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Corporate Complicity: from Nuremberg to Rangoon' an Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations

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Corporate Complicity: from Nuremberg to Rangoon' an Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations Corporate Complicity: From Nuremberg to Rangoon' An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations By Anita Ramasastry* "Corporations have neither bodies to be punished, nor souls to be condemned. They therefore do as they like." -Edward, 1st Baron Thurlow, English Jurist and Lord Chancellor (1731-1806) 2 INTRODUCTION Can multinational corporations (MNCs) violate the law of nations? If so, how should nation-states deal with them when they are perpetrators? 3 In recent 1. Rangoon is the capital city of Burma. Myanmar is the name for Burma in the Burmese language. The country is currently ruled by the State Law and Order Restoration Council (SLORC), which took power in a 1988 coup, suspending the legislature and the judiciary. In 1989, the Burmese military government issued a decree that the country be known by the name of Myanmar. Since then, Burma has been referred to as Myanmar in Burmese government publications. The name Burma is still very much in use both unofficially and by other nations that do not recognize the present military government. * Assistant Professor of Law and Associate Director, Shidler Center for Law, Commerce & Technology, University of Washington School of Law. The author served as a Senior Legal Advisor and Attorney for the Claims Resolution Tribunal for Dormant Accounts in Switzerland during 1998. The author would like to thank Professor Richard Buxbaum for his support of her research concern- ing the Second World War and the current reparations debate, as well as Professor Joan Fitzpatrick for her guidance. Additional thanks arc due to the Reference Librarians at Gallagher Law Library and Jess Marden for their unflagging dedication and assistance, and to Professor Walter J. Walsh for his willingness to listen. Generous assistance for this research was provided by the Helen R. White- ley Center, Friday Harbor Labs, University of Washington.. 2. Although this article includes many textual excerpts, such excerpts are important because they emphasize the focus that courts (both contemporary and historical) have focused on slave labor and its status as a violation of the law of nations and also on the role of corporate entities (referred to as legal persons) as participants in or beneficiaries of such crimes. 3. Multinational corporations, or MNCs, have been defined as corporations with affiliates or business establishments in more than one country. See W.H. Meyer, Human Rights and MNCs: Theory v. Quantitative Analysis 18 HUMAN RIrrs Q. 369 (1996). Other terms that are often used 92 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 20:91 years, there has been increasing discussion of the problem of "corporate com- plicity"'4 with respect to MNC investment activity in countries with repressive regimes. 5 The investments may involve joint ventures or contractual partner- ships with repressive host governments. MNCs may also have physical presences such as factories or mining operations in the host countries. The term complicity is used because MNCs are characterized as accomplices to serious human rights violations perpetrated by host governments. Victims in the host country typically are unable to seek redress in their own country. The courts are unable or ill equipped to handle their cases or the host government will not pursue enforcement against the perpetrators (e.g., security forces or the military). There has been a particular focus on MNCs involved in extraction indus- tries. In order to gain access to certain types of natural resources, such as oil and gas, copper, or diamonds, MNCs may have to partner with a repressive govern- ment.6 MNCs entering into partnerships in so-called "conflict zones" have been subjected to increasing scrutiny. Some MNC partnerships allegedly have in- volved serious human rights violations such as forced labor, forced displacement of local communities, and torture and execution of citizens by government se- curity forces retained to guard MNC project sites. In other instances, MNCs are alleged to have benefited from a repressive government's policies. For example, it has been alleged that MNCs have used prisoners as forced laborers to manu- facture products in countries with poor human rights records. In the United States, this heightened scrutiny has resulted in a wave of litigation against MNCs for violations of public international law under the fed- eral Alien Tort Claims Act (ATCA). These lawsuits represent an effort of "home" states to assert jurisdiction over MNCs in an attempt to influence their behavior overseas and to provide compensation to victims. These lawsuits have twin compensatory and deterrent aims. Other nations, such as the United King- when referring to corporations or business entities that transact globally are transnational corpora- tions and multinational enterprises. See P. MucHLiNsri, MULTINATIONAL ENTERPRISES AND THE LAW 12-15 (1995). See also, Detlev F. Vagts, The MultinationalEnterprise: A New Challengefor TransnationalLaw, 83 HARv. L. REv. 739 (1970). 