Editor's note: Sara Martinetto is an intern at T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.

On 29^th June 2017, four Nigerian widows launched a civil case against Royal Dutch Shell (RDS), Shell Petroleum N.V., the Shell Transport and Trading Company, and its subsidiary Shell Petroleum Development Company of Nigeria (SPDC) in the Netherlands. Esther Kiobel, Victoria Bera, Blessing Eawo and Charity Levula are still seeking redress for the killing of their husbands in 1995 in Nigeria. They claim the defendants are accomplices in the execution of their husbands by the Abasha regime. Allegedly, the companies had provided material support, which then led to the arrest and death of the activists.  

In the light of this lawsuit, it is interesting to retrace the so-called ‘Ogoni Nine’ legal saga. The case saw the interplay between multiple jurisdictions and actors, and its analysis is useful to point out some of the main legal issues encountered on the path to hold corporations accountable for human rights abuses.

The ‘Ogoni Nine’

‘Ogoni Nine’ is the name given by the media to a group of Nigerian men – Saturday Dobee, Nordu Eawo, Daniel Gbooko, Paul Levera, Felix Nuate, Baribor Bera, Barinem Kiobel, John Kpuine, and Ken Saro Wiwa – who were arrested for the alleged murder of four people. On 10^th November 1995, they were executed in Port Harcourt, Southern Nigeria. To understand what led to this episode, it is important to provide some historical context.

Royal Dutch Shell has been undertaking drilling operations in Nigeria since 1958, carried out through SPDC.[1] As explained by the UNEP environmental assessment report of 2011, both water and land were polluted by the extraction of oil and gas, causing massive environmental harm. This drove the inhabitants of Ogoniland, a region in the Niger Delta, to strongly oppose those activities. Thus, they created the Movement for the Survival of the Ogoni People (MOSOP), lead by Ken Saro-Wiwa:[2] in 1993, the movement counted more than 300 000 activists, half of the Ogoni population. They engaged in protests against the Nigerian government – which was accused of turning a blind-eye to Shell’s activities, since they provided for the majority of Nigeria’s export earnings[3] - and against companies extracting the oil, Shell amongst others.

In 1994, the ‘Ogoni nine’ were apprehended and held in military custody; no charges were pressed during their first eighteen months in prison. Eventually, a special military court tried them for the murder of four people, they were found guilty, and then hanged. The manner in which the trial was conducted caused the outrage of the international community and ultimately resulted in the suspension of Nigeria from the Commonwealth.

The Wiwa cases in the New York courts

The first attempt to seek justice for the execution of the nine members of MOSOP took place in 1996, when the son of Ken Saro-Wiwa filed three different lawsuits in a New York District court: one against Royal Dutch Petroleum, one against Shell Petroleum Development Company, and the last against Brian Anderson, the head of Nigerian operations at Royal Dutch Shell. The plaintiff alleged the complicity of Shell in the human rights violations perpetrated by the Nigerian government against MOSOP. In particular, the plaintiff claimed that the company provided material support both to the repression of Ogoni activists during protests and to the actual apprehension of the Ogoni Nine.[4]

Among other things, Shell was accused of offering transport, food and property to Nigerian troops, used to commit human rights abuses, which, according to the plaintiff, amounted to crimes against humanity. Therefore, the claims were brought both under the Alien Tort Statute (ATS), the Torture Victim Protection Act (TVPA), and the Racketeer Influenced and Corrupt Organizations (RICO) Act.

After thirteen years of legal battles, the parties reached a settlement: Shell paid 15.5 million dollars, covering compensation and legal expenses.[5] However, the company issued no admission of guilt or apologies: it submitted that the payment was given to “aid the process of reconciliation”.[6] Without a doubt, the extrajudicial settlement was a victory for the Ogoni people. However, the absence of a final ruling prevents an in-depth analysis of the multiple legal issues raised by the case.

