[RETRACTED ARTICLE] CRIMINAL LIABILITY AND COMPULSORY IN INTERNATIONAL CRIMINAL JUSTICE: THE CASE OF CORPORATIONS

[ARTÍCULO RETRACTADO] RESPONSABILIDAD PENAL Y OBLIGATORIA EN LA JUSTICIA PENAL INTERNACIONAL: EL CASO DE LAS EMPRESAS TRANSANCIONALES

Dimitris Liakopoulos[1] d.i.liakopoulo@gmail.com

Tufts University, Medford, MA, Estados Unidos, Estados Unidos

This work is licensed under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International.

The multinational companies are identified as actors in the current political and economic reality which also have significant benefits, such as the economic and technological growth of developing countries[2]. But it should not be forgotten that the work of multinational companies has sometimes conditioned the protection of fundamental rights, which, very often, are subject to strong restrictions. This would make it necessary to "moralize" multinational companies and regulate their activity in the current globalized market environment. This question brings with it a series of questions, just consider the examination of the most relevant cases that may arise; the identification of the current measures aimed at preventing and repressing the illicit conduct of the multinational companies and the effects of their imputed behaviors that derive to the detriment of the interests of individuals and collective interests. One can perhaps speak of a process of structural metamorphosis of international law. This is due, for two reasons, connected to each other. The first is to refer to the "subversive" or "revolutionary" nature of the theory of human rights with respect to the ratio that permeates the relations between States, since it is in contrast with the principle of sovereignty, which is the basic principle of traditional international law[3]. The reference runs to the so-called international law of coexistence, all set on an individualistic and "privatistic" conception of relations between States, on the principles of reciprocity and bilateralism in matters of responsibility among States, while surviving the so-called international law of cooperation, which has increasingly been open to the protection of collective interests. International law is no longer exclusively a right between States, but it is only "primarily" a right between States; or that its "main" aim is to regulate relations among States, but it can sometimes also regulate individual relations[4] arriving to the punishment of serious crimes that enter the global sphere of international criminal justice.

The greatest difficulty, which has always met with respect to multinational companies, is the absence of an organic regulatory framework. Difficulties were reduced through the intervention of international organizations, which developed international documents aimed at filling the regulatory gap[5].

The main regulatory sources[6], which could allow the interpreter to find the criminal responsibility of multinational companies[7], it is necessary to start from a certain datum dating back to the draft of the Statute of the International Criminal Court (St-ICC)[8]. In particular according to the International Criminal Court (ICC), company officials who are involved in committing crimes under international law are susceptible to the increased risks of being investigated, prosecuted, and punished in a wide range of jurisdictions, including to the articles of the StICC. This may not result in legal consequences to the corporation itself, the involvement of corporate leaders in human rights abuses cases can damage a company’s reputation and cash flow?!. A genuine consideration of what it means to be complicit in human rights violations and a change in company policy to prevent criminal liability[9] can save corporations money, time, and the risk of negative publicity. There have been significant developments in clarifying the standards of liability for companies under criminal international law[10], there still remains some confusion in the courts as to the proper test for determining the mens rea element[11] needed to link a corporation to a human rights abuse[12]. In particular, it is known that the criminal liability of legal persons is not an abstract data, but a concrete fact that found in the draft of the statute of the ICC (St-ICC) a full normative recognition.

The arguments, rectius the open questions according to our opinion regarding a more solid, concrete and effective regime regarding the responsibility of the multinationals are: To a corporation that can be held liable internationally?, If a corporation brought before an international court or tribunal is prosecuted for complicity of some sort, what are the feasible measures that can be taken against them and why?

According to our opinion multilateral corporations can become implicated in gross human rights abuses fall into four categories: a) businesses and their managers are accused of being the main perpetrators; b) businesses supply equipment or technology in the context of a commercial trading relationship that is then used abusively or repressively; c) businesses are accused of providing information, or logistical or financial assistance, to human rights abusers that has “caused” or “facilitated” or exacerbated the abuse; and d) businesses are accused of being “complicit” in human rights abuses by virtue of having made investments in projects, joint ventures, or regimes that have poor human rights records or connections to known abusers[13].

In the round-up of the mandate of Professor John Ruggie, the Special Representative of the United Nations (UN) Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (SRSG), attention to the particular promise of this field of international law as a key means of addressing the worst manifestations of business-related human rights abuse[14].

The desire to prosecute legal entities found recognition in the Nuremberg Tribunal precedents This proposal was to be included in Article 23 of the Statute, in paragraph 5, where it was specifically foreseen that: “without prejudice to any individual criminal responsibility of natural persons under this Statute, the Court may also have jurisdiction over a juridical person for a crime under this Statute. Charges may be filed by the Prosecutor against a juridical person, and the Court may render a judgement over a juridical person for the crime charged, if: a) The charges filed by the Prosecutor against the natural person and the juridical person allege the matters referred to in sub paragraphs (b) and (c); and b) The natural person charged was in opposition of control within the juridical person under the national law of the State where the juridical person was registered at the time the crime was committed; c) The crime was committed by the natural person acting on behalf of and with the explicit consent of that juridical person and in the course of its activities; and d) The natural person has been convicted of the crime charged. For the purpose of this Statute, “juridical person” means a corporations whose concrete, real, or dominant objective is seeking private profit or benefit, and not a State or other public body in the exercise of State authority, a public international body or an organisation registered and acting under the national law of a State as a non-profit organisation (...)“[15].

Despite this, even today there is a current international orientation[16] according to which it is possible to recognize the criminal responsibility of multinational companies using the St-ICC rules. In particular, the art. 25, number 3, letter (d) should be read in conjunction with art. 21, number 1, letter (c)[17]. The two rules can also be applied to legal entities by implementing the so-called extensive interpretation.

Besides the draft of the St-ICC, there are other normative sources that allow to recognize de relato the criminal responsibility of multinational companies. That said, in primis it is held against the Alien Tort Statute (ATS, also known as the Alien Tort Claims Act or ATCA)[18]. The relevance of corporate liability for international crimes[19] to contemporary transitional justice efforts is most prominently evinced in the spate of Alien Tort Statute (“ATS”)[20] cases launched against transnational corporate defendants, which have wound their way into the U.S. court system.

The American legislative system adopted in 1789 the Alien Tort Act[21], as a law that allows foreign actors to bring cases of damages in the federal district courts for violations of the rules established by international law[22] and by the treaties signed by the USA. Its application in fundamental rights cases began to be invoked by the 1980s, provoking mixed reactions[23]. The reasons for such interest in a civil proceeding law in the United States lie in the inability of international law to provide effective instruments of protection when the active subject of criminal conduct is a society. The difficulty lies in the fact that the aforementioned traditional orientation recognizes only states as subjects of international law[24].

It is necessary to clarify that other subjects have entered the international scene[25]. The extension to other subjects can be found also taking into account the greater emphasis placed on the rights of the individual, who is the owner of the inalienable rights. As a result, it seems rather anomalous that states do not provide regulatory recognition for companies, especially for multinational corporations. For years, therefore, the United States has represented a unique opportunity for the repression of such crimes, offering, through the Alien Tort Act, a forum for claims for compensation. Indeed, many companies have a strong economic power that in some ways exceeds the one given to the States in which they invest, which, consequently, are not always able to ensure respect for the human rights of their citizens[26].

Another important source in chronological order is found with the work of the United Nations since 1972[27]. The objective of the Organization was clarified by authoritative doctrine that supported "the conclusion of a general agreement on multinational corporations having the force of an international treaty and containing provisions for machinery and sanctions (...)"[28]. It should be noted that the Draft Code does not regulate the criminal liability of multinational companies, but its relevance in this area can not be denied since the Code of Conduct is an instrument of moral persuasion aimed at soliciting responsible and respectful conduct. of the values of the international community. As a result, the Commission on Transnational Corporations[29], starting in 1975, drafted a Code of Conduct on Transnational Corporations to be proposed to the Member States. In 1988 a first official version was drafted, but this tool has never received a unanimous consent. The debate continued until the 1990s when there was a further version of the draft code of conduct, which however was never approved by the General Assembly: the negotiations in this regard were therefore officially terminated in 1992 without a positive outcome.

