The first ad hoc tribunals were created after the Second World War to prosecute international criminals, mainly German and Japanese:
- The Nuremberg International Military Tribunal, established in 1945 by an agreement between the United States, the United Kingdom, the USSR and France.
- The International Military Tribunal for the Far East, established in 1946.
In their contemporary form, International Criminal Tribunals are non-permanent courts usually created by the United Nations Security Council on the basis of Chapter VII of the UN Charter, regarding action with respect to threats to the peace, a breach of the peace or an act of aggression.
Several ICTs were created by the Security Council:
- The International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993
- The International Criminal Tribunal for Rwanda (ICTR) in 1994
- The International Residual Mechanism for Criminal Tribunals in 2010, to perform the remaining functions of the ICTY and the ICTR following the completion of those tribunals’ respective mandates.
More recently, the UN, with the States concerned, created hybrid criminal tribunals (the creation, composition and operation of which is assured by both the United Nations and the State in question):
- The East Timor Panels, in 2000
- The Special Court for Sierra Leone (SCSL), in 2002
- The extraordinary Chambers in the Courts of Cambodia (eCCC), in 2004
- The Special Tribunal for Lebanon (STL) in 2007
- The Special Criminal Court for the Central African Republic (SCC), in 2015
- The European Union and Kosovo also created the Kosovo Specialist Chambers and Specialist Prosecutor’s Office (« Kosovo Chambers »), in 2016.
The statutes of currently operational international tribunals do not provide for the criminal prosecution of state bodies, state-owned or private legal entities. Their jurisdiction is limited to individuals (state officials or private individuals). Prosecution is thus limited to business leaders (and not the companies as legal persons).
Gustav Krupp, a business leader whose company had provided Germany with most of its arms during the Second World War, was indicted, yet plans to prosecute him at the Nuremberg International Military Tribunal were dropped due to his ill health. But several US military trials that followed led to the conviction of industrialists for serious crimes or complicity in the Commission of such crimes:
- 1947-1948: The United States of America v. Alfried Krupp, and al. This trial led to the conviction of several members of the Krupp family for crimes against peace and crimes against humanity.
- 1947-1948: The United States of America v. Carl Krauch, and al. This trial resulted in the conviction of several German industrialists of the chemical group IG Farben, the producer of Zyklon B gas, for war crimes and crimes against humanity.
The private economic parties before the ICTR
The ICTR Appeals Court confirmed on 16 November 2001, the sentence of life imprisonment rendered in first instance on January 27, 2000 – against the former director of the Tea Factory Gisovu (Kibuye, western Rwanda ), Alfred Musema, for the crime of genocide and extermination understood as a crime against humanity (Case ICTR-96-13-I). Alfred Musema, the largest employer in the area, lent vehicles, drivers and employees of his factory to transport the killers to the massacre sites in Rwanda. 1
In the Decision of the Court of First Instance ruling on the motion filed by the Prosecutor to obtain a formal request for a deferral to the International Criminal Tribunal for Rwanda (pursuant to Articles 9 and 10 of the Rules of Procedure and Evidence), rendered March 12, 1996 (ICTR-96-5-D), it was stated the following: “since his investigations target mainly people in positions of power, the Prosecutor considers that the criminal responsibility of Alfred Musema could be paramount. Indeed, Alfred Musema was director of the tea factory Gisovu (Kibuye prefecture). He used this position of director to aid and abet the execution of serious violations of international humanitarian law. More specifically, he is presumed to have been seen several times on the massacre sites […]. In addition, vehicles of his factory are alleged to have been used to transport the killers to the massacre sites. His employees and drivers were also regularly present”. 2
In relation to the moral authority of a company over its environment by its mere presence, an expert witness in the trial recalled that Alfred Musema had a definite influence on the population: “In my opinion, a director of a tea factory, with all that this position represents in the overall distribution of resources, had considerable influence on the local population and municipal authorities” 3 . It is interesting to compare this analysis with the decision rendered by the ICTR in the Prosecutor v. Jean-Paul Akayesu case, of October 2, 1998 (Case No. ICTR-96-4): a passive witness who is viewed by the other perpetrators in such high esteem that his presence amounts to encouragement, can be convicted of complicity in crimes against humanity. 4
This decision is not an isolated one. In the case of The Prosecutor v. Ruzindana, the Prosecutor stated on October 28, 1998 before the ICTR, that Obed Ruzindana, was a well-known and respected businessman in Kibuye of good social standing and in a position to deter potential perpetrators of massacres from committing such acts. 5
The gradual recognition of the “sphere of influence” 6 and moral authority of the industrialists and their companies, and thus their power over the course of events through their mere presence is the basis for the criminal liability which may be imputed to them when, present at the scene of the crime, they fail to act to try to prevent its Commission.
The Prosecutor v. Nahimana, Barayagwiza and Ngeze case, commonly called the “media case” concerns the media campaign conducted by three people in Rwanda in 1994, intended to desensitize the Hutu population and encourage it to kill Tutsis.
Ferdinand Nahimana and Jean Bosco Barayagwiza were both prominent members of the initiative committee behind the creation of the Radio Television Libre des Mille Collines (RTLM) which broadcast from July 1993 – July 1994 virulent messages condemning the Tutsi as “enemies” and moderate Hutus as “collaborators”. Nahimana, a former university professor and director of the Rwandan Information Office (ORINFOR) was accused of being behind the creation of RTLM and was considered the company president. Barayagwiza, former Director of Political Affairs in the Ministry of Foreign Affairs, was considered the number two of RTLM.
Hassan Ngeze was the founder, owner and chief editor of the newspaper Kangura, which was published from 1990 to 1991 and was widely read throughout Rwanda. As with the broadcasts of RTLM, Kangura published hate messages, denouncing the Tutsis as enemies seeking to overthrow the democratic system and take power.
On November 28, 2007, the Appeals Chamber declared Nahimana and Ngeze guilty of direct and public incitement to commit genocide, and Barayagwiza of genocide, incitement to genocide, extermination and persecution constituting crimes against humanity. 7
In each of the cases discussed above, the leaders of the companies involved were considered either as a perpetrator or a direct accomplice of the crime. There are other cases in which the company is indirectly complicit in the crime, when it draws profits therefrom.