Corporate liability for international crimes under Canada's crimes against humanity and war crimes act

Journal of International Criminal Justice

Volumn 7, Issue 1, 2009, Pages 201-221

  Wanless, W Cory ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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[No Author keywords available]

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EID: 65149097900     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqp006     Document Type: Article

References (127)

1. Letter to Unocal from Total's Herve Chagnoux explaining his answers to questions by the press, Doe I v. Unocal Corp., 395 F.3d 932,942 (9th Cir. 2002).
2. This journal has devoted a Workshop, held in May 2008 in Florence, to this matter. See papers by A. Clapham, 'Extending International Criminal Law beyond the Individual to Corporations and -Armed Opposition Groups', and T. Weigend, 'Societas delinquere non potest? A German Perspective', and the edited, annotated transcript of the Discussion which followed published in 6 Journal of International Criminal Justice (2008) 899-981.
3. M.C. Bassiouni, Introduction to International Criminal Law (Ardsley, New York: Transnational Publishers, 2063), 57, 82-84.
4. It may nonetheless be noted that Art. 9 of the Nuremburg Charter specified that '[at] the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization'. (emphasis added)
5. Art. 6 Charter of the International Military Tribunal; Art. 6 ICTYSL; Art. 15 ICTR St.; the Special Court for Sierra Leone may be a notable exception, providing for jurisdiction over 'persons who bear the greatest responsibility' without qualification as to the sort of person. As of early 2007, no corporations had been charged. It has been suggested that the penalties provided for by Art. 19, specifically the punishment of imprisonment, implies that the Statute applies to natural persons only. Article 19(3). however, allows that the 'Trial Chamber may order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct': A provision that could provide an effective remedy against a corporation. Articles 1 and 19 SCSLSt.
6. A. Clapham, 'The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons Learned from the Rome Conference on an International Criminal Court', in M.T. Kamminga and S. Zia-Zarifi (eds), Liability of Multinational Corporations Under International Law (The Hague: Kluwer Law International, 2000), 139-195, at 146-458 (hereafter,'Clapham, Lessons').
7. Ibid., at 139-140.
8. See also J. Kyriakakis, 'Australian Prosecution of Corporations for International Crimes: The Potential of the Commonwealth Criminal Code',5 JICJ (2007) 809-826.
9. For the purposes of this section, words such as 'involvement, 'associated with' and 'complicit will be used in their colloquial rather than their legal sense. The question of whether or not a corporation should be legally liable for any of the mentioned acts, will be deferred for now, the purpose of this section is not to define how much involvement is necessary before legal or moral censure is appropriate, but rather to suggest that corpotations have engaged in activities that may warrant further attention to determine if legal liability is appropriate.
10. The examples used in this article are largely confined to human rights abuses that are also breaches of international criminal law and are meant to be illustrative rather than exhaustive. For a discussion of business and human rights, see generally. Human Rights Watch and Centre for Human Rights and Justice, On the Margins of Profit: Rights at Risk in the Global Economy Vol. 20, No. 3(G). February 2008, available at: http://hrw.org/reports/2008/bhr0208/ (visited 4 November 2008).
11. See Amnesty International, Blood Diamonds are Still a Reality available at: http://web.amnesty.org/pages/ec-230107-feature-eng (visited 4 November 2008)
12. see also A. Ganesan and A. Vines 'Engine of War: Resources, Greed, and the Predatory State', in Human Rights Watch World Report 2004: Human Rights and Armed Conflict (New York: Human Rights Watch, 2004) 301-315, at 302-303.
13. Dutch businessman Guss van Kouwenhoven was found guilty by a court of first instance, but acquitted on appeal. BBC News, Profile: Guus van Kouwenhoven, available at: http://news. bbc.co.uk/1/hi/world/africa/ 5055442.stm (visited 8 February 2009).
14. Human Rights Watch, D.R. Congo: Gold Fuels Massive Human Rights Atrocities - Leading International Corporations Established Links to War Lords (2 June 2005), available at: http://hrw.org/english/docs/2005/ 06/02/congo11041.htm (visited 4 November 2008).
15. Clapham, Lessons, supra note 6, at 148.
16. G. Gagnon, A. Macklin and P. Simons, Deconstructing Engagement (2003), available. at http://www.law.utoronto.ca/documenta/Mackin/ DeconstructingEngagement.pdf (visited 4 November 2008).
17. R. Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2007), 127.
