Category Archives: Corporate Accountability

Deterrence of and Through Other Actors

As I mentioned in my earlier introduction to their groundbreaking piece, I believe Professors Jo and Simmon’s article (available here) is exceptionally important. In particular, I very much appreciate their addition of new theoretical nuance and empirical insight to the question of deterrence in international criminal law. My reactions are less a critique and more a set of pointers about other avenues through which empiricists (these or others) might think about measuring the role of international criminal justice in deterring atrocities in the future work they call for.  As with other aspects of my research, I am interested in the role of business in this regard, which is not a topic that is directly broached in this excellent paper. I briefly demonstrate the advantages of reorienting our thinking about deterrence towards economic actors as well as one particular danger this shift could entail.

Professors Jo and Simmons are rightly sensitive to the differences “type of actor” might generate for an assessment of the ICC’s deterrence. Astutely, they disaggregate states from rebel groups, then rebel groups with secessionist aspirations from those without. Likewise, in recognizing that deterrence might not operate uniformly across all international crimes, they wisely limit their project to a single international crime: intentional killing of civilians. In light of these limitations, they “encourage further research into a range of heinous crimes – from sexual violence to trafficking in children to widespread pillaging – that the ICC was meant to address.”

If this further research comes to pass, I would recommend: (a) further disaggregating the types of actors it focuses on beyond just states and armed groups, and (b) moving beyond the single crime model to assess the extent to which deterring some international crimes can ratchet up the deterrence of others.

Before I get to these arguments, I pause to reiterate a fact I hope is widely accepted, namely, that State actors and rebel groups are not the only agents implicated in atrocities—businesspeople and the corporations they represent are often instigators, masterminds and accomplices, too. I insist on these various forms of participation in deliberate opposition to a widespread but I think unfortunate perception that business invariably plays a role that is peripheral or auxiliary to mass violence. As others have shown (see infra), even the Nuremberg Judgment recognized that the most powerful German “industrialists” signed a petition calling on President Hindenburg to appoint Adolf Hitler Chancellor. In fact, Jonathan Bush has argued that a member of the company IG Farben paid a substantial bribe to facilitate that end. More recently, several modern cases in Africa also involve businesses at the helm of terrible bloodshed, not complicit in it.

Given this reality, it is curious that much of the literature on deterrence of atrocity to date has left business out, arguing that any rational incentive generated by criminal law is unlikely to restrain the fierce passion required to perpetrate offenses of this barbarity, particularly when the probability of prosecution is so low. Yet, as I have argued elsewhere, corporations and their representatives dispassionately pursuing profit rather than historical grievances, inter-ethnic rivalries or military control over capital cities also satisfy the formal elements of international crimes in certain circumstances. And importantly, the transnational corporations that sustain bloodshed are more exposed to foreign law enforcement, more prone to rational deliberation through their commitment to profit maximization, and likely to perceive conviction for a war crime as nothing short of a commercial catastrophe. Thus, they may be more easily deterred than the armed groups Jo and Simmons focus on.

Corporate offending should itself be deterred, but focusing on businesses may also have important trickle-down effects for the deterrence of armed groups Jo and Simmons address. In a recent debate about impunity staged by the International Center on Transitional Justice, I argued that prosecuting the arms vendors who provide weapons to notoriously brutal armed groups as accomplices may, in appropriate cases, be a way of incentivizing greater compliance with ICL norms by warring factions themselves. Prosecuting weapons vendors for complicity would say to states and rebel groups alike, “If your men don’t stop these intentional killings of civilians, you won’t get weapons because your suppliers will fear becoming implicated in these crimes, and without weapons, you’ll lose the war.” Tying military objectives to the need to observe law of war precepts may assist in deterring atrocity. Obviously, this basic model is very simplistic, but I wonder if it reveals possibilities that should feature in the future work Professors Jo and Simmons call for.

This brings us to “widespread pillaging.” Uncomfortably, in virtually every situation the ICC is presently addressing, commercial pillage of natural resources has provided a means and motivation for atrocity (I do not claim that it is necessarily the only or even the dominant motivation). Prosecuting commercial actors for pillaging conflict commodities, therefore, reveals another aspect of the new promise for deterring atrocity—the war crime of pillage is a gateway to many other international crimes. On the upside, focusing on commercial pillage of natural resources may deter actors who collectively make counterfactually dependent contributions to intentional killings of civilians in most modern conflicts – without the trade in pillaged diamonds, tin or oil, the perpetrators of mass violence will be less motivated to go to war and less able to bankroll atrocity once conflict erupts. On the downside, there is also a risk of over-deterrence, where the threat of sharp judicial redress deters legitimate commercial actors from operating in volatile political climates, thereby elevating worst actors into positions of authority and penalizing civilians who are dependent on illicit mining for basic sustenance in survival economies. Optimizing deterrence is thus another key question for the future.

In all, I view Professors Jo and Simmons’ article as a wonderful opening contribution to an emerging field. I hope this symposium will foster new scholarship on these critically important issues, and that this new work will also extend to and perhaps center on, the commercial sides of atrocity.

The Argor Heraeus Decision on Corporate Pillage of Gold

Earlier this year, a Swiss federal prosecutor wrote a reasoned opinion declining to prosecute a company named Argor Heraeus for pillaging Congolese Gold. I am grateful to Bénédict De Moerloose at TRIAL in Geneva and Ken Hurwitz at the Open Society Justice Initiative for their blessing to post the prosecutor’s decision (hereafter “the Decision”) here. The original German version of the Decision and an English translation the Open Society commissioned are now available in the links in this sentence. To the best of my knowledge, these documents are not online elsewhere, although the prosecutor did make them public by sending them to journalists (see here) and to the parties to the complaint.

I thought to write a neutral and constructive legal assessment of the prosecutor’s decision given that, some years ago, I wrote a legal study of pillage as applied to natural resources (see the English version here and the French version here), as well as an academic article that used the fact of a formal investigation against Argor Heraeus as an illustration of an important new legal development (see here). For present purposes, my neutrality is ensured by the fact that I know nothing whatsoever about the veracity of the allegations in the complaint, and I certainly do not vouch for or endorse any statement of fact about this case in the Decision or elsewhere. Accordingly, I also cannot form an opinion about whether or not the conclusion is correct.

Instead, I want to offer a balanced legal appraisal of the prosecutor’s reasoning in this the first formal document to discuss corporate pillage of natural resources ever. As will become apparent, I consider that the bulk of the legal reasoning is excellent but it is occasionally slightly erroneous – to the company’s benefit as well as its detriment. I hope my reactions are useful to reflections about this and other pillage cases moving forward, especially for a separate new case against a Belgian businessman involving the alleged pillage of Sierra Leonean diamonds, which has just resulted in an arrest in Belgium.

I resist the temptation to rehearse the factual allegations against Argor-Heraeus since these are contained in the Decision itself. Instead, I focus my legal assessment on pillage alone, even though the back end of the Decision also considers money laundering. The paragraph numbers I use within my headings below correspond to the paragraph number used in the Swiss prosecutor’s Decision. I have also cross-referenced relevant portions of my work with the Open Society on pillage whenever possible in the hope of providing a resource for those who wish to pursue these questions in greater depth than I can offer here.

Para 5.1.2 – For Private or Personal Use

The Decision adopts the definition of pillage set out in the ICC Elements of Crimes, which include the requirement that “The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.” In the ICC Elements of Crimes, this particular element is accompanied by an asterisked footnote, which reads: “As indicated by the use of the term “private or personal use,” appropriations justified by military necessity cannot constitute the crime of pillaging.” I certainly understand that adopting this definition of pillage from a source as apparently authoritative as the ICC is attractive, but I have argued that this element of the definition of pillage in the ICC Elements of Crimes is not part of the crime of pillage and courts have vindicated this position.