Nevertheless, one aspect should be highlighted: the suit resisted numerous attempts by the defendant to have the case dismissed on jurisdictional ground. Specifically, the Court of Appeal, overruling the first instance’s dismissal, carried out an in-depth analysis on why the claim fell within the scope of US jurisdiction. It was found that Shell performed a variety of activities in the U.S. and that the claimant was also residing there. Therefore, there were no grounds to dismiss the case, neither under personal jurisdiction, nor under forum non conveniens. These conclusions remain particularly important, especially in the light of the following Kiobel case.

The Kiobel case and the Alien Tort Statute

In 2002, Esther Kiobel filed a civil claim against Shell under the Alien Tort Statute (ATS). This 1789 American Statute allows US District Courts to exercise civil jurisdiction on a claim brought by an alien alleging the violation of the law of nations. The plaintiff accused the defendant of aiding and abetting the Nigerian government to commit the violations of international law at hand in the Wiwa proceedings.

The case made it all the way to the Supreme Court, which famously held that the ATS was not applicable to the fact pattern. The 2013 decision of the Supreme Court was based on two main Arguments. First, the Court seemed unconvinced that the norms allegedly violated are “specific, universal and obligatory” as prescribed in Sosa v. Alvarez-Machain et al. Second – and most importantly – the conduct alleged by the plaintiff does not “touch and concern” the U.S. with a sufficient force, which will allow rebutting the presumption against extraterritorial application of the Statute.

The ruling of the Supreme Court attracted many comments and criticism: specifically, the concerns revolve around the interpretation of the ATS’ scope of application, and its possible impact on the outcome of other cases. Indeed, the application of the Statute turns out to be substantially limited by the narrow interpretation given in Kiobel. Regardless of the nationality of the parties, the Court seems to imply that the conduct should take place – at least partly – in the United States. Mere corporate presence is not considered to be enough of a link to ground jurisdiction of American courts.[7] In general, legal scholars are still debating some core questions, left unresolved by the Kiobel decision, related to the scope of the ATS.[8] In any event, the U.S. proved to be an inadequate forum to provide redress to the families of the ‘Ogoni Nine’.

The new Dutch lawsuit

A claim recently lodged in The Netherlands seeks to, at last, hold Shell accountable for the plight of the ‘Ogoni Nine’. Their widows are represented by Channa Samkalden – from the Amsterdam law firm Prakken D’Oliveira – which is managing the Dutch case with the support of Amnesty International.

An indication of what was about to happen came last October when Esther Kiobel petitioned a New York District Court to request discovery by the U.S. lawyers of the respondent. The documents requested were deemed necessary to seek redress for the violation of the applicants’ husbands “right to life, their right to a family life and their right to personal dignity and integrity”.

The new Writ of Summons refers to the “international jurisdiction of Dutch courts” under the Brussels I Regulation and the Dutch Code of Civil Procedure (CCP). The plaintiffs set out three different grounds for jurisdiction. Art. 4(1) and 63 Brussels I (recast Regulation) are used as a jurisdictional basis on RDS.[9] Jurisdiction on the non-Dutch defendant is instead grounded in art. 7(1) CCP, which provides for the possibility to attract multiple defendants to the same forum, where the claims against them are connected. Alternatively, jurisdiction over SPDC could also be established pursuant to art. 9(1) CCP, providing for the rule of forum necessitatis: i.e. Dutch courts have jurisdiction, provided that the claim is sufficiently connected to the Dutch legal sphere and that it is unacceptable to expect the claimant to submit the case to the judgment of a foreign court. The claimants submit that the Dutch parent companies wholly own SPDC, and that the defendants acted as a single entity when perpetrating the alleged conduct. Moreover, one cannot expect the claimants to file the lawsuit in Nigeria, given the involvement of the State apparatus in the events at issue. This argument is further reinforced by the fact that both Kiobel and Bera have been granted refugee status abroad.

To fully appraise the soundness and the chances of success of these jurisdictional grounds, it is necessary to take a step back and to look at the question through the lens of Private International Law (PIL).

