- Thridhara Pathipati
Corporate Crimes Against Humanity in International Law
In the international space, the Nuremberg trials established the principle that individuals even when acting on behalf of the state can be held liable for violation of international law. The judgement provided in the Nuremberg trials in 1946 by the International Military famously opinioned that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” But the world we live in is in its era a hyper globalized economies where myriad of corporations have taken over the world. With this corporate eclipse around the world there emerged corporations that are involved in various human rights violations, they engage and perpetuate war crimes, genocide, slavery, abuse, sexual violence, and terrorism to name a few. When corporations and corporate entities engage in such activities, are they held liable for violating international law and humanitarian rights? It is established that actions taken by individual employees in corporate entities are subject to international regulation and international criminal and civil laws just as private and non-state individuals are but the issue of a corporation as a separate legal entity and its liability and obligation to the international criminal laws remains disputed and unresolved. In fact, in the current state, international criminal law only applies to natural citizens and not corporate entities. These corporations are only subject to domestic criminal laws and prosecution but their stance as an individual entity capable of committing crimes against humanity (article 7, ICC) and international human rights violations is not recognized. Corporations have time and again used their power and lack of accountability in the international space to commit, aid and abet heinous acts and crimes which violate humanitarian laws and human rights.
II. INTERNATIONAL CRIMINAL COURT AND LACK OF CORPORATE ACCOUNTABILITY
The evolution of international criminal law dates back to 1945, which dealt with the aftermath of the second world war. The Rome statute with 139 signatories outlined and established the International Criminal Court in 1998. Under international criminal law, crimes against humanity are punishable under article 5 of the role statute however the same statute severely restricts the jurisdiction of the court to natural persons thereby making it impossible for the punishment of corporations that are separate legal entities that perpetuate crimes against humanities. This relives them of accountability, allowing them the liberty to aid in grave humanitarian and international crimes and riding them of punishment for other crimes and actions taken during their course of business which would otherwise be punishable under international law. Corporate connivance in crimes against humanity has been seen on multiple occasions- Lafarge, a French cement company is being tried for allegedly paying millions of euros to ISIS groups in order to keep their factory running in war torn Syria. They were direct abettors of crimes like sexual slavery, rape, torture, murder and terrorism, etc. In another instance, Myanmar Economic Holdings Ltd and Myanmar Economic Corporation helped finance and make direct contributions to Tatmadaw, Myanmar’s army which participated in grave human rights violations and crimes against humanity in several states in Myanmar. The Chiquita Brands International financed the Colombian paramilitary group, Autodefensas Unidas de Columbia which actively engaged in sexual violence and mass executions. Corporations have engaged in financing military, para-military and terrorist groups, they have sold arms to groups and states which commit crimes against humanity, trafficked labour- through child labour, forced labour and slavery, engaged in sexual assault and violence and forcefully detained and deported individuals. It is absolutely essential for corporations to be held criminally liable in the context of the crimes they commit against humanity by amending and paving way for individual corporate entities to be held liable for the actions and crimes they aid abet and support.
III. ALTERNATE MECHANISMS FOR CORPORATE ACCOUNTABILITY
While the International criminal law allows for individual criminal accountability for corporate actors and officers within a corporation, the business activities and actions of the corporation itself cannot be punished. Restricting the scope of international criminal liability for acts and crimes against humanities to individuals in corporations undermines the complex web of overlapping organizational powers and functions of a corporate entity. Criminal liability of individuals within a corporation is inadequate and does not challenge and penalize a culture and tradition of corporate disregard, ignorance and indifference towards egregious crimes committed against human rights and violations of international humanitarian laws. At present, a system and procedure for the monitoring and examination of activities of corporations does not exist within the UN. Additionally, regional human rights courts do not have jurisdictional power over corporations and their individual actors. The international criminal court has limited capacity and can only adjudicate upon matters where evidence of involvement in international crimes by individuals acting on behalf of corporations can be established. Despite these shortcomings, social environmental and human rights international standards have been established for corporates. However, corporate involvement in international crimes has led to a trend of increase in legal systems around the world adopting a code for their accountability. This was reflected in the United States v Carl Krauch et al. where the International Military Tribunal in Germany held IG Farben a German corporation accountable for their role in providing poisonous gases to Nazi camps for commission of a mass heinous crimes.
