Issues of complexity, complicity and complementarity: from the Nuremberg trials to the dawn of the new International Criminal Court

Issues of complexity, complicity and complementarity: from the Nuremberg trials to the dawn of the new International Criminal Court

Introduction

The International Criminal Court came into existence on

1 July 2002. The new Court has jurisdiction over geno-

cide, crimes against humanity and war crimes; but the

Court can only try international crimes committed on or

after 1 July 2002.Any national, from any of the more than

eighty states that have ratified the Statute of the Court,

can be a potential defendant before the new Court. In

addition, the Court will have jurisdiction over crimes

committed in state parties, even when perpetrated by

nationals from states which have not become parties to

the Statute.There are further grounds for jurisdiction but

we need not dwell on them here. In this contribution I

shall remain with the theme of the Nuremberg trials and

use these trials as a springboard to explore three concepts

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which I think may help us to think about the ways in

which the new International Criminal Court will operate.

The three concepts I wish to explore are: complexity,

complicity and complementarity.

Complexity

To understand what I mean by complexity in this

context, let us consider some of the fundamental legal

innovations of the Nuremberg judgment delivered by

the International Military Tribunal. First, the notion of

individuals having concrete duties under international

law, as opposed to national law, was clearly enunciated,

really for the first time, and later accepted by the inter-

national community of states. Until the Nuremberg

trial, war crimes trials had been held at the national

level under national military law. The international

laws of war, such as the Hague Convention of 1907,

already prohibited resort to certain methods of waging

war. But, in the words of the judgment:

the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders.1

Issues of complexity, complicity and complementarity 31

1 Trial of German Major War Criminals (Goering et al.), International Military Tribunal (Nuremberg), Judgment and

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32  

The judges, in a remarkable bout of judicial activism,

decided that:

The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from general principles of justice applied by jurists, and practised by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.2

In this way the Tribunal held that, even though the

international treaties they were applying made no

mention of criminal law, the international law of war

created international crimes.

The defence had further argued that international

law did not apply to individuals but only to states. The

Tribunal, in a famous passage, rejected this argument as

well. In the words of the Tribunal:

Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by

Sentence, 30 September and 1 October 1946 (Cmd 6964, HMSO, London), p. 40; the judgment is also reproduced in (1947) 41 American Journal of International Law 172–333.

2 Goering et al., note 1 above, p. 40.

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Issues of complexity, complicity and complementarity 33

men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.3

It was, in retrospect, a very radical moment in the

history of human rights and humanitarian law. There

was a paradigm shift. It was the beginning of a new way

of thinking about international law as going beyond

obligations on states and attaching duties to individuals

involving criminal responsibility. Human rights law

would later come to create duties for individuals

beyond the types of crimes tried at Nuremberg. More

specifically, human rights law developed around the

prohibitions on genocide, torture, disappearances and

summary executions, so that it is possible to consider

individual responsibility for these human rights viola-

tions, even in the absence of an armed conflict.

These developments may seem now eminently sensi-

ble, even unremarkable, but the situation is complex for

a lawyer, because the same act and the same provision of

international law give rise to multiple responsibilities.

We have, first, the responsibility of the state under inter-

national law for the violation of its international obliga-

tions under a treaty or customary obligation on the laws

of war, and then, secondly, we simultaneously have the

3 Ibid., p. 41.

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34  

responsibility of the individual for violating the same

law. But the complexity does not end there.

In Nuremberg there was a determination, not only to

try individuals, but, at the same trial, to declare certain

organisations to be criminal organisations. In this way

individuals could later be prosecuted and punished for

past membership of such organisations. Thus the

Tribunal declared criminal the leadership corps of the

Nazi Party, the Gestapo, the SD and the SS.4

In fact, in drawing up the list of defendants at

Nuremberg, as was explained by Professor Overy in

the first lecture in this series, the Prosecutor selected the

individuals according to their connections to the

organisations which were also targeted in the trial.

The organisations even had their own counsel

appointed by the Tribunal to represent them at the trial.

As was also mentioned by Professor Overy, it was not

only the political organisations which concerned the

prosecutors and judges: there was also a determination

to ensure that German industry, and the industrialists

who had supported the German war effort, were also

exposed and punished. This adds to the complexity

of the proceedings. Not only did international law reach

states, government ministers, individual military

4 The SD is the Sicherheitsdeinst des Reichführer SS, and the SS is the Schutzstaffen.

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Issues of complexity, complicity and complementarity 35

officers, certain political parties and public entities, but

there was also an intention to reach into the private

sector and punish private industrialists and, in a way,

the firms themselves.