Grounds for jurisdiction in PIL: between the European and the national level

Some scholars[10] had already anticipated that the failure to secure jurisdiction under the ATS in the Kiobel case was likely to result in a rekindled attention for PIL rules in business and human rights cases. As far as jurisdiction is concerned, the European PIL instrument par excellence is the Brussels I Regulation “on the jurisdiction, recognition, and enforcement of judgments in civil and commercial matters” within the EU.[11] In this framework, establishing jurisdiction over the parent company is fairly unproblematic. Art. 2 and 60 of the Regulation (transposed in art. 4 and 63 of the Recast) provide that defendants domiciled in a Member State can in principle be attracted in front of the courts of that Member States. This applies also to companies who are seated/have their central administration/have their principal place of business in that Member State.

However, the situation becomes more complex when foreign subsidiaries, especially if incorporated in States outside the EU, come into play. In the Kiobel case, the Dutch court claiming jurisdiction over SPDC is essential for the success of the case as the Nigerian subsidiary was at the heart of the events leading to the death of the ‘Ogoni Nine’. There are two potential grounds for an EU based court to have jurisdiction over non-EU based subsidiaries: the rule on multiple defendants based on related actions and the principle of forum necessitatis.[12] The latter is not provided for in the Brussels I regime. Hence, it is up to national legislation to include such a ground in their PIL. As far as the former is concerned, art. 6(1) Brussels I (art. 8(1) Recast) prescribe that a foreign defendant might faced court proceedings together with a domestic one when the claims against them “are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments”. The actual scope of application of this paragraph is sometimes hard to grasp. For instance, it is doubtful whether it could apply to non-EU based companies.[13] A negative answer will result in the need to resort to national rules of PIL. Thus, the possibility of Dutch courts having jurisdiction in a case involving a subsidiary such as SPDC will most likely hinge on Dutch rules regarding jurisdiction.

Two valuable precedents

An analysis of two recent cases – one in the UK and one in the Netherlands – can shed some light on the issue. In fact, both of them involved Shell and SPDC as defendants, and also invoked Brussels I as a ground to establish jurisdiction.

In the UK case, more than 40.000 individual claimants brought a class action against Shell over alleged environmental damages linked to oil spillage. On 26^th January 2017, the High Court of Justice (Queen’s Bench Division) ruled that the claims should be heard in Nigeria. Although jurisdiction over the conduct of RDS could be established pursuant to art. 4 Brussels I Recast Regulation, the possibility to try SPDC was to be assessed under domestic PIL, and specifically, the CPR Practice Direction 6B. Paragraph 3.1(3) of the CPR Practice Direction 6B provides that a claim against multiple defendants could be served if (a) the issue between the claimant and the first defendant is a real issue, “which it is reasonable for the court to try”, and (b) the other defendant is a “necessary and proper party to the claim”. Thus, the English Court focused on verifying whether the claimant had a cause of action against the “anchor defendant” (i.e. RDS). Examining the evidence, the Court held that RDS had no duty of care over the extraction activities carried out by SPDC, and, hence, there was no legal claim that would tie the issue to UK jurisdiction (§118).

In a previous decision, the Dutch courts came to an opposite conclusion. Similarly, the three joint cases[14] concerned alleged negligence of RDS and SPDC with regard to the environmental damages caused in the Niger delta. On 18^th December 2015, the Court of Appeal of The Hague held that Dutch courts have jurisdiction to hear the claim both against the parent company (pursuant to art. 2(1) and 60(1) Brussels I)[15] and SPDC (pursuant to both art. 6(1) Brussels I and art. 7(1) Dutch Code of Civil Procedure (CCP)). Art. 7(1) CCP prescribes that a defendant might fall under the jurisdiction of Dutch courts when jurisdiction is established against another defendant, “provided that the rights of action against the different defendants are connected with each other in such a way that a joint consideration is justified for reasons of efficiency”. Therefore, it resembles art. 6(1) Brussels I, and, moreover, the two norms were interpreted by the Court as linked and mutually reinforcing. As a result, the Court stated that the interest of having the claims against both companies heard together prevails over the allegations that the contentions against SPDC should be heard in Nigeria.

