The Arm of the Law gets Longer

Aftenposten (14 March 2005; translated from Norwegian)
By Mark Taylor and Christian H. Ruge, Fafo

Norwegian companies operating in war zones, occupied territories, and dictatorships must be better prepared to answer critical questions about whether their operations are in accordance with international law. Following recent revelations of questionable business conduct-including timber imports from Burma and Norwegian corporate powerhouse Aker-Kvaerner's involvement with the U.S. base at Guantanamo Bay and in Iran-this issue has gained resonance.

Courts in various countries have dealt with private companies that are, directly or indirectly, legally liable for violations of international law. For example, the American oil company Unocal was sued under the Alien Tort Claims Act and accused of complicity in torture, unlawful killings, and use of slave labour in Burma, charges that stem from Unocal's business relationship with the military government in the country (the case was recently settled, in a move hailed as a victory for the plaintiffs). Could this happen with Norwegian companies?

Aker Kvaerner, an engineering and construction conglomerate, has supplied the U.S. naval base at Guantanamo Bay, where the U.S. government keeps prisoners indefinitely in contravention to the Geneva Convention (denying them prisoner of war status). Released Guantanamo detainees have made allegations of torture against U.S. authorities. furthermore, the Norwegian government considers the rules under which prisoners are held in Guantanamo to violate international law. Aker Kvaerner has also been accused in the media of cooperating with an Iranian company owned by the Revolutionary Guards, an organisation suspected of international crimes.

A number of Norwegian companies also import timber from Burma, a trade that represents ten percent of that country's export earnings. As the Unocal case illustrates, it is not always clear the extent to which private business activities in that country can be separated from violations of international law committed by the junta and its agents.

Whose responsibility is it to ensure that Norwegian companies do not become complicit, knowingly or unknowingly, in international crimes such as torture or forced labour? Ultimately, it is the responsibility of the companies themselves. All companies that invest in a new country must first determine which legal regime to relate to: "What licences do I need to operate here? Which jurisdiction are we under? And who can sue us?" In war zones and countries with repressive regimes-that is, in violent places where basic human rights are violated routinely and where international crimes may be committed-otherwise legitimate business relationships (such as that between, for example, an extractive company and a regime) may lead to circumstances that prompt questions regarding legal liability for transgressions of international law. Private companies operating in such areas that wish to remain on the right side of national and international law must be able to answer critical questions regarding their activities, such as: "What parts of national and international law may this particular activity violate?"; and, "What kind of legal responsibility do we accept by cooperating with this particular company?"

Since 2001, Fafo has conducted research into the linkages between private sector activities and armed conflict. We have recently mapped national jurisdictions in five western countries to determine what the law says regarding situations where private companies violate, or contribute to violations of, international law. These are complex legal issues, covering different national and international legal areas, and that are treated differently from country to country.

In spite of this complexity, a clear trend emerges from all countries surveyed. Significantly, there is no need to develop new legal instruments to prosecute companies for violations of international law in a war zone or a repressive regime; existing legal systems in countries like the United States, Canada, United Kingdom, France, and the Netherlands have provisions to handle situations in which private companies are charged with direct or indirect violations of international law. Although this remains an area of the law with little in the way of precedent, that may change as state prosecutors and human rights campaigners see the potential of existing law to hold companies accountable for their activities.

Voluntary ethical guidelines also have a role to play in changing institutional behaviour within a company or business sector. To be efficient-in terms of reducing or eliminating the risk of a company ending up in court-such guidelines must be firmly anchored within existing national and international law. Currently very few sets of voluntary guidelines are so crafted.

Leaders of Norwegian companies that operate in legally perilous terrain may one day find themselves in a courtroom in Norway or abroad, answering the kind of questions they today get from journalists or activists. Therefore, Norwegian authorities should be willing and able to inform companies of the liability dangers they may face by operating in such areas. Meanwhile, both parties may gain from reading our legal surveys on www.fafo.no/liabilities.