One of the original indictees at Nuremberg was the

industrialist from the Krupp company, Gustav Krupp

von Bohlen und Halbach. He was an old man when the

trial started and he was said by his lawyers to be unfit for

trial due to senile dementia. The Tribunal ordered

medical examinations, and, even though he could not

respond to simple commands such as ‘turn your head

from left to right’, the Tribunal refused to drop him

from the indictment. The British Prosecutor strongly

objected to any change or delay, citing ‘the interests of

justice’. On the other hand, the US Prosecutor had been

prepared to substitute Krupp von Bohlen’s son, Alfried,

on the Indictment. This is an odd idea at first sight, but

the documents reveal the extent to which justice was to

be served by prosecuting the Krupp firm, rather than

the individual, even in a situation where the Tribunal

only had jurisdiction over individuals. The US answer

drafted by Robert Jackson stated:

Public interests, which transcend all private considerations, require that Krupp von Bohlen shall not be dismissed unless some other representative of the Krupp armament and

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36  

munitions industry be substituted. These public interests are as follows:

Four generations of the Krupp family have owned and operated the great armament and munitions plants which have been the chief source of Germany’s war supplies. For over 130 years this family has been the focus, the symbol, and the beneficiary of the most sinister forces engaged in menacing the peace of Europe. During the period between the two World Wars, the management of these enterprises was chiefly in Defendant Krupp von Bohlen.

It was at all times, however, a Krupp family enterprise. Only a nominal owner himself, Von Bohlen’s wife, Bertha Krupp, owned the bulk of the stock. About 1937 their son, Alfried Krupp, became plant manager and was actively associated in the policy-making and executive management thereafter …

To drop Krupp von Bohlen from this case without substitution of Alfried, drops from the case the entire Krupp family, and defeats any effective judgment against the German armament makers.5

The British Prosecutor strongly objected to any

substitution or delay. In the words of the Chief

Prosecutor:

5 Answer of the United States Prosecution to the Motion on Behalf of Defendant Gustav Krupp von Bohlen, Robert Jackson, 12 November 1945, available at www.yale.edu/lawweb/avalon/ imt/proc/v1-11.htm.

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Issues of complexity, complicity and complementarity 37

Although in an ordinary case it is undesirable that a defendant should be tried when he is unable to comprehend the charges made against him, or to give instructions for his defence, there are special considerations which apply to this case.6

According to the British Chief Prosecutor, one of the

interests of justice, referred to in the Charter of the

Tribunal in the context of trials in the absence of the

accused,7 was the public interest in trying the defendant

responsible for the preparation of armaments and

using forced labour from the concentration camps.

The Tribunal’s eventual decision was that Gustav

Krupp could not be tried because of his condition, but

that ‘the charges against him in the Indictment should

be retained for trial thereafter, if the physical and

mental condition of the defendant should permit’.8

However, his son Alfried was later tried with eleven

others from the Krupp firm by the US Military Tribunal

6 Memorandum of the British Prosecution on the Motion on Behalf of Defendant Gustav Krupp von Bohlen, 12 November 1945, Sir Hartley Shawcross, available at www.yale.edu/lawweb/ avalon/imt/proc/v1-12.htm.

7 Article 12: ‘The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence.’

8 Goering et al., note 1 above, p. 2.

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38  

in Nuremberg and Alfried received a twelve-year

sentence for plunder and employing prisoners of war

and foreign civilians under inhumane conditions in

connection with the conduct of war.

In Alfried Krupp’s case, the defence lawyers suggested

that international law did not attach to private industri-

alists who did not act on behalf of the state. They sought

to distinguish the Tribunal’s judgment in Goering et al.,

concerning the responsibility of the individual, by

claiming that these individuals had been state agents:

One must consider, however, that, in the case of the International Military Tribunal, the persons involved were not private individuals such as those appearing in this case, but responsible officials of the State, that is such persons and only such persons as, by virtue of their office, acted on behalf of the State. It may be a much healthier point of view not to adhere in all circumstances to the text of the provisions of International law, which is, in itself, abundantly clear, but rather to follow the spirit of that law, and to state that anyone who acted on behalf of the state is liable to punishment under the terms of penal law, because, as an anonymous subject, the State itself cannot be held responsible for the compensation of damage. In no circumstances is it permissible, however, to hold criminally responsible a private individual, an industrialist in this case, who has not acted on behalf of the State, who was not an official or an

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Issues of complexity, complicity and complementarity 39

organ of the State, and of whom, furthermore, in the face of the theory of law as it has been understood up to this time, and as it is outlined above, it is impossible to ascertain that he had any idea, and who, in fact, had no idea that he, together with his State, was under an obligation to ensure adherence to the provisions of international law.9

The prosecution dealt with this:

It has also been suggested that International Law is a vague and complicated thing and that private industrialists should be given the benefit of the plea of ignorance of the law. Whatever weight, if any, such a defence might have in other circumstances and with other defendants, we think it would be quite preposterous to give it any weight in this case. We are not dealing here with small businessmen, unsophisticated in the ways of the world or lacking in capable legal counsel. Krupp was one of the great international industrial institutions with numerous connections in many countries, and constantly engaged in international commercial intercourse.10

As stated above, the result for Alfried Krupp was an

eventual sentence of twelve years’ imprisonment.

Although the defence that international law is a

9 Case No. 58, Trial of Alfried Felix Alwyn Krupp von Bohlen und Halbach and eleven others, US Military Tribunal, Nuremberg, 17 November 1947 to 30 June 1948, Law Reports of Trials of War Criminals, vol. X, p. 69 at p. 170.

