Editor’s note: Maisie Biggs graduated with a
MSc in Global Crime, Justice and Security from the University of Edinburgh and
holds a LLB from University College London. She is currently working with the
Asser Institute in The Hague. She has
previously worked for International Justice Mission in South Asia and the
Centre for Research on Multinational Corporations (SOMO) in Amsterdam.
The ‘web’ of domestic statutory liability for international
criminal law (ICL) violations by legal persons has spread. The previous post in this series outlined
developments at the international level, however domestic courts play a
fundamental role in its development and have been far more active on this
front. These domestic developments are particularly remarkable in France, The
Netherlands and Sweden. The American Alien Tort Statute caselaw will be
discussed in the next post in this series.
Domestic-level developments
As the
Special Representative of the Secretary-General for the Human Rights Council,
John Ruggie has highlighted the dual role of national courts and international
tribunals in developing corporate responsibility for international crimes:
“One [of two developments] is the expansion and
refinement of individual responsibility by the international ad hoc criminal
tribunals and the ICC Statute; the other is the extension of responsibility for
international crimes to corporations under domestic law. The complex
interaction between the two is creating an expanding web of potential corporate
liability for international crimes, imposed through national courts.[1]
The ICC was always intended to be supplementary
to domestic courts, which are integral to the implementation and development of
international criminal law.[2]
The ICC’s remit (and resources) do not permit it to be the forum for the vast
majority of international crimes, rather it (ideally) should only be resorted
to when the relevant domestic courts are unwilling or unable to field international criminal law claims.
The development of ICL at the domestic level means that it may be applied to
legal persons in those forums.
The comparative law issue was at the crux of
the debates at the Rome Conference surrounding the drafting of the Rome
Statute; it was a step too far for an international instrument to impose a new
and novel application of criminal law (to legal persons) on states with no
prior history of doing so.[3]
In the interim however, states have begun to do so voluntarily.[4]
Anita Ramasastry and Robert C Thompson completed a wide survey of 16 countries
and found that the “potential web of liability”[5] is expanding. While
there are variations in how criminal conduct and intent are attributed to the
company, and the type of liability itself, countries are increasingly
subjecting business entities to statutory liability for international crimes.
David Scheffer, having witnessed the climate
surrounding corporate criminal liability during the Rome conference
negotiations, has since argued that legal systems and international law have
evolved due in part to those inconclusive negotiations:
“States certainly did not act as if the Rome
Treaty precluded expanding corporate liability into the realm of atrocity
crimes. Indeed, one might speculate that the Rome Treaty, by focusing ratifying
States’ attention on atrocity crimes, provided an impetus to accord greater
accountability within their domestic legal systems.” [6]
Common-law countries in general adopted
corporate criminal liability earlier than civil law, however these have come on
board more recently; the highest-profile hold outs against this trend remain
Germany, Sweden and Russia, which use alternative mechanisms to attach
liability for corporate involvement in international crimes.[7]
However, actual prosecution of legal persons remains rare. Dieneke De Vos’s run down of pre-2018 developments which already evidenced the “emerging norm” of
finding potential corporate liability for ICL violations at the domestic level,
at the same time acknowledged the rarity of prosecution.
The Netherlands
A number of high-profile Dutch cases have
arisen in recent years of corporate actors being prosecuted for war crimes and
international crimes, most notably in 2017 the Dutch Court of Appeal of ’s-Hertogenbosch
convicted the arms-dealer and businessman Kouwenhoven for complicity in war crimes in Liberia. Dutchman Frans van Anraat was similarly prosecuted in 2005 for complicity in
war crimes, due to his company selling the chemical ‘thiodiglycol’ to Saddam
Hussein’s regime.
In Dutch law a corporation can be criminally liable under article 51(1)
of the Dutch Penal Code (DPC).[8]
The Dutch Supreme Court has outlined the circumstances in which it would be
reasonable to impute illegal conduct to the corporation in the Drijfmest case, which are relatively flexible.[9]
International crimes are incorporated into Dutch domestic law through the International Crimes Act (ICA) 2003, which defined the offences as crimes (Section
10) and did not exclude legal persons (Section 16).
