Bad business: Holding corporations accountable for international crimes

In the northern town of Jalabiya, Syria, lies the ruins of a cement plant.

The factory was a subsidiary of French/Swiss company Lafarge SA (now LafargeHolcim), one of the biggest producers of building material in the world.

It took Lafarge almost three years to build the plant in Syria, at an approximate cost of 680 million US Dollars.

The cement plant was off to a good start when it commenced production in 2010, but then war broke out.

Other cement companies stopped their activities in the country, but Lafarge, having just spent a substantial amount of time and money on the plant, kept going. 

They kept going, while ISIS gained control of the roads around the plant, of the cities where the factory workers lived, and of natural resources and raw materials needed for the cement production to continue. Soon, it was evident that the plant could not, and should not, stay open. 

Or, it should have been evident.

To this point, the company and several former executives and directors have been indicted on charges of financing terrorism, deliberate endangerment of people’s lives, and breaches of an EU embargo.

Initially, the company was also indicted for crimes against humanity. That indictment was revoked in November 2019, and the revocation is now on appeal.

In short, the allegations against the billion-dollar company are as follows: 

From 2013 to 2014 Lafarge allegedly paid millions of euros to ISIS and other armed groups to keep the factory running.

Investigations point to Lafarge having negotiated with ISIS, through hired intermediaries, in order to purchase raw materials (oil and pozzolana), as well as paying monetary fees to keep ISIS-checkpoints open for factory workers.

Photo: By Casimoro PT/Shutterstock

According to former workers at the plant, Lafarge threatened and sanctioned their Syrian employees in order to keep them working, despite the volatile and dangerous situation.

In 2014, ISIS attacked the plant, the workers fled for their lives, and the plant was closed.

The investigation is still ongoing, led by French prosecutors and judges. The case was initiated by a criminal complaint filed by eleven of the former cement plant-workers, the human rights organisation Sherpa, and the European Center for Constitutional and Human Rights.

The case is a remarkable example of how human rights lawyers, activists and victims are increasingly seeking to hold corporations and businesses accountable for international crimes.

The role of the non-state actor

The fact that corporations and their executives are capable of atrocious acts is nothing new. Prosecutors of the Nuremberg Trials acknowledged that business owners and executives played a key part in the crimes committed by the Nazi Regime.

In the so-called Zyklon B case of 1946, a British Military Tribunal found the owner and the general manager of Tesch & Stabenow guilty of aiding and abetting murder. The company had supplied concentration camps with the pesticide Zyklon B used in the gas chambers to kill millions of Jews during the Holocaust. 

Empty Zyklon B-cans at Auschwitz. When the Nazis asked Bruno Tesch, head of Tesch and Stabenow, how to best exterminate the Jews, Tesch suggested treating them like vermin by spraying Zyklon B into a sealed space. Photo: Shutterstock/Agsaz.

Though mankind knew what corporations, and individuals acting on behalf of corporations, were capable of, the decades after World War II were largely characterized by total impunity. Businesses and corporations were not seen as an entity obligated to uphold the newly established regime of human rights – that was solely on the states.

In the 1990’s victims and human rights organisations began to raise civil lawsuits against business entities for their involvement in human rights abuses, using the Alien Torts Statute in US Law. In the first case, from 1996, plaintiffs accused the Union Oil Company of California of aiding and abetting the government of Myanmar in committing human rights abuses. The company agreed to settle out of court.

In 1998, the oil company Shell was accused of supporting the Nigerian government in torturing and killing activists who protested against the environmental damages caused by Shell’s operations in the oil-rich Niger Delta.

Shell agreed to settle, providing a total of $15.5 million to compensate the plaintiffs (family members of the victims). Another case (related to the same events) was brought on in 2002 by Esther Kiobel, a widow of one of the activists, and 11 other plaintiffs, but it was dismissed in 2013 by the US Supreme Court. Esther Kiobel is now fighting her case in the Netherlands – Shell’s home-country.

In 2003, during the International Criminal Tribunal for Rwanda, three top-executives of the radio station RTLM were found guilty of genocide, incitement to genocide, and crimes against humanity, for spewing hatred against the Tutsis, inciting the groups extermination over the radio. Two of the media leaders were sentenced to life in prison, the last to 35 years.

