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Business and Armed Non-State Groups: Where Do We Stand?

June 17, 2020
Lafarge Factory in Syria © Stefan Mako

Dr. Jelena Aparac holds a PhD in international public law. Her dissertation focused on “International criminal liability of corporations for international crimes committed in non-international armed conflicts”. She also holds an LLM from the Geneva Academy of International Humanitarian Law and Human Rights. Dr. Aparac is a lecturer in international humanitarian law, human rights, international criminal law and international refugee law. She has given lectures and conferences at academic institutions around the world and has contributed as an independent expert to various intergovernmental discussions on issues related to international peace and security. As a field worker and legal advisor for Médecins sans Frontières, Dr. Aparac worked in conflict areas such as South Sudan, Chad/Darfur, the Democratic Republic of the Congo and the Central African Republic.

While nowadays it is widely accepted that non state actors play important roles in international relations, the specific traits of obscure relationships between two or more non-state actors remain unclear and insufficiently explored. In my recent contribution to the Business and Human Rights Journal entitled “Business and Armed Non-State Groups: Challenging the Landscape of Corporate (Un)accountability in Armed Conflicts”, I highlighted three recent events in the context of business and human rights in armed conflicts: the Lafarge case, the 33rd International Conference of the International Committee of the Red Cross (ICRC) and the International Criminal Court (ICC) Prosecutor’s statement on corporate liability. I argue that all three of these events in their own way demonstrate how the activities of armed non state groups (ANSGs) challenge the traditional doctrine of international law and demonstrate the need for its norms to adapt to an evolving reality.

Cases involving ANSGs and businesses are complicated because they involve two non-State actors. These actors, whether multinational corporations or armed non-state groups, rarely fall under the doctrine of State responsibility. By their very nature, ANSGs are not considered full subjects of international law: their relationship with their “commercial partners” cannot be subject to contracts and are presumed illegal under the domestic law. At the same time, multinational corporations escape accountability for their involvement in international crimes before international courts, but they are entitled to jus standi before international economic institutions and can claim their “human rights” before international tribunals.

Challenges before domestic courts

Before domestic courts, there are limited cases of corporate liability. Even though some civil cases have resulted in settlements with plaintiffs, in most of the cases there is no jury verdict. Recently in a case of Nevsun before the Canadian Supreme Court, the plaintiffs brought the claim against Nevsun Resources operating the Bisha mine in Eritrea for violation of the international customary law as incorporated in the law of Canada including crimes against humanity. The Court, in a judgement more favorable to the plaintiffs, authorized the lawsuit to proceed, thereby dismissing Nevsun’s appeal.

In the context of criminal cases against corporations, a public prosecutor can instigate a prosecution, but often faces legal, logistical, political and diplomatic challenges when a case spans several jurisdictions.

The milestone criminal case, Lafarge is testament to some of these challenges. It concerns a strategic French cement company accused of financing ANSGs in Syria under French criminal law and procedure. The company was indicted for crimes against humanity and financing of terrorism, among others charges, before the specialized War Crimes and Crimes Against Humanity Unit of the Paris Tribunal de Grande Instance (Office of the Public Prosecutor). My article analyzes the Paris Court of Appeal’s decision from 2019 to drop charges of crimes against humanity against Lafarge, and expounds upon the challenges that investigators face when collecting proof of complex international crimes committed by non state actors in war zones outside of their jurisdiction.

Proliferation of ANSGs and their business relationships

The developments in the Lafarge case must be understood alongside another event that took place just a month later: ICRC’s 33rd international conference held in December 2019. The conference’s report highlights the transformation of contemporary armed conflicts through the proliferation of ANSGs. It is well known (for example see here (paras 47-88), here (paras 72-78 and 153- 165) and here) that in order for ANSGs to sustain their military capacity, they depend heavily on various corporations—from arms dealers to private banks to companies involved in the extraction of natural resources, as well as suppliers throughout the value chain and the final buyer. Consequently, the proliferation of ANSGs in contemporary armed conflicts will almost inevitably imply an increase in the complexity of their economic relationships with various business entities to which neither domestic nor international law is adapted.

Constricted access to transitional justice

Against this background, the ICC Prosecutor’s declaration in November 2019 indicating a focus on business activities can be seen as a positive step forward. She stated that “[t]he ICC may exercise jurisdiction over persons who, through business activities, either contribute or directly commit international crimes under the Rome Statute”. Currently, this means that corporate directors of multinational corporations contributing directly or indirectly to international crimes through the actions of ANSGs could stand trial under the Rome Statute. Even though countless private and NGO reports (see here, here, here and here) have documented corporate roles in some situations under ICC jurisdiction, so far there have been no indictments against any corporate directors of multinational corporations.

These developments expose some of the deficiencies in the current fact-finding and documentation of corporate crimes. On a domestic level, it is an enormous challenge for any investigator to document corporate crimes in armed conflicts taking place in another country, particularly when this requires mutual legal assistance and inter-State cooperation. Politically sensitive issues could be better addressed by international investigators unrelated to any State. Having been trained to investigate complex crimes in hostile environments, they could better overcome some of the security and logistical obstacles. And yet, international fact-finding missions (mostly under the UN) are not investigating the role of multinational corporations in armed conflicts and have limited mandates to investigate ANGSs.

To the extent that corporations play a fundamental role in armed conflict, documenting their wrongdoing is directly related to the protection of international peace and security and to the process of transitional justice. Moreover, the link between the illegal exploitation of natural resources and armed groups is regularly identified as one of the drivers of conflicts around the globe, mainly to support ANSGs. Most fact-finding missions today collect documentation in the contexts of armed conflicts, but exclude corporate actors from their investigations. Documenting the role of multinational corporations in illegal(and legal!)exploitation of natural resources contributes to establishing a certain truth and could provide a more accurate picture of the conflict, including the roles played by both local and external actors. Notwithstanding the sanctions, the recognition of responsibility through coherent public reports contributes, at least partially, to the truth telling process and the appeasement of the post-war society. Finally, without proper investigation and documentation of corporate crimes, there can be no effective accountability and no coherent transitional justice.

Adapting the normative framework to contemporary contexts

Ultimately, the timing for these discussions is fundamental. The future United Nations Treaty on transnational corporations and other business enterprises with respect to human rights is entering a new phase of its negotiations, and in developing its content, it is crucial that this process includes an awareness of the complex webs connecting armed and unarmed non state actors. Similarly, if the Rome Statute is to be open for amendments to include corporate liability, these types of relationships need to be further explored. Otherwise, future legal developments cannot be adapted to the very situations that they are intended to regulate, thus undermining their legal regimes. As such, critical discussions of transitional justice by addressing socio-economic aspects of contemporary asymmetric armed conflicts and the role corporations play in them is required for achieving true transitional justice and sustainable peace.

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