In the Pillage Manual (see paras. 16-20), I set out how this “private or personal use” element in the ICC Elements of Crimes is: (a) not binding even on the ICC; (b) inconsistent with the exceptions set out in the Hague Regulations of 1907; (c) at odds with the vast majority of pillage cases post WWII, which involved prodigious pillage of natural resources to further the Nazi war machine, not for personal or private profit; (d) inconsistent with the case law of other international courts and tribunals that define pillage without referencing “personal or private use”, and (e) at odds with the explicit finding of the SCSL that “the requirement of ‘private or personal use’ is unduly restrictive and ought not to be an element of the crime of pillage.”

It is not evident that the issue played any real role in the ultimate result in the Decision, but legally speaking, the question matters a great deal because this aspect of the definition in the ICC Elements of Crimes arguably implies that armed groups can expropriate resources for military purposes during war, which I think is not correct save under very specific circumstances I set out in the Pillage Manual (see paras. 78-100). Although not especially pertinent here, the error is somewhat unfortunate in that it disseminates an inaccurate message about the significance of pillage for resource wars.

Para 5.1.2  – The Element of Force

Within the portion of the reasoning dedicated to defining pillage, the Decision also stipulates that “[t]o some extent it is also required that an element of force must be present during pillaging.” I do not agree that this phrase should be included in this reasoning insofar as it misleadingly implies that companies or the armed groups they purchase from must use force to commit pillage. While their operations certainly must be “closely related” to an armed conflict (see Pillage Manual, paras. 32-39), force is not an element of the offense of pillage itself. I explain the various reasons why below.

As support for its statement about pillaging requiring force, the Decision refers to in the ICTY’s Mucić Trial Judgment, which reads:

“While it may be noted that the concept of pillage in the traditional sense implied an element of violence [footnote 604] not necessarily present in the offence of plunder, [footnote 605] it is for the present purposes not necessary to determine whether, under current international law, these terms are entirely synonymous.”

In my view, there are several problems with the prosecutor’s reliance on this statement in the Decision:

  • The use of force is not an aspect of the ICC Elements that the Argor Decision draws on earlier to define pillage. It seems methodologically inconsistent to rely on the ICC Elements for “private and personal use,” then disagree with them later without good reason;
  • There is a great deal of case law saying pillage and plunder are synonyms, and they are translated between French and English as such. (see Pillage Manual, paras. 10-14) None of these definitions require force;
  • To the best of my knowledge, the words “implied an element of violence” in the Mucić Trial Judgment have not appeared in any of the many pillage cases since this passing reference. It is therefore somewhat surprising that the language resurfaces here; and
  • Footnotes 604 and 605 in the Mucić Trial Judgement provide very weak support for the proposition in any event. They are nowhere near evidencing virtually uniform state practice capable of supporting the proposition’s existence in customary international law, perhaps explaining why the passing comment in Mucić has not appeared elsewhere.

Section. 5.1.3 – Indirect Appropriation

A survey of case law governing pillage shows that the term “appropriate” in the ICC Elements of Crimes includes direct appropriation of property from the owner as well as indirect appropriation from an intermediary by purchasing stolen property (see Pillage Manual, paras. 40-49). The indirect appropriation limb of this interpretation is supported by the literal language of the ICC Elements of Crimes and at least twenty-six cases from post WWII trials, as well as conceptual first principles (see Pillage Manual, paras. 44-49). The Decision attempts to avoid these sources of authority by arguing that “[i]f even one accepts the view of STEWART, the accused could not be considered as perpetrators since they never acquired the gold in the legal sense.”

I address the argument about conversion rather than theft of the property that the second aspect of the sentence references further below. For now, I want to make a minor point, namely that the basis for indirect perpetration is not reducible to my view. As the Pillage Manual shows (see paras. 44-49), there are at least twenty-six incidents of indirect appropriation in the history of pillage cases, and generally, this extent of practice is more than adequate to ground an interpretation of customary international law in international criminal law. As I go on to mention, this interpretation of pillage is also conceptually coherent – although many legal systems disaggregate receiving stolen property from theft, others do not, and it is coherent to treat subsequent transfers of property as a new appropriation depriving the true owner of the property (see Pillage Manual, para. 48)

One recent development in the law of pillage that is not mentioned in my earlier work with the Open Society warrants mention here, too. If the prosecutor was concerned that the indirect appropriation principle could implicate consumers of products manufactured from pillaged conflict commodities, there were better ways of addressing that concern. The recent case law on pillage emanating from the ICC requires a “substantial” acquisition of property to constitute the crime, which helps address this concern. Although the term “substantial” is often difficult to define with perfect precision, there is no doubt that it should exclude consumers who purchase commodities constructed from pillaged natural resources. For reasons I mention below (see Section 5.2 below), the indirect appropriation principle is also important in addressing ex post facto causation in complicity.

Section. 5.1.3 – Conversion not Theft

As I mention above, the prosecutor avoids indirect appropriation as an aspect of pillage by arguing that, in any event, “the accused could not be considered as perpetrators since they never acquired the gold in the legal sense.”  Apparently, the gold remained the property of a third party intermediary while Argor was involved in refining it. I do not think this argument is quite as clear cut at the Decision suggests; regardless of whether a company actually acquires title, they may have converted the property and conversion may suffice for pillage. In Anglo-American criminal law, the difference between conversion and theft turns on whether the party misappropriating the property wants to take title in the property or not. Interestingly, if one looks at the table of cases at the back of the Pillage Manual (see Annex A), a number of WWII pillage cases involved conversion alone (note that some of the of the “coercion” references should read “conversion”). Conceptually, this makes some sense. The overarching legal test is whether the accused “appropriated” property without the consent of the owner; it makes no mention of whether the deprivation must be permanent or just temporary. In any event, this is a question that requires more careful research and thought. Moreover, in the abstract, an agreement to help an intermediary dispose of conflict gold could make a refinery complicit in the intermediary’s pillage if the agreement existed ahead of time, even if pillage does require an intention to acquire the property permanently. I address a closely related issue next.

Section. 5.2 – Causation in Complicity

The prosecutor makes an argument in the complicity section of the Decision that goes against the company, which I think is probably incorrect. The decision states that:

“The refining and hence increased value of the raw gold by [ARGOR-HERAEUS] is therefore causative of the pillaging by the FNI in the sense that, without the prospect of refining it to fine gold with a standardised gold context, pillaging, illegal trading and smuggling of raw gold would by no means have been a lucrative affair for the FNI.”

This argument is compelling on its face but it is actually an instance of ex post facto aiding and abetting, since the original pillage is complete by the time the company allegedly acquired the gold. There is an interesting discussion of this problem of ex post facto aiding and abetting in modern international criminal law. To make a longer debate short, you cannot make a causal contribution to a completed crime unless you had an agreement to do so ahead of time. Here, it is not clear that this is the case, meaning that the company could not be complicit in the original act of pillage by purchasing the resources subsequently absent some type of collaboration ab initio. 

Consequently, this type of allegation is probably better conceived as complicity after the fact, which was carved off from complicity proper in most jurisdictions over a century ago precisely because of these types of problems with retroactive causation. These problems are part of the reason why indirect appropriation (see Section 5.1.3 above) is such a significant aspect of the law governing pillage – it overcomes this difficulty with ex post facto aiding and abetting by implicating purchasers in a separate act of pillage. For these reasons, following the case law that mandates indirect appropriation was probably preferable to over-extending causation in the realm of complicity.

Section. 5.2 – The Mental Element for Complicity.