Comparing the two judgements, it appears that the two Courts have tackled the issue from two different angles, which reflect the wording of their domestic PIL. In particular, the Dutch Court deferred the question of whether the claims against the parent company were founded for a later phase of the proceeding, holding that it was too soon to determine whether these claims were bound “to fail from the outset”(§3.7). Moreover, the Court referred to the principle of perpetuatio fori. In other words, jurisdictional questions are solved at the outset of the proceeding. In the event claims against RDS proved unfounded on the merit, jurisdiction over SPDC would still stand.

Therefore, the ruling of The Hague Court of Appeal, and the regime provided in CPP by both art. 7(1) and 9 might prove to be a key element for the success of the new Kiobel lawsuit. Were the Dutch Court to find the claims against Shell and SPDC substantially interwoven (in the meaning of art. 7(1) CCP), arguably the need to hear the allegations against the two companies in the same proceeding would outweigh the reasons for having two separate judgements in the Netherlands and in Nigeria. In the alternative, art. 9 CCP, prescribing the principle of forum necessitatis, could still provide a jurisdictional ground on SPDC.

Conclusion

The new Kiobel case brings to the fore the strategies and opportunities available to victims seeking redress from multinational companies for human rights abuses. The strict interpretation of the ATS by the Supreme Court in the American edition of the Kiobel case has caused a geographical re-location of the complaints towards Europe and, in particular, The Netherlands where Shell is seated. In this regard, the jurisdictional regime stemming from private international law rules becomes crucial.

Notwithstanding the valuable ground provided by the Brussels I regime,^[16] the national norms on PIL still play a predominant role, at least with regard to the establishment of jurisdiction over non-EU based subsidiaries. As the UK and Dutch cases show, these rules might be more or less flexible and entail diverse legal reasoning potentially leading to contradictory outcomes, and which will ultimately determine the possibility to have the case heard on the merit.

The 2015 precedent bodes well for the Dutch Court to assert jurisdiction in the new Kiobel case. Albeit this does not mean the Court will side with Kiobel and the other widows on substance. Winning on jurisdiction would be a first step, a key initial success necessary to be properly heard, but for the claimants there would still be a long and difficult road ahead before finding justice.  

[1] E. Hennchen, Ibid.

[2] NBC News, Shell settles human rights suit for $15.5 million, 6 August 2009

[3] BBC, 1995: Nigeria hangs human rights activists, 10 November 1995

[4] NBC News, Shell settles human rights suit for $15.5 million, 6 August 2009

[5] Ibid.

[6] Ibid.

[7] S. H. Cleveland, After Kiobel, in  Journal of International Criminal Justice, 2014, 556

[8] See N. Bhuta, The Ninth Life of the Alien Torts Statute - Kiobel and After, in Journal of International Criminal Justice, 539-550; S. H. Cleveland, After Kiobel, in Journal of International Criminal Justice, 2014, 551-577

[9] Prescribing that a claim must in principle be lodged at a court located in the Member States where the defendant is domiciled. Regulation 1215/2012/EU (Brussels I)

[10]See G. van Calster, C. H. Luks, Extraterritoriality and Private International Law, in Recht in Beweging, 2012, 119-135 and G. van Calster, The Role of Private International Law in Corporate Social Responsibility, Erasmus Law Review, No.3, November 2014, 125-133.

[11] The Brussel Regimes now comprises Regulation 44/2001/EC (Brussels I), and was recast as Regulation 1215/2012/EU .

[12] The principle establishes that a State can exercise jurisdiction, when otherwise there will be no access to justice, due to the unavailability of an alternative forum.  F. J. Zamora Cabot, L. Heckendorn Urscheler, S. De Dycker, Implementing the U.N. Guiding Principles on Business and Human Rights. Private International Law Perspectives, Schulthess Medias Juridiques, Geneva, 2017, 43

[13] F. J. Zamora Cabot, L. Heckendorn Urscheler, S. De Dycker, op. cit., 2017, 45 and 147

[14] Court of Appeal of the Hague, A.F. Akpan v. Royal Dutch Shell, plc; E. Dooh v. Royal Dutch Shell, plc; F.A. Oguru v. Royal Dutch Shell plc, 18 December 2015

[15] The two articles refer to the first versions of Brussels I Regulation 44/2001/EC; they are the equivalent of art. 4 and 63 of the recast Regulation.

