In light of the discussion in the previous section, I now offer some proposed changes in international law. I begin with a change in the very definition and
23There was debate at the time of the drafting of the Genocide Convention, and considerable debate since, about including political groups.
106 Larry May
elements of genocide that are now listed in the ICC statute exactly as it was listed in the1948Genocide Convention. First, we should no longer list just four groups, but instead at very least these four groups should only be examples of groups that could be the subject of genocide. Second, a clause will need to be added after the four illustrative cases that will make it clear what the criteria are for deciding what other groups to include. Third, some kind of rule must be articulated that would make it possible to determine when a new proposed group clearly could not qualify as a group subject to genocide. I take up each of these proposals in turn in this final section.
The current formulation of the definition of genocide, in both the Genocide Convention of1948and the ICC’s Rome Statute of1998, reads:
“genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.24 My first proposal is to change the end of the definition so that it now reads:
“genocide” means any of the following acts committed with intent to destroy, in whole or in part,a group, such asa national, ethnical, racial or religious group, as such.25
Such a change will allow for other groups that are much like the four originally listed types of groups also to be the subject of genocidal harms that can be redressed in international law.
The second change is to add a clause to indicate what the four exemplary cases of groups have in common. This is a much harder task than the first, but I provide a possible construction, as follows:
“genocide” means any of the following acts committed with intent to destroy, in whole or in part, a groupthat is relatively stable and significant for the identity of its members, such as a national, ethnical, racial or religious group, as such.26
Of course, the term “relatively” is meant to give some latitude here, and would actually be needed to make sense of all of the original categories with the possible exception of racial groups, because the others can be changed, just not easily in most cases.
Given the second change, it is possible that the third change, meant to indicate what is ruled out, may not be needed because groups that lack stability or significance are also clearly ruled out. On the supposition that a bit more guidance is needed, however, I offer the following third change:
24Rome Statute, Article6.
25Italics added to indicate proposed wording change.
26Again, I add italics to indicate proposed wording change.
Identifying Groups in Genocide Cases 107
“genocide” means any of the following acts committed with intent to destroy, in whole or in part, apublicly recognizedgroup that is relatively stable and significant for the identity of its members, such as a national, ethnical, racial or religious group, as such.
This limitation is meant to indicate that potential groups, such as the Cam- bodian case of those people who wear eyeglasses, would potentially fit the definition of the group only if those people who wore eyeglasses were indeed recognized publicly as a group, and not merely recognized as such by the perpetrators. Otherwise, that group would not be a possible subject of geno- cide. In the Rwanda case, the issuing of identity cards by the government to those who were Tutsis would seemingly also meet this condition because the identity cards meet the publicity condition.
Putting my three proposed changes into italics, I would change the existing definition and elements now to read:
“genocide” means any of the following acts committed with intent to destroy, in whole or in part,a publicly recognized group that is relatively stable and significant for the identity of its members, such asa national, ethnical, racial or religious group, as such.
Given all of these changes, the facts are such that the Cambodian eyeglass wearers would probably not constitute a group that can be the subject of genocide, but the Rwandan Tutsis would. In light of our discussion, this seems to be the result that was to be hoped for.
In this chapter, I have explored difficult conceptual and normative issues in how to identify groups that can be the subject of genocidal harm and that can potentially be redressed in international law. Also, I have made a practical proposal about how to change the identity conditions so that those conditions better reflect careful conceptual and normative thinking about these matters. I have certainly not solved all the problems in this nearly intractable problem set, but I have made a start, and one that I think is fairly plausible and can be built on by others who are also interested in solving the definitional problem that has so vexed tribunals, convention drafters, courts, and international commission members for many years. Along the way, I have also suggested that genocide may have occurred in Cambodia even though the victim group did not fit into any of the four categories of protected groups currently recognized in international law.
6 Prosecuting Corporations for International Crimes:
The Role for Domestic Criminal Law Joanna Kyriakakis
The permissive conditions for business-related human rights abuses today are created by a misalignment between economic forces and governance capacity.
Only realignment can fix the problem.1
In its operations in the Indonesian province of Papua, the U.S. mining com- pany Freeport-McMoRan has been accused of assisting in serious human rights abuses, including torture committed by military and private security forces in Freeport facilities and on Freeport property.2In the Sudan, a num- ber of corporations, including the Canadian company Talisman Energy and the Swedish company Lundin Oil AB, have been the targets of campaigns claiming that the companies willfully ignored, or positively assisted in, forcible depopulations occurring in and around their oil mining concession regions.3 The U.S. company Unocal Corporation settled out of court a lawsuit alleg- ing that it had knowingly used forced labor in its extractive operations in
1United Nations Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (hereafter the SRSG on business and human rights),Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, [82], UN Doc A/HRC/4/035(2007).
