By Irene di Valvasone
Holding multinational corporations accountable for the commission of international environmental crime: myth or reality?
Introduction
International offences against the natural environment are serious and widespread, but rarely pursued and punished. The accountability of multinational corporations is controversial, in particular in the form of criminal liability. There is a lack of clarity and consensus about both concept of multinational corporation’s responsibility, either through criminal liability or in other forms, and the definition of international crimes against the environment. The absence of clarity, along with the lack of hard law instruments and law enforcement mechanism, leads to a systematic impunity.
There is increasing attention from civil society for environmental issues and the impact of climate change on our daily lives. However, there is still a lot to do to translate these concerns into a pressing request to governments to ensure that multinational businesses are held accountable for the commission of eco-crime. The fact that environmental offences appear to be victimless crime may explain the delay in dealing with this issue.[1] However, the assumption is clearly untrue because of the dramatic impact of environmental crime on people’s health. Furthermore, the tight link between political power and economic power needs to be stressed because it makes the investigation and prosecution of the eco-crime extremely challenging. As a consequence of the lack of political will or ability to pursue those responsible for environmental crimes we can assume that, even though it should be easier for national jurisdictions to prosecute international environmental crimes committed by corporations, it actually requires the contribution of an international criminal system in order to make enforcement effective.[2] At the moment, this system is not in place.
The (lack of a) definition of international environmental crime
To date there is not a universally recognised definition of international environmental crime.
The Rome Statute, which established the International Criminal Court (ICC), includes the crime of damaging the environment as war crime under article 8(2)(b)(iv). However, the prosecution of the aforementioned crime is extremely challenging.[3] In order to amount to a war crime, an attack should be launched intentionally with the knowledge that it could cause widespread, severe and long-term damage to the environment and that it is clearly excessive in respect to the anticipated military advantage. It is sufficient to underline the words intentionally, widespread severe and long-term damage, and clearly excessive, to get an idea of the very limited ambit of applicability of the provision. Moreover, the mentioned offence is applicable only to international armed conflicts, but not to the more frequent non-international armed conflicts such as civil wars.[4]
The absence of a provision that criminalises the act or omission of causing damage to the natural environment in peacetime is a shortcoming of the ICC Statute. Nonetheless, the Rome Statute does not preclude an interpretation that, in future, may extend the ICC’s jurisdiction over eco-crime as a crime against humanity. It could occur, for example, through the extensive interpretation of the residual category of crimes against humanity, namely “other inhumane acts of a similar character”, article 7(1)(k) ICC Stat.,[5] so that it would include the acts that cause damage to the environment during peacetime.[6]
In 2014, a group of Cambodian nationals sent a communication to the ICC’s Office of the Prosecutor alleging that widespread and systematic land grabbing by the Ruling Elite amount to crime against humanity. In particular, in furtherance of its objective of self-enrichment, the Ruling Elite has committed: (i) forcible eviction, (ii) illegal imprisonment, (iii) murder, (iv) inhumane acts, and (v) persecution, primarily achieved through massive scale land grabbing.[7] The Prosecutor has yet to make any pronouncements on this pioneering interpretation of an environmental offence as amounting to a crime against humanity. Nonetheless, on September 2016 the ICC issued a policy paper in which it stated a willingness to prosecute and adjudicate environmental crime. The Court, while pointing out that it would prioritize cases involving the destruction of the environment, the illegal exploitation of natural resources, or the illegal dispossession of land, [8] made it clear that it was not extending its jurisdiction to include environmental crimes, but that it considers those acts as already amounting to crimes against humanity. This policy paper raises expectation of a positive response from the ICC Prosecutor towards the investigation and prosecution of the crime of land grabbing in Cambodia.
The inclusion of eco-crime under the ICC’s jurisdiction could also occur through the crime of genocide, in particular in the attempt to protect the indigenous people’s rights and their ancestral link with their homeland. For instance, in the forced eviction of a targeted group, if the coercive character of the expulsion is due to the pollution or destruction of the territorial environment and if the displacement contributes to the demise of the group itself it may be argued that genocide has been committed. Besides, the controversial inclusion of “cultural genocide” in the definition of the crime provided by the Genocide Convention of 1948 could be a further way to extend the competence of the ICC over eco-crime. If the social and cultural destruction of a community could be considered an act of genocide, then the destruction of the natural environment where that group resides could also amount to the “crime of crimes”.[9] Again, the fundamental tie between indigenous people and their motherland contributes to the view that genocidal acts may include not only the physical annihilation of a group, but also the destruction of their way of living, in particular damaging their environment.
