Corporate Complicity in International Crimes: Implications of the Lafarge Jurisprudence for the Arms Industry

The article substantiates that the complicity in a crime with a special subject shall not be considered in the period of Kyivan Rus, as there were no crimes with a special subject at that time. It is established that with the enactment of the Second Statute of Lithuania in 1566, the formation of the institute of complicity in a crime with a special subject can be with certainty stated, since the wording of the crimes indicating the liability of accomplices in a crime with a special subject began to be formulated. The tradition of such a method of regulation persisted until the end of the nineteenth century. It is also found that the rule of qualification of complicity in a crime with a special subject, provided for in Part 3 of Art. 29 of the Criminal Code of Ukraine of 2001, is not a novelty for criminal law but was available in the Criminal Code of 1903 and the Criminal Code of the German Empire. It is submitted that the norm foreseeing the liability for the actions of accomplices, not endowed with the features of a special subject, appeared in military crimes as early as 1927. However, such a regulation of complicity in the crimes is considered to be not perfect and contains a number of drawbacks: by a literal interpretation, it can be concluded that non-servicemen in complicity may be held criminally liable as the perpetrators of such crimes, and it is methodologically not appropriate to place the rules of qualification of complicity in crimes with a special subject in the Special Part of the Criminal Code of Ukraine, since such general provisions of criminal law shall be contained in the General Part of the Criminal Code of Ukraine. The inconsistency in the development of institute under consideration is substantiated, mainly because Ukrainian lands were part of different states, whose criminal laws occasionally did not take into account the positive developments of previous years. Particularly negatively the development of the institute of complicity in a crime with a special subject was influenced by the period of Soviet power in Ukraine, as the above-mentioned institute essentially re-started its formation. From 1917 to 1927 the institute of complicity in a crime with a special subject was legislatively not regulated, but only since 1927, when the rule of qualification for the actions of an accomplice in a war crime, not endowed with the features of a special subject, had been fixed. Consequently, it shall be definitely affirmed that the Criminal Code of Ukraine of 2001 contains both the positive experience of legal regulation of complicity in a crime with a special subject in Part 3 of Art. 29, and deficient – in Part 3 of Art. 401. In view of the study, the need to improve the existing legislative regulation of the institute of complicity in a crime with a special subject is confirmed.

The use of criminal law in border control has gained increasing and warranted scholarly attention. International criminal law is no exception, although the orientation of the debates in international law is different from that at the national level. While scholarship on domestic border control is characterized by a deep scepticism of the use of criminal sanction, the focus in international criminal law has been on the exclusion of individuals suspected of involvement in an international crime from the protective sphere of refugee law. The divergence of this scholarship does not fully account for how responses to allegations of involvement in an international crime are often embedded within domestic immigration laws, making concerns regarding domestic border control relevant for discussions in international criminal law. To examine these domestic entanglements, this article analyses an independently generated dataset of 122 cases in 20 countries concerning 102 individuals alleged to have participated in the 1994 genocide in Rwanda. This dataset enables an empirical analysis of the role that international criminal law is playing in their extradition, deportation or domestic prosecution. It argues that these cases are underpinned by plural types of expressive work. They communicate not only an ongoing commitment to recognizing the universal wrong of genocide, but also more ambiguous messaging about what constitutes a fair trial in Rwanda, who constitutes a ‘criminal migrant’ and, to a Rwandan audience, the transnational penal reach of the Rwandan state.

