NUREMBERG REVISITED IN BURMA? AN ASSESSMENT OF THE POTENTIAL LIABILITY OF TRANSNATIONAL CORPORATIONS AND THEIR OFFICIALS IN BURMA UNDER INTERNATIONAL CRIMINAL LAW By Mary Ann Johnson Navis A dissertation submitted to the Victoria University of Wellington in partial fulfilment of the requirements for the degree of Master of Laws Victoria University of Wellington 2010 1 ABSTRACT This dissertation focuses on the role played by officials of transnational corporations and transnational corporations themselves in the situation in Burma. The main aim of this dissertation is to assess the liability of officials of transnational corporations in Burma and transnational corporations in Burma for crimes against humanity such as slave labour and for war crimes such as plunder under International Criminal Law. However at present transnational corporations cannot be prosecuted under International Criminal Law as the International Criminal Court only has jurisdiction to try natural persons and not legal persons. In doing this analysis the theory of complicity, actus reus of aiding and abetting and the mens rea of aiding and abetting in relation to officials of transnational corporations will be explored and analysed to assess the liability of these officials in Burma. In doing this analysis the jurisprudence of inter alia the Nuremberg cases, the cases decided by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) will be used. This dissertation also examines the problems associated with suing or prosecuting transnational corporations due to the legal personality of transnational corporations and the structure of transnational corporations. At the end of the dissertation some recommendations are made so as to enable transnational corporations to be more transparent and accountable under the law. STATEMENT OF WORD LENGTH The text of this paper (excluding abstract, table of contents, bibliography and footnotes comprises approximately 39,418 words ) 2 ACKNOWLEDGEMENTS My heartfelt gratitude to Kevin Riordan for his insights, commitment, guidance, encouragement and support which assisted me greatly to complete this dissertation. My thanks to Professor Richard Boast for his encouragement and support . Finally I would like to extend my thanks and gratitude to my family and friends for their encouragement and most of all to God who made all things possible. 3 TABLE OF CONTENTS ABSTRACT 2 ACKNOWLEDGEMENTS 3 I INTRODUCTION 9 II BRIEF HISTORY OF BURMA AND THE CURRENT SITUATION IN BURMA 12 A The Junta and Transnational Corporations 12 B The Condition of the People in Burma 13 C Effect of TNC’s Activities on the People Of Burma 14 III THE CONTINUING LEGACY OF INDUSTRIALISTS AND TNCS 15 A Industrialists at Nuremberg, TNCs and International Criminal Law15 B The Industrialists Cases at Nuremberg 17 C The Indictments of the Industrialists at Nuremberg 17 D The IG Farben Trial 17 1 Facts of the case 18 2 The indictments 19 3 The judgment of the tribunal under count two (plunder) 19 4 The judgment of the tribunal under count three (slave labour) 26 5 The significance and implication of the IG Farben decision 29 E The Krupp Trial 30 1 The indictments 30 2 The offences committed by the Krupp firm under count two (plunder ) 30 3The judgment of the Tribunal under count two 32 4 The offences committed by the Krupp firm under count three (slave labour)33 5The judgment of the tribunal under count three 35 4 6 The significance and implication of the Krupp decision 35 F The Flick Trial 35 1 The judgment of the tribunal under count one (slave labour) 37 2 The judgment of the tribunal under count two (plunder) 38 3 The significance and implication of the Flick decision 39 G The Third Reich in Germany and the Junta in Burma, the Differences 40 H The Legal Principles Derived from the Industrialists Trials at Nuremberg 44 I Lessons from Nuremberg and the Situation in Burma 45 J The Industrialists Cases at Nuremberg and the Officials of TNCs in Burma 46 K Conclusion 48 IV AN ASSESSMENT OF THE POTENTIAL LIABILITY OF THE OFFICIALS OF TNCs IN BURMA FOR THE CRIME AGAINST HUMANITY OF SLAVE LABOUR UNDER INTERNATIONAL CRIMINAL LAW (ICL) 49 A The Development of the Crime of Enslavement 49 B The Crime of Enslavement under International Criminal Law 50 C Is the Crime of Enslavement Committed in Burma? 50 D Is the Crime against Humanity of Enslavement being Committed in Burma? 55 E The TNCs in Burma and the Yadana Project 58 F The Role Played by TNCs and Officials of TNCs in the Crime Against Humanity of Enslavement in Burma 58 G Complicity; A Growing Phenomenon in International Criminal Law 60 H Some Definitions of Complicity 61 1 Direct corporate complicity 61 2 Indirect corporate complicity 62 5 3 Silent complicity 62 4 The three elements of complicity in international crimes 63 I How Was Complicity Defined In Nuremberg? 