3 International Legal Personality in a Human Rights Context
3.3 The Capability of Companies to Abuse Human Rights
3.3.3 Complicity in Human Rights Violations
A state can without any question violate rights. What is the liability of a company that helps a state in the violation of rights? For example, is the company responsible when soldiers protecting a pipeline on the orders of a company violate human rights in the course of their task? Complicity tackles the situation in which the state and multinational corporations have committed human rights abuses intentionally together.237 Complicity has been discussed as the manner in which companies commit human rights abuses in most soft-law instruments as well, such as the UN Global Compact and the Guiding Principles on Business and Human Rights. John Ruggie also discusses the non-legal side of complicity, which can include indirect violations of, for example, political, cultural and social rights.238 Complicity with human rights violations is the most common way in which companies in reality infringe human rights. For example, by third parties who are hired facilitate and en up committing the actual violations.
Criminal responsibility may arise for aiding and abetting an international crime.
The Rome Statute Article 25(3) notes that anyone who ‘aids, abets or otherwise assists’ the commission of a crime can be held individually responsible and liable for that action by the International Crimanal Court (from here ICC).239 The article goes on to determine individual responsibility in situations where an individual ‘in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.’240 It is clear that aiding and abetting means that the act constituting aiding and abetting implies a less direct involvement in the crime. Therefore aiding and abetting of international crimes is considered to be the correct avenue for corporate responsibility, as companies are rarely the principal or direct offender.241 These types of acts obviously cannot
236 Andrea Reggio, ‘Aiding and Abetting In International Criminal Law: The Responsibility of Corporate Agents And Businessmen For Trading With The Enemy of Mankind’ (2005) 5 International Criminal Law Review 623, 631–632.
237 Wells and Elias (n 91) 144.
238 Special Representative to the Secretary-General, ‘Protect, Respect and Remedy: A Framework for Business and Human Rights Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/8/5’ (2008) 6. [herein after the Protect, Respect and Remedy Framework]
239 Rome Statute of the International Criminal Court Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998) 25(3) C.
240 Ibid 25(3) D.
241 Wim Huisman and Elies van Sliedregt, ‘Rogue Traders- Dutch Businessmen, International Crimes and Corporate Complicity’ (2010) 8 Journal of International Criminal Justice 803, 805.
be ruled out, but in regard to international crimes, the role of a company usually complicates the crime.
There are three ways in which companies can aid and abet international crimes: by silently accepting, indirect complicity by facilitating the crimes, or direct complicity by profiting from the situation and directly assisting the crimes.242 It is important to note that mere corporate presence in a country cannot be considered complicity.243 The International Commission of Jurist Report of the expert legal panel on corporate complicity in international crimes names three areas of inquiry which can indicate complicity: causation and contribution, knowledge and foreseeability, and proximity.244 Causation can be broken down into three models of conduct which have enabled, exacerbated or facilitated the crime.245 Enabling is the most direct form of assistance, with the role of the company being actually linked to the occurrence of the crime. Exacerbation may increase the likelihood or the effects of the crimes, whilst facilitation helps the performance of the crime.
Proximity, on the other hand, can be found in the distance, frequency and duration of contact between the company and the principal offender.246
Knowledge is at the centre of complicity with knowledge of the crime or the foreseeability of the risk of the crime usually acting as the lever of responsibility. For example, in 2005 a Dutch court found Frans van Anraat guilty of aiding abetting war crimes by providing the Iraqi government with chemicals which were later used as mustard gas against the Kurdish population.247 Van Anraat did not have the criminal intent to participate in war crimes, but he was considered to have been aware of the possibility that the sold chemicals would be used as chemical weapons.
He was however acquitted on charges of genocide, as he had no knowledge of the genocidal intent of the Iraqi government. The Report mentions that the court should review what the company itself knew, but also what a responsible actor should have known of the risks.248
242 Wolfgang Kaleck and Miriam Saage-Maaß, ‘Corporate Accountability for Human Rights Violations Amounting to International Crimes: The Status Quo and Its Challenges’ (2010) 8 Journal of International Criminal Justice 699, 721; Huisman and Sliedregt (n 241) 817; Jonathan Clough, ‘Not-so Innocents Abroad: Corporate Criminal Liability For Human Rights Abuses’ (2005) 11 Australian Journal of Human Rights 1; Clapham and Jerbi (n 107) 341–342; International Commission of Jurists, Corporate Complicity & Legal Accountability:
Civil Remedies (2008) 3-9.
243 Andrew Clapham, ‘Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups’ (2008) 6 Journal of International Criminal Justice 899, 912; Ramasastry (n 149) 101.
244 International Commission of Jurists, Report of the ICJ Expert Legal Panel on Corporate Complicity in International Crimes, Volume 1: Facing the Facts and Charting a Legal Path (2008) 8.
245 Ibid 10.
246 Ibid 24.
247 The Hague District Court, Public Prosecutor v. Van Anraat, LJN AU8685 (23 December 2005) 13.
248 Ibid 20.
The California District Court stated in Doe I v. Unocal Corp an aiding and abetting standard for corporate conduct, which was described as ‘knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime’.249 The case concerned Unocal’s oil pipe construction in Myanmar and the human rights violations which were committed by the soldiers hired by Unocal to protect the pipeline. As noted by a former consultant to Unocal, at best Unocal seemed a naïve participant and at worst a willing partner in the atrocities.250 The hiring of the Myanmar military was considered assistance in the use of forced labour, which had a substantial effect on the occurrence of the crime.251 The Court of Appeals adjudged that the standard for aiding and abetting under the Alien Tort Statute involves practical assistance or encouragement that has a substantial effect on the perpetration of the crime.252 Interestingly, the District Court differed in its opinion, ruling that Unocal could not be held liable, as its actions did not reach the level of active participation. The Court of Appeals noted that it is also sufficient that the accomplice knew or had reason to know of the intent to commit an offence.253
It hence becomes clear that aiding and abetting can also mean that the third party had reason to know that they were complying with human rights abuses.
In the Unocal case, this meant there was evidence suggesting Unocal knew of the use of forced labour.254 The practical help was considered to be the overall hiring of the Myanmar Army to build the pipeline and its surroundings. The court viewed that this was sufficient evidence to hold a multinational corporation liable for the acts of a contractor. Interestingly, in the case of Presbyterian Church of Sudan v. Talisman Energy Inc., Talisman Energy was specifically accused of aiding and abetting the Sudanese government in crimes against humanity, and the US Supreme Court viewed that aiding and abetting liability requires that an accused knowingly provided substantial assistance to the perpetrator. The Court of Appeals adjudged that international law must determine the standard for the accessorial liability and that not solely knowledge is demanded, but also purpose. 255 In the later discussed Kiobel judgment, the dismissal was partly due to aiding and abetting, demanding the abettor to act with plausible purpose.256
249 United States Court of Appeals, John Doe v. Unocal Corporation et al, 395 F.3d 932, 947, 9th Circuit (18 September 2002) 58.
250 Ibid 18-19.
251 Ibid 952.
252 Ibid 4 253 Ibid 7.
254 Ibid 13.
255 US Court of Appeals for the Second Circuit, Presbytarian Church of Sudan v. Talisman Energy, Inc, 582 F.3d (2 October 2009) chapter III.
256 Kiobel v. Royal Dutch Petroleum Co. (n 219) 73.
When a company is directly complicit it knowingly assists and contributes to a state in violating rights whilst knowing the plausible effects of their assistance.257 Moving from indirect complicity, in which a company benefits from violations, to direct means that there is a clear relation between the company and state. The company is aware of the violations and continues its interaction with the state regardless.258