1 Introduction^*

In 2019, USA Today ran a story on the various scandals associated with the global security firm G4S.¹ The feature described how international investors, including the United Methodist Church and the Bill and Melinda Gates Foundation, had divested from the company because of accusations that it was “complicit in war crimes”.² In particular, the company had equipped Israeli prisons and provided services at checkpoints in the Occupied Palestinian Territory where the rights of Palestinians were infringed.³ With the increasing presence of private military and security companies in contemporary armed conflicts, it is not uncommon for the staff of such companies to be connected in some way with aspects of the capture, detention and possibly even the mistreatment of prisoners and detainees.⁴ Where abuses or human rights violations occur, not only might companies suffer reputational damage and lose investment or business opportunities, but the criminal responsibility of individual directors, officials or other employees, or of the company itself, may arise if the acts in question amount to crimes under applicable national or international law,⁵ and if the nature of their involvement gives rise to criminal liability.⁶

While the concept of complicity in international crimes is frequently invoked in the context of corporate accountability,⁷ there has been relatively limited application of international criminal law by judicial bodies to the activities of companies during armed conflict to date. Nonetheless, the principal treaty of international criminal law, the Rome Statute of the International Criminal Court, can be brought to bear on the actions of individual company officers or employees, even though the treaty does not address the criminal liability of corporations themselves.⁸ Some precedents for such individual criminal responsibility can be found in the caselaw of the post-World War ii period and in a number of national jurisdictions.⁹ Moreover, well-substantiated findings of corporate complicity in international crimes may serve an important deterrent purpose, even in the absence of formal adjudication of corporate criminal conduct by a court or tribunal.

This chapter will explore the legal responsibility for private sector individuals and enterprises in the context of the reported violations of human rights committed against Palestinian prisoners and detainees. It does so in light of the law and policy of the International Criminal Court, given the ongoing investigation by the icc Prosecutor into the Situation in the State of Palestine. This chapter will begin by outlining which violations might amount to international crimes within the jurisdiction of the icc. It then turns to the involvement of private companies in such activities and assesses whether such involvement might give rise to criminal liability under the Rome Statute. This is done by examining applicable modes of criminal liability under the Statute, in particular the concept of aiding and abetting. In light of prosecutorial policy at the icc, which is said to focus on “those who bear the greatest responsibility” for the most serious crimes,¹⁰ it is asked whether corporate actors are to be considered the most appropriate targets in this particular context when turning to international criminal justice mechanisms. Regardless, the invocation of international criminal law even without any formal denunciation may prove effective at prompting business enterprises to alter their complicit behavior.

2 Treatment of Palestinian Detainees and Prisoners

B’Tselem has reported ongoing impunity regarding such human rights violations and the absence of criminal investigations in 700 complaints against Israeli security agents.¹⁴ The UN Human Rights Committee has been “particularly concerned that no preliminary investigations by the Inspector for Complaints against the Israel Security Agency have led to judicial proceedings against alleged perpetrators”.¹⁵ Legislation has been passed in Israel to permit the force-feeding of Palestinian prisoners and detainees that go on hunger strike.¹⁶ A group of UN experts expressed their alarm at the use of “enhanced interrogation techniques” in violation of “the universal prohibition of torture and ill-treatment”.¹⁷

The Palestinian Authority, as well as Palestinian armed groups, have also been accused of ill-treating detainees in violation of human rights standards and international humanitarian law. According to Human Rights Watch, both the Palestinian Authority and Hamas have detained critics as a form of punishment and to deter other Palestinians from engaging in activism.¹⁸ In such instances of detention, “security forces routinely taunt, threaten, beat, and force detainees into painful stress positions for hours at a time”.¹⁹ The UN Independent Commission of Inquiry on the 2014 Gaza Conflict also received reports of torture of Palestinians detained by the Hamas authorities in the Gaza Strip and accused of collaboration with Israel, although it was, “unable to verify these allegations” in the particular circumstances.²⁰

