Extended Liability, Defences, and Child Soldiers

AuthorJoseph Rikhof/Robert J Currie
As a preliminary comment for this chapter, it is important to point out
that when discussing extended liability, what is meant is the li ability
of natural persons and not corporate liability. All international in stru-
ments in internationa l 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”
This introduction will look not only at the development of concepts
of extended liability in ICL and TCL, but also at the cross-fertilizat ion
between these two di sciplines. 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 ef fect. There were already a number of sup-
pression treaties in t hat time period, the most import ant of which were
the 1910 International Convention for the Suppression of the White Slave
Tra ff‌i c, 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 Conve ntion
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 child ren as well as persons who committed offences t hat 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 particul ar offences as well as intentional participation and
attempt.7 The 1936 Drugs Conve ntion follows the same structure as the
1929 Counter feiting Convention by p enalizing the comm ission of offences
related to the subject matter of the treaty a s well as intentional part ici-
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 a s 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 successf ul or not;
4) Wilful participation in any such act;
5) Assistance, knowingly given, toward s the commission of any such
With respect to ICL, the pivotal in struments with re spect to participa-
tion have been the Charter of the Inter national 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 di scussed with re spect to
participation before World War II, specif‌ically the preparatory acts of
planning, preparation, init iation, and instigation, as well as member-
ship in crimin al 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 Counte rfeiting Convent ion for indirect
partic ipation. The 1921 Traff‌icking Convention had a general provision
with respect to preparatory acts. Interestingly, while all four of these
treaties pena lize 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).
10 Ibid, art 3.
11 See Chapter 3 for a discussion of t he substantive aspect s of international cri mes
in these instruments.
12 82 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.

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