Editors’ note: Maisie Biggs graduated with a MSc in Global Crime, Justice and Security from the University of Edinburgh and holds a LLB from University College London. She is currently working with the Asser Institute in The Hague.  She has worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

The Nuremberg Trials were a defining and foundational moment for international criminal law, and the first instance in which the question of international legal responsibility of corporate actors, including natural persons and corporations, was first broached. The Tribunals elected to only prosecute natural persons, however a brief analysis of the reasoning indicates it was political rather than legal considerations that led to this distinction. International law and corporate actors have a storied history that merits drawing the timeline back earlier than Nuremberg. This is the first in a series of blog posts exploring the intersection between corporations and international criminal law (ICL).

As is well known, corporations are not subjected to the Rome Statute and do not fall under the jurisdiction of the International Criminal Court (ICC). Yet, as we will show there have been interesting recent developments at the intersection between ICL and the activities of corporations. In 2014, the Special Tribunal for Lebanon (Al Jadeed S.A.L. & Ms Khayat (STL-14-05)) acknowledged the development of domestic corporate accountability, and determined that ICL has likewise progressed. Meanwhile, cases against individuals (such as the ongoing Lundin case in Sweden) or corporations (such as the Lafarge case in France) involving the activities of corporations abroad have been initiated by national prosecutors on the basis of ICL.

These cases and potential implications will be discussed in more depth in later posts, however it is interesting that while some academics and judges are tracking the ostensibly ‘new’ legal movements to subject corporate activities to greater regulation,^[1] the history of international law itself shows that harmful transnational commerce has been an issue for a long time, and this is not the first time international law has been used as a tool against jurisdiction-hopping corporate crime.

The Nuremberg Trials

The Nuremberg Trials were a mile-stone for individual criminal responsibility under international law, however the Trials’ architects chose not to prosecute juridical persons or companies involved in war crimes. The surface reasoning for this decision was that only individual responsibility was appropriate to attribute criminal wrongdoing, however it seems it was political considerations and a pivot in foreign policy, rather than any clear legal basis, that led to this line being drawn.

The International Military Tribunal (IMT) had a clear intention to reflect the responsibility of German industry and business for exacerbating and profiting from the war, the Nazi regime and its atrocities.[2]^[3] A senior representative of the industrialists Gustav Krupp von Bohlen und Halbach was meant to be indicted in the Trial of the Major War Criminals however he was found unfit to be tried.^[4] Other industrialists were tried in the subsequent Nuremberg proceedings under Control Council Law No. 10:^[5] those prosecuted in the Industrialist Trials were identified by the companies for which they worked: the United States v. Friedrich Flick (Flick), United States v. Carl Krauch (Farben), and United States v. Alfred Krupp (Krupp).

However, as the Tribunal in Farben made clear: “the corporate defendant, Farben, is not before the bar of this Tribunal and cannot be subjected to criminal penalties in these proceedings. We have used the term ‘Farben’ as descriptive of the instrumentality of cohesion in the name of which the enumerated acts of spoliation were committed… [b]ut corporations act through individuals.”^[6]

This approach by the subsequent tribunals follows that previously taken by the IMT: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”^[7] This quote has been used as authority for the idea that then only individuals can be subjects of international criminal law, however as pointed out by human rights scholar William Schabas, in its broader context the judgement was saying that individuals as well as the state organs are capable of committing crimes: “what they were saying is, ‘we do not have a problem with the idea that the state has committed these crimes, but the individual can commit them as well’.”[8]

Attribution to individuals under international law was not completely new, the possibility was part of Article 228 of the Treaty of Versailles (1919) for example, however the Nuremberg foundation of individual criminal responsibility under international law was “a dramatic leap”^[9] that pierced the screen of state sovereignty, and would become the “cornerstone” of international criminal law.^[10]

Attempting to attribute responsibility among individuals without considering the larger corporate entity led to fragmented responsibility^[11] and issues of attribution in the Farben case, for example; the division of authority within the company was equated with a division of responsibility by the Tribunal.^[12] Responsibility could not be attached to each actor who contributed to an atrocity; wrongdoing was only attributed to those directly engaging with state actors, or engaging in the commission of the crime itself.^[13] This meant that convictions were few, and sentences lenient.