There is much discussion about the mental element(s) required for complicity, and I have written about these from a comparative perspective (see here) as well as at the ICC as part of an expert symposium held on this blog some months ago (see here). The Decision weighs in on these interesting discussions by, I believe correctly, insisting that “should have known” is too low for complicity. There are very few systems of criminal justice that consider negligence appropriate as a standard for accomplice liability and I believe it has no role in international criminal justice (although I believe it should be the central touchstone in business and human rights. See here). Nonetheless, there are still grounds for questioning the mental element for complicity the Decision adopts.

In particular, the Decision makes no mention of dolus eventualis. One of the leading Swiss textbooks on criminal law indicates that “Le complice doit avoir l’intention de favoriser la commission de l’infraction, mais le dol éventuel suffit.” (The accomplice must have the intention to favor the commission of the crime, but dolus eventalis suffices). See Michel Dupuis, Bernard Geller & Gilles Monnier, Code Pénal: Petit Commentaire (2012), p. 191. In other words, intention is required, but intention includes a cognitive appreciation of a risk plus a volitional “making peace” with that risk. It is somewhat strange that this standard does not feature in this analysis. I also understand that dolus eventualis was an issue in an earlier Swiss decision by a prosecutor when problems with “neutral acts” arose. Thus, it is unclear why no recognition of this broader mental element for complicity emerged in the Decision, and why so-called “neutral acts” did not reappear here either.

* * *

I hope the foregoing is somewhat helpful. Again, I am in no position to express an opinion about whether this Decision is rightly decided on issues of fact. My kind thanks again to Bénédict De Moerloose at TRIAL and Ken Hurwitz at the Open Society Justice Initiative for offering to post this material here.

JGS

The Expressive Value of Corporate Prosecutions


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.[1] According to some sources, over the last 25 years, about 2,500 unionists have been murdered in Colombia by paramilitary and state security forces.[2] 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,[3] 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.[4] Five lower-level paramilitary members have been convicted of this murder,[5] and criminal proceedings have been initiated against other paramilitaries, informants and members of the former Colombian secret service.[6] In one of the rulings in this case, justice Nirio Sánchez ordered the prosecution to investigate the company’s role.[7]

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.[8] The case became necessary because investigations against employees of the Colombian company have not progressed within Colombia,[9] 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.[10]

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.[11]

The Swiss Federal Court rejected the complaint on 21 July 2014, as it considered the offences in question time-barred.[12] 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.[13]

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.

 

[1] 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

[2] ENS, n.1, p.11.

[3]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.

[4] Amnesty International (AI), Colombia: Killings, arbitrary detentions, and death threats – the reality of trade unionism in Colombia, London, July 2007, pp.40-41.

[5] 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

[6] Ibid.

[7] 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.

[8] ECCHR, Nestle precedent case: Charges filed in murder of Colombian trade Unionist, 6 March 2012, http://www.ecchr.de/index.php/nestle-518.html

[9] ECCHR, n.6, pp.6-7.

[10] Ibid.

[11] 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.

[12] Amerika 21, Schweizer Bundesgericht lehnt Mordklage gegen Nestlé ab, 5 August 2014 [in German] https://amerika21.de/2014/08/103485/nestle-bundesgericht.

[13] 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.

Transitional Justice, Corporate Responsibility and Learning from the Global South


Ruben Carranza is the Director of the Reparative Justice Program at International Center for Transitional Justice (ICTJ). These views are personal and do not necessary reflect those of the ICTJ.


When Latin American countries emerging from military dictatorships began their pursuit of transitional justice thirty years ago, they were not concerned with holding corporations accountable. They were more concerned with finding a balance between prosecuting individual perpetrators without jeopardizing political stability and responding to demands for truth and reparations. (They also didn’t call what they were then doing ‘transitional justice,’ which might be helpful to remember in debates over what kinds of human rights violations should be subject to accountability and whenever those from the global North involved in such debates presume to tell transitioning countries in the global South which kinds of perpetrators they should hold accountable.) But in the last few years, not only have Argentina, Chile and Brazil pursued prosecutions against former military leaders of their respective dictatorships; they have also started to seek the truth about economic crimes and the links between businesses and perpetrators of human rights violations during the dictatorships.

Corporate accountability, corruption, other economic crimes, violations of economic and social rights and disputes involving access to land and natural resources are all part of a broader set of grievances that many in the field of transitional justice simply regarded as background but did not consider inherent to the work of truth commissions, reparations programs or prosecutors. That has changed. There is now more pluralism and transitional justice has evolved from being narrowly focused on physical integrity violations to recognizing that armed conflict, political violence and repression cannot be de-linked from their economic and social causes and consequences. The way taken by transitional justice to get to where it is now might be a helpful map for those working on corporate accountability.

In 2011, Colombia’s Peace and Justice Court sentenced the notorious paramilitary leader known as El Aleman for various conflict-related crimes (this case was one of a number of domestic criminal cases cited in the reparations proceedings submission ICTJ filed in the Tomas Lubanga case). The Peace and Justice Courts are a transitional justice mechanism that imposes reduced sentences on leaders of right-wing paramilitary groups in exchange for confessing the truth and paying reparations. Instead of limiting herself to condemning El Aleman, the judge asked Colombia’s Attorney General to investigate the multinational company Chiquita Banana and to take measures to seize its assets in the country. It is not a thoroughly-argued discussion (the Justice and Peace court’s main mandate is to address the paramilitaries’ individual criminal responsibility) but it demonstrates that domestic courts established as a transitional justice mechanism can help establish certain corporate responsibility.

Before it became harder for victims of human rights violations abroad to sue corporations for compensation in the US under the Alien Tort Claims Act (ATCA), civil actions via ATCA were in effect the extensions of domestic transitional justice initiatives. By demanding compensation through their ATCA action, apartheid survivors belonging to Khulumani, were extending efforts in South Africa to hold corporations accountable through the truthseeking process. The ICTJ amicus brief in support of the plaintiffs argued that the TRC process “did not put an end to the pursuit of accountability for human rights violations committed under apartheid (but) in fact started it.”

But South Africa’s transitional justice experience shows the limits of holding corporations accountable in a transitional justice process animated by ‘reconciliation’ and guided by a design that limited to a matter of days the hearings on the role of business during apartheid. It did not help advance corporate accountability that post-apartheid governments ignored the TRC’s recommendation for a one-off ‘wealth tax’ on businesses that profited from apartheid. The failure of transitional justice in South Africa to hold corporations accountable was inherent in the design of the South African transitional justice ‘model.’ It makes it unreasonable to expect the Khulumani ATCA case to rectify these deficiencies.

But countries such as Timor-Leste, Chad, Liberia, Sierra Leone, Kenya and most recently Tunisia, were not dissuaded from turning to transitional justice as a way of extracting corporate accountability for the role of businesses during dictatorship or armed conflict. In different ways, their truth commissions and prosecutors examined ‘economic crimes’ alongside physical integrity violations, and the role of corporations in both types of abuse. The Liberia Truth and Reconciliation Commission (TRC) devoted 54 pages of its report to defining ‘economic crimes’ and identifying ‘economic criminal actors.’ The effort was inconsistent. The categories of violations, for example, refer to corporations involved in ‘aiding and abiding’ in economic crimes without an explanation of what that meant. On the other hand, the report detailed the impact of illegal timber exploitation during the conflict and the role played by corporations. This was possible because of the collaboration among local civil society, government and international community representatives in the Forest Concessions Review Committee (FCRC), whose data the TRC used. This suggests that when international technical expertise works with and respects local civil society and national government knowledge, examining corporate accountability in post-conflict contexts can be done effectively.

