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
Category V: Genocide
A. Precedent/Cases
INTERNATIONAL CASE LAW
Bruno Tesch was owner of a firm which arranged for the supply of poison gas intended for the extermination of vermin, and among the customers of the firm were the S.S. Karl Weinbacher was Tesch's Procurist or second-in-command. Joachim Drosihn was the firm's fist gassing technician. These three were accused of having supplied poison gas used for killing allied nationals interned in concentration camps, knowing that it was so to be used. The Defense claimed that the accused did not know of the use to which the gas was to be put; for Drosihn it was also pleaded that the supply of gas was beyond his control. Tesch and Weinbacher were condemned to death. Drosihn was acquitted
NATIONAL CASE LAW
A. The Netherlands
Prosecution of Frans van Anraat
Defendant is a Dutch businessman who sold raw materials for the production of chemical weapons to Iraq during the reign of Saddam Hussein. He was prosecuted for delivering thousands of tons of raw materials for chemical weapons to the former regime in Baghdad between 1984 and 1988. The materials are suspected of being used in the 1988 chemical attack on a Kurdish town that killed an estimated 5,000 civilians.
After his arrest and release in Italy in 1989, Van Anraat fled to Iraq, where he lived until Saddam Hussein's regime fell in 2003, Van Anraat returned to the Netherlands. He was arrested on December 6, 2004 and charged as an accomplice to war crimes and genocide. On December 23, he was sentenced to fifteen years in prison. A Dutch court found him guilty of aiding war crimes, as "his deliveries facilitated the attacks", including one with mustard gas on Halabja in northern Iraq." He cannot counter with the argument that this would have happened even without his contribution," the presiding judge said.
However, the judges ruled that van Anraat was not aware of the genocidal intentions of the Iraqi regime when he sold the ingredients for poison gas. The court argued the charges of complicity to genocide could not be substantiated. The public prosecutor has appealed the verdict.
B. United States – Alien Tort Claims Act
Some case information and summaries from the International Labor Rights Fund's project on Corporate Labor Rights Abuses. See: http://www.laborrights.org/projects/corporate/ATCA%20summaries.htm
1. The Presbyterian Church of
Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289 (S.D.N.Y. 2003)
Other published decisions : Presbyterian Church of Sudan v. Talisman Energy,
Inc., 374 F.Supp.2d 331 (S.D.N.Y. 2005)
Summary: Current and former residents of the Republic of the Sudan
brought charges under the ATCA, alleging that Talisman, a Canadian oil
company, provided support to the government of the Republic of the Sudan
in its ethnic cleansing campaign against non-Muslim Southern Sudanese.
Plaintiffs allege that Talisman participated in this campaign in order
to further its oil operations in Southern Sudan. Ethnic cleansing activities
included the destruction of thousands of villages and residences by military
aircraft, as well as the capture, enslavement, and killing of a substantial
number of civilians. These activities also resulted in the displacement
of hundreds of thousands of civilians.
Summary of Court Decision: Denying defendant's motion to dismiss, the court held that a corporation may be imputed as having the requisite specific intent to commit a crime.
Plaintiff Claims: The plaintiffs allege that the Sudanese government's "ethnic cleansing" activities resulted in the following violations:
-
Extrajudicial Killing
-
Forcible Displacement (a war crime)
-
Military Bombings and Assaults on Civilian Targets (a war crime)
-
Confiscation and Destruction of Property (a war crime)
-
Kidnapping
-
Rape
-
Enslavement
-
Torture
-
Genocide
Case History: The Complaint was filed in the U.S. District Court
for the Southern District of New York on November 8, 2001 against Talisman
and the Republic of the Sudan. Various attempts by the defendants to dismiss
the Complaint have been denied by the court, but in 2005 the district
court made two important decisions that benefit defendants. In Presbyterian
Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 458-65 (S.D.N.Y.
2005), the court held that plaintiffs did not meet all the requirements
for certification as a class for two reasons. First, because they seek
solely, in effect, money damages; and second, because liability of defendants
would depend of individual proof that the injuries claimed by plaintiffs
were proximately caused by defendants' actions. In Presbyterian Church
of Sudan v. Talisman Energy, Inc., No. 01-9882, 2005 WL 1060353 (S.D.N.Y.
May 6, 2005), the court held that organizational plaintiffs could not
sue on behalf of their members because the charges in this case require
individualized proof of proximate causation, necessitating the participation
of individual members of the lawsuit. This case has not yet gone to trial.
http://www.business-humanrights.org/Talisman-lawsuit.htm
2. 2. Doe v. Exxon Mobil Corp, No. 01-01357, 2005 U.S. Dist. LEXIS 23557 (D.D.C. Oct. 14, 2005)
Summary: Plaintiffs are eleven villagers from Aceh, Indonesia who allegedly suffered human rights violations including extrajudicial killing, torture, and crimes against humanity at the hands of the Indonesian military. They filed suit in 2001 against Exxon Mobil and various subsidiaries, and against a company partially owned by the Indonesian government. The plaintiffs allege the military officials were hired by defendants to provide security for their natural gas facilities in Aceh. Plaintiffs allege that defendants did so in the knowledge that these same troops had been responsible for massacres in East Timor, and would likely engage in massive human rights violations against the local population. Several of the plaintiffs further allege that they were tortured by the security forces inside the Exxon Mobil compound, in facilities provided by the company for the use of its security forces. Moreover, plaintiffs allege that all of the claims date from 2001, well after defendants had specific knowledge of massive human rights violations by its hired security forces, and did nothing to change the practices.
