Prosecuting Managers of Foreign Corporations for Equipping Iraq with Chemical Weapons from the Perspective of International Criminal Law and German Criminal Law(Original Research)

Document Type : academic

Authors

1 Associate Professor, Imam Hossein University, Tehran, Iran

2 Assistant professor, Public and international law department, faculty of law and political science , university of Tehran

3 PhD Student of International Law at University of Tehran

Abstract

There is no doubt that the use of chemical weapons by the Iraqi Baath regime in the imposed war against Iran and its massive human casualties, as well as the pain and suffering caused by these attacks for the victims, have been the darkest and most painful consequences of this country's imposed war against Iran. The description of chemical attacks as a war crime has been established and recognized in international law. Without the complicity of foreign companies, the Baath regime in Iraq was not able to produce and use chemical weapons during its imposed war against Iran. Therefore, intending to protect the rights of the victims of chemical attacks, this article deals with the feasibility study of prosecuting the managers of corporations involved in equipping Iraq with chemical weapons from the perspective of international criminal law and German criminal law. The findings of this article show that the liability model of "aiding and abetting" concerning foreign corporations is evident, and also, by paying attention to the history of prosecution of managers of corporations involved in committing international crimes in the years after World War II and the judicial procedure resulting from it, the criminal responsibility of managers of corporations is established and recognized from the perspective of international criminal law. In addition, according to the legal bases in German criminal law, that is, paragraph 9 of section 6 of the German Criminal Code (Strafgesetzbuch – StGB) on the one hand, as well as the history of the trial of former Yugoslavian nationals in German courts in the 90s and the judicial procedure resulting from it, on the other hand, the prosecution of managers of corporations has the necessary legal bases.

Keywords

Main Subjects

References

  1. - Books

    1. Bohlander, Michael. Studies in International and Comparative Criminal Law; Volume 1: The German Criminal Code: A Modern English Translation. Oxford, United Kingdom: Hart Publishing, 2008.
    2. Henckaerts, Jean-Marie and Louise Doswald-Beck. Customary International Humanitarian Law Volume I: Rules. United Kingdome: Cambridge University Press, 2005.

     

    - Article & Thesis

    1. Allahverdiyev, Sijad, and Marvin Othman, ““Verbandssanktionengesetz”— Corporate Liability for Germany?” German Law Journal 23 (2022).
    2. Cassel, Douglass, “Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts.” Northwestern Journal of International Human Rights 6, Issue 2 (2008).
    3. Hathaway, Oona A. Et al., “Aiding and Abetting in International Criminal Law.” Cornell Law Review 104, Issue 6 (2020).
    4. Kaleck, Wolfgang and Miriam Saage-MaaB, “Corporate Accountability for Human Rights Violations Amounting to International Crimes.” Journal of lnternational Criminal Justice 8 (2010).
    5. Kelly, Michael J. ““Never Again”? German Chemical Corporation Complicity in the Kurdish Genocide.” Berkeley Journal of International Law (BJIL) 31, no. 2 (2013).
    6. Schüller, Andreas “The Role of National Investigations in the System of International Criminal Justice – Developments in Germany.” Sicherheit und Frieden (S+F) / Security and Peace 31, no. 4 (2013).

     

    - Laws, Reports, Cases

    1. Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland - GG).
    2. Cartagena Declaration on Weapons of Mass Destruction (1991).
    3. Chemical Weapons Convention (CWC), Signed: 13 January 1993, entered into force: 29 April 1997.
    4. Code of Crimes against International Law (CCAIL) (Völkerstrafgesetzbuch – VStGB).
    5. Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines (1998).
    6. Convention against Transnational Organized Crime, Nov. 15, 2000.
    7. Criminal Code of Belgium (Straftwek van België/Code pénal de Belgique).
    8. Declaration concerning the prohibition of the use of projectiles with the sole object to spread asphyxiating poisonous gases, Date of conclusion: 29-07-1899, Entry into force: 04-09-1900.
    9. French Criminal Code (FCC)
    10. German Criminal Code (Strafgesetzbuch – StGB).
    11. Germany-Act on Regulatory Offences.
    12. ICC, Prosecutor v. Bemba, Case No. ICC-01/05-01/13, Trial Judgment Pursuant to Article 72 of the Statute, (Oct. 19, 2016).
    13. ICC-Statute, Signed: 17 July 1998, entered into force: 1 July 2002, Article 8(2)(b (xvii) and Article 8(2)(e)(xiii).
    14. ICTY, Prosecutor v. Brdanin, Case No. IT-99-36-T, Trial Judgment, (Sept. 1, 2014).
    15. International Convention for the Suppression of the Financing of Terrorism, Dec. 9, 1999.
    16. Investigation Judge at the Federal Supreme Court (Arrest Warrant), case file no. 1 BGs 100/94).
    17. Mendoza Declaration on Chemical and Biological Weapons (1991).
    18. Nederland-Act of 19 June 2003 containing rules concerning serious violations of international humanitarian law (International Crimes Act).
    19. Nuremberg IMT-Statute, 1945, art: 9.
    20. Organization for Economic Cooperation and Development, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Nov. 21, 1997.
    21. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Signed: 17 June 1925.
    22. Swedish Act on Criminal Responsibility for Genocide, Crimes Against Humanity and War Crimes (Universal Crimes Act or UCA).
    23. The Criminal Code of Finland.
    24. The Netherlands, District Court in The Hague, Van Anraat case.
    25. TRIAL International, Universal Jurisdiction Law and Practice in Germany, March 2019.
    26. UN Doc. A/CN.4/SER.A/1996/Add.l (Part 2).
    27. UN Security Council resolution 582 (1986), resolution 598 (1987), resolution 612 (1988), resolution 620 (1988), resolutions 2118 (2013) and 2235 (2015).

     

    - Websites

    1. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no= XXVI-3&chapter=26&clang=_en. Accessed February 21, 2023.
    2. https://treatydatabase.overheid.nl/en/Treaty/Details/002422. Accessed February 21, 2023.
    3. https://trialinternational.org/latest-post/guus-van-kouwenhoven/. Accessed February 19, 2023
    4. https://www.latimes.com/archives/la-xpm-1991-02-15-mn-1086-story.html. Accessed February 22, 2023.
    5. https://www.latimes.com/archives/la-xpm-1991-02-15-mn-1086-story.html. Accessed February 22, 2023.
    6. https://www.nytimes.com/1986/03/15/world/iraq-cited-on-chemical-arms. Accessed February 25, 2023.
    7. https://www.nytimes.com/2002/12/21/world/threats-responses-suppliers- declaration-lists-companies-that-sold-chemicals-iraq.html. Accessed February 12, 2023.

Files

History

  • Receive Date: 14 March 2023
  • Revise Date: 14 June 2023
  • Accept Date: 06 August 2023

Share

How to cite

Statistics