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In the interests of accuracy, the summaries of cases referred to under each Red Flag are based wherever possible on the available court documents or other public legal sources.

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What are international crimes?

International crimes refers to very serious offenses prohibited under international conventions. Examples of international crimes include war crimes, genocide, and crimes against humanity. In the situation of an international armed conflict, violations of the Grave Breaches provisions of the four Geneva Conventions 1949 are prohibited and prosecutable by States Parties. In the situation of an internal armed conflict, Violations of Common Article 3 of the four Geneva Conventions 1949 are prohibited and prosecutable by States Parties. Provisions in the Additional Protocols of 1977 of the Geneva Conventions of 1949. Some of these offenses have attained the status of customary international law and are thus prohibited and prosecutable in all jurisdictions; the prohibition against crimes against humanity, for example, is a matter of customary international law. Other relevant criminal law treaties are the Convention Against Torture, the Genocide Convention, and more recently, the Rome Statute of the Criminal Court

Are international crimes different from human rights?

They are different legal regimes, but both human rights and international crimes - like genocide, crimes against humanity and war crimes - operate on the principle of protecting people. As a result, some of the Red Flag fact patterns raise issues which are governed by the International Covenant on Civil and Political Rights, a human rights treaty which is widely ratified. The ICCPR also requires States Parties to ensure that persons whose rights are violated have effective remedies (Art. 2), which could include legal remedies. The UN Special Representative on Business and Human Rights, John Ruggies, summarises the link between businsess, human rights and international crimes in his report or 2007

May business entities be prosecuted for international crimes?

In some countries, domestic criminal law allows business entities to be prosecuted for criminal acts. If those same countries permit prosecution of international crimes, then a business entity may also be subject to prosecution as well as individuals. In 2006,
the Fafo Institute surveyed the national laws of 16 countries
from both civil and common law traditions, and from most continents, and found that most legal systems permit the criminal prosecution of legal persons. According to Fafo, these provisions, when coupled with plus widespread integration of the Rome Statute of the ICC to domestic legal systems, have resulted in an emerging "web of liability" (Ramasastry and Thompson, Fafo, 2006).

Why should my company worry? We are not war criminals!

No one likes to think of themselves as in the same category as war criminals or dictators. But factors like global trade integration or the increasing demand for strategic minerals mean that many companies are closer than they think to very serious human rights abuse. The primary risk - although not the only one - lies in the danger of complicity, aiding and abetting those who commit international crimes. In many cases this will come down to a question of whether or not the company 'knowlingly provided substantial material assistance' to the commission of a crime. But definitions of complity vary according to jurisdiction and application to businesses remains to be defined. The bottom line is that, whether the problem lies somewhere down the supply chain or embedded in their relationship with a host government, companies will have to conduct due diligence to ensure they avoid participating in the international crimes of others.

Can a business or individual be sued in court for involvement with an international crime?

Some of the types of events illustrated by the Red Flags may generate a separate basis for liability under civil law, particularly tort law. In the United States, for example, a federal statute, the Alien Tort Claims Act, allows plaintiffs to sue when the harm they allege is both a tort and a violation of international law. In addition, in some cases, alleged tortious acts may give rise to extra-territorial liability in the jurisdiction where the action is brought. Under extra-territorial jurisdiction, the harm may occur anywhere in the world as long as the court in which the action is commenced has jurisdiction over the individual or business. For individuals, this means that the defendant must be physically present in the United States to be sued. For corporate defendants, the court must have some basis for exercising jurisdiction over the entity. In other jurisdictions, a plaintiff may characterize a violation of international law as a tort and commence a civil proceeding for damages.

What is complicity?

Complicity is a crime. Someone who may have assisted the commission of a crime may themselves be liable for "aiding and abetting" that crime, otherwise known as complicity. Those indirectly connected to alleged criminal acts committed by principals may, depending upon the circumstances, be at risk of criminal liability under the doctrine of “aiding and abetting” as a mode of commission, or may face other forms of liability under domestic civil and criminal statutes. As described in the case summaries on this web site, a number of cases against companies and individual business people have alleged complicity in the international crimes. The applicability to companies of aiding and abetting doctrines in various countries, or internationally, is at present being explored by legal researches and the courts.

Where can prosecutions of international crimes occur?

International criminal law offenses may be prosecuted in international criminal tribunals, such as the International Criminal Court, but are more frequently enforced in domestic military or civilian courts, where they are subject to domestic procedural and substantive criminal law. Many serious international crimes are subject to universal jurisdiction and may be prosecuted in any jurisdiction where the accused is present in the absence of any other connection to the alleged criminal act(s). In practice, universal jurisdiction is not frequently employed. Most of the Red Flags examples may be offenses under domestic law inside the jurisdiction where the alleged acts take place, as well as international crimes.