Businessmen have been convicted in the aforementioned Van Anraat and Kouwenhoven cases in the Netherlands, however despite the
possibility of corporate criminal liability for international crimes and the Dutch reputation for being a ‘pioneer’ in this area, successful prosecutions have yet to
materialise, and no cases have yet made it to the trial
phase.[10]
Proceedings under the ICA were initiated against a corporation, Lima Holding B.V., in the Riwal case. The Palestinian NGO Al Haq submitted a
complaint against the Dutch company for its role in the construction of a
security barrier between the West Bank and Israel. The prosecutor opted not to
try the case, citing practical resource issues and lack of cooperation from
Israeli authorities with the extraterritorial investigation. Public prosecutor
Thijs Berger has since explained that “access to the relevant administration
was not possible as the information was located at a subsidiary of the
corporation in Israel and the Israeli authorities refused to act on requests
for legal assistance sent by the Dutch Public Prosecutor.”[11] Though not ICL
cases, Dutch prosecutors have met with more success prosecuting companies for
transnational crimes in the international corruption cases of SBM Offshore and
VimpelCom.[12]
The reasons for the lack of Dutch prosecutions have been attributed to
possible adverse impacts of a prosecution on the Dutch economy; the limited
capacity of the Dutch Public Prosecutor’s Office; the practical issues
surrounding conducting investigations on foreign territory; and the bankruptcy
or otherwise disappearance of the company in question.[13]
France
The aforementioned cases, though they highlight
the role of corporate actors in conflicts, nonetheless all involve individual
liability of natural persons. However, the recent French Lafarge case involves the prosecution of the company itself (in
addition to former company executives) for international crimes, including
complicity in war crimes, crimes against humanity, financing of a terrorist
enterprise, deliberate endangerment of people's lives and forced labour.[14]
French corporate criminal liability is vicarious: offences must be “committed
on their account by their organs or representatives.”[15] For the purposes of
ICL prosecutions, this might prove an issue in the future regarding who properly
is a ‘representative’ or organ for the purposes of the company’s liability.
However, on the other hand it does partially lower the bar for finding
corporate liability once that representative’s fault[16] has been determined.[17]
There are more procedural barriers than under the Dutch system, leading to
questions about what these would mean should a prosecution materialise. Unlike
the Dutch, the French system of universal jurisdiction for core crimes does not
apply to legal persons, and the jurisdictional double criminality requirement
may mean that companies may not be prosecuted if the country where the crime
took place does not also subject legal persons to criminal liability.[18]
The Lafarge case in France may be the most discussed, potentially
impactful contemporary case for corporate criminal liability under ICL, however
French civil society groups have been especially proactive in bringing cases
before prosecutors and so there are other similar cases that started before Lafarge.
The 2009 DLH France case concerned the purchase of illegally obtained
timber which was helping fund the Liberian civil war, however the case was
dismissed by the Public Prosecutor in 2013.[19] The Amesys case concerned the French company Amesys which
contracted with the Libyan intelligence services to supply a communications
surveillance system, in so doing assisting the Gaddafi regime violently target
political opponents and protestors. The case for complicity in acts of torture
followed a complaint filed by FIDH (Fédération Internationale des Droits de l’Homme) and the French Human Rights League (Ligue française des droits de l’Homme - LDH), and is being heard before the Specialised War Crimes Unit within the
Paris Tribunal (Tribunal de grande instance). The case is ongoing.
The BNP Paribas Rwanda case concerns complicity in the Rwandan genocide by the
French bank. In 2017 the public prosecutor opened a judicial investigation into
charges of complicity in genocide and complicity of crimes against humanity.
These specifically concern $1.3m USD in funds transferred by the bank (in
violation of a United Nations arms embargo) that were allegedly used to
purchase weapons used in the genocide.[20] The initial
complaint was filed by Sherpa, Ibuka France, and the Collectif des Parties Civiles
pour le Rwanda. This case is also ongoing.
