Criminal liability for corporate-related human rights abuses
Corporate criminal liability for human rights
As more avenues close for victims of corporate abuses to access justice through civil claims, lawyers are looking for innovative ways to achieve remedy.
Corporate criminal liability for human rights abuses concerns the liability for illegal behaviour by a business, or individual acting on behalf of a business, that impacts human rights. These illegal activities may be criminalised in international humanitarian law, anti-trafficking legislation, environmental laws, consumer safety legislation or workplace safety laws, among others. A state has a duty to enact such laws to protect people from human rights abuses and ensure remedy, and companies and individuals are obliged not to contravene these laws.
Compared to civil law, there are very few criminal law prosecutions for corporate human rights abuses. This could be explained by the many challenges in holding corporations criminally liable for when human rights abuses occur. The economic power and influence of corporations can be so great as to deter governments from enacting strong corporate crimes legislation for fear of losing investment. Even where this legislation exists, state authorities may be unwilling to enforce such laws because of this economic influence, and also due to lack of expertise or resources.
Another barrier to holding corporations accountable through criminal law is that in some jurisdictions criminal law may not permit a corporation to be held criminally liable, only individuals, such as Germany and Russia. In situations where the criminal activity occurs abroad, criminal law might only apply within a state’s territory, so prosecutors do not have jurisdiction to investigate and prosecute.
Where prosecutions do happen, establishing criminal liability for companies can present evidentiary challenges given that the standard of proof required in criminal law is higher than in civil claims. The higher evidentiary threshold may be insurmountable to an under resourced authority, or one that lacks the skills or experience needed to analyse specific evidence.
The result of these challenges is that perpetrators of human rights abuses are not held accountable and the right to remedy for victims is not always realized. The commentaries below contain analysis, suggestions for legal reforms, as well as guides on how to better utilise the tools already available for corporate criminal liability.
Lundin Petroleum’s executives could be held individually accountable in Sweden for corporate atrocity crimes in So. Sudan, say experts, Miriam Ingeson, Uppsala University & Alexandra Lily Kather, European Center for Constitutional and Human Rights, on EJIL: Talk!, 13 Nov 2018
North Korean labourer sues European company for ‘profiting from his slavery, Jon Stone, Independent, 8 Nov 2018
Can the Lafarge case be a game changer, French Multinational Company indicted for International Crimes in Syria, Claire Tixeire, European Center for Constitutional and Human Rights (ECCHR), 31 Aug 2018
Blog: Holding companies criminally liable for human rights abuses, Andrew Smith, Alice Lepeuple, Corker Binning (UK), 17 Jul 2018
Corporate criminal liability under international law, Alessandra De Tommaso, 5 Mar 2018
Video: The Lafarge case: Multinational indicted for crimes in Syria, ECCHR and Sherpa, Feb 2018
How courts and advocates are shaping legal doctrine on corporate liability and human rights obligations, Corporate Legal Accountability Quarterly Bulletin, Business & Human Rights Resource Centre, Jan 2018
Business and Human Rights: Reflections from Latin America [Los derechos humanos y las empresas: reflexiones desde América Latina], Instituto Interamericano de Derechos Humanos, May 2017 (available only in Spanish)
Corporate impunity is common & remedy for victims is rare, Corporate Legal Accountability Annual Briefing 2017, Business & Human Rights Resource Centre, 2017
The Corporate Crimes Principles: Advancing Investigations and Prosecutions in Human Rights Cases, Amnesty International & International Corporate Accountability Roundtable, 6 Oct 2016
The Developing Notion of Corporate Criminal Liability under International Law: a presentation at Copenhagen Business School, Nadia Bernaz, Middlesex University School of Law, 24 May 2016
The New TV S.A.L. Case at the Special Tribunal for Lebanon – Corporate Criminal Liability under International Law, Nadia Bernaz, Middlesex University School of Law, 31 Oct 2014
The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, James G. Stewart, 19 Feb 2014
Corporate War Crimes: Prosecuting the Pillage of Natural Resources, James G. Stewart, Open Society Justice Initiative, 25 Oct 2010
Towards Corporate Liability in International Criminal Law, Desislava Stoitchkova, Utrecht University, 1 Feb 2010
Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups, Andrew Clapham, Journal of International Criminal Justice, 1 Nov 2008
'Corporate Culture' as a Basis for the Criminal Liability of Corporations, Allens Arthur Robinson, Feb 2008
Business and International Crimes - Assessing the Liability of Business Entities for Grave Violations of International Law, Fafo Institute for Applied International Studies, 6 Sep 2006
Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law - A Survey of Sixteen Countries, Anita Ramasastry & Robert C. Thompson, Fafo Institute for Applied International Studies, 1 Sep 2006
Amesys lawsuit (re Libya): There are ongoing criminal lawsuits against the company for complicity with human rights abuses by the Gaddafi government in Libya by providing it with surveillance equipment before a French court.
