Doing business with the devil: the challenges of prosecuting corporate officials whose business transactions facilitate war crimes and crimes against humanity

Air Force Law Review, Wntr, 2005 by Kyle Rex Jacobson

If you want to indict industrialists who helped to rearm Germany, you will have to indict your own too. The Opel Werke, for instance, who did nothing but war production, were owned by your General Motors.--No, that is no way to go about it. You cannot indict industrialists. (1)

--Hjalmer Horace Greeley Schacht, major war crimes defendant at the International Military Tribunal at Nuremberg

I. INTRODUCTION

When the chief prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo, signaled that persons involved in the trade of "blood diamonds" may be subject to charges of complicity in war crimes and genocide, (2) at least one reader of the ABA Journal cried foul: "Doesn't the ICC have any sense of the foundations of criminal law: a legitimate definition of the proscribed act, mens rea, and conscious and deliberate action? The sort of arbitrary, unlimited liability nonsense espoused by prosecutor Luis Ocampo is sufficient to reject the ICC and its jurisdiction out of hand." (3) Mr. Ocampo's statements have been a bit more guarded than the summary in the ABA Journal: "If they received diamonds and knew that the people delivering them were getting them because of genocide then they could well be part of the crime." (4)

But the dilemma remains: at what point should a corporate official be held liable for facilitation of the four core international crimes--war crimes, crimes against humanity, genocide or wars of aggression (5)--when his or her central motive is to make a profit? And should that determination also account for the great harm that can be caused by the amoral decision making of corporations? (6)

If one doesn't ordinarily think of businessmen and businesswomen as war criminals, such a prosecution is not without precedent. Even though concerns about corporate involvement in wars and in international crimes are not new, (7) history shows that prosecution is difficult when the acts forming the basis of the charges are the corporation's everyday acts of commerce with persons who also commit core international crimes. Part of the hesitance to prosecute people for just "doing business" is the difficulty that "aggressive pursuit of accomplices ... may reach so far into the realm of ordinary and 'legitimate' commercial activity." (8) Although prosecution is feasible when corporate officials supply a means or instrumentality while knowing it will be used to commit a crime, it is far more difficult to criminalize the conduct of a corporate official whose business transactions provide criminals with funds or multipurpose goods. Both to deter facilitation of crimes and to provide proper notice of criminality, this paper proposes that future prosecutions be based on a decision regarding, or notice of, criminality given by the United Nations Security Council or other authoritative international body, rather than at the initiation of the ICC prosecutor

II. HISTORICAL PRECEDENTS--POST-WORLD WAR II CASES

In order to understand how successful modern prosecutions against corporate officials might be, it is best to first look at the circumstances under which business or corporate officials (9) were convicted in the past. It is also helpful to understand the general principles of accessory liability as determined by international tribunals.

A. The Trial of Major German War Criminals before the International Military Tribunal at Nurnberg (10)

It is hard to overstate the significance of the strengthening of international humanitarian law that resulted from the charter and judgment of the International Military Tribunal. (11) There was a general failure to bring war criminals to justice following World War I, (12) and even when war criminals were tried, their criminal liability was somewhat dependent on, and hampered by, domestic law. (13) The charter of the tribunal, which set out the composition, jurisdiction, principles and powers of the tribunal, (14) was heralded as a statement of international law almost by acclamation. Although it was initially an agreement of only four states--the United States, the U.S.S.R., the United Kingdom and France, (15) nineteen additional states joined the agreement later in 1945, (16) and the principles of the charter and the judgments of the tribunal were affirmed as customary international law by the United Nations General Assembly in 1946. (17) As noted by the International Criminal Tribunal for the Former Yugoslavia (ICTY), (18) crimes against humanity were officially recognized for the first time in the Nurnberg Charter. (19) Individual criminal responsibility for crimes against humanity was likewise recognized for the first time. (20) Thus, in many ways, the charter and judgment of the International Military Tribunal at Nurnberg set the standard for future prosecutions of persons responsible for core international crimes and are the "basic documents" of prosecutions for war crimes, crimes against peace, and crimes against humanity, particularly the latter.

The prosecutors charged the major German war criminals under four multi-faceted counts. (21) Count One, entitled "Common Plan or Conspiracy", charged all of the defendants with being "leaders, organizers, instigators, or accomplices in the formation or execution of a common plan or conspiracy to commit, or which involved the commission of, Crimes against Peace, War Crimes, and Crimes against Humanity." (22) This count charged the Nazi Party as being the "central core of the common plan or conspiracy," (23) the central aim of which was to wage aggressive war to acquire lebensraum ("living space") for the German "master race." (24) In the course and in furtherance of the plan, the Nazi conspirators were charged with using "organizations of German business as instruments of economic mobilization for war" and they, "in particular the industrialists among them, embarked upon a huge re-armament program." (25)