From the perspective of international criminal law, the immediate question which arises is whether such violations of fundamental guarantees of humanitarian law and human rights amount to international crimes. The Rome Statute of the icc comprises the most comprehensive articulation of international crimes to date in international law.²¹ It is directly applicable in the Palestine context given the accession by the State of Palestine to the treaty in 2015, and the confirmation of the initiation of an investigation by the Prosecutor in March 2021, following a lengthy preliminary examination and a jurisdictional decision of Pre-Trial Chamber i.²² The court has jurisdiction over crimes committed on the territory, or by the nationals of the State of Palestine at least. Given the nature of Israel’s belligerent occupation of Palestine, the two relevant categories of international crimes are war crimes and crimes against humanity. Beginning with war crimes, as set out in Article 8 of the Rome Statute, it seems apparent that the treatment of Palestinian prisoners and detainees described above could fall within the definition of “torture or inhuman treatment” or “[w]ilfully causing great suffering, or serious injury to body or health”.²³

Other relevant war crimes might include denial of fair trial rights to prisoners of war or other protected persons, as well as the grave breach of unlawful deportation or transfer, given that Palestinian prisoners and detainees are very often held in prisons within Israel.²⁴ While the latter war crime could be said to take place on the territory of a State Party of the Rome Statute (State of Palestine), the other crimes mentioned may create a jurisdictional question which will need to be answered, in that they are alleged to take place at times on the territory of a non-State Party (Israel). Regarding the detention of children, the Rome Statute does not address this directly, focusing only on conscription or enlistment of child soldiers as offences specific to children.²⁵

Crimes against humanity as a category of crimes are also relevant in this context. Under Article 7 of the Rome Statute, crimes against humanity consist of certain acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Such acts include torture and “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”.²⁶ Especially relevant in the context of the imprisonment and detention of Palestinians is “[i]mprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law”.²⁷ The Rome Statute also includes the crime against humanity of apartheid, which is defined as inhumane acts committed in the context of “an institutionalized regime of systematic oppression and domination by one racial group over another and committed with the intention of furthering that regime”.²⁸ Israel’s treatment of the Palestinians can be characterised as a situation of apartheid.²⁹

Applying the category of crimes against humanity would require demonstration that the particular acts were directed against a civilian population as part of a widespread and systematic attack. For the crime of imprisonment and severe deprivation of liberty, consideration would need to be given as to whether prisoners and detainees are detained in violation of applicable international law, such as the 1949 Geneva Conventions and applicable human rights standards. The UN International Criminal Tribunal for the Former Yugoslavia has understood imprisonment in this context as meaning “arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population”.³⁰ Given the jurisdictional question concerning crimes against nationals of a State Party committed on the territory of non-State Party, it might be asked if it is sufficient that the overall attack take place on the territory of the State Party or if the crime was commenced on that territory.³¹

The possibility that international crimes have been committed against detained Palestinians is certainly on the radar of the icc. In the 2018 and 2019 reports on preliminary examinations, the icc Office of the Prosecutor made no explicit reference to the treatment of Palestinian prisoners or detainees by Israeli authorities but did state that her office had received “allegations that Palestinian security and intelligence services in the West Bank have committed the crime against humanity of torture against civilians held in detention centres under their control”.³² While these reports do not provide an exhaustive list of the offences which might be pursued by the Prosecutor – there is a pointed reference in both to “other alleged crimes” which may require future assessment³³ – the documents do provide a significant indication of the subject-matter that may form the basis of future prosecutions.

The icc Prosecutor enjoys a considerable degree of discretion in the choice of potential cases, but must meet the Rome Statute’s admissibility requirements, including gravity.³⁷ Potential crimes against detained Palestinians by Israeli authorities have not been referred to by the Prosecutor to date, but that does not exclude their prosecution. These would likely be considered should the crime of apartheid, the relevance of which has been acknowledged by the Prosecutor, be treated as a feasible candidate for prosecution.³⁸

It is not possible in this chapter to undertake the further analysis required to determine if each of the elements of these crimes might be satisfied in the case in hand. For present purposes, it suffices that a prima facie case can be made that the treatment of Palestinian prisoners and detainees entails breaches of international law that may amount to international crimes falling within the jurisdiction of the icc. The next section turns to consider the extent to which business enterprises are implicated in such activities and whether criminal liability might arise in this particular context.