Theses cases got attention, and added momentum to the discussion of non-state actors and their obligations under international law and human rights law.

A sole focus on state actors would turn a blind eye to a myriad of human rights violations committed by corporations, non-state armed groups, international organisations and more. The fact is that in some countries multinational companies practically wield more power than the local government.

In June 2011, the UN Human Rights Council endorsed the UN Guiding Principles on Business and Human Rights, a set of guidelines for countries and companies to prevent, address and remedy human rights abuses committed by businesses.

Let’s not keep it civil

Holding corporations accountable for international crimes and other human rights abuses is hard work. Just look at Esther Kiobel, who has been trying to achieve justice for her husband for two decades.

For starters, some states may not be interested in challenging big businesses which have become an integral part of the local economy. Also, criminal lawsuits for corporate human rights abuses are still rare, meaning that the prosecutors may lack the experience and skills needed to investigate and prosecute the cases efficiently and effectively.

Civil lawsuits are easier and less costly to engage in for victims, as they have a lighter burden of proof than criminal cases, but they usually don’t result in more than monetary reparations.

When dealing with international crimes, such as war crimes or crimes against humanity, the perpetrators should be held criminally responsible.

Fortunately, criminal complaints, indictments and investigations into corporate involvement in these crimes are becoming more common.

In late 2018, Swedish prosecutors indicted the chief executive of Lundin Petroleum, and the chairman of the board of the same company, with aiding and abetting war crimes in South Sudan.

In late May of this year, the organisation Trial International filed a criminal complaint against Swiss company Kolmar Group AG for complicity in the war crime of pillaging by purchasing gas-oil that was smuggled from conflict-ridden Libya. Months earlier, a formal criminal investigation had been opened in another case, initiated by a criminal complaint from Trial International, in which Christoph Huber, a Swiss national, is suspected of having pillaged in the Democratic Republic of the Congo.

Convictions are rare, but we can mention Dutch businessman Frans van Anraat, convicted of accessory to war crimes when supplying chemical weapon components to Saddam Hussein – weapons used to mass murder Kurds in the 1980’s. Van Anraat was sentenced to 16.5 years in prison.

Another Dutch businessman Guus Kouwenhoven, director and president of two timber companies in Liberia, was convicted of aiding and abetting war crimes in Liberia in the early 2000’s. He used his companies to import, store, and distribute weapons, and in 2017 he was sentenced to 19 years imprisonment. However, he was sentenced in absentia, and is still “at large”, living in a huge luxurious mansion in South Africa, which has refused to extradite him.

Personal business

So far, it’s been the executives, owners, and managers of businesses who’ve been held accountable in cases of corporate involvement in international crimes. But what about the business itself?

In law, we distinguish between a natural person and a legal person (or a juridical person). A natural person is, well, just a person like you and me, with beating hearts, a body, and a conscious mind. A legal person is an entity, i.e., a business or a state.

A business doesn’t have a body. Or a mind. A business can’t appear in court and be sent to prison. But should that keep us from holding them accountable?

In 2014, the reconstituted African Court of Justice and Human Rights added a protocol, giving the court the ability to try corporations (as legal persons) for international crimes.

In the current Special Tribunal for Lebanon, we are seeing the first ever indictment of a legal person (a media outlet) in an internationalized tribunal, although the indictment is not related to international crimes.

More and more countries are amending their criminal codes to include criminal liability for legal persons.  These amendments are important, because they make it possible for national courts to prosecute businesses as entities, also in cases of international crimes.

France is one of the countries who has amended the criminal code, meaning that it was possible to indict Lafarge – the company itself – in the previously mentioned case.

The case law is slowly being written. Keeping businesses and executives accountable for international crimes is important to the the victims and the affected communities, for preventative reasons and ultimately for global justice.

Sources: Trial International, Journal of International Criminal Justice, International Crimes Database, Reuters, Business and Human Rights Research Center, Global Compliance News, Smithsonian, Peace Palace Library, Corporate Criminal Liability under International Law by Nadia Bernaz, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute by James G. Stewart, European University Institute, Amnesty International, Corporate Accountability for Human Rights Violations Amounting to International Crimes: The Status Quo and its Challenges, by Wolfgang Kaleck, and Miriam Saage-MaaB.

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