Abstracts

Lead Speakers (in alphabetical order):

Daley Birkett: Fines and Asset Forfeiture at International(ised) Criminal Tribunals and the Rise of Reparative Justice

On 22 March 2017, Trial Chamber VII of the International Criminal Court (ICC, Court) imposed a fine of 300,000 Euros on Mr Jean-Pierre Bemba Gombo for offences against the administration of justice, namely witness tampering. In ordering this penalty against the former Vice President of the Democratic Republic of the Congo, the Trial Chamber took into consideration not only 'Mr Bemba's culpability', but also his 'solvency'. The fines imposed by the Trial Chamber against Mr Bemba and his lawyer in this Decision were the first financial penalties ordered by the ICC since its establishment in 2002.

One of the primary functions of the fines and forfeiture regime in the Rome Statute, the constituent instrument of the ICC, is to serve as a mechanism enabling the enforcement of future reparation awards. This purpose is confirmed by Article 57(3)(e) of the Rome Statute, which provides that protective measures requested by the Court for the purpose of forfeiture are intended 'in particular for the ultimate benefit of victims'. In the recent Bemba Decision, Trial Chamber VII ordered that Mr Bemba's fine be transferred to the Trust Fund for Victims, which administers orders for reparations. The Chamber ordered likewise regarding Mr Bemba's co-accused, Mr Aimé Kilolo Musamba. Such measures are significant because those who commit international crimes may possess substantial personal wealth, whether generated through criminal or non-criminal means.

Although international(ised) criminal tribunals have been afforded the power to impose fines and asset forfeiture measures since the modern inception of international criminal law in Nuremberg, these procedures have been rarely invoked. At the same time, these procedures have evolved with the inclusion of a series of victim-oriented provisions in the legal frameworks of a number of international(ised) criminal tribunals and, perhaps most notably for the purpose of the present study, that of the permanent ICC. The paper proposes that the growing influence of reparative justice underpins one of the principal functions of the fine and asset forfeiture powers available to modern international(ised) criminal justice institutions, namely that of providing restitution to victims.

The paper critically examines the development of the fine and asset forfeiture measures in both the constituent instruments and case law of international(ised) criminal tribunals since Nuremberg. The paper demonstrates that such procedures have been underutilised in practice, even though many perpetrators of international crimes were, in fact, solvent. While recognising that the origins of international criminal law were chiefly retributive, in light of the fine and asset forfeiture regimes found in the frameworks of a number of international(ised) criminal tribunals, the paper contends that the Court's fine and asset forfeiture powers were intended by its founders to constitute a vital part of its reparative mandate. The paper concludes that fine and asset forfeiture powers cannot be viewed as outer limits of international criminal justice, but must rather be seen as foundational to this project.

 

Hans Otto Frøland: Judicial aspects relating to the exploitation of forced labour: Norway in context

Whereas in the Nuremberg trials against Nazi perpetrators and their industrialists the abuse of forced labour and slave labour was in several cases part of the indictments this was not the case in the Norwegian legal settlement after the World War II. The comparison is relevant because the Nuremberg trials largely focused on foreign forced labour brought to the Reich and Norway was the only occupied country to which the Nazis deported foreign forced labour. All other occupied countries grossly supplied Germany with labour whereas Norway was a large net receiver.

Focusing on Norway in a West-European comparative perspective the paper elaborates on post-war judicial aspects relating to business' and industrialists exploitation of forced labour during the occupation, and in particular answers why it was neglected in Norway as opposed to Nuremberg. The focus on foreign forced labour at Nuremberg corresponded to norms inherent in international law (war crimes, crimes against humanity) whereas Norwegian neglect followed from a strict framing of national law.

To identify additional explanations the paper also asks how the judicial settlements treated business and industrialists who had used forcibly conscripted national labour. I will contrast Norwegian jurisprudence on this matter with other Western European countries occupied by Germany to identify possible extra-judicial motives.

