Ordinarily corporations are not mentioned in the discussions of liability for humanitarian crimes, but there are two matters which crept into the news recently that deserve mention here.  In the Southern District of New York, a trial date has been set in Ken Wiwa, et al. v. Royal Dutch Shell Co., et  al., the case brought by the family of Nigerian activist Ken Saro-Wiwa against Royal Dutch Shell, alleging that Shell was complicit in the Nigerian government’s execution of Saro-Wiwa and eight other activities in 1995. The second matter was the release of the results of the Chiquita Brands International, independent committee of directors’  investigation into Chiquita’s  payment of bribes to terrorists in Columbia, as reported in Law.com’s International Law Blog. The report was submitted to the court as part of Chiquita’s defense against claims made under the Alien Tort Claims Act by families of persons killed by the Colombian groups.

Discussion of corporate liability for humanitarian crimes is rare because, with some limited exceptions from the Nuremberg trials, international humanitarian law has developed in the context of individual liability and secondly, many legal systems throughout the world do not recognize legal persons, thus prosecution of legal persons is not possible. There is some movement on this point as several recent conventions and treaties encourage signator nations to create criminal liability for legal persons in their domestic codes. The Convention Against Transnational Organized Crime is an example of  one such convention. However, liability for legal persons for war crimes, for example, is still out of reach. Legal scholars in the humanitarian area are developing theories of liability for corporations for crimes against humanity and war crimes, particularly in the environmental area, but currently the only way to bring a corporation to account for humanitarian type violations and other human rights abuses is through the Alien Torts Claims Act.

Without commenting on the merits of either case, the facts that have been revealed in both cases are horrific, and highlight the way in which activity which we normally associate with crimes against humanity and/or war crimes can create impunity when the activity is associated with corporations. As we keep watch on developments in the two cases, it becomes increasingly clear that international humanitarian law must develop and implement a solid theory of corporate criminal liability for crimes against humanity and war crimes.

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