Corporate civil liability for violations of international humanitarian law

International Review of the Red Cross

Volumn 88, Issue 863, 2006, Pages 665-691

  Mongelard, Eric ^a  

^a University Centre for International Humanitarian Law   (United States)

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EID: 85021879870     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S181638310700077X     Document Type: Article

References (117)

1. “Colombia: Human rights concerns raised by the security arrangements of transnational oil companies”, Human Rights Watch, (consulted on 28 May 2006).
2. BBC, “Fuelling the war: diamonds and oil”, 28 January 1999, (consulted on 28 May 2006).
3. “Today one can regard responsibility as a general principle of international law, a concomitant of substantive rules and the supposition that acts and omissions may be categorized as illegal by reference to the rules establishing rights and duties”, I. Brownlie, Principles of Public International Law, 6th edn, Oxford University Press, Oxford, p. 420.
4. See also Q. D. Nguyen, P. Dallier and A. Pellet, Droit international public, Paris, LGDJ, p. 762: “Tout ordre juridique suppose que les sujets engagent leur responsabilité lorsque leurs comportements portent atteinte aux droits et intérêts. Cette idée est équitable et irréfutable.”
5. Case concerning the Factory at Chorzów, Permanent Court of International Justice, 1927: “It is a principle of international law that the breach of an engagement involves an obligation to make reparation in adequate form”
6. Corfu Channel Case, [1949] ICJ Rep., p. 23: “these grave omissions involve her [Albania's] international responsibility. The Special Agreement asks the Court to say whether, on this ground, there is “any duty” for Albania “to pay compensation” to the United Kingdom. … The Court answered in the affirmative.”
7. Adopted in 2001, annexed to General Assembly Resolution 56/83, A/RES/56/83.
8. Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907.
9. The report of the Second Committee which studied this article reveals that Germany's proposal (future Article 3) was to extend to international law, for all violations of the Hague Regulations, the private law principle to the effect that a principal is responsible for his subordinates or his agents. This principle appears to have been accepted, since, according to the report, Germany's proposal went unopposed. F. Kalshoven, “State responsibility for warlike acts of the armed forces”, International and Comparative Law Quarterly, Vol. 40, 1991, p. 832.
10. “No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.” Article 51, Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949
11. Article 52, Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949
12. Article 131, Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949
13. Article 148, Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949. The authors' intention in including this provision was not to repeat Article 3 of the Hague Convention but to specify that compliance with the obligation to prosecute the perpetrators of serious breaches did not relieve states of their obligations under Article 3 of the Hague Convention.
14. P. Muchlinski, “Human rights and multinationals: is there a problem?”, International Affairs, Vol. 77, 2001, p. 31.
15. Louis Henkin argues that the expression “every organ of society” used in the Preamble to the Universal Declaration of Human Rights includes legal persons, and hence companies, and that the Universal Declaration therefore applies to them. Cited in Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies, International Council on Human Rights Policy, Versoix, 2002, p. 58.
16. Committee on Economic, Social and Cultural Rights General Comment 12: The right to adequate food, 12/05/1999, E/C.12/1999/5.
17. E.g. the International Military Tribunals for Germany (Nuremberg) and the Far East (Tokyo) and the adoption of the four 1949 Geneva Conventions, which include an article on criminal prosecution of those who commit grave breaches of the Conventions.
18. The International Criminal Tribunal for the former Yugoslavia was set up pursuant to Security Council Resolutions 808 and 827 (S/RES/808 and S/RES/827)
19. the International Criminal Tribunal for Rwanda pursuant to Resolution 955 (S/RES/955).
20. B. Stephen, “The amorality of profit: transnational corporations and human rights”, Berkeley Journal of International Law, Vol. 20, 2002, p. 69.
21. International Convention on Civil Liability for Oil Pollution Damage (CLC), 29 November 1969.
22. A. Clapham, “The question of jurisdiction under criminal law over legal persons: lessons from the Rome Conference on an International Criminal Court”, in Menno T. Kamminga and Saman Zia-Zarifi, Liability of Multinational Corporations under International Law, Kluwer Law International, The Hague, 2000, p. 178.