 

Shuichi Furuya: "Reparation Mechanisms for Victims of Armed Conflict: Common and Basic Principles"

Under current international law, victims of armed conflict have a right to reparation from the responsible parties. Political obstacles may, however, prevent victims from bringing reparation claims before domestic courts. For example, if the victims assert reparation claims before the court of a responsible party, they may reasonably fear discrimination if they were targeted in the armed conflict on ethnic, racial or religious grounds. They may also face real and significant legal and procedural obstacles at the domestic level, in the form of jurisdictional uncertainties, immunities, statutes of limitations, lack of sufficient evidence, or the absence of class or group actions. Giving effect to the right to reparation may in such cases only be practicable in an ad hoc mechanism of some sort.

In fact, various precedents for such reparation mechanisms exist. They include programmes that were set up to resolve post-conflict land and property rights disputes, and claims processes that paid compensation to victims of gross violations of human rights and serious violations of international humanitarian law. The structure and procedures of these past reparation mechanisms varied to a considerable degree depending on the political and social circumstances of the conflicts and the needs of the victims. On the other hand, it is certain that most past reparation mechanisms have faced certain common challenges, such as very large numbers of victims potentially eligible; strong political pressure to achieve results in a short period of time due to high expectations and urgent needs of victims; and limited financial and human resources available to administrate the mechanism and fund compensation or in-kind benefits. Thus, although reparation mechanisms may take many different forms, most need to address such common issues as who is eligible for reparation; what type of harm will be addressed; and what type of remedies are to be made available. Also, assessment needs to be made of what is politically and financially feasible, and what will be the most fair and efficient method of evaluating the claims received.

The present paper will examine the common and basic principles which can be extracted by the comparative analysis of past and ongoing fifteen mechanisms.

 

Reinhold Gallmetzer: ICC Policy Paper and Strategy

Persons financing or otherwise facilitating the commission of war crimes and crimes against humanity are as guilty of these crimes as the direct perpetrators. They often not only provide the direct perpetrators with the means to commit the crimes, but give them the incentive to commit those crimes. Accordingly, prosecuting those individuals may be an effective way to repress ongoing crimes and to deter the relevant actors, including business people, from engaging in illegal trade with criminal organizations or armed groups.

Targeting persons facilitating the commission of international crimes has several practical advantages compared to the prosecution of the direct perpetrators and their superiors. Business actors are rational in assessing and considering the risks of a potential criminal prosecution as part of their decision making. As such, they are more responsive to the deterrent impact of a criminal prosecution than rebel leaders or persons driven by political or ideological motives. This approach may also use jurisdictions in countries other than those where the crimes were committed. In addition, national authorities may prosecute those individuals on the basis of associated criminal activity, such as financial crimes, tax evasion, violations of trade limitations, forgery of documents or corruption. Investigating and prosecuting such associated crimes is simpler as their factual basis is often narrower. Moreover, these crimes are also more common and less technical, so authorities have more expertise and resources to pursue them.

The Office of the Prosecutor of the International Criminal Court (OTP), in its recent policy paper for case selection and prioritization, has stated that war crimes, crimes against humanity or genocide committed through, or resulting in, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land warrant particular attention when selecting cases for investigation and prosecution before the ICC. It also expressed the OTP's intention to cooperate with national authorities prosecuting serious crimes under national law in these areas. Accordingly, the OTP will take into consideration the broader context in which Rome Statue crimes are committed and consider targeting also those persons who are the economic drivers of Rome Statute crimes.

 

Matthew Gillett: Prosecuting Environmental Harm from Military Attacks, Illegal Exploitation of Species, and Toxic Dumping

The serious threat of man-made harm to the environment is increasingly understood by scholars, scientists, and environmentalists throughout the world. During societal conflict, certain threats to the environment are exacerbated, from munitions, from unchecked illegal resource extraction, from exploitation of endangered species, and from toxic dumping. The 1972 Stockholm Declaration that "man's capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment." With the Sustainable Development Goals aiming to improve the world by 2030, including environmentally, it is timely to address means of redress for serious environmental harm.

