, what is meant by ‘or anybody … entitled to act in such capacity’, a phrase which first appeared in the decisions of the AU Extraordinary Summit of October 2014,11 is not at all clear. One possible reading is that phrase refers to any number of persons including potentially all ministers and even all members of parliament in some states.12 This very broad interpretation is inherently relative and would result in different rules being applicable to officials from different states since whether a person enjoyed immunity before the African Court would depend on the constitutional system of each State. At its narrowest, however, the provision could be limited to the deputy Head of State or Government.13 This latter, more narrow interpretation, is more objective and is more consistent with the objective of the decision in which the phrase first appeared i.e. to prevent the prosecution of Kenya’s head of State and his deputy. For the purpose of the analysis below, the more narrow meaning of the phrase is assumed although the broader interpretation cannot be ruled out.

The second ambiguity relates to whether Article 46A bis aims at providing two different regimes of immunity i.e. immunity ratione personae and immunity ratione materiae, or only one.14 Moreover, if the aim is to establish only one regime, it would be unclear whether the regime would be immunity ratione materiae or immunity ratione personae. An ordinary meaning of Article 46A bis appears to support two separate categories.15 The first category, approximating immunity ratione personae, would be applicable to ‘Heads of State or Government’ and ‘anybody acting or entitled to act in such capacity.’ The second category, approximating immunity ratione materiae, applies to ‘other senior officials based on their functions’. The phrase, ‘based on their functions’ in Article 46A bis, appears to only qualify ‘other senior officials’ and not ‘Heads of State or Government, or anybody acting or entitled to act in such capacity.’ An interpretation of Article 46A bis as establishing two categories of immunities would also be consistent with applicable principles of international law.16 Assuming this interpretation were the more correct interpretation, it would mean that, contrary to the conclusions of the ILC and the decision of the International Court of Justice in the Arrest Warrant case, immunity ratione personae under the Statute of the African Court would not be extended to Ministers for Foreign Affairs.17 Other senior officials, including Ministers for Foreign Affairs, would then be entitled to immunity ratione materiae for functions performed in their official capacity.

An alternative interpretation of Article 46A bis is that it establishes only immunity ratione personae. Under such an interpretation, ‘based on their functions’ does not qualify the extent of immunity but rather forms part of the description of the senior officials. In other words, senior officials, defined in terms of their functions, enjoy the immunity of Heads of State or Governments and other anyone acting or entitled in that capacity. Indeed the phrase ‘based on their functions’ appears to have been drawn from the ICJ’s reasoning for extending immunity ratione personae to Ministers for Foreign Affairs in the Arrest Warrant case.18 This interpretation is supported mainly by the fact that in its earlier decisions leading to the adoption of Article 46A bis, the AU has never made a distinction between the immunities of heads of state and those of other senior state officials.19 Moreover, such an interpretation would resolve the inconsistency between the first interpretation and the decision of the International Court of Justice in Arrest Warrant case identified above. Although the Article 46A bis could be read as establishing two categories of immunities, namely immunity ratione materiae and immunity ratione personae, on a balance it appears that this second alternative is likely what was meant by the AU. It is unnecessary to resolve this interpretative ambiguity, save to recognise these two possible readings of the provisions. Under the second interpretation, in which only one type of immunity is recognized, other officials whose functions do not exhibit the characteristics identified by the Court in the Arrest Warrant case as indicating immunity ratione personae would not have immunity before the African Court’s criminal law section.

B. Arguments on the Immunity Provisions in the Amendment Protocol

As a normative proposition, arguments against the immunity provisions in the Amendment Protocol are numerous and include arguments based on the fight against impunity. However, as a doctrinal question, arguments against the immunity provisions in the Amendment Protocol have tended to revolve around its consistency with international law and the Rome Statute in particular. Jemima Njeri Kariri, for example, puts forward primarily normative arguments against the immunity provision. She observes, for example, that the immunity provision is a ‘setback to advancing democracy and the rule of law’ and provides a ‘protective veil that denies justice to victims and is detrimental to accountability’.20 These are all normative arguments that suggest that the AU should not have included the immunity provision. Although not focused on the legal doctrinal question about the place of immunity in international (and domestic) law, Njeri Kariri postulates, as a legal position, that ‘the immunity provision flouts international law and is contrary to the national laws of African states like Kenya and South Africa.’21

The doctrinal argument, questioning the legal basis of an immunity provision in the Amendment Protocol can be illustrated by a reference to Chacha Bhoke Murungu’s observations on the African Court.22 Murungu asserts, citing Article 27 of the Rome Statute, that ‘immunity of state officials is no longer a valid defence for the commission of international crimes’.23 This position is also one that appears to have been advanced by the ICC in its decisions in the Malawi and Chad non-cooperation cases.24 More to the point, Murungu asks whether extending the jurisdiction of the African Court to cover Rome Statute crimes (along with Article 46A bis) ‘has a legal basis under the ICC Statute’.25 The Rome Statute, he asserts, ‘does not expressly allow or even imply that regional courts … be conferred with jurisdiction’ over Rome Statute crimes.26 On the basis of his analysis, he concludes that ‘it is difficult to establish a clear legal basis’ for extending the jurisdiction of the African court in the Rome Statute.27 Indeed, Murungu suggests that the very process of establishing the criminal section of the African Court was ‘contrary to the provisions of the ICC Statute’ in relation to cooperation.28 Murungu’s critique of the extension of the jurisdiction of the African Court is based on the issues of immunity of African Heads of State raised by the AU. He states, for example, that the only purpose behind the expansion of the jurisdiction of the Court is the AU’s attempts to ‘protect some of its leaders’.29

The arguments of Murungu are reflective of the whispers in the corridors of ICC meetings, even if not always captured in the literature. This argument can be reduced to three related propositions. First, customary international law does not provide for immunity of officials before international courts. Second, the provision of immunity in Article 46A bis is inconsistent with international law or, at best, goes against the trend of practice. Finally, the argument postulates that Article 46A bis undermines the Rome Statute. These legal propositions about immunity for Rome Statute crimes are very often based on normative statements about the effect of immunity on the fight against impunity. The granting of immunity is said to be contrary to the AU commitment of protecting the sanctity of life and condemning and rejecting impunity.30 Steven Lamony of the Coalition for the ICC is quoted as saying ‘Africa should be moving forward in the fight against impunity, not regressing’.31 Similarly Netsanet Belay of Amnesty International has said that the decision ‘undermines the integrity of the African Court’.32

The AU itself has defended the need for immunities both on normative and doctrinal grounds. According to the AU, under customary international law, ‘Heads of State and other senior state officials are granted immunities during their tenure of office’.33 As a doctrinal proposition, the AU has maintained that ‘immunities provided for by international law apply not only to proceedings in foreign domestic courts but also to international tribunals’.34 Providing for immunities of Heads of State and other officials in the Amendment Protocol is, therefore, from the AU’s perspective, acting in furtherance of international law.

The AU does not dispute the legality of arrangements such as those in Article 27 of the Rome Statute, which provides that neither immunity nor other special procedural rules attaching to the official capacity of a person constitute a bar for the ICC exercising jurisdiction of a person.35 The AU, instead, approaches Article 27 as a treaty rule applicable only to State Parties and that for non-State Parties, the rules of customary international law relating to immunities remain intact. In response to the decisions of the ICC on non-cooperation by Malawi and Chad, the AU issued a press release which stated, in part, that, ‘immunities of State officials are rights of the State concerned and a treaty only binds parties to the treaty. A treaty may not deprive non-Party States of rights which they ordinarily possess’.36

This position essentially presents Article 27 of the Rome Statute, and similar provisions in the statutes of international tribunals, as being exceptions to the rules of customary international law relating to immunities and applying only as between parties to the constitutive treaties. The immunities provision in the Amendment Protocol are, from this perspective, seen not only as acceptable but as reflecting customary international law. This has been the legal basis of the AU’s call for non-cooperation with the ICC’s request for the arrest and surrender of Al-Bashir.37 According to the AU, Article 27 leaves intact customary international law on immunities and the waiver of immunities implied by Article 27 applies only between States Parties to the Rome Statute. Thus, while there may be a duty on States Parties to the Rome Statute to cooperate in the arrest and surrender of a head of a State Party, no such a duty exists in relation to the arrest and surrender of a head of non-State Party.38 To the extent that there is such a duty under the Rome Statute, compliance with it results in a breach of international law obligations under customary international law thus engaging the responsibility of the cooperating State. While this aspect of immunity is not directly relevant to the debate on Article 46A bis, it does serve to illustrate the AU’s understanding of immunities under customary international law and, more to the point, the perceived exceptionality of Article 27 of the Rome Statute.

Both the positions supporting the immunities provision and the position opposing the provision are based on doctrinal assumptions about the rules of general international law relating to immunities. I turn now to evaluate these doctrinal assumptions.

4. Evaluating the Doctrinal Argument Concerning the Immunity Provision

I begin with an assessment of the AU position. First, it should go without saying that the duty to cooperate under the Rome Statute cannot deprive non-States Parties of their rights on immunities under customary international law. Treaties create rights and obligations only as between parties to the treaty and the rights of non-parties cannot be affected by the treaty.39 Whether this means, as is argued by the AU, that there is no duty to cooperate in the arrest and surrender of Al-Bashir is dependent on other legal questions, such as the effect of a Security Council referral of a situation to the ICC and the interpretation of Article 98, which fall beyond the scope of the enquiry here.40

While the assertion that the rights relating to immunities under customary international law of a non-State Party cannot be affected by the duty to cooperate under the Rome Statute cannot be disputed, what does require closer scrutiny is the assertion that under customary international law heads of State (and other officials entitled to immunity ratione personae) enjoy immunity before international courts and tribunals. This assertion seems to ignore the dictum by the International Court of Justice in the Arrest Warrant case where the Court stated that, notwithstanding the customary international law rules on immunity of officials from foreign criminal jurisdiction, a state official may still prosecuted before an international court under certain circumstances.41 But there is another far more fundamental problem with the AU’s postulation. The immunity of states officials, whether ratione personae or ratione materiae, under customary international law means, in essence, the immunity of state officials from the jurisdiction of courts of foreign states. This immunity is an extension of the immunity of the state from the jurisdiction of other states based on the principle of sovereign equality of states.42 International tribunals, like the ICC and the African Court, are not foreign states. The rationale for immunity of states and its officials, sovereign equality of states, does not apply to the exercise of jurisdiction of international courts and tribunals since, thought created by states, they are not themselves states. Moreover, since the immunity of officials from the jurisdiction of the courts of foreign states can be shown to exist in the practice of states accepted as law, to extend this immunity to also international courts and tribunals would require evidence of practice of states accepted as law, which does not exist.43 Quite the contrary, if anything, given the history of international criminal law described in, for example, the ICC decisions in Malawi and Chad, there appears to be practice in the other direction.44 Therefore, the argument from the AU that the insertion of Article 46A bis is not only consistent with but is reflective of, customary international law is doctrinally flawed.

Does the fact that the AU proposition concerning immunity before international courts is incorrect, mean that the counter-proposition, i.e. customary international law rejects immunity, is correct? This was essentially the argument advanced by the ICC in Malawi and Chad.45 The experience with the Nuremberg Tribunals, the Tokyo Tribunals, the International Criminal Tribunal for the former Yugoslavia, the International Criminal for Rwanda, the Special Court for Sierra Leone and the Lebanon Tribunals constitutes practice evincing a denial immunity. However, to transform the empirical fact, practice in the language of law, to a rule of customary international law requires that the practice be accompanied by a sense of obligation i.e. the practice is required by law.46 No evidence of such an acceptance of law is present in relation to immunity of state officials before international courts and tribunals and none is presented by the ICC in Malawi and Chad. Indeed, in the debate over the arrest and surrender of Al-Bashir, those arguing that there was indeed a duty to arrest have advanced as a legal reason, not the fact that the court was an international court but rather because the situation was referred to the court by the Security Council, which, the argument goes, has the power to override customary international law.47

Proponents of the view that there is a rule under customary international law denying immunity before international courts and tribunals may point to the Arrest Warrant case.48 In the Arrest Warrant case, the International Court of Justice famously made the following observations: ‘immunities enjoyed under international law by an [official] do not represent a bar to criminal prosecution in certain instances. … Fourthly, an [official enjoying immunity in national courts] may be subject to criminal proceedings before certain international criminal courts, [sic] where they have jurisdiction’.49

The quoted extract, however, does not suggest anything about the status of immunities before international courts under customary international law. The ICJ was not laying down a rule of international law but referring to possible avenues that may be followed for the prosecution of officials with immunity if certain conditions were met. The first avenue provided by the ICJ, for example, refers to the possibility of a person being tried before the courts of their own state.50 Yet this can only happen if the national court in question has jurisdiction and the official in question has no immunity under domestic law. Similarly, an international court or tribunal can only try an individual if there is no jurisdictional bar, including immunity, to trying the individual. Whether or not the international court or tribunal will have jurisdiction and whether or not there is bar to the exercise of such jurisdiction will be dependent on the constitutive instrument establishing such as a court or tribunal.51 The argument that customary international law denies immunity before international courts is, therefore, unconvincing. At any rate, as a matter of customary international law, it is difficult to see how a rule of customary international law can form when the AU, representing more than a quarter of states, reject the said rule.

