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
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Business and International
Crimes
International Crimes
Category I: Crimes Against Humanity
Category II: Forced Labor/Enslavement
Summary
Business and International Crimes enumerates the types of conduct that
constitute breaches of international humanitarian law (IHL) or international
criminal law (ICL) and outlines the relevant jurisprudence, both national
and international that may clarify when business entities could be characterized
as having committed a grave breach of such laws.
Business and International Crimes sets forth examples in which business
entities or individual employees of these entities have been sued for
crimes that constitute breaches of IHL or ICL. It also contains a summary
of cases involving individual economic actors who have been prosecuted
for such offenses. These cases and examples provide the reader with an
understanding of how business entities and their employees (or management)
might be held legally responsible for breaches of relevant principles
of international law. By compiling the law and illustrative cases, Business
and International Crimes provides a comprehensive picture of the types
of conduct that should be prevented when businesses are operating amidst
conflict and violence.
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. This includes,
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Communities affected by the kinds of violence controlled by the laws enumerated here, as well as NGOs and others advocating new policies of accountability, voluntary guidelines or binding international instruments.
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Business associations, governments, and nongovernmental organizations (NGOs) working with the business community to fashion guidance and other types of risk assessment tools.
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Researchers who will find here a comprehensive examination of the ways in which business entities have been implicated, to date, in breaches of international law.
In addition, it is hoped that Business and International Crimes will make
a positive contribution to the development of international law. For example,
the findings presented here provide some of the analytical foundations
for consideration by Member States of the expansion of the jurisdiction
of international institutions, such as the International Criminal Court,
to include legal persons, or to consideration of new instruments to deal
with business participation in breaches of international law.
Crimes against Humanity
Crimes against humanity now are established as jus cogens norms (norms that are accepted and recognized by the international community of states as norms from which no derogation is permitted) and are implicitly recognized as such in the preamble of the Hague Convention, which served to codify the customary law of armed conflict. At present, eleven international texts enumerate the offences considered crimes against humanity, although there are slight inconsistencies among the definitions and the necessary elements involved. While variations abound, all texts and statutes date back to the Hague Convention of 1907, which codified armed conflict into customary international law. In 1945, the Allied powers at Nuremberg defined crimes against humanity as:
Murder; extermination, enslavement, deportation, and other inhumane acts
committed against civilian populations, before or during [the] war; or
persecutions on political, racial or religious grounds in execution of
or in connection with any crime within the jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country where perpetrated.
The Control Council Law No.10 and the Charter of the Military Tribunal
for the Far East utilized identical language to the Nuremberg Charter,
enhancing the definition by stating that: "leaders, organizers, instigators
and accomplices participating in the formulation or execution of a common
plan or conspiracy to commit any of the foregoing crimes are responsible
for all acts performed by any person in execution of such plan."
The United Nations Convention on the Non-Applicability of Statutory Limitations
to War Crimes and Crimes against Humanity, perhaps the closest text to
a specialized international convention on crimes against humanity, deemed
that these crimes may be committed in time of war or in time of peace,
even if such acts do not constitute a violation of the domestic law of
the country in which they were committed, and further elaborated that
the "statute of limitations shall apply…irrespective of the
date of their commission" (Article 1(b)), thereby altering the original
Nuremberg definition of crimes against humanity to extend to acts committed
outside the realm of a conflict zone.
The Rome Statute of the International Criminal Court (ICC) further extended
the category of crimes against humanity by including explanatory language
on enforced disappearance of persons, apartheid, enslavement, deportation
or forcible transfer of population, torture, extermination, and forced
pregnancy. The Rome Statute retained the requirement that the acts be
committed as part of a widespread or systematic attack directed against
a civilian population, listing the criminal acts as:
Murder; extermination; enslavement; deportation or forcible transfer of
population; imprisonment or other severe deprivation of physical liberty
in violation of fundamental rules of international law; torture; rape,
sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization,
or any other form of sexual violence of comparable gravity; persons against
any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender, or other grounds that are universally
recognized as impermissible under international law, in connection with
any act referred to in this paragraph or any crime within the jurisdiction
of the Court; enforced disappearance of persons; the crime of apartheid;
other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
The International Criminal Tribunal for the Former Yugoslavia (ICTY),
the International Criminal Tribunal for Rwanda (ICTR), and the Statute
of the Tribunal of the Special Court for Sierra Leone all conform with
the language set forth in the Rome Statute, whereby an act must be committed
as part of a "widespread or systematic attack against any civilian
population." Under Article 7 of the ICTY Statute, however, "the
International Tribunal shall have the power to prosecute persons responsible
for the following crimes when committed in armed conflict, whether international
or internal in character, and directed against any civilian population."
