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). Read the rest of this entry…