That there is no legal rule under customary international law denying immunity to state officials does not, of course, mean that a state official can plead immunity before a tribunal having jurisdiction which, by its constitutive instrument, has removed immunity such as Article 27 of the Rome Statute.52 By the same token, however, the exclusion of immunity in a treaty establishing an international court or tribunal does not affect the relationship between a non-State party to the treaty and State parties. Thus, the fact that a state is party to the Rome Statute does not imply that such a State is no longer obliged to respect the immunity of an official from a State that is not a Party to the Rome Statute. Indeed, even if the assertion that customary international law excludes immunities in respect of proceedings before international courts were correct – and I have argued that it isn’t – this would apply only as between the state officials and the international court or tribunal concerned and would not by itself affect the relationship between states inter se.53

If neither the AU argument that customary international law requires international courts to respect immunity, nor the argument advanced by, inter alia, the ICC that customary international law denies immunity before international courts is correct, then how is Article 46A bis of the Amendment Protocol to be understood from the perspective of customary international law? If customary international law neither requires nor rejects immunity before international courts and tribunals, then as a matter of law, the AU is free to include or exclude immunities as a bar to prosecution as it deems fit. Whether this is desirable or not is a different question. Thus, Article 46A bis is neither reflective of nor inconsistent with customary international law. The question may well be asked whether, under a treaty that is silent on immunities, state officials are entitled to claim immunities. Subject to the normal rules of interpretation, a court, national or international, having jurisdiction is entitled to exercise that jurisdiction unless there is a rule of international law prohibiting such exercise. This is not the same as saying, however, that there is a rule of international law excluding immunity.

A related question is whether Article 46A bis of the Amendment Protocol undermines the fight against impunity. The argument on which this is based appears to be that the extension of the African Court’s jurisdiction to international crimes while also expressly including immunity will shield perpetrators from the reaches of justice. However, this argument does not follow. The effect of the extension of the African Court’s jurisdiction is, potentially, to expand the reach of international criminal justice. It does not, as the argument may suggest, reduce this reach. Assuming African States that are not party to the Rome Statute become party to the expanded African court, then the reach of international courts to potential situations and perpetrators becomes enlarged. On the other hand, regardless of the number of States that fall within the jurisdiction of the expanded African court, the reach of the ICC will remain unaffected.

The idea that Article 46A bis of the Amendment Protocol affects the reach of international criminal justice can only be based on a misconstruction of the relationship between the AU Court and the ICC. Under Article 46A bis the African Court will not have the competence to try the persons having immunity, but this will not prevent the ICC from exercising jurisdiction against such persons if it has jurisdiction. Under the principle of complementarity, the ICC is of course barred from proceedings with trials where a court with competence is willing and able to exercise jurisdiction.54 This procedural bar, however, applies only to State prosecution and/or investigations and does not extend to the exercise of jurisdiction by regional courts. Although an amendment to the Rome Statute, to recognise the competence of regional courts for the purposes of complementarity has been transmitted to the Secretary-General by Kenya,55 this amendment is unlikely to be adopted by the Assembly of States Parties. At any rate, until such a time as an amendment has been passed, from the perspective of the ICC, Article 46A bis should be a non-issue.

5. Conclusion

The expansion of the jurisdiction of the AU Court to include also international crimes has raised much controversy in international criminal justice circles – both diplomatic and academic. Even more controversial has been the decision by the AU to make provision for immunities of certain officials before the AU Court in the form Article 46A bis. In the back and forth of arguments for and against Article 46A bis, normative policy argument, empirical statements and doctrinal arguments have been lumped together in a way that can result in confusion. This confusion has aided in the perpetuation of the hero-villain trend in which supporters of the ICC see themselves as heroes and the AU as villains and the supporters of the AU see themselves as heroes and the ICC as villains.

In the eagerness to put on the white hat and fight the evil ‘other’, basic principles of international law are conveniently covered in a heap of rhetoric and slightly bent doctrine. Much of the confusion created by the debate arises from the failure by commentators to make a distinction between the law relating to immunity and the wisdom (or desirability) of Article 46A bis. Supporters of Article 46A bis present it as salvaging international law and reclaiming the foundational international principle of sovereignty by preserving immunity. What is ignored in this narrative is that international law rules on immunity apply to the exercise of jurisdiction by domestic courts over officials of a foreign state and that customary international law neither requires immunity before international courts nor prevents it. Opponents of Article 46A bis, on the other hand, present it as doing harm to the fight against impunity by protecting officials from the reach of international courts. What is ignored is that the expansion of the jurisdiction of the African court does not, in any way, affect the jurisdiction of other courts, including the ICC, and can in no way prevent the exercise of jurisdiction by those courts of individuals who may be immune from prosecution before the African Court by virtue of Article 46A bis.

This chapter is an updated version of an article that appeared as ‘The Immunity Provision in the AU Amendment Protocol: Separating the (Doctrinal) Wheat from the (Normative) Chaff’ (2015) 13 Journal of International Criminal Justice 3.

1 See D. Tladi, ‘When Elephants Collide It Is the Grass That Suffers: Cooperation and the Security Council in the Context of the AU/ICC Dynamic7 African Journal of Legal Studies (2014) 381, at 381 where the author described debates on the ICC as being ‘characterised by an ideological chasm that has pitted villains against protagonists – with both sides casting the other villains intent on wanton destruction and themselves as protagonists fighting the good fight’.

2 See, e.g., Decision on the Progress Report of the Commission on the Implementation of the Previous Decisions on the International Criminal Court, Assembly/AU/Dec.547 (XXIV), January 2015, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), (Assembly/AU/Dec.245(XIII)) July 2009; Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec.270(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC) (Assembly/AU/Dec.296)(XV), July 2010; Decision on the Implementation of the Decisions on the International Criminal Court, (Assembly/AU/Dec/334(XVI), January 2011; Decision on the Implementation of the Assembly Decisions on the International Criminal Court, (Assembly/AU/Dec.366 (XVII), July 2011.

3 See Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), International Court of Justice, 3 February 2012, ICJ Reports 2012, 99 at para 56 where the Court states that ‘the rule of State immunity occupies an important place in international law and international relations’. See also separate opinion of Judge ad hoc Bula Bula in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), International Court of Justice, 14 February 2002, 2002 ICJ Reports 3 at paras 31 and 41.

4 See Jurisdictional Immunities of the State case, supra note 3 at para. 56. See also separate opinion of Judge Bennouna in Jurisdictional Immunities of the State case who, at para 4, describes the theme as follows: ‘starting from an absolute concept of sovereignty, States had inferred an equally absolute concept of immunity, which allowed one State to claim immunity from the jurisdiction of another’s courts under all circumstances.’

5 See generally J. DugardThe Future of International Law: A Human Rights Perspective – With Some Comments on the Leiden School of International Law20 Leiden Journal of International of International Law 4 (2007) 729, at 731. See also E. JouannetUniversalism and Imperialism: The True-False Paradox of International Law18 European Journal of International Law 3 (2007) 379 at 379; P.M. DupuySome Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi’, 16 European Journal of International Law 1, (2005) 131, at 135. See for discussion D. TladiSouth African Lawyers, Values and New International Law: The Road to Perdition is Paved with the Pursuit of Laudable Goals33 South African Yearbook of International Law (2008) 167, at 169–72.

6 See, e.g., dissenting opinion of Judge Yusuf in the Jurisdictional Immunities of the State case, supra note 3, who states, at para 21, that the scope of immunity ‘has been contracting over the past century, in light of the evolution of international law from a State-centred legal system to one which also protects the rights of human beings vis-à-vis the State’.

7 See especially the dissenting opinion of van den Wyngaert in the Arrest Warrant case, supra note note 4, at paras 23–8.

8 See Ibid. at para 73 Joint Separate opinion of Higgins, Kooijmans and Buergenthal.

9 Jouannet, supra note 5 at 387.

10 See Arrest Warrant case, supra note 4 at para 75 of the joint separate opinion of Judges Buergenthal, Higgins and Kooijmans.

11 Para 10 (j) AU Decision on Africa’s Relationship with the International Criminal Court (ICC), Ext/Assembly/AU/Dec.1 (October 2013).

12 Section 90 of the Constitution of the Republic of South Africa, 1996, provides that the Deputy President, a Minister designated by the President, a Minister designated by other members of the cabinet, the Speaker of Parliament until the parliament designates one of its members, may act as head of state.

13 Under section 147(3) of the Constitution of Kenya, only the Deputy President may hold the office of the acting President in the absence of the President. See also Article II section 6 of the Constitution of the United States.

14 At its 65th Session, in the context of its work on Immunity of State Officials from Foreign Criminal Jurisdiction, the International Law Commission (ILC) adopted Draft Articles 3 and 4 on immunity ratione personae as covering all acts, whether in private or official capacity, performed by Heads of State, Heads of Government and Ministers for Foreign Affairs. See chapter 5 of the Report of the International Law Commission on the Work of Its Sixty-Fifth Session (6 May to 7 June and 8 July to 9 August 2013) General Assembly Official Records Sixty-Eighth Session, Supplement 10 UN Doc. A/68/10. At its 66th Session, in the context of its work on Immunity of State Officials from Foreign Criminal Jurisdiction, the ILC adopted Draft Article 5 on immunity ratione materiae as applicable to state officials acting as such. See chapter 9 of the Report of the International Law Commission on the Work of its Sixty-Sixth Session (5 May to 6 June and 7 July to 8 August 2014), General Assembly Official Records Sixty-Ninth Session, Supplement 10 UN Doc. A/69/10.

15 The general rule on interpretation of treaties, in Article 31(1) of the Vienna Convention on the Law of Treaties, requires the terms of a treaty to be given their ordinary meaning in context and in the light of the treaty’s object and purpose.

16 Under the Vienna rules of interpretation, in particular Article 31(3)(c) of the Vienna Convention on the Law of Treaties, ‘relevant rules of international law applicable in the relations between the parties’ are to be taken into account in the interpretation of treaties. On the notion of two categories of immunities under international law, see the work of the ILC cited, supra note 14.

17 See Arrest Warrant case, supra note 4 at para 54 where the International Court of Justice held that Minister for Foreign Affairs, enjoy immunity ratione personae. Whether the Ministers for Foreign Affairs should enjoy immunity ratione personae was a matter of intense debate during the ILC’s consideration of the topic. Although the ILC decided to includes Ministers for Foreign Affairs, at para 5 of the Commentary to Draft Article 3, the ILC states as follows: ‘On the one hand, some members of the Commission pointed out that the Court’s judgment [in the Arrest Warrant case was not sufficient grounds for concluding that a customary rule existed, as it did not contain a thorough analysis of the practice and that several judges expressed opinions that differed from the majority view. One member of the Commission who considered that the Court’s judgment does not that there is a customary rule nevertheless said that, in view of the fact that Court’s judgement in that case had not been opposed by States, the absence of a customary rule does not prevent the Commission from including [Minister for Foreign] among the persons enjoying immunity ratione personae.

18 In the Arrest Warrant case, supra note 4 at para 53, the Court states that to determine the extent of the immunities of Ministers for Foreign Affairs it ‘must first consider the nature of the functions exercised by a Minister for Foreign Affairs.’

19 See, e.g., Para 9 of the Decision on Africa’s Relationship with the International Criminal Court (ICC), Ext/Assembly/AU/Dec.1 (Oct 2013).

20 J. N. Kariri ‘Can the New African Court Truly Deliver Justice for Serious Crimes?’ 8 July 2014 ISS Today, available at www.issafrica.org (last accessed 19 July 2015).

22 C. B. MurunguTowards a Criminal Chamber in the African Court of Justice and Human Rights9 Journal of International Criminal Justice (2011) 1067.

23 Ibid. at 1077.

24 See, e.g., paras 18 and 36 of the Decision Pursuant to Article 87(7) on the Failure of the Republic of Malawi to Comply with the Cooperation Request Issued by the Court with respect to the Arrest and Surrender of Omar Hassan Ahmed Al Bashir, Al Bashir (ICC-02/05–01/09), Pre-Trial Chamber I, 12 December 2011; Décision Rendue en Application de l’article 87(7) de la Statut de Rome concernant le refus de la République du Tchad d’accéder aux demandes de cooperation délivrées par la Cour concernant l’arrestation et la remise d’Omar Hassan Ahmed Al Bashir, Al Bashir (ICC-02/05–01/09), Pre-Trial Chamber I, 12 December 2011.

