Extending International Criminal Law beyond the Individual to ...

More documents

Recommendations

Info

902 JICJ 6 (2008), 899^926 far have had rules that make individuals the sole subjects of their jurisdiction, we can imagine any one of these tribunals being adjusted so that it may exercise its jurisdiction over non-natural persons (such as political parties or other legal persons). At this point, the exclusion of non-natural persons can be seen as the consequence of a ‘rule of procedure’ rather than the inevitable result of application of international criminal law. 11 In addition to seeing subjectivity as a procedural problem, we might argue that the effectiveness principle has a role to play. If international law is to be effective, everyone should be prohibited from assisting governments in violating those principles, or indeed from violating such principles themselves. Let us now see how this idea that corporations should be prohibited from assisting governments in violating international law is playing out in practice. This idea has become known as ‘corporate complicity’ and has generated considerable interest in various sectors. 3. Corporate Complicity Before looking at the scope of corporate complicity under international law, let us first ask ourselves how the complicity concept came to play such a prominent role. I would suggest that there are a few developments that stand out. First, as human rights organizations became more interested in reporting on the behaviour of multinational corporations, they found themselves confronted with a legal conundrum. Unlike ethical investors or those in the corporate social responsibility movement, international human rights organizations prided themselves on their law-based methodology. Moreover, they based all human rights reporting on violations of international law. These violations were usually expressed in terms of violations of human rights treaties which the relevant state had ratified. The legal methodology did not seem suited to complaining about the behaviour of corporations. Amnesty International’s Human Rights Principles for Companies (1998) included a policy recommendation that companies should ensure that personnel are never ‘complicit’ in human rights abuses. 12 Without radically altering the traditional understanding of human rights law, groups such as Human Rights Watch argued that, although the corporations did not have obligations as parties to the human rights treaties, the states they were operating in did have such obligations and 11 Brierly’s insights from 1928 again bear repeating here: ‘Incomparably the greatest threat to peace in the modern world lies in the growing tendency of governments to place the power of the state behind the private economic interests of their nationals, and thus to identify the interests of a few powerful individuals with the interests of the whole country. It is unfortunate that international law should continue to provide a theoretical justification for this dangerous practice by its stubborn adherence to an unreal conception of international society.’ Ibid., at 53. 12 ‘Companies should establish procedures to ensure that all operations are examined for their potential impact on human rights, and safeguards to ensure that company staff are never complicit in human rights abuses.’AI Index ACT 70/01/98.
Extending International Criminal Law 903 the behaviour of the corporations could be seen as contributing to violations by those states, and so it made sense to talk about the corporations being complicit in such violations. 13 The notion that companies, and those that invest in such companies, should avoid being tainted with complicity was in the air as a vehicle for campaigning against companies. Amnesty International’s report on Sudan quoted Alan G. Hevesi, Comptroller of the City of New York Pension Funds and a shareholder in Talisman Energy: I believe a company that is doing business in a country under a repressive regime must not provide financing or other resources for the perpetuation of wrongdoing or atrocities. As long-term investors, we believe a company that is cavalier about its moral and social responsibility presents an unacceptable investment risk. The expanding divestment campaign against Talisman Energy for alleged complicity in the horrors in Sudan is just one indication of that risk. 14 Ten years later, we find that ethical investors, such as Norway’s sovereign wealth fund, the ‘The Government Pension Fund ^ Global’, will screen out, and disinvest from, corporations where there is an unacceptable risk of contributing to corporate complicity in violations of international law. 15 The Ethical Guidelines explain in paragraph 4.4: The Council shall issue recommendations on negative screening of one or several companies on the basis of production of weapons that through their normal use may violate fundamental humanitarian principles. The Council shall issue recommendations on the exclusion of one or several companies from the investment universe because of acts or omissions that constitute an unacceptable risk of the Fund contributing to: Serious or systematic human rights violations, such as murder, torture, deprivation of liberty, forced labour, the worst forms of child labour and other forms of child exploitation Serious violations of individuals’ rights in situations of war or conflict Severe environmental damages Gross corruption Other particularly serious violations of fundamental ethical norms. 16 The concept of contribution leading to complicity was most recently explained by the Fund’s Advisory Council on Ethics with regard to the question of investment in the company, Total, in the context of Total’s alleged complicity in 13 See e.g. Human Rights Watch, The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Areas (NY: HRW, 1999) and The Enron Corporation: Corporate Complicity in Human RightsViolations (NY: HRW, 1999). 14 ‘Sudan: The Human Price of Oil’, AI Index AFR 54/001/2000, 3 May 2000, the reference for the quote is ‘Letter, written by Alan G. Hevesi to Mr James Buckee, president and chief executive officer of Talisman Energy, September 27, 1999’. 15 S. Chesterman,‘The Turn to Ethics: Disinvestment from Multinational Corporations for Human Rights Violations - The Case of Norway’s Sovereign Wealth Fund’, 23 American University International Law Review (2008) 577^615. 16 The Ethical Guidelines, Norwegian Government Pension FundçGlobal, issued 22 December 2005.
Page 1 and 2: WORKSHOP CORPORATE CRIMINAL LIABILI
Page 3: Extending International Criminal La
Page 7 and 8: Extending International Criminal La

Extending International Criminal Law beyond the Individual to ...

Create successful ePaper yourself

Delete template?

Save as template?