Are corporates facing greater accountability for international crimes?

On 5 September 2023, a case against two former corporate executives of oil and gas company, Lundin Energy (now Orrön Energy) over alleged complicity in war crimes in Sudan began before the Swedish courts. The Lundin case is one of a growing number being brought against companies and corporate executives for complicity in core international crimes. This trend points to a greater willingness on the part of civil society actors and other stakeholders to pursue corporates and senior individuals within them under the international criminal legal regime.

This article explores what this trend might mean for corporate legal accountability both internationally and domestically, as well as the possibility of cases being brought against UK companies and their directors.

Core international crimes

Cases brought against companies and corporate executives under the international criminal legal regime have typically addressed the core international crimes codified in the Rome Statute, the foundational statute of the International Criminal Court (the “ICC”):

• Genocide: where: (i) a person has intent to destroy, in whole or in part, a “national, ethnical, racial or religious group, as such”; and (ii) that person commits certain specified criminal acts with such intent (e.g. killing members of the group).
• Crimes against humanity: where certain specified criminal acts (e.g. murder and/or torture) are committed as part of a “widespread or systematic attack directed against any civilian population, with knowledge of the attack”.
• War crimes: grave breaches and serious violations of the laws and customs applicable in armed conflicts.
• Crimes of aggression: “the illegal use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the UN Charter".

As high-profile cases brought against corporates in the climate and human rights space increase, some NGOs, such as Stop Ecocide Now, are calling for ecocide to be recognised as an international crime under the Rome Statute.  At present, there is no indication from the ICC that it will revisit its 1998 decision not to accept the proposal for destruction of the environment to be included in the Rome Statute.

International criminal liability for corporate actors

At the international level

The ICC only has jurisdiction over natural persons, and is therefore unable to prosecute corporates for core international crimes. This was also the case for other international criminal tribunals, such as those for Rwanda (the "ICTR") and the former Yugoslavia (the "ICTY")

However, corporate executives can and have been tried for core international crimes before such international tribunals. For example, a trial of Rwandan businessman Félicien Kabuga, accused of being a main financier of the Rwandan genocide, commenced in September last year before the International Residual Mechanism for Criminal Tribunals (the successor body to the ICTR and ICTY, the “IRMCT”), although the Appeals Chamber of the IRMCT has since declared Kabuga unfit to stand trial. According to the indictment against Kabuga, he had agreed with others to disseminate an anti-Tutsi message through a radio station he founded with the goal to eliminate the Tutsi ethnic group in Rwanda. Media executives have previously been convicted for genocide at the ICTR on similar grounds.

Similarly, in a now-terminated case before the ICC, corporate executive Joshua Arap Sang was charged with three counts of crimes against humanity for the role he played during the 2007 to 2008 post-election violence in Kenya. Sang was accused of having contributed to the commission of crimes against humanity by (among other things) inciting violence in his capacity as a key radio broadcaster at Nairobi radio station Kass FM. The case against Sang has been described as one in which Kass FM was put “on the road to a criminal trial” through the prosecution of one of its corporate executives.

At the domestic level

Corporate executives have also been pursued at the domestic level for complicity in core international crimes. The charges brought against Ian Lundin and Alex Schneiter (the defendants in the Lundin trial) relate to war crimes allegedly carried out by the Sudanese army and allied militia in southern Sudan from 1999 to 2003.

Two other high profile cases in which corporate executives have been found guilty of complicity in core international crimes were heard before Dutch courts. In 2009, the Dutch Supreme Court upheld a war crimes conviction against businessman Frans van Anraat for the selling of chemicals (which went on to be used in the production and use of poisoned gas) to the government of Saddam Hussein during the Iraq-Iran war. In 2017, the Dutch Court of Appeal issued a decision holding the president of a timber company, Guus Kouwenhoven, responsible as an accessory to war crimes committed in Liberia and parts of Guinea between 2000 and 2002.

Furthermore, recent legal developments in France suggest there may be scope at the domestic level for corporates themselves to be held accountable for core international crimes. For example, a French appeals court confirmed last year that charges could be brought against cement company Lafarge for complicity in crimes against humanity committed by ISIS and other armed groups in Syria. A month later, three NGOs filed a lawsuit at a Paris court against French companies Dassault Aviation, Thales and MBDA France for alleged complicity in war crimes in Yemen after selling weapons to Saudi Arabia and the UAE.

The war in Ukraine has increased interest in corporate accountability for core international crimes. Commentators have called for consideration of commercial actors’ potential liability for core international crimes committed during the Ukraine war, and in October last year two NGOs filed a complaint in France against TotalEnergies for alleged complicity in war crimes: the NGOs accused the company of having operated a gas field that manufactures kerosene used by Russian war planes. The complaint was dismissed by a French court earlier this year.