At the start of its work, the Sierra Leone truth commission decided that “perpetrators may be both natural persons and corporate bodies, such as transnational companies or corporations” and that its mandate “is not confined to violations of human rights that might constitute crimes, under either national or international law, nor is it limited to violations committed by States or governments.” The Timor-Leste truth commission not only investigated economic and social rights violations during the Indonesian occupation but found that “violations of economic and social rights did not occur only as a by-product of military operations” but were “intertwined with private and corporate interests,” including the Indonesian military’s partnerships with business persons in the coffee, timber, and oil sectors. These examples demonstrate that normative definitions may be helpful in examining corporate accountability but should not become obstacles to establishing the factual and more complex historical narrative underlying allegations of corporate complicity.

In post-Marcos dictatorship Philippines, foreign corporations had a decisive role in facilitating mutually reinforcing impunity for large-scale corruption and human rights violations (an argument that I have written about elsewhere). Among the transitional justice measures later initiated, three processes led to successful outcomes, all related to the link between human rights violations and economic crimes: a commission prosecuted the Marcos family for corruption and recovered $680M of their ill-gotten assets in Switzerland; an ATCA case filed in Hawaii found the Marcoses liable to compensate around 10,000 victims of human rights violations; and a 2013 reparations law and program is being funded using $200M out of the $680M recovered from Swiss banks.

Tunisia’s Truth and Dignity Commission (TDC) will examine the relationship among repression, resource extraction in the south and land use in the north, to large-scale unemployment and marginalization. Even in countries such as Argentina, a new wave of transitional justice initiatives have led to calls for examining the role of foreign and local banks in financing the military junta or the role of businesses in violent repression. Argentina has set up a special Ministry of Justice unit to examine the complicity of businesspersons in crimes committed during the military junta period.

What lessons stand out from these experiences? Without oversimplifying these complex examples, it is clear that how we define perpetrators, violations and crimes must evolve with the ways in which armed conflict and repression have intersected with economic crimes and business practices. In many of these examples, the roles of banks and financial institutions have to be considered in examining corporate accountability. In countries emerging from the Arab Spring, but particularly Tunisia and Egypt, these cases are assumed to be a matter of transitional justice. Banks and economic policymakers have been implicated in dictatorship-era crimes, including those linking political repression and corruption.

The 2008 ‘Framework for Business and Human Rights” drafted by Special Representative of the Secretary-General on Human Rights and Transnational Corporations is useful. But they are also too broadly-framed, which might explain why banks that have been implicated in laundering dictators’ assets have accepted it since it may not be as consequential as such standards ought to be. This business and human rights framework can be read alongside the 2005 UN Basic Principles and Guidelines on the Right to Remedy and Reparation, which contains many of the norms relied on in transitional justice contexts. Prof. Theo Van Boven, who drafted the 2005 Basic Principles, notes that these were meant to apply as well “to business enterprises exercising economic power.” Norms on the recovery of ill-gotten assets and against large-scale corruption are now codified in the UN Convention Against Corruption (UNCAC). These are rooted in the experiences of global South countries. These norms apply not only to individual dictators with ill-gotten assets or leaders of armed groups who may be implicated in pillage; they also explicitly cover banks and financial institutions and the profits that are the products of human rights violations or international crimes.

In teasing out the meaning of these norms, it will be important to encourage contributions from global South practitioners and policymakers. Reliance on the incestuous reproduction of ideas among those working on accountability and transitional justice in the global North can lead to ‘international standards’ that are disrespected by mostly Western economic actors and disowned by global South governments and activists. This might not seem immediate to academics, but these legal questions have life-changing implications for people in impoverished countries in the global South, many of whom are already marginalized even before the drive for profit and the agendas of dictators or armed groups intersect. When Arundhati Roy challenged the notion of corporate philanthropy, she asked whether the idea was simply to “keep the world safe for capitalism” while masking the role of corporations in creating or maintaining conditions of poverty and exclusion. We should ask why then do we want to pursue corporate accountability? Is the goal simply to make corporations as susceptible to prosecution as individuals? Should we stop at having binding and more consequential regulation of corporate conduct? Perhaps this can be more than that and can instead be an opportunity to reconsider the assumption – now increasingly questioned in the global South –that democratization, human rights and transitional justice can only be pursued in post-conflict or post-dictatorship developing societies that also accept an economic model that ensures the profitability of corporations, particularly foreign capital.

 

Uncharted Territory


Mark B Taylor, Research Director, Rights and Security, Fafo Research Foundation, Oslo


In his excellent article proclaiming a “turn” to corporate criminal liability, James Stewart suggests the tort remedies of the Alien Tort Statute needs some company. Several commenters have already noted that criminal law is not quite a novel approach to corporate involvement in atrocity and they are correct. But it has been a while since the post-war trials of German and Japanese industrialists and little has happened on the criminal law front in that time.

Stewart’s exemplifies his optimism about corporate criminal liability with an analysis of the Argor case. Criminal complaints against corporations are also being investigated in Sweden, in connection with oil extraction in Sudan, and in France in connection to surveillance technology sold by two different companies, one to the regime in Syria and the other to the Qaddafi regime in Libya. There have been several prosecutions of individual business people for war crimes or related offences in various jurisdictions – both in the U.S. and in Europe.

It may not seem like much, but together these developments represent a simple reality: there are today more cases before prosecutors alleging corporate involvement in international crimes than ever before. If one widens the lens to include trafficking cases, or civil cases involving serious human rights abuses, or resulting from environmental harms, there would appear to be a case to be made that companies operating in high-risk zone face an increasing liability risk.

Stewart points tantalizingly into the future when he suggests that there is as yet “uncharted” terrain in the relationship between commerce, atrocity and international crime. About a decade ago, Fafo – along with Professor Anita Ramasastry, Robert Thompson and small group of fellow travelers – began the search for international criminal law options in domestic law. Finding far more black letter than we had bargained for, we proclaimed a “potential web of liability” both criminal and civil. But then, as now, we could find no conviction of a corporate entity for involvement in war crimes, crimes against humanity or genocide. It is true that more cases have been launched in the ensuing decade than previously, but few have ever reached trial.

One explanation for this is that corporate criminal liability is only one legal instrument with which to address a problem that in fact requires a much broader regulatory approach; namely, the problem of war economies. International law has left the problem of war economies undefined and relatively untroubled as a focus of legal research. There is no general rule against economic activity in armed conflict. Profiting from armed conflict is not forbidden under international law. But this hasn’t stopped various initiatives from lurching forward in international fora in response to the pathologies that result from these economies. As already mentioned, prosecutions have been launched in domestic courts over allegations that business entities, both natural and legal persons, have perpetrated or contributed to violent crimes, including war crimes, crimes against humanity and genocide. In addition,

  • International criminal tribunals established in the aftermath of armed conflicts have prosecuted individuals in connection with their role in economic aspects of international crimes, such as forced labour and pillage;
  • Authorizations of various sanctions by the United Nations Security Council under Chapter VII of the U.N. Charter have increasingly sought to limit the flows of men, arms and finance to various conflicts, not least through the counter-terrorism committee;
  • The UN Arms Trade Treaty, passed by the General Assembly in April 2013, came into force in December 2014, marking the first time states at the U.N. have collectively agreed to regulate the trade in a sector vital to the preparation and conduct of conventional warfare.
  • The U.N. General Assembly, and regional organisations such European Union, the Organisation for Economic Cooperation and Development (OECD), and the International Commission on the Great Lakes Region (ICGLR), the U.S Congress and governments in central Africa have introduced measures to regulate the cross-border trade in conflict minerals;

Taken together, these seem to indicate that an increasingly diverse range of international and trans-national law regimes are moving towards the regulation of certain aspects of commerce in armed conflict. But it is questionable – to say the least – as to whether this diverse range of legal bits and pieces adds up to a regulatory whole.

