War crimes: proponents of universal jurisdiction target multinational corporations
More countries than ever before are using domestic laws to prosecute perpetrators of atrocity crimes committed outside of their borders under the principle of universal jurisdiction – including as a result of the war in Ukraine. Increasingly, corporations are being brought to trial under this principle, presenting a path towards accountability for crimes committed overseas by large international players who continue to act with relative impunity.
A precedent for corporate accountability was created at the end of the Second World War, when a number of large companies in industries such as steel, weapons and chemicals were charged with complicity in atrocity crimes for supporting the Nazi war effort. Their cases were heard at the Nuremberg trials in 1945–46. Another notable case took place in 2005, when Dutch chemical tradesman Frans van Anraat was convicted for complicity in war crimes for selling a chemical essential for the creation of mustard gas to former Iraqi President Saddam Hussein. The gas was used against the Kurds and killed thousands.
In its latest annual universal jurisdiction review, covering 2022, the non-governmental organisation TRIAL International highlights that 30 corporate actors are currently suspected in cases of atrocity crimes.
John Balouziyeh, North American Regional Forum Liaison Officer for the IBA War Crimes Committee and a partner at The Law Firm of Wael A Alissa in Riyadh, says the use of the principle will dissuade companies from investing in countries that have poor human rights records or are experiencing armed conflict. ‘We are already seeing this happen, with some companies divesting from countries being accused by international organisations of committing serious violations of international human rights and humanitarian law’, says Balouziyeh.
In Sweden for example, an ongoing case concerns two Lundin Energy executives, who were indicted for allegedly aiding and abetting war crimes committed in Sudan between 1999 and 2003. Prosecutors allege the company had asked the Sudanese government to secure a potential oilfield, knowing this would mean seizing the area by force. As such, this made the executives complicit in war crimes that were then carried out by the Sudanese army and allied militia against civilians. The executives deny the allegations and Lundin Energy has stated that ‘there are no grounds for the allegations of wrongdoing by any of [our] representatives.'
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Some companies divesting from countries [are] being accused [of] committing serious violations of international human rights and humanitarian law
North American Regional Forum Liaison Officer, IBA War Crimes Committee
An important development in the successful prosecution of such crimes has been the establishment of specialised prosecutors and units in 26 countries so far, according to the Clooney Foundation for Justice. ‘The existence of specialised war crimes units with the expertise to investigate and prosecute international crimes contributes to the viability of international criminal cases in countries such as France, Germany, Sweden and others that have in recent years actively prosecuted crimes on the basis of universal jurisdiction’, says Balouziyeh.
More countries have begun to accept cases under universal jurisdiction – including a number of eastern European countries, following Russia’s invasion of Ukraine – which is creating the potential for overlap, duplication and the re-traumatisation of victims, according to TRIAL International. Pavani Nagaraja Bhat, Investigations Associate at human rights organisation Fortify Rights, says that when it comes to universal jurisdiction cases, ‘there is a real risk of overlap and that’s why it’s important that all of us coordinate with each other to ensure that we’re not speaking to the same people over and over again and having them testify the same thing in other courts. The risk of re-traumatisation is real.’
To coordinate – including between the International Criminal Court and the US – and facilitate the cases filed in various jurisdictions concerning Ukraine, a joint investigation team has been set up by Eurojust, the EU Agency for Criminal Justice Cooperation.
At the beginning of 2023, US President Joe Biden signed into law the Justice for Victims of War Crimes Act, opening the door in the US to investigations of war crimes committed overseas, even in cases where neither the accused nor the victims are US citizens. Whether this marks a change in response to cases brought against the US or its citizens remains to be seen.
Belgium and Spain have previously amended their universal jurisdiction legislation following international pressure, including from the US. In 2003, the US threatened to move NATO headquarters out of Brussels after victims turned to Belgian courts for accountability for crimes allegedly committed during the Iraq War. Now, only cases involving Belgian residents or long-term residents as victims or suspects can be brought before its courts. Universal jurisdiction proceedings remain susceptible to political interference, says Angela Mudukuti, an international criminal law and human rights lawyer. ‘The damage has been done in those jurisdictions [Belgium and Spain]. It sets a dangerous precedent. Reconsidering bringing a case is different from losing one’, says Mudukuti.
There are other challenges when it comes to seeking justice in countries far away from where crimes are perpetrated. ‘The obstacles are mainly linked to the geographical and cultural distance between the prosecuting state and the victims and survivors. Witnesses and survivors’ security is also an issue’, says Giulia Soldan, Program Manager, International Investigations and Litigation, at TRIAL International.
The International Criminal Tribunal for Rwanda, held in Tanzania, and the trial of the former President of Chad, Hissène Habré, which took place in Senegal, had their challenges but could serve as examples of how proceedings conducted in a somewhat similar cultural context and slightly closer to home benefit victims, says Mudukuti.
The less-than-ideal pursuit of justice far away from home should, however, not deter victims from seeking accountability altogether, according to Priya Pillai, Head of the Asia Justice Coalition secretariat. ‘There is a need for the exercise of universal jurisdiction “closer to home” and a need to explore in greater depth the potential options in Asia and other regions. But we must also not miss opportunities for justice and accountability only on the basis that these are located far from the region’, she says.
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