The other regulatory source to refer to to build adequate regulatory coverage of the criminal liability of multinational companies is the Rules on the Responsibilities of Transnational Corporations and Other Businesses on Human Rights from 2003. Also for the 2003 Standards it is necessary to clarify that they do not regulate the criminal liability of multinational companies, but the relevance of the 2003 rules in this area can not be denied as they are considered as a tool that sets the rules for responsible and respectful conduct of the values of the international community. The 2003 rules recall, on the one hand, the principles and obligations deriving from the UN Charter (in particular its Preamble and articles 1, 2, 55 and 56) and, on the other hand, a series of international documents from which the general principles of the international community draw[30].

The 2003 rules assume that transnational companies and other commercial enterprises have a good capacity to support economic well-being and development. The capacity found is counterbalanced by the ability to produce a painful impact on human rights and the standard of living of individuals. As a result, the 2003 rules contribute to regulatory production and the development of international law regarding liability and related obligations, but they are not binding. With regard to obligations, the 2003 rules specify the behavior that States must take. In particular, States have the primary responsibility to promote, guarantee the implementation, respect, enforcement and protection of human rights recognized in international law and in national legislation. Furthermore, States must ensure that transnational corporations and other commercial enterprises respect human rights. The 2003 standards are guaranteed by a control and monitoring system. Transnational corporations and other commercial enterprises are subject to periodic verification by the UN and other international and national mechanisms. This control system is based on the reports that send the subjects involved in the entrepreneurial activity (stakeholders) (including non-governmental organizations). The source in its final part also provides remedial tools for people, institutions and the community that have been victims of the offensive conduct of transnational companies and other commercial enterprises. The regulatory framework of the liability of multinational corporations for international crimes should be supplemented with the reports, which took place in 2007 and 2011, of the UN Special Representative, who are united by the same ratio, ie to charge multinational companies "(...) responsibility to respect human rights (...)"[31].

It is worth pointing out that relations do not regulate the criminal liability of multinational companies, but the relevance in this area can not be denied since there are instruments of moral persuasion aimed at encouraging responsible and respectful conduct of the values of the international community. The examination of the reports is limited, mainly, to the terminology used as it is found the use of the term "responsibility" and not the term "duty". With the term "responsibility" we do not want to refer to a "legal obligation" imposed by international law, but we prefer to recall a "standard of expected conduct", which is confirmed in the conventional instruments and in the so-called soft law on corporate social responsibility[32].

The responsibility of multinational companies implies for companies themselves the need to: a. avoid committing violations of human rights; b. consider the possible negative-current or potential-effects that its activities may determine or may contribute to[33]. It emerges in the various reports that the companies should incorporate the modus operandi that is given to them and that would allow them to behave according to the guidelines; in particular, it is urged to implement the so-called due diligence process[34], as "step a company must take to become aware of, prevent and address the human rights impacts (...)"[35]. Consequently, an enterprise should always take into account three factors: a. The specific context of the country in which it carries out its activities, in order to identify the particular problems that may arise in relation to human rights; b. the impact that their activities can have on these rights in that particular context; c. the possibility that the company itself may contribute to the violation of human rights through relations with other subjects connected to its activities.

Ultimately, if the multinational company conforms correctly and quickly to the indications provided in the due diligence process, the multinational company must adopt certain behaviors. In June 2014, the UN Human Rights Council adopted two human rights and business resolutions. One was advanced by the Core Group of states supportive of the Gps. The other, proposed by the group of States led by Ecuador and South Africa, "proposed the establishment of an intergovernmental working group with a mandate to elaborate an international legally binding instrument on human rights and transnational corporations as it is currently stands"[36]. Phase II of the UN Framework, with a focus on examples from the regions of Asia and Europe[37]. In particular we are talking about the following criteria of behavior: 1. the elaboration of a document that declares the policies adopted by the company in order to respect human rights (Human Rights Policy)[38]; 2. the periodic assessment of the impact, current or potential, that the activities of the company or its economic relations with other subjects may have on human rights (Impact Assessment); 3. the integration of these policies and assessments into the internal control and supervision mechanisms of the company (Integration); 4. the adoption of procedures aimed at monitoring and reporting on the developments achieved[39]. It is clear that respect for human rights and the consequent responsibility represent a de facto situation that unites all multinational companies, being able to refer to all human rights recognized by international law, "because companies can affect the entire spectrum of internationally recognized rights (...)"[40]. In fact, as observed by the RS, "the principles of these instruments are the foundational elements of the international human rights regime"[41]. It should also be noted that the due diligence process must be objectively connected to a precise parameter, ie the actual, direct or indirect, actual or potential impact that the activities of multinational companies can determine on recognized rights[42].

Finally, through the adoption of the due diligence criteria in their activities, companies can avoid being complicit in the abuses committed by other actors. The notion of "complicity/collusion" emerging in the 2008 report derives from international jurisprudence regarding individual responsibility and complicity for committing international crimes[43].

The definition of "complicity" is, in fact, that defined in reference to the international crimes from the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and perfected, with reference to the enterprises, from the recent practice of the United States courts following the petitions filed against some IMNs under the Alien Tort Claims Act (ATCA): "knowingly providing practical assistance or encouragement that has substantial effect on the commission of a crime (...)"[44]. The complicity of a company in the commission of a violation of human rights can not derive from the mere presence of this, or from its fulfillment of the tax burdens, in the country in which this violation is committed, or from the silence in relation to possible abuses the company is aware of it. The complicity could not be derived even from the simple fact that the company has derived an economic benefit indirectly from the misconduct of other subjects, even if-it has specified the RS-"benefiting from the public perception (...)[45].

When the complicity of the multinational company turns into a violation of human rights, it is not necessary for the company to be aware of or have called for the commission of a specific offense. It is sufficient, rather, that the factual circumstances show that the undertaking was aware-or should have been, as might reasonably have been claimed in the specific circumstances-of the fact that its actions or omissions contributed, in the present case, to the infringement of human rights. The fact, therefore, that a company is executing an order, fulfilling contractual obligations or even acting in accordance with specific national legislation, does not apply to the exclusion of punishment. The reports examined so far serve as a prerequisite for the 2011 intervention when the Guiding Principles for the Implementation of the United Nations "Protect, Respect and Remedy Framework" were drafted, the draft of which was made public on November 22, 2010 at advisory purposes, with a view to the adoption by the Council of Human Rights at the end of June 2011.

In particular, the reports of the five-year period 2006-2010 and the recent Guiding Principles "sanction the definitive abandonment by the United Nations of the mandatory approach of the Norms (...) (and have decreed) the prevalence of the voluntary approach to social responsibility. even within the UN, disappointing the expectations of those-especially NGOs-hoped that the Special Representative would encourage the process of transforming the Norms from a soft law source into a binding source.