Public scrutiny is increasing, and with it the likelihood of prosecutions. But this shift – if it is a shift – is taking place in a context in which there is real uncertainty as to what is criminal about economic activity associated with conflict or widespread violence…as distinct from what might be unlawful, or what is merely socially or ethically proscribed. Stewart’s “turn” suggests that international criminal law may offer some coherence to this diversity. I suspect he is correct, not least because international criminal law can furnish the substantive norms to help define what is in fact criminal about commerce connected to atrocities.

Stewart’s advice is that we begin the process of charting the relationships between commerce, atrocity and international criminal law. Some of this work has already begun at Fafo, with the support of the NOREF, the Norwegian Peacebuilding Resource Centre. The literature points to the centrality of violence and economic informality to an understanding of contemporary war economies. For applied social science research, this suggests that, for the purposes of charting the relationships between commerce and atrocity, approaches from criminology or the sociology of armed violence may have more to offer our understanding of contemporary war economies than law or economics.

Consider Syria. In the spring of 2014, insurgents – the Islamic State in Iraq and al-Sham (ISIS), also known by its Arabic acronym Dha’ish – leapt onto the global stage by capturing the Iraqi city of Mosul from government forces. As Dha’ish consolidated its hold on territory spanning north-eastern Syria and north-western Iraq, and declared itself to have established a new Caliphate or Islamic State, news reports soon emerged of the looting of bank reserves in Mosul, protection rackets and kidnapping rings, and the integration of Dha’ish conflict financing into illicit global flows, such as fuel smuggling across the border into Turkey, child soldier recruitment in Jordan and a steady stream of foreign fighters arriving to swell the rebel ranks. Combined with donations from supporters in the region and globally, this activity very quickly earned Da’ish a reputation in the media as possibly “the most cash-rich militant group in the world

If states are serious about grappling with the problem of conflict financing, they are going to have to get serious about regulating the economic activities which integrate these war economies to the global economy. Sanctions are one way to do that but, on their own they cannot hope to respond effectively to the diversity of economic activities at issue, not least when large parts of the relevant sectors of global trade – arms trade, commodities – remain largely unregulated.

The phenomenon of insurgents financing their activities through a combination of illicit economic activity and state-sponsored support is not new. Nor is it a revelation that many civilians survive on the very same local and informal economies with insurgents use to help finance their war. But the larger significance of Stewart’s “turn” to corporate criminal liability is, I hope, that we are beginning to ask the right questions about this age old activity. Questions such as How are those of us not living in the conflict zone nonetheless implicated in these war economies? Are there really no barriers to trade which supports murderous insurgents or government war criminals? Who is enabling these illicit war economies to be integrated to the global economy? And are there really no laws against this sort of thing?

 

Accountability for Economic War Crimes


Holly Dranginis is a Policy Analyst for the Enough Project


In January, top Lord’s Resistance Army (LRA) commander Dominic Ongwen surrendered in the Central African Republic and appeared before the International Criminal Court, charged with war crimes and crimes against humanity, including murder and enslavement in Northern Uganda. In June, the case against Congolese commander General Bosco Ntaganda is set to continue at the International Criminal Court (ICC), where the former rebel commander is charged with committing rape and sexual slavery in the Democratic Republic of Congo (DRC). Both individuals are linked to organizations accused of running illegal financial networks – well-oiled machinery for extracting some of the region’s most lucrative wealth, including minerals and ivory. Ntganda and Ongwen are in the grips of authorities with the power to prosecute them, marking a win for international criminal justice, yet no one faces charges for the massive thievery that underwrote their atrocities.

Prosecutors and investigators committed to international criminal accountability have an untapped opportunity to improve accountability and peace building by prosecuting individuals and companies for the war crime of pillage. The theft of natural resources in the context of armed conflict helps fund the violent crimes typically addressed in international courtrooms, and constitutes the war crime of pillage under common law and the Rome Statute. The crimes are undergirded by a complex network of criminal state and non-state actors. As a human rights defender in eastern Congo told me recently, “Most of the armed groups are led by people who are trafficking natural resources. Since the 1960s, armed rebels have been exploiting minerals, but the armed groups don’t do it alone. They collude with the national authorities and neighboring countries.”

In regions rich with natural resources and beset by armed conflict, members of transnational criminal networks turning profits through theft of natural resources are the enablers, brokers, and patrons of atrocity. For armed groups like the LRA in the Central African Republic and now-dissolved M23 in DRC, this profit would be impossible without their ability to access international markets in a broad climate of impunity. Indeed, dozens of armed groups and army factions in the Central African region still vie for control over mineral profits, meanwhile committing crimes of sexual enslavement, illegal taxation, and forced labor. Without prosecuting the war crime of natural resource pillage, criminal accountability will be incomplete, and efforts to build peace will falter.

Accountability for atrocity crimes in resource-rich countries has gained significant ground in the past two decades, particularly with the advent of the ad-hoc tribunals and the ICC. In the case of the DRC, the ICC has had seven active cases, and Congo’s domestic military justice system has prosecuted numerous war crimes cases, developing some helpful jurisprudence and experience. Sexual violence crimes in particular have recently gained attention. Once a blind spot in atrocity crime prosecutions, the ICC’s Chief Prosecutor, Fatou Bensouda, has tackled the issue head on, creating a new comprehensive strategy to improve the prosecution of sexual violence crimes.

The international justice community needs a similar effort to end impunity for natural resource pillage and better investigate links between illegal financial networks and atrocity crimes.

Curbing armed group and terrorist financing has increasingly captured the attention of policy makers, spurring new supply chain regulations, tighter border policies, innovative military strategies, and sanctions regimes targeting natural resource trafficking. But criminal prosecutions must also play a role. Unlike transparency requirements, sanctions, or military operations, criminal prosecutions can expose how criminals operate, create new legal precedent, provide a public forum for testimony about the links between trafficking and violence, and help restore stolen wealth and dignity to affected communities. As a Congolese human rights defender told me in Goma, “Women are raped in minerals-rich areas – and with respect to justice, profits take priority. There is less justice for atrocities committed in relation to mining.” Prosecuting financial crimes would acknowledge the intersections between mining and violence send a message that these crimes won’t be tolerated.

The few cases that have gone forward in pursuit of linking war crimes with natural resource exploitation provide momentum. In the case against former-Liberian President Charles Taylor, diamond pillage was a central component of prosecutor’s attempt to show Joint Criminal Enterprise. As former prosecutor on the case, Mohamed Bangura, said, “The scale of the diamond issue was really the cause of the protracted nature of the conflict. During the 10-year conflict, Sierra Leone is believed to have been losing 60-80 million dollars in diamond revenue annually [at the peak of the violence.]” Taylor was never convicted of pillaging diamonds, but the prosecution’s efforts revealed lessons for future pillage cases, including the importance of analyzing local land ownership laws and amassing evidence diamond pillaging early on investigations. “By failing to charge pillage of diamonds, all of that activity was left without any form of accountability, in a sense,” Bangura said.

Small-scale, episodic theft will not be sufficient to serve justice – prosecutors should treat pillage as a complex organized crime, exposing the networks and business entities entangled in multi-million dollar illegal deals, then expose their links to atrocity crimes against civilians.

Multiple venues have jurisdiction to carry out pillage cases, including the ICC, Congo’s military justice system, and domestic courts by way of the Geneva Conventions and the Rome Statute.