10 Ibid.

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40  

‘vague and complicated thing’ did not succeed, it is

worth recalling the layers of complexity we have

discussed. First, we have to admit that the crimes prose-

cuted in Nuremberg were not actually formulated as

crimes with the specificity we would expect in a crimi-

nal trial. The Tribunal was, as we saw, inspired by

treaties, the ‘customs and practices of states’ and the

‘general principles of justice applied by jurists and prac-

tised by military courts’.11 Secondly, this complicated

thing called international law worked, not only to create

obligations for states, but also to create duties for indi-

viduals from public and private life, as well as obliga-

tions for their organisations.

How has this complexity been addressed in the fifty

years since Nuremberg? The Tokyo trial in 1946 dealt

with essentially similar crimes, although the Charter for

that Tribunal was more terse in its listing of crimes.

Article 5 listed the acts which came within the jurisdic-

tion of the Tokyo Tribunal. Article 5(b) is headed

11 The London Charter included the following definition: ‘Article 6(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.’

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‘Conventional War Crimes’, which is then defined as

‘violations of the laws and customs of war’. The simplic-

ity of this definition masks the complexity of the detail

of what actually constitutes a violation of the laws and

customs of war. So, the Charter of the Tokyo Tribunal

offered little assistance in dealing with the first layer of

complexity by failing to specify the actual crimes it was

concerned with. With regard to the second dimension,

there was no development at all. The Tokyo Tribunal

did not deal with issues of criminal organisations or

with the question of the Japanese industrialists, the

zaibatsu.12

Following the Nuremberg and Tokyo precedents, we

have to wait almost fifty years for further international

criminal trials. In the 1990s, two new international

criminal tribunals were created by the UN Security

Council: first, in 1993, the International Criminal

Tribunal for the former Yugoslavia, and, secondly, in

1994, the International Criminal Tribunal for Rwanda.

These Tribunals developed the scope of international

criminal law even further. By this time we have the extra

Issues of complexity, complicity and complementarity 41

12 For differing views on why the Japanese industrialists were not included, see A. C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials (Collins, London, 1989), p. 208; and B. V. A. Röling and A. Cassese, The Tokyo Trial and Beyond: Reflections of a Peacemonger (Polity Press, Cambridge, 1993), p. 39.

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specificity of the Genocide Convention of 1948 and of

the 1949 Geneva Conventions and their Protocols of

1977. They in turn developed the scope of genocide as a

crime against humanity and extended international

responsibility into situations of internal armed conflict.

The category of crimes against humanity had first been

introduced into the Nuremberg Charter to ensure that

the deportation of Germans by Germans to the concen-

tration camps and their subsequent mistreatment and

extermination there could be prosecuted. Under the

international laws of war at that time, the way a govern-

ment treated its own nationals was considered by inter-

national law as a matter of domestic jurisdiction rather

than international concern. The introduction of this

new sort of international crime was important.

However, it was introduced in a rather limited way: for

the Nuremberg and Tokyo Tribunals to have jurisdic-

tion over an accused, charges of crimes against human-

ity had to be linked to the armed conflict.13 It has been

42  

13 The Articles concerning crimes against humanity in both Tribunals specified that the crimes had to be committed ‘in execution of or in connection with any crime within the juris- diction of the Tribunal’. The Nuremberg Charter contained an additional requirement that the acts be committed against ‘any civilian population’, the Tokyo Charter having been amended to delete this requirement. Although the Statute of the International Criminal Court does not require that the crime against humanity be linked to an armed conflict, the Statute

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said by one of the judges from the Tokyo Tribunal that

the requirement that crimes against humanity be linked

to the armed conflict was introduced because some

Americans were, and I quote Judge Röling from the

Tokyo Tribunal, ‘afraid that, without this new element,

the new crime would be applicable to the mistreatment

of Blacks in the US!’14

Fifty years later, the Yugoslavia and Rwanda

Tribunals have clearly established that crimes against

humanity exist as self-standing crimes. These interna-

tional crimes can be prosecuted even in the absence of

an armed conflict. This new understanding of crimes

against humanity has, in a way, elevated systematic

human rights violations to the level of international

crimes. In fact, the International Law Commission’s

1991 text on Crimes Against the Peace and Security of

Mankind used the expression ‘systematic or mass viola-

tions of human rights’ in the Article which eventually

became Article 18 (‘Crimes against humanity’) of the

Draft Code finally adopted by the ILC in 1996.

Issues of complexity, complicity and complementarity 43

retains the requirement that it be directed against a civilian population. It is possible that crimes against humanity targeted at military personnel are crimes under international law, although it is more likely these would be prosecuted as war crimes in the context of an armed conflict.

14 B. V. A. Röling and A. Cassese, The Tokyo Trial and Beyond: Reflections of a Peacemonger (Polity Press,Cambridge,1993),p.55.

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In the context of the Rwanda trials, the reach of inter-

national criminal law has been confirmed to apply to

individuals who were not necessarily part of the armed

forces.It is enough to have been the mayor of a village and

to have encouraged rapes simply by one’s presence; it is

enough to be the director of a tea plantation and to allow

trucks to be used to hunt down and exterminate civilians.

