By Douglass Cassel, Professor of Law and Director of the Center for Civil and Human Rights at the Notre Dame Law School
Can transnational corporations or their executives be held criminally or civilly liable for aiding and abetting human rights violations committed by governments or militaries of foreign countries where they do business? What body of law determines the answer—international law, the law of the foreign state, or the law of the home state?
If the answer is that corporations and their executives can be held liable, what standard defines “aiding and abetting” liability? Does merely doing business in a repressive state qualify? If a corporation sells goods or services to a repressive government, does the corporation aid or abet if it has knowledge that its products will be used to commit human rights violations? Or must corporate officers intend to assist the commission of violations?
To some extent the debate turns on whether international criminal law requires that those who aid and abet merely have knowledge of the principal crime, or must instead have a purpose to facilitate the crime. In United States federal court suits against corporations under the Alien Tort Statute (“ATS”), this international law debate is compounded by a domestic dispute over whether the definition of “aiding and abetting” should be drawn from international law or from federal common law.
Overlaying both debates is an even more basic disagreement about whether corporations can be held liable in tort for violations of international law at all. The confusion engendered by these multi-layered debates denies legal certainty, both to corporations and to victims of human rights violations facilitated by corporations.
The question of the proper scope of liability of corporations and their executives for aiding and abetting human rights violations is far from academic. Consider the following list of transnational corporations recently sued under the ATS for allegedly aiding and abetting human rights violations:
- Caterpillar, for selling bulldozers to the Israeli military, which used them to demolish Palestinian homes,
- Chiquita, for allegedly paying Colombian paramilitary groups to keep the company’s banana plantations “free of labor opposition and social unrest,”
- Banque Nationale Paris Paribas, for alleged payments to Saddam Hussein’s regime in violation of the rules of the United Nations oil-for-food program,
- A Boeing subsidiary (Jeppesen Dataplan), for allegedly servicing flights used by the CIA for “extraordinary renditions” of suspected terrorists to other countries where interrogators commonly use torture and other unlawful techniques,
- Yahoo, for providing the Chinese government with internet records leading to the identification and alleged torture of a human rights activist,
- Drummond mining company, for allegedly paying Colombian paramilitaries who murdered labor activists,
- Wal-Mart, for failing to stop suppliers from committing labor abuses,
- Nestle, for buying cocoa and providing services to cocoa farmers employing child labor,
- Unocal, for participating in a Burmese gas pipeline construction project, whose contracted security forces allegedly engaged in forced labor, forced displacement, murder and rape, and
- Barclay’s Bank and dozens of other major corporations, for doing business with the apartheid regime in South Africa.
And of course, beyond the purely legal arguments for accountability is the question of whether or not these companies have an ethical obligation to the populations their business practices affect.