The rise of various international criminal tribunals during the 1990s and the activation of the World's first International Criminal Court in 2002 demonstrate the feasibility of international proceedings for serious crimes. In relation to crimes against the environment, international criminal law can provide a fall-back enforcement mechanism for states wracked by societal conflict. In this vein, the Office of the Prosecutor has signaled an intent to focus on environmental harm in selecting its cases.

However, significant restrictions entrenched in the International Criminal Court's framing documents impede the likelihood and likely impact of any prosecutions focusing on environmental harm. This analyses examines the possibility of prosecuting military attacks causing grave harm to the environment, illegal exploitation of species, and toxic dumping according to the Court's substantive provisions and procedural framework.

 

Tomas Hamilton: International criminal tribunals as arms trade regulation

Amongst the funders and profiteers of war, arms traders who contribute to international crime play a distinctive role. Like many economic actors who gain financially from international crime, they rarely share the criminal intentions of the principal perpetrator. However, unlike financiers and resource extractors, a weapons supplier contributes the physical means of commission; often this provides a normative and causal link to the criminal act itself. Nonetheless, despite the existence of plausible cases, satisfying the material and mental elements of complicity, prosecutions at international criminal tribunals have not yet materialized. Trades that are prohibited under international law continue with impunity.   

This impunity gap is attributable to a weakness in existing international and domestic regulation. While providing a framework for the legal trade in weapons for legitimate security and military purposes, existing regulation fails effectively to control the flow of arms to perpetrators of international crimes. At the domestic level, export regulations vary greatly between States, failing to collectively address 'Third State Brokering', and often lacking the harsh criminal penalties necessary to deter individuals from lucrative deals. Embargoes of the UN Security Council and the EU have declaratory power, but have lacked enforcement mechanisms. The Arms Trade Treaty 2013 improves on previous non-binding international and regional agreements, by imposing international law obligations on States Parties to assess the risk that an export will contribute to an international crime. But ultimately, the Treaty grants States Parties a large degree of interpretive space and lacks meaningful brokering provisions.

In this regulatory context, can international criminal tribunals such as the ICC, contribute to effectively controlling the global trade? (i) The Rome Statute provides a legal basis for holding State officials, corporate officers, sole-trading shipping agents and brokers directly responsible as accomplices to international crimes; (ii) the prosecution of an arms trader would support the ICC's aims and purposes, bringing to the 'fight against impunity' the declaratory/symbolic effect of unprecedented prosecutions, as well as (iii) strong deterrent effects on rational economic actors, and (iv) hitherto unacknowledged positive complementarity potentialities (e.g. on States with weak implementation of the ATT or States with a lack of brokering controls); (v) ICC prosecutions against some of the individuals involved in the arms trade may be relatively 'easy' targets, despite perceptions to the contrary. In particular, (vi) the phenomena of 'Third State Brokering' opens a range of avenues for prosecutions involving cooperative States Parties; (vii) the ICC Prosecutor could immediately deploy resources to bring these cases – including in existing ICC situations; and (viii) the investigatory challenges may be no more challenging than any other international investigation in a post-conflict environment.

There are, of course, challenges to a putative ICC prosecution: (i) a lack of legal certainty as to the subjective (mens rea)requirements of individual complicity; (ii) the general difficulties of establishing to the criminal standard of proof the knowledge of an accomplice; (iii) more specifically, under Article 25(3)(d) of the Rome Statute, the difficulty of establishing an aim to 'further a criminal activity/purpose' of a group or knowledge of an intended crime; (iv) political factors, including pressure from leading arms exporters to strike a regulatory balance between trading for legitimate military and security purposes and the 'illicit' trade; (v) perceptions within international criminal tribunals of the risk and difficulty of arms trader cases, compared to other prosecutions; (vi) the possible role of institutional norms that overlook certain 'perpetrator types' in favour of a 'classical' type of ICL perpetrator; (vii) the absence of an international crime of 'illicit arms trading' or 'breach of arms embargo' as a basis for principal liability; and (viii) a limited basis for the direct responsibility of the corporate person under international law.