23. See also B. Stephen, above note 22, p. 70.
24. Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the Governing Board of the International Labour Organization at its 204th Session (Geneva, November 1977). See in particular Article 8.
25. OECD Guidelines for Multinational Enterprises, para.1. See also Policy Brief: The OECD Guidelines for Multinational Enterprises: A Key Corporate Responsibility Instrument, OCDE, September 2003, available at (consulted 7 February 2006).
26. Policy Brief: The OECD Guidelines for Multinational Enterprises: A Key Corporate Responsibility Instrument, para. 3.
27. Policy Brief: The OECD Guidelines for Multinational Enterprises: A Key Corporate Responsibility Instrument, para. 18: “Transnational corporations and other business enterprises shall provide prompt, effective and adequate reparation to those persons, entities and communities that have been adversely affected by failures to comply with these Norms through, inter alia, reparations, restitution, compensation and rehabilitation for any damage done or property taken.”
28. Policy Brief: The OECD Guidelines for Multinational Enterprises: A Key Corporate Responsibility Instrument, Principles 1 and 3.
29. Policy Brief: The OECD Guidelines for Multinational Enterprises: A Key Corporate Responsibility Instrument, Principle 17.
30. P. Lewis and H. Friman, “Reparations to victims”, in R. S. Lee, The International Criminal Court, Transnational Publishers, Ardsley, 2001, p. 483.
31. The International Criminal Court, pp. 474–5.
32. For greater detail on the course of those negotiations and the French proposal, see A. Clapham, “The question of jurisdiction under criminal law over legal persons”, in Kamminga and Zia-Zarifi, above note 27.
33. Prosecutor v. Anto Furundzija, IT-95–17/1-T, Trial Chamber II, 10 December 1998, para. 227.
34. Allied Control Council, Law No 10, 20 December 1945.
35. Trial of Friedrich Flick and Five Others, US Military Tribunal, Nuremberg, 20 April–22 December 1947
36. Law Reports of the Trials of War Criminals, Vol. IX, pp. 1–68
37. The I.G. Farben Trial, Trial of Carl Krauch and Twenty-two Others, US Military Tribunal, Nuremberg, 14 August 1947–29 July 1948
38. Law Reports of the Trials of War Criminals, Vol. X, pp. 1–68
39. The Krupp Trial, Trial of Alfried Felix Alwyn Krupp von Bohlen und Halbach and Eleven Others, US Military Tribunal, Nuremberg, 14 August 1947–29 July 1948
40. Law Reports of the Trials of War Criminals, Vol. X, pp. 69–181.
41. A. Ramasastry, “Corporate complicity: from Nuremberg to Rangoon – an examination of forced labor cases and their impact on the liability of multinational corporations”, Berkeley Journal of International Law, Vol. 20, 2002, p. 109.
42. Trials of War Criminals before the Nuremberg Military Tribunals, Vol. IX, United States Government Printing Office, Washington, 1950, p. 1351.
43. Trials of War Criminals before the Nuremberg Military Tribunals, pp. 1351–1352.
44. Trials of War Criminals before the Nuremberg Military Tribunals, p. 1370 (emphasis added).
45. Ramasastry, above note 46, p. 112.
46. The Krupp Trial, above note 47, p. 1412.
47. Ramasastry, above note 46, p. 112.
48. The I.G. Farben Trial, Trial of Carl Krauch and Twenty-two Others, above note 45, pp. 53–61.
49. Trials of War Criminals before the Nuremberg Military Tribunals, Vol. VIII, above note 47, p. 1141 (emphasis added).
50. “Such action on the part of Farben constituted a violation of rights of private property, protected by the Laws and Customs of War” (emphasis added), Trials of War Criminals, above note 47, p. 1140.