Although various interpretations exist as to the definitions and legal
elements of particular crimes against humanity, agreement has been reached
that crimes against humanity may occur either in war or peace, that violations
may occur irrespective of the nationality of the victim, that the acts
must be the product of persecution against an identifiable group of persons
irrespective of the makeup of that group or the purpose of the persecution,
and that such acts must be part of a widespread or systematic attack against
a civilian population.
The widespread or systematic attack component creates a more arduous threshold
for those seeking redress from such violations. A systematic attack-one
centered on a specific policy or one that targeted a number of individuals-may
be the work of a government or even a non state actor that holds a relationship
with a business entity. Under this component, a business entity might
be held liable for aiding and abetting in such violations if a court can
prove that there is a connection between the deed and the strategy, and
that the business knew, or should have known, that the act was one part
of a widespread or systematic attack. In addition, the elements of mens
rea (state of mind, sometimes understood as intent) as well as actus reus
(acts of omissions) remain necessary for a finding that a particular business
entity is liable.
As the notion has evolved over the last century, crimes against humanity
have been firmly established as jus cogens norms, or customary international
law. The implication of this development is that commissions of crimes
against humanity are viewed as non-derogable and may be subject to States'
exercising their jurisdiction in holding a person accountable, regardless
of the jurisdiction in which the crime was committed. Furthermore, those
charged with committing crimes against humanity lose their ability to
claim the defense of obedience to superior orders and may not resort to
the statute of limitations supplied in national jurisdictions.
War Crimes
IHL provides the basis for legal doctrine governing warm crimes. IHL
provides for individual criminal responsibility for certain acts that
occur during times of armed conflict. While specified acts that constitute
crimes against humanity as well as war crimes overlap, such replication
does not deflate the important norms that apply to both war and peace.
War crimes originally were codified in the Hague Conventions of 1899 and
1907, and later identified in the 1945 Charter of the International Military
Tribunal at Nuremberg, as breaches of the law or customs of war, including
but not limited to:
Murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
In addition, the four 1949 Geneva Conventions served to codify IHL in the aftermath of World War II, and established a set of war crimes in treaty form which became known as the "grave breach" provisions. In particular, the fourth Convention offered several advances to the protection of civilians during armed conflict: by ensuring applicability in all international conflicts, regardless of any formal declaration of a state of war; by elaborating on the basic principles necessary for non-international armed conflict; and by providing a list of grave breaches for which states were obliged to enact penal legislation to enable the prosecution or extradition of individual offenders. The grave breaches provisions, only applicable in international armed conflicts and occurring against protected persons or during combat activities, include:
Willful killing; torture or inhuman treatment; willfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or civilian to serve in the forces of the hostile power; willfully depriving a prisoner of war or protected civilian of the rights of a fair and regular trial; unlawful deportation or transfer of a protected civilian; unlawful confinement of a protected civilian; and taking of hostages.
Additional Protocol I of 1977 broadened the grave breach provisions for international conflicts to include:
Certain medical experimentation; making civilians and nondefended localities the object or inevitable victims of attack; the perfidious use of the Red Cross or Red Crescent emblem; transfer of an occupying power of parts of its population to occupied territory; unjustifiable delays in repatriation of POWs; apartheid; attack on historic monuments; and depriving protected persons of a fair trial.
Indeed, the import of such grave breach provisions is that it places the responsibility on states to extradite or prosecute individuals who have allegedly violated such acts, while other war crimes acts-indeed, the majority of international humanitarian legal provisions-do not have the same obligations, although they may be tried as war crimes under the "violations of the laws and customs of war" provision set forth in the Nuremberg Charter.