[16] D. Lustig, Ibid.

Editor’s 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 previously worked for International Justice Mission in South Asia and the Centre for Research on Multinational Corporations (SOMO) in Amsterdam.

The ‘web’ of domestic statutory liability for international criminal law (ICL) violations by legal persons has spread. The previous post in this series outlined developments at the international level, however domestic courts play a fundamental role in its development and have been far more active on this front. These domestic developments are particularly remarkable in France, The Netherlands and Sweden. The American Alien Tort Statute caselaw will be discussed in the next post in this series. 

Domestic-level developments

As the Special Representative of the Secretary-General for the Human Rights Council, John Ruggie has highlighted the dual role of national courts and international tribunals in developing corporate responsibility for international crimes:

“One [of two developments] is the expansion and refinement of individual responsibility by the international ad hoc criminal tribunals and the ICC Statute; the other is the extension of responsibility for international crimes to corporations under domestic law. The complex interaction between the two is creating an expanding web of potential corporate liability for international crimes, imposed through national courts.^[1]

The ICC was always intended to be supplementary to domestic courts, which are integral to the implementation and development of international criminal law.^[2] The ICC’s remit (and resources) do not permit it to be the forum for the vast majority of international crimes, rather it (ideally) should only be resorted to when the relevant domestic courts are unwilling or unable to field international criminal law claims. The development of ICL at the domestic level means that it may be applied to legal persons in those forums.

The comparative law issue was at the crux of the debates at the Rome Conference surrounding the drafting of the Rome Statute; it was a step too far for an international instrument to impose a new and novel application of criminal law (to legal persons) on states with no prior history of doing so.^[3] In the interim however, states have begun to do so voluntarily.^[4] Anita Ramasastry and Robert C Thompson completed a wide survey of 16 countries and found that the “potential web of liability”^[5] is expanding. While there are variations in how criminal conduct and intent are attributed to the company, and the type of liability itself, countries are increasingly subjecting business entities to statutory liability for international crimes.

David Scheffer, having witnessed the climate surrounding corporate criminal liability during the Rome conference negotiations, has since argued that legal systems and international law have evolved due in part to those inconclusive negotiations:

“States certainly did not act as if the Rome Treaty precluded expanding corporate liability into the realm of atrocity crimes. Indeed, one might speculate that the Rome Treaty, by focusing ratifying States’ attention on atrocity crimes, provided an impetus to accord greater accountability within their domestic legal systems.” ^[6]

Common-law countries in general adopted corporate criminal liability earlier than civil law, however these have come on board more recently; the highest-profile hold outs against this trend remain Germany, Sweden and Russia, which use alternative mechanisms to attach liability for corporate involvement in international crimes.^[7] However, actual prosecution of legal persons remains rare. Dieneke De Vos’s run down of pre-2018 developments which already evidenced the “emerging norm” of finding potential corporate liability for ICL violations at the domestic level, at the same time acknowledged the rarity of prosecution.

The Netherlands

A number of high-profile Dutch cases have arisen in recent years of corporate actors being prosecuted for war crimes and international crimes, most notably in 2017 the Dutch Court of Appeal of ’s-Hertogenbosch convicted the arms-dealer and businessman Kouwenhoven for complicity in war crimes in Liberia. Dutchman Frans van Anraat was similarly prosecuted in 2005 for complicity in war crimes, due to his company selling the chemical ‘thiodiglycol’ to Saddam Hussein’s regime.

In Dutch law a corporation can be criminally liable under article 51(1) of the Dutch Penal Code (DPC).^[8] The Dutch Supreme Court has outlined the circumstances in which it would be reasonable to impute illegal conduct to the corporation in the Drijfmest case, which are relatively flexible.^[9] International crimes are incorporated into Dutch domestic law through the International Crimes Act (ICA) 2003, which defined the offences as crimes (Section 10) and did not exclude legal persons (Section 16).

