Businesses may face liabilities if they provide weapons or dual-use equipment to governments or armed groups who use those products to commit atrocities. This may be the case even where import and export regulations are fully respected.
International customary law prohibits at all times crimes against humanity, i.e. widespread or systematic attacks against civilians. Genocide, the intent to destroy a group or members of a group as such, is similarly prohibited. In addition, during armed conflicts, there are numerous prohibitions against directing attacks at civilians.
Providing armed groups the means to kill, maim or otherwise attack civilians, with knowledge of ongoing attacks which amount to genocide, crimes against humanity or serious war crimes, can make the supplier an accessory to those crimes of the principal perpetrators. See e.g. Genocide Convention, Rome Statute art. 7 (crimes against humanity), Grave Breaches of the four Geneva Conventions of 1949 (art. 130), and the Additional Protocols to the Geneva Conventions of 1949 (common art. 3).
Those supplying weapons to armed groups which are known to have committed atrocities also run the risk of falling afoul of other domestic statutes and regulations, including restrictions on exporting weapons and dual-use items to terrorist groups, particular regimes or armed groups.
Case 7.1 The Netherlands v Frans van Anraat
In December 2005, a Dutch court found businessman Frans van Anraat guilty of complicity in war crimes. The prosecution alleged that van Anraat, a Dutch citizen, had provided Saddam Hussein’s regime with chemical components which where used to make chemical weapons in the attacks on the Kurds in 1988, especially in Halabja, and against the Iranian town of Sardasht in 1987 and 1988. The Iraqi regime had used poison gases against Iranians in the Iran-Iraq war and, most infamously, during “Operation Anfal” in Iraqi Kurdistan between February and September 1988. Tens of thousands of civilians in Kurdistan were killed or maimed in the operation, including the 5000 massacred in Halabja in March that year.
Van Anraat had claimed in his own defense that he was conducting business and did not sell chemical weapons to Iraq. Indeed, he does not appear to have broken any Dutch export laws. However, a past sanctions investigation by U.S. customs authorities found van Anraat had been involved in four shipments to Iraq of thiodiglycol, an industrial chemical which can be used to make mustard gas. It also has civilian uses. The chemicals are said to have been shipped via the Belgian port of Antwerp, through Aqaba in Jordan to Iraq.
The prosecution alleged that van Anraat was aware of the final purpose for the base materials he supplied. According to the prosecution, van Anraat is “suspected of delivering thousands of tons of raw materials for chemical weapons to the former regime in Baghdad between 1984 and 1988”. United Nations weapons inspectors are reported to have said van Anraat was an important middleman supplying Iraq with chemical agents.
According to the presiding judge, van Anraat’s deliveries facilitated the attacks and constituted a war crime for which the Court imposed the maximum sentence of 15 years imprisonment. As the judge stated: ‘He cannot counter with the argument that this would have happened even without his contribution’. The Court stated that the attacks against the Kurds had been carried out with the intent to destroy, in whole or in part, the Kurdish population in Iraq, thus qualifying them as acts of genocide. Van Anraat however, was acquitted of the charge of genocide, as it could not be proven that he knew the genocidal intent of the regime.
The defendant was charged with violating the following international laws:
Article 1 Genocide Convention Implementation Act in conjunction with Article 48 (complicity) Penal Code (The Netherlands)
Article 8 Criminal Law in Wartime Act (The Netherlands) in conjunction with Article 48 Penal Code.
Stipulations of the Geneva Gas Protocol (1925)
Stipulations of Article 147 of the Geneva Convention on the Protection of Civilian Persons in Time of War (“Fourth Geneva Convention”, 1949)
Stipulations of the “common” Article 3 of the Geneva Conventions of 12 August 1949
The defense appealed against the verdict, arguing that the court could not find him guilty beyond a reasonable doubt, arguing that it was unlikely the judges had the full picture of who was selling chemicals to Iraq at the time. On May 9, 2007, however, a Dutch Appeals Court in the Hague increased van Anraat’s sentence to 17 years holding that he was motivated by greed and repeatedly sold chemicals knowing they were being turned into mustard gas. The Appeals court upheld the Trial chamber’s decision acquitting him of complicity in genocide.
LJN: BA4676, Gerechtshof ‘s-Gravenhage , 2200050906 – 2