In the last situation,a Trial Chamber of the International

Criminal Tribunal for Rwanda in January 2000 found Mr

Musema criminally responsible for such acts. Having

been arrested in 1995 in Switzerland and transferred to

the International Criminal Tribunal for Rwanda in

Tanzania,the Chamber found him guilty of genocide and

crimes against humanity. For these crimes there was no

need for a connection to an armed conflict.He was given

a life sentence. Aggravating circumstances which were

raised at the sentencing stage included the fact that he

took no steps to prevent the participation of the tea

factory employees or the use of its vehicles in the attacks.

898. With respect to the Prosecutor’s argument that Musema could also be held responsible under Article 6(3) of the Statute, the Chamber finds, first, that among the attackers at Rwirambo were persons identified as employees of the Gisovu Tea Factory. The Chamber is of the view that their participation resulted, inevitably, in the commission of acts referred to under Articles 2 to 4 of the Statute,

44  

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including, in particular, causing serious bodily and mental harm to members of the Tutsi group.

899. The Chamber finds that it has also been established, as held supra, that Musema was the superior of said employees and that he held not only de jure power over them, but also de facto power. Noting that Musema was personally present at the attack sites, the Chamber is of the opinion that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that Musema, nevertheless, failed to take the necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in their commission, by his presence and by his personal participation.

900. Consequently, the Chamber finds that, for the acts committed by the employees of the Gisovu Tea Factory during the attack on Rwirambo Hill, Musema incurs individual criminal responsibility, as their superior, on the basis of Article 6(3) of the Statute.15

So the complexity of this type of international crimi-

nal law extends past individual states, political parties

and state agents on towards individual private industri-

alists and business people with de facto control over

their subordinates, and finally even towards their firms.

As we saw above, there was a concern in the work of

Issues of complexity, complicity and complementarity 45

15 Alfred Musema Case, ICTR-96-13-T, 27 January 2000.

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the Nuremberg Tribunal to ensure the Krupp firm was

addressed as such. In 1946 the Farben company was

actually considered an instrumentality of its directors

in their commission of war crimes and was implicated

in the conviction of the directors by the US Military

Tribunal in Nuremberg. The same Farben company has

much more recently been subject to claims for repara-

tions from the victims of their practices of slave labour.

The German slave labour fund, jointly established by

the state and the firms, currently stands at US$5.2

billion. These claims, together with similar claims made

against the Swiss banks in the Holocaust victims’ assets

litigation (which has resulted in a fund of US$1.25

billion), are based on the law developed during the

Nuremberg trials of the industrialists and its applica-

tion in the US courts. By 1999, more than thirty cases

were brought against US, German and Swiss companies

alleging complicity in Nazi-era crimes, based on the

original trials of the industrialists in Nuremberg. The

latest round of claims concerns Swiss and US banks

with regard to profits from business in South Africa

from 1948 to 1993. The reported demand is for US$50

billion.16

How does the new International Criminal Court

46  

16 ‘Banks Sued for Financing S. Africa’s Apartheid Regime’, Financial Times, 18 June 2002, p. 8.

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la w.

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(ICC) respond to these complexities? First, the new

Court has clarified much of the confusion surrounding

the rather vague nature of the crimes tried in

Nuremberg and Tokyo, and it has included the new

wider jurisdiction for crimes against humanity elimi-

nating any need for a connection to the armed conflict.

For the new Court, crimes against humanity are acts

committed in a widespread or systematic way with an

organisational policy against any civilian population,

where the acts are, among other things, murder,

enslavement, deportation or forcible transfer of popu-

lation, imprisonment in violation of international law,

torture, persecution, enforced disappearance and the

crime of apartheid. All the ICC crimes (with the excep-

tion of aggression, which is still to be defined) are now

listed as individual crimes with the elements of these

crimes listed in a separate document. Rather than the

terse sentence asserting jurisdiction over violations of

the ‘laws and customs of war’, we now have several pages

of war crimes listed in a way which renders them quite

specific. Although some students and defendants may

still complain that this international law is a vague and

complicated thing, it is now at least written down in a

treaty and accessible to everyone.

With regard to the second dimension of complexity,

that is to say the range of actors addressed by the law,

Issues of complexity, complicity and complementarity 47

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the new Court will address only part of the picture.

Only individuals can be tried in the new Court. It will

not be possible to bring cases against states, nor will

there be cases against political organisations or compa-

nies. There was considerable discussion during the

Rome Conference as to whether the Court should have

jurisdiction over organisations as well as individuals. In

the end there was no time to formulate a provision

which would have been acceptable to the large majority

of states.17 Nevertheless, as more and more states adopt

legislation to enable co-operation with the new Court,

it is quite possible that this legislation is adapted to

allow for prosecutions of corporations or other organi-

sations. I might repeat that the contemporary claims

brought against Germany and the German companies

over the last decade can be traced back to the

Nuremberg trials, and in one case to the actual findings

against industrialists from the Farben company. One

might imagine that, in the future, successful prosecu-

tions against individuals in the new International

48  

17 I have explained the details of this part of the negotiations in A. Clapham, ‘The Question of Jurisdiction under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’, in M. Kamminga and S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International, The Hague, 2000), pp. 139–95.