18. Art. 17 ICCSt.
19. see e.g. J.T. Holmes, 'Complementarity: National Courts versus the ICC', in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002) 667-686.
20. Bassiouni, supra note 3, at 712
21. see also A. Reggio, 'Aiding and Abetting in International Criminal Law: The Responsibility of Corporate Agents and Businessmen for "Trading with the Enemy" of Mankind', 5 International Criminal Law Review (2005) 623-696, at 695
22. and W. Schabas, 'Enforcing International Humanitarian Law: Catching the Accomplices', 83 International Review of the Red Cross (2001) 439-456, at 454.
23. Preamble, Art. 1 ICCSt.
24. It should, however, be noted that this notion has also been heavily criticized by commentators as well as by some states.
25. J. Currie, Public International Law (Toronto: Irwin Law, 2001), 293-307.
26. See e.g. Cryer et al., supra note 15, at 44.
27. D. Robinson, 'The Rome Statute and its Impact on National Law', in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. 2 (Oxford: Oxford University Press, 2002) 1849-1870, at 1863.
28. M. Delmas-Marty, 'The ICC and the Interaction of International and National Legal Systems', in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. 2 (Oxford: Oxford University Press, 2002) 1915-1930, at 1919.
29. Department of Foreign Affairs and International Trade, 'Canada's Crimes Against Humanity and War Crimes Act', available at http://www.international.gc.ca/foreign_policy/icc/warCrimes-en.asp (visited 4 November 2008).
30. CAHWCA, R.S.C. 2000, c. 24 (Canada). The full title of CAHWCA is 'An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts.'
31. Interpretation Act, R.S.C. 1985, c. I-21, (Canada), §34.2.
32. CAHWCA, supra note 25, Art. 2(2).
33. Criminal Code, R.S.C. 1985, c. C-46 (Canada), §21 (hereafter, 'Criminal Code').
34. K. Roach, Criminal Law (3rd edn.,Toronto: Irwin Law, 2004), 128-129.
35. R v. Greyeyes [1997] 2 S.C.R (Canada), §26.
36. Ibid.
37. E. Colvin and S. Anand, Principles of Criminal Law (3rd edn.,Toronto: Thomson Carswell, 2007), 179-180.
38. R. v. Finta [1994] 1S.C.R.701 (Canada), at 815
39. see also R. v. Logan [1990] 2 S.C.R.731 (Canada). The Supreme Court of Canada has held that corporations may avail themselves of any Charter argument available to natural persons: R. v.Wholesale Travel Group Inc. [1991] 3 S.C.R. 154.
40. Canadian courts have held that while the legislation states that an aider is someone who 'does or omits to do anything for the purpose of aiding any person to commit it','for the purpose of' is synonymous with the concept of intent generally: R. v. Hibbert [1995] 2 S.C.R. 973, §31.
41. The mens rea requirement for aiding and abetting is not higher than that of principle offenders: Colvin and Anand, supra note 32, at 568-569.
42. In Canadian law, intent is distinct from motive: R. v Hamilton [2005] 2 S.C.R. 432.
43. Mugesera v. Canada (Minister of Citizenship and Immigration) [2005] 2 S.C.R. 91, §§ 153-176.
44. Objective states of fault such as recklessness do not meet the requirements of the Canadian Charter of Rights and Freedoms, see Finta, supra note 33, at 818-819.
45. The Supreme Court of Canada has defined wilful blindness as 'deliberately choosing not to know something when given reason to believe further inquiry is necessary': R. v. Jorgensen [1995] 4 S.C.R. 55, §102.
46. Wilful blindness is sufficient to fulfil the mens rea in the context of accessory to murder: R. v. Duong (1998) 124 C.C.C. (3d) 392, §21 (Canada).
47. R v.Yanover (1985), 9 O.C.A 93 (Ont. C.A) (Canada), §329.
48. Criminal Code, supra note 28, §2.
49. Roach, supra note 29, at 202-203
50. see also K. Howlett,'Westray Disaster Inspires Legislation',The Globe and Mail (13 June 2003), at B10
51. and T.L. Archibald, K.E. Jull and K. Roach, Regulatory and Corporate Liability (Release No. 2, Aurora, ON: Canada Law Book, 2007).
52. Criminal Code, supra note 28, §22.2.
53. CAHWCA, supra note 25, Art. 6.
54. See Archibald, supra note 38, §§5-18.
55. Criminal Code, supra note 28, §2.
56. Ibid.
57. Art. 11 ICCSt.
58. CAHWCA, supra note 25, Arts 6-7; the Act, however, does not provide for retrospective application of crimes committed inside Canada,
59. see W.A. Schabas and S. Beaulac, International Human Rights and Canadian Law (Toronto: Thompson Carswell, 2007), 242-243.
60. 'Historic Trial for 1994 Rwandan Genocide Begins in Quebec', The Globe and Mail (26 March 2007), at A10.
61. See e.g. Human RightsWatch, Burma: Entrenchment or Reform?, July 1995,Vol.7, No.10, available at: http://hrw.org/doc/ ?t=asia_pub&c=burma#P571_96739 (visited 23 April 2008)
62. and Amnesty International, Human Rights by Country - Myanmar, available at: http://www.amnesty.org/en/region/asia-and-pacific/ south-east-asia/myanmar (visited 23 April 2008).
63. See e.g. 'Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to Examine the Observance by Myanmar of the Forced Labour Convention, 1930 (No. 29)' GB.273/5/Comission Report, 2 July 1998 (hereafter, 'The Commission of Inquiry')