Anvil Mining lawsuit (re Dem. Rep. of Congo): There was a criminal investigation (military prosecution) in DRC and in Australia against Anvil Mining employees for facilitating the abuses for giving the army vehicles.
Argor-Heraeus investigation (re Dem. Rep. of Congo): A criminal complaint by the Swiss federal prosecutors’ office against Argor-Heraeus SA alleged that the company had been involved in money laundering.
BHP Billiton & Vale lawsuit (re dam collapse in Brazil): The Brazilian federal prosecutors filed homicide charges against 21 people, including top executives of BHP Billiton, Vale and Samarco, for the 19 deaths resulting from a dam collapse.
Blackwater USA lawsuit (re 16 Sep 2007 Baghdad incident): The US Department of Justice filed criminal charges against five individual Blackwater security guards for torture and other war crimes.
Cambodian villagers’ Intl. Criminal Court complaint (re land grabbing) : A group of Cambodian villagers filed a communication before the International Criminal Court (ICC) against Cambodia’s “ruling elite” including government-connected businesses, alleging that they undertook “widespread and systematic” land grabbing, through violence and forcible relocation.
Chiquita lawsuits (re Colombia): A criminal complaint by the US government against the company for payments to paramilitary.
Chisso Corporation lawsuit (re Minamata disease): The president of Chisso and a supervisor of the Minamata factory faced criminal proceedings in 1979 for causing death and serious bodily harm.
Danzer Group & SIFORCO lawsuits (re Dem. Rep. Congo): A criminal complaint in DRC court against two SIFORCO employees alleged complicity in attacks by the Congolese police and military. There was also a criminal complaint in Germany against a senior manager of Danzer Group also for complicity in the abuses.
DLH lawsuit (re Liberian civil war): A complaint before the Public Prosecutor at the Court of Nantes, France, against DLH alleged that during the Liberian civil war, from 2002-2003, DLH bought timber from Liberian companies that provided support to Charles Taylor’s government.
Drummond lawsuit (re Colombia): A contractor for Drummond was sentenced by a Colombian court to 38 years in prison for organizing the killing of two labour leaders. The judge ordered prosecutors to investigate Drummond’s president and several former employees to determine whether they had a role in the killings. A former executive of Drummond was charged with the murder of two trade unionists.
Criminal complaint against Dutch ship-building firm for allegedly profiting from forced labour of N. Korean worker: A North Korean labourer sues a Dutch shipbuilding firm for allegedly profiting from his slavery.
Eternit lawsuit (re asbestos exposure in Italy): Criminal charges against two former Eternit directors for causing an environmental disaster and failing to take appropriate safety measures to mitigate asbestos exposure.
Ford lawsuit (re Argentina): A criminal complaint against the executives of Ford Motor Argentina, alleged that the company collaborated with the 1976-83 military dictatorship. The complaint accused Ford of helping the regime in political repression, abductions and mistreatment of Ford’s workers and union organisers.
