South America


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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The former president of Peru, Alberto Fujimori, was sentenced last Tuesday to 25 years in prison for the deaths of 25 people. The trial lasted for fifteen months but did not get much press in the US. During Fujimori’s administration governement forces fought a brutal battle against the leftist group Tupac Amaru and Maoist Shining Path insurgencies. Atrocities were committed on both sides. Fujimori’s government is generally credited with bring economic stability back to Peru. However, during the course of the struggle 70,000 Peruvians were killed or disappeared. The case against Fujimori involved the killing of 25 civilians in two different attacks by “La Colina” a military death squad. He was also charged with the kidnapping of two journalists. During the course of the trial Fujimori repeatedly stated he was innocent because he did not order the deaths of anyone. He was clearly more defiant in the earlier stages of the trial, not acknowledging any human rights abuses. As the trial wound up, he took the stand in his own defense and acknowledged that some human rights abuses had occurred and that he was sorry for them but did not order them. He implored the court to remember that he bought peace and stability to 22 million Peruvians.

The people in Peru are split as to whether he should have been convicted. The relatives of the disappeared and killed pressed for his conviction while others hail him as a hero, including his daughter who is a possible presidential candidate for 2011.

Of course, in law, one can be guilty of a murder, even if they did not order it themselves. Fujimori had a responsibility as head of the state to prevent his army from abusing, killing and torturing civilians. If he did not actually order the killings, he should have punished offenders when it became known that the killings were occurring. His failure or unwillingness to do so, exposed him to criminal liability. If the Fujimori conviction withstands the appeal process, it will be a milestone, a signal to heads of states. One cannot use any and all tactics to fight insurgents. The rules of war fare apply even when the fight is a protracted one. We are living in interesting times, a former head of state found guilty of atrocities committed under his watch, a second on trial (Charles Taylor, former President of Liberia), and a sitting head of state under indictment for similar kinds of crimes. Perhaps these cases signal a real shift in the world’s acceptance of impunity for crimes committed against civilians. Now that would be revolutionary!!

It looks like Peru’s Shining Path has reappeared in the news. Reports in the New York Times recently indicate that villagers are once again being subject to killings, torture and disappearances by both Shining Path and the Peruvian army. This time there are allegations that Shining Path is financing its resurgence with money from cocaine trafficking. This bodes poorly for the rural people in Peru.