Complicity in war crimes through (legal) arms supplies?

German and other corporations whose arms were used in the war in Yemen have been accused of criminally assisting war crimes. The Berlin-based NGO European Center for Constitutional and Human Rights (ECCHR) filed a complaint (a “communication”) to the International Criminal Court (ICC) making this claim with regard to a series of multinational arms companies. But is a criminal complicity possible if exports are licensed by the competent national authorities as is at least the case in Germany?

In modern, capitalist industrial societies, businesses create risks on a daily basis – just think of car production and the (fatal) accidents associated with it. However, these risks are regarded as legally permissible as long as certain due diligence standards are upheld. In the case of products that are dangerous per se, stricter standards need to apply. Take for example the case of war weapons where, according to Germany’s Military Weapons Control Act (Kriegswaffenkontrollgesetz, KWKG), the (national) production of these weapons needs to be authorised, and exporting such weapons is subject to further licensing requirements under foreign trade legislation. Whether or not the export is criminal depends upon whether it has been authorised by the responsible state administration, in the same way that operating a dangerous plant may be criminal or not under environmental law depending upon such an authorisation. The criminality of the export thus is accessory to administrative law.

As a further consequence, if a weapons corporation meets all licensing requirements, that is, its national production is legal and its exports are permitted (authorised) and thus lawful, the conduct that is dangerous per se – putting weapons of war into circulation – is to be considered as a permissible risk in line with the well-established doctrine of objective (fair) attribution or imputation (Theorie objektiver Zurechnung, for a good explanation in English see Andrew von Hirsch’s paper on ‘Remote Harms and Fair Imputation’). This doctrine limits, using normative criteria, accomplice liability to those acts of assistance/contributions which either create a risk/harm, or increase an existing risk/harm and this risk/harm is disapproved of by the legal order (prohibited – as opposed to permissible – risk/harm) (cf. Ambos, Treatise on International Criminal Law, Vol. I, OUP 2013, p. 165). As a consequence, the attributory nexus (with regard to possible international crimes committed using these weapons) is interrupted. This also concerns possible acts of assistance, for example selling military weapons, since these must be regarded as permissible likewise (albeit not as “neutral” given that the concept of “neutrality”, as explained here, does not fit well with business transactions with regard to situations of armed conflict or weak governance zones).

From the perspective of the structure of crime it is important to note that the evaluation as a certain risk, like the selling of weapons, as permissible entails already the exclusion of the actus reus, that is, the objective side of the respective offence, e.g., the commission of war crimes, independent of the agent’s possible mens rea (mental element). Thus, in our case, the persons acting on behalf of the weapons company cannot be held criminally responsible for lack of the actus reus, not just their missing mens rea (mental element), which may exist or not. Consequently, the ensuing problems, for example the existence of a mistake (of fact) in case of a lack of mens rea are irrelevant in our context.

Of course, one cannot speak of a permissible risk if a company obtains a license by providing false information (as in the case of the German arms company Heckler & Koch regarding the end use of weapons delivered to Mexico, ruled upon at first instance by Stuttgart regional court on 21 February 2019), or circumvents (higher-ranking) export prohibitions, for example within the context of a UN embargo (as in the oft-quoted case of Dutch entrepreneur Franz van Anraat, who supplied the Iraqi dictator Saddam Hussein with the chemical components required to produce mustard gas).

The difficult question, unresolved so far, is how possible duties under international law affect the evaluation of the actors’ conduct. The ICC’s Office of the Prosecutor now faces the task of answering this question in light of the abovementioned ECCHR communication. The Rome Statute is not of much help here since it only provides for some pretty basic rules on individual criminal responsibility (Art. 25), especially regarding assistance (para. 3(c)), but these rules are premised upon the assumption that the relevant conduct (of principals or accomplices) is unlawful, i.e., does not constitute a permissible risk under the above mentioned theory, for example, due to a national authorisation. As a consequence, one would have to look elsewhere for rules which may override such national authorisations. Here the emerging human rights-based duty of due diligence of transnational corporations comes into play. International soft law, such as the OECD’s guidelines on responsible business conduct – which occasionally have become hard law, for example in the context of an EU Regulation of 17 May 2017 on so-called conflict minerals – has given rise to such a duty. Put simply, it obliges corporations to ensure that they do not participate in serious human rights violations or in crimes under international law. This duty and the arising consequences in terms of legal (including criminal) liability form the core element of the Draft Treaty of 16 July 2019 of the respective UN Human Rights Council Working Group (“Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises”). It would impose, especially its Article 6, the obligation on states to implement such duties in their domestic legislation. But can such a duty of due diligence and possible non-compliance with it affect corporate conduct that has been authorised on a national level by the respective state agencies?

Profound reflection is needed here, but at least two questions arise: firstly, does the human rights-based duty of due diligence supersede a national license and thus render the export illegal (under international law)? Secondly, who is criminally responsible for this violation – which may only have been identified after the fact –, the authorising state or the exporting corporation (the persons acting on its behalf)? Here, the abovementioned accessority to administrative law becomes relevant once more: if the state authorisation proven to be illegal under international law is seen as an act assisting war crimes committed by a party to a conflict, then the corporation (including the persons acting on its behalf) which relied upon the authorisation, must be absolved of criminal liability, unless it has committed an autonomous criminal act of complicity. Otherwise only one criminal act of assistance has occurred, namely that of the state authorising the export.

Now, can such an autonomous criminal act of complicity by the corporation arise in this scenario? Can a nationally licensed weapons export that may violate norms of due diligence or other regulations under international law and thus is able to establish state responsibility, but that the corporation was able to trust (as the authorising state is a functioning state under the rule of law), be seen as an autonomous criminal act of complicity by the corporation that makes it a criminal accomplice in the commission of the war crimes (or, for that matter, other international crimes)? An answer in the affirmative, for example by arguing that companies need to fulfil independent duties of due diligence – independently of any national authorisation procedure – not only would mean that this national authorisation procedure could be dispensed with from the outset, but also would express a deep distrust in this procedure (even if the authorising state is not a banana republic). Conversely, however, it cannot be right to absolve an arms corporation of all criminal liability with reference to national authorisation if this corporation knowingly – maybe even with greater knowledge than the authorising authority – provides weapons to commit international crimes. For in this case it is no longer acting in good faith, legitimately trusting the state authorisation, but in bad faith, with “deliktischer Sinnbezug” (Claus Roxin, Strafrecht Allgemeiner Teil, Vol. II, München: C.H. Beck 2003, pp. 207 ff.) that is, as explained in this blog before, giving the contribution a criminal meaning by solidarising with the perpetrator’s criminal purpose. Thus, here the mental state, in its cognitive form, becomes relevant and impacts upon the, in principle, objectively permissible conduct. And this is where the ICC complainants’ intuition may turn out to be right: the obviousness of the war crimes in Yemen overwrites the state authorisation, making the arms-providing corporations criminal accomplices in war crimes.