The grave breaches provisions enumerated in the Geneva Conventions and Additional Protocol I exclude crimes committed during civil war. In regulating armed internal conflict in internal conflict, Common Article 3, Additional Protocol II, and ICC Article 8 detail war crimes violations for intra-state armed conflict. Specifically, under Common Article 3, those acts that are considered breaches of IHL in times of civil war are:
Murder; mutilation; cruel treatment; torture; outrages upon personal dignity; taking hostages; sentencing or execution without due process; and failing to collect and care for the wounded and sick.
The 1977 Additional Protocol II set forth new rules and protections specifically for internal armed conflict, such as:
Collective punishment; acts of terrorism; slavery; threatening to commit a war crime; starvation as method of combat; hostility directed against historic monuments, works of art, or places of worship; and attacks against dangerous forces, namely dams, dykes, and nuclear electrical generating stations.
Such protections are notably fewer than for international armed conflict.
Additionally, the customary law status for such "internal" war
crimes is not as well established, making it more difficult to prosecute
war crimes violations in internal conflict situations.
The threshold for invoking IHL in internal armed conflict is quite high.
Not all internal armed conflicts will meet such a threshold. There must
be responsible command (within the opposing armed groups), two sets of
armed forces, and sufficient control over territory (by an armed group)
to carry out sustained operations. The threshold is further raised under
Additional Protocol II, in that five objective criteria must be met. First,
there must be confronting parties, one of which is a state government,
and in addition each of the confronting parties must have:
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a responsible command structure;
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control over territory;
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sustained and concerted military operations; and
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the ability to implement Additional Protocol II.
Excluded from protection are non-armed, isolated and sporadic acts of
violence. For many countries mired in civil strife, governments will not
invoke Additional Protocol II provisions, as the states will deny that
a rival group, or rebel faction, has sufficient command.
While internal armed conflict provisions fail to include criminal liability
provisions, contemporary advances have occurred that may enable the prosecution
of war crimes that occur during internal conflicts. The ICTY and the ICTR,
and the ICC favor a reading of Common Article 3 and other breaches of
the laws and customs of war in civil armed conflict, which provide for
individual criminal responsibility for grave breaches committed during
internal armed conflict. In fact, protections based on Common Article
3 and Additional Protocol II has been codified into the statutes of the
ICTY, ICTR, ICC, and the International Law Commission's Draft Code of
Crimes Against the Peace and Security of Mankind (ILC Draft Code).
A number of World War II cases serve as examples of how tribunals might
hold business entities accountable for their involvement in war crimes.
In United States v. Krauch, et. al. (The I.G. Farben Case), twelve individuals
working for a major German chemical and pharmaceutical manufacturer, were
prosecuted for the war crimes of plunder and use of slave labor. During
the war, I.G. Farben took control of factories in Nazi-occupied territories
and employed concentration camp labor in the running of these factories.
One important aspect of this case is that it represented the first time
that a tribunal attempted to impose liability on a group of persons collectively
in charge of a company.
Forced Labour/Enslavement
Forced labor is defined as "all work or service that is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." (ILO 29, 1930) The treatise and statutes relating to forced labor offer a broad range of protections, such as freedom from:
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slavery and abductions;
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compulsory participation in public works projects;
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forced labor in agriculture and remote rural areas (coercive recruitment systems);
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forced domestic work;
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bonded labor;
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forced labor imposed by the military;
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being trafficked into forced labor ; and
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certain aspects of prison labor and rehabilitation through work.
While there is consensus on the definition of forced labor, some of the
interpretations or applications of the definition remain contested. According
to the International Labor Organization (ILO), one of the most controversial
elements of the norm against forced labor is the prohibition of compulsory
participation in public works in the context of economic development.
In many parts of the developing world, from Asia to Africa, such practices
are commonplace. The ILO has exempted the following from its definition
of forced labor:
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compulsory military service;
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normal civic obligations;
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certain forms of prison labor;
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forced labor during national emergencies; and
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minor communal services.
Forced labor should not be used as a means of discrimination based on
racial, social, national or religious grounds, for the purpose of economic
development, as political coercion, labor discipline or as punishment
for political protests.
Similarly, "enslavement" consists of the exercise of any or
all of the powers attaching to the right of ownership over a person and
includes the exercise of such power in the course of trafficking in persons,
in particular women and children, including acts such as debt bondage,
serfdom, and any institution or practice whereby a child or young person
under the age of 18 years is delivered by either or both of his natural
parents or by his guardian to another person, whether for reward or not,
with a view to the exploitation of the child or young person or of his
labor.