25 See Murungu, supra note 22, at 1077.

30 International Justice Resource Centre ‘African Union Approves Immunity for Government Officials in Amendment to African Court of Justice and Human Rights Statute’ available at www.ijrcenter.org/2014/07/02/african-union-approves-immunity-for-heads-of-state-in-amendment-to-african-court-of-justice-and-human-rights-statute/ July 2 2014, (accessed 10 August 2014).

33 See Para 9 of the Decision on Africa’s Relationship with the International Criminal Court (ICC), Ext/Assembly/AU/Dec.1, Oct 2013.

34 See Press Release 02/2012 on the ‘Decision of Pre-Trial Chamber of the International Criminal Court (ICC) Pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the Republic of Malawi to Comply with the Cooperation Requests Issued By the Court With Respect to the Arrest and Surrender of President Omar Hassan Al Bashir of the Republic of the Sudan’, 9 January 2012.

35 Article 27(1) of the Rome Statute that the ‘Statute shall apply equally to all persons without distinction any distinction based on official capacity. In particular, official capacity as a Head of State or Government, member of a Government … shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.’ Article 27(2) provides that ‘[I]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising jurisdiction over such a person.’

36 See Press Release 20/2012, supra note 34.

37 In its first decision on non-cooperation with respect to Omar Al Bashir, for example, the AU Summit requests the Commission and African states to engage in a process to clarify ‘the Immunities of officials whose States are not party to the [Rome] Statute.’ See para 8 of the AU Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec. 245(XIII) Rev. 1. See especially para 6 of the AU Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), Assembly/AU/Dec.397 (XVIII) in which the AU Assembly reaffirms ‘its understanding that Article 98(1) was included in the Rome Statute …out of a recognition that the Statute is not capable of removing an immunity which international law grants to officials of States that are not parties to the Rome Statute.’

38 See Press Release 20/2012, supra note 34.

39 See generally Article 34 of the Vienna Convention on the Law of Treaties.

40 This aspect of the immunities debate has been considered in various articles. See, e.g. D. AkandeThe Legal Nature of the Security Council Referrals to the ICC and its Impact on Bashir’s Immunities’ (2009) 7 Journal of International Criminal Justice 333; P. GaetaDoes President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 Journal of International Criminal Justice 315. See also D. TladiThe ICC Decisions in Chad and Malawi: On Cooperation, Immunities, and Article 9811 Journal of International Criminal Justice (2013) 199. See for the author’s more recent contributions on the subject: D. TladiThe Duty on South Africa to Arrest and Surrender President Al Bashir under South African and International Law: A Perspective from International Law13 Journal of International Criminal Justice (2015) 1027, especially at 1033–5 and 1043–4; D. TladiImmunity in the Era of ‘Criminalisation’: The African Union, the ICC and International Law58 Japanese Yearbook of International Law 2015) 17, especially at 31–9.

41 Arrest Warrant case, supra note 4, at para 61.

42 See, e.g., para 6 of the commentary to Draft Article 4 of the ILC’s Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 14.

43 In this regard, the ICJ in the Arrest Warrant Case, supra note 4 at paras 58 and 59, where the Court makes it clear that the rules relating jurisdiction of national courts, including immunities applicable before them, should be distinguished from the same relating to international courts.

44 Malawi Decision, supra note 24 at para 23 et seq.

46 See generally the Report of the ILC at Sixty-Sixth Session (Chapter 10), supra note 14 at para 169.

47 See, e.g., Akande, supra note 40. See contra, Tladi, supra note 40.

48 Malawi decision, supra note 24, at para 34.

49 Arrest Warrant case, supra note 4, at para 61.

51 See Ibid. where the ICJ refers to the constitutive instruments establishing the ICC, the ICTY and the ICTR.

53 In the context of the Rome Statute, this distinction is explained in Tladi, supra note 40, at 211 noting that Article 27 ‘applies to defences, substantive or jurisdictional, that an individual may raise before the ICC. It does not, in any way, address the relationship between states nor does it address the relationship between the ICC and states parties.’ (emphasis in the original).

54 See Articles 17, 18 and 19 of the Rome St.

55 See ICC Working Group on Amendments Informal Compilation of Proposals to Amend the Rome Statute (on file with the author). It should be noted, that the Kenyan proposal only seeks to amend to the Preambular paragraph relating to complementarity and does not address the substantive provisions in Articles 17, 18 and 19. As currently drafted, it is therefore unlikely to be sufficient to establish a complementarity role for the African Court.

30 Defences to Criminal Liability

Sara Wharton
1. Introduction

Defences to criminal liability have played a very limited role in the existing jurisprudence of the contemporary international criminal courts and tribunals.1 In fact, they have been described as ‘an oft-forgotten aspect of international criminal law’.2 This is likely due in part to the fact that the existing international criminal courts and tribunals prosecute only a small number of potential perpetrators. The selectivity exercised by the prosecutor limits the cases pursued to those individuals who are most responsible and against whom the prosecutors have the strongest case. This likely excludes those cases where there may be a strong defence which would exclude criminal culpability.3 It has also been suggested that the lack of attention may also be due to ‘a lack of sympathy’ for the accused.4 However, all criminal trials, including for the gravest international or transnational crimes, must be conducted in full accordance with general principles of criminal law including all accepted grounds for excluding criminal responsibility.

The Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Malabo Protocol) does not include a provision defining which defences will be applicable before the African Court of Justice and Human Rights (the African Court). This is not unusual. Other contemporary international criminal institutions are similarly predominantly silent on the question of defences, including the statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).5 This silence, of course, does not infer the irrelevance of defences. As noted by the ICTY Trial Chamber, defences ‘form part of the general principles of criminal law which the International Tribunal must take into account in deciding the case before it.’6 The Court will, therefore, need to turn to customary international law and to general principles of law to determine and to define applicable defences.7 The Court will also have to consider whether it will permit resort to domestic laws of African or other states as a possible default when no customary international law or general principle can be found.

It is beyond the scope of this chapter to conduct a comparative analysis of domestic laws to determine which general principles and regional norms prevail. This is a task that the African Court itself will have to undertake on a case-by-case basis as arguments about defences are brought before it. Nonetheless, caution should be exercised if such borrowing is found necessary. For one thing, even in the continent of Africa, there may be different understandings of defences to liability based on the underlying origins of the municipal legal system in question. For example, the approach to particular defences might differ between and among common law or civil law jurisdictions and others that might be more appropriately considered mixed jurisdictions. This chapter has the more limited task of examining the existing body of international criminal law to see what guidance the African Court may take with respect to which defences have been recognized and which have been explicitly rejected, how recognized defences have been defined, and what questions have arisen or may arise with respect to these defences.

As the African Court starts to exercise its criminal jurisdiction, in addition to the recognition and definition of defences, the court will also need to consider and define the evidentiary and procedural rules that will be applicable.8 For example, what, if any, burden lies on the accused to establish certain defences? What disclosure obligations does the defence have should it seek to raise such a defence? Some of these issues would be better suited for resolution in the rules of procedure and evidence of the future court.

Turning to the existing body of international criminal law, a starting point is to look historically to the report of the United Nations War Crimes Commission (UNWCC) which collected judicial decisions of numerous war crimes trials conducted after World War II by multiple countries with the aim of ‘deriv[ing] from the records in the possession of the Commission all material containing any guidance for the building up of a jurisprudence of war crimes law’.9 This report gives some guidance as to which defences were raised, which defences were clearly rejected, and where there is still some uncertainty in the law.10 According to the UNWCC, three defences commonly put forth together by the defendants in the post–World War II trials were the pleas of superior orders, duress, and military necessity.11 In addition to these three defences, other pleas of defence considered by the UNWCC included, inter alia: self-defence, legitimate reprisals, mistake of law and mistake of fact, and pleas relating to the mental capacity of the accused including limited mental capacity and drunkenness. All of these defences will be considered below.

Defences were also considered by the International Law Commission (‘ILC’) in its work on the Draft Code of Crimes against the Peace and Security of Mankind.12 However, in its commentary on its 1991 draft Code, the Commission noted that ‘in the opinion of some members, defences could never be invoked in connection with certain categories of crimes, such as crimes against humanity’.13 Rejecting that approach, Special Rapporteur Doudou Thiam proposed a new Article 14 which would recognize the defences of self-defence, coercion or state of necessity.14 In its final 1996 Draft Code of Crimes, the ILC returned to a generally worded Article 14, leaving it up to the competent international criminal jurisdiction to determine which defences are applicable ‘in accordance with the general principles of law, in the light of the character of each crime’.15 Defences discussed by the ILC in its commentary on this broadly worded provision included: self-defence, superior orders, duress or coercion, military necessity, and mistake of fact.16

The ILC’s work on the Draft Code of Crimes and the establishment of an international criminal jurisdiction was subsequently taken up by the Ad Hoc Committee on the Establishment of an International Criminal Court. In 1995, a Working Group of this Ad Hoc Committee prepared guidelines for consideration of questions of general rules of criminal law, including defences.17 The Ad Hoc Committee’s Report included ‘Guidelines for consideration of the question of general principles of criminal law’ which contemplated a number of potential defences which should be considered upon further drafting. These Guidelines categorized defences into three groups: (a) Negation of liability, including: error of law, error of fact, diminished mental capacity to stand trial, and diminished mental capacity regarding liability; (b) Excuses and justifications, including: self-defence, defence of others, defence of property, necessity, lesser of evils, duress/coercion/force majeure, superior orders, and law enforcement/other authority to maintain order and (c) Defences under public international law/depending on jurisdiction, including: military necessity, reprisals, and Article 51 of the Charter of the United Nations.18

Some of the defences discussed in the course of drafting the statute of the ICC were ultimately included in Articles 31–33 of the Rome Statute of the International Criminal Court (Rome Statute). This is the first codification of defences for an international criminal tribunal or court. To date, these defences to liability constitute the most complete (though not exhaustive) statement of this aspect of general principles of law in an international instrument. With 123 states parties to the Rome Statute, many from Africa, these provisions provide a good starting point for the African Court, in particular because these provisions reflect some hard fought compromises in relation to some of the divergent approaches reflected amongst the different national legal systems. This Chapter will also look to the limited jurisprudence of the contemporary international criminal courts and tribunals on defences.

While historically some may have been hesitant to accept the application of defences to the most serious crimes, basic principles of criminal culpability are relevant to all criminal offences, including domestic crimes, international crimes, and transnational crimes. Despite the silence on the issue in the Malabo Protocol, defences cannot be ignored.

2. Sources of Law

Article 31 of the Malabo Protocol defines the applicable law before the African Court. Pursuant to this Article, the Court may turn to a wide range of relevant sources. General principles of law, referred to in Article 31(1)(d) of this instrument, is of particular importance in discerning applicable defences given the absence of codification on this issue in the Malabo Protocol. However, it is difficult to discern a general principle in relation to some questions relating to defences due to the different approaches taken in the various legal systems of the world. Accordingly, the question of how these lacunae are to be filled arises. Article 31(1)(f) permits the Court to turn to ‘[a]ny other law relevant to the determination of the case.’ This arguably opens the door to consideration of domestic law.

The approach of resorting to national laws to fill lacunae in international law was contemplated by Judge Cassese at the ICTY.19 In drafting the statute for the International Criminal Court (ICC), there was debate surrounding the question of resorting to national law.20 Some expressed concern because resorting to national law would lead to ‘inequality of treatment of accused’ and ‘inconsistent jurisprudence,’ whereas others accepted the reality that there was not yet a complete body of international criminal law and accepted that national law could be relevant, but only as a last resort.21 As a practical matter, the domestic law of a state which would otherwise have had jurisdiction may be a sensible source to turn to if no general principle can be discerned. This may also be justified as a question of fairness to the accused who would be expected to be aware of these laws.

3. Grounds for Excluding Criminal Responsibility in Article 31 of the Rome Statute

In contrast to the silence seen in the statutes of the ad hoc international criminal tribunals, the Rome Statute is noteworthy for its codification of defences. It was felt at preliminary stages leading up to the adoption of the Rome Statute that the applicable law for the Court should include defences in order to increase the ‘precision and certainty in criminal proceedings’.22 However, one commentator noted that Article 31 was one of the most difficult provisions on the general principles of criminal law to negotiate due to the many and sometimes fundamental differences on the law of defences among national legal systems.23

Therefore, in considering which defences the African Court may recognize, Article 31 of the Rome Statute is a helpful place to start. It includes in subsection (1) a non-exhaustive list of ‘grounds for excluding criminal responsibility’ (defences). Subsection (3) of the same Article explicitly re-affirms that this list of defences is non-exhaustive and the Court may recognize other defences in accordance with the relevant sources of law articulated in Article 21 including customary international law and general principles of law. This section of the chapter will consider the four defences explicitly enumerated in Article 31(1) of the Rome Statute, namely: mental disease or defect; intoxication; defence of person or property; and duress.