The first session offered an external, i.e. a non-‘international criminal law’ perspective on the Conference topic. Its purpose was to consider whether non-international criminal law mechanisms at either the international or the national level could provide some guidance on how to address corporate involvement in international crimes. The first paper, presented by Anita Ramasastry,1 provided an overview of the involvement of corporations in international crimes. Larissa van den Herik2 then outlined the accountability mechanisms for corporate violations of human rights under international law, and Katherine Gallagher3 presented a paper on the Alien Tort Claims Act (ATCA) litigation in the United States and its possible relevance for international criminal law. Finally, Roland Hefendehl4 elaborated on a domestic, i.e. the German criminal law approach to white-collar crime. The panel was chaired by George P. Fletcher.5 After the presentation of the papers, the general discussion focused on the ATCA and its possible interrelation with international criminal law. In a reply to a question on whether there is opposition to the ATCA, Katherine Gallagher explained that corporations take ATCA cases seriously due in large part to fear of damage to their reputations. Such cases are vigorously litigated, with defendants invoking various legal and policy arguments for why these cases should be dismissed. She referred in particular to the damages cases against companies who allegedly aided and abetted serious human rights violations through their operations in Apartheid South Africa, which are currently being heard by a US court.6 According to Gallagher, there has been a small but measurable impact of ATCA cases on corporate behaviour. Moreover, ATCA cases were of tremendous importance for the victims in providing a forum in which the claims could be raised and having courts consider — and in a growing number of cases affirm — that what had happened to the victims constituted a legal wrongdoing and a violation of international law. Nevertheless, Gallagher considers that the record remains mixed, when cases are judged in the traditional sense. She explained that only a few cases have reached the trial phase, due to dismissals on jurisdictional grounds or because of settlements during the pre-trial stage, by which companies mitigate the damage that a public trial would have on the public’s perception of the corporation. In relation to the question of whether and to what extent public attention is able to influence corporate behaviour, Andrew Clapham7 raised the example of Royal Dutch Shell and Sudan: in 2001, Shell announced that it would no longer supply jet fuel to the region after concentrated media attention on the situation in Darfur, Sudan.

Name It While You Shame It: An Assessment of Iraq’s Legal Response to Da’esh Crimes.

This article analyzes the individual crimes of extremist orientation, located in Section 29 of the Criminal Code, which, in our opinion, is necessary in order to distinguish it from provisions of the General Part of the criminal law of complicity in a crime (Art. 282.1, 282.2 and 282.3 of the Criminal Code). The Author tries to reveal the reasons of legislative and lawapplication problems of crime elements by comparing them with the institute of complicity. As a result of the research the Author offers solutions to the problems identified.

Review. The article reveals the conceptual idea of the grounds for liability with regard to criminal complicity under criminal laws of Russia. It is argued that responsibility for criminal complicity is based on a combination of basic provisions of two theories - namely, the theory of "complicity" and the theory of "autonomy" of responsibility of accomplices, and complicity itself is possible only if there are grounds for responsibility of a crime executor, on the contrary, exclusion of liability of the executor makes impossible the responsibility of others according to the rules of complicity, which, however, does not preclude their independent responsibility for criminal acts committed personally. On the basis of the criminal law, theory and judicial practice the author draws a conclusion with regard to a consistent understanding of principal features of complicity in a crime, shows their role in solving specific questions of classification of crimes committed in complicity, such as: features of causality in complicity cases, temporary complicity borders, complicity in crimes with two forms of guilt, form and content of the guilt of accomplices, "failed" complicity.

Refugee status determination is difficult by its very nature but it becomes even more complex when the issue of exclusion under article 1F(a) is raised and it is alleged that there are ‘serious reasons for considering’ that the applicant is ‘guilty of having committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments that have been drawn to make provision for such crimes’. The ‘War Crimes and Refugee Status’ Research Project’s Canadian jurisprudence dataset, consisting of 98 article 1F(a) cases, reveals that more than 91 per cent of these cases cite international humanitarian law (IHL) or international criminal law (ICL), but only 13 per cent of the cases cite UNHCR guidelines or directives. Interestingly, nearly two-thirds, 65.8 per cent, of these appeal cases are denied. Five of the most frequently cited judgments in this sample of cases were Ramirez , Moreno , Sivakumar , Harb , and Pushpanathan , in that order. After analyzing these five appeal court judgments in depth, seven legal principles were identified respecting the application and interpretation of IHL and ICL in Canada: (1) violations of international law can be committed by private individuals as well as states, or public officials acting on behalf of states; (2) the standard of proof for ‘serious reasons for considering’ under article 1F is lower than a balance of probabilities, the civil law standard; (3) two fundamental tenets on which complicity and culpability are established in international crimes are: (i) no one can commit an international crime without personal and knowing participation; (ii) complicity rests on the existence of a shared common purpose and the knowledge of all the parties involved; (4) Mere membership or passive acquiescence in a group or organization that commits international crimes can never be sufficient to exclude a refugee applicant under article 1F(a); (5) ‘Voluntary, significant and knowing contribution’ does not require formal membership in a group or organization that is engaged in crimes against peace, war crimes or crimes against humanity. An accomplice contributes knowingly to those activities of a group or organization that makes them possible. (6) the offence of ‘aiding and abetting’ cannot be made out by mere presence on the scene where an international crime has taken place. What is required is voluntary, significant and knowing contribution in persecutory acts. (7) there is a close affinity between article 1F(a), which deals with those activities that take place in situations of armed conflict, and article 1F(c), which deals with activities irrespective of whether or not they take place in a situation of armed conflict. Article 1F(a) and (c) can overlap in various ways, such as where the sales of illicit narcotics are used to finance the purchase of weapons that are used in armed conflicts and/or for terrorist activities. The new test for exclusion under article 1F(a) in Canada, ‘voluntary, significant and knowing contribution,’ leaves a broad area of discretion for refugee law decision makers. This will cause, undoubtedly, legal contention in the appellate courts as the article 1F(a) cases make their way through the judicial process in Canada. The application and interpretation of international refugee law under article 1F(a) in Canada will continue to evolve with national court judgments as well as the development of international humanitarian and criminal law.

