Mapping a responsibility of corporations for violations of international humanitarian law sailing between international and domestic legal orders.

• Author: Bismuth, Regis
• Position: Company overview

1. INTRODUCTION

   "I never had dinner with a legal person--Neither did I, although I often saw it paying the bill." (1) This aphorism, part of the classics heard by every law student in France, remarkably encapsulates the genuine ambivalence of the concept and status of "legal persons." (2) This is more particularly the case with corporations, (3) which have become the main vehicles of human economic activities. As creatures of domestic law, corporations do not enjoy the plenary legal personality of natural persons, which is limited not only by the consent of their creators but also by the scope of rights and duties available for them in the domestic legal order from which they stem. The intense scholarly debate concerning the content of corporate legal personality, going far beyond the legal sphere, has highlighted a critical dividing line on the question of the existence of a moral dimension of corporations. Indeed, they are, for some, potentially "full-fledged moral persons," (4) while others consider that corporations "lack the emotional make-up that allows natural persons to show virtues and vices." (5) Besides, the lack of consensus on this issue--and therefore on a possibility of the existence of a mens rea of such entities--is reflected in the disparities among domestic laws on the criminal responsibility of corporations which, when existing, are often restricted to specific offenses and are triggered under specific conditions. (6)

   Beyond the issue of the criminal responsibility for the violations of domestic laws, recent developments have demonstrated the growing outreach of the international humanitarian law ("IHL") framework for corporations, and consequently its possible international criminal responsibility corollaries. Indeed, modern armed conflicts involve more and more non-state actors, notably private military forces, (7) but also implicate, although indirectly, traditional corporations carrying out economic activities, notably in the field of extraction and/or commercial exploitation of natural and mineral resources. (8) In these contexts, it is often the case that "financial gain ... may be either the cause of atrocities committed in conflicts or the reasons for their continuation." (9) Several acts conducted within the framework of business activities during an armed conflict may eventually fall under the scope of international humanitarian law and constitute war crimes. (10) A recent study of the ICRC mentions the following: unlawful taking of property, forced labor, displacement of populations, severe damage to the environment, and the manufacture and trading of prohibited weapons. (11) Although it should be mentioned that "transnational companies are not necessarily the worst perpetrators," (12) the trend of their involvement in contentious activities in the context of an ongoing armed conflict raises the legitimate question of the criminal responsibility of these legal entities, especially given that "accountability would be increased if it were possible to prosecute directly the companies participating in such atrocities." (13)

   Envisaging the criminal responsibility of corporations for grave violations of IHL necessarily implies a determination of whether they hold rights and duties under the international law of armed conflict. It should be pointed out beforehand that corporations are currently only legal creatures of domestic legal orders and they are not subjects of the international purely interstate legal system. States, however, may adopt norms of public international law recognizing such rights and duties to non-state actors. (14) This, for instance, is the case for corporations through the network of intemational investment agreements. (15) While the latter category recognizes rights to corporations, it is doubtful that IHL and international criminal law frameworks embed international duties weighing on domestic legal persons.

   On the basis of the foregoing, Part I will assess the existence of legal obligations under international law for corporations and will inquire into the possible channels for the recognition of their responsibility. This analysis will demonstrate that intemational law provides minimal and fragmented mechanisms of responsibility for violations of IHL by corporations. Domestic legal orders, however, offer a more appropriate and welcoming environment. Being creatures of and enjoying a broader legal personality under domestic law, corporations are subject not only to the purely national regulations but also to the international obligations inserted in domestic law, among which are those of IHL. Part II will consider this emerging application of fundamental IHL norms to corporations, and the litigation ensuing before domestic courts, with a special emphasis on the US Aliens Tort Claims Act.

2. THE MINIMAL RESPONSIBILITY OF CORPORATIONS FOR VIOLATIONS OF IHL IN THE INTERNATIONAL LEGAL ORDER

   Despite the growing presence of non-state actors in the majority of armed conflict, IHL remains a "state-based order" (16) and criminal responsibility mechanisms that have been established focus primarily on individuals, leaving no room for the recognition of violations of IHL by corporations at the international level (A). Beyond this structural lack of criminal accountability, alternative channels of responsibility need to be explored as they suggest a growing concern of the international community about the implications of corporations becoming increasingly involved in armed conflict (B).

   1. A Structural Unsuitability for Corporations to Be Held Responsible of Violations of IHL Before International Criminal Courts and Tribunals As mentioned above, the first step in the analysis requires determining the content of the international legal personality of corporations. In the Reparations case, the ICJ pointed out that "[t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights." (17) As a state centered legal system, States enjoy a plenary international legal personality (18) and "possess a general competence." (19) The content of the legal personality of other subjects of international law may, however, significantly vary from one to another. (20) When it comes to assessing the potential responsibility of corporations at the international level, it is necessary to determine the duties of corporations under the IHL framework (1) and the possible suitability of the existing international mechanisms of accountability for corporations (2).

      1. The Potential International Legal Personality of Corporations under IHL

         The respect of the core IHL instruments, i.e. the 1949 Geneva Conventions and the 1977 Additional Protocols, rests with the High Contracting Parties which have undertaken in common Article 1 "to respect and to ensure [their] respect for the present Convention[s] in all circumstances." (21) However, the fact that non-state actors are mentioned in other passages of these instruments does not ipso jure render them accountable for violations of IHL at the international level, (22) This is notably the case for serious violations of these Conventions since it is the duty of the High Contracting Parties to "enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches" of the fundamental rules of IHL, (23) the same breaches constituting war crimes under the Statute of the International Criminal Court ("ICC"). (24) Additional Protocol No. 1 ("AP(I)") does not mention the incriminations at the domestic level for these violations and, when providing that "[t]he High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches" (25) and that "grave breaches of these instruments shall be regarded as war crimes," (26) it offers an international incrimination for such violations, but without mechanisms of enforcement.

         Considering that the Conventions do not define the meaning of the term "persons," possibly indicating that it includes not only individuals but also legal persons, (27) and considering that AP(I) refers to "war crimes" without mentioning the nature of their authors, (28) it appears that these instruments do not explicitly preclude corporations bearing duties under IHL. Besides, an ICRC study points out that "although states and organized armed groups bear the greatest responsibility for implementing international humanitarian law, a business enterprise carrying out activities that are closely linked to an armed conflict must also respect applicable rules of international humanitarian law." (29) However, while corporations are likely to fall within the scope of IHL, these instruments do not implement mechanisms of enforcement for violations of these obligations. (30) We must therefore determine whether the responsibility of corporations may be held under the international criminal law framework, separately from IHL.

      2. The Nonexistent International Legal Personality of Corporations under International Criminal Law

         Although international criminal courts and tribunals have decided cases involving activities carried out by corporations, they have persistently refused to consider the possibility of the criminal responsibility of legal persons. Besides, this position has been integrated in the Statute of the International Criminal Court ("ICC") which does not contemplate corporate responsibility.

         Regarding the first generation of international criminal tribunals, it should be mentioned that the Charter of the Nuremberg International Military Tribunal ("IMT") had jurisdiction for "the trial and punishment of the major war criminals ... acting in the interests of the European Axis countries, whether as individuals or as members of organizations." (31) The responsibility of legal persons was therefore removed ab initio and, besides, the IMT...