Forced Labor/enslavement is codified as an international crime against
humanity through the Statutes of the ICC, the ICTY, the ICTR, and the
Statute of the Far East War Crimes Tribunal and Control Council Law No.
10. Essentially, the necessary elements that are listed under Article
7(1) are, in addition to the widespread or systematic elements: that the
perpetrator exercise any or all of the powers attaching to the right of
ownership over one or more persons, such as by purchasing, selling, lending
or bartering such a person or persons, or by imposing on them a similar
deprivation of liberty.
Under modern legislation, the most important case involving charges of forced labor/enslavement is Roe and Doe v. Unocal. Filed under the U.S. Alien Tort Claims Act (ATCA) and state law, the case rested upon plaintiffs' allegations that Unocal violated the "law of nations" prohibition against forced labor, murder, rape, and torture by entering into a joint venture with the military government in Myanmar (Burma) for the purpose of providing security to an area surrounding the construction of a natural gas pipeline. According to the plaintiffs, the Myanmar military forced them to work on and serve as porters for the project by building helipads that were used by Unocal and Total officials who visited the pipeline, as well as to ferry materials to the pipeline construction site. Additionally, plaintiffs claimed that they were forced to build surrounding roads and roads directly leading to the pipeline and were made to act as porters, or workers who performed menial tasks such as hauling materials and cleaning the army camps for the soldiers hired to protect the pipeline.
The Unocal plaintiffs also linked the forced labor allegation with other
breaches of the "law of nations". They alleged that the military
ordered summary executions of those who refused to participate in the
forced labor program or of those who became too feeble to provide the
commanded service sufficiently. One individual trying to escape the program
allegedly was shot by soldiers and, in retaliation for his attempted escape,
his wife and baby were thrown in a fire, resulting in permanent injuries
for the wife and the death of the child. Other plaintiffs claimed that
rape was also part of the military's forced labor program.
A federal district court initially resolved all of plaintiffs' federal
claims in favor of defendant Unocal through dismissal and summary judgment.
Although the district court stated that Unocal could not be held liable
under the ATCA for forced labor because its actions did not rise to 'active
participation' in the act, the U.S. Court of Appeals for the Ninth Circuit
reversed in part and affirmed in part the district court's decision, and
granted an en banc rehearing of the case. The Ninth Circuit judges, in
considering the case, deemed that "forced labor is a modern variant
of slavery to which the law of nations attributes individual liabilities
such that state action is not required." Furthermore, the "evidence
suggests that Unocal knew that forced labor was being utilized and that
Unocal as a "joint venturer" benefited from the practice,"
and thus might be liable for aiding and abetting the military. However,
before an en banc hearing could take place, the parties settled all claims,
both state and federal, out of court for an undisclosed sum. One crucial
issue in the Unocal appeal before the Ninth Circuit was what legal standard
the court should apply when determining whether Unocal had aided and abetted
the military's use of forced labor.
Torture
Considered both a war crime and a crime against humanity, the prohibition of torture is a jus cogens norm, firmly rooted as a fundamental human right in the Universal Declaration of Human Rights, the International Covenant on Political and Civil Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples' Rights, and the American Convention on Human Rights. Furthermore, torture is prohibited in any armed conflict-international or internal-on any individual, combatant or civilian, under customary law and treaties such as the Geneva Conventions.
The most widely-accepted definition of torture is the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Taken from the 1975 U.N. General Assembly's Declaration on Protection
from Torture, torture is defined as :
Any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence
or a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from, inherent in or incidental
to lawful sanctions.
Torture, as a customary international norm, is universally prohibited
and, as is stated in the 1984 Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment, "no exceptional
circumstances whatsoever, whether a state of war or a threat of war, internal
political stability or any other public emergency, may be invoked as a
justification of torture."
The statutes of the ICTY, the ICTR and the ICC do not hold torture to
be an independent crime, yet both Tribunals follow the definition provided
by the Convention in prosecutions of torture as war crimes or crimes against
humanity.
