Corporations and Criminal Responsibility: Holding Enterprises Accountable for Human Rights Violations Committed by States
Every individual has the right to human life, a principle found in every international human rights treaty, convention, and national constitution. Furthermore, every individual has the right to self-determination: the right to freely pursue his or her economic, social and cultural development.1 Nonetheless, these basic human rights are often violated by state actors in conjunction with corporate entities through forced labor, kidnapping, false imprisonment, genocide, sexual assault, and even murder. When enterprises knowingly assist states in committing human rights abuses, enterprises should be held criminally responsible under the aiding and abetting principle. Moreover, states should use the Nuremberg Charter, the International Criminal Tribunal of the Former Yugoslavia Statute, and the International Criminal Tribunal of Rwanda Statute as exemplary models when drafting state legislation to hold such corporations liable for their humanitarian crimes.
a. A Historical View of Personal Liability of Human Rights Violations
As a result of the systematic annihilation of approximately twelve million people by Nazi Germany, known as the Holocaust, victors of World War II, including the U.S., France, Great Britain, and the former Soviet Union, coordinated to develop the War Crimes Tribunal at Nuremberg, Germany in 1945.2 At Nuremberg, Nazi war criminals were prosecuted for the commission of crimes.3 The Nuremberg Charter established the legal basis for individual criminal responsibility under international law, which was composed of three categories of international crimes: crimes against peace, crimes against humanity, and war crimes.4
The War Crimes Tribunal not only indicted living military officials of the Nazi party, but also sought prosecution of industrialists whose businesses assisted the furtherance of Adolf Hitler’s programs and racial extermination agenda. Most notably included in these indictments were twenty-four executives of the German company, I.G. Farben, which allegedly contributed to Nazi Germany’s military-economic war preparations.5 On May 3, 1947, the indictment filed by the U.S. alleged the company and corporate executives’ involvement with the Nazi machine, accusing the board members of “planning, preparation, initiation and waging of wars of aggression and invasions of other countries; plunder and spoliation; and, slavery and mass murder.”6 The indictment further alleged that I.G. Farben was responsible for assisting Nazi soldiers at the Auschwitz extermination camp. According to author Joseph Borkin, “Farben, in complete defiance of all decency and human considerations, abused its slave workers by subjecting them, among other things, to excessively long, arduous, and exhausting work, utterly disregarding their health or physical condition. The sole criterion of the right to live or die was the production efficiency of said inmates.”7 Moreover, due to the large amounts of suicides and exterminations, sometimes accounting for over 100 deaths per week, I.G. Farben assuredly secured Auschwitz with a continuous supply of new inmates in order to maintain complete production, and manufactured the poisonous agents used for asphyxiating inmates in Auschwitz gas chambers.8
The corporate executives of the German industrial company, I.G. Farben, were held accountable for the aforementioned war crimes, issuing individual responsibility under international criminal law. The Nuremberg trials successfully determined that individuals may be held personally liable for human rights violations committed by the state. A violation of human rights occurs when a state or other legally obligated party fails to comply with international human rights norms or treaties, and consequentially gives rise to domestic or international remedies for the breach of such obligation.9 Thus, under the individual criminal responsibility principle, an individual who “participate[s] in the planning, preparation, or execution of acts that constitute violations…such as genocide or war crimes, are subject to criminal prosecution and punishment as individuals without regard to their belonging to, or acting on behalf of, a state armed force or any other entity.”10 Based on the individual criminal responsibility theory established during the Nuremberg trials, personal liability of corporate executives as criminal accomplices has been a long-standing principle.11
Today, several human rights organizations call for immediate action against corporations who continue to commit human rights abuses, often implemented by the state. For instance, the company Coca-Cola was accused of human rights violations during 1989 – 2002, when eight union leaders of Coca-Cola bottling assembly plants in Colombia, were killed after protesting the company’s labor practices and workers who joined the workers’ union were kidnapped, tortured, and detained for purposes of intimidation and preventing unionizing.12 In addition, in Turkey, Coca-Cola truck drivers and their families were severely beaten by Turkish police hired by the company, after protesting a layoff at a bottling warehouse in 2005.13 Ford Motor Company is also accused of human rights violations for allegedly removing indigenous people from their land and destroying thousands of acres of rainforests, and fueling wars for oil (i.e., Iraq); therefore, attributing to the death of thousands of U.S. troops and over 100,000 Iraqi civilians.14 The company is also accused of climate change and economic degradation by allegedly polluting cities, endangering the health of citizens which have resulted in health complications, such as asthma.15
- International Covenant on Economic, Social and Cultural Rights art. 1, Jan. 3, 1976; International Covenant on Civil and Political Rights art. 1, Jan. 3, 1976.
- See, H. Victor Condé, A Handbook of International Human Rights 56, 100 (1999).
- Id. at 100.
- Joseph Borkin, The Crime and Punishment of I.G. Farben (1978), http://www.bibliotecapleyades.net/sociopolitica/sociopol_igfarben02f.htm#I.G. at Nuremberg (last visited Aug. 23, 2011).
- The aggressive warfare charge alleged that I.G. Farben executives were in alliance with Hitler and the Nazi party, participated in Hitler’s preparation and direction of Germany’s economic mobilization of war, participated in creating and equipping Nazi soldiers with a military machine for war, participated in weakening Germany’s potential war enemies, and carried on intelligence and propaganda activities. The U.S. declared that the plunder and spoliation count included the company’s prepared agenda for the acquisition, through the assistance of the Nazi party and military force, of the chemical industries in Austria, Czechoslovakia, Poland, Norway, France, Russia and other countries. Finally, the count of slavery and mass murder alleged that all twenty-four defendants, acting through the instrumentality of the company, participated in the enslavement and concentration camp of prisoners, and the torture and murder of enslaved persons. Id.
- Id.; See, Colin Kearny, International Human Rights – Corporate Liability Under the Alien Tort Statute – Kiobel v. Royal Dutch Petroleum Co., 621 F. 3d 111 (2D Cir. 2010), 34 Suffolk Transnat’l L. Rev. 1, 1 n. 1 (2010).
- Conté, supra note 1, at 156.
- Id. at 67.
- Doug Cassel, Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts, 6 Nw. J. Int’l Hum. Rts. 304, 307 (2008).