Wolfgang Kaleck and Miriam Saage-Maasz are Director and Vice Legal Director respectively of the European Center for Constitutional and Human Rights.
The birth of international criminal justice coincided with commercial responsibility for international crimes: the Nuremberg trials were based on a broad understanding of the political, social and economic causes of the Nazi Regime’s unspeakable atrocities. In this light, the prosecution concluded that corporations and businesspeople were relevant actors in the commission of international crimes. In the face of this legacy, the current practice of prosecuting corporations and their managers seems rather regressive. Apart from the ATS civil litigation in the USA, which hardly ever leads to any final judgements or admissions of legal responsibility, there is little modern practice. Neither the International Criminal Court nor any of the international or hybrid tribunals have investigated the responsibility of business actors in a meaningful way.
Still, on the national level there is some change: Since the US Supreme Court restricted the ATS in the Kiobel decision, there are even more efforts to use (international) criminal law at the national level to hold corporations and their managers to account. In the Netherlands a Dutch business man has been convicted of aiding and abetting war crimes committed by Saddam Hussein against the Kurdish minority by supplying chemicals which were used to produce mustard gas. Also in the Netherlands there has been prosecution against a businessman for supplying weapons to Charles Taylor. Many other efforts have been initiated by victims, their representatives and civil society groups. In France and Germany several criminal complaints have been filed against corporations and their managers for allegedly supplying security agencies in repressive states like Syria, Bahrain and Libya with surveillance technology. Also in Germany there are ongoing investigations against a manager of a Timber trading company, which allegedly called police and military forces to raid a village in the DRC and which paid those forces after having raped several women and girls. Such prosecution in not only taking place in the home countries of the companies involved. In Argentina there are several criminal proceedings pending against large Argentine as well as EU and US companies focussing on the corporate complicity in the dictatorship crimes..
Many factual and legal obstacles remain, including the lack of corporate criminal liability in many legal systems, modes of liability which make it difficult to establish the culpability of corporate actors involved in international crimes, complex corporate structures, and factual difficulties in establishing mens rea in these cases. In light of this yet very imperfect and unsatisfying practice, can any human rights lawyer ever promise her clients that criminal prosecution of corporations will bring justice? Should we even try to pursue these sorts of prosecutions or do we simply need solutions within the economic sphere?
Social movements in the Global South and their lawyers have developed a very particular approach to these problems that transcends existing legal categories, without discarding the value of law and criminal prosecutions. A good example can be found in suits that were filed in the aftermath of unionist persecutions under military rule (Argentina) and in the context of corporate complicity in crimes committed during armed conflict (Colombia). Colombia is home to one of the highest levels of attacks on unionists in the world, accounting for half of unionist murders worldwide. According to some sources, over the last 25 years, about 2,500 unionists have been murdered in Colombia by paramilitary and state security forces. At the same time, the level of impunity is high. Unionists are subjected to threats, arbitrary detention, torture and killings, and in some instances, their participation in unions is criminalized.
The government of Colombia is either unable or unwilling to protect unionists adequately. Even after repeated interventions of the Inter-American Commission on Human Rights, the government failed to take the steps the Commission had imposed to protect threatened unionists. An emblematic case is the murder of the unionist Luciano Romero who, on 10 September 2005, was murdered by paramilitaries in Colombia while working for a subsidiary of the Swiss company Nestlé. Five lower-level paramilitary members have been convicted of this murder, and criminal proceedings have been initiated against other paramilitaries, informants and members of the former Colombian secret service. In one of the rulings in this case, justice Nirio Sánchez ordered the prosecution to investigate the company’s role.
In March 2012, the European Center for Constitutional and Human Rights and the Colombian union Sinaltrainal filed a criminal complaint against Nestlé AG and several of its leading figures. The case became necessary because investigations against employees of the Colombian company have not progressed within Colombia, and since they did not extend to the potential criminal liability of the foreign parent corporation. Thus, we have formally raised this question with the Swiss criminal investigative authority in order to determine the possible liability of Nestlé and its managers.
Although regulations on corporate liability have entered into force as part of Swiss criminal law, they have yet to be applied in practice at all, let alone in cases of extraterritorial human rights violations. Corporate liability according to article 102(1) of the Swiss Criminal Code is clearly distinct from common criminal concepts. It is an offense against the administration of justice and is relevant only if the crime was perpetrated from within a company in which there is no identifiable individual who can be held to account. Often, individuals cannot be identified due to a lack of organization, surveillance, or documentation. Thus, the company is punished for lack of organization rather than for the crime perpetrated.