Further Reading

Overcoming Obstacles to Justice: Improving Access to Judicial Remedies for Business Involvement in Grave Human Rights Abuses, Mark B. Taylor, Robert C. Thompson, and Anita Ramasastry, Fafo-report 2010:21.

Extraterritorial Jurisdiction:
Lessons for the Business and Human Rights Sphere from Six Regulatory Areas
, by Dr. Jennifer A. Zerk, Working Paper No. 59, Harvard Corporate Social Responsibility Initiative

Translating Unocal: the Expanding Web of Liability for Business Entities Implicated in International Crimes", by Robert C. Thompson, Anita Ramasastry and Mark B. Taylor, George Washington International Law Review, Vol. 40 (2009)

Legal Remedies for the Resource Curse A digest of experiences in using law to combat natural resource corruption (Open Society Justice Initiative, 2005)

A bibliography concerning corporate liability international crimes is available here

Minera Aguilar Faces Allegations of Complicity
The mining company, which is currently owned by Glencore International AG, may come under scrutiny before an Argentinian court for collaborating in the unlawful detention and torture of 24 employees in 1976. The company allegedly provided a list of names, logistical information and vehicles to security forces of the Argentinian dictatorship which sought to silence oppositional voices of unionised workers.
Trafigura Executive Settles Out of Court
Oil trading group Trafigura has agreed to pay a €67,000 fine in return for the withdrawal of criminal charges against its co-founder and director, Claude Dauphin. He faced trial in the Netherlands for the alleged illegal export of hazardous waste to the Ivory Coast in 2006. In 2007, Trafigura paid €152 million in compensation to 30,000 claimants who had been affected by the toxic waste, but denied liability.
HudBay Former Head of Security Arrested
Guatemalan authorities have made the arrest amid allegations that company security personnel were involved in the killing of an indigenous anti-mine protester in 2009. Hudbay Minerals Inc. is currently facing three human rights-related lawsuits in Canada, alleging the involvement of private security forces under the company’s employ in the murder and rape of activists in Guatemala.
Qosmos Accused of Aiding Syria’s Regime
French prosecutors have opened a preliminary investigation into the alleged involvement of technology firm Qosmos in crimes committed by the regime of President Bashar Al-Assad. The probe follows human rights groups’ claims that Qosmos may have been supplying the Syrian government with surveillance equipment used against opposition forces.
The Lundin Group Under Investigation
The International Prosecution Chamber in Stockholm is investigating claims of company involvement in human rights abuses in Sudan between 1997 and 2003. The allegations posit that Sudanese troops forcefully displaced civilian population from Lundin’s areas of oil exploration.
General Motors Settles with Victims of Apartheid
The company was alleged to have produced parts of vehicles which were used by South Africa’s apartheid regime to raid homes and assassinate political activists. The harm suffered and claimed for related to human rights violations including murder, prolonged detention without trial, torture and rape. GM negotiated a ‘without prejudice’ settlement with the 25 claimants, agreeing to pay $1.5 million.
Criminal Complaint Filed Against Nestlé
The company and its senior management are accused of negligently failing to prevent the murder of a Colombian trade unionist in 2005. Luciano Romero was killed by paramilitaries after Nestlé’s local subsidiary, Cicolac, labelled him a guerrilla fighter. The complaint could set a legal precedent, as it is the first time that a Swiss company is facing prosecution in Switzerland for an alleged crime committed abroad.
Blackwater settles Iraqi killings case
Family members of Iraqi civilians killed by Blackwater security contractors in Baghdad in 2007 have reached a confidential settlement with the company’s successor, Academi. The lawsuit alleged responsibility for wrongful deaths as a result of Blackwater employees unjustifiably opening fire into a crowd and killing 17 civilians, including children.
Occidental Accused of Funding War Crimes
The complaint brought before a US court under the Alien Tort Claims Act alleges the company’s responsibility for the extrajudicial killing of three Colombian unionists in 2004. The deaths were inflicted by the Colombian military, to which Occidental provided monetary and material support as part of a $6.3 million security agreement.
War Crimes Lawsuit against Rio Tinto to Proceed
A federal court in the US has revived an 11-year-old case seeking to hold Rio Tinto responsible for human rights violations linked to a Papua New Guinea copper and gold mine the company once operated. About 10,000 current and former residents of the South Pacific Island Bougainville contend that when workers began to sabotage the mine in 1988, Rio Tinto induced the government into exacting retribution which resulted in the deaths of thousands of civilians.
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