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.

Advertisements

The prosecution of  Charles Taylor, former president of Liberia, in the Special Court of Sierra Leone, sitting in special session at the Hague, came to a conclusion in February. Since that time the court has been weighing defense motions for an acquittal alleging that the prosecutor’s evidence failed to establish Mr. Taylor had committed war crimes or crimes against humanity. On Monday, the court ruled in strong language  it “wholly” rejected the motion for acquittal. The trial has been set to resume on June 29th and it is expected that the defense will call Mr. Taylor as its first witness. A recent editorial on allafrica.com questioned why the Blaise Campoare, current president of Burkina Faso was not  also on trial. The writer noted that it was publicly know that Campoare supported Taylor during the civil war in Liberia and helped finance his activities in Sierra Leone. That question will remain for another day. For now, Mr. Taylor must continue to wait for his fate to play out in court.

Last week the International Law Observer reported that the U.N. Special Rapporteur on the human rights situation in the Palestinian territories occupied since 1967, Richard Falk, filed the results of his investigation into the Israeli offensive in Gaza which started in December of 2008 and ended January 2009. The Rapporteur analyzed whether the level of force Israel used in response to rocket attacks by the Palestinians was justified. He first laid out the basis for assessing whether Israel should be held accountable under international Law, dismissing Israel’s claim that its status as an occupying force ceased in 2005. Thereafter, the rapporteur analyzed the laws of war and concluded the level of Israeli force was not justified, focusing particularly on the number of civilian casualties as well as the fact that Israel blatantly refused to allow civilians to leave the area during its assault. He concluded that Israel may very well have committed war crimes and called for a full U.N. inquiry. The introduction to the report also describes the disgraceful way in which Israel treated the UN Rapporteur, who was arrested, thrown in a cell, subjected to “excessive body searches” and then deported. U.N. Secretary-General Ban Ki-Moon announced the findings today and indicated that much work needs to be done to resolve the situation.