2Catholic Church of Jayapura,Violations of Human Rights in the Timika Area of Irian Jaya, Indonesia(August1995). See also Elizabeth Brundige et al.,Indonesian Human Rights Abuses in West Papua: Application of the Law of Genocide to the History of Indonesian Control(April 2004),39–40.
3Human Rights Watch, Sudan, Oil and Human Rights (2003). Such allegations, among others, formed the basis of a United States Alien Tort Claims Act lawsuit. See, for exam- ple,Plaintiffs’ Second Amended Class Action Complaint,Presbyterian Church of Sudan v.
Talisman Energy (United States District Court for the Southern District of New York, Civil Action No. 01CV 9882(DLC)), available at http://www.bergermontague.com/pdfs/
SecondAmendedClassActionComplaint.pdf (accessed April28,2008).
An abridged version of this paper was presented at the Law and Society in the21st Century Conference, Humboldt University, Berlin, July26,2007.
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Prosecuting Corporations for International Crimes 109 Myanmar.4More recently, the Australian company Anvil Mining came under investigation for providing the vehicles that facilitated a military operation by state forces in the Democratic Republic of the Congo, an operation that allegedly involved the commission of a number of war crimes, including rape, arbitrary detentions, and summary executions.5
In the context of contemporary global economies, allegations of corporate involvement in breaches of international human rights standards are unfor- tunately not uncommon.6 In some cases the nature and extent of wrongful conduct in which corporations are being implicated might be classified as international crimes.7 International crimes include slavery, crimes against humanity, war crimes, genocide, and torture.8As in the examples mentioned, allegations of corporate involvement in international crimes often arise in the context of what has been termed “militarized commerce.”9Particularly in the extractive industries, the often close relationship between corporations and state or private military forces to ensure access, control, and security over large areas of land and mining infrastructure can expose the companies involved to claims of complicity in serious violations by security partners, particularly where security partners have poor human rights records.10
4For materials on the Unocal lawsuit, see the Business and Human Rights Resource Centre, available at http://www.business-humanrights.org/Categories/Lawlawsuits/
Lawsuitsregulatoryaction/LawsuitsSelectedcases/UnocallawsuitreBurma (accessed April 28, 2008).
5Joanna Kyriakakis, “Australian Prosecution of Corporations for International Crimes: The Potential of the Commonwealth Criminal Code,” 5(4)Journal of International Criminal Justice(2007),809,811–14.
6See, for example, the Business and Human Rights Resource Centre, available at http://www .business-humanrights.org/Home (accessed April28,2008) (presenting allegations and re- sponses by companies regarding human rights abuses connected with their business opera- tions).
7For a reference of cases of ongoing concern, see the project of the International Peace Academy and Fafo AIS,Business and International Crimes: Assessing the Liability of Busi- ness Entities for Grave Violations of International Law(2004), available at http://www.fafo.no/
liabilities/index.htm (accessed April28,2008).
8Although there are various positions on what constitutes an international crime, this content is taken from the International Law Association, London Conference, “Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences,”69Interna- tional Law Association Reports of Conferences(2000),403,406–11, and Princeton University Program in Law and Public Affairs,28The Princeton Principles on Universal Jurisdiction(2001), Principle2(1).
9Craig Forcese, “Deterring ‘Militarized Commerce’: The Prospect of Liability for ‘Privatized’
Human Rights Abuses,”31Ottawa Law Review(2000),171,174–5; and Craig Forcese, ‘“Milita- rized Commerce’ in Sudan’s Oilfields: Lessons for Canadian Foreign Policy,”8(3)Canadian Foreign Policy(Spring2001),37,37–41.
10The SRSG on business and human rights has reported that the extractive industries dom- inate in situations involving the most egregious human rights abuses implicating indus- try: Interim Report of the Special Representative of the Secretary-General on the Issue of
110 Joanna Kyriakakis Despite these concerns, it is often claimed that the existing regulatory sys- tem that might be brought to bear on blameworthy behavior by corpora- tions is either insufficient11or, where mechanisms for accountability do exist, underutilized in relation to corporate activity.12A recent phenomenon that is therefore of some consequence is the increasing adoption of national crimi- nal laws with extraterritorial dimensions criminalizing conduct amounting to international crimes that regulate not only the behavior of natural persons but also of legal persons,13such as multinational corporations.14Part of a broader trend toward national extraterritorial law directed to different aspects of cor- porate activity, these recently enacted domestic “international crimes” laws are largely a consequence of national implementation of the Rome Statute of the International Criminal Court (ICC).15Although the laws arise under
Human Rights and Transnational Corporations and Other Business Enterprise, [25–26], UN Doc E/CN.4/2006/97 (2006). There may be many reasons for the over-representation of the extractive industries in claims involving corporations and international crimes, includ- ing that resource operations are often located in conflict or weak governance zones: Ibid., [27–30]. Concern regarding the specific risks faced in the extractive industry has led to the development of a voluntary initiative to help regulate and manage security risks par- ticular to the sector. SeeVoluntary Principles on Security and Human Rights,available at http://www.voluntaryprinciples.org/principles/index.php (accessed April28,2008).