But like prosecuting other atrocity crimes, advancing justice for pillage will take far more than jurisdiction and a sound legal framework. In eastern Congo, for example, lawyers, investigators, and human rights defenders – including survivors of atrocities – encounter major barriers to gathering evidence and pursuing independent cases. These practitioners – and their protection – are critical to effective investigation and prosecution of pillage. A lawyer representing atrocity victims in Goma said, “We’ve faced years of threats, the military following us. Prisoners contacting victims.” Another local attorney told me, “It’s hard for me to go to the territories as an investigator of these financial crimes. I want to pursue investigations, but I need protection.” The investigators, lawyers, and witnesses living in regions where the theft occurs are critical to the success of cases, and they need better protective measures and support.

Despite challenges, the tools for ending impunity for natural resource pillage by prosecuting individuals and companies for the crime are accessible, and relatively simple. The ICC’s Office of the Prosecutor should revive its financial crimes section, appointing specialists in financial forensics. It should develop a comprehensive policy on how to use financial forensics to improve the prosecution of atrocity crimes cases and natural resource pillage. In the DRC, the peacekeeping mission’s justice unit and prosecution support cells should assist their national counterparts in the military justice system in gathering evidence – physical, documentary and testimonial – on natural resource pillage in conjunction with other atrocity crimes investigations. Finally, donor countries, the ICC, and the national government should invest in better protection for lawyers and witnesses pursuing evidence of pillage.

The millions, sometimes billions, of dollars flowing to armed groups through calculated, large-scale armed robbery in the midst of war both motivate and fuel terror and violence. It is time these activities are recognized and prosecuted as war crimes so that countries at war are no longer places where illicit trade can thrive with impunity.

 

One of the Missing Pieces in the Accountability Puzzle


Arvind Ganesan is the Director of Business and Human Rights at Human Rights Watch.


Professor Stewart’s proposal is intriguing. Incorporating international crimes into a slowly evolving legal regime that might eventually hold companies accountable for complicity in abuses abroad could be a useful step. Even though his proposal is limited to “international crimes” that would only cover a narrow set of abuses relative to all of the human rights issues companies have, it still is worth exploring.

Whether one agrees or disagrees with his thesis, one thing is clear: his proposal is part of a larger trend towards stronger mechanisms that could institutionalize enforcement of the human rights responsibilities of companies.

In the late 1990s when Human Rights Watch first began work on Business and Human Rights, most companies did not accept that they had human rights responsibilities. The earliest cases under the Alien Tort Statute (ATS) against companies had been filed against Texaco (now Chevron) in Ecuador and against Unocal (now Chevron) in Burma, but had not reached any resolution. A number of companies were criticized because of human rights issues related to their operations, but were still resistant to changing their practices.

Most companies argued that host governments needed to address the abuses. By the beginning of the 21st century, some companies (mainly those burned by public criticism) started to grudgingly move to adopt human rights standards. The first company codes of conduct started to appear along with the first multistakeholder initiatives (MSIs) such as the Fair Labor Association (FLA) and the Voluntary Principles on Security and Human Rights.

After that, the ill-fated UN Norms were drafted. By 2006, human rights policies, MSI’s, shareholder activism, and public scrutiny of companies were all part of the global mix. A range of activities had evolved to try to hold companies accountable. Then, the UN approved the new mandate for the Special Representative on Business and Human Rights.

One area that has consistently lagged behind all of the others has been the enforceable legal framework and specifically, legal accountability for corporate complicity in abuses. In 2006, there was no regulation for businesses although some had been proposed. For example, US congressional representative Chris Smith had drafted the Global Online Freedom Act to regulate internet companies so that they would have to protect freedom of expression and privacy online. GOFA was a response to scandalous disclosures that major internet providers were self-censoring in China and that one of them had turned over private account information on activists to Chinese authorities who were later imprisoned for their efforts to promote human rights online. But the bill has not become law.

Nor had the courts held companies liable under the US ATS. Some companies had reached confidential settlements with plaintiffs, but no company had been found liable for human rights violations under the ATS, so the regulatory effect of such suits are not yet realized. And recent rulings by the US Supreme Court make that possibility even more remote.

Modest regulation has continued to evolve. In 2010, the regulatory environment slowly began to change, beginning with the passage of the US Dodd-Frank financial reforms law that had two human rights-friendly provisions: section 1502 that required publicly listed companies to disclose whether they sourced conflict minerals from the Democratic Republic of Congo; and section 1504 that required public extractives companies to disclose their payments to foreign governments. These laws represented some of the first attempts to regulate companies on human rights grounds. Even though they were relatively modest—only requiring companies to disclose information—they have been hotly contested by the industry and section 1504 has yet to go into force.

The next year, the UN Guiding Principles on Business and Human Rights were approved. And building on the precedent of Dodd-Frank, governments like Canada, the UK, and the members of the European Union have all drafted their own extractives disclosure legislation. Other rules are in effect or developing, for example, the US has human rights disclosure rules for investments above US$500,000 in Burma. New social reporting rules are proliferating in Europe and as far afield as India.

New disclosure rules are a promising development, but they are not a substitute for full accountability. In our view, the best, but still imperfect, legal model may be one that mirrors anti-corruption laws. Those laws, such as the US Foreign Corrupt Practices Act (FCPA), have extraterritorial reach, require companies to put systems in place to identify and prevent bribery and hold companies accountable when bribes are paid. Human rights rules could do the same thing: apply extraterritorially, require companies to put policies and procedures in place to identify and prevent abuses, face civil and criminal liability if abuses occur, and to regularly report on their efforts to protect human rights in their operations.

Laws like a human rights FCPA will not easily pass and will undoubtedly face resistance from industry and the governments sympathetic to them. But structurally, they offer the best chance to cover the largest swath of companies. The growing number of disclosure laws may be the first step towards comprehensive rules. And there is some evidence that change is coming. The proposed UN treaty on transnational corporations and human rights, for example, is a sign of movement. While it is controversial (Human Rights Watch has expressed reservations about it), it does signify a desire to move beyond the status quo. But it would be premature and naïve to think that real accountability will come easily or is inevitable.

Any move towards accountability at the national or international level will be a challenge and will take time. In that context, Professor Stewart’s proposal may be a way to fill in the missing pieces of the accountability puzzle. Like many current developments, it is indirect inasmuch as it is not regulation, but the hope of de facto regulation through potential liability. It is not a panacea for abuses or a substitute for clear and explicit laws that define the human rights responsibilities of companies, but is a part of the mix of efforts that are slowly and surely trying to ensure accountability for business-related abuses.

Corporate Criminal Liability for International Crimes? Yes Please


Simon Taylor is a Director and co-founder of Global Witness


Over the last 20 years, we at Global Witness have waded through an endless stream (now a torrent) of corporate and individual abuse, asset-stripping and the furtherance, through financial support, of mass murder and destruction. So with great excitement, I read James Stewart’s paper, “The Turn to Corporate Criminal Liability for International Crimes.” From my perspective, anything that could be deployed to begin the process of holding companies and their officers to account for the kind of behaviours that we regularly expose is a welcome development. So please continue the debate and bring us those tools.

I should pre-empt my comments by stating I am not a lawyer, and have little exposure to legal matters and their finer points beyond the often tough process we conduct to ensure our output stands, despite the brutalities of the UK’s libel laws. That leaves me, I think, with a fairly basic understanding of James Stewart’s arguments, and comments about his paper on the Opinio Juris site. I am also left with many questions. For this reason, I would ask readers to forgive me my likely mangling of terminology, and instead, I hope I can contribute to the debate with a challenge or two, and hopefully provide you with an insight into our world of investigation, exposé and frequent collision with corporate and individual perpetrators.