In June 2011 the United Nations Human Rights Council (UN) unanimously adopted a document prepared by John G. Ruggie, then Special Representative of the UN Secretary General, entitled "Guiding Principles on Business and Human Rights" (Principles Guide)[46]. This document defines a set of rules of behavior in the field of human rights both for companies and for the States that have the task of controlling them, and responds to the need to fill the international regulatory gap regarding the potential negative impacts of the activity entrepreneurship on the protection of human rights. On the one hand, in fact, companies are not-at the current state of international law-recognized as subjects having full international legal personality. As a consequence, they are not direct recipients of international obligations to protect human rights. On the other hand, within the framework of the traditional vertical relationship between the individual and the international human rights regime, it is still difficult to determine for the States a clear obligation to prevent, punish and/or remedy any abuses perpetrated by companies in the context of the horizontal enterprise-individual relationship. The Guiding Principles have responded to this problem by establishing: 1. the duty of States (now consolidated in international law) to guarantee the protection of human rights from entrepreneurial activity, intervening through the adoption of appropriate policies, norms and judicial measures (State duty to protect-Pillar I); 2. the responsibility of companies (still not consolidated according to international law and, therefore, not comparable to the international obligations of States) to respect human rights and to act promptly in the event that their activity in some way jeopardizes their enjoyment (corporate responsibility to respect-Pillar II); 3. The need to provide victims of business abuse with access to effective remedies (right to effective remedy-Pillar III).

The Guiding Principles, despite their non-binding nature, soon became an important reference point at the international level. In May 2011, the Member States of the Organization for Economic Cooperation and Development (OECD), together with States that are not Members but adhere to the OECD Declaration on International Investment and Multinational Enterprises, have updated the "OECD Guidelines for Multinational Enterprises", introducing a new chapter on human rights (Chapter IV) with specific reference to the UN document. In October 2011, the European Commission then published the Communication "Renewed European Union Strategy for the period 2011-2014 on Corporate Social Responsibility" with which it formally invited all Member States to prepare a Plan of National Action to implement the Guiding Principles[47].

The so-called "Fundamental principles" of the report shows that States must protect against possible violations of human rights by third parties, including commercial enterprises within their territory and/or jurisdiction. From the beginning of the report it is clarified that there is a duty of the State to protect, which is qualifiable as a standard of behavior. In fact, states are held accountable only when they violate their international human rights legislative obligations or when they fail to take appropriate measures to prevent, investigate, punish and correct abuses of private actors. The obligation to protect should be read in conjunction with the obligation to take preventive measures and repressive measures to ensure the protection of human rights. Having clarified what is the prerequisite for the second part of the report, it is now possible to focus on the obligations imposed on multinational companies[48].

The legal question makes it possible to identify, even if de relato, a normative suggestion, which recognizes the responsibility of multinational companies for international crimes. This means that companies must refrain from violating the human rights of third parties, being, inter alia, obliged to intervene on any negative effects on human rights to which they may have contributed. This responsibility goes beyond the mere compliance with the regulations of the national standards on the protection of human rights. Intervening on possible negative effects on human rights requires the adoption of appropriate measures for prevention and mitigation and, where necessary, interventions to remedy abuses committed. Businesses can make further commitments or initiate other activities to support and promote human rights, thus contributing to their dissemination; however this does not offset any failure to respect human rights in their respective activities. Corporate responsibility for respect for human rights requires that two necessary conditions exist. Businesses must: a) avoid causing adverse effects on human rights, or contribute to such effects through their respective activities, intervening to remedy them where they occur; b) work towards the objective of preventing or mitigating those negative effects on human rights that are directly related to their respective activities, products and services by reason of their business relationships, even if they have not contributed to such impacts. The obligation taken on by multinational companies inevitably passes through an ad hoc procedure, ie due diligence on human rights. The procedure must provide for the assessment of the actual and potential impact on human rights, the integration of conclusions and the adoption of the related measures, the verification of the results and the communication on the modalities with which the impact was recorded. It is necessary to intervene on this potential impact through prevention or mitigation, while the actual impact, ie the consequences that have already had practical effects, must be the subject of compensation interventions. Finally, after examining the system for monitoring the effectiveness of the measures adopted by the companies, the report also focuses on remedial measures, such as compensation for damages. If the companies find that they have been or have contributed to adverse effects, they must remedy or cooperate in order to achieve this end through legitimate processes. Ultimately, the 2011 report makes it possible to find some interesting insights that lead to a criminal liability of multinational companies when there is a violation of human rights.

The 2011 report repeatedly uses a terminology that reveals the identifying elements of the criminal liability, just consider the severity of the conduct, the offense to a good intended as relevant to the international community and, again, we can not even identify the link of material causality, where it is specified that companies are required to adopt the most appropriate measures to repair the damage inflicted on human rights. These elements, as indicated, which will be the subject of a specific treatment in the following paragraph, are added to the compensatory measure, which, generally, finds its place in the legal system following an illegal act. The International Convention on the Prohibition of the Crime of Apartheid is exemplary for the recognition of the criminal liability of multinational companies, where it is clearly stated that apartheid is an international crime and that juridical persons are held criminally liable in the same way as individuals[49]. In support of the criminal liability of legal persons, it should not be forgotten that the Convention has also provided for an ad hoc tribunal by means of an Additional Protocol for such a crime. Ultimately, from the examination of the international documents we can deduce the will of the international bodies to prosecute also the conduct of the multinational companies confirming the choice contained at first in the StICC[50].

The violation of an international (customary or conventional) obligation by a State through omissive or commissive behaviors determines the juridical consequence of the emergence of international responsibility from an unlawful act against it. The commission of an internationally wrongful act is therefore the presupposition of the international responsibility of the State[51]. State responsibility was based on some judgment agreed by international arbitration and practice. In practice, it established that the offending State was responsible internationally and had to provide for reparation, and that the injured State could react to the offense even with the use of armed force. In reality the cases in which it could be considered an illicit, or even what were the consequences linked to it, had never been determined.

As a rule, when a litigation took place the injured State could ask the counterparty for monetary compensation or the c.d. satisfaction (official presentation of excuses, etc.). In fact it was the most used mode. However, it was the whole state that had to pay the violation on an international level, even for acts committed by bodies or individuals belonging to it. In the Tadić from the ICTY case, the "global control criterion" was introduced[52]. The Chamber states in particular that the degree of control must vary according to the circumstances of the specific case and that for the purpose of allocating private behavior to the State, a general State control over the operation in which the abuses took place is sufficient.

According to our opinion, a regulatory reform on the international level would be the best and the only genuinely effective way to close the gaps in the current regulation. In practice, the reform would most likely mean the adoption of a new human rights treaty, in which the adhering states would acknowledge the direct responsibility of Transnational Corporations (TNCs)-and possibly some other non-State actors-for human rights violations under international law, along with the responsibility of the home states to regulate their corporate citizens and to protect individuals from abuses also outside their jurisdiction, as well as the remaining duty of the host state to provide protection. A the best alternative to close the regulatory loopholes would be the establishment of an international legal framework through a multilateral treaty. International cooperation is needed to effectively regulate international actors and their international operations. International regulation would help to ensure that TNCs cannot escape responsibility by simply moving their operations or headquarters to another state. Victims of human rights violations would benefit from a legal framework acknowledging corporate responsibility and establishing the obligation of the company’s home state to provide access to remedies. Furthermore, a legal framework which would set down the legal obligations of companies would benefit the companies as well by clarifying their duties, by eliminating the “free-rider” effect, and by helping those companies willing to exceed their legal duties to truly show that commitment. Finally, while concerns can be expressed of the content and the effectiveness of the possible future treaty, a legally binding document would be important due to its moral significance. A binding treaty would show the commitment of states to effectively protect human rights against infringements by all actors, and it would confirm that violations of international law will be responded to, regardless of the identity of the perpetrator.

Only in some exceptional cases was the individual being sued internationally, such as for piracy and war crimes. In the current discipline we can distinguish two norms: the "Primary", ie the set of rules of international law that impose obligations of a substantive nature, and the "Secondary", a set of rules that establish: 1) the conditions for which it can be said that an offense occurred; 2) the legal consequences arising from that offense. Also the degree of responsibility can vary in "ordinary" responsibility, that is the one normally applicable in the relations between States following the commission of an offense, and the "aggravated" responsibility, which arises from violations of fundamental norms of the community. Individual responsibility has also changed with respect to the traditional discipline[53]. In fact individuals can be responsible at international level for serious violations of international law, committed both in wartime and in peacetime. In the "ordinary" regime of liability, the international offense occurs with the existence of two factors, one of a "subjective" nature, according to which the offense committed by a subject is attributable to a state, and one of an "objective" nature ", according to which the offense occurs when the conduct: 1) is contrary to an international obligation; 2) causes a material or moral damage to another international subject.

