Reclaiming ICC Legitimacy by Investigating European Arms Exporters.
Vol. 42 Associate Editor
The International Criminal Court (the “ICC” or the “Court”) was established by the Rome Statute of the International Criminal Court in 1998 as a court of last resort. At the time of its inception, the Court was widely applauded as the beginning of an era where heinous crimes would no longer go unpunished.  Since, the Courthas been mired in accusations that it disproportionately targets African States and engages in actively perpetuating Western imperialism.In the last decade, the Court has weathered vitriol from African states either exiting or threatening to exit the ICC. With no police force of its own, these events have left the ICC particularly impotent and unable to “investigate, arrest and prosecute criminals.” Moreover, as jurisdiction is voluntary, the refusal of certain states – including the United States, Russia, and China – to ratify the ICC has furthered the perception that the Court is deprived of legitimacy and power. One practical solution to combat these perceptions of illegitimacy, and to encourage either compliance with the ICC or to catalyze the domestic accountability process, is for the Court to open an investigation of arms exporters in connected with the crisis in Yemen. Recently, the European Centre for Constitutional and Human Rights (the “ECCHR”), supported by five NGOs, has submitted a Communication (the “Communication”) and supporting evidence to the ICC calling for an investigation into these arms exporters’ potential complicity in 26 specific airstrikes in Yemen which could be considered war crimes. Such an investigation could be not only a potential boon to the Court’s legitimacy, but could also encourage States and corporations to take preventative efforts to avoid prosecution. The Communication urged the ICC to investigate the potential involvement of companies such as Airbus Defense and Space S.A. (Spain), Dassault Aviation S.A. (France), Rheinmetall AG (Germany), and more for their potential involvement in alleged war crimes committed by a military coalition (the “Coalition”) led by two of the European arms industry’s largest customers – Saudi Arabia and the United Arab Emirates. The Coalition has carried out numerous attacks on “civilian homes, markets, hospitals, schools and cultural heritage sites.” The Communication claims that these companies exported arms to the Coalition with the knowledge that there was a strong likelihood of these arms being used in multiple flagrant violations of international humanitarian law that amounted to war crimes. Given the lack of genuine national investigations in relation to these matters, an ICC investigation pursuing accountability for crimes committed in Yemen could bolster the Court’s international reputation and spur incentive for states to take action on their own. Such an investigation would not be impossible. The Prosecutor may initiate an investigation through its proprio motu powers. The Prosecutor may only open investigations in states in which the Court has jurisdiction A number of arms exporters purported to have sold arms to the Coalition are from countries – France, Germany, and the United Kingdom, for instance – that are State parties to the ICC treaty. Therefore, their nationals are all subject to the jurisdiction of the Court. If the Communication is correct in its assertion, those airstrikes may have amounted to war crimes “under Articles 8(2)(c)(i), and 8(2)(e)(i), (ii), (iii) and (iv) of the Rome Statute, namely intentionally directing attacks against the civilian population and against buildings dedicated to education, art, historic monuments, hospitals and places where the sick and wounded are collected[.]” Although the arms exporters may not have been directly responsible for those attacks, they could nonetheless face a form of derivative liability. For guidance on derivative liability, Article 25 of the Rome Statute is illuminating. Article 25(3) states that a person may be criminally responsible for a crime within the jurisdiction of the Court if the person “[f]or the purpose of facilitating the commission of such a crime aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission” or “in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall . . . [b]e made in the knowledge of the intention of the group to commit the crime.” Although the former form of derivative liability requires a purposeful mens rea and may be more difficult to prove, the arms exporters may have possessed the constructive knowledge necessary to satisfy the latter. The Communication details 26 airstrikes; in addition to testimonies, the report is bolstered by photographic evidence, satellite imagery, and a large number of public documents and reports. Given the public nature of these strikes and how readily documented they were, an arms company’s executives could have had constructive knowledge that their exports “could contribute to the commission of the crime, and that in the ordinary course of events such exports would bring about the commission of the crime.” While arms exporters may hide behind the veil of “legitimate” business activity, there are constraints on that business. To export arms, manufacturers must obtain a license from its relevant domestic authorities and such licenses must be consistent with provision of the EU Council Common Position and the Arms Trade Treaty. Both require that arms exports be denied in situations where there is a clear risk that the arms will be used in the commission of serious violations of international humanitarian law. Moreover, under international law, companies have a duty of due diligence to identify and assess actual or potential adverse human rights impacts. Given the legitimate jurisdiction which the Court may exercise over these arms exporters as well as the various modes of liability which the Court could pursue, an investigation would be prudent in a number of ways. First, in regards to the Court’s perceived illegitimacy, an investigation would show that the Prosecutor’s policy paper in 2016 gesturing towards increased movement against corporate power was more than just rhetoric. Moreover, such an investigation would address the sociological legitimacy problems the Court faces regarding its perceived bias against African States. Looking beyond legitimacy benefits, an investigation could have practical benefits in spurring domestic investigations and deterrence. The ICC can create prosecutorial deterrence not just through the course of its own actions, but in encouraging States to investigate a case domestically before the ICC does. Multiple States – including Guinea, Colombia, and Georgia – have implemented reforms after the launch of preliminary examinations. Such an effect could be possible within the arms industry as well. The specter of prosecution could also encourage corporations to take preventative action. Corporations have been known to be the most cost-effective providers of many vital forms of prevention and policing and would be incentivized to exercise greater discretion regarding to whom they sell arms.