In the last two centuries, the world and humanity have changed more than ever. The rapid development of technology, but also socio-humanistic and political thought has led to a completely different perception of the world by people. The desire to spread influence, aided by technological development, has pushed the great powers into the bloodiest armed conflicts the world has ever seen. After the end of the First and Second World Wars, it proved necessary not only to sanction the leaders of the idea of aggressive war, but also to sanction the insult to the independence of countries through the armed attack. In this regard, the international community has approached a more detailed definition of the concept of aggression and crimes against peace (crime of aggression) and the establishment of appropriate mechanisms with the aim of preventing armed conflicts, stopping them and promoting peaceful settlement of international disputes. It is this idea that is the subject of the text that follows. The author wants to make his modest contribution to legal science in terms of analysis of the concept of aggression in international law (primarily in international public law), but also the definition and elements of (international) crime – crime against peace (aggression) in international criminal law. In addition to explaining and clarifying the content of the concept of aggression, the author will analyze this international crime contained in international documents, present the jurisdiction of the International Criminal Court in relation to aggression, and explain the position and role of the United Nations in preventing armed conflict and peace. Finally, a critical analysis of all the above, the author will present the advantages and disadvantages of mechanisms for preventing armed conflict and punishing perpetrators of international crimes against peace through the prism of the amendment to the Rome Statute of the ICC.

Israel, Palestine, and the Language of Genocide

Grand corruption, a phenomenon also known as ‘kleptocracy’, indicates far-reaching corrupt practices perpetrated by authoritarian heads of states, which include the theft from national treasuries, the systematic looting and illegal sale of natural resources or cultural treasures, and the misuse of funds borrowed from international institutions through illicit activity. Most recently, the international community recalled such a contemporary global issue during and after the upheavals which took place in North Africa (2011) and Ukraine (2014). From an international law perspective, states are facing significant challenges in cooperating to prosecute those states’ former corrupt leaders and to recover the proceeds of their corrupt practices from the countries where the ‘stolen’ assets were previously invested or hidden. Against this background, this chapter reflects on the way grand corruption is currently tackled by states through the suppression conventions, and explores whether it would be desirable to identify it as ‘core’ international crime. In order to do that, the author first illustrates the current status of international criminal law cooperation to hold corrupt leaders responsible and to recover their illicitly-gained assets from ‘haven’ to ‘victim’ states. Secondly, the author exposes some of the practical and doctrinal arguments put forward in favour of prosecuting grand corruption as an international crime in the International Criminal Court (ICC). The aim of the chapter is to consider whether the way states are currently tackling grand corruption at the international level may be improved by a (complementary) system of prosecution carried out by international tribunals such as the ICC.