Firstly, with regard to the objective element, namely the anti-juridical behavior, it may consist of an action (unlawful commission) or omission (unlawful act of omission), where it is expected that the conduct is unlawful when it contravenes customary international obligation or deriving from a treaty. If this action is committed prior to the issuing of the law, it does not involve illicit behavior. So, what matters is that the rule is in force for the state at the time the conduct was put in place, according to the tempus regit actum principle. For example, conduct contrary to a multilateral treaty will engage the international responsibility of the state, only from the moment the treaty is in force for the state in question. The offense can take place either for an action ("commission wrong") or for an omission ("omission") and can be instantaneous or continuous[54]. This norm is an expression of the general principle of "intertemporal law"[55], according to which a situation of fact must be assessed in the light of the international law in force at that precise moment. On the one hand, this represents a guarantee for States not to retroactively react to international law in matters of state responsibility, on the other it does not reduce liability if, as a result of the violation, the obligation lapses or international law molting.

With regard to the subjective element, it is necessary to ascertain whether a particular action or omission is imputable to the State. First of all, the conduct of one of its bodies is imputable to the State, as provided for in art. 4 of the Project, which may belong to the legislative, executive and judicial power[56]. The International Court of Justice (ICC) in the Genocide case has argued that, for the purposes of international accountability, it is possible to equate to public bodies even persons who do not have such qualification under national law, but it must be demonstrated that the State is responsible for exercised a full control over them[57]. As a rule, the conduct of individuals is not imputable to the State, subject to certain exceptions.

In the exceptions according to opinion, the criterion of the instructions also enters; it is doubtless conceivable that these are supplied through a contract between the State and the multinational company, which makes it comparable to an "extended arm" of the State. The hypothesis of the direction or control by the State is that which, certainly more than the others, leaves room for uncertainty, especially considering the two different interpretative addresses elaborated respectively by the ICJ and from ICTY if we share the consolidated criterion of the effective against[58], the illicit conduct would not be attributable to the State in all cases in which it has not entrusted the exercise of public functions to a company and does not exert a stringent control on the private operator. If, on the other hand, the criterion elaborated by the ICTY acquires greater consensus at the international level, no doubt, there would be new openings regarding the possibility of affirming the responsibility of the host State on the basis of the attribution criterion under examination. The behaviors most likely related to this case are those of companies in public ownership, that is to say those joint-stock companies in which the State or other public bodies hold all or most of the shares or, in any case, a sufficient number to ensure, even in fact, the control of the company[59] (State-Owned Enterprises-SOE). Examining the practice, not only in terms of human rights but also international terrorism, would leave no doubt about the emergence of the concept of "continuous complicity" consisting of "military, financial, logistical and organizational support" that the State provides in a stable way to an organized group, which can be a multinational company, "for the achievement of internationally illegal objectives, on which both the will of the State and the will of the group converge". Here emerges a connection between the theory of state responsibility and the so-called Drittwirkung concept, that is to say the horizontal effectiveness of international human rights norms, particularly those of a contractual origin, in inter-private relations and not only in those between State and individual.

Suffice it to consider with regard to the exceptional hypotheses, the case in which the State adopts the behavior of individuals, as happened for the hostages in Tehran[60], where the behavior held by Islamic students at one point has been endorsed by the State[61]. Finally, the case in which the State can be held responsible when it exercises control over the individual acts committed by individuals by excluding the so-called global control. The acts put in place are subject to control or to the management of the State and therefore the injurious event is immediately imputable to it[62]. Finally, we examine the damage can be material or moral.

The first consists in an economic and patrimonial prejudice to the interests of a State; the second is the prejudice caused to the dignity and honor of a state. According to the ICJ, however, the damage is not considered in the illicit, since it is constituted only by the injury of a subjective right. Thus the case of an offense can also occur without material or moral damage. Furthermore, guilt is not a constitutive element of the unlawful act, including both the fraud and the fault[63]. The subjective element can be operative only when there is an explicit recognition of the norm and, obviously, it will never be imputable to the State, as an abstract entity, but only to the individual-organ. In the case of hostages in Tehran, the ICJ charged Iran with the commission of the offense for failing to activate the prevention measures necessary for the protection of American diplomats[64]. In fact, the liability regime normally applicable in the relationship between states as a result of offenses requires the existence of material or moral damage as a necessary objective requirement. Having identified the essential elements of liability for illicit fact, the question that arises in practice is: when the illicit conduct of a Multinational Enterprise (IMN), therefore of a subject "other" than the State, involves international responsibility of the latter? Given the above illustration on state human rights obligations, the circumstances that can determine such liability according to our opinion are: 1.the case where an IMN takes a behavior contrary to international human rights law and this behavior it is attributable to the State, determining the international responsibility of the latter for the violation of the obligation to respect human rights; 2.If an IMN adopts a behavior contrary to international human rights law which is not in itself attributable to the State but in respect of which the State has not taken appropriate measures of prevention and sanction, determining the international responsibility of this last for the violation of the obligation to protect human rights. In general, in order for a state behavior to be qualified as "internationally illegal", giving rise to the responsibility of the State, there must be two elements: a. The attribution of the behavior, active or omissive to the State; b. the contrariness of the behavior, active or omissive, to an international obligation, of any kind. First of all, it should be noted that the need to ascertain the attribution of the behavior to the State also exists in the case of MN owned or controlled by the State: in fact, since these are generally companies in which the State is a single shareholder or majority shareholder State controls through intermediary holdings of public ownership that owns the shares, such IMN are entities endowed with distinct legal personality and, therefore, not automatically assimilable to the State. In principle, the conduct of an IMN (like that of any other "private" actor) can be attributed to a State if the conditions codified in the draft article on the responsibility of States for internationally unlawful acts are satisfied (2001)[65]. The problem that remains to be faced is that according to which the multinational company can be held criminally liable for the violation of human rights. It is possible to compose an adequate normative substratum, starting from the draft of the St-ICC[66].

The problem concerning the regulatory coverage is soon solved, but what is causing difficulties are the identification of the elements constituting the criminal responsibility of the multinational companies and the direct imputation of the violation of human rights. The responsibility of multinational companies for international crimes, at present, can be solved in two ways: a) not to intervene with the sanctions, but this would mean leaving the conduct of multinational companies unpunished; and b) report the conduct of multinational companies to the host State[67].

The consequences that derive from this are well known, considering that the international offense which is materially prejudicial to the rights of individuals is subject to the jurisdiction of the State that is the author. On the other hand, as regards the first profile, there is the risk of making unpunished the conduct of multinational companies violating indirectly the principle of legality and directly the principles underlying the international community. In other words, if the system of international law does not operate the instruments envisaged by the legislation examined above for the protection of human rights, a double violation of the latter can be determined. Consequently, the need to activate suitable instruments provided for by the international legal system makes it possible to use an instrument suitable for finding the direct imputability of multinational companies, ie the extensive interpretation[68].

