The Responsibilities of Companies to Abide by International Criminal Law
IN recent years there has been much talk about governance gaps in relation to transnational corporations operating in the global marketplace. The argument is that incomplete regulation and a failure to enforce existing laws have resulted in impunity for companies that may have perpetrated, or assisted in, serious human rights abuses in the context of transnational operations.
Concerns regarding regulatory shortfalls have been driven in a large part by human rights abuses surrounding the extractive industries. Companies in those industries can find themselves working in close partnerships with state or private security forces in order to protect company assets in volatile local environments. These business-security partnerships have been coined 'militarized commerce.' Militarized commerce arrangements are ripe opportunities for companies to become involved in serious human rights abuses, willingly or otherwise - particularly where security partners have poor human rights records. Anvil Mining, for example, came under scrutiny in 2005 for making possible a military offensive in the Democratic Republic of the Congo by providing vehicles to soldiers, who are accused of committing executions, rapes, detentions and looting during the course of the offensive. Likewise, Shell Oil this year reached a US$15.5 million settlement in a civil case claiming the company had colluded in human rights abuses committed by the then Nigerian military regime abuses that culminated in the execution of a group of environmental activists in 1995.
The private security industry is also at the fore of debates regarding governance gaps, particularly as the presence and range of activities of private security firms in conflict settings increases. With international humanitarian law developed to address violence during both inter- and intrastate conflicts, questions have been posed as to where this leaves private security firms in relation to the laws of war. What is important for companies to now be aware of are the ways in which the governance gaps are closing.
With the advent of the International Criminal Court (ICQ, a new era in accountability is being heralded - at least in relation to those human rights abuses that constitute international crimes. International crimes include crimes of genocide, crimes against humanity and war crimes. Any individual, military or civilian, who commits or aids in an international crime is potentially accountable, either before the ICC or before national courts implementing international criminal law. It is this latter phenomenon - the growth in domestic implementation of international criminal law - that could turn out to be the most significant legacy of the ICC. Coinciding with the establishment of the ICC, countries around the world have introduced international crimes into national criminal laws and in doing so have ensured the competence of their national courts to hear cases involving international crimes. But unlike the ICC, many countries do not limit criminal responsibility to individuals but extend their criminal laws to include corporate entities. Australia provides one example of this trend, where national courts have been empowered to hear cases against companies for their part in international crimes.
In 2002 Australia introduced crimes of genocide, crimes against humanity and war crimes into its federal Criminal Code that are broadly equivalent to those within the competence of the ICC. As a matter of best policy, Australian federal criminal law applies equally to both individuals and corporate bodies. So with the advent of these laws, charges can in principle be brought against corporations for involvement in international crimes. The jurisdictional reach of the Australian international criminal laws is also very broad, in keeping with the international nature of the conduct under scrutiny. The laws confer universal jurisdiction, meaning that an action can be brought against any person or company, whether an Australian national or otherwise, for conduct committed anywhere in the world. …