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Abstract

Business transactions between corporations and actors involved in grave human rights violations present significant challenges for the assessment of corporate criminal liability. This is particularly evident in cases of “neutral business assistance,” which refer to business conduct that appears legitimate on the surface and falls within day-to-day business operations but nonetheless contributes to the crime. An example of neutral business assistance is selling generic goods (for example, computer technology) legally at market rates, without the explicit intent to aid criminal activity, that increases the perpetrator’s capacity to carry out human rights violations. In such cases, discerning the point at which a legitimate business transaction becomes a wrongful act of complicity remains a complex and unresolved issue in international criminal law.

The doctrinal requirement for the wrongful act of complicity is that the assistance provided must have a “substantial effect” on the commission of the crime. Traditionally, this assessment has been grounded in a narrow factual analysis that primarily emphasizes the gravity of harm resulting from aiding and abetting. This one-dimensional approach to wrongfulness, however, oversimplifies the ethical complexities of criminal liability. It overlooks broader normative considerations and the positive societal impact of human cooperation. This article challenges the prevailing harm-based paradigm and introduces a more nuanced methodology to assess the wrongfulness of aiding and abetting across various contexts. To do so, the article embraces a broader perspective on the “substantial effect” criterion, one that takes into account the crucial normative dimension of balancing the harmful effects of aiding and abetting with their corresponding social benefits. As a result, the article outlines a refined theory of the actus reus of complicity that enables a more holistic evaluation of accomplices’ conduct.

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