Businessmen have been convicted in the aforementioned Van Anraat and Kouwenhoven cases in the Netherlands, however despite the possibility of corporate criminal liability for international crimes and the Dutch reputation for being a ‘pioneer’ in this area, successful prosecutions have yet to materialise, and no cases have yet made it to the trial phase.^[10]

Proceedings under the ICA were initiated against a corporation, Lima Holding B.V., in the Riwal case. The Palestinian NGO Al Haq submitted a complaint against the Dutch company for its role in the construction of a security barrier between the West Bank and Israel. The prosecutor opted not to try the case, citing practical resource issues and lack of cooperation from Israeli authorities with the extraterritorial investigation. Public prosecutor Thijs Berger has since explained that “access to the relevant administration was not possible as the information was located at a subsidiary of the corporation in Israel and the Israeli authorities refused to act on requests for legal assistance sent by the Dutch Public Prosecutor.”^[11] Though not ICL cases, Dutch prosecutors have met with more success prosecuting companies for transnational crimes in the international corruption cases of SBM Offshore and VimpelCom.^[12]

The reasons for the lack of Dutch prosecutions have been attributed to possible adverse impacts of a prosecution on the Dutch economy; the limited capacity of the Dutch Public Prosecutor’s Office; the practical issues surrounding conducting investigations on foreign territory; and the bankruptcy or otherwise disappearance of the company in question.^[13]

France

The aforementioned cases, though they highlight the role of corporate actors in conflicts, nonetheless all involve individual liability of natural persons. However, the recent French Lafarge case involves the prosecution of the company itself (in addition to former company executives) for international crimes, including complicity in war crimes, crimes against humanity, financing of a terrorist enterprise, deliberate endangerment of people's lives and forced labour.^[14]

French corporate criminal liability is vicarious: offences must be “committed on their account by their organs or representatives.”^[15] For the purposes of ICL prosecutions, this might prove an issue in the future regarding who properly is a ‘representative’ or organ for the purposes of the company’s liability. However, on the other hand it does partially lower the bar for finding corporate liability once that representative’s fault^[16] has been determined.^[17] There are more procedural barriers than under the Dutch system, leading to questions about what these would mean should a prosecution materialise. Unlike the Dutch, the French system of universal jurisdiction for core crimes does not apply to legal persons, and the jurisdictional double criminality requirement may mean that companies may not be prosecuted if the country where the crime took place does not also subject legal persons to criminal liability.^[18]

The Lafarge case in France may be the most discussed, potentially impactful contemporary case for corporate criminal liability under ICL, however French civil society groups have been especially proactive in bringing cases before prosecutors and so there are other similar cases that started before Lafarge.

The 2009 DLH France case concerned the purchase of illegally obtained timber which was helping fund the Liberian civil war, however the case was dismissed by the Public Prosecutor in 2013.^[19] The Amesys case concerned the French company Amesys which contracted with the Libyan intelligence services to supply a communications surveillance system, in so doing assisting the Gaddafi regime violently target political opponents and protestors. The case for complicity in acts of torture followed a complaint filed by FIDH (Fédération Internationale des Droits de l’Homme) and the French Human Rights League (Ligue française des droits de l’Homme - LDH), and is being heard before the Specialised War Crimes Unit within the Paris Tribunal (Tribunal de grande instance). The case is ongoing.

The BNP Paribas Rwanda case concerns complicity in the Rwandan genocide by the French bank. In 2017 the public prosecutor opened a judicial investigation into charges of complicity in genocide and complicity of crimes against humanity. These specifically concern $1.3m USD in funds transferred by the bank (in violation of a United Nations arms embargo) that were allegedly used to purchase weapons used in the genocide.^[20] The initial complaint was filed by Sherpa, Ibuka France, and the Collectif des Parties Civiles pour le Rwanda. This case is also ongoing.

The 2017 judicial investigation into the Lafarge case has caused greater interest in observers. The European Center for Constitutional and Human Rights (ECCHR), Sherpa, and some of Lafarge’s former employees filed a criminal complaint against the French company for activities in 2013-14 by its Syrian subsidiary. The case concerns a cement plant situated in northeastern Syria which was acquired by Lafarge SA (now called LafargeHolcim) in 2007, and continued operations as Islamic State forces occupied the area. Lafarge is accused of financing IS through commercial transactions, from buying raw materials to paying fees to armed groups to continue factory operations. Now the company itself, in addition to eight of its former executives, is facing criminal prosecution, formally indicted on charges of complicity in crimes against humanity, endangerment of people's lives and financing of a terrorist enterprise.