In sum, the current ICC Prosecutor's expression of willingness to investigate cases involving the resource extraction and arms trading nexus is encouraging, but as with previous challenges faced by international criminal tribunals, a successful prosecution will require expertise, commitment and well-constructed case theories.

 

Nina Jørgensen: Charles Taylor as President, Businessman, Warlord and War Criminal

Charles Taylor was President of Liberia between 1997 and 2003, trader in arms, timber and minerals and initiator of the first phase of the Liberian civil war.  He is currently serving a fifty year prison sentence for his involvement in war crimes and crimes against humanity during the armed conflict in Sierra Leone.  This paper examines how the Special Court for Sierra Leone (SCSL) established the linkage between Taylor as a high level economic actor in Liberia and international crimes in neighbouring Sierra Leone through modes of liability, in particular aiding and abetting.  Further, in view of Taylor's position as head of State for most of the period covered by the SCSL indictment and the nature of groups such as the Revolutionary United Front (RUF), issues of State and organizational responsibility will be addressed, including the reasons for prioritising individual criminal responsibility.  Finally, the paper will consider the findings and recommendations of the Liberian Truth and Reconciliation Commission concerning the role of economic actors and economic activities in contributing to, and benefiting from the armed conflict in Liberia.

 

Jennifer Kreder: The U.S. Experience Combating War Era Trafficking in Art and Antiquities.

The presentation will cover the development of U.S. law concerning the restitution of art and antiquities stolen during the Holocaust and times of war. 

This article first provides a brief historical context of the laws and norms of post-war and conflict restitution since World War II. Part II then analyzes the development of U.S. law concerning the restitution of art and antiquities stolen during times of war and conflict. It analyzes U.S. military law, criminal prosecutions, civil lawsuits and customs enforcement, as well as two highly unusual mechanisms in U.S. law, civil forfeiture and extraterritorial application of the Archaeological Resources Protection Act. Part III then engages in two case studies of objects stolen within mainland China during the Second Opium War (zodiac calendar heads) and World War II (ancient porcelain and Japanese katana). It poses and answers the question of whether those objects would be subject to legal restitution if found within a private collection or museum in the United States today. The answers are grounded in the laws previously discussed and the 2009 Memorandum of Understanding signed by the United States and the People's Republic of China restricting the importation of certain classes of ancient art and antiquities.

 

Joanna Kyriakakis: Corporate criminal responsibility at international criminal courts

Since the first UN Committee meeting in 1951 towards a permanent international criminal court, the prospect of extending court jurisdiction to include corporate responsibility was mooted. During the Rome Debates, a draft article for the liability of juridical persons was developed but withdrawn due to inadequate time to resolve state concerns. Since 1998, many continue to advocate the move and legal and social developments have increased the proposal's viability. This talk will discuss developments around corporate criminal responsibility at international criminal courts and domestic courts applying international criminal law, which include the first ever international criminal court to assert jurisdiction over corporations: the Special Tribunal for Lebanon. It will also highlight some of the doctrinal and pragmatic challenges that are encountered in moves to develop and apply such responsibility.

 

Marina Lostal: The illicit trafficking of cultural property as a new international security issue

This paper gives an overview of how the phenomenon of illicit trafficking of cultural property has morphed into an international security issue with ISIS at its centre, and the way in which the international community is trying to address this new threat through legal instruments. Section 1 provides a brief timeline of looting of cultural property in history that shows how this practice has always taken place, but for different motives. Section 2 uses the infamous looting of the National Museum of Baghdad of 2003 as a case-study to illustrate how the activity of looting cultural property acquired a difference nuance with the rise of fundamentalist terrorist groups, turning it into a new international security issue. Section 3 describes how the illicit traffic of antiquities works in Syria and in Iraq, and the role that is known ISIS plays in it. Section 4 explains the reach of the different legal instruments that pre-existed this phenomenon or have been put into place to tackle this new threat to international peace and security. Finally, section 5 looks at possible venues for prosecuting persons involved in this transnational phenomenon.