The International Labour Organisation and the Guidelines for Multinational Enterprises of the Organisation of Economic Cooperation have set standards and norms for human social and environmental compliance for corporations. Nonetheless, these are soft laws that lack a binding legal character and are not constituted to hold corporations directly responsible for their involvement in international human rights violations, they merely provide a forum for investigation and scrutiny of corporate behavior. The ILO was created to eliminate forced, bonded and child labour, discrimination in the workplace and protect freedom of association of labourers of its 187 member state signatories. The Declaration on Fundamental Principles and Rights at Work and Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy was established by the ILO which required corporations to adhere to the constitution of the ILO, General Declaration of Human Rights and other international treaties ratified by the UN. When complaints against corporations filed before the ILO for non-adherence to the principles and objective, a commission of inquiry is set up to make a report and set a timeframe for the implementation of recommended changes.
Similarly, the OECD provide legally non-binding explicit recommendations to multinational enterprises to fulfil human labour rights, regulations on environmental protection and consumer protection and against corruption. These guidelines are however only applicable in the thirty member states that has ratified the guidelines. Complaints of non-adherence to OECD guidelines can be made at National Contact Points set up in member states which offer a dispute settlement procedure. Further, the evolution and establishment of voluntary codes of conduct for corporations has led to Corporate Social Responsibility where corporations willingly commit themselves to respect human rights, labour laws and environmental laws. They however lack monitoring and sanctioning mechanisms. Moreover, business actors in UN agencies set up the UN Global Compact, yet another voluntary corporate initiative which acts as a forum to educate and establish dialogue in the corporate field and the need for a collective promotion of human rights. Similarly, the UN Convention against corruption, UN Convention against Transnational Organized Crime and the International Convention for the Suppression of Financing of Terrorism are some of the other international law instruments that impose criminal liability on corporations. These abovementioned enforcement mechanisms in the international community with no legal binding character and that are voluntary in nature are inadequate as compared to a clearly defined binding international law principle that regulates and punishes violations of human rights and commissions and assistance in crimes against humanity.
IV. SHORTCOMINGS IN ESTABLISHING ACCOUNTABILITY
International criminal law has failed to keep up with the emergence of quick and fast paced expansion of corporate entities across the globe, which has led to unsupervised activities of corporations that are in direct violation of international law. Theses multi and transnational corporations have a complex corporate structure with multiple subsidiary companies thereby making it an intricate web of operations that hide behind a corporate veil. The large scale revenue earned by these companies puts them in a position power thereby giving them the freedom to avoid liability and regulation. It is impossible for the individual criminal liability of natural persons clause in International Criminal Law to fully account for the trend of corporations disregard for human rights violations and international crimes. Despite the existence of domestic sanctions and surveillance for corporations, it is insufficient and such regulation does not exist in every jurisdiction in the world. The inclusion of criminal corporate liability in international law and the publicity attached to it helps provide incentive for other such international corporations to forbid their culture of business activities based upon ignorance towards international laws and standards.
The Rome Statute which codified international criminal law has a large and vide scope for establishing accountability of corporations and the active, direct and indirect participation in the gross violation of human rights and commission of crimes against humanity. The restriction of imposed by article 25 which limits the court’s jurisdiction to that of natural persons has diminished the potential capacity of surveillance of corporations by the international criminal court. Article 25(3)(a) has scope for punishment of indirect co-perpetration where a ‘person’ is liable for committing a crime if they “act jointly with or through another individual”. This article if extended to corporations could punish Myanmar MEHK and MEC for perpetrating crimes against humanity by conspiring with Tatmadaw and La Farge for paying millions to ISIS which commits mass atrocities and crimes. Similarly, article 25(3)(d)(ii) could be used to punish corporate contributions to groups with the knowledge and intention of the nature of commission of crimes. This could be used to punish Chiquita brands in Columbia. The jurisdictional barrier imposed acts as a barrier to corporate criminal liability thereby enabling corporate crimes against humanity due to lack of regulation and surveillance. With the increase in globalization and growth, power and influence of corporations, the emergence of legal sanctions and penalties have become a necessity. Corporations directly and indirectly participate in the perpetration of crimes against humanity and it is essential for the Rome statute to replace the term natural persons to legal persons, corporations being separate legal persons and entities will finally be held liable through international criminal law. The ICC should take considerable and substantial steps to regulate and monitor corporate crimes. Broadening the scope of natural persons and redefining the meaning of a person within the Rome statute to include corporations is essential to protect human rights from the atrocities aided abetted and committed by corporations.