4. One of the earliest groups to use the term "corporate complicity" in its publications was Human Rights Watch, a leading nongovernmental organization. Human Rights Watch has published two major reports that focus on investment activities of MNCs and their relationship to human rights violations. See, e.g., HUMAN RIGHTS WATCH, THE ENRON CORPORATION: CORPORATE COMPLICITY IN HUMAN RIGHTS VIOLATIONS (1999), available at http://www.hrw.org/reports/1999/enron/ (last visited Feb. 7, 2002). 5. For a useful overview, see CHRISTOPHER AVERY, AMNESTY INT'L UK, BUSINESS AND HUMAN RIGHTS IN A TIME OF CHANGE (2000), available at http://www.business-humanrights.org/ Avery-Report.htm (last visited Jan. 23, 2002). 6. See JULIErE BENNErr, INT'L PEACE FORUM, BusINESs IN ZONES OF CoNFLicT-THE ROLE OF THE MULTINATIONAL IN PROMOTING REGIONAL STABILITY (2001), available at http:// www.unglobalcompact.org/un/gc/unweb.nsf/content/Reg-Stability.htm (last visited Jan. 23, 2002). See also, THE ENRON CORPORATION, supra note 3; HUMAN RIGHTS WATCH, THE PRICE OF OIL: CORPORATE RESPONSIBILITY AND HUMAN RIGHTS VIOLATIONS IN NIGERIA'S OIL PRODUCING COM- MUNrnES (1999), available at http://www.hrw.org/reports/1999/nigerial (last visited Jan. 23, 2002). 2002] CORPORATE COMPLICITY dor, have begun to allow suits against parent MNCs for actions of their subsidi- aries located overseas.7 What is the legal responsibility of an MNC with operations in a country where human rights violations are widespread, or where its revenues provide support for a repressive regime? Should MNCs be liable if their actions assist or contribute to serious violations of international law by host governments? Fur- thermore, what type of MNC activity is sufficient to trigger aidor and abettor liability? The nature and degree of complicity that should give rise to liability will be a major theme of this article. Advocates of greater corporate accountability for human rights violations argue that companies sometimes significantly contribute to a host government's ability to carry out systematic human rights abuses. MNCs may sometimes pre- cipitate human rights violations by requesting or funding government activities that lead to such harm. One example is hiring government security forces to guard a project site. Corrupt governments may use force to subdue local citizens who object to investment activity. MNC investment may benefit government officials but worsen the economic situation for the local population. In other instances, an MNC may invest in a country and knowingly accept the inevitabil- ity or likelihood of governmental human rights abuses. Not all of these actions may trigger liability. Industry leaders, consequently, have raised concerns about 8 the lack of clarity in the definition of corporate complicity. This article examines the historical origins of corporate complicity. In par- ticular, it examines the impact of British and American war crimes tribunals after the Second World War, along with recent civil litigation by forced laborers seeking restitution from German and Japanese companies for their enslavement during the war. These cases are historical examples of MNC actions that rose to the level of egregious violations of international law. These cases also provide examples of how courts and legislators can develop and apply appropriate civil and criminal standards for MNC accomplice liability. At the same time, cases involving corporate complicity during wartime are not directly analogous to MNC investment activities in modem conflict zones or in countries that have no internal conflict but that repress the rights of their citizens. During World War II, German and Japanese corporations directly uti- lized forced labor in their own factories and operations as part of a government- industry partnership. Their direct participation in certain war crimes and crimes against humanity led to the prosecution of their officers and employees. Today, MNCs may partner with repressive governments, like companies during World War II. They are not, however, alleged to be the principal perpetrators of crimi- nal acts. Rather, certain MNCs allegedly have possessed knowledge of and con- 7. See Lubbe v. Cape, Plc., 1 WLR 1545, 1566-67 (C.A. 2000), available at http://www. parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000720/lubbe-1.htm (last visited Feb. 7, 2002) (landmark tort case brought by South African plaintiffs against British parent of South African asbestos company in which House of Lords refused to dismiss the case against the parent on grounds of forum non conveniens). 8. See, e.g., Gregory Wallance, Falloutfrom Slave-Labor Case is Troubling, 150 N.J. L. J. 896, 24 (1997). 94 BERKELEY JOURNAL OF INTERNATIONAL LAW [Vol. 20:91 doned or been complicit in the criminal acts perpetrated by a host government and its security forces. The acts of the host government allegedly further an economic joint venture or project with tangible economic benefit flowing to the MNC. This article focuses on the liability of MNCs with respect to the use of forced or slave labor.
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