51. “Where private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action not being expressly justified by any applicable provision of the Hague Regulations, is in violation of international law. … Where a private individual or a juristic person becomes a party to unlawful confiscation of public or private property by planning and executing a well-defined design to acquire such property permanently, acquisition under such circumstances subsequent to the confiscation constitutes conduct in violation of the Hague Regulations” (emphasis added), Trials of War Criminals, p. 1132.
52. Clapham, above note 27, p. 169.
53. Trials of War Criminals, p.171
54. Ramasastry, above note 46, p. 107.
55. J. L. Baudouin, La responsabilité civile, 4th edn, Les Éditions Yvon Blais, Cowansville, 1994, p. 342. This principle is codified in almost all civil-law systems; see for example Article 2049 of the Italian Civil Code.
56. “As with natural persons, the corporate employer will be held responsible where an agent's tortious act is committed within the scope of the agent's authority and in the course of the agent's employment.” B. Stephen, “Corporate accountability: International human rights litigation against corporations in US courts”, in Kamminga and Zia-Zarifi, above note 27, p. 219.
57. See also V. Oosterveld. and A. C. Flah, “Holding leaders liable for torture by others: command responsibility and respondeat superior as frameworks for derivative civil liability”, in C. Scott, Torture as Tort, Hart Publishing, Oxford, 2001, pp. 450–1.
58. Baudouin, above note 62, p. 353.
59. Torture as Tort, pp. 361–3.
60. Torture as Tort, pp. 383–6.
61. Torture as Tort, p. 375.
62. Torture as Tort, pp. 373–4.
63. W. A. Schabas, “Enforcing international humanitarian law: Catching the accomplices”, International Review of the Red Cross, Vol. 83, No. 842, June 2001, pp. 447–8.
64. Beyond Voluntarism, above note 16, p. 126.
65. Restatement (Second) of Torts 877 (1965), cited in C. Shaw, “Uncertain justice: Liability of multinationals under the Alien Tort Claims Act”, Stanford Law Review, Vol. 54, 2002, p. 1382.
66. The Alien Tort Claims Act (hereinafter ATCA) allows a foreign national to bring a civil suit against a party that has caused damage resulting from a breach of international law. “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350.
67. Doe v. Unocal Corp., 110 F. Supp. 2d. 1294 (C.D. Cal. 2000), US Federal District Court, judgment of 31 August 2000.
68. D. Betz, “Holding multinational corporations responsible for human rights abuses committed by security forces in dcnflict-rdden nations: an argument against exporting federal jurisdiction for the purpose of regulating corporate behavior abroad”, DePaul Business Law Journal, No. 14, 2001, p. 176.
69. DePaul Business Law Journal, p. 177.
70. Doe v. Unocal Corp., U.S. Court of Appeals for the Ninth Circuit, Judgment of 18 September 2002.
71. T. Garmon, “Domesticating international corporate responsibility: holding private military firms accountable under the Alien Tort Claims Act”, Tulane Journal of International and Comparative Law, Vol. 11, 2003, pp. 347–8.
72. Garmon, above note 78, p. 348.
73. Presbyterian Church of Sudan v. Talisman Energy, 244 f. Supp. 2d 289, US District Court for the Southern District of New York, 19 March 2003.
74. f. Supp. 2d, p. 320.
75. f. Supp. 2d.
76. Arguing that new standards had been set by the Supreme Court decision in the Alvarez-Machain case (Sosa v. Alvarez-Machain et al., 542 US Supreme Court, 29 June 2004), Talisman sought relief of this decision by contending that the existence of secondary liability in particular aiding and abetting liability was not supported by sufficient evidence and that the concept was not sufficiently defined in international law.
77. The District Court rejected the arguments by upholding the 2003 decision that found that secondary liability existed in international law. Furthermore, the court found that Talisman's claim that aiding and abetting was not sufficiently defined in international law, as required by the Alvarez-Machain case, was misguided. Presbyterian Church of Sudan v. Talisman Energy, 374 f. Supp. 2d 331, US District Court for the Southern District of New York, 13 June 2005.
