Dispatches from a bar in The Hague, The Netherlands, international city of peace, justice, and other warm-fuzzies we love
I can’t say my summer job lends itself as easy to parody as Nicola’s (an excellent post). I have spent the past month and a half now (on USP money, thanks, Tori) doing sundry research and consulting on justice sector development and international criminal liability (the sexy stuff). The gruntwork of international justice, the database I’ve been creating on justice sector development projects in post-conflict countries, I’ll leave aside, though if anyone’s keen on that, email me. I’ve been working on a consulting project for a senior ICC trial lawyer who at one point headed up the Darfur investigations, mostly conducting research on criminal liability for corporations. Apparently this is A Big Issue in research on and jurisprudence of contemporary international criminal liability. And it actually has Real World Repercussions…exciting, I know. This post starts off discussing recent developments in the war crimes trial of Charles Taylor (currently in The Hague) and how they relate to the research I’ve been doing on corporate criminal liability for my job. In a crisis of soap-opera proportions, replete with bruised egos, righteous indignation, and several wll-timed smack-downs, Taylor will finally be tried for war crimes occurring in Sierra Leone during under his leadership of a Liberian rebel group and its collusion with the Sierra Leonean Revolutionary United Front. He initially failed to appear for his own trial, fired his defense, decided he would defend himself, and ended up saying that, no, in fact, he’d rather have the best defense team that money can buy. (Which, apparently, will include the former ICC trial lawyer for whom I was doing research. To put it flippantly, it’s a small world. Bizarre). Also bizarre is the finding that Charles Taylor is indigent, meaning that he is not financially able to pay for his own defense. Say what now? What about all of the gains he made through the money skimmed from contracts with the Oriental Timber Company and diamond dealing? The overseas bank accounts? This is where the corporate criminal liability issue comes into play. To what extent can a corporation (such as, Shell Oil, Chiquita, Anvil Mining) be held liable for involvement in war crimes? Who is “at fault”? Is it the directors? The workers? This thing called the “corporation”? Which national legal systems get first dibs on trials? What happens in the event of a conviction? What about the premise of individual guilt? Is criminal and/or civil prosecution a viable tool in the push to end a culture of corporate impunity? Chiquita (motto: “Perfect for Life”), for example, has claimed in a civil suit that it only had the best interests of its fruit pickers in mind when it hired “security forces” who also happen to be paramilitaries who have murdered and otherwise intimidated Colombians in the area of Chiquita operations. These are not ‘obvious cases’ like the Zyklon B Case, in which Bruno Tesch, was convicted of war crimes in providing the Nazi regime with the gas used to kill (Tesch claimed he didn’t know it was going to be used to gas inmates…but rather he cited the innocuous and “well-known use” of Zyklon B as a pesticide against lice! That defense was shut down, however, due to evidence that he had ordered tests of the gas on Russian POWs. Geez, officer, I had no idea…). That’s what makes the concept so tricky—in a world in which multinational corporations necessarily bridge many different national justice systems and operate through bureaucracies of middle men, at what point is it logical and appropriate to assign blame to a corporate entity for breaches of international humanitarian law? Corporate criminal liability as a theoretical concept is a moving target, and since the Nuremberg Trials, it has played out in contradictory and fragmented ways. I had been asked to research its parameters for a pilot training and consulting program being developed by several international lawyers. And after writing a thesis length report that tries to define the concept and whether or not it can be used to persuade businesses to comply with international humanitarian law, I feel like I’m aiming darts at stampeding buffalo.
–Claire L.
Are you working on civil or criminal liability for human rights violations? The summer after my freshman year, I worked for one of the law firms that did the Holocaust Swiss banks and slave labor cases. Later, the group of lawyers who worked on those cases started a human rights practice group at the firm and have sued companies over apartheid. too. (Other companies and events also, but I haven’t followed it in a while.)
One of the things that I find very useful about these cases is that they serve as a reminder of the role of industry and corporations in oppressive (right-wing) political regimes. To the extent that the forced labor cases were public history, their lesson was that fascism was more than just hypernationalism and antisemitism: corporatism–a term coined, I think, by Mussolini, used the interests of big business and the state, making the state more literally the fist of the bourgeoisie.
The more common story of fascism is liberal and comforting. Because it revolves around the power of the state and the importance of nationalism, it makes it seem more distant from our own experience and possibilities. In the 1950s and 60s there was a conscious effort to create the idea of “totalitarianism,” which lumped together fascism and communism into a single category opposed to liberal democracy. Forcing corporations to acknowledge their complicity–more, their active engagement–with fascism starts to show how fascism and liberal capitalism are akin, aligned against political systems of the left like communism and anarchism.
The question of these reparations law suits as public history is something that has interested me for a while, and I sporadically keep up a bibliography. If you’d like to take a look at it, you’re welcome to it. I’d be interested to see your final product and its bibliography too.