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Criminal Court could generate similar settlements

against states, their organisations or even their firms.

The new Court does have the power to make orders

concerning reparations and restitution. But no one

expects many defendants to arrive in The Hague with

healthy, traceable bank accounts or property in their

name. Nevertheless, the Rome Statute is careful to state

in Article 75(6) that nothing with regard to the Court’s

own orders for reparations against individuals shall be

interpreted as prejudicing the rights of victims under

national or international law. Such parallel claims by

victims for compensation or restitution will take place

in multiple fora, illustrating perhaps a third level of

complexity.

This third layer of complexity reminds us that inter-

national criminal law is enforced not only in the inter-

national tribunals set up to try the most serious cases

but also at the national level in national courts: these

might be the national courts of the perpetrator, the

national courts where the acts took place, the national

courts of the victims or even the national courts where

the perpetrator is arrested.

To summarise, I have highlighted three levels of

complexity: first, the rather unspecified and evolving

nature of the crimes; secondly, the multiple actors and

entities who are addressed by this type of criminal law;

Issues of complexity, complicity and complementarity 49

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and,thirdly,the fact that trials and claims can take place in

various fora at both the international and national levels.

Complicity

Let me turn to my second concept, complicity.18 This

concept is familiar in both national and international

criminal law. Rather than compare multiple legal

systems, I want to discuss why we need to rely on such a

concept and how it is being used today by those

concerned about violations of human rights and human-

itarian law. The concept is being used to frame claims

which go beyond a simple application of contemporary

criminal law.The point is that,when different actors label

a certain activity ‘complicity’, they deliberately evoke

conceptions of criminality and blameworthiness even

if, strictly speaking, the activity would not give rise to

criminal liability in a court of law.Why are we witnessing

such a strain on the complicity concept?

I want to suggest that, at the international level, there

is a recognition that simple rules attributing conduct to

50  

18 For a detailed discussion, see W. Schabas, ‘Enforcing International Humanitarian Law: Catching the Accomplices’ (2001) 83 Review of the International Committee of the Red Cross 439–59.

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single actors fail to capture the complexity of the

phenomena we are trying to tackle.

For any illegal act, there is often a sense that, even if

one starts by thinking about the principal perpetrator,

there is a need to consider others who finance, facilitate,

encourage, support and assist in the enterprise.

Following the events of 11 September 2001, it was obvi-

ous that the principal perpetrators were all dead. But

one only has to turn up any political speech around that

time to see the focus on ‘complicity’ and the search for

the ‘accomplices’ of those who carried out the attacks.

We have since seen the extension of the so-called ‘war’

on terrorism to those accused of aiding, abetting or

harbouring terrorists. And, as we saw above in the

context of the claims against the Swiss banks and the

German industrialists, there is currently considerable

legal activity focused on the extension of international

criminal responsibility beyond those who perpetrate

international crimes to those who facilitate such crimes

by financing them.

Thinking about accomplices is nothing new at the

national level. But transposing some of the principles to

the international level is not obvious. First, while at the

national level most actors have more or less the same

obligations under the criminal law, at the international

level different actors have different responsibilities

Issues of complexity, complicity and complementarity 51

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under international law, and these obligations can vary

from state to state, even with regard to the laws of war.

Secondly, where someone assists a perpetrator to

commit an act which is not criminal in the state where

the act is perpetrated but which is criminal in the state

where the act was prepared, we enter tricky transna-

tional terrain.19

But I want to step back a bit and consider some

fundamental questions about our sense of responsibil-

ity when faced with human rights violations committed

in other countries. The sense that we cannot stand idly

by lest we be complicit through our inaction is more

and more a theme in international relations. Pierre

Hazan, in his book, La Justice face à la guerre: de

Nuremberg à la Haye, quotes a former French foreign

minister, Roland Dumas, explaining his position when

faced with mounting public opinion that something

should be done in reaction to the bombardment of

Sarajevo and the ongoing sniper attacks:

Je ne voulais pas me trouver dans la situation de l’après-Seconde Guerre mondiale, où le monde découvre les camps de la mort, et rien n’est pensé pour punir les coupables. Je voulais qu’au moins,

52  

19 C. Forcese, ‘Deterring “Militarized Commerce”: The Prospect of Liability for “Privatized” Human Rights Abuses’ (1999) 31 Ottawa Law Review 171–221.

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d’une manière ou d’une autre, ils aient à repondre à la justice, puisque nous ne voulions déjà pas intervenir militairement en Bosnie. Je ne voulais pas que l’on apparaisse comme des complices de crimes qui étaient encore en train d’être commis.20

The power of the complicity concept tells us more in

this context about solidarity among peoples and a

contemporary sense of responsibility through omission

than it does about criminal law. Clearly, there were no

real prospects of a criminal trial of a foreign minister of

a Permanent Member of the Security Council as an

accomplice to genocide in the former Yugoslavia. But

the sense that we could be accused of complicity

through our inaction or silence is a powerful modern-

day concept. Complicity has another dimension, as is

illustrated by the desire to reach down and catch the

perpetrators at the level of the camp commanders.

