Tulane University, November 2019
Vancouver, November 2017
Jørn Jacobsen is a Professor in the Faculty of Law at the University of Bergen.
James G. Stewart’s argument for a unitary theory to replace the modes of liability in international criminal law is of particular interest from the point of view of Norwegian criminal law theory. Here, one of the most prominent contributors to the discipline, Bernhard Getz, made a similar claim in the latter half of the 19th century. Getz’ famous work on a unitary theory from 1875 is often hailed as a masterpiece (published in 1876 as Om den saakaldte Delagtighed i Forbrydelser – en strafferetlig Undersøkelse: Prøveforelæsning over selvvalgt Thema ved Concurrence om en Professorpost i Lovkyndighed). For good reasons too: he wrote it at only 25 years of age, and it certainly demonstrated a theoretical maturity that was a great surprise to Norway ‘s then fledgling criminal law discipline. After all, one counts Schweigaard’s commentaries from the 1840’s as the starting point for this discipline, and Getz’s work was the first significant theoretical contribution to it.
Getz became a professor the year after he published his book, and went on to have a huge impact on the formation of modern Norwegian criminal law. Getz and his close companion, Francis Hagerup, exhibited their impressive ambitions for criminal law in other manners too. They had international ambitions, and were both active in the AIDP (Association International de Droit Penal – International Association of Penal Law). Even more importantly from a Norwegian point of view, they filled key positions within the Norwegian political and legal order. Professor Hagerup served two separate terms as Prime Minister. Getz, for his part, held key positions in forming Norwegian legislation on criminal law and criminal procedure. He led both the commission preparing the Criminal Procedure Code of 1887 and the Criminal Code of 1902. He then became the first Director of Public Prosecutions in order to implement the Criminal Procedure Code of 1887. Certainly, this was the golden age for Norwegian criminal law – likely the first and only time when a criminal law professor held such prestigious positions in Norwegian society and with regard to the Norwegian criminal code, which was hailed as landmark legislation by central Continental criminal law scholars.
What then about Getz’s unitary theory? In itself, it was a critique of the then existing criminal code, the Criminal code of 1842. Norway’s first criminal code after independence was achieved in 1814. The code was itself a result of constitutionalization, as the Constitution of 1814 sect 94 required a criminal code to be enacted. This criminal code was imprinted by the Continental ideals at that time. The models used were the Code Penal (1810) and in particular the Code of Hannover (1840), which was itself inspired by Feuerbach’s Bavarian criminal code of 1813. Not surprisingly, this code differentiated between contributors to crime. In the code, a separate chapter was dedicated to ‘Participation’ (chp. 5), which was understood as something different from the ‘Perpetrator’. Here, the code had separate provisions for several different forms of participation, such as instigation of crime.
Starting from a concept of causation, Getz heavily criticized the 1842 Code. As there were no conceptual differences between the participator and the perpetrator, there was no reason to differentiate between them – thus the title ‘On so-called Participation in Crime’. The unitary theory was also the starting point for Getz when he embarked on the task of drafting the new Penal Code of 1902, which was celebrated throughout Europe. Here, in line with Getz’s program, there was no separate chapter on participation. In regard to sentencing, however, a section of the code in keeping with Stewart’s approach, assigned differences between different contributors’ importance. Getz clearly aimed at putting his theoretical enterprise into practice. However, the code of 1902 still included complicity as additional elements in a number of specific offenses. The additions do not appear to be consistently included in the code. This also left it for court practice to decide in regard to a number of offences whether complicity gave rise to criminal responsibility. In regard to several offences, the Supreme Court concluded that it did. Complicity therefore remained a central concept in Norwegian criminal law theory and practice even after Getz’s own code.
The lack of complete coherence between Getz theoretical project and his solution as a drafter of the code has often been emphasized in later literature. Unfortunately, Getz passed away at young age in 1901 – a year before his criminal code was enacted. As a consequence, we do not know how he would have responded to this criticism. Moreover, it is a point of intrigue for the current debate that later Norwegian scholars have not followed Getz’s approach on these questions. In particular, G. Astrup Hoel (1941) and Erling Johannes Husabø (1999) have criticized it. Husabø’s critique of Getz, in the most recent and extensive investigation into complicity in Norway, starts out from a different concept of causation and also offers conceptual arguments concerning the relation between ‘Perpetrator’ and ‘Participator’.
In 2015, the Norwegian code of 1902 was replaced by the Penal Code of 2005. At least in part, this legislative shift can be described as return to the original code of 1842. In the code of 2005, there is a general section on participation (sect. 15), which makes participation in crime in general subject to criminal responsibility unless otherwise stated in the offense. This new code does thereby not adopt the opposite solution to Getz’s code of 1902. In the preparatory works, there is no discussion of a unitary theory. Instead, treating complicity as a separate subject seems now to be taken for granted.