Summary of Court Decision: The U.S. District Court for the District
of Columbia granted in part and denied in part defendants' motion to dismiss.
The court held that adjudicating plaintiffs' claims of genocide and crimes
against humanity would impermissibly interfere with Indonesia's sovereignty
and U.S. foreign policy, as would adjudicating any claims against the
company partially owned by Indonesia. Neither "sexual violence"
nor aiding and abetting breaches of international law are actionable under
the ACTA Because plaintiffs failed to state a claim under the ATCA, there
was no subject matter jurisdiction over the international law claims either.
As the TVPA applies only to individuals, not corporations, and the companies
had not acted under color of law, the court dismissed all of the TVPA
claims. Only the state law tort claims remain for consideration.
Plaintiff Claims: The plaintiffs alleged the following violations:
-
Murder: A number of the plaintiffs allege that their husbands were murdered by security forces.
-
Genocide: Plaintiffs allege that the murders by state security forces were part of a systematic campaign of extermination against their people.
-
Torture: A number of the plaintiffs allege they were beaten, burned, shocked with cattle prods, kicked, and subjected to other forms of brutality and cruelty.
-
Kidnapping: A number of the plaintiffs allege they were forcibly removed by security forces and detained for lengthy periods against their will.
-
Cruel, inhuman or degrading treatment: Plaintiffs allege they were subjected to grossly humiliating and debasing treatment at the hands of the security forces.
-
Violence against Women: A female plaintiff alleges she was beaten and sexually assaulted by a member of the security forces.
-
Torts: Wrongful death, battery, assault, arbitrary arrest and detention, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, negligent hiring, negligent supervision, conversion, negligent supervision, conversion, and aiding and abetting.
Case History: Defendants filed a motion to dismiss on October 1,
2001. Plaintiffs' opposition to the motion to dismiss was filed on December
4, 2001 and the defendants' reply filed on December 21, 2001. On May 10,
2002, at the urging of Exxon Mobil, the court submitted a written request
to the Department of State for a nonbinding opinion as to whether the
adjudication of this case would impact adversely on the interests of the
United States. Following a letter by the State Department that the case
may be detrimental to a number of U.S. interests in Indonesia, including
specifically its negative impact on U.S. business, the court allowed the
parties to submit an additional briefing. A copy of the Complaint is available
at: http://www.laborrights.org/projects/corporate/exxon/exxoncomplaint.pdf.
B. Genocide Defined
1. Definition of Genocide and Punishable Acts
Under Article 2 of the Convention on the Prevention and Punishment of
the Crime of Genocide, "genocide" includes any of the following
acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group; or
(e) Forcibly transferring children of the group to another group.
Based on Article 3 of the Genocide Convention, the following acts are punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d ) Attempt to commit genocide; or
(e) Complicity in genocide.
2. Sources of Law
-
Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, U.N. Sales No., Art. 6(a) (available at: http://www.un.org/law/icc/statute/romefra.htm)
-
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighboring States, between 1 January 1994 and 31 December 1994, S/RES/955 (1994), Art. 2 (available at: http://www.ohchr.org/english/law/itr.htm)
-
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, S/RES/827 (1993), Art. 4 (available at: http://www.ohchr.org/english/law/itfy.htm);
-
Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, GA/RES/260 A (III) (1948) Arts. 2-3 (available at: http://www.unhchr.ch/html/menu3/b/p_genoci.htm).
C. Elements
The elements of genocide are dependent on the type of crime committed. Following are the types of genocide and the associated elements, as listed by the International Criminal Court.
Genocide by killing:
1. The perpetrator ‘killed’ or ‘caused the death of’ one or more persons;
2. Such person or persons belonged to a particular national, ethnical, racial or religious group;
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such;
4. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
Genocide by causing serious bodily or mental harm, including conspiracy, direct and public incitement to commit such genocide, attempt, and/or complicity:
1. The perpetrator imposed certain measures upon one or more persons;
2. Such person or persons belonged to a particular national, ethnical, racial or religious group;
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such;
4. The measures imposed were intended to prevent births within that group; and
5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
Genocide by deliberately inflicting conditions of life calculated to
bring about physical destruction, including conspiracy, direct and public
incitement to commit such genocide, attempt, and/or complicity:
1. The perpetrator inflicted certain conditions of life upon one or more persons;
2. Such person or persons belonged to a particular national, ethnical, racial or religious group;
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such;
4. The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part. (This may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.); and
5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
Genocide by imposing measures intended to prevent births, including conspiracy, direct and public incitement to commit such genocide, attempt, and/or complicity:
1. The perpetrator imposed certain measures upon one or more persons;
2. Such person or persons belonged to a particular national, ethnical, racial or religious group;
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such;
4. The measures imposed were intended to prevent births within that group; and
5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
Genocide by forcibly transferring children, including conspiracy, direct and public incitement to commit such genocide, attempt, and/or complicity:
1. The perpetrator forcibly transferred one or more persons. The term "forcibly" is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment;
2. Such person or persons belonged to a particular national, ethnical, racial or religious group;
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such;
4. The transfer was from that group to another group;
5. The person or persons were under the age of 18 years;
6. The perpetrator knew, or should have known, that the person or persons were under the age of 18 years; and
7. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.