3 Involvement of Corporate Entities

The role of the corporate sector in the Israeli occupation of the opt has been highlighted by United Nations bodies and civil society organisations in recent years. For example, the United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967 discussed the role played by business entities in the occupation, noting that there are a “wide range of companies that have linked their business operations to Israel’s settlements in the occupied Palestinian territory”.³⁹ According to the UN Independent International Fact-Finding Mission on Israeli Settlements established by the United Human Rights Council, “private entities have enabled, facilitated and profited from the construction and growth of the settlements, either directly or indirectly”.⁴⁰ The Mission recommended that “[p]rivate companies must assess the human rights impact of their activities and take all necessary steps – including by terminating their business interests in the settlements – to ensure they do not have an adverse impact on the human rights of the Palestinian people”.⁴¹

In 2016, the UN Human Rights Council requested the UN Office of the High Commissioner for Human Rights to establish a database of businesses involved in settlement activity based on a recommendation of the Independent International Fact-Finding Mission on Israeli Settlements.⁴² Following a delay caused by disputes over the working methods, the UN Office of the High Commissioner for Human Rights reported in 2020 on the database, naming 112 business enterprises, mostly Israeli, implicated in unlawful settlement activity.⁴³ According to the UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, Michael Lynk, the database comprises “an important initial step towards accountability and the end to impunity”.⁴⁴ Since its publication, a lack of sufficient funding has threatened the regular updating of the database.⁴⁵

The Independent International Fact-Finding Mission on Israeli Settlements emphasised the role of companies which supply material and equipment used in the construction, expansion and associated infrastructure, but also noted that the activities of companies providing security services and surveillance equipment for the settlements or businesses therein also gave rise to human rights concerns.⁴⁶ The latter companies are those most likely to be connected in some way with the treatment of those Palestinians imprisoned and detained by the Israeli authorities. The activities of private entities in Israeli settlements is in keeping with a trend over recent decades where there has been a marked increase in the use of private firms by Israel in the context of security, policing and criminal justice.⁴⁷ The Supreme Court of Israel did, however, strike down legislation seeking to establish a privately run prison in Israel as being contrary to human rights.⁴⁸ No concerted examination has been undertaken to date of the potential involvement of business enterprises in violations of human rights attributable to the Palestinian Authority or other Palestinian groups.

In addition to activities related to Israel’s illegal settlements, G4S has been involved in “the provision of systems and personnel directly related to the detention or imprisonment of Palestinians, within and outside occupied territory”.⁵¹ Reports describe how the company provided “peripheral security systems”, including closed circuit television, and has fitted out control rooms in a number of Israeli prisons.⁵² G4S Israel has also provided scanning equipment and staff for checkpoints in the West Bank, where Palestinians have often been detained.⁵³

Several members of the United Kingdom parliament called for G4S to “end its complicity” with such violations and to “terminate its contracts with facilities where children suffer routine physical and verbal abuse”.⁵⁵ The allegations of G4S involvement in Israel’s actions seem to have been levelled against the company itself for its contribution to systematic violations by Israeli authorities, rather in relation to specific acts attributable to individual company employees. Whether complicity in a legal sense arises for present purposes requires a consideration as to whether the contribution by G4S Israel gives rise to liability under international criminal law, whether for the company itself or for individual directors, officers or employees.

