Criminal Law Legal liability for complicity is an emerging area in international criminal law, with the potential to reduce the incidence of human rights violations by TNCs and other actors through the creation of legal liability for indirect action that enables, exacerbates or facilitates the commission of an offense. The difficulty however is that, as yet, there is no agreement as to when a company may be found complicit in human rights violations committed by others. Different branches of law: public international law; domestic criminal law; tort law; contract law; consumer law or company law, apply different tests. With regard to international crimes, a definition of complicity has been most clearly spelt out by the International Criminal Tribunals in the area of aiding and abetting. There are several elements: • There must be an act or omission that has a substantial effect on the commission of an international crime. The act or omission may encompass practical assistance, or encouragement. It may also encompass moral support where that support has a substantial effect on the perpetration of the crime”. 18 Mere presence, or benefiting from an abuse without other involvement, is unlikely to constitute complicity in its own right. • There must be knowledge of one’s contribution to the crime. In this regard there must be knowledge of the principal perpetrators intentions as well as knowledge that one’s own act would provide substantial assistance to the commission of the crime. While this test comes from international tribunals that do not have jurisdiction over legal persons, some domestic legal systems have used this standard in considering corporate complicity for international crimes. The approach however is not uniform. There is, for example, some degree of variation in the way in which national courts have interpreted the elements of the offence. For example, with regard to attributing knowledge to a corporation some jurisdictions focus on the ‘directing mind and will’ of those corporate officers with relevant policy and decision making authority, while others, such as Australia, take a broader approach using the concept of ‘corporate culture’. Civil Law Corporate complicity for human rights abuses has also been claimed in civil cases, though it is extremely rare to see a final judgment as cases generally settle or have been dismissed on procedural grounds. As mentioned above, the American Alien Tort Claims Act permits cases to be brought against both individuals and companies for a breach of the law of nations and the treaties to which America is a party. The majority of cases brought against companies have alleged complicity rather than direct involvement, and in considering such claims, the courts have referred to the international criminal standards outlined above. The International Commission of Jurists (ICJ) More recently the ICJ has released a report on Corporate Complicity and Legal Accountability, in which it proposes an approach to determining corporate complicity based on three key elements: • Causation. That the conduct either enables, exacerbated or facilitated the commission of violations; • Knowledge. That the company actually intended for the violations to occur, knew or should have known that the violations would occur, or were wilfully blind to the likelihood that violations would occur; and Proximity. Proximity assists in determining causation and knowledge and refers particularly to the situation where a close relationship, established as a result of geographic location, or • 18 Prosecutor v. Furundzija, Case No. IT-95- 17/1-T (Int'l Crim. Trib. For Former Yugoslavia Trial Chamber Dec. 10, 1998), reprinted in 38 I.L.M. 317 (1999)) - 11 -