National Surveys:
Category I: Crimes Against Humanity
Category II: Forced Labor/Enslavement
Category III: War Crimes Part I
Category III: War Crimes Part II
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Part I
Framing the issues
In conflict zones, individual perpetrators (e.g. government soldiers or armed rebels) may inflict harm on civilians that amounts to violations of international humanitarian law (IHL) or international criminal law (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 insurgencies, 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, including participating in the criminal 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 continues 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), a plunder that helped sustain wars that resulted in the death of over 3 million people due to violence and war-driven famine and disease. The reports paint a detailed picture of the role of companies, both local and multinational, in the networks built to facilitate the exploitation of the DRC’s natural wealth and the supply of combatants involved in the war.
This Commentary is an attempt to provide greater clarity and definition as to the liability under international law created by this sort of behavior. It enumerates the types of conduct that constitute breaches of international humanitarian or criminal law and outlines the relevant jurisprudence, both national and international. The Commentary is meant to serve as a guide for all of those interested in further defining the rights and responsibilities of economic actors in conflict zones, including victims and affected communities, lawyers and legal researchers, advocates and campaigners, and businesses large and small.
The Commentary sets forth examples in which business entities have been sued or prosecuted for crimes that constitute breaches of international humanitarian law or international criminal law. 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 violations of the relevant international law. By compiling the law and illustrative cases, the survey provides a comprehensive picture of the type of conduct that should be prevented and/or prosecuted after the fact when businesses are operating amidst conflict and violence.
The Most Common Offences
The Commentary is organized around the definition of predicate offences, so as to provide a guide to the concrete definitions of the types of business entity conduct that are potentially actionable via prosecution before an international tribunal. These predicate offences are actions by, for example, individual entrepreneurs or businesspersons that constitute direct violations or violations as an accomplice to the actions of others.
In the jurisprudence to date, the most frequently found violations of IHL/ICL committed directly by business entities include:
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Use of forced labor/enslavement (constitutes a crime against humanity when undertaken as part of a systematic attack on a civilian population);
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Pillage and plunder (a war crime);
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Deployment of child soldiers (a war crime);
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Use of land mines (a war crime);
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Deprivation of means of living (possibly a crime against humanity).
Forced labor and plunder are the two most common categories of abuses by business entities alleged to be direct perpetrators of IHL and ICL. In most cases, a theory of complicity is the predicate for alleging a business entity’s liability. In other words, for the majority of violations of IHL or ICL described in the Commentary, business entities are alleged to be liable on account of having aided and abetted violations 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 constituted International Criminal Court have excluded legal persons, a category that includes 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 yet 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 entity to be prosecuted for war crimes or crimes against humanity. Although a handful of countries have a jurisdictional 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 claimants to seek civil redress from companies for violations 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 violations. 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 crime but rather accomplices to it. How to define complicity or accomplice liability presents a significant challenge in the development of the law. When are business entities accomplices to criminal behavior and when are they mere bystanders? Do economic partnerships with repressive government actors or rebels make businesses complicit in ensuing human rights violations? There is as yet 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 approaches, the problem of
a variety of approaches to attribution presents another challenge to international
legal development.
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 include various voluntary codes and guidelines
that deal with businesses and human rights. The United National Global
Compact exhorts companies to avoid being complicit in human rights abuses,
but does not define complicity or the abuses to be avoided. The UN 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 disappearance; 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 commentary which accompanies 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 violations of international humanitarian law.
This commentary will be useful in the following respects:
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For researchers, the commentary provides a comprehensive examination of the ways in which business entities have been implicated, to date, in grave breaches of international law.
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Business associations, governments, and nongovernmental organizations (NGOs) working with the business community can begin to fashion guidance and other types of risk assessment tools that factor in the types of conduct described in this commentary.
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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, may find the Commentary a useful tool.
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The Commentary may contribute to consideration of the expansion of the jurisdiction of international institutions, such as the International Criminal Court, to include legal persons; or contribute to consideration of new instruments to deal with business participation in grave breaches of international law.
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 business entities is limited—although important.