4 Corporate Complicity and International Criminal Law

Given its traditional focus on States, international law has been slow to deal with corporations and other non-State actors, despite it becoming increasingly clear that the activities of such entities can harm human rights.⁵⁶ International criminal law, for its part, has been almost exclusively concerned with natural persons that are accused of having engaged in international crimes. An attempt to include corporate criminal responsibility in the Rome Statute did not succeed because of claimed concerns over complementarity and the requirements of consistency in corresponding domestic legislation.⁵⁷ Despite the exclusion of criminal liability of corporations themselves under the Rome Statute, international criminal law has begun to address corporate criminal liability in other contexts.⁵⁸ A provision on corporate criminal liability was successfully included in the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, although the instrument is yet to enter into force.⁵⁹ The proposed binding business and human rights instrument and an ilc draft convention on the prevention and punishment of crimes against humanity contemplate that States would provide for the liability of legal persons in their domestic legal systems for relevant international crimes.⁶⁰ Leaving aside the prospective contribution of these initiatives to corporate accountability, the past prosecution of individuals for business activities connected with international crimes offers a valuable precedent.

A handful of World War ii cases, and some more recent national cases, demonstrate that individual employees or directors may be criminally liable if complicit in international crimes.⁶¹ In United Kingdom v Tesch, the supplier of Zyklon B was condemned for violating the laws of war for having supplied gas, knowing that it would be used for extermination in the Nazi concentration camps.⁶² In the trial of leading German industrialists, an emphasis was put on the need for knowledge of the use to which Zyklon B, which one of their companies manufactured, was being put: “neither the volume of production nor the fact that large shipments were destined for concentration camps would alone be sufficient … to conclude … that those who knew had knowledge of criminal purpose”.⁶³ These trials occurred in a context where there were hundreds of prosecutions by the victorious Allies, but they serve as useful precedents for considering criminal responsibility of corporate actors.

Given the jurisdictional limits of the icc, the focus here must be on the criminal responsibility of individual employees or company officers. Companies themselves cannot generally be prosecuted at the international level at present, although both civil and criminal liability for international crimes may arise at the national level.⁶⁴ In terms of individual criminal responsibility under international criminal law, persons may be liable not only for having physically perpetrated crimes, but also for having committed crimes through or with other persons, or for having ordered, planned, instigated, solicited or induced the commission of international crimes.⁶⁵ Military and civilian superiors may be criminally responsible for the crimes of subordinates which they knew or should have known about and failed to prevent or punish.⁶⁶ In the case of potential crimes against Palestinian prisoners and detainees, and corporate complicity therein, aiding and abetting as a mode of criminal liability found in the Rome Statute is the most appropriate. According to Article 25(3)(c) of the Statute, a person may be criminally liable for a crime in the Court’s jurisdiction if the person, “[f]or the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”.⁶⁷

The icc has not tried or convicted any individual for international crimes using this form of criminal liability, although it did address the elements of aiding and abetting in the context of offences against the administration of justice.⁷⁰ A considerable caselaw has also emerged from the other international criminal tribunals on aiding and abetting genocide, crimes against humanity and war crimes.⁷¹

Liability under Article 25(3)(c) of the Rome Statute “implies a lower degree of blameworthiness” for accessories compared to both co-perpetrators and instigators, given that those who co-perpetrate exercise joint control over the commission of a crime, whereas an accessory “merely contributes to or otherwise assists in an offence committed by the principal perpetrator”.⁷² An instigator prompts the commission of an offence, while the accessory’s contribution “hinges on the determination of the principal perpetrator to execute the offence”.⁷³ Leaving aside the divergence in the caselaw of the ad hoc tribunals around the question of whether aid or assistance must be specifically directed to the commission of crimes,⁷⁴ more generally it is considered that the contribution made by an accessory should be substantial,⁷⁵ although it need not be essential or a sine qua non for the commission of the crime, and it must be knowingly made.⁷⁶ An icc Trial Chamber has emphasised causality in this context, stating that the contribution must have “furthered, advanced or facilitated” the commission of the relevant offence.⁷⁷ Examples of aiding and abetting in the case law of the various international tribunals have included the supply of arms and ammunition, military training and resources.⁷⁸