78. Beyond Voluntarism, above note 16, p. 130.
79. “[I]t would be unacceptable if a victim could claim damages only from the officer or soldier guilty of the infraction”, cited in Kalshoven, above note 10, p. 834.
80. “If in this case the persons injured as a consequence of a violation of the Regulations could not demand reparation from the Government and were obliged to look to the officer or soldier at fault they would fail in the majority of cases to obtain the indemnification due”, cited in Pierre D'Argent, Les Réparations de guerre en droit international public: la responsabilité internationale des Etats à l'épreuve de la guerre, Brussels, Bruylant, 2002, p. 508. These two statements, which went unchallenged, demonstrate by their wording and the use of the terms “victims” and “persons injured” that the parties wished to confer the right to reparation on individuals and not on the states.
81. In both cases, each plaintiff claimed compensation of US$22,000 for damage resulting from ill-treatment inflicted by the Japanese army. The fact that the victims had suffered ill-treatment was not contested. The main question was whether or not the victims had a right of redress. Arthur Titherington and others v. State of Japan, Civil Division No. 31, Tokyo District Court, 26 November 1998
82. Sjoerd Lapré v. State of Japan, Civil Division No. 6, Tokyo District Court, 30 November 1998
83. cited in Fujita Hisaku, Suzuki Isomi and Nagano Kantoro, War and the Rights of Individuals: Renaissance of Individual Compensation, Nippon Hyoron-sha, Tokyo, pp. 104, 118.
84. “Article 3 of the Hague Convention is nothing more than a provision which clarifies a state's international liability to compensate a victim nation for violations of the Hague Regulations …. And in the courts of Japan, individuals suffering injury from conduct of members of armed forces who violate international humanitarian law may not seek compensation from the country of their violator.” Sjoerd Lapré v. State of Japan, War and the Rights of Individuals: Renaissance of Individual Compensation, p. 124.
85. Shimoda case, 7 December 1963, Japanese Annual of International Law, Vol. 8, 1964.
86. Hisaku Fujita, “Introduction: post-war compensation litigation from the viewpoint of international law”, in Hisaku et al., above note 87, p. 19.
87. Goldstar (Panama) S.A. v. United States, US Court of Appeals 16 June 1992, International Law Reports, 96, 1992, p. 58.
88. See also Hugo Prinz v. Federal Republic of Germany, Court of Appeals for the District of Columbia 1 July 1994, International Legal Materials, 33, 1994, p. 17: “nothing in the Hague Convention, even implied, grants individuals the right to seek damages for violations of its provisions.”
89. “The law of nations generally does not create private clauses of action to remedy its violations, but leaves to each nation the task of defining the remedies that are available for international law violations.” Kadic v. Karadzic, 70 F. 3d 232, 1995, p. 246.
90. Prefecture of Voiotia v. Federal Republic of Germany, Case No. 137/1997; Court of First Instance of Leivadia, 30 October 1997, American Journal of International Law, Vol. 92, 1997, p. 767.
91. Prefecture of Voitotia v. Federal Republic of Germany, Case No. 11/2000, Areios Pages, 4 May 2000, American Journal of International Law, vol 95, 2001, p. 203.
92. “[C]'est donc la violation de la conduite jugée acceptable législativement ou jurisprudentiellement qui emporte l'obligation de réparer le préjudice causé”. Baudouin, above note 62, p. 82. This definition is similar to that given by a number of French legal authors.
93. E.g. in Canada, Article 3 of the Geneva Conventions Act, note 113: “Every person who, whether within or outside Canada, commits a grave breach ….is guilty of an indictable offence….”
94. in India, Article 3, Chapter II, of the 1960 Geneva Conventions Act.
95. “[O]bligation spécifique imposée par la loi ou le règlement, surtout si elle est intentionnelle, constitue en principe une faute civile, puisqu'il y a alors violation d'une norme de conduite impérativement fixée par le législateur”. Baudouin, above note 62, pp. 91–92.