A. Mental Disease or Defect

The defence of mental disease or defect is explicitly included in the Rome Statute and has been recognized by the ICTY Appeals Chamber. Despite the fact that that this defence has been and is likely to remain rare in the case of international criminal tribunals, it’s inclusion reflects the fact that it is a ‘well-established principle of national criminal justice systems that incapacity or legal insanity serves as a categorical exclusion of criminal responsibility’.24 An individual who lacks the capacity to appreciate the wrongfulness of his or her conduct at the time when the crime was committed cannot be held criminally blameworthy for such conduct. This defence is a legally distinct question from the question of the accused’s fitness to stand trial. Cassese points to the case of Stenger and Crusius before the Leipzig Supreme Court in 1921 as an historical example of a case in which such a defence was applied.25 Nonetheless, it has been noted that, generally, this defence did not get much attention in international criminal law until relatively recently.26

Given its general acceptance in national jurisdictions, it may have been anticipated that mental disease or defect would have been one of the least controversial defences leading up to Rome. However, there were still questions raised in the drafting of the Rome Statute about whether such a defence should be included and, if so, whether it should be applicable to all of the crimes within the Court’s jurisdiction.27 Nonetheless, the defence of mental disease or defect was ultimately included in Article 31(1)(a) of the Rome Statute which states that an individual will not be criminally culpable for conducted committed when: ‘The person suffers from a mental disease or defect that destroys the person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirement of law’. This provision has been described as ‘a fairly uncontroversial formulation of the defence.’28 The defence articulated in the Rome Statute is made out if (a) the accused suffers from a mental disease or defect, and (b) that mental disease or defect either destroys the person’s capacity to appreciate the unlawfulness or nature of his or her conduct or, alternatively, destroys the person’s capacity to control his or her conduct to conform to the requirement of law.29 The threshold articulated in Article 31(1)(a) is high, requiring that the mental disease or defect destroys the person’s capacity.30 This high threshold is understandable given that, if successfully established, it constitutes a complete defence from criminal responsibility for the most serious crimes. However, it has been suggested by Stanley Yeo that requiring destruction of capacity sets too high a threshold.31

The ICTY Appeals Chamber also recognized the existence of the defence of lack of mental capacity in the Čelebići case (although it was not applied to any accused in that case).32 According to the Appeals Chamber, an accused would be entitled to an acquittal if, ‘at the time of the offence [the accused] was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of his act or, if he did know it, that he did not know that what he was doing was wrong.’33 The ICTY Trial Chamber also recognized a presumption of sanity for all individuals charged with criminal acts.34 Accordingly, the ICTY Trial Chamber suggested that the onus lies on the accused to rebut this presumption on a balance of probabilities.35 This approach may make it harder for the accused to succeed on this defence but is not an unreasonable approach given the fact that, as the ICTY Trial Chamber points out, ‘the facts […] are those peculiarly within [the accused’s] knowledge and should be established by him.’36 It has been pointed out, however, that the ICC will likely take a different approach given the guarantee provided for in the Rome Statute that the accused has the right ‘[n]ot to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.’37 Whether any onus of rebuttal may be placed on accused individuals before the African Court must be considered in relation to the Court’s fair trial guarantees. The Malabo Protocol includes no explicit equivalent to this Rome Statute protection in its list of fair trial guarantees in Article 46A. However, the Court will have to determine how any potential substantive burden of proof on the defence is reconciled with the fundamental presumption of innocence included in Article 46A(3).

Another issue that the African Court will have to turn its head to is the question of what procedural rules will be required to facilitate this defence. For instance, given the need for psychiatric expertise in assessing this defence, the Court will need to determine the necessary rules of procedure and evidence including those relating to the admission of expert testimony and the availability and role of court appointed experts.38

Finally, the Court will also need to consider what happens if an accused successfully establishes this defence. Generally, rather than resulting in an outright acquittal, a successful assertion of a mental disorder defence results in a special disposition that the accused is ‘not criminally responsible’.39 This raises the question of what recourse the Court has if an individual is found to have successfully made out the mental disorder defence but requires treatment or poses a threat to the safety of others. This question was raised in the process of drafting this provision of the Rome Statute but no clear rule was set out therein. This omission has been critiqued by commentators.40 A sensible solution posed by one commentator is that, in such a case, the ICC would enter into an agreement with a state party for the provision of medical services to such an individual.41 The African Court could take a similar course if the situation arose.

As noted above, the defence of mental disease or defect is a legally distinct question from the question of the accused’s fitness to stand trial. Both questions relate to the accused’s lack of capacity. However, fitness to stand trial is concerned with the accused’s capacity at the start of and throughout a trial and says nothing about their criminal culpability, whereas the defence of mental disease and defect concerns the accused’s criminal responsibility at the time of the commission of the offence. There are a number of examples throughout the history of trials for international crimes of individuals who have been found unfit to stand trial.42 Thus, the African Court must ensure that it adopts adequate rules and procedures ensuring that proceedings are stayed against those who are lack the capacity to stand trial. The African Court may look to the ICC for guidance. The Rome Statute and the ICC’s Rules of Procedure and Evidence require a Trial Chamber to satisfy itself that the accused understands the nature of the charges against him or her before it can proceed and requires that a Trial Chamber adjourn trial proceedings if an accused is found unfit to stand trial.43 The ICC’s Rules of Procedure and Evidence allow for a medical, psychiatric or psychological examination of the accused to be ordered as necessary and provide for periodic review of any finding of unfit to stand trial.44

1. Diminished Mental Capacity

While mental disease or defect which amounts to lack of mental capacity has been accepted as a full defence in international criminal law, the defence of diminished mental capacity, recognized in some domestic jurisdictions, has been rejected.45 However, diminished mental capacity has been recognized as a factor which may be relevant to mitigation of sentence.46

Originating in the nineteenth century, the defence of diminished mental capacity was incorporated in the English Homicide Act 1957 as a partial defence to murder which, if established, would reduce the conviction to manslaughter.47 Such defence was available when the accused ‘was suffering from such abnormality of mind (as defined) as substantially impaired his mental responsibility for his acts or omissions in doing so or being a party to the killing.’48 This English statute provided a model for similar legislation in some other common law countries.49 The purpose of the defence was to prevent those who suffered from mental impairment, but who did not satisfy the high threshold of the full defence of mental disorder, from being convicted of murder which was accompanied by harsh mandatory sentencing amounting at the time to ‘either death or penal servitude for life.’50

In the ‘Čelebići case’ at the ICTY, one of the accused sought to raise the defence of diminished mental capacity. While the Tribunal’s Statute is silent on the availability of such a defence, the accused pointed to a sub-Rule of the ICTY’s Rules of Procedure and Evidence which refers to specific disclosure and notification obligations on an accused who seeks to raise ‘any special defence, including that of diminished or lack of mental responsibility’.51 However, the Appeals Chamber of the ICTY concluded that new defences could not be adopted through the Rules.52 Accordingly, were such a defence to be applicable before the Tribunal, it must be found within the sources of international law.53 Finding no reference to such a defence in treaty or in customary international law, the Appeals Chamber turned to a consideration of general principles of law.54 The Appeals Chamber ultimately concluded that diminished mental responsibility is not a complete defence resulting in an acquittal.55

The ICTY Appeals Chamber also rejected the appellant’s submission that the Rome Statute of the ICC contemplated such a defence.56 The Appeals Chamber observed that, while the Rome Statute of the ICC includes a full defence when the accused’s capacity is destroyed by a mental disease or defect, ‘[t]his is not the same as any partial defence of diminished mental responsibility, as it requires the destruction of (and not merely the impairment to) the defendant’s capacity, and it leads to an acquittal.’57

The Appeals Chamber of the ICTY did, however, conclude that there is a general principle of law that ‘the defendant’s diminished mental responsibility is relevant to the sentence to be imposed.’58 This approach is also reflected in Rule 145(2)(a)(i) of the ICC’s Rules of Procedure and Evidence which contemplates that ‘circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity’, may be taken into account as a mitigating factor in sentencing.59 Thus, diminished mental capacity has been recognized as a mitigating factor to be taken into account on sentencing but has been rejected as a complete defence in international criminal law. A similar approach which would have explicitly recognized diminished mental capacity as mitigation on sentencing was considered in the drafting history leading up to the Rome Statute but was not, ultimately, included.60 However, at the same time, Article 76 of the Rome Statute on sentencing leaves a large amount of discretion to the Trial Chamber to determine the appropriate sentence which would, of course, include consideration of any relevant aggravating or mitigating factors. The Malabo Protocol contains similarly broad language, specifying that: ‘In imposing the sentences and/or penalties, the Court should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.’61

The ICTY Appeals Chamber’s reasoning for rejecting the defence of diminished mental capacity is persuasive. In particular, the Appeals Chamber noted that the rationale earlier referenced for the recognition of such a defence in English law did not apply to the Tribunal, in particular because there is no mandatory sentencing and because there is no ‘appropriate lesser offence available under the Tribunal’s Statute for which the sentence would be lower and which could be substituted for any of the offences it has to try.’62 Accordingly, the African Court should follow the approach articulated by of the ICTY and consider the general principle that diminished mental capacity of an accused that does not amount to the defence of mental disease or defect is relevant to sentencing as a potential mitigating factor.

B. Intoxication

The availability of the defence of intoxication in international law is a more controversial issue. Intoxication is a challenging defence even in those domestic jurisdictions which do recognize it in some form. The perceived culpability in voluntarily becoming intoxicated and then committing a serious crime, combined with the concern that intoxication is too often present in the commission of many serious offences like sexual assault, suggests that the defence of intoxication should be limited. A similar concern has been raised in relation to the prevalence of intoxication and the commission of international crimes including in Rwanda where it has been suggested that ‘[m]any of the participants in Rwanda’s genocide were drunk’.63 On the international level, this debate is further complicated because some countries not only reject intoxication as a defence but treat it as an aggravating factor in the commission of a crime.64

Early discussion of defences in the drafting history of the ICC indicate that there was support for the view that the intoxication defence was not relevant to the types of crimes within the jurisdiction of the Court.65 ‘There was no great substantive disagreement on permitting involuntary intoxication as a ground for excluding criminal responsibility. But voluntary intoxication presented big problems.’66 Thus, some proposals would have excluded this defence in all cases of voluntary intoxication, whereas other proposals suggested that the defence of intoxication be recognized but only when the person is ‘unable to formulate the mental element of the crime.’67 Schabas has echoed this concern and suggested that voluntary intoxication is ‘virtually inconsistent’ with the nature of the crimes within the jurisdiction of the ICC, in particular in light of the fact that the Court was designed to prosecute ‘a relatively small number of leaders, organizers and planners’.68 The same argument could potentially be made with respect to the Malabo Protocol although there is a much broader range of crimes within the jurisdiction of this instrument and there is no explicit indication the African Court would only prosecute senior leaders who planned and organized crimes. Furthermore, despite these concerns, a very limited form of intoxication defence was in the end included in the Rome Statute.

