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

• Author: Jacobson, Kyle Rex

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

1. 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

2. 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.

   1. 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)

      Count Two charged the defendants with crimes against peace by their participation "in the planning, preparation, initiation, and waging of wars of aggression." (26) Count Three charged the defendants with war crimes in that they murdered and mistreated civilians in occupied territory or on the high seas, (27) forced civilians in occupied territories to unwillingly migrate for the purpose of slave labor and other purposes, (28) murdered and mistreated prisoners of war, (29) took and killed civilian hostages, (30) plundered public and private property, (31) imposed collective punishment on the civilian populations in occupied territories, (32) destroyed cities, towns and villages without having any military necessity for doing so, (33) and forced civilians to labor beyond the requirements needed to sustain the basic needs of occupation and to also labor for the German war effort. (34) Count Four charged the defendants with crimes against humanity in that they murdered, persecuted, exterminated, enslaved, deported and committed other inhumane acts against the civilian populations of Germany and of the occupied territories, particularly against the Jewish population. (35)

      Chief among the defendants was Hermann Goring. As noted in Appendix A to the indictment, Goring held a number of leadership positions in Nazi Germany, including generalship in the SS, Trustee of the Four-Year Plan (to prepare the German economy for war), Commander-in-Chief of the German Air Force, membership in the Secret Cabinet Council, and Successor Designate to Adolf Hitler. (36) There were initially twenty-four defendants, and the ones whose cases dealt with criminal liability for their assistance to the commission of crimes will be of greatest significance in examining the issue of criminal liability for corporate officials whose dealings facilitate the commission of war crimes and crimes against humanity.

      The International Military Tribunal rejected the prosecution's position "that any significant participation in the affairs of the Nazi Party or Government is evidence of a participation [sic] in a conspiracy that is in itself criminal," concluding that "conspiracy must be clearly outlined in its criminal purpose. It must not be too far removed from the time of decision and action." (37) Only those participants in a "concrete plan" could be held criminally liable. (38) The judgment of the International Military Tribunal set out what levels of participation would result in criminal liability.

      Among the participants in the concrete plan were Goring and others who were privy to one or more of the secret meetings at which Hitler disclosed his plans for aggression. (39) One who did not attend and was nevertheless still convicted was Rudolf Hess. Hess was convicted of participating in the common plan to wage aggressive wars because as "Hitler's closest personal confidant," he "must have been informed of Hitler's aggressive plans when they came into existence." (40) For the International Military Tribunal, this conclusion was confirmed by Hess' concrete actions in support of Hitler's plans of wars of aggression. (41) Alfred Rosenberg, who held a number of high-level Nazi Party posts and was Reich Minister for the Eastern Occupied Territories, (42) was convicted as well despite his non-attendance. His conviction was due instead to his involvement in laying the groundwork for the invasion of Norway and his involvement in pre-invasion preparations for the occupation of the U.S.S.R. and other eastern countries. (43) Alfred Jodl was also not present at the four secret meetings, but his diary and other documentary evidence showed his prior knowledge and assistance in planning wars of aggression. (44)

      Another person not present at one of the four secret meetings was Joachim yon Ribbentrop, who was involved heavily in Germany's foreign affairs, including holding the posts of Ambassador Extraordinary and Reich Minister for Foreign Affairs. (45) Nonetheless his involvement in the preparation for wars of aggression was clear, even to the point of suggesting...