Rights as Usual

It is a pleasure to welcome Dr Caleb Wheeler on Rights as Usual (@CalebHWheeler). Caleb is a lecturer in law at Middlesex University in London whose work focuses on international criminal law and international human rights law. This post is his.

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In May 2017, three non-governmental organisations submitted an Article 15 Communication to the International Criminal Court seeking the expansion of the Office of the Prosecutor’s on-going preliminary investigation in Colombia to include corporate officials of Chiquita Brands International, Inc. (‘Chiquita’). I scrutinised the claims made in the Communication in a recent article published in the Melbourne Journal of International Law in an effort to determine whether this case could serve as an opportunity for the International Criminal Court to pursue corporate officials for their complicity in the commission of atrocity crimes. This could allow the Court to expand the scope of its work beyond the military and political leaders it has pursued thus far, and to provide an international forum in which to try the employees of corporations involved in the commission of atrocity crimes. Unfortunately, the International Criminal Court’s Statute, as written, will make it very difficult for such prosecutions to succeed.

Background

The Article 15 Communication alleges that corporate officials employed by Chiquita made recurring payments to affiliates of the paramilitary group Autodefensas Unidas de Colombia (‘AUC’), despite the fact that those officials were aware that the AUC was committing crimes against humanity. That the AUC was committing human rights abuses is largely beyond dispute. At least six members of the AUC have been convicted of crimes committed within the temporal jurisdiction of the Court, including murder, attempted murder, abduction, forced displacement and child recruitment. Additionally, the Prosecutor of the International Criminal Court has concluded that a reasonable basis exists to believe that guerilla and paramilitary groups, including the AUC, committed crimes against humanity and war crimes during the relevant time periods.

Chiquita made the payments as part of a corporate policy implemented for the purpose of protecting Chiquita holdings in Colombia from harm threatened by the AUC. Chiquita has admitted that it knew no later than 2000 that the AUC was committing atrocity crimes.  Chiquita continued to make payments to the AUC even after it was declared a ‘Foreign Terrorist Organization’ by the government of the United States and despite the fact that Chiquita had been advised that it was acting illegally by continuing to pay the AUC. Chiquita only stopped making payments to the AUC several months before entirely divesting itself of its Colombian operations. It is asserted in the Communication that the money paid by Chiquita represented a significant contribution to the human rights abuses committed by the AUC.

The Meaning of Significant Contribution

The likelihood of an International Criminal Court prosecution being successful in this matter will turn on whether sufficient evidence exists to show that the implicated Chiquita employees made a significant contribution to the crimes committed by the AUC. Whether the accuseds’ actions constitute a significant contribution to the commission of the alleged crimes is determined by considering the accused person’s relevant conduct and the context in which his or her conduct is performed. In this case, it is debatable whether the amount of money paid to the AUC by Chiquita, estimated to be approximately 1.7 million USD over a period of seven years, constituted a significant contribution to the crimes committed by the AUC. Without knowing the full extent of the AUC’s assets during the relevant period, it is believed that by 2002 the AUC controlled 40% of Colombian cocaine trafficking and had an annual income of approximately 100 million USD. The Chiquita payments made up less than one quarter of 1 per cent of the AUC’s annual income suggesting that the money paid by Chiquita did not significantly contribute to the scope of the group’s activities.

Questions about the significance of the contribution are further reinforced by a lack of evidence linking the money Chiquita paid directly to the AUC’s criminal acts. At present, there is no evidence to support a reasonable suspicion that Chiquita’s employees made payments to the AUC for the purpose of furthering the AUC’s criminal activities. The mere supposition that because Chiquita paid money to the AUC, and the AUC in turn committed atrocity crimes means that Chiquita’s money was used to fund the commission of those crimes, is likely insufficient to lead to the conviction of Chiquita employees. In fact, Chiquita insists that the payments were made as a result of duress, although it is dubious whether that claim will hold up under scrutiny. Further, while Chiquita and its employees knew the AUC was committing atrocity crimes, there is no direct link between the money paid by Chiquita and any specific crimes committed by the AUC. Without this evidence it would be very difficult for the International Criminal Court to impose liability.

This analysis leads to the conclusion that the International Criminal Court is likely not the best forum for pursuing corporate actors for human rights violations. Here, we have a situation in which multiple members of the AUC have been convicted of atrocity crimes, Chiquita has admitted that it was aware that those crimes were being carried out and it still continued making payments to the AUC. Despite this undisputed evidence, an International Criminal Court prosecution will almost certainly fail because there is no direct link between the money paid and the crimes committed. If a case with such clear evidence stands little chance of success it is difficult to imagine that the Court will have much enthusiasm for pursuing other cases involving human rights violations committed by business entities.

Recent Developments

There is, however, some cause for hope. On 31 August 2018, the Colombian Attorney General charged 13 former Chiquita executives with crimes against humanity in relation to their funding of the AUC. By charging these 13 former Chiquita executives Colombia has indicated both its willingness and ability to investigate and prosecute the crimes alleged. While these cases are in the very early stages, it is encouraging that they have been brought at all. It further demonstrates that, as it stands, domestic courts are probably the best option for litigating human rights violations committed in the context of corporate operations.