IBA War Crimes Committee shines a light on corporate liability cases

Friday 25 November 2022

Multinational corporations are increasingly facing allegations of involvement in atrocity crimes. On 31 October 2022, during the IBA's Annual Conference in Miami, the War Crimes Committee hosted a session on Corporate liability for international criminal law violations. This panel explored past and current cases where corporate entities and/or their officers have been investigated and, in some cases, criminally charged and convicted or faced civil suits for core international crimes, such as war crimes and crimes against humanity.

For example, in France, the cement company Lafarge faces charges of crimes against humanity committed in Syria, and in Sweden, Lundin Energy executives have been charged with aiding and abetting war crimes in South Sudan. Below is a summary of the session, which focussed on the general framework for such liability, current cases and trends, outstanding challenges, as well as expert views on where corporate liability is heading.

Danya Chaikel, Co-Vice Chair of the IBA’s War Crimes Committee, moderated this timely discussion, and shared the following compilation of prominent cases to give a snapshot of this growing area and the multiplicity of jurisdictions, locations of crimes and types of businesses involved.

The compilation shows that in many cases, companies are allegedly profiting from ongoing conflicts, while also fuelling war and the connected gross violations of human rights, by supplying perpetrators with the necessary tools – from fuel, logistic and financial support, weapons, security services, chemicals and even alleged incitement of violence via social media to commit these crimes. Specific types of crimes include: indiscriminate attacks and intentional targeting of civilians, burning of shelters, pillage, unlawful killing of civilians, sexual violence including rape, abduction of children, torture and forced displacement.

Notably, most of the multinational companies involved are based in wealthy countries, accused of crimes in countries with poor human rights records or ongoing armed conflicts. This asymmetrical power dynamic intensifies during these cross-border deals, where there is a wide accountability gap for harmful activities.

The compilation also shows that NGOs and victims are doing a tremendous amount of the heavy lifting, in terms of documenting atrocities, and filing complaints which are leading to domestic investigations and prosecutions. Strikingly, it appears that all of the corporate liability cases in France have been initiated by NGOs and victims filing complaints. NGOs and victims are also actively submitting potential evidence against corporate actors to international mechanisms, such as the International Criminal Court (ICC). For instance, the European Centre for Constitutional and Human Rights (ECCHR), together with five other NGOs, submitted a communication to the ICC Prosecutor in 2019, concerning the liability of executives from European arms companies for allegedly aiding and abetting war crimes committed by the Saudi-UAE military coalition in Yemen.

In addition to criminal and civil cases, there are other forms of accountability – including sanctions against companies and executives making money from atrocities. For example, the United States recently sanctioned a group of Myanmar businessmen and their company accused of supplying Russian-made weapons to Myanmar’s military regime which is accused of atrocities, including genocide. The prosecution of sanctions violations is also on the rise as a supplementary or alternative path to prosecuting core international crimes, especially when this is the only route to accountability.

Before starting the panel discussion, Danya emphasised that while the pathways to accountability are growing, it is imperative to question their viability in terms of punishment and prevention. Will these legal processes be meaningful to victims and will they receive any reparations? And when we consider fair trial issues, what degree of connection or nexus to the crimes is necessary to establish complicity, especially in longer supply chains?

John Balouziyeh, an officer of the IBA War Crimes Committee, then spoke about prominent international criminal law cases brought against corporations in Canada, Europe and the United States. The criminal cases he highlighted include the complaint filed against TotalEnergies in France in October 2022 for complicity in alleged war crimes in Ukraine; the prosecution against Lafarge in France and the United States for crimes against humanity in Syria; and the case filed this year in France against Dassault and other defense contractors for alleged complicity for war crimes in Yemen. John also discussed civil cases brought under statutes, such as the Alien Tort Claims Act that permits victims of atrocity crimes to seek monetary damages. Among the cases he highlighted are the Nevsun Resources case, which was brought in Canada in 2014 for alleged complicity for crimes against humanity in Eritrea; the case filed against BNP Paribas in France in 2017 for alleged complicity for war crimes in Rwanda; and the case filed against Meta Platforms (Facebook) in 2021 in California alleging complicity for genocide in Myanmar. John observed a trend marked by an acceleration of international criminal law cases filed recently and predicted that within the next five to seven years, every major law firm would have a human rights department to represent clients accused of violations of international human rights law, international criminal law and international humanitarian law.

