In Jesner v. Arab Bank, the question the Supreme Court must address is whether corporations can be held liable for violations of international law. This case is connected to a broader trend centering around the question of corporate accountability for war crimes, crimes against humanity, and genocide committed in third countries. While Jesner deals with the issue of civil liability, it follows a small but growing number of cases that have contributed to an emerging norm that corporations can and should be held liable for violations of international criminal law. These cases not only put companies on notice that their actions are subject to increased scrutiny but also provide innovative ways to provide justice to victims of international crimes.
Research conducted in 2015 canvassing a number of European legal systems showed that while a number of corporate accountability cases had been initiated, very few ended up in court or with a verdict. For instance, in November 2013, Swiss authorities announced the opening of a criminal investigation into one of the world’s largest gold refineries (Argor-Heraeus) for its alleged complicity in the war crime of pillage in the Democratic Republic of Congo (DRC). The case was closed in 2015, however, for lack of evidence. Similarly, on 14 May 2013, the Dutch public prosecutor declined to pursue a case against Lima Holding B.V. for its alleged responsibility for violations of international humanitarian law (IHL) committed in the Occupied Palestinian Territories by Israel. The company had been accused by several human rights organisations of having contributed, through the supply of cranes and other aerial work platforms, to the construction of the wall, which the International Court of Justice had ruled violated IHL. The Dutch public prosecutor decided not to pursue the case, however, in view of the fact that Lima Holding B.V. had taken significant steps to cease its activities in Israel and the Occupied Palestinian Territories since the criminal complaint was filed. Likewise, a case brought before the State Prosecutor in Tübingen (Germany) in 2013 against timber manufacturer Danzer Group was discontinued in March 2015. The case involved the alleged complicity of its senior manager in an attack by police and armed forces against the village of Bongulu, DRC, during which civilians were beaten and raped; Danzer Group’s local subsidiary reportedly supplied vehicles and drivers to the armed forces, and was said to have paid the police after the attack.
One of the few cases involving corporate criminal liability to have resulted in a successful prosecution and subsequent conviction is the case against Guus Kouwenhoven. A Dutch national, Kouwenhoven was convicted in his capacity as director and president of two of the largest timber companies in Liberia on 21 April 2017 by the Appeals Court of the Netherlands as an aider and abettor to war crimes committed in Liberia in the early 2000s. The court found established that Kouwenhoven used his timber companies to import, store, and distribute weapons in Liberia, and that by doing so, he “must have been aware” that “in the ordinary course of events” those weapons would be used for the commission of war crimes. Importantly, the court held him responsible both for crimes committed using the weapons and ammunition he provided (such as shooting civilians), as well as those crimes where the weapons merely enabled their commission, namely when the threat of the presence of these weapons and/or armed actors was used to commit crimes such as rape or pillage. Kouwenhoven was sentenced to 19 years’ imprisonment. He was not, however, in custody in the Netherlands at the time, as he had reportedly fled the country in 2007 or 2008. Yesterday, the Dutch public prosecutor announced his arrest in South Africa, following an extradition request from the Dutch authorities. Having appeared before a South African judge, his case was remanded for a bail application to be heard on Tuesday next week.
Similarly, in the case against Frans van Anraat, the accused, who supplied chemical weapons components (i.e. thiodiglycol) to Saddam Hussein, was convicted in the Netherlands in 2005 as an accessory to war crimes committed against the Kurds in Iraq in the 1980s. The court found that he “knowingly and in pursuit of profit made an essential contribution to the Iraqi chemical weapons programme”. The court added: “His contribution enabled, if not facilitated, the execution of a large number of bombings of defenseless civilians using mustard gas”. While the court also found that the chemical agents he supplied to Saddam Hussein were used with intent to destroy the Kurdish population, Van Anraat was acquitted of the charges of genocide, because the court did not find sufficient proof of specific genocidal intent on his part. On final appeal, Van Anraat was sentenced to 16.5 years’ imprisonment.
The 2005 conviction also ordered Van Anraat to award each victim in the case a symbolic amount of EUR 680 as compensation. In 2007, however, the appeals court determined that the question of damages was too complex to be dealt with in the context of the criminal case. Following a separate civil liability suit brought by a group of victims against Van Anraat, on 24 April 2013, the court ordered him to pay sixteen victims EUR 25,000 each for non-material damages. Van Anraat appealed this decision, but lost; the Dutch appeals court confirmed the civil damages amounting to a total of EUR 400,000 on 7 April 2015.
