The Principle of Complicity
The recent investigation into the alleged misuse of the Israeli software Pegasus to track heads of state, politicians, journalists, and activists by autocratic regimes has prompted outrage and calls for action amidst allegations of complicity by corporations in human rights abuses. Concentration on the issue of President Macron’s privacy has diverted attention from the rights of a state to take measures to protect its national security and is an opportunity for activists to attempt to extend the limits of criminal complicity.
It is not only the Israeli NSO Group that is under the microscope. According to the International Federation for Human Rights (FIDH), there are over a dozen international companies involved, from the U.S.’s Verint and Narus to Germany’s Elaman and Italy’s Hacking Team, who sell “intrusive surveillance technologies and network monitoring systems” to certain states challenged on their human rights record.
French tech companies, Qosmos and Nexa (formerly known as Amesys), have been accused of aiding and abetting torture in the Middle East and North Africa by supplying surveillance equipment. The sales by the companies had actually been approved by the Commission interministérielle des biens à double usage (CIBDU), which regulates these exports in France. It would be a fair observation to make that the French state would have more knowledge and information on what goes on in the user states than the tech companies.
Whereas the Qosmos case was dismissed in December 2020, because the judge could not find “enough evidence to establish a causal link” between the alleged crimes and the surveillance equipment, in June 2021, four Nexa officials were indicted for alleged roles of complicity in the torture of dissidents in Libya and Egypt. We will have to wait to see whether the instigators have evidence of aiding and abetting torture by Nexa or whether like the Qosmos case, this is another example of activist-inspired litigation to disrupt commerce.
Whilst the use of criminal proceedings by activists to invoke publicity is nothing new, where to draw the line in establishing complicity for so-called international crimes against corporations and their executives needs thought. It is not a straightforward process, as an allegation of complicity is based upon there having been no direct perpetration. Instead, the modes of indirect perpetration for a complicity charge are based upon participation by aiding and abetting, instigation, facilitation, or planning, amongst others. Finding evidence that there is a direct and purposeful link between a company’s actions and the criminal conduct that took place by an end-user state is challenging.
Article 25 (3) (c) and (d) of the Rome Statute stipulates a conduct and a fault requirement, or actus reus and mens rea, to find individuals complicit in a crime, or knowingly contributing to a group whose intention was to commit crimes. This is done by establishing that they (and the companies they work for) were aware of the crime and had acted purposefully to facilitate it. Which is not the more fanciful basis for alleging corporate responsibility, that as a crime was committed and your equipment was used, ergo you are responsible. It seems some of the applications being made to instigate investigations come down to this emotive driver rather than evidence of criminality.
Accusing Chief Executives or Chief Financial Officers of intentionally setting out to commit or be complicit in crimes such as genocide, war crimes, or crimes against humanity whilst it grabs headlines, is invariably a step too far. Knowledge of crimes being committed or even allegations of crimes through media sources does not imply that the individuals and corporations are directly and purposefully involved in crimes. Being primarily motivated by financial interests does not equate to criminal purposes.
In examining the allegations that German, Italian, Spanish, French, and British arms companies were complicit in war crimes committed in Yemen by the UAE/Saudi-led coalition, Professor Marina Aksenova argues that the element of continuity is essential in trying to establish these links.
Those trading or operating in conflict situations are subject to intense and ongoing scrutiny, oversight, approvals, and intervention by their governments. Such is the role of export licenses and parliamentary investigations. If they are not up to the job, then it falls on the international courts to determine at what point their activities become criminal. To date, export licenses and the Arms Trade Treaty have generally protected commercial companies from being convicted of complicity in international criminal law. But the tide is turning. NGOs are piling on the pressure, challenging licensing decisions, and using litigation to bring more cases to international attention.
While the list of companies under investigation is long, convictions are hard to come by. And that is because determining complicity, especially corporate complicity, is fraught with moral and practical complications. The risks of abusing the concept of complicity are high.
As calls grow louder for corporations to take more responsibility for the impact of their activities and more companies to sign up to the UN Guiding Principles for Businesses and Human Rights, it is up to international lawmakers to define where the boundaries of responsibility and complicity lie.