It is known that the penal system repudiates the analogy, but at the same time allows extensive interpretation. Consequently, even for the multinational companies it will be possible to find, as a result of the extensive interpretation, the existence of the constituent elements of the unlawful act[69]. Both elements (subjective and objective) are directly attributable to the conduct of multinational companies, which can be understood as an active conduct or an omissive conduct. In other words, the conduct may be active when the companies directly violate the provisions of the law protecting human rights for their own profit, causing incident effects on individuals, which are permanently located in the area where multinational companies operate; instead, the conduct is omitted, when the multinational companies fail to adopt the prevention measures (which could correspond to the c.d. compliance programs)[70] aimed at reducing or eliminating the offensive consequences deriving from their conduct to the detriment of human rights. Ultimately, having ascertained that the activity of multinational companies is covered by the norms of international organizations and that the extensive interpretation of the essential elements constituting the illicit fact of the State is admissible, multinational companies can be responsible for international crimes[71] “(...)governmental regulation still remains the most significant level of regulation. Emergent regional and multilateral regulatory orders remain insufficiently developed to replace the nation State as the principal focus for the regulation of MNEs, while informal and regulation by non-state actors is likely to be selective and probably self-serving“[72].

The jurisprudence confirmed the existence of the direct responsibility of the multinational companies following the violations of human rights. American jurisprudence establishes the conditions for inciting an appeal under the Alien Tort Act. Reference is made to the decision of the Second Circuit Court of Appeals in the Filártiga case v. Peña-Irala[73] and the subsequent decision of the same Court in the Kadic case v. Karadi[74]. Regarding the first decision, the Federal Court extended the application of the Alien Tort Act to violations of international human rights law committed by an individual. On the other hand, the second case allows the Court to add that private conduct can, in the case of genocide and war crimes, integrate a breach of international law that can be compensated in accordance with the applicable legal provisions on the matter. It should be noted that, generally, violations of human rights presuppose State action, as emerges in acts of torture. In such cases, the personal responsibility of a private individual could arise only if the private individual acted at the same time as the action of the State involved. Ultimately, the decision in this case appears to be particular in that it allows an appeal to be raised under existing legislation against a private person for the direct violation by the latter of international human rights law, if such violation excludes the intervention of a state. On the other hand, in the case of offenses that presuppose the intervention of the State, the private entity can be considered complicit and concurrent with the State as we have noted in the case Doe v. Unocal[75].

The Court of Appeals of the Ninth Circuit has, for the first time, applied such clarifications of the Alien Tort Act to a multinational company. The Court took a position with respect to the US multinational company, which was held responsible for complicity with the host state (Myanmar) for seriously offending the human rights of Burmese citizens through despicable actions (in particular summary executions, sexual violence and work forced). From this it emerges that a civil liability of multinational companies can derive from the Alien Tort Act when serious actions are carried out such as to integrate the "jus cogens violations" (for example, torture, slavery, forced labor and summary executions).

The New York District Court also ruled on this point in the Presbyterian Church of Sudan v. Talisman Energy Inc.[76], stating that, in the presence of serious violations of human rights, the criminal liability of multinational companies would be the general rule, never the exception2[77].

Regarding the Alien Tort Act, the case of Royal Dutch Shell (RDS) operating with the publicly owned NNPC company[78]. The RDS, a multinational company, has been settled before the US courts twice and, precisely, in the case Wiwa et al. v. Shell[79] and in case Kiobel et al. v. Shell[80]. The cases indicated refer to the alleged complicity of the RDS, through the subsidiary Shell-Nigeria, in the serious violations of human rights carried out by the Nigerian military junta against the Ogoni people. The residents of the area, object of the RDS's activity, began to protest against the oil company because it had polluted and destroyed the local ecosystem. Furthermore, in the case Kiobel et al. v. Shell[81], the applicants claimed that Shell-Nigeria paid the members of the Nigerian army[82]. Regarding the case Wiwa et al. v. Shell the applicants accused the Anglo-Dutch multinational company of having "directed, ordered, confirmed, ratified, and/or conspired with the military regime"[83] in the commission, of summary executions of the group "Ogoni 9", of crimes against 'humanity, torture and other cruel, inhuman or degrading treatment, arbitrary arrests and detentions, violations of the right to life, liberty, personal security, as well as the right of association and peaceful assembly, illegal killing, aggression and mistreatment[84].

In addition, they also blamed Shell, more generally, for negligence and for violating the US Racketeer Influenced and Corrupt Organizations (RICO) Act[85]. The other case law to refer to is the case Kiobel et al. c. Shell, where the charges were the same as in the Wiwa case, in addition to the additional charges of forced exile and destruction of property. The three appeals relating to the Wiwa case v. Shell settled on June 8, 2009 out of court with an agreement between the parties, which ordered compensation of $ 15.5 million to the applicants, of whom 4.5 million for the creation of a trust fund, "The Kiisi Trust" "helping defendants portray the settlement as a humanitarian gesture" rather than an implicit acknowledgment of fault (...)"[86]. The case Kiobel et al. v. Shell, on the other hand, ended (unfavorably for the applicants) on 17 September 2010 with a ruling by the Court of Appeal. The ruling is relevant because the jurisdictional conditions are established to resort directly to the multinational corporations carrying out international crimes. In the Kiobel case, the judicial requirements for the application of the Alien Tort Act start, which are identified as follows: 1) the applicant's foreign nationality; 2) the commission of a civil offense by the defendant; 3) the violation of a customary norm of international law or of a treaty ratified by the United States. According to the Court, if the defendant is a legal person, it must be ascertained in what terms the violation of a customary norm of international law or of a treaty ratified by the United States may exist. In particular (ie, the third requirement mentioned above):“(...) we must ask whether a plaintiff bringing an ATS suit against a corporation has alleged a violation of customary international law (...)“[87]. The Court has therefore held that it should be international law and not the US "municipal law" to define the applicability of the Alien Tort Act with regard to companies, as suggested by the Supreme Court itself in the Sosa case: “a related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or an individual“[88]. This is known as the “Holmes test” because it finds its clearest expression in Justice Holmes’s opinion (American Well Works Co. v. Layne & Bowler Co.34). Since the general federal question statute is narrower in scope than the “arising under” clause of Article III, 35 any suit that satisfies the Holmes test necessarily falls within the scope of Article III. It is also clear that a suit that arises under federal common law arises under the “laws of the United States” within the meaning of section 133 and hence also within the meaning of Article III. The section 1350 easily satisfies Article III insofar as it grants the federal courts jurisdiction over the federal common law[89] cause of action recognized in Sosa[90]. The Court of Appeal therefore wondered whether, under customary international law, a multinational company could be held responsible for international crimes:“(...) together, those authorities demonstrate that imposing liability on corporations for violations of customary international law has not attained a discernible, much less universal, acceptance among nations of the world in their relations inter se. Because corporate liability is not recognized as a “specific, universal, and obligatory” norm, it is not a rule of customary international law that we may apply under the ATS (...)“[91].

The Court also referred to the statement by the Nuremberg Military Criminal Court that "crimes against international law is committed by men, not by abstract entities"[92]. Ultimately, only individuals can be accountable under international law for international crimes, thus excluding juridical persons. Therefore, the defendants in the Kiobel case were companies and the Court decided to dismiss the appeal, for lack of jurisdiction ratione materiae. Furthermore, on 4 February 2011, the Court refused to re-examine the case requested by the applicants in October 2010. The only possibility for victims could be to bring an appeal against individuals who have operated "on behalf of corporations". Ultimately, the case studies examined confirm the absence of direct responsibility of multinational companies[93]. In June 2005, an appeal against Shell-Nigeria by the Nigerian citizen, who acted as a representative of the Iowakan community of the Niger Delta State, was incriminated before the Nigerian Federal Court of Benin City[94]. The applicants accused the company of having violated: a) articles 33 (1) and 34 (1) of the Nigerian Constitution of 1999[95], which enshrine, respectively, the right to life and the right to the dignity of the human person; b) articles 4, 16 and 24 of the African Charter of Human and Peoples' Rights (ACHPR), concerning the right to life and the integrity of the human person, physical and mental health and a satisfactory environment; -art. 2 (2) of the Nigerian Environmental Impact Assessment Act, which requires companies to carry out an environmental impact assessment in case of highly polluting practices. The present case concerned, in fact, the practice of the so-called gas flaring[96], which consists of the open-air combustion of gases associated with oil during extraction phases and which is banned in industrialized countries because of its harmful effects on the environment. Also in Nigeria the gas flaring process was restricted by the law in 1984; but, in any case, it is foreseen that companies can, in special cases, obtain a ministerial certificate that authorizes them. The applicants complained that Shell-Nigeria and its related companies had caused considerable environmental pollution as they had not bothered to carry out an environmental impact assessment (as required by the Nigerian law)“massive, relentless and continuous gas flaring in their community“[97].