While these are two important cases in terms of the individual criminal responsibility and/or civil liability of directors of companies for international crimes, these cases contain little in relation to the liability of the companies per se as legal persons, and as such an important question remains unresolved. An important (ongoing) civil case in that respect is the June 2017 writ served in a Dutch court by Ms Ester Kiobel and three other widows against Shell seeking damages and a public apology for its alleged responsibility in the killing of their husbands in 1995. Earlier this month, Amnesty International published an additional follow-up report, claiming the company was complicit in widespread acts of murder, rape, torture, and pillage committed by paramilitary groups in Ogoniland (Nigeria) in the 1990s. Amnesty International has called on the authorities of the Netherlands (in addition to the United Kingdom and Nigeria) to initiate criminal proceedings against Shell. At the time of writing, the Dutch authorities have not yet formally initiated a case in relation to these allegations.
These Dutch cases are part of a broader trend in Europe (often driven by civil society organisations filing strategic litigation claims) to hold companies, and in particular their corporate directors, liable for international crimes committed in the context of their operations in third countries.
The specialized War Crimes and Crimes Against Humanity Unit of the Paris Tribunal de Grande Instance has a number of ongoing cases addressing corporate accountability. On 19 October 2011, the International Federation for Human Rights (FIDH) jointly with French Human Rights League (LDH) acting on behalf of a number of Libyan victims filed a criminal complaint against technology company Amesys for its complicity in acts of torture and other cruel, inhuman or degrading treatment committed by the Gaddafi regime in Libya. Amesys had reportedly sold sophisticated surveillance technology to the Libyan government in 2007, which was used in its repression of opponents. While the French public prosecutor initially declined to open an investigation because it deemed that merely selling equipment to a state does not entail criminal conduct, in March 2012, the investigative judge reversed this decision and ordered the opening of an investigation, a decision upheld upon appeal in January 2013. Amesys was declared an “assisted witness” (which predates a formal indictment) in May 2017; the investigation remains ongoing. Reportedly, in July 2017, new allegations came to light that Amesys, under a new name, sold similar equipment to the Egyptian government in May 2014, which was again allegedly used in the commission of human rights violations.
Similarly, both the technology company Cosmos and the French cement giant Lafarge are currently under investigation by this same specialised unit for their alleged complicity for international crimes, including torture, committed against the civilian population in Syria. Cosmos, like Amesys, is said to have supplied surveillance equipment to the Syrian government. The French judicial inquiry was opened in May 2014 and remains ongoing. Following the opening of a judicial inquiry in June 2017, former employees of Lafarge have recently been questioned about allegations the company indirectly (i.e. through intermediaries) paid armed groups in Syria, including ISIS, to protect its ongoing business in Syria, thus violating existing sanctions and contributing financially to the ongoing armed conflict.
Also in June 2017, a group of civil society organisations brought a criminal complaint against BNP Paribas, alleging the bank contributed to the Rwandan genocide by illegally financing the purchase of weapons in the country at the time. The bank allegedly transferred money from the Rwandan National Bank to a Swiss bank account of a known arms dealer, one month after the imposition of a UN arms embargo in 1994.
Exact charges have not yet been brought in any of these cases as investigations remain pending, and as such, it is not clear whether charges can or will be brought against the individual corporate directors or against the companies as legal persons themselves. In other contexts, such as Germany, the domestic criminal law simply does not allow corporations to be held criminally liable as legal persons, but only allows criminal charges against individuals. That said, the existence of such cases and investigations, whether against legal persons or individuals, contributes to establishing a norm of corporate responsibility for international crimes. Indeed, also beyond Europe, important cases are starting to be brought against corporations for violations of international law. For instance, the British Columbia Court of Appeal recently allowed the case against Nevsun to proceed to trial in Canada in relation to allegations of crimes against humanity, slavery, forced labour, and torture committed in Eritrea. The case is one of three civil cases currently winding its way through the Canadian courts in relation to corporate liability for international law violations committed abroad.
Unlike at a national level, where there have been few cases, at an international level, corporate accountability for international crimes has remained elusive. Although earlier this year, a coalition of human rights organizations sent a submission to the International Criminal Court (ICC) calling for an investigation into the alleged responsibility of Chiquita Brands International for crimes against humanity committed by Colombian paramilitary groups, under the Rome Statute, such a case could only be brought against the company’s corporate directors, as the ICC can only exercise jurisdiction against individuals. On the contrary, article 46 of the annex to the Malabo Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights explicitly distinguishes between individual criminal responsibility (article 46B) and corporate criminal liability (article 46C), pursuant to which the future Court would have jurisdiction over corporations as ‘legal persons’. Notably, this Court would also have jurisdiction over a broader range of crimes, including money laundering, corruption, trafficking, and the illicit exploitation of natural resources. Similarly, on 2 October 2014, while not related to international crimes as such, the Special Tribunal for Lebanon ruled that it had jurisdiction over corporations in the context of contempt cases.
In other words, one thing is clear, the important conversation on corporate accountability for international crimes is only just beginning. Bringing such cases would not only put businesses on notice about their potential criminal and/or civil liability for doing business with (suspected) war criminals, but would equally constitute an important step towards bringing justice to victims of international crimes.
An earlier version of this post was featured as part of Just Security‘s Online Symposium on Jesner v. Arab Bank.