 

Larry Maybee: Development of the War Crime of Pillage

My presentation will focus on the development of the war crime of pillage to the present day. It will start with a brief explanation of the origins of the concept, the customary nature of pillage as a war crime, and the reason it is treated so harshly by military forces. This will include a short comparison of  pillage with the concepts of 'plunder', 'exploitation', 'spoliation', 'looting' and 'sacking', which are often used interchangeably. I will then examine definitional issues (or rather a lack of a definition of pillage in IHL treaties), which has caused confusion in this area. A definition has eventually been developed, primarily through Nuremburg and  ICTY caselaw, but also the Rome Statute and the ICC elements established for the crime of pillage. I will then discuss the scope and essential elements of the crime of pillage (in armed conflict), with a focus on unlawful appropriation, personal use/gain and consent. When looking at the scope of pillage, I will highlight the issue of individual vs. organized/authorized appropriation, and whether the ICC definition is unduly restrictive, when compared to how pillage was treated, in the IMT, ICTY and the Special Court for Sierra Leone. In these cases, authorised or ordered pillage of natural resources and the systematic exploitation of a territory was carried out not for personal gain, but rather in support of the war effort. I will then compare pillage (unauthorised appropriation), with  authorised forms of appropriation of property during armed conflict, such as 'war booty' and the (limited) appropriation of public property during belligerent occupation, for "military necessity" and use of natural resources "for the maintenance & needs of the occupying army". I will finish off with a brief discussion of  the current state of 'pillage' under international criminal law (e.g. avenues for prosecution), touching upon the issue of State responsibility.

 

Kirsten Sellars: Axis Capitalism on Trial:  Soviet and American Approaches to Economic Crimes at the International Military Tribunals

The Allies' first approach to economic crimes was not through the charge of 'crimes against humanity', which was later levelled at German industrialists for the exploitation of slave labour, but through the charge of 'crimes against peace', which was raised against industrialists and financiers for manufacturing and bankrolling rearmament for their own profitable as well as aggressive ends.

The Soviet Union was the first leader of the charge against the Axis powers' economic 'crimes against peace'. Between 1934 to 1944, the Procurator General, A.Y. Vishinski, and the jurist A.N. Trainin, began to forge the legal instruments that were later deployed at the post-war tribunals at Nuremberg and Tokyo. Vishinkski's contribution was to use the doctrine of complicity against the defendants at the Moscow Trials, who were accused, among other things, of links with Western financiers and of aiming to restore capitalism in the USSR. Trainin's contribution was to link Vishinski's concept of complicity with international 'crimes against peace', so as to sweep leading Axis 'instigators' of the war (the politicians and generals) as well as 'aiders and abettors' (the financiers and industrialists) into the prosecutorial net. The Soviets were deeply disappointed when, at the behest of the other Allies, the latter were let off: the banker Hjalmar Schacht was acquitted at Nuremberg, and the zaibatasu heads were never charged at Tokyo.

Given the Soviets' anti-capitalist intent, it is ironic that the Americans adopted a similar model, partly inspired by Trainin, which was also based on an amalgam of 'conspiracy' and 'crimes against peace'. Responding to Treasury Secretary Henry Morgenthau's desire to break up the German cartels, the American prosecutors at the Nuremberg tribunal initially intended charging the industrialist Gustav Krupp for his part in constructing the German war machine. The senile Krupp never stood trial, though, and British questioned the wisdom of criminalising 'agents of economic imperialism'. Later, at one of the subsequent American tribunals, Krupp's son Alfried was charged with 'crimes against humanity' for using slave labour (for which he was convicted), and for 'crimes against peace' for his role in rearmament (dismissed by the tribunal). The modern shift towards convictions for economic crimes on grounds of 'crimes against humanity' had begun.