 See Amy McKenna, The International Criminal Court, Britannica (last visited Mar. 5, 2021), https://www.britannica.com/story/the-international-criminal-court-icc.  See Id.  See Id.; see also Jean Ping (African Union Chairsman) (Statement to BBC that it is unfair that all those indicted by the ICC so far have been African), available at http://news.bbc.co.uk/2/hi/africa/7639046.stm (“the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are US adversaries and ignored actions the United States doesn’t oppose, like those of Uganda and Rwanda in eastern Congo, effectively conferring impunity on them”).  See Terrence Chapman & Stephen Chaudoin, People Like The International Criminal Court – As Long As It Targets Other Problems In Other Countries, Washington Post (Jan. 20, 2017, 5:00 AM), https://www.washingtonpost.com/news/monkey-cage/wp/2017/01/20/people-like-the-international-criminal-court-as-long-as-it-targets-other-problems-in-other-countries/  See Id.  See Eric Posner, Assad and the Death of the International Criminal Court, Slate (Sept. 19, 2013), at https://slate.com/news-and-politics/2013/09/failing-to-prosecute-assad-will-be-the-death-of-the-international-criminal-court.html  ICC Must Investigate Arms Company Executives Linked to Yemen War Crimes Allegations, Amnesty Int’l (Dec. 12, 2019, 12:15 UTC), https://www.amnesty.org/en/latest/news/2019/12/icc-investigate-arms-companies-yemen-war-crimes-allegations/  Case Report: Made in Europe, Bombed in Yemen: How The ICC Could Tackle the Responsibility of Arms Exporters and Government Officials, Eur. Ctr for Const. and Hum. Rts. (last visited Mar. 4, 2020), https://www.ecchr.eu/fileadmin/Fallbeschreibungen/CaseReport_ECCHR_Mwatana_Amnesty_CAAT_Delas_Rete.pdf.  See Id.  See Id.  See Tiemessen supra note 5.  See Rome Statute art. 15.  Ryan Goodman, Does The Int’l Criminal Court Have Jurisdiction Over Alleged War Crimes By Saudi-Led Coalition in Yemen?, Just Security (Sept. 14, 2016), https://www.justsecurity.org/32910/intl-criminal-court-jurisdiction-war-crimes-allegedly-committed-saudi-led-coalition-yemen/.  Made in Europe, Bombed in Yemen: ICC Must Investigate European Responsibility In Alleged War Crimes in Yemen, Eur. Ctr for Const. and Hum. Rts. (last visited Mar. 4, 2020), https://www.ecchr.eu/en/case/made-in-europe-bombed-in-yemen/#case_context.  Rome Statute art 25(3)(c), (d)(ii).  See Eur. Ctr for Const. and Hum. Rts., supra note 59.  Linde Bryk and Miriam Saage-Maaß, Individual Criminal Liability for Arms Exports Under The ICC Statute, 17 J. Int’l Crim. Just. 1117, 1136 (2019).  See Id. at 1122.  United Nations Human Rights, Guiding Principles on Business and Human Rights, OHCHR (last visited Mar. 4, 2021), https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.  Christine Schwobel-Patel, The Re-Branding of The International Criminal Court (And Why African States Are Not Falling For It), OpinioJuris (Dec. 28, 2016), http://opiniojuris.org/2016/10/28/the-re-branding-of-the-international-criminal-court-and-why-african-states-are-not-falling-for-it/  Margaret de Guzman, Punishing Atrocities Symposium: Selectivity, Goals, and The Legitimacy of International Criminal Law, OpinioJuris (May 24, 2019), http://opiniojuris.org/2019/05/24/punishing-atrocities-symposium-selectivity-goals-and-the-legitimacy-of-international-criminal-law/  Hyeran Jo and Beth A. Simmons, supra note 42, at 10.  See Id. at 11.  Alon Harel, Research Handbook on the Economics of Criminal Law (Richard A. Posner & Francesco Parisi eds. 2012).  See Id. The views expressed in this post represent the views of the post’s author only.