Thinking about complicity therefore reminds us all of

our own role as well as broadening the scope of our

inquiry into the network of those who facilitate, plan

and perpetrate the violations of human rights and

humanitarian law.

The concept of complicity is at the heart of contem-

porary questions of morality and ethics. As political

and economic life becomes more diffuse with decisions

Issues of complexity, complicity and complementarity 53

20 P. Hazan, La justice face à la guerre (Stock, Paris, 2000), p. 38.

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being taken at various levels of proximity from us, we

may wonder how complicit we are in wrongdoing

through our action or inaction. In a book entitled

Complicity, Christopher Kutz introduces his subject in

the following way:21

Try as we might to live well, we find ourselves connected to harms and wrongs, albeit by relations that fall outside the paradigm of individual, intentional wrongdoing. Here are some examples: buying a table made of tropical wood that comes from a defoliated rainforest, or owning stock in a company that does business in a country that jails political dissenters; being a citizen of a nation that bombs another country’s factories in a reckless attack on terrorists, or inhabiting a region seized long ago from its aboriginal occupants; helping to design an automobile the manufacturer knowingly sells with a dangerously defective fuel system, or administering a national health care bureaucracy that carelessly allows the distribution of HIV- contaminated blood.

For Kutz these examples fall in a moral grey zone:

‘Although in each of these cases we stand outside the

shadow of evil, we still do not find the full light of

the good.’22 His modern look at the legal and moral

54  

21 C. Kutz, Complicity: Ethics and Law for a Collective Age (Cambridge University Press, Cambridge, 2000), p. 1.

22 Ibid.

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dimensions of complicity forces us to consider our

expanding notions of community, as our actions often

have effects far beyond our immediate surroundings,

and affect people to whom we may now have an

increasing sense of responsibility. Of course, complicity

in war crimes in the context of the Nuremberg trials has

a specific legal meaning. In strict legal terms, for an

international criminal trial, the accomplice liability test

in international criminal law was summarised by the

Trial Chamber of the International Criminal Tribunal

for the former Yugoslavia (ICTY) in the Tadic case:

The most relevant sources for such a determination are the Nürnberg war crimes trials, which resulted in several convictions for complicitous conduct. While the judgments generally failed to discuss in detail the criteria upon which guilt was determined, a clear pattern does emerge upon an examination of the relevant cases. First, there is a requirement of intent, which involves awareness of the act of participation coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime. Secondly, the prosecution must prove that there was participation in that the conduct of the accused contributed to the commission of the illegal act.23

Issues of complexity, complicity and complementarity 55

23 Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Opinion and Judgment of the Trial Chamber, 7 May 1997, para. 674.

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The new International Criminal Court’s Statute

includes accomplice liability not only for those who aid

and abet, but also for those who ‘otherwise assist’. The

complicity concept in the Statute is designed to cover

those who act ‘for the purpose of facilitating’ crimes.

There is, however, no requirement in the Statute for the

accomplice to make a direct or substantial contribution

to the commission of crime.24

In sum, at least for international crimes already

within the ICC Statute (genocide, crimes against

humanity, and war crimes), the Statute defines the

boundaries of complicity in a wide way, casting the net

well beyond the principal perpetrators.

After a detailed review of the international law on

individual accomplice liability, Professor Bill Schabas

speculates on who might be criminally liable for

56  

24 Since the adoption of the Statute, the Appeals Chamber in the Tadic case, Judgment of 15 July 1999, para. 229, stated: ‘The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.) and this support has a substantial effect upon the perpetration of the crime … In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.’ It remains to be seen to what extent this requirement that there be a substantial effect is taken up by the new International Criminal Court.

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complicity in the international crimes recently

committed in Sierra Leone:

However, with regard to violations of international humanitarian law, establishing knowledge of the end use should generally be less difficult because of the scale and nature of the assistance. Given the intense publicity about war crimes and other atrocities in Sierra Leone, made known not only in specialised documents such as those issued by the United Nations and international non- governmental organisations but also by the popular media, a court ought to have little difficulty in concluding that diamond traders, airline pilots and executives, small arms suppliers and so on have knowledge of their contribution to the conflict and to the offences being committed.

How far can the net be thrown? Assuming, for example, that the guilt of the diamond vendor who trades with combatants in Angola or Sierra Leone can actually be established, does liability extend to the merchant in Antwerp or Tel Aviv who purchases uncut stones knowing of their origin and that their sale is being used to help finance a rebel group guilty of atrocities? Why not? If we take this one step further, what of the bank manager of the diamond merchant who has purchased stones from a trader dealing with militias in Sierra Leone? If the bank manager is aware of the provenance of the funds, then he or she ought also to be held guilty as an accomplice. At this level of complicity, the knowledge

Issues of complexity, complicity and complementarity 57

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requirement is revived as the difficult part of the case for the prosecution. Finally, what of the young fiancé buying a low-cost diamond ring, knowing plainly that the revenue will be funnelled back to a terrorist army that chops the limbs off little children? The further we go down the complicity cascade, of course, the more difficult it is to establish the ‘substantial’ nature of any assistance, assuming this to be a requirement for accomplice liability.25

Once we understand that individual criminal

complicity can extend so far into the structure and

networks that assist the principal perpetrators, repres-

sion and prosecution become much more a question of

political will than legal limitations.