Corporate accountability for core international crimes in the UK

The core international crimes of genocide, crimes against humanity and war crimes, as defined in the Rome Statute, have been incorporated into the laws of England and Wales by way of the International Criminal Court Act 2001 (the “2001 Act”). The war crimes team of the Metropolitan Police Counter Terrorism Command is responsible for the investigation of core international crimes.

Liability of corporates

The Rome Conference to adopt the Statute of the ICC considered granting the court jurisdiction to try legal persons for the core international crimes however the proposal failed.  Accordingly, the language in the 2001 Act and related case law suggest that only natural persons can be held liable for core international crimes under English law. For example, section 2 of the 2001 Act concerns the “arrest and surrender” of persons alleged to have committed ICC crimes, such crimes being defined as those over which the ICC has jurisdiction “in accordance with the ICC Statute” which, as above, only has jurisdiction over natural persons. Baroness Hale, in R (Gentle and Another) v. Prime Minister and Others confirmed that the 2001 Act provides for the “arrest and surrender of people accused of genocide, crimes against humanity and war crimes” (emphasis added). Similarly, the Geneva Convention Act and section 134 of the Criminal Justice Act 1988 are not designed to apply to legal persons; rather, individuals or state actors may be held liable - in the case of the Geneva Convention Act, state / armed actors for breaches of the Convention’s international legal standards for conduct in war, and in the case of the Criminal Justice Act, public officials or those acting in an official capacity, for committing the crime of torture. In light of the above, it appears unlikely that claimants would have success before English courts for claims against corporates for complicity in core international crimes, without legislative change or the development of customary international law.

Alternative routes to liability

In the face of growing calls in the UK for enhanced corporate accountability for human rights and environmental harms, claimants and prosecutors are exploring alternative routes to hold companies responsible, and are finding  alternative ways to pin liability to corporates and those that direct them. 

States have sought to hold corporates to account using alternatives to legal-person liability, such as creating liability for corporate executives.  The 2001 Act, for one, makes it an offence to commit one of its offences as a secondary party (for example, by aiding or abetting the commission of an offence, and/or concealing the commission of an offence).

Internationally, the OECD has noted[1] that 41 of the signatories to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions have developed their legal-person liability regimes since the Convention was signed in 1997. Likewise, the International Bar Association has noted that, in cases such as bribery and corruption, international standards require states to create liability regimes applying to legal persons – for example, citing Article 26 of the United Nations Convention against Corruption (2003) which does so for offences such as embezzlement of property, bribery and concealment. The UK Parliament is building on its legislation in this area with the Economic Crime and Corporate Transparency Bill which introduces reforms regarding criminal liability for corporates. We explore the implications of the bill in our publication here. These exceptions in the context of economic crimes to the general rule that legal persons are not criminally liable could in future be expanded or replicated in other areas.  

Some commentators have pointed out the inherent practical difficulties in proving intent on the part of corporate actors for the purposes of establishing international criminal liability. Nevertheless, other mechanisms for non-criminal accountability are being explored through national and international legislation and regulation is another way of closing the perceived accountability gap on both corporate liability and the responsibilities of senior executives, such as: 

• the EU Corporate Sustainability Reporting Directive (“CSRD”) – which applies to some UK companies with an EU nexus – requires that directors take matters such as human rights and climate into account when considering the best interests of the company;
•  the UN Working Group on Business and Human Rights (“UN Working Group”) 2022 guidance setting out obligations for companies to carry out heightened human rights due diligence when operating in conflict-affected areas; 
• the EU’s proposal for a directive on corporate sustainability due diligence will, if adopted, apply to companies meeting employee-number and turnover thresholds and be legally enforceable at EU and member-state levels (in contrast to UN Working Group guidance); and
• the UN is currently working on a proposal for a legally binding Business and Human Rights Treaty which, in its current form, would require signatory-states to establish a comprehensive and adequate system of liability of legal and natural persons who breach regulations designed to prevent and address business-related human rights abuses.

Takeaways

Corporate accountability for core international crimes remains a nascent area of international criminal jurisprudence, especially insofar as the liability of businesses (as opposed to individual criminal responsibility) is concerned.

Nevertheless, as domestic cases such as those heard in the French courts indicate, there may be scope to hold corporates to account for complicity in crimes of this type, in addition to corporate executives. Although the extent to which this becomes a reality (both in the UK and abroad) remains to be seen, this is certainly an avenue that may be explored in future. In the meantime, companies and their senior executives should be fully aware of the alternative mechanisms being put in place for corporate accountability. 

[1] The Liability of Legal Persons for Foreign Bribery: A Stocktaking Report (2016)