Crimes against humanity, torture, prolonged arbitrary detention, extrajudicial executions — all of those human rights norms are defined by actions. They’re not defined by whether the perpetrator is a human being or a corporation or another kind of entity.
Paul Hoffman representing the 12 Nigerian petitioners in Kiobel v. Royal Dutch Petroleum
The issue in Kiobel v. Royal Dutch Petroleum an issue central to the lives of many indigenous people living in disparate parts of the globe is; can corporations commit post-Nuremberg human rights offenses. This issue is of importance not only to the indigenous people affected by the activities of multi-national corporations, but to those multi-national corporations themselves.
In the globalized economy of the twenty-first century, a wide variety of companies from all sectors – including natural resource extractive industries, infrastructure and engineering companies, financiers, retail and garment businesses and the communications industry – now have either global supply chains or a global presence and find themselves, or their clients or suppliers, operating in the midst of armed conflicts or in countries where crimes against humanity and other gross human rights abuses amounting to crimes under international law occur. The risks of becoming involved in gross human rights abuses amounting to crimes under international law exist in all these contexts, and are not, as some believe, a problem only for companies working in situations of armed conflict or in developing countries. For example, private airline companies (see First and Second report of Mr. Marty to the Parliamentary Assembly of the Council of Europe (AS/Jur (2006) 16 Part II (7 June 2006)). have faced criticism for allegedly transporting prisoners to locations where they faced torture and enforced disappearance, as part of the United States Government practice of rendition of terror suspects
For those of us concerned about human dignity and indigenous rights, the issue of whether transnational corporations or their executives can be held criminally or civilly liable for aiding and abetting human rights violations committed by governments or militaries of foreign countries where they do business is a core issue. Central to this issue is; what body of law determines the answer — international law, the law of the foreign state, or the law of the home state? If the answer is that corporations and their executives can be held liable, what standard defines “aiding and abetting” liability? Does merely doing business in a repressive state qualify? If a corporation sells goods or services to a repressive government, does the corporation aid or abet if it has knowledge that its products will be used to commit human rights violations? Or must corporate officers intend to assist the commission of violations?
For corporate executives, the answer to one question — whether they can be held criminally liable as accessories to crimes against human rights — has long been clear. At Nuremberg, a number of business representatives were tried for involvement in slave labour, crimes against humanity and war crimes. E.g. United States v. Krupp (Krupp Case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 (1948) (Trials of War Criminals), Vol.IX, United States v. Carl Krauch (Farben Case), Trials of War Criminals, Vol. VIII, United States v Friedrich Flick (Flick Case), Trials of War Criminals, Vol. VI. The Zyklon B case: Trial of Bruno Tesch and two others, British Military Court, 1-8 March 1946, Law Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume I (1947) Case No. 9 (Zyklon B Case).
More recently in December 2004, Frans van Anraat, a Dutch businessman, was arrested on charges of being an accomplice in the genocide and war crimes committed by Saddam Hussein. In his role as an export broker, Van Anraat delivered thousands of tons of thiodiglycol (TDG) a substance used for creating mustard gas to Saddam Hussein’s Iraqi regime. This gas was used in Saddam Hussein’s chemical weapons programme, which included its use on the Kurdish population of Iraq. During the trial it was shown that van Anraat knew he was exporting this substance to Iraq, he was aware that it could be used for producing poison gas and that there was a reasonable chance it would be used for chemical attacks as Iraq had done during the Iran-Iraq war. The District Court of The Hague acquitted him of being an accomplice in genocide because there was insufficient evidence that he had known of the Iraqi regime’s genocidal intent towards the Kurds. He was however convicted of being an accomplice in the war crimes of inhuman treatment and causing the death or severe bodily harm of others by the use of chemical weapons contrary to international law. The Court found that Anraat:
consciously and solely acting in pursuit of gain, has made an essential contribution to the chemical warfare program of Iraq…which enabled, or at least facilitated, a great number of attacks with mustard gas on defenceless civilians.
Anraat was sentenced to 15 years of imprisonment. His conviction for war crimes was upheld on appeal and his sentence was increased to 17 years of imprisonment.
Under both international criminal law and the domestic criminal laws of many countries, those involved in the commission of a crime can be held responsible either as principal perpetrators or as accomplices, depending on their acts and role in the commission of a crime. The principle of individual criminal responsibility and punishment for crimes under international law, reaffirmed at Nuremberg, is the cornerstone of international criminal law. It contemplates various forms of participation in crimes for which an individual may incur responsibility, including involvement in crimes physically committed by another person such as aiding and abetting.
Beyond the modest principles established at Nuremburg, there is room for argument, and active debate, about everything else. To some extent the debate turns on whether international criminal law requires that those who aid and abet merely have knowledge of the principal crime, or must instead have a purpose to facilitate the crime. Adding complexity to this maelstrom of greed, complicity and the ‘rule of law’ is the issue person. On 21 January 2010, the US Supreme Court, in Citizens United v Federal Election Commission, decided, by a vote of five to four, that, since corporations were legal persons, they were entitled to the protection of the first amendment, which guarantees unfettered freedom of speech. That is, the US Supreme Court ruled that corporations are “persons” for the purpose of making unlimited contributions to political campaigns.
On Tuesday 28 February, the United States Supreme Court heard arguments in another case examining the “personhood” of corporations. The case, Kiobel v. Royal Dutch Petroleum, arises out of allegations of Shell’s complicity in torture and extrajudicial killing in Nigeria during the 1990s. The lead Plaintiff is the wife of the late Dr. Barinem Kiobel, one of the “Ogoni Nine” who, along with renowned environmentalist and playwright Ken Saro-Wiwa, were hanged by the Nigerian military junta in November 1995. Mrs. Kiobel and others are simply asking for a chance to present their evidence that Shell conspired with the Nigerian military to arrest, torture and kill their family members so as to silence their opposition to Shell’s destructive activities in the oil-rich Niger Delta. They have brought their suit under the Alien Tort Statute (“ATS”), a 1789 law that allows aliens to sue in United States courts for torts in violation of international law, under which dozens of cases have been brought since it came back to life in a 1980 decision of the court of appeal for the second circuit.
Interestingly, the same court that brought the ATS back to life has now ruled that it applies only to individuals, as in the 1980 case, but not to corporations. The United States Supreme Court has now been asked to decide whether it agrees with this narrowing of the definition of personage, or with those of four other circuits, none of which have had any difficulty taking on corporate human rights cases under ATS. Adding further complexity to an already complex issue is a United States domestic dispute over whether the definition of “aiding and abetting” should be drawn from international law or from federal common law. The confusion engendered by these multi-layered debates denies legal certainty, both to corporations and to victims of human rights violations facilitated by corporations.
If an event or things significance can be measured by the number of ‘friends’ it attracts than Kiobel v. Royal Dutch Petroleum must be up there with the Kardashians. On Shells side amicus briefs have been filed by such corporate luminaries as Coca-Cola, Chevron, BP, KBR … you get the idea! For the petitioners amicus briefs have been filed by the United States Department of Justice and the United Nations High Commissioner for Human Rights, Navanethem Pillay, who Speaking recently to the first meeting of the United Nations Working Group on human rights and business, said of the case:
Governance gaps created by the rising reach and influence of business actors have not been matched by a similar rise in the capacity of societies to manage their impact and ensure accountability for adverse human rights impacts resulting from business activities.
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