But thinking about complicity does force all of us,

and especially those who are taking political decisions,

to consider how our actions affect the lives of others in

other countries. The prospect that, in light of the prin-

ciples developed in Nuremberg, we may be liable for

prosecution in the International Criminal Court for

having facilitated an international crime ought to give

some people some reason to pause for thought.

The use of the complicity concept has, however, been

58  

25 W. Schabas, ‘Enforcing International Humanitarian Law: Catching the Accomplices’ (2001) 83 Review of the International Committee of the Red Cross 439–59 at 451.

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taken in a further direction by human rights activists.

Complicity is now sometimes used to suggest guilt

through silence. This form of accusation has been

extended beyond the traditional focus on governments

and state agents and into the business world. The hand-

book, Corporate Citizenship: Successful Strategies for

Responsible Companies, states:26

It is not only governments that can stand accused of failing to uphold fundamental freedoms. Citizens, be they individuals or corporations, can also be complicit if they fail to acknowledge or take action on known violations …

If corporations are citizens, from which we derive the concept of corporate citizenship, then they bear witness just as individuals do. If it is wrong for a person to turn away in the face of injustice, it is wrong for a corporation to do so. If you see your neighbor beating up another neighbor, do you do nothing? If a company operates in a country where there are systematic human rights violations, should the company remain silent?

This notion of silent complicity reflects the expecta-

tion on all authorities that they should take up human

rights cases with the authorities. Indeed, it reflects the

Issues of complexity, complicity and complementarity 59

26 M. McIntosh, D. Leipziger, K. Jones and G. Coleman, Corporate Citizenship: Successful Strategies for Responsible Companies (Financial Times Pitman Publishing, London, 1998), p. 114.

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growing acceptance by individuals and within compa-

nies that there is something culpable about failing to

exercise influence in such circumstances. The

Nuremberg trials made it clear that it was legitimate

under international law to take up questions relating to

the human rights of nationals mistreated by their

government. This in itself was a breakthrough. But the

modern human rights movement, and the way in which

it uses the notion of complicity, suggests that, not only

is it legitimate for governments to choose to protest and

prosecute, but that they also have a duty to act. Not only

do states have obligations to their nationals under inter-

national law, but governments also have duties towards

people in other countries. They have, in the words of

the recent report of the International Commission on

Intervention and State Sovereignty, a ‘responsibility to

protect’ individuals from violent attacks on their

human rights.27 The Commission articulated the rele-

vant basic principle as follows:

Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-

60  

27 International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (2001), available at http://www.ciise-iciss.gc.ca/Report-English.asp.

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Issues of complexity, complicity and complementarity 61

intervention yields to the international responsibility to protect.

Complaints of complicity respond to public promises

of an ethical approach. I have sought to highlight here

three dimensions of complicity in the current context.

First, there is a growing sense of responsibility at the

international level for human rights violations which go

unpunished. This is especially so where powerful coun-

tries such as France or Britain do nothing to protect

innocent civilians from rape, slaughter and humiliation.

But it also extends down to our personal sense of moral-

ity and responsibility as we consider the impact of our

actions as consumers, tourists, shareholders and

investors. Secondly, in the period since the Nuremberg

trial we have seen a determination to widen the net.

International law is not only concerned with trials of the

‘German major war criminals’,28 along with the ‘leaders,

organisers, instigators or accomplices’ who conspired to

have Japan wage wars of aggression.29 International

28 See Goering et al., note 1 above. 29 See the Judgment of the Tokyo Tribunal summarising count one

of the indictment, at p. 48,421 of the original transcripts, repro- duced in The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East in Twenty-Two Volumes (annotated, compiled and edited by R. J. Pritchard and S. M. Zaide, Garland, New York and London, 1981), vol. 20, Judgment and Annexes.

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criminal trials now stretch beyond the leaders, generals

and ministers to reach right down to the camp

commanders as well as into the commercial world,fixing

on those who encourage and facilitate crimes. This

widening of the net has come to embrace, at least at the

level of accusation and expectation from non-govern-

mental groups, a third dimension to the complicity

concept. There is now an expectation that those with

power, whether in the public or the private sector, have a

duty to react to human rights violations where these fall

within their ‘sphere of influence’.30 In this context, to do

nothing is to be complicit. The increasing reliance on

complicity as a central concept in human rights

complaints reflects, in my view, an increased sense of

solidarity with the victims of human rights abuses in

other countries. It reflects a sense that the complainer

recognises that there are now increased responsibilities

which stretch across borders and that the bearers of

those responsibilities are not simply a rarefied group of

leaders. The responsibility extends to all of us.