A necessary distinction to be made is that the prohibition of torture
as codified in the Convention is merely illustrative, and the use of the
phrase "for any reason based on discrimination of any kind"
opens up the possibility for future application for a wide range of acts
committed. While the prohibition against torture therefore is widely encompassing,
two limiting elements exist: the act must create severe mental or physical
pain or suffering, and it must be "inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person
acting in an official capacity." The ICTY further expanded its limiting
elements to include:
(i) There must be an act or omission that causes severe pain or suffering,
whether mental or physical,
(ii) Which is inflicted intentionally,
(iii) And for such purposes as obtaining information or a confession from
the victim, or a third person, punishing the victim for an act he or she
or a third person has committed or is suspected of having committed, intimidating
or coercing the victim or a third person, for any reason based on discrimination
of any kind,
(iv) And such act or omission being committed by, or at the instigation
of, or with the consent or acquiescence of, an official or other person
acting in an official capacity.
The reference to "public official" or "persona acting in
an official capacity" refers to the requirement that torture, in
order to be considered an offense under international law, must be committed
by a state actor. This is often referred to as the "state action"
requirement.
A number of cases have been filed under the ATCA, invigorated by the passage
of the U.S. Torture Victim Protection Act (TVPA), a number of cases have
been filed that allege that economic actors aided and abetted violent
acts that amount to torture. Such cases, which are dicussed in the torture
section of the web site, include
Unocal, Wiwa, Talisman, Bowoto, ExxonMobil, and RioTinto. In each of these cases, plaintiffs allege that the corporations engaged in a working relationship with members of the host state military or government that amounted to state action.
Genocide
In the wake of the atrocities committed during World War II, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was drafted, establishing genocide as a crime under international law, regardless of whether the act occurred during war or peace. Maintaining individual criminal responsibility as well as state responsibility, the 1948 Convention defines genocide as:
Any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, as such: killing
members of the group; causing serious bodily or mental harm to members
of the group; deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part;
imposing measures intended to prevent births within the group; forcibly
transferring children of the group to another group.
The definition establishes that in addition to the physical act itself,
it is deemed criminal to conspire to commit genocide, to directly and
publicly incite others to commit genocide, attempt to commit genocide,
and to be complicit in genocide.
In order to be charged under the Genocide Convention, the crime must have
(1) a physical element, meaning that the perpetrator killed or caused
the death of one or more persons, and that such person or persons belonged
to a particular national, ethnical, racial or religious group; and (2)
a mental element, meaning that the perpetrator intended to destroy, in
whole or in part, that national, ethnical, racial or religious group,
as such, and that the conduct took place in the context of a manifest
pattern of similar conduct directed against that group or was conducted
that could itself effect such destruction.
The Genocide Convention, is considered customary international law and
thus binding on all states regardless of their status as signatories to
the treaty. Persons committing genocide or any of the other acts enumerated
shall be punished, irrespective of their status as heads of state, public
officials, or private individuals. However, in practice there are to date
very few precedents for implementing the Genocide Convention in international
tribunals or under national law.
Recently, civil lawsuits have been brought against business entities that
are alleged to have aided and abetted genocide. Under the ATCA, two civil
action suits are currently on appeal that include allegations of genocide:
The Presbyterian Church of Sudan v Talisman Energy, and John Doe I v.
Exxon Mobil Corp. In the Talisman case, the plaintiffs allege that Talisman
colluded with the Sudanese government to commit grave breaches of international
law such as extrajudicial killing, displacement, war crimes, confiscation
and destructive property, kidnapping, rape, and enslavement, against Christian
and other non-Muslim minorities in the Sudan by conducting a deliberate
campaign of ethnic cleansing to clear the land for oil exploitation, and
that the collective acts amount to genocide.
Despite two "Statements of Interest" from the U.S. and Canadian
governments, claiming that allowing the suit to proceed would be have
a chilling effect on trade, the district court denied defendants' motion
to dismiss for lack of jurisdiction and stated that a corporation may
be found to have the requisite specific intent (mens rea) to commit a
crime. In the Exxon Mobil case, it is alleged that the Indonesian military
provided security services for Exxon Mobil's joint venture in Indonesia's
conflict-ridden Aceh, where the Indonesian military is alleged to have
committed genocide, torture, crimes against humanity, sexual violence,
and kidnapping while providing security to the corporation. A decision
on defendant's motion to dismiss is pending.