64. and 'Situation of Human Rights in Myanmar', GA Res. 50/194, 11 March 1996 (hereafter, 'GA Res.').
65. Doe I v. Unocal Corp., supra note 1.
66. See e.g. 'Unocal pays out on Burma "abuses"', BBC News (22 March 2005), available at: http://news.bbc.co.uk/2/hi/asia-pacific/ 4371995.stm (visited 23 April 2008).
67. Criminal Code, supra note 28, §22.2(c).
68. CAHWCA, supra note 25, Arts 4(1)(b) and 4
69. Criminal Code, supra note 28, §22.2(c).
70. Ibid., §2.
71. Doe I v. Unocal Corp., supra note 1, at 941.
72. GA Res., supra note 48.
73. The Commission of Inquiry, supra note 48.
74. For example, Jane Doe I alleged that she and her baby were thrown in a fire after her husband attempted to escape. This incident resulted in injuries to Jane Doe I and the death of her child, see Doe I v. Unocal Corp., supra note 1, at 937-940.
75. CAHWCA, supra note 25, Art. 6
76. see Doe I v. Unocal Corp., supra note 1, at 946-947.
77. The district court specifically held that '[t]he evidence does suggest that Unocal knew that forced labor was being utilized and that the Joint Venturers benefitted from the practice,' Doe I v. Unocal Corp., supra note 1, at 953.
78. Criminal Code, supra note 28, §2.
79. While both the President and the Vice President would be considered senior officers due to the very nature of their positions, whether or not Joel Robinson would qualify would depend on whether or not he was responsible for managing an important aspect of the organization's activities. As on-site representative, it is likely that he indeed would have been responsible for managing much of what occurred on the ground in Myanmar and thus would be considered a senior officer as defined in the Criminal Code.
80. Doe I v. Unocal Corp., supra note 1, at 940-941.
81. The court record does not indicate who these consultant reports were actually sent to; if they were not sent to one of these three managers, the mens rea requirement would not be fulfilled: ibid.
82. Ibid., at 942.
83. Ibid., at 973.
84. Ibid., at 939.
85. Criminal Code, supra note 28, §§21.1 and 22.2(b).
86. Doe I v. Unocal Corp. supra note 1, at 939 (square brackets in the original).
87. R. v. Jorgensen, supra note 35.
88. Ibid.
89. Doe I v. Unocal Corp., supra note 1, at 941 (emphasis in the original).
90. Cryer et al., supra note 15, at 48-52.
91. Department of Foreign Affairs and International Trade, supra note 24
92. see also ibid., at 50.
93. Citizenship Act, R.S.C 1985, c. C-29
94. Criminal Code, supra note 28.
95. Ibid., Art. 8(b).
96. See generally J. Brunnée and S.J. Toope, 'A Hesitant Embrace: The Application of International Law by Canadian Courts', 40 The Canadian Yearbook of International Law (2002) 3-60.
97. Mugesera, supra note 35, §126.
98. Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No.10, Vol. VI (Buffalo: William S. Hein and Co, 1997) (hereafter, 'Flick')
99. Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol.VIII (Buffalo: William S. Hein and Co, 1997) (hereafter, 'I.G. Farben')
100. Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. IX, Part II (Buffalo: William S. Hein and Co, 1997) (hereafter, 'Krupp').
101. Ibid.
102. I.G. Farben, supra note 79, at 1131-1132 (emphasis added).
103. Krupp, supra note 79, at 1448 (emphasis added).
104. International Convention on the Crime of Apartheid, 30 November 1973, 1015 UNTS 243, Art. 1(2).
105. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes, 22 March 1989, 1673 U.N.T.S. 126, Arts 2(14) and 7
106. United Nations Convention Against Corruption, GA Res. 58/4, 31 October 2003, Art. 26
107. the basic argument is from Clapham, Lessons, supra note 6, at 172-178.
108. Nat'l Coalition Gov't of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329, at 349-350.
109. Clapham, Lessons, supra note 6, at 191.
110. See e.g. Control Council Law No. 10, Art. II(2) available at http://www.yale.edu/lawweb/avalon/imt/imt10.htm (visited 24 April 2008)
111. see also Reggio, supra note 17, at 629-633.
112. Flick, supra note 79, at 1217.
113. The United Nations War Crimes Commission, Law-Reports of Trials of War Criminals, Vol. I (London: HMSO, 1947).
114. Convention on the Prevention and Punishment of Genocide, 9 December 1948, 78 UNTS 277, Art. 3(e)
115. Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 Art. 4(1)
116. Convention on the Suppression and Punishment of the Crime of Apartheid, Art. 3
117. Art. 25(3)(c) ICCSt.
118. Art. 41 ICTYSt.
119. Art. 42 ICTRSt
120. Art. 43 SCSLSt.
121. Judgment, Furundžija (IT-95-17/1-T), Trial Chamber, 10 December 1998, §§ 190-226.
122. Ibid., §§ 235 and 249.
123. Judgment, Tadić (IT-94-1-T), Trial Chamber, 7 May 1997, §§678 and 691.
124. Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, §423.
125. Doe I v. Unocal Corp. supra note 1, at 949-951.
126. Ibid., at 947.
127. Ibid., at 953.