The important distinction between voluntary and involuntary intoxication has also been noted by the ICTY. In one ICTY case, an accused attempted to raise intoxication as a mitigating factor in sentencing.69 The Trial Chamber rejected the argument, observing that ‘[w]hile a state of intoxication could constitute a mitigating circumstance if forced or coerced, the Trial Chamber cannot accept [the] contention that an intentionally procured diminished mental state could result in a mitigated sentence.’70 The Trial Chamber suggested instead that voluntary intoxication was an aggravating factor, ‘particularly in contexts where violence is the norm and weapons are carried’.71 The Appeals Chamber affirmed that intoxication was not a mitigating factor when the accused becomes voluntarily intoxicated.72

Despite the challenges involved in drafting, a limited intoxication defence was included in the Rome Statute. Article 31(1)(b) of the Rome Statute holds that a person will not be criminally responsible if, at the time:

The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;

As noted by Per Saland, chair of the working group on the general principles of criminal law at Rome, the provision adopted ‘tries to position itself in the middle by making the exception as broad as possible without totally excluding voluntary intoxication as a ground for excluding criminal responsibility’.73

It is evident from the language of Article 31(1)(b) that it contemplates only a restrictive intoxication defence. The defence, as set out in the Rome Statute, applies only if the intoxication ‘destroys that person’s capacity’. Accordingly, it is not sufficient to demonstrate that an accused’s capacity is simply impaired.74 This is an extremely high threshold and will exclude the vast majority of individuals who commit crimes while intoxicated. Furthermore, the defence is circumscribed in situations of voluntary intoxication by excluding situations in which the person voluntarily becomes intoxicated ‘under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court’. Thus, the fault of intentionally becoming intoxicated in such situations precludes the availability of the defence of intoxication. This has been described as ‘a recklessness test’.75

Given the contradictory approach taken with respect to the impact of intoxication on an accused’s criminal responsibility among the legal systems of the world, there is ‘really no way of reconciling these differences’.76 Furthermore, intoxication is a controversial defence even in those jurisdictions in which it is recognized. The justification for permitting such a defence is, generally, that it is unjust to hold an individual criminally responsible if they lack mens rea.77 A high threshold should be required in relation to any defence of intoxication permitted before the African Court in light of the serious nature of all of the crimes contained within the jurisdiction of the Court, particular in relation to voluntary intoxication. Thus, the approach taken in the Rome Statute, while described by Saland as not fully satisfying anyone, may provide guidance to the Court on this issue.78

C. Defence of Person or Property

Defence of the person, including self-defence and defence of others, is one of the most universally accepted criminal defences.79 Defence of property, particularly in relation to an allegation of serious international or transnational crimes, is more controversial.80 The question of whether defence of property should be included in the ICC’s statute as a ground for excluding criminal responsibility proved to be one of the most difficult issues in negotiations on this subject.81 The provision finally agreed to is included in Article 31(1)(c) of the Rome Statute. This provision states that an accused will not be criminally responsible if, at the relevant time:

The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or protected property. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;

Thus, the Rome Statute includes the defence of the person (both self-defence and defence of others) and, in more limited terms, defence of property.

It is important to clarify that, of course, self-defence here refers to the defence of the person, which is a legally distinct issue from self-defence of the state under Article 51 of the UN Charter. The fact that an individual is acting as a part of an operation which constitutes a part of a state’s actions in self-defence is not in itself a defence to the perpetration of international crimes. Furthermore, as explicitly stated in Article 31(1)(c) of the Rome Statute, ‘[t]he fact that the person was involved in a defensive operation conducted by forces’ is not a ground excluding criminal responsibility in international law. Thus, for the purposes of this section, self-defence refers only to individual defence of the person.

1. Defence of the Person

Self-defence or the defence of others is a generally accepted ground for excluding criminal responsibility. For example, in its commentary on its final draft Code of Crimes, the ILC recognized the ‘classic defence’ of self-defence.82 Cassese notes that Article 31(1)(c) of the Rome Statute, at least as it applies to defence of persons, reflects customary international law.83 In addition to its codification in the Rome Statute, self-defence has been recognized as an accepted defence by the UNWCC, the ILC and the ICTY.

The UNWCC recognized that the defence of self-defence was applicable to war crimes and pointed to one trial before a United States Military Court where the plea of self-defence was successful.84 The ILC similarly observed that self-defence ‘could relieve an accused of criminal responsibility for the use of force against another human being resulting in death or serious injury if this force was necessary to avoid an immediate threat of his own death or serious injury caused by that other human being’.85 The ILC pointed in particular to the Convention on the Safety of United Nations and Associated Personnel as an example of the implicit recognition of self-defence in international law.86

One ICTY Trial Chamber recognized self-defence as a rule of customary international law.87 It defined self-defence as ‘providing a defence to a person who acts to defend or protect himself or his property (or another person or person’s property) against attack, provided that the acts constitute a reasonable, necessary and proportionate reaction to the attack.’88

With reference to the text of Article 31(1)(c) of the Rome Statute and the definition suggested by the ICTY, the parameters of self-defence must be considered. First, to which threats can a person legitimate respond in self-defence? Secondly, what conditions govern the accused’s response to that threat?89 Finally, does the accused’s prior fault preclude them from relying on self-defence?

What parameters govern the threat which gives rise to the right of an individual to act in self-defence? Not much guidance can be derived on this issue from the broad definition of self-defence put forth by the ICTY which simply says that a person may act ‘to defend or protect himself or his property (or another person or person’s property) against attack’. On the other hand, Article 31(1)(c) of the Rome Statute gives us more guidance, requiring that an accused be acting in response to an ‘imminent and unlawful use of force.’90 This seems to track the attitude towards this defence in many domestic jurisdictions.

Another question that arises is whether the law is only concerned with the accused’s perception of the threat or whether that threat must be ‘objectively demonstrable’ (or some combination of a subjective and objective assessment). Yeo suggests that, ‘[o]n a strict reading of Article 31(1)(c) of the ICC Statute, the threat must have been real, that is, it must have existed as an objectively demonstrable fact.’91 However, failing to find this approach in any of the other domestic laws that he studied, Yeo suggests that the best approach is to adopt a hybrid subjective/objective test based on the ‘accused’s reasonable belief’.92 Yeo suggests further that personal characteristics of the individual, such as their ‘age, sex, physical disabilities, religious beliefs, ethnicity, vulnerability (but excluding psychiatric conditions)’ should be considered when applying this test.93

Second, what is required with respect to the accused’s response to such an ‘imminent and unlawful use of force’ in order for self-defence to be available? Pursuant to Article 31(1)(c) of the Rome Statute, the individual must act ‘reasonably’ and ‘in a manner proportionate to the degree of danger’.94 On the other hand, the ICTY states that the individual’s acts must be ‘reasonable, necessary, and proportionate.’ While it may be beneficial to articulate a requirement that the act be necessary as distinct from the requirement of reasonableness, ‘a response which was unnecessary would also be unreasonable.’95 Cassese refers to the requirement of self-defence that ‘there is no other way of preventing or stopping the offence.’96 This raises the question of whether one must retreat before acting in self-defence.97 One British Military Court said in a post–World War II war crimes trial that: ‘The law permits a man to save his own life by dispatching that of another, but it must be in the last resort. He is expected to retreat to the uttermost before turning and killing his assailant.’98 Whereas English common law traditionally obliged individuals to retreat, the law has evolved such that ‘the opportunity to retreat is simply a factor to be taken into account when deciding the general question as to whether the accused’s response was reasonably necessary.’99 Furthermore, debates in domestic law about whether an individual bears a duty to retreat before using force become more complicated in the context of war crimes trials where the very nature of the conflict involves the causing of death of opposing forces. Thus, a more flexible rule emphasizing the reasonableness and proportionality of the act are better suited to take into consideration all of the circumstances of the case.

One final question is whether the accused is precluded from relying on self-defence if some prior fault for the situation lies upon them, for example, ‘where the accused had assaulted or provoked an assault from another’.100 Cassese suggests that an individual can only rely on self-defence if ‘the unlawful conduct of the other has not been caused by the person acting in self-defence.’101 The text of the draft statute forwarded by the Preparatory Committee to the Rome Conference included a bracketed phrase which would limit the applicability of self-defence such that a person would only be entitled to such a defence ‘provided that he or she did not put himself or herself voluntarily into a position causing the situation to which that ground for excluding criminal responsibility would apply’.102 However, this language does not ultimately appear in the final version of Article 31(1)(c) of the Rome Statute. A review of relevant domestic jurisdictions would be prudent to determine whether a general principle of law can be discerned with respect to this potential exclusionary rule.

2. Defence of Property

Whereas Article 31(1)(c)’s codification of defence of person may reflect customary international law, the defence of property is more controversial. As stated above, this proved to be one of the most difficult issues to resolve in the negotiations on defences in Rome and was described as ‘the real cliffhanger’ for the working group that was drafting the provision.103

The approach taken in Article 31(1)(c) limits defence of property to two situations. First, acts may be taken in defence in relation to ‘property which is essential for the survival of the person or another person’. The inclusion of this category of property seems more justifiable given that a threat to property essential to the survival of persons indirectly amounts to a threat to those persons.104 Thus, it has been described as ‘merely a special case of the general and uncontroversial protection of a person’s life.’105 However, the second category is far more controversial. It permits acts to be taken in defence of ‘property which is essential for accomplishing a military mission.’

The defence of property is limited in Article 31(1)(c) of the Rome Statute solely to the category of war crimes. It is therefore not permitted in relation to charges of genocide, crimes against humanity, or aggression. This was added despite the fact that ‘the starting point was that the general principles of criminal law would be generally applicable to all crimes within the jurisdiction of the Court.’106 While war crimes are also treated differently in relation to the availability of the defence of superior orders in the Rome Statute (as discussed above), this restriction in relation to defence of property is the only situation in which any of the Article 31 grounds for excluding responsibility is excluded from some of the crimes within the court’s jurisdiction.

Including defence of property in Article 31 of the Rome Statute has been highly criticized for its departure from the position of customary international law.107 Thus, the African Court may choose not to follow this approach. If defence of property is permitted, it should be more circumscribed than defence of persons in light of the serious nature of the crimes included in the subject matter jurisdiction of the Court. Furthermore, it is necessary to recall that all acts in defence of essential property must be both reasonable and proportionate.108

D. Duress and Necessity
1. Duress

One defence which has received judicial consideration in the existing war crimes jurisprudence is the defence of duress. However, the jurisprudence does little to resolve some of the most challenging questions about the limits of the law of duress. Can duress be raised as a defence to a charge of murder? Does the nature of genocide or crimes against humanity alter our assessment of the applicability of the defence of duress? What if the individual faces the choice of killing civilians or being killed alongside them? The tension in the international criminal jurisprudence derives from the diverging approaches taken by national jurisdictions on these questions. This makes it difficult to discern a clear general principle on the law of duress.109 Additionally, there is still tension within some national jurisdictions as courts grapple with some of these most difficult questions about law and morality and proportionality analyses involving human lives.

Throughout the history of international criminal law, duress has also been referred to as necessity, extreme necessity, compulsion, force and compulsion, coercion, and coercion and compulsory duress.110 As defined by the UNWCC, the plea of duress amounts to ‘[t]he argument that, in committing the acts complained of, the accused acted under an immediate threat to himself’.111 In the words of ILC Special Rapporteur on the Draft Code of Offences against the Peace and Security of Mankind, Doudou Thiam: ‘Coercion involves the threat of an imminent peril from which it is impossible to escape except by committing the offence.’112 In this chapter, duress and necessity will be distinguished. The term duress will be used to refer to cases in which such threat emanates from another person or persons and necessity will be used in relation to situations in which such threat results from ‘objective circumstances’.113

Historically, the question of duress was often bound up in law and in fact with the defence of superior orders.114 In the International Military Tribunal’s discussion of the exclusion of the defence of superior orders in Article 8 of the Nuremberg Charter, it noted: ‘The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.’115 This approach which links superior orders and duress was followed in Principle IV of the Nürnberg Principles and in the ILC’s first draft code of offences against peace and security in 1954.116 However, it is clear that the questions of superior orders and the defence of duress must be analysed separately.117 While they may arise factually in the same circumstances, these are two distinct legal questions which must be conceptually separated and analysed individually.118

The UNWCC considered the plea of duress in its summary of the post–World War II War Crimes Trials. It recognized that duress had been accepted in certain cases as a complete defence.119 For example, duress was recognized in the three cases under Control Council Law No. 10 involving the prosecution of German industrialists charged with using forced labour.120 As summarized by the Commission: ‘In the Flick, I.G. Farben and Krupp Trials, the plea put forward was that the accused were obliged to meet the industrial production quotas laid down by the German Government and that in order to do so it was necessary to use forced labour supplied by the State, because no other labour was available, and that had they refused to do so they would have suffered dire consequences.’121 The defence was in fact successful for many of the accused in the Flick case.122

The UNWCC also referred to a handful of other post–World War II cases which appeared more hesitant to allow the defence of duress, in particular in relation to cases involving allegations of killing innocent persons. For example, in Fuerstein et al., a British Military Court stated: ‘You are not entitled, even if you wished to save your own life, to take the life of another.’123 In Hölzer et al., the Judge Advocate of a Canadian Military Court stated: ‘There is no doubt on the authorities that compulsion is a defence when the crime is not of a heinous character. But the killing of an innocent person cannot be justified.’124 On the other hand, the United States Military Tribunal acting under Control Council Law No. 10 in the Einsatzgruppen Trial expressed the contrary view: ‘Let it be said at once that there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns. The threat, however, must be imminent, real and inevitable. No court will punish a man who, with a loaded pistol at his head, is compelled to pull a lethal lever. Nor need the peril be that imminent in order to escape punishment.’125 Thus, while duress was recognized as a complete defence (and not merely as a mitigation of sentence) in the German industrialist cases in relation to charges of forced labour, we are left with an unclear picture about whether duress can be invoked as a complete defence in cases of war crimes or crimes against humanity involving the taking of lives.