62  

30 This phrase appears in the first principle of the UN’s Global Compact, where the Secretary-General asked world business to ‘support and respect the protection of internationally proclaimed human rights within their sphere of influence’. See generally A. Clapham, ‘On Complicity’, in M. Henzelin and R. Roth (eds.), Le droit pénal à l’épreuve de l’internationalisation (Georg and LGDI, Geneva and Paris, 2002), pp. 241–75 at pp. 243–6.

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Complementarity

Let me finish with a few thoughts regarding the third

connected concept of complementarity. This concept

became an organising principle during the 1998 Rome

Conference which drafted the Statute for the new

International Criminal Court. In brief, it reflects the idea

that priority must be given to trials for international

crimes at the national level rather than at the new Court.

Only if a state with jurisdiction is unable or unwilling to

genuinely prosecute will the new Court be able to assert

jurisdiction over the case. The Court is designed to

complement national courts in a way which gives prior-

ity to national courts, where a state with jurisdiction

wants to prosecute. For every defendant that comes

before the Court, a state which would normally exercise

jurisdiction will be able to demand that the international

Prosecutor defer jurisdiction to that state. This deferral

will happen unless a Trial Chamber decides pre-trial to

authorise the investigation.

The new Court will not therefore operate like the

other international courts I have mentioned.

Nuremberg and Tokyo made few concessions to any

demands from the states of Germany and Japan. The

Yugoslavia and Rwanda Tribunals prioritise interna-

tional trials. In the new system all nation states will be

Issues of complexity, complicity and complementarity 63

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able to demand exclusive jurisdiction for national prose-

cution before their own courts. Unlike the Nuremberg

and Tokyo Tribunals, the state of nationality of the

defendant will have a sort of priority over the new Court.

This principle is known (perhaps confusingly) as

complementarity.

At first sight, this probably seems like a huge defect in

the Statute. But it may be that the principle of comple-

mentarity will create a new international legal order. In

preparation for the entry into force of the Statute of the

International Criminal Court, dozens of states around

the world are considering national legislation to enable

them not only to surrender suspects to the new Court,

but also to assert jurisdiction over various categories of

individuals accused of genocide, crimes against human-

ity and war crimes. This is partly self-interested.

Without such legislation it may be impossible for a

government to reclaim a case for trial at the national

level. But the passage of such legislation has led to a

flurry of activity with regard to possible national trials

for war crimes and crimes against humanity. This is a

topic addressed by Professor Sands in his lecture in this

series.31 Suffice it to say here that, as I speak, many

politicians now think twice before arranging their travel

64  

31 See chapter 3 below.

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plans in case they find themselves in a state with appro-

priate complementary legislation to the Statute of the

International Criminal Court. The complementarity at

the heart of the Statute has generated a complementary

transnational legal order for the prosecution of interna-

tional crimes.

Conclusions

The concepts of complementarity, complicity and

complexity were all central to the thinking of innovative

physicists in the twentieth century. They served to help

explain new ways of thinking about the physical and

sub-atomic worlds as the traditional Newtonian under-

standing of physics gave way to a more complete under-

standing of the atomic world. These concepts were

needed because existing notions failed to capture the

new thinking and understanding. At their heart was the

recognition that ‘classical physics is just that idealisation

in which we can speak about parts of the world without

any reference to ourselves’.32 The struggle to address

international crimes and violations of human rights

and humanitarian law is no longer something that we

Issues of complexity, complicity and complementarity 65

32 W. Heisenberg, Physics and Philosophy (Penguin Classics, London, 2000), pp. 22–3 (first published 1962).

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are prepared to leave to others. Complementarity was

used in part by physicists like Niels Bohr to explain the

importance of how observation changes what we can

measure about a particle. It introduces us to ourselves as

essential factors in the search for knowledge and under-

standing. ‘In this way quantum theory reminds us, as

Bohr has put it, of the old wisdom that when searching

for harmony in life one must never forget that in the

drama of existence we are ourselves both players and

spectators.’33

In closing, I would suggest that we too should be

prepared for new ways of thinking about the prosecu-

tion of violations of international crimes. The

Nuremberg model, based on victorious powers assum-

ing jurisdiction over the losers, has given way to multi-

lateral justice in the name of the whole international

community acting through the Security Council. This

was what happened with regard to the Tribunals estab-

lished for the former Yugoslavia and Rwanda. On 1 July

2002, we entered a completely new era, where acts of

genocide, crimes against humanity and war crimes all

potentially fall under the jurisdiction of the new

International Criminal Court established by more than

eighty states parties. It is a fact that possible accomplices

66  

33 Ibid., p. 25.

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will include everyone, from the head of state, through

the generals and soldiers right down to the mayors and

even a supervisor in a tea factory. We can hope that this

wide net of accountability, covering not only people in

positions of authority but also those who simply aid

and abet others, should serve to prevent crimes as

people alter their conduct to avoid liability. The real

story of the new Court may actually be the crimes

which never take place. Just as Nuremberg served to

educate a generation about the international commit-

ment to repress war crimes and aggressive war, we can

hope that the new Court in The Hague serves to put us

all on notice that we all have responsibilities not only

towards those we see around us but also those who

suffer due to our action, our inaction and our silence.

Issues of complexity, complicity and complementarity 67

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