Lessons learned? There are two ways to see the rise and fall of the unitary theory in Norwegian criminal law. One way to see it is as an unfulfilled promise, one that was hindered by Getz’s early death, legal culture and other obstacles. The other way to see the Norwegian story is that the theory was flawed in the first place. There is not room for a detailed discussion of the subject here, nor on the particularities of international criminal law and the distinct challenges to modes of liability that this field of law faces. It seems clear, however, that the history of Norwegian criminal law at least is not a particularly strong argument for the potential of a unitary theory internationally.
Professor Stewart’s proposal is intriguing. Incorporating international crimes into a slowly evolving legal regime that might eventually hold companies accountable for complicity in abuses abroad could be a useful step. Even though his proposal is limited to “international crimes” that would only cover a narrow set of abuses relative to all of the human rights issues companies have, it still is worth exploring.
Whether one agrees or disagrees with his thesis, one thing is clear: his proposal is part of a larger trend towards stronger mechanisms that could institutionalize enforcement of the human rights responsibilities of companies.
In the late 1990s when Human Rights Watch first began work on Business and Human Rights, most companies did not accept that they had human rights responsibilities. The earliest cases under the Alien Tort Statute (ATS) against companies had been filed against Texaco (now Chevron) in Ecuador and against Unocal (now Chevron) in Burma, but had not reached any resolution. A number of companies were criticized because of human rights issues related to their operations, but were still resistant to changing their practices.
Most companies argued that host governments needed to address the abuses. By the beginning of the 21st century, some companies (mainly those burned by public criticism) started to grudgingly move to adopt human rights standards. The first company codes of conduct started to appear along with the first multistakeholder initiatives (MSIs) such as the Fair Labor Association (FLA) and the Voluntary Principles on Security and Human Rights.
After that, the ill-fated UN Norms were drafted. By 2006, human rights policies, MSI’s, shareholder activism, and public scrutiny of companies were all part of the global mix. A range of activities had evolved to try to hold companies accountable. Then, the UN approved the new mandate for the Special Representative on Business and Human Rights.
One area that has consistently lagged behind all of the others has been the enforceable legal framework and specifically, legal accountability for corporate complicity in abuses. In 2006, there was no regulation for businesses although some had been proposed. For example, US congressional representative Chris Smith had drafted the Global Online Freedom Act to regulate internet companies so that they would have to protect freedom of expression and privacy online. GOFA was a response to scandalous disclosures that major internet providers were self-censoring in China and that one of them had turned over private account information on activists to Chinese authorities who were later imprisoned for their efforts to promote human rights online. But the bill has not become law.
Nor had the courts held companies liable under the US ATS. Some companies had reached confidential settlements with plaintiffs, but no company had been found liable for human rights violations under the ATS, so the regulatory effect of such suits are not yet realized. And recent rulings by the US Supreme Court make that possibility even more remote.
Modest regulation has continued to evolve. In 2010, the regulatory environment slowly began to change, beginning with the passage of the US Dodd-Frank financial reforms law that had two human rights-friendly provisions: section 1502 that required publicly listed companies to disclose whether they sourced conflict minerals from the Democratic Republic of Congo; and section 1504 that required public extractives companies to disclose their payments to foreign governments. These laws represented some of the first attempts to regulate companies on human rights grounds. Even though they were relatively modest—only requiring companies to disclose information—they have been hotly contested by the industry and section 1504 has yet to go into force.
The next year, the UN Guiding Principles on Business and Human Rights were approved. And building on the precedent of Dodd-Frank, governments like Canada, the UK, and the members of the European Union have all drafted their own extractives disclosure legislation. Other rules are in effect or developing, for example, the US has human rights disclosure rules for investments above US$500,000 in Burma. New social reporting rules are proliferating in Europe and as far afield as India.
New disclosure rules are a promising development, but they are not a substitute for full accountability. In our view, the best, but still imperfect, legal model may be one that mirrors anti-corruption laws. Those laws, such as the US Foreign Corrupt Practices Act (FCPA), have extraterritorial reach, require companies to put systems in place to identify and prevent bribery and hold companies accountable when bribes are paid. Human rights rules could do the same thing: apply extraterritorially, require companies to put policies and procedures in place to identify and prevent abuses, face civil and criminal liability if abuses occur, and to regularly report on their efforts to protect human rights in their operations.
Laws like a human rights FCPA will not easily pass and will undoubtedly face resistance from industry and the governments sympathetic to them. But structurally, they offer the best chance to cover the largest swath of companies. The growing number of disclosure laws may be the first step towards comprehensive rules. And there is some evidence that change is coming. The proposed UN treaty on transnational corporations and human rights, for example, is a sign of movement. While it is controversial (Human Rights Watch has expressed reservations about it), it does signify a desire to move beyond the status quo. But it would be premature and naïve to think that real accountability will come easily or is inevitable.
Any move towards accountability at the national or international level will be a challenge and will take time. In that context, Professor Stewart’s proposal may be a way to fill in the missing pieces of the accountability puzzle. Like many current developments, it is indirect inasmuch as it is not regulation, but the hope of de facto regulation through potential liability. It is not a panacea for abuses or a substitute for clear and explicit laws that define the human rights responsibilities of companies, but is a part of the mix of efforts that are slowly and surely trying to ensure accountability for business-related abuses.