The 2017 judicial investigation into the Lafarge case has caused greater interest in observers. The European Center for
Constitutional and Human Rights (ECCHR), Sherpa, and some of Lafarge’s former
employees filed a criminal complaint against the French company for activities
in 2013-14 by its Syrian subsidiary. The case concerns a cement plant situated
in northeastern Syria which was acquired by Lafarge SA (now called
LafargeHolcim) in 2007, and continued operations as Islamic State forces
occupied the area. Lafarge is accused of financing IS through commercial
transactions, from buying raw materials to paying fees to armed groups to
continue factory operations. Now the company itself, in addition to eight of
its former executives, is facing criminal prosecution, formally indicted on charges of complicity in crimes against
humanity, endangerment of people's lives and financing of a terrorist
enterprise.
Sweden
The Swedish model, and past caselaw, were covered in our case note on the Lundin Petroleum case. In brief summary, Swedish prosecutors have utilised universal
jurisdiction for international crimes in past to prosecute three individuals involved in the
Rwandan genocide, and several cases of war crimes committed during the
Balkan Wars.
The Lundin case concerns the culpability of Swedish corporate
actors for harms perpetrated during Sudan’s oil
wars. Forfeiture of economic benefits and a corporate fine
(the closest punitive
equivalent to corporate criminal liability under Swedish law[21]) are being levelled at Swedish oil company Lundin Petroleum SA, and two company directors are personally facing criminal prosecution for aiding and abetting war crimes and crimes against humanity. The forfeiture claim is for the whole profit
of the oil exploitation over the years Lundin was involved in Sudan, and the
two men face life in prison if found guilty, so the charges are not
insubstantial. The Swedish Government’s authorisation is necessary in
extraterritorial cases to
allow the prosecution.[22] It was granted in this case, and subsequently the Supreme Administrative Court denied Lundin’s appeal to override the decision in favour of prosecution.
Swedish police have also opened a criminal investigation into harassment of witnesses.
At the Asser event on the Lundin case, Miriam Ingeson argued
that the increased capacity building for Swedish prosecutors to pursue
international crimes, and a positive duty to prosecute under Swedish law have
likely led to the increase in these investigations. She also explained this
case will challenge Swedish courts with the question of which general
principles to apply on accomplice liability; international tribunals, including
the courts of Rwanda, Yugoslavia, and ICC have developed international-level
principles that states are not necessarily obliged to apply. This case however
does reference general international legal rules, so the Swedish rules on
accomplice liability may yield to those developed by international tribunals.
The harms being investigated by the Swedish
prosecutors and the depth of the company’s alleged involvement are arguably
more serious than those in the French Lafarge case. Both cases are
(slowly) unfolding, potentially developing customary ICL in the process, so
comparisons between the two will inevitably continue.
Conclusion
The previous post discussed the Special Tribunal for Lebanon (STL) case,
and how heavily the judge leaned on developments in domestic courts concerning
corporate liability. That judgement and these domestic developments are
evidencing the interplay between the application of ICL in domestic courts[23]
and the international tribunals. The 2009 prophecy of Joanna Kyriakakis now
seems especially prescient:
“[T]he growing trend in legal systems in
Europe, Asia, and South America to incorporate extraterritorial corporate
liability for international crimes will likely function as a catalyst for
courts to construe international criminal law so as to apply to corporations as
non-state actors, or even bring the issue of corporate liability back to the
agenda of the states parties to the ICC.”[24]
Actual prosecutions are sparse however there is nonetheless a developing
trend to support the STL judge’s conclusions. This trend is still only on
paper: domestic statutory corporate liability for ICL violations has become
widespread, however even in these particularly active jurisdictions there have
been no convictions of legal persons for international crimes. The extreme
expense, political and economic issues inherent in any case of this kind
preclude there ever being a deluge of cases to look at, so the small number of
cases successfully making it to the investigation stages are cause for
analysis. The next post in this series will be
addressing the Kiobel v. Royal Dutch Petroleum Co and Jesner v Arab Bank cases before
American
courts, and specifically looking to the role of civil law in ICL.