International lawyer and academic Jonathan Bush revisited this question, and determined that the rational for rejecting corporate liability was political, rather than legal:

“[C]orporate and associational criminal liability was seriously explored, and was never rejected as legally unsound [by prosecutors at Nuremberg]. These theories of liability were not adopted, but not because of any legal determination that it was impermissible under international law. Instead, their rejection was the result of the wishes of the occupation governments for handling the corporations and the coincidence that the first defendants tried were companies with the structures of Flick, Krupp and Farben.”^[14]

Corporate liability would have been a major development in international law, but it would have been in good company: “other features of postwar accountability, starting with the idea of an international criminal trial, liability for a head of state, or for crimes against peace, crimes against humanity, or genocide” were all new developments.^[15]

The sentences that were given against convicted industrialists were light: sometimes months or five years rather than a life-sentence or execution. Florian Jessberger is reticent to conclusively draw a link between this mercy and the changing political winds, however he does link it to classic issues of post-conflict justice and the convicted businessmen’s links to American industrialists.^[16] The possible political reasons the Allies had for deciding to ‘go light’ on the industrialists and refraining from pursuing the companies themselves were the re-prioritisation of reconstruction over retribution and the anticipation of future conflict with former-allies the Soviets.^[17]

“At the same time, after the start of investigations and before the conclusion of the Farben trial, American foreign policy was undergoing a turnabout in its attitude to Germany in general and German industry in particular. Under the influence of US Treasury Secretary Henry Morgenthau, the original goal was the ‘industrial disarmament’ of Germany. Later on, in 1945–1946, the US Administration adopted the Truman Doctrine, which sought to refrain from severe reprisals against the industrialists. German industry was not to be ‘purged’; it was to be recruited in view of the new communist enemy coming up on the horizon.”^[18] 

The political dimensions that shaped the Nuremberg prosecutions of corporate-affiliated actors are not a strong basis on which to determine that liability is not possible for corporations or legal persons under international criminal law.

State-focussed narratives of international law have excluded the fundamental roles transnational commerce and companies have played as subjects and propellers of international law. To explore the history of the relationship between commerce, corporate actors and international criminal law, another point of international law development will be briefly addressed: the nineteenth-century anti-slavery international courts.

Antislavery courts

The origin of contemporary international criminal law is commonly traced back to Nuremberg, during which corporate actors were prosecuted for their involvement in war crimes for commercial gain, however research by authors like J.S. Martinez has revealed the nineteenth century origins of subjecting commercial actors to law in the fascinating history of the slave trade tribunals.^[19] These mixed international tribunals arguably were the origin of modern ICL,^[20] as bilateral and multilateral treaties were enforced in courts in multiple jurisdictions following the capture of slave ships flying particular flags.

The abolition movement in Britain led to British naval power being used to ‘chase down’ slave trading vessels flying the flags of other combatants throughout the Napoleonic wars.^[21] Following British victory, virulent protests and petitions of the English populace forced the government to incorporate abolition clauses in the post-war treaty, not only with the French but also in treaties with Atlantic maritime powers Spain, Portugal, the Netherlands, and eventually America.^[22] By the 1840s, international treaties abolishing the trade had been signed by more than twenty nations.^[23] Of these, some of the bilateral treaties incorporated international enforcement mechanisms: the Netherlands, Portugal and Spain signed agreements with the British that involved prospective jurisdiction.^[24] As a result, courts were set up in Freetown, Sierra Leone; Havana, Cuba; Rio de Janeiro, Brazil; and in Suriname.^[25] They were presided over by mixed panels (British and the other treaty power) of commissioners or judges, and disagreements between these settled by arbitrators.^[26] This was well before the establishment of the first Permanent Court of Arbitration in 1899, or the Permanent Court of International Justice in 1921. 

Jurisdiction was the main point of contention in these cases (a story familiar to those studying corporate liability today).^[27] The nationality of the ‘ship’ was used to establish jurisdiction,^[28] as is standard practice for law of the sea, however slave trading vessels were able to strategically swap flags as necessary, meaning that blanket abolition by all sea-faring nations was necessary; eventually, there were no flags left for slavers to hide behind.^[29] In these circumstances, the subjects of international law were the ships themselves, and the personal liability or nationality of the captain was immaterial to the proceedings except as it pertained to the nationality of the ship. Once the ship’s nationality was determined as falling within the jurisdiction of the tribunal, this was typically dispositive, and resulted in condemnation of the ship if it was evident it was engaged in the slave trade.^[30] The slavers themselves were sometimes then sent to their home jurisdiction to face criminal trial.^[31]