The gas flaring practices implemented "in open and uncontrolled manner"[98] by the two companies involved, compromised the health of local inhabitants, causing them serious respiratory illnesses, when not even death. In November 2005, the Nigerian Federal Court recognized the violation by Shell-Nigeria of the claim to the life and human dignity of the applicants claiming that these rights "inevitably include the right to clean poison-free, pollution-free and healthy environment"[99]. Furthermore, art. 3 (2) (a) and (b) of the Associated Gas Re-Injection Act (which derogates from the general prohibition of gas flaring) has declared unconstitutional, null and void, ordering Shell-Nigeria and the NNPC to suspend this practice and to take immediate measures in order to permanently interrupt it in the territory of the Iwherekan community[100]. The jurisprudential case, differently from the previous one, makes it possible to support the existence of the responsibility of multinational companies for the violation of human rights, but as it emerged, there are strong limits to enforce the sentence. From this impossibility emerges the need for the international system to implement the instruments that are present in the legal system. In fact, the victims could have resorted to civil courts for compensation for damages suffered or in administrative cases for the revocation of the authorization to continue in the practices of gas flaring, granted to the two companies involved. However, the civil proceeding would have led to the difficulty of proving a causal connection between the polluting practice and the environmental and physical damage suffered by the applicants (and a greater need for technical expertise) and could not in any case order the interruption of the flaring gas. The administrative appeal, in addition to confirming this last limit, presented further procedural problems related to the lack of transparency of the authorization management mechanisms. Finally, the ascertainment of the criminal responsibility for international crimes could be subject to the same obstacles, but it should not be overlooked that the interpreter should impute criminal action by sticking to the objective element and the subjective element. In particular, the regulatory coverage and the presence of the constituent elements of the illicit fact that can be extended to multinational companies, would allow to criminalize the violation of human rights and, presumably, to achieve an immediate result by bypassing the restrictions of the connection establishment causal place for the protection of multinational companies.

Equally important, the case of the diamonds in blood is the most current issue and serves as a test bed for the direct and even criminal responsibility of the multinational companies for the violation of human rights. The case of the bloodstained diamonds takes its origin in the mid-nineteenth century when the first diamond was discovered in South Africa and the Kimberley deposits were also opened. The diamond mining sees the African countries in the foreground, in fact half of the diamonds extracted comes from central and southern Africa[101]; Democratic Republic of Congo, Angola, Botswana, South Africa, Zimbabwe and Central African Republic are the main producing countries. A peculiarity of the Central African state compared to other producing countries is the absence of large mining companies. In fact, the reality confirms that to derive greater profits from the sale of diamonds it is not the State itself, but unscrupulous mediators, guerrillas and law enforcement agencies who smuggle them and sell them for sums derisory to the big multinationals. The problem of illegal diamond trade is not new, especially in Africa[102]. The diamond trade has affected Sierra Leone, where the rebel group Revolutionary United Front (RUF) controlled diamond areas to sell diamonds to multinational companies and obtain money for the purchase of weapons and war material. The RUF was held responsible for war crimes and against humanity. In 1997 the Security Council banned the sale of oil to Sierra Leone, but nothing said about the diamonds[103].

Only in 2000 did the Security Council intervene and banned the Member States from buying diamonds from Sierra Leone, which, for its part, had to certify diamonds, so to speak, legal and distinguish them from the bloody ones coming from the exploitation of individuals.

In the same years the Council established a group of experts who had to monitor the traffic of diamonds and had to verify the connection between the diamonds sold to multinational companies and the purchase of war material. In this context, the problematic concerning the multinational companies arises, which, for years, have purchased diamonds in blood that have been damaged[104]. As mentioned earlier, this represents the test bed of the criminal liability of multinational companies, as the jurisprudence is still not pronounced in this regard. Regarding their conduct, it is claimed that it is the result of the violation of human rights and this would be sufficient to integrate criminal responsibility. But, faced with a necessary assessment of the specific case, it can be argued that the conduct of the multinational companies is suitable to integrate the anti-juridical conduct and the related imputability. In this way, the position supported so far is maintained, which allows to find the penal responsibility in relation to the so-called extensive interpretation. Returning to the intervention of the Group of Experts, following the investigation, it emerged that the Liberian Government was also involved and supported the work of the RUF.

As is known from here the trial was derived from President C. Taylor[105], who became responsible for acts of terrorism, murder, rape, kidnapping and exploitation of child soldiers. In exchange for the material and tactical support given to rebel groups, he obtained diamonds extracted from enslaved workers. C. Taylor was convicted by the Special Court of Sierra Leone (SCSL) and also by the SCSL for behaviors that have harmed the victims and for threatening the international stability and security of West Africa[106]. The Security Council also adopted penalties for the trade in rough diamonds against Angola as the trade in precious stones fueled civil wars[107]. Despite the intervention of the Security Council, the traffic of bloodied diamonds resisted. In light of this, the United Nations General Assembly adopted new instruments and defined the conflict diamonds: "rough diamonds which are used by rebel movements to finance their military activities", including attempts to undermine or overthrow legitimate Governments"[108]. Furthermore, the Assembly invited all the countries of the United Nations to adhere to the "Kimberley Protocol" based on consultations of the various heads of government that determined the establishment of the Kimberley Process Certification Scheme (KPCS), a certification agreement signed by several Countries with the aim of ensuring that the profits obtained through the sale of diamonds do not serve to finance civil wars or other phenomena of violence. The real novelty consists in the fact that it consists of the international certification system, suitable for tracing the entire path of diamonds, from extraction to cutting. The participation of the European Union in the Kimberley process also contributes significantly to the success of the latter, since in Europe there are mineral processing centers, such as Antwerp and London, which in the past have attracted large quantities of "bloody" diamonds. In implementation of the Protocol, the Council of the European Union adopted Regulation n. 2368/2002 of 20 December 2002[109], which requires the Member States to establish an internal Community authority to monitor the imports and exports of diamonds affecting the Union.

In conclusion, the examination of case law allows to find the absence of a univocal orientation, but, for sure, the cases examined did not absolutely rule out the existence of the criminal liability of multinational companies, but rather was recognized and linked to a concrete assessment of the factual situation in order to verify in what terms the violation of human rights is carried out[110].

The position of guarantee, in particular of control, of the superiors, asserted itself as a consequence of the decentralization of the armed forces, which made it possible to identify the privileged observers of the subordinates precisely in the commanders of the peripheral units. The legal nature of this responsibility, whose value is emphasized with respect to that of subordinates, is still oscillating: from responsibility for the subordinate, to responsibility sui generis[111] for non-fulfillment of the duty to control the work of subordinates, to responsibility for complicity, in the form of moral or material competition.

On the defining side, various options have alternated: responsibility for a fact committed by others[112], which is reflected in a normative transposition in the statutes of the ad hoc Tribunals; type of individual criminal responsibility for the illegal acts of subordinates; type of imputed responsibility or indirect responsibility[113], and finally dereliction of duty, in the presence of a reprehensible failure to perform an act required by international law[114]. The alternation of these definitions did not produce purely terminological effects. In fact, the construction of the case focused on the dereliction of duty has the merit of reporting the institution of responsibility by command in the course of responsibility for culpable fact, but has the demerit of not dissolving the Gordian knot of the link between the guilty omission of the superior and the crime committed by subordinates[115].