For aiding and abetting, knowledge is considered the required mens rea standard, rather than “intent and knowledge”, which is the general standard set out in the Rome Statute.⁷⁹ The Rome Statute also sets out in Article 25 that assistance must have been provided “for the purpose” of the commission of the crime in question. This constitutes an “enhanced mens rea requirement”, which “goes beyond the ordinary mens rea standard encapsulated in Article 30 of the Statute and penalises such assistance only if a higher subjective element is satisfied on the part of the accessory”.⁸⁰ What this means is that the accessory must intend to facilitate the commission of the offence, although it is not necessary to show intent on the part of the accessory that the offence itself be committed.⁸¹ There has been some disagreement amongst United States courts adjudicating civil suits under the Alien Torts Statute over whether knowledge and a substantial contribution are required for aiding and abetting, or whether purpose is needed, in that an accomplice purposefully provided the assistance.⁸² The purpose of, say, selling weapons and ammunition to an armed group would more likely be to make a profit, rather than to contribute to the commission of war crimes,⁸³ although it is also conceivable that such an action could also serve both or indeed other purposes. Absent the requirement of purpose, it is clear that ostensibly neutral business activity may give rise to complicity in international crimes, if the above-mentioned criteria of aiding and abetting are met.

Returning to the case of G4S Israel, there is no available evidence that individual company officers or employees were involved in the planning or directing of Israeli policies or practices towards Palestinian prisoners and detainees. Their contribution would seem to be more peripheral, given that reports have referred to providing security systems for Israeli prisons and equipment for checkpoints. In terms of aiding and abetting, the considerable publicity around the activities of G4S Israel may have put individuals on notice that their activities are somehow implicated in potential criminal acts, and thus help to satisfy the knowledge requirement. It is not clear, however, that the contribution as described is substantial enough to generate criminal responsibility under prevailing standards of international criminal law. Such questions should fall to be determined by a judicial body, but in a sign of the limited avenues for corporate accountability at the international level they have instead been considered by an “independent review” commissioned by the company itself and before the United Kingdom National Contact Point established under the oecd Guidelines for Multinational Enterprises.

The summary of the “independent review” commissioned by G4S of its activities in Israel and Palestine concluded that, “there is no case against G4S on the grounds of complicity with alleged war crimes committed by Israel”.⁸⁴ Notwithstanding legitimate questions that may be raised regarding the independence of the experts, given they were directly commissioned by the company to conduct this assessment,⁸⁵ this conclusion seems justified, at least in the context of the imprisonment, detention and treatment of Palestinians, if the question of complicity is viewed through a strict international criminal law lens. That said, the analysis lacked accuracy at times, such as when holding that, “[i]t is very difficult to see how the legal requirements of contribution, knowledge and intent could be met”,⁸⁶ given that a showing of intent is not required, at least as far as aiding and abetting is concerned. The review concluded that while there are, “clearly human rights failings in some parts of Israel’s security system, […] G4S’ role is far removed from their immediate causes and impact”.⁸⁷ It also bears noting that the G4S commissioned independent review focused on the potential complicity of the company itself, rather than individual employees. Nevertheless, the standard needed to be met under international criminal law for criminal liability on the basis of aiding and abetting does not seem to be met in this particular case, unless evidence were to emerge of a more substantial contribution by individual employees or company officers to potential crimes against Palestinian prisoners and detainees.

G4S was also the subject of a complaint and investigation under the oecd Guidelines for Multinational Enterprises by the United Kingdom’s National Contact Point. The complaint found some “technical inconsistencies” with the specific obligations of the company, but not “any broad failure by G4S to respect the human rights of people on whose behalf the complaint is made”.⁸⁸ Although the National Contact Point found that there were “adverse human rights impacts associated with the facilities and locations referred to”, it concluded that none of the information reviewed “suggested that G4S staff or equipment play a direct part in these impacts”.⁸⁹ Nonetheless, the company was found to be in technical violation as it could have done more to “address human rights impacts”, despite not being the cause of them.⁹⁰ While the concept of aiding and abetting under international criminal law was not applied by the National Contact Point, its findings indicate a more peripheral form of complicity rather than involvement that might attract criminal liability.

Criminal law may not capture each of these various forms of corporate complicity in violations of human rights.