The subject. The article analyses the practice of the Special Tribunal for Lebanon and its Judgement of 18 August 2020, rendered against those found guilty of a terrorist act and the impact on the progressive development of international criminal law.The purpose. This article seeks to define what goal the international community pursued in establishing the Special Tribunal for Lebanon from the perspective of international security law, international criminal justice, and counter-terrorism cooperation. The legal nature of the terrorist attack of 14 October 2005 is essential in this regard: is the crime is comparable in its gravity and consequences to the crimes of genocide or war crimes in the territory of the former Yugoslavia or Rwanda, which predetermined the subsequent establishment of ad hoc international criminal tribunals? Further, was the establishment of the Special Tribunal for Lebanon an attempt to make the crimes of terrorism an international crime in practice? Finally, was the establishment of the Tribunal an attempt to lay the groundwork for a new type of international judicial bodies with jurisdiction over crimes of terrorism? The methodology. The authors use such general theoretical and specific scientific methods as comparative analysis, generalization, interpretation and classification as well as systemic analysis and formal logical methods.The main results. The legal qualification and analysis of the circumstances of the terrorist attack do not enable the conclusion that the bomb explosion in Beirut was comparable in danger and consequences to any international crimes or was a threat to international peace and security. In its turn, the involvement of the Security Council in the establishment of the Tribunal does not unequivocally evidence its alleged attempt to create a purely international criminal structure.The choice of applicable law granted to Lebanon and the fact that the crime committed solely affected the interests of that State would qualify the Tribunal as an internationalized judicial body, whose work would focus on defining the crime of terrorism through a broader lens of interpreting national legislation. In other words, the impetus for development has been given not to international but national criminal law.The Tribunal was created neither to progressively develop international criminal law with regard to defining terrorism as an international crime nor to advance the international criminal justice system. Rather, it was an attempt to address Lebanon’s specific political and legal challenges.Conclusions. The outcome of the Tribunal’s work could have a rather negative impact on the development of international criminal law, discrediting the very idea of enabling “peace through justice” and uniform, consistent application and interpretation of international criminal law.

Review. This article deals with the features of an objective element of an offence provided for in Art. 282 1 of the Criminal Code that are the most significant for the qualification. During the study the question of a legal nature of the crime was considered; the author concludes that an extremist community is a special kind of complicity in crimes of extremist nature that constitute a separate crime within the framework of the Special Part of the Criminal Code. The paper presents the main viewpoint of the doctrine with regard to the issue of complicity within the framework of which an extremist community exists. As a result of the analysis of criminal law rules and judicial practice, the author identifies the hallmarks applied by courts to establish the existence of an extremist community The author concludes that he extremist community is referred to such a form of complicity in a crime as criminal association (criminal organization) and provides a definition of an "extremist community. " The author has studied the main forms of a socially dangerous act provided for in Art. 2821 of the RF CC. The paper contains recommendations as to qualification of an offense provided for in P. 1.1 of Art. 2821 of the RF CC and resolution of issues related to this norm (competition with the provisions of Parts 1 and 2 of the Article) The criminal law of the RF CC being supplemented by Art. 2823 "Financing an extremist activity", the issue concerning the balance between the norms set forth in P 2 of Art 2821 and Art 2823of the Criminal Code of the Russian Federation has been resolved, as well as proposals concerning qualification of an offense in cases where a member of an extremist community carries out its funding have been made. The author has developed recommendations for improving clarifications submitted by the Plenum of the Supreme Court of the Russian Federation devoted to the interpretation of the rules concerning liability for organizing an extremist community under Art. 2821of the RF CC.

This chapter discusses the question of the extraterritorial expansion of criminal jurisdiction over international crimes. Since recourse to the territorial and active nationality principles is unlikely with respect to ‘core’ international crimes, the emerging culture of accountability for these crimes necessitates the expansion of domestic criminal jurisdiction on the basis of other principles. Whether and to what extent this is possible under international law ultimately depends on the approach one takes in relation to the notion of sovereignty and the competences of sovereign states under international law. For the repression of international crimes, customary international law allows extraterritorial jurisdiction on the basis of the passive personality and the protective principles. As for universal jurisdiction, controversy exists, inter alia, as to the need for a jurisdictional link to the forum state, in particular the presence of the suspect in the territory of the state. It is suggested that to put the exercise of universal jurisdiction in conformity to the principle of legality the presence of the suspect should be at least a requirement for the exercise of adjudicatory/enforcement jurisdiction. In addition, the judge exercising universal jurisdiction should be allowed to apply substantive criminal law which is most favourable to the accused among those of the forum state, the state of nationality, and the territorial state to fill the lacunae of international criminal law particularly in relation to penalties.

What is an International Crime? (A Revisionist History)

The article discusses the problems of complicity in crimes committed using cryptocurrencies. The types of accomplices and forms of complicity in these crimes are determined. The provisions of the current criminal law providing for liability for complicity in a crime are analyzed.