Global Horizons lawsuits (re forced labour): Criminal charges of forced labour against four employees of Global Horizons Manpower (Global Horizons), a US-based labour recruiting company, and two Thailand-based recruiters.
Hudbay Minerals lawsuits (re Guatemala): There was a criminal trial in Guatemala against company’s security guards on murder charges.
Indesit lawsuit (re Poland): The company executives were found guilty for the breach of health and safety regulation, involuntarily manslaughter.
Kaweri Coffee (part of Neumann Gruppe) lawsuit (re forced eviction in Uganda): There was a criminal complaint against Kaweri Coffee Plantation and the Ugandan Government alleging human rights violations.
Lafarge lawsuit (re complicity for crimes against humanity, Syria): Ex-Syrian employees and 2 NGOs filed a criminal complaint before French courts against Lafarge, for alleged abuses committed in Syria by its subsidiary Lafarge Cement Syria (LCS).In 2018, Lafarge was indicted by French investigative judges for complicity in crimes against humanity.
Lahmeyer lawsuit (re dam construction in northern Sudan): NGOs brought a criminal complaint against executive officers on the charges of causing forcible displacement.
Sweden authorises indictment of Lundin Oil executives over alleged complicity in war crimes in So. Sudan; co. denies allegations, Lundin Petroleum's activities in the country after a report by the European Coalition on Oil in Sudan (ECOS) said the company was possibly complicit in human rights abuses between 1997 and 2003.
Monterrico Metals lawsuit (re Peru): A criminal complaint was brought against security personnel on involvement in the abuses.
Nestlé lawsuit (re Colombia): An NGO filed a criminal complaint against the company for complicity in the murder of trade unionist.
Odebrecht lawsuit (re forced labour in Angola): A Brazilian prosecutor filed a lawsuit against the company in the labour court for forced labour.
PA Child Care lawsuits (re "kids for cash" scandal): Owners of the juvenile facility were criminally charged and found guilty of failing to report a felony and being accessory to a conspiracy.
Produkty grocery store lawsuit (re modern slavery in Russia): Several criminal complaints against grocery store owners alleging severe labour abuses including forced labour, deprivation of liberty, passport confiscation and beatings.
Qosmos investigation (re Syria): NGOs filed a criminal complaint on the involvement of companies in supplying surveillance equipment to Syria.
Sanlu lawsuits: Criminal conviction against employees and against the company.
Sweatshop labour lawsuit (re Bolivian migrant workers in Argentina): The Buenos Aires Public Advocat brought criminal lawsuits against the workshop owners and the brand owners alleging complicity and involvement in the running of illegal workshops, breaching national laws (work, residence and migration) and using slave labour.
Syngenta lawsuit (re attack on rural workers in Brazil): The company was charged and found guilty an armed attack.
Tahoe Resources lawsuit (re Guatemala): Authorities brought criminal charges against company’s security manager for causing serious and minor bodily harm during the attack, and obstruction of justice in Guatemalan court.
Lawsuit against Tazreen Fashions (re factory fire in Bangladesh): The factory owners, as well as factory managers and security guards were charged with arson, culpable homicide not amounting to murder, and death by negligence
Trafigura lawsuits (re Côte d’Ivoire): The company faced criminal charges in Netherlands for illegally exporting hazardous waste to Côte d’Ivoire. The allegations against the company are that it breached Dutch export and environmental laws as well as forging official documents.
US Deepwater Horizon explosion & oil spill lawsuits: Several U.S. Government investigations have been launched into the oil spill including civil and criminal probes conducted by the Justice Department. The criminal investigation considers whether improper relations between corporate officials and federal regulators contributed to the accident and breaches of environmental laws.
Villaggio Mall lawsuit (re fatal fire, Qatar): The public prosecutor in Qatar brought a criminal case against seven individuals for their alleged involvement in the deaths of 19 people, including 13 children, in a fire at Villaggio Mall in Qatar.