Sweden

The Swedish model, and past caselaw, were covered in our case note on the Lundin Petroleum case. In brief summary, Swedish prosecutors have utilised universal jurisdiction for international crimes in past to prosecute three individuals involved in the Rwandan genocide, and several cases of war crimes committed during the Balkan Wars.

The Lundin case concerns the culpability of Swedish corporate actors for harms perpetrated during Sudan’s oil wars. Forfeiture of economic benefits and a corporate fine (the closest punitive equivalent to corporate criminal liability under Swedish law^[21]) are being levelled at Swedish oil company Lundin Petroleum SA, and two company directors are personally facing criminal prosecution for aiding and abetting war crimes and crimes against humanity. The forfeiture claim is for the whole profit of the oil exploitation over the years Lundin was involved in Sudan, and the two men face life in prison if found guilty, so the charges are not insubstantial. The Swedish Government’s authorisation is necessary in extraterritorial cases to allow the prosecution.^[22] It was granted in this case, and subsequently the Supreme Administrative Court denied Lundin’s appeal to override the decision in favour of prosecution. Swedish police have also opened a criminal investigation into harassment of witnesses.

At the Asser event on the Lundin case, Miriam Ingeson argued that the increased capacity building for Swedish prosecutors to pursue international crimes, and a positive duty to prosecute under Swedish law have likely led to the increase in these investigations. She also explained this case will challenge Swedish courts with the question of which general principles to apply on accomplice liability; international tribunals, including the courts of Rwanda, Yugoslavia, and ICC have developed international-level principles that states are not necessarily obliged to apply. This case however does reference general international legal rules, so the Swedish rules on accomplice liability may yield to those developed by international tribunals.

The harms being investigated by the Swedish prosecutors and the depth of the company’s alleged involvement are arguably more serious than those in the French Lafarge case. Both cases are (slowly) unfolding, potentially developing customary ICL in the process, so comparisons between the two will inevitably continue.

Conclusion

The previous post discussed the Special Tribunal for Lebanon (STL) case, and how heavily the judge leaned on developments in domestic courts concerning corporate liability. That judgement and these domestic developments are evidencing the interplay between the application of ICL in domestic courts^[23] and the international tribunals. The 2009 prophecy of Joanna Kyriakakis now seems especially prescient:

“[T]he growing trend in legal systems in Europe, Asia, and South America to incorporate extraterritorial corporate liability for international crimes will likely function as a catalyst for courts to construe international criminal law so as to apply to corporations as non-state actors, or even bring the issue of corporate liability back to the agenda of the states parties to the ICC.”^[24]

Actual prosecutions are sparse however there is nonetheless a developing trend to support the STL judge’s conclusions. This trend is still only on paper: domestic statutory corporate liability for ICL violations has become widespread, however even in these particularly active jurisdictions there have been no convictions of legal persons for international crimes. The extreme expense, political and economic issues inherent in any case of this kind preclude there ever being a deluge of cases to look at, so the small number of cases successfully making it to the investigation stages are cause for analysis. The next post in this series will be addressing the Kiobel v. Royal Dutch Petroleum Co and Jesner v Arab Bank cases before American courts, and specifically looking to the role of civil law in ICL.

^[1] HRC, ‘Report of the Special Representative of the Secretary-General on the Issue of Human rights and Transnational Corporations and other Business Enterprises, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts’ UN Doc. A/HRC/4/35 (19 February 2007) para 22.

^[2] See Mark Klamberg, ‘International Criminal Law in Swedish Courts: The Principle of Legality in the Arklöv Case’ (2009) 9 International Criminal Law Review 395.

^[3] Joanna Kyriakakis, ‘Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge’ (2009) 56 Netherlands International L Rev 333, 348.