Despite the limited jurisprudence from the ad hoc Tribunals on defences, duress was considered extensively by the ICTY in the case of Prosecutor v. Dražen Erdemović. However, as a result of the silence in the Tribunal’s Statute on defences, the diverging perspectives on duress in national law, and the lack of consensus in the post–World War II war crimes jurisprudence, the judges of the ICTY also diverged in their views and in their reasoning with respect to the applicability of the defence of duress. A bare majority of the ICTY Appeals Chamber concluded that duress is not a complete defence in relation to charges of war crimes and crimes against humanity involving killing innocent persons and can only be a mitigating factor in such cases.126 However, it has been observed that ‘the existing doctrine is still far from being solidified, given that the Erdemović case was decided by a mere 3–2 vote and the dissenting opinion of Judge Cassese has had as much influence as the majority opinion.’127

The accused in that case, Dražen Erdemović, was a 23-year-old member of the Bosnian Serb army who, with other members of his unit, formed part of a firing squad that killed approximately 1200 unarmed civilian men after of the fall of Srebrenica.128 Erdemović estimated that he himself probably killed around seventy people.129 In his submission of his guilty plea, Erdemović stated:

Your Honour, I had to do this. If I had refused, I would have been killed together with the victims. When I refused, they told me: ‘If you’re sorry for them, stand up, line up with them and we will kill you too.’ I am not sorry for myself but for my wife and son who then had nine months, and I could not refuse because then they would have killed me’.130

The Trial Chamber, accordingly, considered the defence of duress but concluded that it could not exonerate the accused.131 The Trial Chamber’s reasoning, in part, suggested that duress could not be raised in relation to crimes against humanity due to the fact that such an act could not satisfy the proportionality requirement because ‘the life of the accused and that of the victim are not fully equivalent.’132

This judgment was then subjected to an appeal which resulted in four separate appellate decisions being authored, demonstrating significant disagreement on the law on the defence of duress.133 Three of the five appellate judges concluded that duress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings. In their attempt to discern general a principle of law, the judges observed that there was a ‘clear dichotomy in the practice of the main legal systems of the world’.134 In general, civil law jurisdictions recognized duress as a possible defence to all crimes whereas common law jurisdictions rejected its availability for the crime of murder.135 Thus, Judges McDonald and Vohrah, in their joint decision concluded that there was a general principle of law ‘that an accused person is less blameworthy and less deserving of the full punishment when he performs certain prohibited acts under duress.’136 However, they concluded that there is no general agreement about whether duress is a complete defence to crimes involving killing.137

Discerning no customary international law or general principle with respect to the availability of the defence of duress to the killing of innocent people, the Majority judges turned to a normative analysis evaluating the availability of the defence of duress in the particular context of applying the defence at the ad hoc Tribunal.138 The judges emphasized the egregious nature of the crimes within the jurisdiction of the Tribunal, the vulnerability of civilians in times of armed conflict, and the increased likelihood of situations of persons being forced to commit atrocities under duress in times of conflict as opposed to in times of peace.139 The judgment of Judges McDonald and Vohrah also emphasized the fact that the accused was a soldier in the Bosnian Serb army.140 Pointing to certain domestic criminal codes which suggested that duress may not be available to soldiers participating in an armed conflict, they stated that ‘soldiers or combatants are expected to exercise fortitude and a greater deal of resistance to a threat than civilians, at least when it is their own lives which are being threatened. Soldiers, by the very nature of their occupation, must have envisaged the possibility of violent death in pursuance of the cause for which they fight.’141 Thus, they concluded that duress may be a mitigating factor in sentencing but could not be relied upon by a soldier charged with war crimes and crimes against humanity involving killing innocent persons.142

Judges Cassese and Stephens dissented from this view in individual separate and dissenting opinions.143 They both concluded that duress may constitute a complete defence under international criminal law without exceptions, provided that the strict requirements of the defence are established.144 They noted that the difficult questions surrounding the defence of duress in relation to offences involving killing would be dealt with in the proportionality assessment, suggesting that this proportionality requirement may not be met in relation to most cases involving killing.145 However, they emphasized the unique situation in which the victims would likely have been killed regardless. ‘[W]here it is not a case of a direct choice between the life of the person acting under duress and the life of the victim – in situations, in other words, where there is a high probability that the person under duress will not be able to save the lives of the victims whatever he does – then duress may succeed as a defence.’146 The majority, on the other hand, rejected this ‘utilitarian’ argument, asserting instead ‘an absolute moral postulate’ refusing to exclude responsibility for the killing of innocent persons.147

In Erdemović, a majority of the ICTY Appeals Chamber declined to recognize duress as a complete defence to war crimes or crimes against humanity involving killing. However, two strong dissenting opinions leave the status of international law on this issue unclear. The difficulty in discerning a general principle of law on this question is a result of the diverging approaches taken in domestic systems, in particular as between civil law and common law systems. However, the law within domestic systems on these difficult questions may also continue to evolve.148 Thus, the African Court of Justice will have to give careful consideration to this question. It should, however, consider the fact that the Rome Statute, a treaty with 123 states parties of which, at present, 34 countries are from Africa, does not explicitly exclude any crimes from duress.

Article 31(1)(d) of the Rome Statute recognizes the defence of duress as a ground for excluding criminal responsibility at the ICC.

Article 31 Grounds for excluding criminal responsibility

  1. 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct:

    1. (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has not been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:

      1. (i) Made by other persons or

      2. (ii) Constituted by other circumstances beyond that person’s control.

Whereas earlier drafts of the text enumerated necessity in a subparagraph (e), separate from duress, the provision adopted in Rome includes both the defence of duress and the defence of necessity (in the form of ‘duress of circumstances’) in the same subsection.149

Whether crimes involving killing should be excluded outright or whether this consideration should be left to be evaluated as part of the proportionality assessment was one of the more difficult issues debated in drafting.150 Ultimately, the latter approach was adopted and Article 31(1)(d) does not exclude any offences outright, even offences involving killing.

What then are the elements of the defence of duress? As summarized by the UNWCC in its review of duress in the post–World War II cases, ‘duress may prove a defence if (a) the act charged was done to avoid an immediate danger both serious and irreparable, (b) there was no other adequate means of escape, (c) the remedy was not disproportionate to the evil’.151 This formulation will be discussed below in comparison with the text of the Rome Statute, Article 31(1)(d).

The first element requires that one acts in response to an outside threat. This is articulated in Article 31(1)(d) of the Rome Statute as requiring that the duress resulted from a threat ‘against that person or another person’ which is ‘made by other persons’. Thus, the threat may have been to the accused or to another person.152 No special relationship is required between the two individuals when the accused acts to avoid a threat to another person.153 The Rome Statute requires that the threat be ‘of imminent death or of continuing or imminent serious bodily harm against the person or another person’.154 While the scope of crimes that fall within the jurisdiction of the African Court is of course much broader than that of the ICC, they are also all very serious and, therefore, a similarly high threshold may be warranted.155

Article 31(1)(d) also requires that the duress caused the commission of the crime. Thus, it has been suggested that an accused cannot avail themselves of the defence of duress if the person would have committed the crime regardless of the threat.156 The relevant question is whether a ‘reasonable person in comparable circumstances’ would have been driven to commit the criminal conduct.157 It has been suggested that relevant individual characteristics of the accused should be considered in how the person could be expected to reasonably react in such circumstances.158 This approach has been used to support the argument that a solider should be able to resist more danger and can, accordingly, be held to a higher standard than other people.159

There are also limitations on the way in which an individual can respond to such a threat in order to avail themselves of the defence of duress. First, the accused acting under duress must act necessarily. This is reflected in the requirement articulated by the UNWCC that ‘there was no other adequate means of escape’.160 Furthermore, it also requires that the act was reasonable and/or proportionate. Whereas the majority of legal authorities refer to the requirement of proportionality in the accused’s response to the threats, Article 31(1)(d) emphasizes that the accused must have acted reasonably.161 This criterion can be seen to incorporate the requirement of proportionality because an accused cannot be found to have acted reasonably if their acts were disproportionate to the harm threatened.162 This assessment of reasonableness and proportionality is where the most challenging questions surrounding the defence of duress arise, in particular in relation to crimes involving the taking of lives. The Rome Statute includes one additional requirement which is that ‘the person does not intend to cause a great harm than the one sought to be avoided’.163 This additional requirement came about as a result of a compromise at the drafting in Rome but has been criticized as unnecessary and ‘difficult to apply’.164

It has also been suggested that a fourth element of an ‘absence of prior fault’ exists for duress. This means that the accused is precluded from relying on the defence of duress if the accused was culpable in creating the circumstances which gave rise to the threat under which they ultimately acted.165 It has been suggested that this requirement is part of customary international law ‘and is consistent with national practice’.166 It has, accordingly, been suggested that ‘duress or necessity cannot excuse from criminal responsibility the person who intends to avail himself of such defence if he freely and knowingly chose to become a member of a unit, organisation or group institutionally intent upon actions contrary to international humanitarian law.’167 If accepted, this approach would not include conscripted armed forces. Furthermore, careful consideration should be given to the question of whether an individual joined freely, given that there are many coercive circumstances in times of armed conflict which may cause people to join armed groups.168 Furthermore, it would only apply to groups ‘institutionally intent’ upon violating international law.169 Thus, the mere fact of joining an armed group participating in an armed conflict does not meet this threshold. Given the fact that the African Court includes jurisdiction over transnational crimes as well as core international crimes, this limitation on the applicability of duress may be considered in relation to those who freely and knowingly join organized criminal groups.170

The defence of duress has been recognized in international criminal law and is codified in the Rome Statute. It may continue to be raised by accused in defence to charges of serious international and transnational crimes. There remain uncertainties with respect to the boundaries of and potential exclusions from the defence of duress. However, even if no crime is explicitly excluded from the purview of duress, the strict requirements of the defence should limit its application and abuse.

2. Necessity

Throughout most of the drafting history of the Rome Statute, the defences of duress and necessity were listed as separate grounds for excluding criminal responsibility.171 However, in the final stages of drafting in Rome, duress and necessity were combined in one provision.172 While Article 31(1)(d)(i) includes the traditional defence of duress, subsection (ii), which refers to an accused who acts under duress ‘[c]onstituted by other circumstances beyond that person’s control,’ reflects one formulation of the defence of necessity.173 In other words, necessity is recognized in the form of the ‘duress of circumstances’.174

Necessity is a less commonly recognized and less well defined concept than duress.175 However, it has been observed that ‘[t]he current trend is for the law to recognize a defence of necessity, the basic argument being that, insofar as criminal responsibility is concerned, there is no distinction between a person who committed an offence as a result of a threat by a human agent, and one who did so under a threat caused by natural circumstances.’176

Necessity can be conceptualized in two different ways, as an excuse and as a justification.177 Necessity as a justification includes a situation where an accused acts and causes harm, but does so in order to avoid a greater harm. ‘Justified necessity usually appeals to some version of choice of evils … If the outcome “sought to be avoided” by the defendant is sufficiently grave compared to the defendant’s act, then the act is justified by virtue of the necessity of the situation.’178 Necessity as an excuse resembles the defence of duress when the accused is compelled to commit an act which is criminal to avoid a serious threat emerging from external circumstances.179 In some national jurisdictions, both versions of the defence are recognized; whereas others recognize only one version and not the other.180

In addition to combining the defences of duress and necessity in Article 31(1)(d), it has been suggested that this provision also combines elements of justification (the ‘choice of a lesser evil’) with elements of excuse (the absence of ‘moral choice’).181 While some commentators approve of the combination of these defences in one paragraph, Article 31(1)(d) has been criticized by others for ‘simply lump[ing] everything together in a muddle’.182 Similarly, some commentators have suggested that it is necessary to distinguish between the two different forms of necessity (as a justification versus an excuse).183 However, others suggest that this distinction is not necessary and ‘the best approach is to develop a single formulation of necessity, which incorporates features of excuse and justification.’184 Yeo, who advocates for the latter approach, emphasizes that ‘the essential issue is whether the defendant’s actions were, in the circumstances, blameworthy and deserving of condemnation and punishment.’185

As discussed above, Article 31(1)(d) combines duress and necessity and, therefore, the elements of necessity under the Rome Statute are the same as those discussed above with respect to duress. However, there is one noteworthy difference. Article 31(1)(d)(ii) specifies that the defence of necessity is only available if the duress arises from ‘circumstances beyond that person’s control’. By contrast, no similar limitation is articulated in relation to duress under subsection (i). However, as discussed above, it has been suggested that the requirement of absence of prior fault should be applied to both duress and necessity.