Reena Devgun, Senior Public Prosecutor and Coordinator for the Swedish War Crimes prosecutors at the Swedish Prosecution Authority, joined the panel from Stockholm, Sweden. The War Crimes Unit has actively prosecuted executives of Swedish companies for alleged complicity for war crimes and other international crimes. One prominent case involves the prosecution of two executives of the Swedish oil company Lundin Energy AB for alleged complicity in war crimes committed in Sudan from 1999 to 2003. In November of 2021, following eight other prosecutions by Swedish prosecutors for war crimes, Swedish prosecutors indicted the executives for an alleged effort to secure Lundin’s oil operations in South Sudan by requesting protection from the Sudanese regime and making payments to armed groups that committed war crimes.

Prosecutors also sought to confiscate over US$100,000,000, which they claim is the equivalent of Lundin’s profit from the sale of the Sudanese business in 2003, and nearly half a billion dollars in fines. One of the defendants is a Swiss citizen and he challenged Sweden’s jurisdiction, arguing that Sweden's principle of universal jurisdiction did not apply to him as he was neither a resident nor a citizen. On 10 November 2022, the Supreme Court rejected his claim, ruling that the Swedish court has jurisdiction, since his connection to Sweden is sufficient for the case to be tried in Swedish courts and that there is no obstacle to it in international customary law.

Tom Hamilton, Assistant Professor of International Criminal Law at the University of Amsterdam, focused on corporate accountability in the arms trade, discussing the potential liability of weapons suppliers for involvement in atrocity. Tom addressed the legal basis for arms trade accountability as accomplices/accessories under customary international law, Articles 25(3)(c) and 25(3)(d)(ii) of the Rome Statute and different national jurisdictions. Tom pointed to the distinctiveness of establishing liability for the arms trade, which, unlike some areas of business activity, often involves a strong causal nexus to the crimes, by providing the physical means of commission. Tom mentioned the importance of integrating existing sector-specific arms control laws with the general principles of liability in international criminal law, referring to his forthcoming book The Arms Trade and International Criminal Law (Oxford University Press, 2023).

Recognising the challenges of corporate accountability in the arms trade – including uncertainty over the doctrines of complicity under international and national laws –that leave companies’ due diligence obligations unclear, Tom emphasised that a wide range of today’s armed conflicts involve weapons transfers with some potential to establish individual accomplice liability. After pointing to the precedents of the subsequent Nuremberg trials that charged German industrialists for manufacturing munitions, Tom noted that two executives of the Tesch and Stabenow company were sentenced to death for supplying the pesticide gas, Zyklon B, which was used in Auschwitz. Tom discussed a number of other cases including, at the national level, two important convictions of Dutch arms brokers for complicity in international crimes: Kouwenhoven and Van Anraat. Tom pointed to potential ICC situations where arms brokers could be held responsible, while investigations of corporate CEOs faced a number of challenges. Tom noted ongoing allegations of corporate complicity in Myanmar, Ukraine and Yemen, and concluded by questioning whether accountability discussions on Ukraine have paid sufficient attention to business actors.

Kristin Rosella, a partner at Global Diligence, focuses on international criminal law, financial crimes, human rights law, human trafficking and child SEA. She spoke about a landmark case that she is leading against the French bank BNP Paribas for alleged financial crimes and complicity in international crimes committed during the Darfur genocide. In 2020, prosecutors in Paris opened an investigation into BNP Paribas over allegations of complicity in genocide, crimes against humanity and torture in Sudan between 2002 and 2008. Earlier this year, nine Sudanese victims, assisted by the Fédération internationale pour les droits humains and the Ligue des droits de l’Homme, provided evidence as civil parties to the French war crimes unit. The investigating judges interviewed four of the victims, who are actively providing contributions to the ongoing judicial investigation. The victims are also being assisted by Kristin’s team from Global Diligence Alliance. Global Diligence is pioneering the field of international criminal justice by attempting to hold a French financial institution criminally responsible for complicity in international crimes, including allegations of money laundering and other financial crimes, committed in Sudan.