Some of you will be familiar with our work – from its start with the exposure and shutting down of illegal timber exports from Khmer Rouge areas in Cambodia to Thailand, through bringing “blood diamonds” to world attention, conceiving and co-launching the global Publish What You Pay (PWYP) movement, and our work on banks that take dictators loot, and anonymous companies and trusts that hide the perpetrators. Across our work, there are common themes and many of them relate to the mechanisms and facilitators used, not to mention the legal inadequacies that variously aid and abet the perpetrators.

Global Witness “investigates and campaigns to prevent natural resource-related conflict and corruption and associated environmental and human rights abuses.” For the purpose of this discussion, think of the following question: How could we ensure that exploitation of natural resources can lead to a positive development outcome given that the natural resources of a country generally belong to the people of that country? Rather than what we currently see, with very few exceptions, which is a predatory relationship between exploiting company/investors, more often than not, involving a “Faustian pact” with kleptocratic elites who view their country’s resources as their own personal cash-cow?

Half of what we do is to investigate. We look for the facts. We want credible evidence that clarifies what is happening, who is doing what, and how they are doing it. The other half is seeking change – and that can often end up in the long-term grind of seeking new international mechanisms that bring change in behaviour. We deploy the strength of our evidence to help shape the outcome. James Stewart mentions a number of these, including the Kimberley process on conflict diamonds. I won’t go into that here, but I would mention another, the Extractive Industry Transparency Initiative, or EITI, where civil society in theory is empowered to hold governments and companies to account for the payments received and paid.

In seeking to answer my development question, I think the following analogy helps: Imagine in front of you, a bathtub, full of milky water, due to bath salts. You cannot see the bottom, but the water is leaking away. This is because the tub has various holes in the bottom, of differing sizes, and in multiple locations. Your task is to find the location of the holes, work out how large they are and their shape, and then fashion a plug to stem the flow. EITI, which remains a work in progress, should eventually become one of those plugs.

Over time, my attitude to the corporate role in these processes has hardened, but it has been because of the behaviour of the companies. To illustrate this point, let me focus on corruption in the oil sector. Thinking back to the late 1990’s and early 2000’s, and to the question asked of oil companies: whether they should disclose the payments they make for extraction in countries like Angola? At that time, around 90% of Angolan state income was generated from oil, and tens of billions of dollars were being (and continue to be) siphoned off by the elite. I remember the response: “What is the business interest?” I found it unfathomable how anyone, given the situation of utter deprivation that prevailed in Angola at the time, could ask such a question. That is unless one takes into account the thesis of Joel Bakan in his extraordinary documentary/book “The Corporation” – that the predominant corporate model behaves like a psychopath! I don’t mean as we often think of psychopaths as deliberate and unthinking killers, more that the corporate interest always comes first, thus outright criminal behaviour, or behaviour that by any normal ethical standards should be criminalised, can become acceptable – the cost-benefit analysis being the extent of thinking about whether to proceed!

For me, this demonstrates the limits of Corporate Social Responsibility. For sure, there have been some major improvements in corporate behaviour, thanks to some incredible work by key CSR specialists within and outside companies – and this should continue. But they do not go anywhere near far enough. In my experience, the limits of CSR are delineated by the boundary that separates corporate interests from public interests – where they are aligned, progress can be made, but where not, the corporate interest always comes first. Our experience from over 17 years of campaigning to obtain a global standard of disclosure of project-level payments made by extractive companies strongly supports this thesis. Within months of launching the PWYP campaign in 2002, we had won the moral argument as to whether extractive companies should disclose such payments. But, with some notable company exceptions, it has taken what I would describe as trench warfare ever since, with us and our amazing PWYP colleagues, fighting the companies for every incremental improvement.

Why do companies that now profess their support for transparency behave in this way? In my opinion, this is because in many natural resource-rich, but desperately poor countries, access to concessions often requires illicit payments – often a situation created by the companies. Thus disclosure, could either lead to companies falling foul of anti-corruption legislation, or at least major embarrassment. This is precisely why we are seeking mandatory disclosure laws so that companies cannot make such payments without being exposed. Conversely, rather than helping to make a global standard, thereby helping themselves to avoid this situation, many companies have decided they want to maintain the status quo, and are expending considerable effort to undermine incoming disclosure laws, such as Amendment 1504 of the Dodd-Frank Act and the transposition in Europe of the Accounting and Transparency Directives, which require project-level payment disclosure.

So back to my bathtub – we need help. We’ve found many of the holes, and we are shaping several of the plugs – and we will continue to do so. But there are several we simply cannot find, and perhaps we do not even appreciate their existence. Here I am particularly thinking of legal remedies that can be used to bring cases, or at least imply that possibility, to impact decision-making at the board room. People often think of corruption as an exercise of payments with brown envelopes to get what you want. But in our experience, it is much more pervasive and of a scale that frequently bleeds countries dry – driving conflict, acting as a recruiting sergeant for disenfranchised youth. Denial of healthcare, education or frankly any prospect of a future breeds violence – and whilst it often might not be possible to link corrupt corporations and their officers with pulling the trigger, we know of many examples where they have been directly responsible for the conditions that lead to the trigger being pulled, and even bankrolled buying the gun. Of course we want to see efforts on all fronts to bring about changes in corporate behaviour, but until we see serious jail time as a possibility, and an end to what I consider ineffectual “cost of doing business” style fines, nothing will change.

Civil Society’s Reflections on Corporate Responsibility for International Crimes: An Introduction and Open Invitation

Promoting dialogue between academics and civil society is one of the founding aspirations of this blog. In the manifesto, I emphasize how greater dialogue of this sort will help maintain a kind of symbiosis between theory and practice, which in turn, assists keeping the former informed and the latter defensible. This focus arises from my interest in philosophical pragmatism, which doesn’t mean just muddling through as is the colloquial understanding of pragmatism, but instead promotes high-theory that does not occupy an ethereal position divorced from reality. I’m interested in a two-way, respectfully critical dialogue between the academy and the civil society.

In that spirit, I wanted to invite members of civil society to critically engage with a recent article I wrote entitled The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. In a previous online discussion, a set of distinguished academics kindly agreed to criticize the article, and my friends at Opinio Juris generously played host. The responses from Samuel Moyn (Harvard), Steven Ratner (Michigan) and Beth Stephens (Rutgers), together with my replies to them (see here), proved helpful in clarifying the scope of the idea, areas for further research and points of residual disagreement.

In this symposium, I will replicate our discussion about corporate responsibility for international crimes within civil society. In an initial set of commentary, representatives from Global Witness, Human Rights Watch, the International Centre for Transitional Justice, Enough, FAFO, and the European Centre for Constitutional and Human Rights will all post insightful reflections that add much new information and perspective to our earlier debates. These leading commentators collectively boast years of experience dealing with these issues at the coalface, which is evident from their excellent contributions. I begin their commentary tomorrow.

At the same time, there are two obvious problems with this excellent set of commentators. First, they all emanate from the West, which robs the debate of input from civil society in Third World countries likely to be most affected by cases against businesses. I know of some NGOs in these parts of the world who are especially critical of corporate accountability, so it would be a shame not to include their voices in this discussion. Second, all of the commentators I have arranged are generally supportive of this form of corporate accountability, which is gratifying to me as author of the underlying article, but inconsistent with my desire to host a range of competing viewpoints.

