Business and human rights, as I hope this blog has continuously shown, is a multi-faceted field. It touches upon entangled issues such as corruption, the protection of the environment and wildlife, conflicts, survival, poverty, greed, exploitation, racism, development and many more. Because of this complexity, it is often difficult to grasp the different aspects of a given “business and human rights” situation. The superb documentary Virunga, which is currently available on Netflix, does a great job in this regard.
It focuses on the rangers who are trying to save Virunga National Park (in the Eastern part of the Democratic Republic of the Congo and home to the last mountain gorillas) from poachers but also from oil exploitation, which if it was to happen would probably sign the death warrant of the park. Interestingly, it also delves into the conflict in the region, outlining its deep roots and absurd brutality. It links the present situation to the Scramble for Africa, starting in the 1880s, the horrifying exploitation of the country by King Leopold of Belgium, well documented in the best-selling book King Leopold’s Ghost, and the anti-colonial fights of the 1960s. Every time, business interests played a key part in the abuse.
The oil and gas company named in the film, London-based SOCO International, was brought before the UK OECD National Contact Point (NCP) by WWF International in October 2013. WWF argued that SOCO International was in violation of the OECD Guidelines for Multinational Enterprises. The NCP is tasked to promote the Guidelines and may receive complaints in case of suspected non-compliance (I wrote about NCPs before here and here). The complaint procedure is non-judicial and conciliatory in nature. WWF later withdrew their complaint as an agreement was reached with the company in June 2014. SOCO International committed “not to undertake or commission any exploratory or other drilling within Virunga National Park unless UNESCO and the DRC government agree that such activities are not incompatible with its World Heritage status.” The agreement came as the NCP had accepted to further consider the complaint, a process which could have led to a decision against the company.
It remains to be seen whether the park will continue to be protected in the long run. Hopefully, the awareness raised by the film will help. But of course in such a difficult context there is only so much a film, even a well put together (and co-produced by Hollywood superstar Leonardo Di Caprio) film such as Virunga, can achieve.
As I discussed in a previous post, the Appeals Panel of the Special Tribunal for Lebanon unexpectedly decided in October that the Tribunal has jurisdiction over corporations in contempt proceedings. The decision was taken in relation to case STL-14-05, a contempt case against a news corporation, New TV S.A.L., and Ms Karma Khayat, the company’s Deputy Head of News and Political Programmes Manager. They are both accused of an offence against the administration of justice for having disclosed names of witnesses of the Tribunal in a TV programme.
Here is the coup de théâtre: in a decision on jurisdiction made public today, the contempt judge of the Tribunal held in the twin case STL-14-06, a contempt case against another news corporation, Akhbar Beirut S.A.L. (who owns the newspaper Al Akhbar in which similar information about witnesses was published), and Mr Al Amin, the newspaper’s editor in-chief and chairman of the board of directors, that he was not bound by the Appeals Panel decision. In the contempt judge’s view, the Tribunal does not have jurisdiction over corporate defendants. This in turn was unexpected as it is not every day that international criminal tribunal’s appeals decisions get disregarded. Clearly, corporate criminal liability under international law is a highly contentious issue.
Why did the contempt judge deliberately choose to disregard the Appeals Panel’s decision?
1. In his view, it is a highly debatable decision, with which he strongly disagrees [para. 35-65]. In a nutshell, he considered that the Appeals Panel was wrong in their interpretation of the word “person”, that their use of analogy was improper, that the lack of existing legal precedents was highly problematic and that it was wrong to have recourse to teleological interpretation.
2. He nevertheless acknowledged that he may not have a choice and may be bound to follow the Appeals Panel decision, whether or not he agrees with it [para. 66].
3. In the end he decided that he was not bound by the Appeals Panel’s decision, and he put forward four reasons for this:
a/ because it is an isolated, and indeed unique decision. No other international tribunal has ever prosecuted a corporation for contempt [para. 67].
b/ because there is no stare decisis rule before international criminal tribunals so, being asked to rule on the STL-14-06 case, he is formally not bound by an Appeal Panel’s decision in the STL-14-05 case [para. 68-71].
c/ because the decision of the 3-judge Appeals Panel was not unanimous but instead included a detailed and compelling dissenting opinion [para. 72].
d/ because in his view the STL-14-06 case can be distinguished from the STL-14-05 case. To him, not prosecuting Akhbar Beirut S.A.L. in the STL-14-06 case would not lead to impunity (avoiding impunity was one of the reasons why the Appeals Panel held that the Tribunal should have jurisdiction over corporations) because Mr Al Amin, the newspaper’s editor in-chief and chairman of the board of directors, is also an accused. Although it is not entirely clear, I assume he considers that the STL-14-05 is different in that respect because the natural person charged with contempt in this case, Ms Karma Khayat, is “only” Deputy Head of News and Political Programmes Manager, and not chairman of the board of directors, and therefore cannot be said to represent the company as such. Arguably, it would be wrong to have her “pay” for the acts committed, and to leave the company off the hook.