Jamie Williamson, Executive Director of the International Code of Conduct for Private Security Service Providers Association, ICoCA, then addressed risks and possible liabilities associated with the use of private security providers within global supply chains, including in complex environments. Introducing the issues, he noted that over the past few decades there has been an important evolution in both the nature and perception of private security actors globally. While the 1980s and 1990s were marked by entities such as Executive Outcomes and mercenarism, the second Gulf war, epitomised by the activities of Blackwater, served as a platform for the so-called ‘privatisation of war’, with thousands of security providers being contracted by governments, as well as business corporations, with many operating in high risk environments. Today, noted Jamie, there is a growing recognition that private security has evolved to represent a formidable global industry, operating across sectors and contexts. Private security can no longer be seen as merely an outsourced service and considered as a compliance afterthought. Instead, especially for multinational corporations, private security is an integral part of all major global supply chains, including land and maritime and local and international.

Jamie underscored that failure to carry out robust human rights due diligence and verification over security providers in global supply chains carries with it major risks of human rights abuses and humanitarian law violations. Recent cases across multiple sectors, including the Qatar 2022 FIFA World Cup, the extractive industry, agri-business and retail have highlighted the reputational, financial and legal consequences that companies (both parent and subsidiaries) will incur for wrongful acts by security providers. Moreover, through litigation and regulatory developments on human rights due diligence, a greater onus is being placed on the leadership, management and governance of multinational corporations to act assertively to mitigate the risks of human rights abuses ‘on their watch’.

Jamie underscored that failure to carry out robust human rights due diligence and verification over security providers in global supply chains carries with it major risks of human rights abuses and humanitarian law violations. Recent cases across multiple sectors, including the Qatar 2022 FIFA World Cup, the extractive industry, agri-business and retail have highlighted the reputational, financial and legal consequences that companies (both parent and subsidiaries) will incur for wrongful acts by security providers. Moreover, through litigation and regulatory developments on human rights due diligence, a greater onus is being placed on the leadership, management and governance of multinational corporations to act assertively to mitigate the risks of human rights abuses ‘on their watch’.

As a consequence, Jamie advised that more should be done by law firms and their corporate clients to strengthen compliance, with concrete implementation of human rights commitments, and relevant third-party verification. While recognising that international criminal tribunals may not be in a position to ensure full corporate accountability for international crimes, the growing importance of security providers in global supply chains, combined with the increased calls for transparency and oversight, are irrefutable arguments calling for more sustained and impactful preventative action by corporate actors.

Additional resources

Nina H. B. Jørgensen, The International Criminal Responsibility of War's Funders and Profiteers, Cambridge University Press (2020).

Catherine Gilfedder and John Balouziyeh, Doing well by doing good: Human rights as a pillar of corporate social responsibility, Part 2: Human rights compliance as a legal obligation, Issue 107, The Oath (Nov. 2021), pp. 32-35.

Julia Graff, Corporate War Criminals and the International Criminal Court: Blood and Profits in the Democratic Republic of Congo, Human Rights Brief 11, no. 2 (2004), pp. 23-26.

David Scheffer, Corporate Liability under the Rome Statute, Harvard International Law Journal, Vol. 57, Online Symposium (Spring 2016), pp. 35-39.

Shannon Raj Singh, Move fast and break societies: the weaponization of social media and options for accountability under international criminal law, Cambridge International Law Journal, Vol. 8 No. 2 (2019), pp. 331–342.

Tomas Hamilton, 'Arms Transfers under Article 25(3)(d)(ii) of the Rome Statute', Cambridge University Press (2020).