What is certain is that, when the responsibility as a hierarchical superior lives with a responsibility deriving from a direct participation in the crime, it is the latter to establish the imputation, while the command responsibility is degraded to aggravating[116]. It is common for the command responsibility to be marginalized, favoring the institutions of the People's Competition or the Joint Criminal Enterprise (JCE)[117], despite presenting not a few friction points with the principles of criminal responsibility. Arguably, there is even the accumulation of responsibilities, configuring, at the head of the hierarchy, contextually direct responsibility and responsibility by command. It is also the amplitude of the notion of complicity that makes the boundaries between responsibility for competition and responsibility to be fluid and to determine double imputations, sometimes stigmatized by jurisprudence[118].

This is demonstrated by the difference between the solutions offered by the ad hoc Tribunals and those from the ICC, as well as the ambiguity of the latter. The reason is to be found in the massive nature of international crimes[119], and in the difficulties inherent in the control to be operated in macro-levels. Just think of the case Yamashita, declared responsible by the Supreme Court of the United States for allowing his men to commit atrocities[120]. In his dissenting opinion Judge Murphy based his dissent on the verdict, based on the absence of knowledge in which the defendant was involved, as well as the lack of direct links with the atrocities committed.

Not too much has changed from the case law to the Ðordevic case[121], which has declined the factors that govern the existence of effective control: power de jure, precise knowledge of events, role-pivotal in the coordination of operations, presence in the territory, active role in operations and information received simultaneously with the facts constituting international crimes. As mentioned, on the regulatory level, the responsibility of the superior can be traced back to two different paradigms: that of direct responsibility, consequent to a personal contribution, material or moral, governed respectively by art. 25 par. c) and b)[122], and the responsibility of command, governed by art. 28 of the StICC. The latter provides for the "indirect" responsibility of superiors for crimes committed by subordinates, structured in a subsidiary form compared to the "direct" one corresponding to the issue of orders (article 25 subparagraph 3, letter b) or participation in criminal organizations (article 25 subparagraph 3, letter d)[123]. From a formal point of view, the disposition is divided into two parts, corresponding to two different disciplines: the first concerning the relations of military subordination; the second, accessory, concerning all non-military superiors (paramilitaries, heads of irregular militias, armed bands, civilians and politicians).

Article 28 of the StICC contemplates a specific form of responsibility of the hierarchical superior for the crimes committed by his subordinates, interpreted by the doctrine, on the basis of the structure of the case, as a form of negligent omission of the superior in the offenses of subordinates or as form of autonomous responsibility for culpable facilitation of an intentional crime. On the basis of this rule, it is basically aimed at criminalizing the inertia of the commanders and superiors of the hierarchy, thus affirming the superior's responsibility for making the commission of crimes committed by the negligence or superficiality possible or easier for the subordinates prevent or for not having proceeded to their punishment. Faced with the often omission of the responsibility of the superior, underlined by the jurisprudence of ad hoc Tribunals[124],one can not help but remember another dissenting opinion, which moves on the same guaranteeing logic as the previous one: that of Judge Shahabuddeen in the Hadžihasanović case[125], which emphasizes that the hierarchical superior should not be held responsible for the crimes committed by subordinates in the absence of subjective element and any type of participation in the realization of the typical fact, unless, in fact, did not know or had a way to know.

With this in mind, it has been clarified that superiors can not be held responsible for crimes committed before being invested with power and being able to effectively exercise it[126]. Tuttavia, non mancano orientamenti più restrittivi e probabilmente più funzionali ad esigenze repressive. The Hadžihasanović ruling is just one of the three important rulings that the Appeals Chamber of the ICTY has recently issued regarding the command responsibility, in addition to the rulings Orić and Strugar[127].

Also from the reading of the Statutes of the International Criminal Tribunals, as well as from the jurisprudence, it is given to extrapolate the assumptions of the responsibility of the superior: the bond of subordination; the subjective element constituted by the actual knowledge ("knew") or potential ("had reason to know")[128] and the failure of the obligation to prevent or punish subordinates[129].

The bond of subordination, even if temporary[130], indirect or mediated[131], is the source of the guarantee position, therefore of the legal obligation to prevent the event, because it is in this bond that the superior's power to control the subordinates rests. The subordinate superior bond is directly linked to the problem of identifying subordinates[132]. To the bond of subordination is added[133], for civil or political superiors, "the inherence" of the crimes committed by the subordinate to his own service activity, which however risks introducing an unequal treatment with respect to the other hypotheses. It is not said that a guarantee position must be present, because in many cases the jurisprudence of the ad hoc Tribunals disregards it, recognizing a facilitating character also to the omissive conduct of those who were not obliged to prevent crimes, in the absence of the superior-subordinate relationship or other source of the obligation to act[134].

In this way, an exemption is introduced to the fundamental assumptions of the omissive responsibility and a questionable extension of the details of the insolvency liability[135]. It would seem to be required, to configure the omissive responsibility, a duty to act to be found beyond the criminal law stricto sensu intented[136], therefore a position of guarantee, whose source is variously identified: by the laws and customs of war for the Appeals Chamber of the Mrkšić case[137], to international humanitarian law, to positions of authority or to the situation of danger previously caused for the Trial Chamber in the Orić case[138]. Until the Šljivancanin case, in which the right of armed conflicts was invoked[139]. The lowest common denominator of this jurisprudence is precisely to be directed towards finding a source of the obligation to act, even found in national rights, instead identifying in the laws and customs of war an alternative source[140]. The same casuistry on the configuration of the duty to act is rather rich but above all the duty to act incardinated on the responsibility of position stands out: think of the case Mucić[141] and the case of Bala, Musliu, Murtezi[142]. If, on the side of the individual criminal responsibility[143], first stop on the physical and personal perpetration of the crime, it is noted that the concept of "commission" has been expanded[144],conflicting tendencies are found in the case law on the commission by omission. But the same jurisprudence tries to contain such tendencies by requiring that the commission by omission presupposes an obligation to act[145]. The doctrine, however, believes that the question of the position of guarantee is marginal if we consider that art. 28 of the StICC does not establish a general clause of extension of the punishment through the asserted equivalence between the act and the omitting, but proceeds to the typing, even if incomplete, of the omissive case, through the identification of the obliged subject, the description of the proper conduct and the indication of the specific subjective element.

Control must be effective, and must result in the material possibility of preventing or punishing criminal behavior[146]. This capacity can find its foundation in official functions, in de jure or de facto[147], and in the place occupied within the military or political hierarchy. Not even an appreciable influence can be compared to an effective control, drawn from specific indices[148]. The fact that there is a de jure power does not imply, at least until proven otherwise, the effectiveness of control[149]. The Appeals Chamber in the Hadžihasanović and Kubura case confirmed the Čelebici orientation, and also ruled out legal presumptions and reversals of the burden of proof in this regard[150]. Also in the Orić case it has been confirmed that de jure power is not synonymous with effective control, it is only one of the factors from which to infer the existence of the effectiveness of control[151].

With regard to the subjective element, the required standard fluctuates from fraud[152], with further complications for cases that require a specific intent, to negligence so serious as to be assimilated to acquiescence, to pure and simple negligence[153]. To the variety found on the subjective side is added, however, a multiplicity of situations compatible with the omissive responsibility of the superior: from the omission combined with the choice to be present (approving spectator) that proves to be instigating[154], to the similar presence nearby, until absentee facilitator.

The offense that contemplates the responsibility of command is sustained by subjective attitudes, in derogation from the general subjective parameter of the intent and knowledge of art. 30 of the StICC, but both in the case of fraudulent and negligent liability, there is evidence of evidential simplifications. However, in the case of Brđjanin, jurisprudence denounced the tendency to impute such a form of responsibility for competition in the crime based on the passive presence at the scene of the crime, through a series of presumptions and presumptive deductions. An essential role assumes the available information.