^[4] David Scheffer, ‘Corporate Liability under the Rome Statute’ (2016) 57 Harvard International Law Journal Online Symposium 35, 38. See also his Amicus Curiae briefs in both Kiobel v. Royal Dutch Petroleum Co and Jesner v Arab Bank, PLC, which strongly argue the evolution of corporate criminal liability since the drafting of the Rome Statute.

^[5] Anita Ramasastry and Robert C Thompson, ‘Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law: A Survey of Sixteen Countries’ (Fafo-report no. 536, 2006) 27.

^[6]‘Brief of Ambassador David J. Scheffer, Northwestern University Pritzker School of Law, as Amicus Curiae in Support of the Petitioners’ Joseph Jesner, et al., v. Arab Bank PLC, 822 F.3d 34 (2d Cir. 2016) (Jun. 26, 2017) 6.

^[7] Sabine Gless and Sarah Wood, ‘General Report on Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues’ in S Gless and S Broniszewska (eds) Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues (International Colloquium Section 4, Basel, 21-23 June 2017) 18.

^[8] Article 51 Dutch Penal Code:

[…] 2. If an offence has been committed by a legal person, prosecution can be instituted and the punishments and measures provided by law can be imposed, if applicable, on:

a. The legal person, or

b. Those who have ordered the offence, as well as on those who have actually controlled the forbidden act, or

c. The persons mentioned under 1. And 2. Together

3. For the application of the former subsections, equal status as a legal person applies to a company without legal personality, a partnership, a firm of ship owners, and a separate capital sum assembled for a special purpose.

^[9] See English summary in Emma van Gelder and Cedric Ryngaert, ‘Dutch Report on Prosecuting Corporations for Violations of International Criminal Law’ in S Gless and S Broniszewska (eds) Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues (International Colloquium Section 4, Basel, 21-23 June 2017) 114.

^[10] Cedric Ryngaert, ‘Accountability for Corporate Human Rights Abuses: Lessons from the Possible Exercise of Dutch National Criminal Jurisdiction over Multinational Corporations’ (2018) 29 Criminal Law Forum 1, 8.

^[11] van Gelder and Ryngaert (n 10) 129.

^[12] ibid 130.

^[13] ibid 143.

^[14] For more background on this case, see the previous Doing Business Right post by Alexandru Tofan.

^[15] France Penal Code, Article 121-2 [paragraph 1].

^[16] France Penal Code, Article 121-2 [paragraph 3]: “The criminal liability of legal persons does not exclude that of the natural persons who are perpetrators or accomplices to the same act”.

^[17] “In an important judgment of 2001 the Court of cassation stated that the body’s or representative’s fault is sufficient to trigger the criminal liability of the corporation in case the offence has been committed on the legal person’s behalf. It is not necessary to characterize a separate fault of the corporation” in Juliette Lelieur, ‘French Report on Prosecuting Corporations for Violations of International Criminal Law’ in S Gless and S Broniszewska (eds) Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues (International Colloquium Section 4, Basel, 21-23 June 2017) 185.

^[18] ibid 180.

^[19] Of note: the case was at least partially under French criminal law rather than application of ICL.

^[20] This is not the first time the bank has faced these types of claims: “The investigation into BNP comes three years after US regulators extracted a record $8.9bn fine and a guilty plea from the bank, finding that it broke US sanctions by processing more than $30bn of transactions for groups in Sudan, Iran and Cuba between 2002 and 2012. The bank was also given a one-year ban on clearing some dollar transactions.” in Martin Arnold, ‘BNP Paribas under investigation over role in Rwanda genocide’ Financial Times (September 25 2017).

^[21] In the Swedish context “a corporate fine is not considered a penalty for a crime but is an extraordinary legal remedy serving as a repressive sanction supplanting corporate criminal liability,” in Miriam Ingeson and Alexandra Lily Kather, ‘The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad’.

^[22] ibid.

^[23] Jonathan Clough, ‘Not-so-innocents abroad: corporate criminal liability for human rights abuses’ (2005) 11(1) Australian Journal of Human Rights 1, 7.

^[24] Kyriakakis (n 3) 348.