There are some interesting points here: mainly, that international law and coordinated legal mechanisms proved a necessary response to a transnational commercial harm. To draw the line between a physical ship as the bearer of liability and a company’s corporate form today would be a slight stretch, however the case does illustrate how international law may capture commercial misconduct beyond domestic jurisdictional reach. Martinez agreed with this extrapolation, arguing that the “centrality of private transnational actors” to this history of international law “highlights the possibility of making international legal mechanisms a more central tool for addressing… violations by private actors today.”^[32]

Conclusion 

By drawing the timeline backwards to this point, rather than beginning the story at Nuremberg, the scope and purpose of international law as a mechanism of pursuing transnational crimes slightly changes. It would now seem a much more natural logical step that a corporate entity operating outside the territorial reach of the country whose flag it ‘flies’ may be subject to international criminal law.

Nuremberg is commonly presented as the beginning of subjecting corporate actions to scrutiny under international law, however the case of the anti-slavery tribunals demonstrates that this kind of liability existed before, and reminds that perhaps current issues of corporate power merit reconsideration of the ICL liability of legal persons. In the next post, the next chapter will be discussed: the drafting of the Rome Statute to explicitly exclude non-natural persons (and consequently, subjection under the International Criminal Court).

^[1] Caroline Kaeb, ‘The Shifting Sands of Corporate Liability under International Criminal Law’ (2016) 49 The Geo Wash Int L Rev 351, 354.

[2] For an in-depth analysis of business involvement, see Annika van Baar, ‘Corporate involvement in the Holocaust and other Nazi crimes’ in J van Erp, G Vanderwalle and W Huisman (eds), The Routledge Handbook of White-Collar and Corporate Crime in Europe (Routledge 2015) 133.

^[3] Doreen Lustig, ‘Three Paradigms of Corporate Responsibility in International Law: The Kiobel Moment’ (2014) 12 Journal of International Criminal Justice 593, 602.

^[4] T Taylor, ‘Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials under Control Council Law No. 10’ (Government Printing Office, 1949), 22.

^[5] Allied Control Council Law No. 10 of 20 December 1945 - Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity (Amtsblatt of the Control Council in Germany, No. 3, 31 January 1946)

^[6] IG Farben, Vol. VIII, at 1153.

^[7] IMT, judgment of 1 October 1946, in The Trial of the German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, Pt 22 (1950), 447.

[8] ‘Discussion’ (2008) 6(5) Journal of International Criminal Justice 947, 964.

^[9] C. Tomushcat, ‘The Legacy of Nuremberg’ (2006) 4 Journal of International Criminal Justice 830, 833.

^[10] Ibid 840.

^[11] Doreen Lustig, ‘The Nature of the Nazi State and the Question of International Criminal Responsibility of Corporate Officials at Nuremberg: Franz Neumann’s Behemoth at the Industrialist Trials’, (2011) 43 New York University Journal of International Law and Politics 965, 1036.

^[12] Ibid 1035.

^[13] Ibid.

^[14] Jonathan A Bush, ‘The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said’ (2009) 109 Colum L Rev 1094, 1239.

^[15] Ibid.

^[16] Florian Jessberger, ‘On the Origins of Individual Criminal Responsibility under International Law for Business Activity: IG Farben on Trial’ (2010) 8(3) Journal of International Criminal Justice 783, 783. 

^[17] Lustig (n 3) 602.

^[18] Jessberger (n 16) 783.

^[19] JS Martinez, ‘Antislavery Courts and the Dawn of International Human Rights Law’, (2008) 117 Yale Law Journal 550, 550.

^[20] Florian Jessberger ‘Corporate Involvement in Slavery and Criminal Responsibility under International Law’ (2016) 14(2) Journal of International Criminal Justice, 327, 328

^[21] Martinez (n 22) 566.

^[22] Ibid 569.

^[23] Ibid 556.

^[24] Ibid 577.

^[25] Ibid 579.

^[26] Ibid.

^[27] Ibid 587.

^[28] Ibid 583.

^[29] Ibid 609.

^[30] Ibid 590.

^[31] Ibid 591.

^[32] Ibid 633.

Editor’s note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

The 21^st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played.

The Warm-up: Preparing for the Game

Even though the recently published update by FIFA’s Human Rights Advisory Board compliments FIFA on its increased efforts for tackling human rights issues related to this year’s World Cup, it is no secret that thousands of workers were exposed to severe human rights violations while working on World Cup construction sites in Russia.[1] Human rights groups such as Human Rights Watch (HRW) extensively reported on the structural exploitation that workers were facing, including unsafe working conditions leading to numerous injuries and the death of 17 workers, forced illegal work due to lack of employment contracts, and cases of non-payment or serious delays in payment of wages.  Those workers that dared to file a complaint were threatened with retaliation and non-payment of wages.[2] Furthermore, journalists and human rights advocates that tried to report on these cases have been intimidated, denied entry into the country, or even arrested while carrying out their investigations.