96. R. v. Saskatchewan Wheat Pool, [1983] Supreme Court of Canada, 1 RCS 205.
97. E. M. Hyland, “International human rights law and the tort of torture: what possibility for Canada?”, in Scott, above note 63, pp. 413–14.
98. See the analysis of the judgments in Kamloops (City) v. Nielsen, [1984] Supreme Court of Canada, 2 RCS 2
99. Ryan v. Victoria (City) [1999] Supreme Court of Canada, 1 RCS 201
100. in C. Forcese, “Deterring “militarized commerce”: the prospect of liability for “privatized” human rights abuses”, Ottawa Law Review, Vol. 31, 1999/2000, pp. 209–10.
101. Hyland, above note 102, pp. 411–13. In his exploration of the question, the author cites Professor Prosser on the creation of torts: “There is no necessity whatever that a tort must have a name. New and nameless torts are being recognised constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none has existed before … [T]he law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy.”
102. In Quebec civil law, this rule is to be found in Article 3126 of the Quebec Civil Code: “The obligation to make reparation for injury caused to another is governed by the law of the country where the injurious act occurred.” For a long time the courts in common-law jurisdictions had tended to take the opposite approach, applying lex fori, i.e. the local law of the court. However, in Canada, the Supreme Court's Tolofson105 judgment clearly indicated that the rule to be followed was that of lex loci delicti. In England, the Private International Law Act passed in 1995 also established this rule for questions of conflict of laws.
103. International Business Machines Corporations (IBM) contre Gypsy International Recognition and Compensation Action (GIRCA), Arrêt du Tribunal Fédéral Suisse, 4C.296/2004 du 22 décembre 2004. In this case the Swiss Supreme court upholds the finding by the Geneva appeals court that Geneva courts have jurisdiction to hear the case because there exists the likelihood that preparatory acts of complicity for genocide were committed by IBM at its European Headquarters in Geneva.
104. A. C. McConville, “Taking jurisdiction in transnational human rights tort litigation: Universality jurisdiction's relationship to ex juris service, forum non conveniens and the presumption of territoriality”, in Scott, above note 84, p. 161: “This “jurisdiction as of right” extends to defendants who are not residents but are physically present in England, even on a transient basis.”
105. See Kadic v. Karadzic, above note 92, p. 238. In this case the defendant was notified of the suit in 1993 in the lobby of a New York hotel while Karadzic was in New York for discussions at the UN.
106. J. L. Heil, “African private security companies and the Alien Tort Claims Act: could multinational oil and mining companies be liable?”, Northwestern School of Law Journal of International Law & Business, Vol. 22, 2002, p. 306.
107. Alien Tort Claims Act, 28 United States Code section 1350 (1789).
108. Filatiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
109. B. Stephen, “Translating Filartiga: a comparative and international law analysis of domestic remedies for international human rights violations”, Yale Journal of International Law, Vol. 27, 2002, pp. 11–12.
110. Yale Journal of International Law, pp. 329–30.
111. See also the analysis of the Second Circuit in Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88, Second Circuit, 2000.
112. Recherches internationales Québec v. Cambior, Superior Court, 1998, JE 98 1905.
113. A. Durocher, “Revue de la jurisprudence en droit de l'environnement en 1998”, Revue juridique Thémis, Vol. 34, 2000, p. 909.
114. Forcese, above note 103, p. 206.
115. Presbyterian Church of Sudan v. Talisman Energy, above note 81, pp. 335–6.
116. Revue juridique Théemis, p. 337. On the issue of the severity of torts the Court stated that “While plaintifs may be able to obtain the same relief in Canadian courts that they seek in this jurisdiction, it is evident from the affidavits provided that Canadian courts will only be able to treat plaintiffs' allegations as violations of Canadian, rather than international law. Because this treatment fails to recognize the gravity of the plaintiffs' allegations, the Court questions whether Canadian courts would be adequate alternative fora.”
117. Revue juridique Théemis, pp. 337–41.