11See, for example, Steven R. Ratner, “Corporations and Human Rights: A Theory of Legal Responsibility,”111The Yale Law Journal (2001),443,461–73; Olivier De Schutter, “The Accountability of Multinationals for Human Rights Violations in European Law,” in Philip Alston (ed.),Non-State Actors and Human Rights(Oxford: Oxford University Press,2005),227, 230–40; Sarah Joseph, “An Overview of the Human Rights Accountability of Multinational Enterprises,” in Menno T. Kamminga and Saman Zia-Zarifi (eds.),Liability of Multinational Corporations Under International Law(The Hague: Kluwer Law,2000),75,78–80, and85–7; Sarah Joseph, “Taming the Leviathans: Multinational Enterprises and Human Rights,”46(2) Netherlands International Law Review(1999),171,176–81.
12For example, on the underuse of the “horizontal” application of human rights for the purpose of indirect corporate accountability, see Sarah Joseph, “An Overview of the Human Rights Accountability of Multinational Enterprises,” in Menno T. Kamminga and Saman Zia-Zarifi (eds.), (2000),75,78.
13The term “legal persons,” where used in this chapter, denotes different types of collective entities deemed by national law to have legal personality distinct from that of the natural persons they comprise. Under Australian law, for example, for an artificial entity to be subject to criminal liability, it must be incorporated. This rule extends to both public and private companies, as well as both for-profit and not-for-profit companies. In contrast, it excludes unincorporated bodies such as partnerships, unincorporated associations, trusts, unincorporated joint ventures, and so forth: Jonathan Clough and Carmel Mulhern,The Prosecution of Corporations(South Melbourne: Oxford University Press,2002),65–6.
14Multinational corporations are corporations that, although incorporated in one country, oper- ate in one or more other countries: Peter Muchlinski,Multinational Enterprises and the Law (Oxford: Blackwell,1999),12–15.
15Rome Statute of the International Criminal Court,opened for signature July17,1998,2187 UNTS90(entered into force July1,2002) (hereafter the Rome Statute).
Prosecuting Corporations for International Crimes 111 domestic jurisdiction, they therefore reflect international standards and are primarily a by-product of developments at an international level.
On the issue of human and business rights, The United Nations SRSG on business and human rights has described these new domestic international crimes laws and their potential application to the extraterritorial activity of multinational corporations as “[b]y far the most consequential legal develop- ment” in addressing what is, in his view, an existing institutional misalign- ment between economic forces and their governance.16However, the growing existence of domestic criminal law that could be brought to bear on business- related international crimes does not necessarily herald a new era in corporate accountability, unless such laws are utilized in relation to corporate behavior in appropriate circumstances. Despite the growth in such domestic laws, many resistances to their application arise. The application of criminal law to corpo- rations has long been a marginalized and resisted concept, in part as a result of the dominance of the philosophical tradition of methodological individualism in criminal law doctrine. The application of criminal law extraterritorially also challenges the traditional territorial bias of criminal law and state sovereignty.
Examples of extraterritorial adjudication by one state of corporate activities that have taken place primarily in another state have shown that tensions can arise due to a sense of intrusion upon sovereignty such suits can engender, which may further dissuade countries from using such laws.
This chapter aims to undertake an introductory exploration of some of these issues that arise from the new domestic international crimes laws and their potential in relation to corporate crime. Section I considers the growing trend toward extraterritorial jurisdiction over legal persons and, in particular, the impact of the domestic implementation of the Rome Statute on avenues for corporate criminal accountability. As the author is most familiar with the Aus- tralian jurisdiction, the Australian example is given throughout the chapter as an example of the trend. Section II then considers some resistances to the potential application of the new domestic international crimes laws in relation to corporate activity. This section considers the individualist tradi- tion in criminal law, the demands regarding territoriality and predictabil- ity under doctrinal international law, and the possible arguments against extraterritorial criminal prosecutions from the perspective of foreign relations.
The chapter concludes with a comment on a way forward in light of these resistances.
16SRSG on business and human rights,Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, [84], UN Doc A/HRC/4/035 (2007).
112 Joanna Kyriakakis