The cumulative effect of the findings of various international organisations implicating G4S in the violation of the rights of Palestinian prisoners and detainees, the concerted effort of civil society organisations and activists, and the divestment by prominent investors would seem to have prompted the company to end certain business relationships with the Israeli authorities.⁹⁴ The Financial Times reported in 2016 that G4S had agreed to sell its Israeli firm, although it would retain an interest in Israel’s national police training centre.⁹⁵ G4S claimed that the move was “entirely commercial”, although it was celebrated as a victory by the boycott, divestment and sanctions movement.⁹⁶ The database of companies associated with Israeli settlements prepared by the UN High Commissioner for Human Rights makes no reference to G4S, although other Israeli security firms are listed.⁹⁷ The decision by the company to end certain business relationships was certainly not attributable to any formal application of international criminal law, but the invocation of key concepts in this body of law, particularly complicity and international crimes, doubtlessly played a role in highlighting the potential legal risks for companies doing business with state authorities with a record of violating international law.

5 Conclusion

International criminal law in its current manifestation does not allow for corporations to be prosecuted before the icc. There is no question, however, that individual employees or company officers fall within the jurisdiction of the Court, or that both individuals and companies can face legal sanctions at the national level for involvement in international crimes. Notwithstanding the existence of such jurisdiction, international criminal law imposes particularly exacting standards for liability to arise given the seriousness of the sanctions that can be imposed, at least for natural persons. In addition to meeting requisite elements of specific crimes, the requirements of the chosen mode of criminal liability must also be satisfied. Aiding and abetting is an appropriate form of criminal liability in the context of the involvement of corporate actors in criminal activities and requires that an individual knowingly provides practical assistance or encouragement which has a substantial effect on the commission of a crime within the icc’s jurisdiction.

A prima facie case can be made for the commission of international crimes in the context of the treatment of Palestinian prisoners and detainees, by both Israeli and Palestinian authorities, although disproportionately by the former. While corporate entities have been implicated in the ill-treatment by Israel of Palestinian prisoners and detainees, as they have with other facets of Israel’s occupation of Palestinian territory, from the perspective of international criminal law, such involvement by business enterprises may not be sufficiently substantial to give rise to criminal liability or to sufficiently catch the attention of the Prosecutor of the icc. Former Prosecutor Fatou Bensouda reiterated that, in the context of the Palestine investigation, her office “focuses its attention on the most notorious alleged offenders or those alleged to be most responsible for the commission of the crimes”.⁹⁸ While the Office of the Prosecutor has received submissions regarding corporate complicity in international crimes in Palestine,⁹⁹ there has been no indication by the Prosecutor thus far, that the investigation in Palestine will consider pursuing individuals directing, managing or working for corporate entities. Other individuals, including high-ranking persons in the Israeli Prison Service, Israel’s Ministries for Internal Security and Defence, and various Palestinian authorities have greater influence and control over crimes against detained and imprisoned Palestinians.

For companies with business relationships with States or other entities acting in violation of human rights and international law, the attendant risks which arise can be “reputational, financial or legal”.¹⁰⁰ The risk of legal consequences, even if ostensibly limited, can prompt companies to alter their behavior, whether to avoid legal sanctions, reputational damage, or financial harm. International criminal law has proven a valuable tool in this context. The Dutch construction firm Riwal avoided prosecution for war crimes in the Netherlands, despite charges having been laid in connection with Israel’s construction of the Wall in Palestine, as the company had ended its activities in Israel and the opt and thus reduced the risks of repetition, amongst other reasons cited by the Prosecutor.¹⁰¹ After the Spanish infrastructure business Ferrovial was named in a submission to the icc alleging complicity in crimes against humanity occurring on detention centres on Nauru and Manus Island, it ended its involvement in such activities.¹⁰² International criminal law may be sorely wanting in terms of the successful prosecution of companies or their staff for complicity in international crimes, yet it yields an almost unmatched symbolic power,¹⁰³ which appeals to human rights advocates and should concern companies linked to wrongdoing in equal measure.