Extended Liability, Defences, and Child Soldiers

• Author: Joseph Rikhof/Robert J Currie
• Pages: 705-752

705

CHAPTER 12

EXTENDED LIABILITY,

DEFENCES, AND

CHILDSOLDIERS

A. EXTENDED LIABILITY: AN INTRODUCTION

As a preliminary comment for this chapter, it is important to point out

that when discussing extended liability, what is meant is the liability

of natural persons and not corporate liability. All international instru-

ments in international criminal law (ICL) and transnational criminal

law (TCL)1 so far only apply to natural persons2 although there are some

modest inroads being m ade to also extend liability to corporate entitie s.3

1 For an overview of t he TCL conventions, see C hapter 7.

2 The Rome Statute of the In ternational Criminal Court, U N Doc A/CONF.183/9,

Can TS 2002 No 13, art 25(1), is the most explicit in t his regard [Rome Statute].

3 See New TV S.A .L. and Karma Mohamed Tahsin Al Khayat , Decision on Interlocu-

tory Appeal Conce rning Personal Jurisdiction in Contemp t Proceedings (STL -1405/

PT/AP/AR126.1), Appeals Panel, 2 Octobe r 2014 (Special Tribunal for Lebanon);

the Protocol on Amen dments to the Protocol on the Statute of t he African Court of

Justice and Human R ights (Malabo Protocol), art 46C, which is not in force yet;

and ILC, Repor t of the International Law Comm ission on the work of its seventy-

f‌irst session, Chapte r IV, Crimes against Humanity, Text of the draft article s and

commentaries thereto, Un Doc A/CN.4/L.928/Add.1, 19 June 2019 at 63, para 46

with a backg round discussion at 61–63; the revi sed draft of an Internat ional

Treaty on the Issue of Bu siness and Human Right s by the UN Human Rights

Council-mand ated EIGWG (Open-ended Inte rgovernmental Working Group

on Transnationa l Corporations and Other Bu siness Enterprise s with respect

to Human Right s), 16 July 2019, art 6.7. However, some corporate directors

have been held res ponsible, albeit in an indiv idual capacity: see Terje Eina rsen

& Joseph Rikhof, “A Theory of Pun ishable Participation in Unive rsal Crimes”

INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW706

This introduction will look not only at the development of concepts

of extended liability in ICL and TCL, but also at the cross-fertilization

between these two disciplines. While in ICL there was no mention of

extended liability before World War II,4 a number of TCL treaties alre ady

contained wording to this effect. There were already a number of sup-

pression treaties in that time period, the most important of which were

the 1910 International Convention for the Suppression of the White Slave

Traff‌ic, the 1921 International Convention for the Suppression of the Traff‌ic

in Women and Children, the 1929 International Convention for the Suppres-

sion of Counterfeiting Currency, the 1936 Convention for the Suppression

of the Illicit Traff‌ic in Dangerous Drugs, and the 1937 Convention for the

Prevention and Punishment of Terrorism. The 1910 Traff‌icking Convention

only refers to direct involvement while the related 1921 Traff‌icking Con-

vention refers to the obligation of states to prosecute persons engaged in

traff‌ic in children as well as persons who committed offences that were

prohibited in the 1910 Convention.5 In addition, the 1921 Convention pro-

vided for punishment of “attempts to commit, and, within legal limits,

of acts preparatory to the commission of the offences” prohibited in the

1910 Convention.6 The 1929 Counterfeiting Convention refers to the com-

mission of particular offences as well as intentional participation and

attempt.7 The 1936 Drugs Convention follows the same structure as the

1929 Counter feiting Convention by penalizing the comm ission of offences

related to the subject matter of the treaty as well as intentional partici-

pation and attempt, but it also adds conspiracy.8 The last pre-World War

II treaty, the 1937 Terrorism Conventio n, went the furthest in criminalizing

(Brussel s: Torkel Opsahl Aca demic EPublisher, 2018) at 431–32, online:

www.toaep.org/ps-pdf/37-einarsen-rikhof. In Canada, it is possible to pros ecute

corporations for i nternational crime s due to the use of the word “person” in art

8(b) of the Crimes against Humanity a nd War Crimes Act (and the inter pretation

of that word given in t he judgment of the Special Tribuna l of Lebanon, above in

this note) in conjunction w ith article 22.2 of the Criminal Code.

4 With the exception of a rticle 229 of the 1919 Treaty of Versailles and article 227

of the 1920 Treaty of Sè vres (see Chapter 1(B)), which state in general ter ms,

“Persons guilt y of criminal acts.”

5 Internation al Convention for the Suppression of the White Slave Traff‌ic (1910),

LNTS, 8a, art 2 .

6 International Convent ion for the Suppression of the Traff‌ic in Women and Children

(1921), 9 LNTS 415, art 3.

7 Internat ional Convention for the Suppression of Counter feiting Currency (1929),

112 LNTS 371, art 3.

8 Convention for the Suppression of the Illicit Traff‌ic in Dangerous Drugs (1936), 19 8

LNTS, 299, art 2.

Extended Lia bility, Defences, and Child Soldiers 707

preparatory acts as well as the circle of perpetrators by including, in

addition to attempt:9

1) Conspiracy to commit any such act;

2) Any incitement to any such act, if successful;

3) Direct public incitement to any acts mentioned under heads (1), (2)

or (3) of Article 2, whether the incitement be successful or not;

4) Wilful participation in any such act;

5) Assistance, knowingly given, towards the commission of any such

act.10

With respect to ICL, the pivotal instruments with respect to participa-

tion have been the Charter of the International Military Tribunal (IMT

Charter), the Genocide Convention, Additional Protocol I to the Geneva

Conventions (with respect to command responsibility), the ICTY Stat-

ute, and the ICC Statute.11 The IMT Charter had a number of unique

features that went beyond what had been discussed with respect to

participation before World War II, specif‌ically the preparatory acts of

planning, preparation, initiation, and instigation, as well as member-

ship in criminal organizations.12 Nonetheless, the notions of conspir-

acy and participation as accomplices had already featured in some of

the pre-World War II transnational l aw treaties, such as the 1936 Drugs

Convention and the 1937 Terrorism Convention for conspiracy, and those

two conventions plus the 1929 Counterfeiting Convention for indirect

participation. The 1921 Traff‌icking Convention had a general provision

with respect to preparatory acts. Interestingly, while all four of these

treaties penalize attempt, the IMT Charter does not.

This connection between pre–World War I TCL and post–World

War II ICL treaties becomes most obvious when one compares the last

treaty before the war and the f‌irst one after it, namely the 1937 Terrorism

Convention and the 1948 Genocide Convention. The concepts and even

9 Conventio n for the Prevention and Punishme nt of Terrorism (1937), art 2(4).

10Ibid, art 3.

11See Chapter 3 for a discussion of t he substantive aspect s of international cri mes

in these instruments.

1282 UNT S 279 [IMT Charter]; article 6 mention s that leaders, organi zers, instigators,

and accomplices pa rticipating in the formu lation or execution of a common plan

or conspiracy to c ommit any of the foregoing crimes a re responsible for all acts

performed by an y persons in execution of such pla ns, while article 8 refer s to the

possibility of declaring an organization criminal, resulting in liability to members

of that organi zations. The article 6 forms of l iability were also us ed in the Charter

of the Internat ional Military Tribu nal for the Far East, art 5, whi le Control Council

Law No 10, applicable to all zones of o ccupied Germany, refers to the same

concepts as the IM T Charter, but with different term s; see Table 12.1, below.