The Swiss Federal Court rejected the complaint on 21 July 2014, as it considered the offences in question time-barred. It thereby deviated from the opinion of broad parts of the literature and the Swiss Federal Council, which consider violations on the basis of corporate liability as continuing offenses, so that a statute of limitations would not run before the underlying shortcomings in the company’s organization are remedied.
Regardless of this outcome, human rights organizations that supported the Swiss litigation hope that the analysis of corporate behavior according to criminal law standards will contribute to the human rights performance of businesses operating in armed conflict and weak states. The proceedings will provide multinational corporations active in these fragile political environments with guidance as to the necessary risk assessment they undertake before entering into these commercial ventures. At the same time, they will contribute to further defining the “corporate responsibility to respect human rights,” as postulated by the former United Nations Special Representative on Business and Human Rights in his Guiding Principles.
Criminal and civil proceedings against corporations for complicity in human rights violations face both practical and legal difficulties. Political interventions in favor of the accused companies constitute another challenge. All these problems can be observed in the cases discussed in this post. They are complemented by insufficient legal regulations to deal with these questions in countries such as Germany and the United States, where related legal challenges have failed. However, it might have been possible to overcome the legal problems raised by this type of litigation—just as it would potentially be possible to overcome them now in the United States and Argentina, where cases are currently pending—if the economic power of the defendant companies had not stymied proceedings.
Still, the cases mentioned here demonstrate that the judicial outcome is not the only measure of success of this litigation. The investigation, documentation and reporting of these sorts of cases are creating a new historical narrative in parts of German, Argentine, and Latin American societies. Often, an important and necessary first step toward ending impunity is to investigate cases of direct involvement in human rights violations. When justice and society accept the occurrence of human rights violations as a fact, it is then reasonable to inquire into the political and legal responsibility of economic and political actors. Legal proceedings in Europe, and later in the transitional countries themselves, can serve as models for human rights organizations and prosecutors all over the world, stimulating public discussions, academic research, and artistic engagement with the topic. In the course of this process, people have the opportunity to interrogate the root causes of a regime’s ruthless past, which constitutes a fundamental element of any effort to come to terms with a history of violence.
 IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, 31 December 2011, para.262; Escuela Nacional Sindical (ENS), 2.515 o esa siniestra facilidad para olvidar, Ediciones ENS, Medellin, 2007, p.11, http://www.ens.org.co/aa/img_upload/45bdec76fa6b8848acf029430d10bb5a/cuaderno_19.pdf
 ENS, n.1, p.11.
The IACHR has granted precautionary measures in favour of several trade unionist, see: IACHR, Precautionary measures of Marta Cecilia DíazSuárez and María MancillaGamboa-ASTEMP, 22September 2006, http://www.cidh.org/medidas/2006.eng.htm ; IACHR, Precautionary measures in favour of Francisco Eladio Ramírez Cuellar, 29 October 2004, http://www.cidh.org/medidas/2004.eng.htm ; IACHR, Precautionary measures in favour of Álvaro Vélez Carriazo et al, 19 May 2004, http://www.cidh.org/medidas/2004.eng.htm.
 Amnesty International (AI), Colombia: Killings, arbitrary detentions, and death threats – the reality of trade unionism in Colombia, London, July 2007, pp.40-41.
 European Center for Constitutional and Human Rights (ECCHR), Special Newsletter on the Criminal Complaint Against Nestle in the Case of theMurdered Colombian Trade Unioninst Luciano Romero, p.6, http://www.ecchr.de/index.php/nestle-518.html
 Criminal Court of the District of Bogota, Judgement in proceedings against Jose Ustariz Acuna and Jonathan David Contrera Puella, 26 November 2007, p.106 cont.
 ECCHR, n.6, pp.6-7.
 This solution is satisfactory only in part, for it continues to view individual criminal liability as the norm. Large companies often operate in a decentralized manner and with divided tasks. This allows companies to escape criminal liability by appointing nominal directors who do not actually attend to any managerial tasks of their division. They do, however, take responsibility in criminal proceedings in order to unburden the company as a whole. Those nominal directors are then financially compensated for any inconvenience occurring in the course of the proceedings.
 Amerika 21, Schweizer Bundesgericht lehnt Mordklage gegen Nestlé ab, 5 August 2014 [in German] https://amerika21.de/2014/08/103485/nestle-bundesgericht.
 U.N. Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, J. Ruggie, “Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework”, A/HRC/17/31 (21 March 2011), Principle 11.