National Surveys:
Category I: Crimes Against Humanity
Category II: Forced Labor/Enslavement
Category III: War Crimes Part I
Category III: War Crimes Part II
The contents and documents of this web site are
intended for research purposes and do not constitute legal advice. Fafo
and IPA are not responsible for the content of linked web sites
Business and International Crimes
Assessing the Liability of Business Entities
for Grave Violations of International Law
There is growing evidence that business activities can have a detrimental impact on human rights in wars and dictatorships. Yet, to date, there are few effective remedies available. In war-torn or repressive states, host governments lack the capacity or the will to enforce domestic laws relating to business conduct. Likewise lacking are international policy or legal instruments to hold accountable those whose economic transactions contribute to and profit from the perpetration of human rights violations.
Business and International Crimes is an attempt to provide greater
clarity and definition to the question of what types of activities, when
committed or aided by businesses, might lead to liability under international
law. The Business and International Crimes project is intended to promote
the systematic identification and strengthening of existing criminal law
norms and practices in order to deter illicit economic exploitation in
repressive or war-torn countries.
Update to National Surveys now on the web
September 2009
As a follow up to the release of Business and International Crimes in 2006, Fafo sought answers from the participating lawyers and legal scholars to some additional questions. These were focused on mapping out the different forms of complicity that exist in domestic law and how they might apply to business entities. The questions relate to forms of complicity, domestic tests for mens rea and the nature of material support required. The Supplement Responses cover most of the jurisdictions surveyed.
The Supplemental Responses can be downloaded directly by clicking on the following:
Argentina, France, Germany, Japan, Netherlands, South Africa, United States.
There is also a compilation of Additional Commentary by participating lawyers and legal scholars who reviewed the Surveys and provided comment.
Our thanks to all of those who responded and a special thanks to Robert Thompson for compiling the responses and the Additional Commentary.
Obstacles to Legal Accountability
Universal Jurisdiction Statutes
The United States Alien Tort Claims Act
Establishing Proper Jurisdiction and Venue
Attributing Liability to the Business Entity
What's available on the web site?
This web site maps the provisions of the relevant international and national laws and summarizes the jurisprudence developed by national and international case law. The web site describes the types of conduct that constitute breaches of international huma-nitarian (IHL) and international criminal law (ICL) and provides examples in which business entities have been brought to court for crimes that constitute breaches of IHL and ICL.
The Business and International Crimes web site includes:
-
National Surveys: Sixteen (16) comparative surveys of national jurisdictions outlining in each country to provisions creating private sector liability for grave violations of international law.
-
International Crimes: A summary of predicate offences, including case summaries, which outlines the liability of private sector actors (business entities) for grave violations of international law. Click on 'International Crimes' to see a list, as set out in statutes concerning genocide, war crimes, crimes against humanity, and certain human rights instruments. The case law summarized there describes such predicate offences as they actually or potentially apply to the behaviour of economic actors in repressive or war-torn states.
-
A search engine which will search both the national surveys and the 'International Crimes' sections.
-
A short summary called 'Framing the Issues' below on this page which high-lights some of the findings from on the web site.
Framing the issues
In wars and dictatorships, individual perpetrators (e.g. government soldiers
or armed rebels) may inflict harm on civilians that amounts to breaches
of IHL or ICL-namely war crimes, crimes against humanity, torture, genocide,
or enslavement (forced labor). Crimes against humanity and genocide may
also be committed in dictatorships or insur-gencies, but in the absence
of war. Individual perpetrators may be prosecuted later for such conduct
in an international war crimes tribunal, such as the International Criminal
Court (ICC), or in special purpose courts such as the ad hoc tribunals
established for the former Yugoslavia and Rwanda, or the Special Court
in Sierra Leone.
When business entities operate in conflict zones or in repressive states,
they run the risk of becoming implicated in violence and participating
in the criminal or illicit activity of others. German and Japanese industrialists,
for example, became entangled in the criminal activity of their governments
during the Second World War. At Nuremberg, prominent German industrialists
were prosecuted for war crimes, including the use of forced labor in their
factories, plunder and the exploitation of property in occupied territories,
and the provision of the deadly gas for use in the death camps. Similarly,
a British military tribunal prosecuted Japanese mining officials as part
of the Far East war crimes trials.