Blaming the occurrence of these human rights violations on Russia being this year’s World Cup’s host would ignore the fact that these violations are recurring in the context of mega-sporting events (MSEs) like the Summer or Winter Olympic Games or the World Cup. To a certain extent, these events heighten pre-existing human rights risk in the host country and thereby increase the likelihood for violations to occur. Thus, numerous stories of exploitation of migrant workers have been documented in relation to the construction works for the 2022 World Cup in Qatar. Furthermore, worker’s rights are not the only rights that are at risk during the delivery of MSEs. Other common types of human rights abuses associated with hosting MSEs are cases of forced displacement, infringements of participatory rights, and infringements of freedom of expression and the right to protest.[3] Shortly before and during these events, reports on incidents of excessive use of force by local police and private security forces, as well as arbitrary arrest and criminalization of homeless people and street children are also commonplace.[4]

The First Half: Establishing Responsibility

The key challenge in addressing these cases is to identify the actor and actions responsible for these harmful outcomes. However, MSEs like the FIFA World Cup are jointly organized and staged by a mix of public, private, national, and international actors. International sports bodies, like FIFA or the International Olympic Committee (IOC), set the terms and conditions under which these events can be hosted. Host countries agree to these conditions by submitting government guarantees and declarations and by adopting special event-related legislation. Furthermore, local and regional authorities issue permits and give orders to enable and facilitate event-related operations. The local organizing committees are responsible for living up to the conditions set by the sports bodies and for hiring the necessary contractors. These range from local to international firms, from city planners and logistic experts, to food suppliers and construction firms.[5] Further companies that profit from the MSE-business are international broadcasting firms and recruitment agencies. The financing of these events is secured through national and international corporate sponsors, such as McDonald’s and Budweiser for this year’s FIFA World Cup.[6]

The intuitive thing to do from a human rights perspective would be to call upon the responsibility of Russia as the host country to address these abuses, since states are not only responsible for respecting, protecting and fulfilling human rights but also for preventing third parties from abusing human rights on their territory. However, this would ignore the real issue at stake: the fact that MSE-related human rights abuses are the result of complex collaboration between multiple actors involved in delivering these events. In the case of exploitation of workers on World Cup construction sites in Russia, construction companies contribute by imposing abusive employment conditions; recruitment agencies by recruiting the workers under false promises; the state by failing to protect the workers and potentially even facilitating certain practices through its event-related policies; FIFA by requiring a certain number and standard of stadiums for the event; and finally also the sponsors by providing the necessary finances.

This rather simplified identification of the various contributing actors only presents a broad indication of how they contribute to these violations and share responsibility. The problem is that the entanglement of actors and their operations creates highly complex governance structures. In order to identify those actors responsible for the violations, victims first have to untangle these structures and retrace the chain of decisions taken, permits issued, orders given, and actions taken. Even if that succeeds, the key challenges are to identify which of the contributing acts would give rise to legal responsibility and to establish responsibility for those actors that have no direct obligations under international human rights law.

The Second Half:  Establishing Accountability

The entanglement of actors and their contributions does not only impede the identification of the responsible actors but also the identification of adequate accountability mechanisms. The business and human rights field knows a broad spectrum of mechanisms ranging from judicial to non-judicial, and from state-based to operational level mechanisms. Up to this point, the few attempts to hold certain actors accountable for MSE-related human rights violations either have been unsuccessful or only addressed a fraction of the actors or types of violations involved. For example, FIFA’s responsibility for World Cup-related human rights abuses has been the subject of a court case in Switzerland and two specific instances dealt with by the Swiss National Contact Point (NCP). The court in Zürich dismissed the case with unusual speed on mainly practical grounds (a more detailed discussion of the judgement can be found here).[7] The mediation procedure at the Swiss NCP led to the creation of a monitoring system for decent work and safety in the workplace for migrant construction workers in Qatar[8], but their living standards and the abuses of recruitment agencies were not addressed.

