Corporate involvement in mass atrocities has rarely been the subject of criminal prosecution. This may partly be due to the often remote involvement by corporations and business leaders and the resulting difficulty to collect sufficient evidence and to apply classical criminal law principles to an internationalised context. However, it may be argued that we are increasingly seeing an emerging practice at the domestic level. In the past year, a number of European justice systems have initiated criminal investigations and indictments of corporations.
- Sweden. On 18 October 2018, the Swedish Government authorised the Public Prosecutor to proceed with a case against two corporate directors of Lundin Oil, a Swedish oil company located in South Sudan in 1998-2003. Originating from a 2010 criminal investigation, both directors were charged with aiding and abetting “gross crimes against international law”, pursuant to Chapter 22, Section 6 of the Swedish Penal Code. Since contracts were signed in 1997, Lundin Oil had carried out oil extraction and production in a disputed conflict region which allegedly financed the Sudanese army and militias of both parties to the civil war accused of committing crimes against civilians.
- Belgium. On 15 May 2018, the Antwerp Criminal Court heard a case brought by the Belgian Customs against three Belgian companies accused of exporting chemicals (convertible into nerve agent sarin) to Syria in 2014-2016. The companies have allegedly violated EU sanctions by exporting isopropanol to Syria. The (Syria Sanctions) Order 2013 prohibits “the sale, supply, transfer or export, directly or indirectly, of … goods … which might be used for internal repression” without prior authorisation, including isopropanol.
- France. On 28 June 2018, the investigative judges indicted LaFarge, a French cement company, and eight of its former executives for crimes committed in ISIS-controlled northern Syria. They were charged with complicity in crimes against humanity and financing a terrorist organisation. Lafarge allegedly made multi-million dollar payments to ISIS in order to continue its operations. The question is whether the company knowingly facilitated ISIS crimes. The case represents the first time where a company as legal person has been indicted for international crimes abroad.
- The Netherlands. On 8 November 2018, a criminal complaint was filed against a Dutch ship-building firm allegedly involved in the exploitation of North Korean men working for Polish company “Crist S.A.”. The plaintiff claimed that the Dutch firm knew about the inhumane, slave-like conditions that Crist’s workers were subjected to, but persisted with ordering ship components at a lower cost. The firm has allegedly violated Article 273f(1)(6) of the Dutch Penal Code which criminalises “intentionally profit[ing] from the exploitation of another person”.
There are a few points to note with respect to these practices.
First, as domestic systems begin to apply their criminal laws to an international context to assert accountability of involvement in atrocity crimes abroad, identifying the types of assistance that have been penalized would be most relevant. As seen in the Swedish case against the executives of Lundin Oil, aiding and abetting was a mode of liability deemed fit for prosecuting criminal assistance provided via the corporation. In order to determine criminal liability for aiding and abetting, a sufficient degree of assistance needs to be provided (actus reus) with a sufficient degree of intent or knowledge of the main crimes (mens rea). As for the actus reus, like most civil law cultures, Swedish criminal law requires no significant contribution to the crimes by the aider and abettor, but permits acts carrying little or no consequence to the ultimate perpetration of crimes.
Second, it is noteworthy that assistance in crimes is not only punishable by means of aiding and abetting as a mode of liability. With a view to suppress and prevent certain highly serious crimes, legislators have penalized certain conduct in the form of direct perpetration, which can also be seen as a form of assistance. The crime of “profiting from exploitation” in the Netherlands and the EU-sanctioned exports are examples of the proliferation of separate offences at the domestic level. This trajectory opens the possibility to hold companies accountable as direct perpetrators of a separate crime which can also be regarded as a means of assisting the commission of highly serious crimes.
Lastly, the French criminal prosecution against LaFarge -if successful- would to my knowledge be the first case where a legal person is held criminally liable for grave crimes abroad. The test for corporate criminal liability is whether the crimes are attributable to the legal entity. Specifically, this entails a case-by-case assessment which looks to, inter alia, the nature of the company, whether the criminal conduct was within the sphere of its ordinary business activities, and the company’s power to the control the occurrence of crimes. If the material nexus can be proven, the court would need to show that the company bears the requisite standard of culpability. Whether this is possible will largely depend upon the company’s strategy and efforts, in terms of due diligence, as is discussed in Human Rights Due Diligence: Turning ideals into law.