64 J An analysis of Complicity in the Nuremberg Cases in Relation to the Crime of Enslavement 65 K An Analysis of the Complicity of the Officials of TNCs in Burma for the Crime of Enslavement 67 L Aiding and Abetting; a Form of Complicity under ICL 69 M An analysis of the Actus reus and Mens rea Requirement of Aiding and Abetting in Relation to Industrialists Cases at Nuremberg 69 N The Actus reus and Mens rea Requirement of Aiding and Abetting under ICL 71 O Have the Officials of TNCs in Burma Satisfied the Actus reus and Mens rea Requirement of Aiding and Abetting the Crime of Enslavement under ICL in Burma? 74 P Conclusion 77 V AN ASSESSMENT OF THE POTENTIAL LIABILITY OF OFFICIALS OF TNCS IN BURMA FOR THE WAR CRIME OF PLUNDER UNDER INTERNATIONAL CRIMINAL LAW 78 A The Development of the Law in Relation to the War Crime of Plunder 78 B The Contemporary Law of Plunder 80 C The War Crime of Plunder 81 D The Armed Conflict in Burma 81 E The Crime of Plunder in Burma? 86 F Elements of the War Crime of Pillage under Article 8 (2) (e) (v) of the International Criminal Court 86 G The Nexus Between the Crime and Armed Conflict 90 H The Contemporary Case Laws on Pillage 96 6 I The Role Played by the Officials of TNCs in the War Crime of Plunder in Burma 108 J An Analysis of the Complicity of the Industrialists in Relation to the War Crime of Plunder 109 K An Analysis of the Complicity of the Officials of TNCs in Burma in Relation to the War Crime of Plunder 111 L An Analysis of the Actus Reus and Mens Rea requirement of Aiding and Abetting of the Industrialists in Nuremberg in Relation to the War Crime of Plunder 112 M Has the Officials of TNCs in Burma Satisfied the Actus reus and Mens rea Requirement of Aiding and Abetting the War Crime of Plunder under ICL? 113 N Conclusion 119 O The members of the Corporate Board of TNCs that Should be Prosecuted for Being Complicit in the War Crime of Plunder and Crime Against Humanity of Enslavement 119 VI TRANSNATIONAL CORPORATIONS IN THE 21 st CENTURY 123 A Transnational Corporations in the Global Arena 123 B Transnational Corporations as Subjects under International Law 124 C The Regulation of Transnational Corporations 127 D Can TNCs Be Liable for Human Rights Abuses and International Crimes 128 E The research by Fafo and the Prosecution of Corporations for International crimes by home States 129 F The Problems Involved in Suing TNCs 131 G Legal Personality of TNCs 131 H Piercing the Corporate Veil 132 I Extraterritorial Jurisdiction and TNCs 125 1The types of extraterritorial jurisdictions 134 7 2 Suing of Transnational Corporations by home states 136 3 The problems of using extraterritorial jurisdiction on TNCs 137 J Suing of TNCs by the Host States 140 K The Alien Tort Claims Act 140 1 Doe v Unacol 141 L The Weaknesses of the Alien Tort Claims Act 141 M Conclusion 142 VII Conclusion 144 BIBLIOGRAPHY 148 8 I INTRODUCTION Transnational Corporations (TNCs) have become power centred entities in the world today where the economic strengths and the power of some TNCs outweigh that of many states. 1 TNCs play a particularly vital role in developing countries that are rich in natural resources but have weak governance.2 Burma is one example of such a country. 3 The activities of TNCs in Burma have also contributed vastly to various human rights abuses and violations of the laws in the country. 4 This dissertation assesses the liability of the officials of TNCs and TNCs in Burma under International Criminal Law for International Crimes such as slave labour and plunder which are purportedly being committed in Burma in relation to the Yadana pipeline. 5 In doing this analysis the jurisprudence of the Nuremberg cases, cases decided under the International Criminal Tribunal for the Former Yugoslavia (ICTY) 6 will be used. Further cases decided under the International Criminal Tribunal for Rwanda (ICTR) 7 will also be used.The central thesis of this dissertation is that officials of TNCs in Burma could be liable under International Criminal Law for crimes against humanity such as slave labour and for war crimes such as plunder by being complicit and by aiding and abetting the Burmese Junta in the commission of these crimes. Chapter II in this dissertation gives a very brief overview of the history of Burma. Further this chapter looks at the incomes generated by the Junta through 1See Michael Rolston “Globalizing a Traditional Cottage Industry: International Criminal Organizations in a Global Economy “ (2007) 6 Globalization 1,1. Also see Justine Nolan “ With power comes Responsibility: Human Rights And Corporate Accountability ” (2005) U NSW LJ 38 2 See Stephen J.