The discussion on multinational corporations’ accountability
The phenomenon of international eco-crime is intrinsically linked to organised crime, on the one hand, and to corporate crime, on the other, which demonstrates the transnational character of the offences against the natural environment. While international crimes in general suffer from a high risk of impunity, international offences against the environment embody that risk because they are carried out predominantly by criminal enterprises,[10] to which the corporate structure of multinationals can offer a perfect shield. After all, the eco-crime is a form of highly lucrative crime, with substantial earnings, and because of that, it very often amounts to organised crime and corporate crime that are governed by the same logic: the logic of the highest possible profit. For example, research conducted by the European Union concerning the organised environmental crime revealed that the earnings derived from the traffic in ozone-depleting substances exceeds the earnings derived from trafficking cocaine.[11] The research also revealed that corporations are involved in 73% of the cases which were reviewed and that 71% of the cases had a cross-border element.[12] Some enterprises, multinational corporations in particular, cooperate with state actors in the commission of one or more international crimes. They can also act independent of state actors when they commit those illicit activities, and therefore may be considered personally responsible.[13] The debate on which mode of liability is best suited for holding multinational corporations accountable continues at both the international and national level. Internationally the discussion is focused on identifying which mode of liability is linked to several other factors and nationally the debate centers on whether criminal liability is the correct mode to be applied. Determining the liability of businesses is part of a broader debate on whether actors, other than states, are bound by international obligations. The conceptual problem of the status of legal person is reflected in the lack of an enforcement mechanism for the application of international duties on the part of corporations.[14] There is consensus in the international community that business enterprises should respect human rights.[15] Furthermore, companies are generally recognised subjects obliged to respect the norms of international criminal law.[16] Nonetheless, it is not clear which mode of liability can be used to pursue enterprises for the commission of international crimes: (i) criminal liability, (i) civil or administrative responsibility or (iii) international accountability.
The discussion on the possibility to consider corporations criminally responsible for the commission of offences is also present at the national level. Some State have extended individual criminal responsibility to cover acts of businesses, while other States have provided different modes of liability and yet others are of the view that, because of the principle according to which criminal responsibility should be individual, it cannot be attributed to persons other than natural persons. These differing approaches at the domestic level are evidence of an absence of consensus on the existence of corporate criminal responsibility and helps to explain the lack of an international set of rules that allow for the enforcement of any mode of liability for corporations.[17]
Indeed, the ICC can hold accountable only individuals, even though at the Rome Conference, inclusion of corporate accountability in the ICC Statute was discussed, and then dismissed.[18] Therefore, assuring criminal responsibility of multinational corporations through the ICC is out of discussion. Article 46C of the African Union Statute is the first and only international instrument to establish the concept of corporate criminal liability. Nevertheless, international human rights law provides that States have a duty to protect individuals from human rights’ violations committed by any actor, including corporations. Moreover, the UN Guiding Principles on Business and Human Rights provides that this ‘duty to protect’ applies both to states where multinational corporations commit environmental crimes and to the state where these corporations are based,[19] identifying then an international human rights law obligation of the State whenever such eco-crime can be attributed to it, or when it fail to take appropriate steps to prevent, investigate, punish and redress multinational corporation’s unlawful activity. As a matter of fact, the alleged lack of extra-territorial jurisdiction has impaired many national courts from affirming the criminal and/or civil liability of multinational companies for their harmful activities because of their complex corporate structure. Despite the challenges, there are several national courts which have pierced the veil of impunity shrouding the ecological impact of big corporations. This has allowed for either individuals in leadership positions and/or the corporation itself being held responsible for aiding and abetting or for conspiracy to commit war crimes, crimes against humanity and genocide.[20] The inclusion of the international crimes within some national jurisdictions, alongside the provision of rules governing the corporate criminal liability, is potentially able to extend business accountability to the commission of international crime in general,[21] and to environmental international crime in particular.[22][23]
Conclusions
There are several hindrances to ensuring that multinational companies are held responsible for environmental crimes. The absence of a universally recognised legal definition of international environmental crime has an extremely negative impact on the prosecution of the offence. The lack of binding rules on criminal liability of multinational corporations, that are the main perpetrators of eco-crime, render the matter a fertile ground for impunity. The powerful influence multinational corporations have over governments or State complicity in the unlawful actions of the corporations are also hurdles.[24] International environmental crime and multinational enterprises’ accountability involve two paradise of impunity that, put together, develop a situation of endemic and systemic injustice. The need to end impunity stems from the need to hold corporations accountable for their illegal actions, the need to bring justice to the victims of international environmental crime,[25] to ensure the right to an effective remedy and to guarantee that future generations have an adequate standard of living. Unfortunately, the possibility of holding multinational corporations accountable for the commission of international environmental crime continues to appear an extremely challenging objective.