Similar to the defence of duress, the question of whether any defences, such as murder, should be excluded from the application of the defence of necessity is often considered.186 In the context of the defence of necessity, the scholarly debate often focuses on whether or not it may be a defence to the crime of torture.187 While it is hopefully broadly accepted now that torture can never be justified, the question remains whether an individual could raise the defence of necessity as an excuse.188 This has led some to suggest that necessity should be ruled out as a possible defence for torture.189 The Rome Statute takes the approach of not explicitly excluding any crime and relies on the requirements that the act must be necessary and reasonable to restrict the defence.

The ICTY found that the defence of necessity existed in customary international law.190 The Tribunal contemplated that necessity may be a defence of justification to the war crime of plunder involving appropriation of property in time of famine if the following cumulative conditions are met: ‘(i) there must be a real and imminent threat of severe and irreparable harm to life existence, (ii) the acts of plunder must have been the only means to avoid the aforesaid harm, (iii) the acts of plunder were not disproportionate and (iv) the situation was not voluntarily brought about by the perpetrator himself.’191 The ICC in Katanga contemplated the possibility that circumstances comparable to famine may amount to necessity under article 31(1)(d) of the Rome Statute but did not find that such extreme circumstances were made out on the facts of that case.192 In the ICTY case Prosecutor v. Naser Orić, the Trial Chamber did conclude that the defence of necessity was available in relation to charges of plunder involving the theft of cattle in the situation of a city under siege and a starving population.193

In another ICTY case, the accused, the commander or prison warden of a detention facility, attempted to raise the defence of necessity in response to convictions for war crimes relating to the mistreatment of civilian detainees.194 On appeal, the convicted prison warden argued that the conduct was justified by necessity because more people were injured and killed outside of the facility due to the armed conflict than inside the prison. He suggested that the defence of necessity ‘excludes the perpetrator’s unlawful actions since such actions are motivated by the intent to avoid a worse violation.’195 The Appeals Chamber rejected the argument as misplaced on the facts of the case.196

In the Special Court for Sierra Leone’s (‘SCSL’) CDF Trial, one trial judge concluded the defence of necessity was available to the accused who were fighting on behalf of the democratically ousted government which had been ousted by a coup ‘on the grounds that the preservation of democratic rule is a vital interest worth protecting at all cost in the face of rebellion, anarchy and tyranny’.197 However, this was unsurprisingly rejected by the other two trial judges.198

The version of necessity codified in the Rome Statute is the more restrictive excuse of necessity, in the sense of an accused acting under compulsion from ‘duress of circumstances’.199 The African Court could follow this lead and take a similarly restrictive approach. Additionally, even if no crimes are explicitly excluded, the requirements that the act be necessary, reasonable and proportionate would likely prevent the success of the defence in all but the most exceptional cases. This is demonstrated by the limited relevance of the defence thus far in the international criminal law jurisprudence.

E. Mistake of Fact and Mistake of Law

In addition to the grounds for excluding criminal responsibility included in the Rome Statute as discussed above, Article 32 of the Rome Statute also includes the following provision on the defences of mistake of fact and mistake of law:

Article 32

  1. 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

  2. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.

Mistakes of fact or mistake of law were often raised by the accused tried pursuant to the Nuremberg Charter and Control Council Law No. 10, despite these instruments’ silence on these defences.200 In this post–World War II jurisprudence, mistake of fact was accepted as a defence but exculpatory arguments about mistake of law were generally rejected.201

The defence of mistake of fact is uncontroversial because a mistake about the nature of any material fact would preclude a finding of the required mens rea. For example, if an individual attacked a building believing it with good reason to be a legitimate military objective, they would lack the mens rea for the war crime of attacking a civilian object, even if the accused’s belief as to the nature of the building was mistaken and it was in fact a civilian object. Thus, the UNWCC observed that ‘mistake of facts … may constitute a defence in war crimes trials just as it may in trials before municipal courts.’202 This is sometimes referred to as a failure of proof defence.

It was questioned during the drafting whether it was actually necessary to include these defences in the Rome Statute at all.203 To the extent that these defences amount to a negation of the mental element, they do not need to be explicitly enumerated because, if established, the mental element for the crime would be absent and an accused would clearly not be criminally culpable. Thus, the first paragraph of Article 32, which recognizes mistake of fact ‘only if it negates the mental element required by the crime,’ has been described as merely stating what is otherwise ‘self-evident’ and amounting to no more than ‘a pure clarification of a generally accepted principle of criminal law’.204

While mistake of fact is readily accepted, the defence of mistake of law is more controversial.205 While it is generally a rule of national jurisdictions that ignorance of the law is no excuse to criminal responsibility, some have argued that individuals may not be expected to be as knowledgeable about international law as they are about their national laws.206 Thus, it is suggested that a defence of mistake of law, in the sense of a mistaken belief that something is lawful when it is not, may be more justifiable in relation to prosecutions for international crimes.207 This argument, however, is generally limited to the confines of war crimes because other international crimes including crimes against humanity and genocide are obviously unlawful and no person can reasonably be under a mistaken belief in their legality.208 The same would hold true for many war crimes as well.209 Furthermore, international humanitarian law places obligations on states to educate their armed forces about the law of armed conflict thus reducing the persuasiveness of this argument.210

Ignorance of the law is not, however, recognized as a defence in Article 32(2) of the Rome Statute. This provision explicitly states that ‘[a] mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility.’ Accordingly, it is unlikely that it would be generally accepted today that ignorance of the law, even of international law, would constitute a defence to serious international or transnational crimes.211

The version of mistake of law that is included in the Rome Statute is quite limited.212 Article 32(2) only recognises the defence of mistake of law, outside of the defence of superior orders pursuant to Article 33 of the Rome Statute, in the limited circumstances in which ‘it negates the mental element required by such a crime’. This limited defence only applies when there is a ‘wrongful legal evaluation’ or a ‘mistake of legal element’.213 Thus, as described by Heller, the defence of mistake of law as defined in the Rome Statute amounts to an argument that the accused ‘was mistaken concerning the definition of a legal element in a crime such that he cannot be said to have acted ‘knowingly’ with regard to that element.’214 This can arise in particular in relation to war crimes which often involve reference to international humanitarian law to legally evaluate some of the material elements of the war crimes proscribed by the Rome Statute.215

As an example of a crime with a legal element, Heller points to the crime against humanity of ‘Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law.’216 Another example pointed to by commentators is the war crime of using weapons or methods of warfare which cause superfluous injury or are inherently indiscriminate ‘provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition’ pursuant to Article 8(2)(b)(xx) of the Rome Statute.217

The potential scope of the more restrictive version of mistake of law adopted in the Rome Statute is disputed amongst scholars. It has been suggested by some that this narrowly defined defence of mistake of law will have limited relevance with respect to international crimes. This view is based on the argument that it has generally been accepted that the mental element of most international crimes requires only awareness of the existence of the material facts and not a legal evaluation of the facts. For example, according to the Elements of Crimes, for prosecutions of war crimes pursuant to the Rome Statute, ‘[t]here is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international’.218 Accordingly, the final element of each war crime requires only that ‘[t]he perpetrator was aware of the factual circumstances that established the existence of an armed conflict.’219 This approach limits the potential scope of the mistake of law defence because no legal analysis is required. Heller, on the other hand, argues that Article 32(2) has broader application than is generally recognized.220 Ultimately, the potential scope of this defence depends on the degree to which the Court accepts these ‘factual awareness elements’ as being consistent with the mental element requirements defined in Article 30 of the Rome Statute.221 If accepted, these factual awareness elements, in particular in relation to the contextual elements of international crimes, will seriously reduce the practical availability of claims of mistake, in particular given the widespread and large scale nature of international crimes and the visible nature of their perpetration which would make it unlikely that an individual would have a legitimate claim that they were unaware of such facts.222

Pursuant to the approach taken in the Rome Statute, a mistake, whether it be a mistake of fact or a mistake of law on the occasion in which a legal evaluation of a situation is a material element, can amount to a defence by negating mens rea. However, it has been pointed out that the word mistake may be misleading in that it suggests a ‘false perception of reality’, whereas an individual who is ignorant as to the reality may similarly lack the mens rea.223 Thus, ‘error and mistake as well as lack of knowledge and awareness’ can give rise to a mistake of fact or mistake of legal element defence.224

It has, however, been suggested that it would not be a defence to a crime requiring discriminatory intent (for example, genocide or persecution as a crime against humanity) for an accused to say that they were mistaken in their belief of the characteristics of a particular victim. ‘A person who mistakes the religion or race of a victim may not invoke this error as a defence, since the motive for his act was, in any case, of a racial or religious nature.’225 Similarly, Bantekas submits that mistake should not apply if an accused intends to kill one individual, but mistakes another person for that individual, since the act was still committed with the mens rea of murder.226 Along this line of reasoning, an accused may not avail themselves of a mistake of fact defence for a charge of crimes involving illicit narcotics if they were mistaken about the particular substance that they were trafficking (i.e. if they thought that they were trafficking one illicit substance but were mistaken and it turned out to be a different illicit substance). In such a case, the act would not have been lawful regardless of the mistake.227

Even without any explicit reference to the defence of mistake in the Malabo Protocol, mistakes of both fact and law (in the narrow sense of a mistake with respect to a material element which requires a legal characterization) will be a relevant exculpatory factor when it negates the mental element of the crime. The breadth of the mistake of law defence, in particular, will depend on how exactly the mental elements of the crimes are defined. On the other hand, it seems to be less accepted that a mistake of law, in the sense of ignorance of the unlawfulness of the conduct, is a defence, even for international crimes.

F. Exclusion of the Superior Orders Defence

While the Mabalo Protocol does not include an enumerated list of the defences it will recognize, Article 46B on Individual Criminal Responsibility is significant because it explicitly excludes the defence of superior orders. Pursuant to Article 46B(4): ‘The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Court determines that justice so requires.’228 This exclusion of the defence of superior orders reflects a return to the position adopted at Nuremberg and followed by the ad hoc international criminal tribunals.229 It has been suggested by some that the exclusion of the defence of superior orders for international crimes amounts to customary international law.230

According to the UNWCC writing after World War II: ‘The plea of superior orders has been raised by the Defence in war crimes trials more frequently than any other.’231 Historically, in many states, the fact that an individual acted pursuant to a superior order could be relied upon to exclude criminal responsibility for the acts carried out.232 Responsibility would lie, instead, upon the commander who issued the unlawful order (known as the principle of respondeat superior).233 In the few trials that followed World War I, however, an individual was precluded from relying upon the defence of superior orders if the order was manifestly unlawful or the accused was aware of the unlawfulness of the order.234

The defence of superior orders was rejected in Article 8 of the Charter of the International Military Tribunal (‘Nuremberg Charter’).235 This approach was followed in the Charter of the Military Tribunal for the Far East (the Tokyo Charter) and in Control Council Law No. 10.236 At most, the plea of superior orders may have been considered in sentencing as a mitigating factor.237 The Nuremberg approach was followed, in substantively similar terms, in the statutes of the ICTY (Article 7(4)),238 the ICTR (Article 6(4)),239 the SCSL (Article 6(4)),240 and the Extraordinary Chambers of the Courts of Cambodia (Article 29).241

On the other hand, Article 33(1) of the Rome Statute recognizes the defence of superior orders if: ‘(a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful and (c) The order was not manifestly unlawful.’242 This approach reflects a departure from the more robust prohibition on the reliance on the superior orders defence in the Nuremberg Charter and the ad hoc international criminal tribunals and has been criticized accordingly.243 However, in practice it opens up only a very small door to the defence of superior orders and it is unlikely in practice to be applicable in many (or, perhaps, in any) prosecutions before the ICC. This is the case for a number of reasons.

First, pursuant to subsection (2) of Article 33, all acts of genocide or crimes against humanity are manifestly unlawful. Therefore, an individual is precluded from relying on the defence of superior orders for all charges of crimes against humanity and genocide. Thus, the scope of the superior orders defence is restricted to charges of war crimes.244 Second, many of the war crimes included in the Rome Statute, such as torture, rape or other forms of sexual violence, amongst many others, would be manifestly unlawful like crimes against humanity and genocide.245 Finally, the Rome Statute’s departure from the Nuremberg prohibition on superior orders is not likely to result in many acquittals because, due to limited resources, the Prosecutor of the ICC has often focused investigations and prosecutions on senior leaders including sitting and former heads of state and senior commanders of non-state armed groups. Therefore, it is more likely that those individuals giving the orders will be prosecuted rather than those acting pursuant to orders.