Unfortunately, this sort of behavior appears to continue today. For example,
a United Nations Panel of Experts identified a group of multinational
enterprises alleged to have participated in some way in the plunder of
natural resources in the Democratic Republic of the Congo (DRC). Such
illicit plunder helped sustain wars in that country which re-sulted in
the deaths of over 3 million people due to violence and war-driven famine
and disease. The reports paint a detailed picture of the supply of combatants
involved in the war and of the role of businesses, both local and multinational,
in the networks built to facilitate the exploitation of the DRC's natural
wealth. Yet, the UN reports themselves failed to adequately respond to
the problem of what laws may have been broken, if any.
Business and International Crimes is an attempt to provide greater clarity
and definition to the question of what types of activities, when committed
or aided by businesses, might lead to liability under international law.
The web site describe the types of con-duct that constitute breaches of
IHL and ICL and outlines the relevant jurisprudence, both national and
international, where business entities or individual economic actors are
alleged to have breached international law. Business and International
Crimes is meant to serve as a guide for all of those interested in further
defining the rights and responsibilities of economic actors in war and
dictatorship, including victims and affected communities, lawyers and
legal researchers, advocates and campaigners, and businesses large and
small.
Business and International Crimes sets forth examples in which business
entities have been sued for crimes that constitute breaches of IHL or
ICL. It also provides a summary of cases involving individual economic
actors who have been prosecuted for such offenses. This provides the reader
with an understanding of how business entities and their employees (or
management) might be held legally responsible for breaches of the relevant
international law. By compiling the law and illustrative cases, the web
site pro-vides a comprehensive picture of the types of wrongful conduct
that should be prevented and/or prosecuted when businesses are operating
amidst conflict and violence.
Who's this for?
Business and International Crimes is meant to serve as a guide for all of those interested in further defining the rights and responsibilities of economic actors in war and dictatorship. The web site is intended to provide the reader with an understanding of how business entities and their employees (or management) might be held legally responsible for breaches of the relevant international law. By compiling the law and illustrative cases, the web site provides a comprehensive picture of the types of wrongful conduct that should be prevented and/or prosecuted when businesses are operating amidst conflict and violence.
Business and International Crimes is intended for several audiences:
-
Communities affected by the kinds of violence controlled by the laws enumerated here may find this a useful starting point for addressing the problems they face.
-
Business associations, governments, and nongovernmental organizations (NGOs) working with the business community will find here the normative basis to begin fashioning guidance and risk assessment tools.
-
NGOs and others in civil society advocating new policies of accountability, vo-luntary guidelines or binding international instruments will find here a reflection of existing legal practice that can help shape future policies.
-
Member States will find the comparative basis for considering the expansion of the jurisdiction of international institutions, such as the International Criminal Court, to include legal persons, or for considering new instruments to deal with business participation in grave breaches of international law.
-
Researchers and jurists will find a comprehensive examination of the ways in which business entities have been implicated, to date, in grave breaches of inter-national law, and a useful starting point for further investigation in this area.
The contents and documents of this web site are intended for research
purposes and do not constitute legal advice.
We welcome comments, feed-back, up-dates and news. We also encourage lawyers
and legal researchers from countries that have yet to be surveyed to use
the survey instru-ment available on this web site as a way to explore
their own jurisdiction. We ask only that you let us know the results,
and let us know how well the survey instrument suited your legal system.
The Most Common Offences
This web site is organized around definitions of certain predicate offences,
so as to provide readers with a guide to concrete definitions of the types
of conduct that are potentially actionable via prosecution or civil litigation.
These 'predicate offences' are actions by, for example, individual entrepreneurs
or businesspersons, and in some cases business entities that constitute
direct breaches of international law or breaches for aid-ing and abetting
the actions of others.
To date, business entities most frequently alleged to have directly committed
the follow-ing breaches of IHL/ICL:
-
Forced labor/enslavement (constitutes a crime against humanity when undertaken as part of a systematic attack on a civilian population);
-
Pillage and plunder (a war crime);
-
Deployment of child soldiers (a war crime);
-
Use of land mines (a war crime);
-
Deprivation of means of living (possibly a crime against humanity).