Biblioghraphy
Amnesty International, Injustice Incorporated- Corporate abuses and the human right to remedy (2014), https://www.amnesty.org/en/documents/POL30/001/2014/en/
Amnesty International (10 February 2020), Nigeria,2020 could be Shell’s year of reckoning, (News), https://www.amnesty.org/en/latest/news/2020/02/nigeria-2020-could-be-shell-year-of-reckoning/
BfU in association with Max Planck Institute, Organised environmental crime in the EU Member States, Final Report (2003) http://ec.europa.eu/environment
Environmental Investigation Agency (EIA), Environmental Crime – a Threat to our Future, October 2008, www.eia-international.org
Human Rights Council, Business and Human Rights: Further steps towards the operationalization of the “Protect, Respect and Remedy” Framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, UN Doc A/HRC/14/27, 9 April 2010.
Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Resolution 17/4, UN Doc A/HRC/17/31, 16 June 2011.
Human Rights Council, Human Rights and Transnational Corporations and other Business Enterprises, Resolution 17/4, UN Doc A/HRC/RES/17/4, 6 July 2011.
International Criminal Court, Office of the Prosecutor, Policy paper on case selection and prioritisation, 15 September 2016, https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf
International Federation for Human Rights, Cambodia: ICC preliminary examination requested into crimes stemming from mass land grabbing (press release), 7 October 2014, https://www.fidh.org/en/region/asia/cambodia/16176-cambodia-icc-preliminary-examination-requested-into-crimes-stemming-from
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Mordechai Kremnitzer, A Possible Case for Imposing Criminal Liability on Corporations in International Criminal Law (2010), Journal of lnternational Criminal Justice, pp.909-918.
Joanna Kyriakakis, Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge, (2009), LVI, Netherlands International Law Review, 333.
Bronwyn Lay, Laurent Neyret, Damien Short, Michael Urs Baumgartner, Antonio A. Oposa Jr, Timely and necessary: Ecocide law as urgent and emerging (2015), The Journal Jurisprudence, 431.
Marcos A. Orellana, Criminal Punishment for Environmental Damage: Individual and State Responsibility at a Crossroad (2005), The Georgetown International Environmental Law Review, 673.
Mohammed Saif-Alden Wattad, The Rome Statute & captain planet: what lies between ‘crimes against humanity’ and the ‘natural environment? (2009)’, Fordham Environmental Law Review, 265.
Grazia Maria Vagliasindi, La Direttiva 2008/99/CE e il Trattato di Lisbona: verso un nuovo volto del diritto penale ambientale italiano (2010), Diritto commerciale internazionale, 449.
Dieneke de Vos, Corporate Criminal Accountability for International Crimes (2017), Just Security, https://www.justsecurity.org/47452/corporate-criminal-accountability-international-crimes/
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[1] Environmental Investigation Agency (EIA), Environmental Crime – a Threat to our Future, October 2008, www.eia-international.org , p.1.
[2] Mordechai Kremnitzer, A Possible Case for Imposing Criminal Liability on Corporations in International Criminal Law (2010), Journal of lnternational Criminal Justice, pp.916-917.
[3] Marcos A. Orellana, Criminal Punishment for Environmental Damage: Individual and State Responsibility at a Crossroad (2005), The Georgetown International Environmental Law Review, p.695.
[4] War Crimes, Module 8, International Criminal Law and Practice Training Materials, Part of the OSCE-ODIHR/ICTY/UNICRI Project “Supporting the Transfer of Knowledge and Materials of War Crimes Cases from the ICTY to National Jurisdictions”, International Criminal Law Services, http://wcjp.unicri.it/deliverables/training_icl.php,, pp.14-15.
[5] Mohammed Saif-Alden Wattad, The Rome Statute & captain planet: what lies between ‘crimes against humanity’ and the ‘natural environment? (2009), Fordham Environmental Law Review, pp. 275-276; 282.
[6] Marcos A. Orellana, Criminal Punishment for Environmental Damage: Individual and State Responsibility at a Crossroad, p.693.
[7] International Federation for Human Rights, Cambodia: ICC preliminary examination requested into crimes stemming from mass land grabbing (press release), 7 October 2014, https://www.fidh.org/en/region/asia/cambodia/16176-cambodia-icc-preliminary-examination-requested-into-crimes-stemming-from
[8] International Criminal Court, Office of the Prosecutor, Policy paper on case selection and prioritisation, 15 September 2016, https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf, p.14.
[9] Marcos A. Orellana, Criminal Punishment for Environmental Damage: Individual and State Responsibility at a Crossroad, p.692.