This important decision is now likely to be appealed and the Appeals Panel will have to look at the issue of jurisdiction over corporate defendants once again. Watch this space for more on this when the Appeal Decision comes out.
At the end of October 2014, representatives of Ecuadorian victims sent a formal complaint against “the Chief Executive Officer of Chevron and any other corporate officer” of the company to the Prosecutor of the International Criminal Court (ICC), Ms Fatou Bensouda. As far as I know this is the first time anyone tries to bring a business and human rights case before the International Criminal Court (please leave a comment below if you know of others). After the New TV S.A.L. decision at the Special Tribunal for Lebanon on 2 October, the last few weeks have proved particularly rich when it comes to the international criminal legal aspects of business and human rights.
While the complaint has objectively very little chance to lead to the prosecution of anyone, let alone provide remedies for the hundreds of victims of pollution in Ecuador, it sheds light on an interesting and often overlooked aspect of the current international criminal legal system, namely that business people can be prosecuted before the ICC irrespective of the fact that the ICC has no jurisdiction over corporations.
I. A human tragedy but unsubstantiated charges of crimes against humanity against Chevron executives
Under Article 15(1) of the Rome Statute, the Prosecutor of the ICC “may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court”. In the present case, should the Prosecutor decide upon examining the information received in the complaint that there is “a reasonable basis to proceed with an investigation”, she will “submit to the Pre-Trial Chamber a request for authorization of an investigation” (Article 15(3)). If, however, she decides that there is no such reasonable basis, this will bring the case to an end, unless new evidence is later presented (Article 15(6)).
The latter outcome is the most likely. Despite what is argued in the complaint, Chevron officers’ actions cannot be identified as crimes against humanity. Crimes against humanity are crimes of context. To establish such crimes, one needs to prove that certain acts (e.g.: murder, torture, “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, etc.) were “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” (Article 7, ICC Statute)
The complainants argue that Chevron officers have “deliberately maintained the situation of contamination of the Oriente and the deathly health effects it causes” and that “this course of action could be identified as a crime within the jurisdiction of the International Criminal Court.” [p. 18] At the heart of the complaint is the assertion that by deliberately refusing to comply with the judgement against them Ecuadorian courts have reached, Chevron has committed “an attack against the civilian population of the Oriente.” Even if the prosecutor was to consider that this indeed constitutes an attack within the meaning of Article 7, which in itself is highly unlikely, establishing the context is not enough. To be held criminally liable, Chevron executives would have to have committed certain acts, within that context. The complaint mentions a few of these acts, such as murder and persecution (pp. 40-46) but without really explaining how the alleged perpetrators named in the complaint are supposed to have committed them.
Another important aspect of the complaint is that because the Court cannot look at events having occurred before 1 July 2002, the complaint focuses only on Chevron’s strategy to avoid complying with the Ecuadorian judgement. The complaint does not focus on what is at the heart of the case, namely the dumping of enormous quantities of toxic waste into Ecuador’s Lago Agrio region and the ongoing human tragedy it led to.
II. Business executives as defendants before the ICC
Some commentators and states consider that corporations are not subjected to international criminal law, a position I strongly disagree with. Indeed, as the Appeals Panel of the Special Tribunal for Lebanon recently noted in the New TV S.A.L. decision,
The omission of legal persons from the Rome Statute should not be interpreted as a concerted exercise that reflected a legal view that legal persons are completely beyond the purview of international criminal law. We thus hold that no definitive legal conclusion can be drawn from the exclusion of legal persons from the jurisdiction ratione personae of the ICC. Instead, it is a reflection of the lack of a political (rather than legal) consensus to provide such jurisdiction in the Rome Statute. [para. 66]
What is beyond dispute, however, is that the current Statute of the ICC (Article 25) unambiguously grants the International Criminal Court jurisdiction over natural persons (i.e. individuals) only, and not over legal persons such as corporations. That said, this does not mean that business and human rights issues are beyond the reach of the ICC. Business executives, as individuals, clearly fall under the ICC’s personal jurisdiction. The present case against Chevron executives may be weak, but they are not the only executives who have been accused of gross human rights violations. One day the ICC could well provide an adequate remedy for victims of corporate abuse.