What these attempts highlight is that the main shortcomings of available mechanisms amount to a lack of access to these mechanisms for affected groups and individuals and a lack of human rights receptivity of existing mechanisms. In light of these shortcomings, new mechanisms are currently being developed and existing mechanisms are being tested in the MSE and human rights context. Just in time for the start of the World Cup, FIFA launched its new complaint mechanism for human rights defenders, which provides human rights defenders and media representatives with an avenue for complaints for situations “in which they consider that their rights have been unduly restricted when conducting work in relation to FIFA’s activities”.[9] Via an online platform, human rights defenders, journalists and other media representatives can submit a complaint and FIFA commits to ensure that it will apply an “appropriate follow-up processes” to it.[10] FIFA itself is supposed to assess these complaints and seek cooperation with third parties that are involved in the matter and relevant institutions that can support the complainant.[11] With regard to testing existing mechanisms, the possibilities for using arbitration as means to address MSE-related human rights issues opened up with the revised bidding and hosting regulations of FIFA and the IOC. Both entail provisions for human rights protection and arbitration clauses, referring to the Court of Arbitration for Sports, for challenging the performance of the host-city or -country under any of the provisions.

The Overtime: The Winner Takes its Share

One way of interpreting these recent efforts of international sports bodies to increase awareness and respect for human rights protection in connection with their events is to argue that they are increasingly becoming aware of their share of responsibility and accountability. Indeed, the increased awareness of adverse human rights impacts of MSEs triggered a number of initiatives that aim at raising human rights standards in the MSE business. In 2016, the MSE platform for human rights has been created, which is a multi-stakeholder coalition consisting of international and intergovernmental organisations, governments, sports governing bodies, athletes, unions, sponsors, broadcasters, and civil society groups, who are committed to take joint action to protect human rights throughout the MSE lifecycle. Recently, this multi-stakeholder initiative created the Centre for Sport and Human Rights, which is an independent center that connects stakeholders and affected groups to share knowledge, build capacity, and strengthen accountability for adverse human rights impacts of sports more generally. Concrete event-related examples of initiatives exist as well. In the run-up to this year’s World Cup, FIFA, Russian authorities and representatives of trade unions took a joint effort to set up a monitoring program for labour conditions on World Cup construction sites. Similar processes led to the establishment of a worker welfare monitoring system for workers on World Cup construction sites in Qatar.

Nevertheless, significant challenges remain in relation to concrete cases of MSE-related human rights abuses and it is important that these efforts do not fade after the final match has been played. MSE-related human rights violations do not automatically stop when the event is over. In some cases, for instance cases of forced evictions, violations continue as long as victims have not been compensated adequately. These challenges do not make it a hopeless endeavour, but they highlight that more work and change is needed before responsibility for MSE-related human rights violations can be established. Especially, most of the developments and efforts of sports governing bodies are rather recent and only apply to events that will take place in the future. Hence, it remains to be seen whether the revised bidding regulations can ensure that future World Cups will have a more positive human rights legacy and eventually avoid adverse human rights impacts altogether.

[1] Business & Human Rights Resource Centre, ‘Russia 2018 FIFA World Cup’ <https://business-humanrights.org/en/russia-2018-fifa-world-cup> accessed 14 February 2018.

[2] ibid 27.

[3] Megan Corrarino, ‘“Law Exclusion Zones”: Mega-Events as Sites of Procedural and Substantive Human Rights Violations’ (2014) 17 Yale Human Rights and Development Law Journal 180.

[4] Lucy Amis and John Morrison, ‘Mega-Sporting Events and Human Rights—A Time for More Teamwork?’ (2017) 2 Business and Human Rights Journal 135, 137.

[5] For a more elaborate overview of actors, see Amis and Morrison (n 5) at 136.

[6] Fédération Internationale de Football Association, ‘2018 FIFA World Cup Russia^TM - FIFA Partners’ (FIFA.com, 2017)< http://www.fifa.com/worldcup/organisation/partners/index.html> accessed 15 February 2018.

[7] FNV, Bangladeshi Free Trade Union Congress, BWI & Nadim Shariful Alam v FIFA Handelsgericht Kanton Zürich (3 January 2017).

[8] Specific Instance regarding the Fédération Internationale de Football Association (FIFA) submitted by the Building and Wood Workers’ International (BWI) - Final Statement Swiss National Contact Point (2 May 2017).

[9] FIFA, ‘FIFA Statement on Human Rights Defenders and Media Representatives’ (2018) 4, para 14< https://resources.fifa.com/image/upload/ejf1ecdku14lm2v9zc03.pdf> accessed 12 June 2018.

[10] ibid.

[11] ibid 5, para 15.