Despite the fact that the approach taken in Article 33 of the Rome Statute is unlikely to change the outcome of many cases in practice, the African Court’s complete exclusion of the defence of superior orders reflects a return to the position of the Nuremberg Charter (which also excluded a plea of official capacity) and the majority of the other international criminal courts and tribunals. Given the African Court’s broad subject matter jurisdiction and the fact that the African Court may not be so limited in only prosecuting those most senior leaders, this return to the Nuremberg approach will likely be welcomed given that the defence of superior orders has been described as ‘highly controversial’.246 Other defences, including mistake of fact and duress which may factually arise in circumstances where an accused is acting under the orders of a superior, should be recognized by the court.247 These defences will adequately ensure that criminal responsibility of individuals acting pursuant to superior orders only attaches to those with the requisite degree of fault.

G. Other Potential Defences Relating to War Crimes

The final subsection of Article 31 of the Rome Statute makes it clear that the explicit inclusion of certain defences, such as mental disease or defect, intoxication, defence of persons and property, and duress, is not exhaustive. Article 31(3) states that: ‘At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such ground is derived from applicable law as set forth in article 21.’248 This provision was included because the drafters felt that ‘the Rome Statute could not possibly foresee all situations and that respect for the rights of the indicted made it necessary to have such a “window”’.249 In particular, this ‘window’ replaced a draft article on defences under public international law, subsequently changed to ‘possible grounds for excluding criminal responsibility referring to war crimes.’250 This provision existed as a ‘place-holder’, without any attached text to it, throughout the process of negotiations.251 This draft article on defences applicable to war crimes contemplated the inclusion of military necessity, reprisals and, possibly, self-defence under Article 51 of the UN Charter.252 However, this draft provision was ultimately omitted from the final text of the Rome Statute because political agreement on definitions of these defences was considered ‘almost impossible’.253

While Article 51 self-defence and its relationship to the crime of aggression are beyond the scope of this chapter, as is a detailed examination of the rules of international humanitarian law, this section of the chapter will briefly consider potential defences which have been discussed in the international criminal jurisdiction in relation to war crimes, including: military necessity, reprisals, tu quoque, and defensive operations. Some of these defences may still have limited applicability to certain war crimes. However, others have been explicitly rejected by the courts and are inapplicable today.

1. Military Necessity

The UNWCC observed that the plea of military necessity was often raised during the post–World War II war crimes trials alongside the pleas of superior orders and of duress.254 Both the ICC and the ICTY have adopted the definition of military necessity from article 14 of the Lieber Code of 1863 which states that ‘Military necessity […] consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war’.255

As stated by the UNWCC, the position generally taken by the post–World War II tribunals was that ‘[m]ilitary necessity or expediency do not justify a violation of positive rules’ and, accordingly, military necessity was only relevant when the applicable laws of armed conflict explicitly stated so.256 In other words, military necessity may not be invoked as a defence as such and, therefore, is only relevant when explicitly contemplated within the definition of the war crime itself.257 The ICC has taken this approach and in one case declared that military necessity can ‘in no circumstances’ be a defence to the prohibition against targeting attacks against civilians.258

In the Malabo Protocol, reference to the concept of military necessity can be found in three provisions of Article 28D on war crimes relating to appropriation or destruction of property, in particular: the grave breach of the Geneva Conventions of ‘Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’ (28(D)(a)(iv)) and the war crime of ‘Destroying or seizing the enemy’s property unless such destruction or seizure may be imperatively demanded by the necessities of war’ (28D(b)(xiv) and 28D(e)(xii)). Thus, the concept of military necessity is relevant to determining whether these particular war crimes have been established but does not serve as a general defence to other crimes within the jurisdiction of the Malabo Protocol.

2. Tu Quoque

The defence of tu quoque, ‘namely the defence of one Party to an armed conflict, or member thereof, to an allegation of the commission of atrocities, that the other Party has committed similar atrocities’, has been consistently rejected in contemporary international criminal law.259 This was made clear by the Trial Chamber of the ICTY in the Kupreškić case.260 The Trial Chamber emphasized ‘the irrelevance of reciprocity, particularly in relation to obligations found within international humanitarian law which have an absolute and non-derogable character.’261 Accordingly, it concluded that ‘the tu quoque defence has no place in contemporary international humanitarian law.’262 The rejection of this defence was affirmed by the ICTY Appeals Chamber in the Martić case.263 If African states wish to continue to apply the best practices of prior tribunals, this prospective defence might be one of the more prudent ones to omit.

3. Reprisals

As defined by the ICTY: ‘In the law of armed conflict, belligerent reprisals are acts resorted to by one belligerent which would otherwise be unlawful, but which are rendered lawful by the fact that they are taken in response to a violation of that law committed by the other belligerent. Reprisals are therefore drastic and exceptional measures employed by one belligerent for the sole purpose of seeking compliance with the law of armed conflict by the opposite party.’264 The question of reprisals as a legitimate defence was considered and left open throughout most of the drafting history of the Rome Statute.265 While not ultimately explicitly included in the final draft, the question may still arise through the ‘window’ left open in Article 31(3). Reprisals are only recognized under very strict conditions and there is a long list of prohibited objects of reprisals.266

The ICTY Trial Chamber in Martić delineated the cumulative conditions under which reprisals may be considered lawful, noting that such conditions are ‘well-established under customary law’.267 These conditions were further summarized by the Trial Chamber in Kupreškić:

[E]ven when considered lawful, reprisals are restricted by; (a) the principle whereby they must be a last resort in attempts to impose compliance by the adversary with legal standards (which entails, amongst other things, that they may be exercised only after a prior warning has been given which has failed to bring about the discontinuance of the adversary’s crimes); (b) the obligation to take special precautions before implementing them (they may be taken only after a decision to this effect has been made at the highest political or military level; in other words they may not be decided by local commanders); (c) the principle of proportionality (which entails not only that the reprisals must not be excessive compared to the precedent unlawful act of warfare but also that they must stop as soon as that unlawful act has been discontinued) and; (d) ‘elementary considerations of humanity’…268

The first treaty to protect certain persons from being the object of reprisal is the 1929 Convention Relative to the Treatment of Prisoners of War.269 All four 1949 Geneva Conventions contains prohibitions on reprisals against persons and property protected therein.270 These prohibitions are considered customary international law and would thus ordinarily be available in the context of international armed conflict.271 Extensive prohibitions against reprisals were contained in Additional Protocol I to the Geneva Conventions of 1977 which prohibits reprisals against: wounded, sick, shipwrecked, and medical personnel; the civilian population or individual civilians; civilian objects; historical monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; objects indispensable to the survival of the civilian population; the natural environment; works or installations containing dangerous forces (dams, dykes and nuclear electrical generating stations).272 However, not all of these prohibitions in Additional Protocol I may yet be recognized as customary international law.273

While Additional Protocol II to the Geneva Conventions does not contain any provisions restricting reprisals, it has been suggested that this was because some states felt that reprisals had never been recognised in non-international armed conflicts and they did not want to open the door to such potential recognition.274 Thus, the ICRC asserts that as a matter of customary international law, ‘[p]arties to non-international armed conflicts do not have the right to resort to belligerent reprisals’ and, further, that any other ‘countermeasures against persons who do not or who have ceased to take a direct part in hostilities are prohibited.’275 Similarly, the ICTY suggests that the prohibition against direct reprisals against civilians is to be inferred from the fundamental guarantees provided for in Article 4 of Additional Protocol II.276 In the Mbarushimana case, Pre-Trial Chamber I of the ICC affirmed generally that directing reprisals against the civilian population or individual civilians is prohibited.277

Reprisals have not been widely used since World War II and are not considered to be particularly effective as a means of enforcing the other party to abide by the law.278 Reprisals derive from a time when there were limited other forms of deterrence for violations of international humanitarian law. Given the recent proliferation of institutions for prosecutions of war crimes, the original purpose behind reprisals is arguably less relevant today. Thus, the ICTY has suggested that reprisals can ‘no longer be justified’ as a mechanism necessary for enforcing the laws of armed conflict.279 However, there is no indication that states are willing to close the door on the long-standing doctrine of reprisals. Regardless, pleas of reprisal as a defence have rarely been successful and are unlikely to be successful in most future cases given the very strict conditions that must be met and the long list of prohibited targets which may not be subjects of reprisals.

(a) Defensive Operations

The extent to which self-defence under Article 51 of the UN Charter and customary international law is relevant to determining whether or not an act of aggression has been committed is beyond the scope of this chapter. With respect to all other crimes within the scope of the Protocol, including war crimes, the fact that an individual committed those crimes while their troops were conducting a defensive military operation is not a defence for individual criminal responsibility. This is explicitly recognized in Article 31(1)(c) of the Rome Statute which explicitly states at the end of the paragraph on self-defence, defence of others and defence of property: ‘The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph.’

This final phrase of Article 31(1)(c) was relied upon by an ICTY Trial Chamber in the Kordić and Čerkez case.280 The two accused, senior Bosnian Croat military and political figures, were charged with war crimes and crimes against humanity in relation to a campaign of persecution and ethnic cleansing and serious violations of international humanitarian law against the Bosnian Muslim population in the conflict in Central Bosnia in the early 1990s.281 In response to many of the charges, the defence argued that the accused and the Bosnian Croats operating in the area were operating in self-defence. The ICTY, with reference to this final sentence of Article 31(1)(c) of the Rome Statute, concluded that ‘military operations in self-defence do not provide a justification for serious violations of international humanitarian law.’282 The ICTY Appeals Chamber affirmed this in the Martić case, rejecting the defence’s argument that ‘the shelling of Zagreb was a lawful military action conducted in self-defence.’283 The Appeals Chamber reiterated that ‘whether an attack was ordered as pre-emptive, defensive or offensive is from a legal point of view irrelevant […]. The issue at hand is whether the way in which the military action was carried out was criminal or not.’284

Similarly, other potential ‘justifications’ for the overall military operation have been rejected as defences. Surprisingly, in the SCSL’s ‘CDF Trial’, one trial judge would have acquitted both accused of war crimes including murder, cruel treatment, pillage, and enlisting children under the age of 15 into armed forces on the basis of the argument that necessity and the doctrine of salus civis supreme lex est (‘the safety of the state is the supreme law’) formed defences for the accused.285 The availability of these defences, in Justice Thompson’s reasoning, was based on the argument that the Civil Defence Forces (of which the accused were leaders) were fighting to reinstate the democratically elected government which was ousted by a coup.286 This approach was clearly rejected by the two other trial judges.287 In another SCSL case, Justice Thompson also opined that the fact that the accused were conducting a ‘just war’, i.e. ‘the right to rebel against a corrupt and oppressive civilian government,’ could constitute a ground for excluding criminal responsibility.288 The Appeals Chamber rejected this approach, observing that ‘International humanitarian law specifically removes a party’s political motive and the “justness” of a party’s cause from consideration.’289 Furthermore, the Appeals Chamber reiterated that ‘rules of international humanitarian law apply equally to both sides of the conflict, irrespective of who is the “aggressor”’.290

H. Other Possible Defences?

While Article 31(3) appeared to have been drafted primarily in response to the omission of the draft provision on defences for war crimes, it is not on its face restricted in scope to this category of potential defences. It should be recalled that this provision was included because it was felt by the drafters that ‘the Rome Statute could not possibly foresee all situations and that respect for the rights of the indicted made it necessary to have such a ‘window’.’291 Similarly, it is possible that other defences derived from national criminal laws may be plead as the jurisprudence at the African Court develops.

One issue worth considering is whether consent is a defence to certain crimes in international criminal law. In particular, this may be relevant to crimes involving the recruitment of child soldiers and to sexual violence crimes, in particular rape.292 Other defences such as procedural bars to prosecution should also be considered.

1. Consent and Recruitment of Child Soldiers

Both the ICC and the SCSL, the two courts which have convicted individuals for crimes involving the enlistment, conscription, and use of child soldiers, have explicitly rejected that consent is a defence to the recruitment of a child under the age of 15.293 In reaching this conclusion, the ICC Trial Chamber relied on testimony from an expert witness who submitted that ‘from a psychological point of view children cannot give “informed” consent when joining an armed group, because they have limited understanding of their voices; they do not control or fully comprehend the structures and forces they are dealing with; and they have inadequate knowledge and understanding of the short- and long-term consequences of their actions.’294 Similarly, the SCSL stated that ‘where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.’295 Interestingly, in contrast to the Rome Statute which includes war crimes of conscripting, enlisting and using children under fifteen years of age, the Malabo Protocol raises this age limit and criminalizes ‘conscripting or enlisting children under the age of eighteen years […] or using them to participate actively in hostilities.’296 This increase in age is reflective of the provisions of the Optional Protocol to the Convention on the Rights of the Child.297 However, Mark Drumbl’s recent book presents a more complex picture of the realities of child soldiers and challenges the failure to acknowledge the agency of children, which might militate in favour of a less paternalistic approach to the notion of consent.