This brings us to the open invitation. In addition to posting the thoughts of these leading Western NGOs, I invite representatives from civil society from throughout the world to write and submit a short blog post responding to the ideas in the article itself and our debates. Here are the guidelines for submissions:

  • Submissions must respect the principles in the blog’s manifesto. See here.
  • Submissions should be a maximum of 1,500 words including footnotes (if you decide to include footnotes at all);
  • Your submission should begin with a sentence or two describing your organization, where you are based, and the work you do;
  • Your submission should contain absolutely no allegations against particular companies. I am interested in ideas, not allegations;
  • I will preference submissions that show signs of having engaged with the article and debate here;
  • Articles can be submitted to me in English or French. Regrettably, I cannot host submissions in other languages;
  • Please send the submission by email to: stewart@law.ubc.ca with the words “Civil Society Blog Submission” in the email’s subject line;
  • I will publish up to 15 submissions if I get this many. I cannot guarantee that I’ll publish all submissions, but I am hoping to get enough responses to publish a variety from different parts of the world.

The deadline for submissions is 20 April, 2015.

I hope that, by engaging a set of Western NGOs together with numerous others from throughout the world, the resulting discussion will provide a diverse set of ideas for and against this type of accountability.

 

JGS

Blackwater’s Unsung Heroes


This piece is a cross-post from something Sara Grey and I published on Just Security several days ago (see here). Working on atrocities can be corrosive of one’s respect for humanity, so honoring incidents of moral courage is a healthy antidote. I remember one example of a junior soldier refusing his drunk (and armed) superior officer access to a warehouse of women at Čelebići prison camp in Bosnia for fear that the women would be raped, but this is an especially striking story of moral courage, too. Note that deliberately, we have never said anything about our perception of the guilt or innocence of the four Blackwater guards tried in Washington D.C., even though we collectively sat through the whole trial. I am grateful to Matt Murphy and Adam Frost for their kind emails to me since we originally posted this.


In a recent discussion of newly released memos on torture in the War on Terror, David Cole has surmised that “had anyone had the temerity to say no, the program almost certainty would have halted.” Likewise, in an excellent two-part blog (here and here) a decade after the Abu Ghraib scandal, David Luban cited Hannah Arendt’s observation that “most people will comply but some people will not,” before lauding those who never lost their moral bearings in America’s decent into systematized torture.

Some time has passed since four Blackwater guards were convicted last October of killing numerous unarmed civilians at Nisour Square, Baghdad. Understandably, the trial and verdict attracted a great deal of media attention, but something very important, paralleling the concerns that preoccupy Luban and Cole, has gone entirely unnoticed in the aftermath. Some people within that Blackwater unit said “no,” and maintained that position in the face of tremendous opposition.

Based on public perception, one might be tempted to think that nothing noble happened amongst the group of Blackwater guards at Nisour Square that afternoon. That impression is wrong. On the contrary, three members of Blackwater’s Raven 23 team who deployed that day displayed tremendous moral courage during and after the massacre. Without them, the death toll would likely be higher and there would almost certainly have been no trial or convictions. For this reason, we must remember, honor and celebrate their moral courage and humanity.

When Raven 23 set out from the Green Zone on September 16, 2007, Mark Mealy, Matthew Murphy, and Adam Frost were in the first two of four armored vehicles. According to their own testimony at trial, they watched in horror as their mission quickly transformed into what Murphy later called “the most horribly botched thing I’ve ever seen in my life.”

Matthew Murphy, now a policeman in Boston, was a rifleman in the Marines for two years before joining Blackwater in Iraq. During the trial, he testified that he heard gunfire from his teammates, then looked over his left shoulder to see one of them firing grenades at a white Kia, before others also turned their machine guns on civilians in a traffic jam. On the stand, Murphy bravely contradicted his teammates who said that they regretted nothing, by testifying that he saw no incoming gunfire and perceived no threat.

After the ordeal subsided, the Blackwater convoy left Nisour Square to the North against the flow of traffic, in what prosecutors described as like trying to enter a football stadium at the end of a game while the crowd is pouring out to the parking lot. During this obstructed exit, Murphy signaled to some children to get down, out of fear for what his teammates might do. It’s hard to say in hindsight what might have happened if he hadn’t done this, but given how events unfolded that day, there are strong chances Murphy prevented more unnecessary casualties.

Later, two cars blocked the convoy’s path, so Murphy directed the cars to turn around. When one of his teammates, Paul Slough, opened fire on the vehicles anyway, Murphy yelled, “Cease fucking fire!” As a result of his intervention, the injured driver was able to drive away, unlike so many others that afternoon. Needless to say, those legal advisers Luban and Cole have discussed were not in a war zone, surrounded by armed colleagues who had demonstrated the capacity to shoot people who posed no threat to them.

Murphy was not alone. Mark Mealy joined Blackwater after ten years in the Army, six of which were in active service. After retiring from the Army, he joined the National Guard with hopes of completing post-secondary education, but when his National Guard unit deployed to Iraq in 2003, his plans changed. After his Guard deployment, he worked for several private contractors in Iraq, eventually took a position with Blackwater, and in a stroke of exceptionally poor fortune, found himself in one of the firm’s armored vehicles in Nisour Square during that terrible fifteen minutes.

When the chips were down, Mealy was also on the right side of Arendt’s divide. After returning to base, he convened a meeting in his room, where he and the others we mention here confronted their teammates, saying they’d seen people “murdered out there.” Predictably, this did not go down well. The team leader barked that they needed to find a new line of work if they had a problem with what had happened. After that, the defendants gave Murphy, Frost, and Mealy the “stink eye,” and one later told Frost, now a policeman in Phoenix, that things might get rough for him around the base.

Undeterred, these three men jointly approached their commander, Chuck Pearson, complaining of “excessive use of force” and “reckless conduct.” At trial, Pearson testified that in all his years in the armed forces, he’d never seen a group of soldiers so disturbed by their own unit’s actions: the three men seemed to be in shock and Frost was crying. Revealing this emotion at trial was also an act of bravery for a soldier, but in this very human reaction, we also find something to cherish and honor.

Several days after these men met with their superior, Blackwater ordered all members of this team to report to the US Embassy in Iraq to provide confidential statements about what transpired at Nisour Square. When these statements were subsequently leaked to the public, Adam Frost began a diary to memorialize events as they really took place. In one entry he wrote:

As of now, 5 days after the event, it seems that the [State Department] and [Blackwater] are locked into their stories and the real story will forever stay shrouded from the public … .”

That this premonition did not come to pass is largely the result of these few men; Murphy, Frost, Mealy, and others who bravely provided essential testimony in the landmark trial in Washington, DC. They also paid a price for doing so. In its rousing closing statement, the prosecution told the jury that Murphy, Frost, and Mealy “were called rats and they were looked down upon by the contractor community. And they nonetheless did it. Why? Because they were courageous enough and strong enough to know that that was wrong. That was slaughter.”

None of these men worked for Blackwater again. Murphy signed another contract with the company soon after the harrowing incident, and then went on leave. While away, he got a phone call from his employer telling him that, because of the incident, he was “suspended indefinitely.” Frost also went on leave and was fired a week later. As for Mealy, he simply told the jury that he was done with Blackwater’s Raven 23 Unit.

All of this, of course, suggests that these men deserve recognition alongside the other moral heroes David Luban rightly praises. Martin Luther King, Jr. once said, “courage is an inner resolution to go forward despite obstacles.” In the face of these sorts of pressures in warfare, many would play down their conscientious reactions and say nothing, especially given the dangers they themselves faced. Murphy, Frost, and Mealy “went forward” with their consciences and emerged from this horrendous saga as unsung heroes deserving of our praise and respect.

In reading David Cole’s new reports, it’s hard not to feel like the American leadership in the War on Terror has, on these crucial issues at least, had far less moral courage or humanity in far easier personal circumstances. Perhaps that makes them all the more blameworthy.