[10] Grazia Maria Vagliasindi, La Direttiva 2008/99/CE e il Trattato di Lisbona: verso un nuovo volto del diritto penale ambientale italiano (2010), Diritto commerciale internazionale, p.5.
[11] BfU in association with Max Planck Institute, Organised environmental crime in the EU Member States, Final Report (2003), p.28.
[12] BfU in association with Max Planck Institute, Organised environmental crime in the EU Member States, p.III.
[13] Wolfgang Kaleck and Miriam Saage-MaaB, Corporate Accountability for Human Rights Violations Amounting to International Crimes-The Status Quo and its Challenges (2010), Journal of lnternational Criminal Justice, p.702.
[14] Wolfgang Kaleck and Miriam Saage-MaaB, Corporate Accountability for Human Rights Violations Amounting to International Crimes-The Status Quo and its Challenges, p.719.
[15] Amnesty International, Injustice Incorporated- Corporate abuses and the human right to remedy (2014), https://www.amnesty.org/en/documents/POL30/001/2014/en/, p.21; Human Rights Council, Human Rights and Transnational Corporations and other Business Enterprises, Resolution 17/4, UN Doc A/HRC/RES/17/4, 6 July 2011; Human Rights Council, Business and Human Rights: Further steps towards the operationalization of the “Protect, Respect and Remedy” Framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, UN Doc A/HRC/14/27, 9 April 2010.
[16] Joanna Kyriakakis, Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge (2009), LVI, Netherlands International Law Review, p.335.
[17] Joanna Kyriakakis, Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge, p.334.
[18] Joanna Kyriakakis, Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge, p.348.
[19] Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Resolution 17/4, UN Doc A/HRC/17/31, 16 June 2011,Guiding Principle 1.
[20] Bronwyn Lay, Laurent Neyret, Damien Short, Michael Urs Baumgartner, Antonio A. Oposa Jr, Timely and necessary: Ecocide law as urgent and emerging, (2015), The Journal Jurisprudence, p.435.
[21] In the USA, the Alien Tort Claims Act (ATCA) allows non-U.S. individuals to file suits before U.S. courts for international human rights violations even when occurred outside of the national territory. In October 2017, the Court of Appeal has ruled that a case against the Vedanta Resources over water pollution in Zambia may proceed before UK Courts, thus extending the jurisdiction of UK over the acts committed abroad by subsidiary companies. In Europe, bringing cases at courts addressing corporate accountability for international crimes is a new trend, but unfortunately only few of them has ended up in a conviction. Dutch courts, for example, have been able to prosecute and convict directors of companies because of their involvement in the commission of international crimes (e.g., the case against Van Anraat and the case against Kouwenhoven), though these cases are involving individual criminal responsibility. In Italy, the introduction in the criminal code of a new set of environmental crimes by Legge n. 68/2015, for which the administrative liability of corporations is provided by the Decreto legislativo. n. 231/2001, is potentially able to open new interesting scenarios in the fight against corporates impunity for environmental crime. There is a number of ongoing cases filed before the specialised War Crimes and Crimes against Humanity Unit of the Paris Tribunal de Grande Instance consisting in criminal complaints against renowned French companies for their complicity in the commission of international crimes (e.g. Amesys, Cosmos, Lafarge).
[22] Joanna Kyriakakis, Corporate Criminal Liability And The ICC Statute: The Comparative Law Challenge, p.348.
[23] Most known is the case of Royal Dutch Shell that is currently facing several legal claims for its extraction activity in Nigeria, which resulted in massive oil pollution in the Niger Delta region and is threatening the life and health of local communities. In the Four Farmers Case, Shell has been sued before a Dutch Court for the damage caused by oil spills. A similar case is pending before the UK’ Supreme Court. In both cases, Shell claims no responsibility for the action of its Nigerian subsidiary. In the Kiobel vs. Shell case, the company is accused for the complicity in the unlawful arrest, detention and execution of environmental protesters of the Ogoni community by Nigeria military in 1995. This suit was first filed before the US judicial authorities, but the Supreme Court finally denied jurisdiction over the case. Then, the case was brought to a Dutch tribunal and it is still ongoing. The “OPL 245” case, before an Italian Tribunal, see the company, together with ENI, charged with bribery for paying 1.1 billion USD to obtain a Nigerian oil licence. For further information, see: Amnesty International (10 February 2020), Nigeria,2020 could be Shell’s year of reckoning, (News), https://www.amnesty.org/en/latest/news/2020/02/nigeria-2020-could-be-shell-year-of-reckoning/
[24] Amnesty International, Injustice Incorporated- Corporate abuses and the human right to remedy, p.173.
[25] Dieneke de Vos, Corporate Criminal Accountability for International Crimes.