We need an effective knowledge[155] that the subordinates had committed or were committing a crime[156], or potential, deriving from the possession of exhaustive information[157] or that are in any case such as to lead to investigations. No intrinsic limitation of the relevant information is established, either in terms of the form, oral or written, or the official character of the same. It is possible to draw the effectiveness of the knowledge from circumstantial elements[158]: the number, the type and the extent of the illegal acts imputed to the subordinates; the era of facts, the weapons used; the logistical means put in place; the places where the crime was consummated, their breadth; the times of evolution of the operations; the methods for carrying out illegal acts; the officers and the people employed; the place where the superior was at the time of the events. By way of example, it will be difficult to prove an effective knowledge in the face of a great physical distance between the place where the superior was located and the one in which the crime was consumed, on the contrary, instead, in the face of proximity and reiteration[159].

Effective knowledge is even more easily demonstrated if the superior is part of a structured organization that has information and surveillance systems[160]. The superior has the right to know when he has information that will allow him to know about the crime or anyway information that is so alarming that it leads to inquiries for obtaining feedback[161]. No detailed information is necessary, but it is sufficient that they are general[162], being sufficient also the violent or unstable character traits of certain soldiers or their criminal reputation, provided they are subordinates[163]. No constant control is necessary, but only in relation to certain revealing indices[164]. In fact, the by-laws adopted the so-called theory of alarm signals, through which he wanted to limit the duty of inquire of superiors: in the presence of certain information, from which he could clearly deduce the commission of offenses by the subordinates, the superior can not neglect to evaluate them for the purposes of his due determinations. It is clear that the information must present a margin of evaluation, otherwise it would fall under the hypothesis of full knowledge, with consequent change of the subjective title of responsibility. Among other things, also regarding information, there is a linguistic problem that lurks in the discrepancy between the English version (information which clearly indicated, that the subordinates were committing or about to commit such crimes) and the French one (informations leur allow conclusion)[165] of the standard, a difference that also affects the subjective element, because only the French version emphasizes the mere objective fact of the availability of information, regardless of their suitability to be symptomatic of crimes[166], given the circumstances[167], to prevent crime or punish the perpetrators. The effectiveness and reasonableness of the measures must be proven case by case[168] on the basis of further indices: the orders given, the measures taken to make them executive, the measures aimed at ending illegal acts, the initiation of adequate investigations to bring out the crime or to bring the guilty to justice. Given the need to contextualize the adequacy of the measures so that the superior can avoid the omissive responsibility, it is as if, from the general obligation, one could derive a particular. The obligation to prevent is separate from that of punishing. Concerning the obligation to punish, the Appeals Chamber in the Krnojelac case[169] considered that leaving the crimes of subordinates unpunished can not be considered proof of the superior's knowledge of the future commission of crimes, and therefore does not reach the threshold of had reason to know. Evaluation must always be a case[170]. However, in the most recent case Gotovina[171], it was emphasized that creating a climate of impunity among subordinates produces an encouraging effect in the commission of crimes.

The pronunciation Boškoski and Tarćulovski[172], was no less incisive, in which the hierarchical superior was deemed to be exempted from the obligation to punish by notifying the competent authorities and soliciting the opening of inquiries, thus fully fulfilling the duty of inquire. It is not necessary that there is a causal link between the action or the omission of the superior and the perpetration of crimes[173], and the discrepancies found in the same jurisprudence because, if such a link is required, it would mean demanding a necessary involvement of a material nature or psychic, thus distorting the responsibility of the superior[174].

In general, the international legislator in the discipline of the competition of people does not contemplate the causal contribution to the consummation of the crime. This inevitably leads to the marginalization of the relevance of the contribution, which must not necessarily have an etiological efficacy, as long as it is in some way directed to favor the plan or the purpose[175]. Some conclusive observations on the structure of art. 28 of the StICC as the norm in several cases, whose omissive conduct is alternatively related to the prevention of crimes, punishment of the perpetrators or, in a totally innovative way, to the collaboration of the superior for justice purposes: a conduct previous or subsequent to the crime, whose roster realizes an indictment in the sense of "progressive-dependent"[176], depending on the crime committed, the position of the superior and the degree of collectability of the dutiful conduct assessed case by case. What has been outlined above is, essentially, the responsibility of superiors for complicity in an omissive form. More complex is the "mapping" of the dogmatic transpositions offered to the various commissions, and can be understood only by retracing the jurisprudence on the subject, from that of the ad hoc Tribunals, to that of the ICC. In the jurisprudence of the ad hoc Tribunals, to impute crimes to the leaders, we use the institute of the competition[177], declined through planning, instigation and direct order. For the planning activity, on which the jurisprudence has focused a lot[178], the importance of consumption is considered controversial, considered necessary by the majority jurisprudence[179], except for isolated rulings[180].

Behind the conduct of ordering, part of the jurisprudence hides a form not of complicity but of self-mediated with consequent attribution of primary responsibility to the hierarchical superior[181]. A concept of author and coauthor of a teleological and non-formal character is applied, which makes it possible to equate the conduct of the hierarchical superior who imparts the criminal order to that of the author, by virtue of his lordship over the fact. In particular, a teleologically oriented conception of auteur is accepted, based on the criterion of the domain of conduct. In practice, international jurisprudence, in particular that of the ICTY, on the basis of this teleological notion, which is very different from the formal one, succeeds in making the co-author notion anybody contributing to the JCE, and the Tadić case it's an example. It is just one of many examples of how we can expand the mesh of the responsibility of hierarchical superiors, probably because the narrow confines of command responsibility are not suited to repressive needs.

In particular, we can say that the positive solution proposed in relation to the criminal liability of multinational companies for international crimes is certainly not an exhaustive solution since there is still no unanimous opinion on the matter. The decision to address the issue from a different perspective angle moves from the desire to use existing tools and interpret the current legislation to guarantee the values of the international community. In other words, it was decided to offer an incriminating solution that serves as an extrema ratio for the criminal penalties that are imputable to multinational companies and which completes the sanctioning apparatus of international law. The solution offered was the result of a reconstruction that started mainly from the examples of national laws, but it should not be overlooked, even in the general conclusions, that the penal responsibility of the multinational companies was expressly foreseen and regulated in the draft of the St-ICC. As a consequence, the presence of such authoritative regulatory source was read in conjunction with the current legislation and with the jurisprudential contribution. Specifically, after examining national and international legislation and case law, it was possible to find that the elements constituting the illicit act can be the subject of extensive interpretation. Consequently, making use of the extensive interpretation would result in the indictment of the illicit conduct without derogating from the principle of legality and its application corollaries. Moreover, through the extensive interpretation it would be possible to dispose of the means present in the international order, guaranteeing the widest protection to the values of the international community. Ultimately, it is reiterated that the solution proposed in this regard does not want to be exhaustive of an issue that has a considerable operating scope and that has proved to be connected with various factors (economic, political and social) not always easy to understand.

I will conclude with the words of the International Military Tribunal, which famously noted that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced(...)”[182]. The same idea on the need to effectively protect human rights in the light of new challenges is echoed in the discussion of the responsibility of transnational corporations. What has changed is the legal subject whose responsibility is in question; what remains is the need for the international legal order to face the reality of today.

COMO CITAR ESTE ARTIGO: LIAKOPOULOS, Dimitris. Criminal liability and compulsory in international criminal justice: the case of corporations. Revista de Direito da Faculdade Guanambi, Guanambi, BA, v. 5, n. 2, p. 13-91, jul./dez. 2018. doi: https://doi.org/10.29293/rdfg.v5i2.216. Disponível em: http://revistas.faculdadeguanambi.edu.br/index.php/Revistadedireito/article/view/216. Acesso em: dia mês. Ano.

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