 

Göran Sluiter: The Outer Limits of Secondary Criminal Liability for International Crimes - A Few Cases from the Netherlands

My presentation will deal with the complex issue of secondary criminal liability in respect of international crimes. Under Dutch law, two businessmen have been prosecuted for aiding and abetting the commission of international crimes by criminal regimes (Saddam Hussein, Iraq and Charles Taylor, Liberia). Secondary liability for wrongful conduct raises a number of theoretical and fundamental issues, which makes it quite a challenge to prosecute them. In respect of international crimes, taking the prevention of harm as a key purpose, there is the significant risk to push the outer limits of secondary liability beyond the parameters of a significant contribution to the crime. The presentation will explore whether in the case of international crimes the requirements of causality and significant contributions would need to be met and what Dutch case law teaches us in this regard.

 

James Stewart: Reincarnating Article 2(4)

Pillage means theft during war. Over the past decade, a number of courts have begun applying pillage to the illegal exploitation of natural resources, in ways that have important implications for restraining resource wars throughout the world. At the International Court of Justice, for instance, Uganda was held to have pillaged Congolese natural resources. In Switzerland, a corporation was the subject of a formal criminal investigation for having pillaged Congolese gold and in recent months, a Belgian businessman was arrested for pillaging diamonds from Sierra Leone. This paper considers these precedents against the backdrop of Article 2(4) of the UN Charter, arguing that pillage bolsters the prohibition on the use of force to the extent that it creates a new set of disincentives against going to war when the motivation for doing so is forced acquisition of natural resources. For resource wars like these, the prohibition of pillage: overcomes difficulties with the (mis)use of self-defence within the UN Charter's regime governing use of force, side-steps perennial shortcomings of the prohibition against aggression that draws upon it, sheds new light on debates about Humanitarian Intervention, and applies to a wider range of actors than Article 2(4). At the same time, applying pillage to the illegal exploitation of natural resources also comes with a series of its own normative difficulties. This paper describes these positive developments and challenges as a partial reincarnation of Article 2(4), offering something of a response to Thomas Franck's classic piece entitled "Who Killed Article 2(4)?"


William Wiley: Linking Economic Actors to the Core International Crimes of the Syrian Regime

This presentation will provide an overview of CIJA investigations of economic actors in the context of the Syrian conflict and some of the investigative challenges arising, especially in terms of establishing the linkage between financial transactions and international crimes.  The difficulties of investigating the economic aspects of the conduct of senior political and/or military leaders against the background of an underdeveloped legal framework will also be highlighted. 

 

Jan Wouters and Hendrik Vandekerckhove: A Different Type of Aid: The Funders of Wars as Aiders and Abettors under International Criminal Law

Article 25 of the Rome Statute provides that "a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person, […] 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".

However, the Rome Statute fails to define the notion of the 'means' for the commission of international crimes. Nevertheless, examples of convictions on the basis of merely aiding and abetting are abundant and can be relied upon in order to shed light on the issue. For example, in 1946 a British Military Court convicted the German industrialist B. Tesch for aiding and abetting the S.S. in murdering allied nationals in concentration camps. The Court was of the opinion that Mr. Tesch assisted the Nazi S.S. when supplying poison gas, and further, that he was aware of the fact that the S.S. used the specific goods to perpetrate the concerned crimes.

By analogy, if a company engages in a sale of weapons to a terrorist organisation, courts may equally qualify the provided weapons to constitute means for the commission of a crime. However, what if a company purchased oil from a terrorist group knowing that the revenues accumulated would be used to detrimentally affect civilians? Would such business activity be considered to qualify as the provision of "means"? Or would a company have to pay an above-market price for the commodities in order for the payment to constitute a form of aiding and abetting, as perhaps it could be seen as an indirect and intentional way of financing terrorism? This paper aims to provide answers to the above-raised questions, by assessing whether corporate actors in positions to make relevant determinations can be held personally responsible under the scope of international criminal law as aiders and abettors. 

Finally, the complex issue of corporate criminal liability will be addressed. Despite the fact that companies can be direct funders of wars, they cannot be held criminally accountable at the international level as of yet. Nonetheless, numerous States have enacted legislation to enable their domestic courts to determine corporate criminal liability in such situations. In light of this development, the paper seeks to evaluate whether reverting to domestic judicial systems can be viewed as an alternative solution to address problems relating to prosecution of the initiators of wars as aiders and abettors.