-
Forced labor and plunder are the two most common alleged categories of breaches committed by business entities as direct perpetrators (rather than as accomplices).
In most cases, however, business entities are alleged to be accomplices
rather than direct perpetrators of a crime. In other words, for the majority
of breaches of IHL or ICL iden-tified here, business entities are alleged
to be liable on account of having aided and abetted breaches by others
(e.g., governments, paramilitary groups, etc), not as direct perpetrators.
Obstacles to Legal Accountability
There are significant hurdles to formally holding business entities liable
for grave breaches of international law. First, there are limited fora
where business entities might be held responsible for their conduct. International
tribunals-such as the newly consti-tuted International Criminal Court--have
excluded "legal persons," a category that in-cludes business
entities, from their jurisdiction. Second, many countries do not recognize
an equivalence between legal persons and natural persons for purposes
of prosecuting grave breaches of international law. Even in jurisdictions
that do permit criminal prosecutions or lawsuits against legal persons,
there remain other procedural and substantive impediments to bringing
cases against business entities. As a result, no international tribunals
have prosecuted business entities as such.
Universal Jurisdiction Statutes
Universal jurisdiction statutes in countries such as the United Kingdom,
Canada, France and Norway theoretically make it possible for some business
entities to be prosecuted for war crimes or crimes against humanity. Although
a handful of countries have a juris-dictional basis for prosecuting legal
entities as well as natural persons, there are many hurdles (political
and legal) to bringing such prosecutions in the near future.
The United States Alien Tort Claims Act
The United States is the only jurisdiction with a specific civil (tort)
statute that permits foreign claimants to seek civil redress from companies
for breaches of international criminal and humanitarian law. Over the
past few years, a number of business entities have been sued in the United
States under the federal Alien Tort Claims Act (ATCA) for such breaches.
Many of the defendant corporations are involved in business operations
in conflict zones, often through subsidiaries.
Defining Complicity
As noted above, business entities may not be direct perpetrators of a
crime but rather accomplices to it. How to define complicity or accomplice
liability presents a significant challenge in the development of relevant
international norms When are business enti-ties accomplices to criminal
behavior in the international context and when are they mere bystanders?
Do economic partnerships with repressive government actors or rebels make
businesses complicit in ensuing human rights violations? As of yet, there
is no definitive answer.
Establishing Proper Jurisdiction and Venue
In addition to the problem of defining complicity is the issue of jurisdiction.
Many business entities operate overseas through independent subsidiaries
or through joint venture vehicles. When a court tries to assess whether
it has jurisdiction over a particular business entity, it needs to examine
the structure of the business enterprise as a whole to determine whether
it has jurisdiction over the conduct of the parent. This is difficult
from an evidentiary standpoint.
Attributing Liability to the Business Entity
Similarly, the evidentiary challenge involving legal entities can vary
by jurisdiction. Various jurisdictions approach the issue of how to attribute
liability to a business entity in different ways. Thus, while domestic
prosecutions will reinforce those individual ap-proaches, the problem
of a variety of approaches to liability attribution presents another challenge
to the development of a common international standard.
There has been an increasing interest in elaborating rules that would assist in ensuring that companies avoid participation in international crimes. Examples of such efforts in-clude various voluntary codes and guidelines that deal with businesses and human rights. The U.N. Global Compact exhorts companies to avoid being complicit in human rights abuses, but does not define complicity or the abuses to be avoided. The U.N. Subcommission on Human Rights has created the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. The Draft Norms state that:
Transnational corporations and other business enterprises shall not engage in nor benefit from war crimes; crimes against humanity; genocide; torture; forced dis-appearance; forced or compulsory labor; hostage-taking; extrajudicial, summary or arbitrary executions; other violations of humanitarian law; and other international crimes against the human person as defined by international law, in particular human rights and humanitarian law.
The comments which accompany the Draft Norms makes some reference to security arrangements used by business entities engaged in overseas activities, but does not delve into what it means for business enterprises to engage in or benefit from war crimes and other breaches of IHL.
It should be noted that international humanitarian and criminal law are
two subsets of a much broader list of unacceptable activities that may
be controlled by other bodies of international law. Thus, the potential
scope of using IHL to change the behavior of busi-ness entities is limited-although
important.
