Volume 88 Number 863 September 2006 Corporate civil liability for violations of international humanitarian law Eric Mongelard* Eric Mongelard has a Master in international humanitarian law (University Centre for International Humanitarian Law, Geneva); he is a member of the Quebec Bar. Abstract The fact that international humanitarian law violations are in the vast majority of cases prosecuted in criminal courts does not mean that a civil liability for these violations does not exist. This article seeks to explore the concept of civil liability of corporations involved in violations of international humanitarian law by providing an overview of the different legal issues raised by this concept and its implementation in both common law and continental law systems. In recent years there have been much discussion and media reporting about international humanitarian law violations by states and the question of individual criminal liability for such violations. The issue of corporate liability is likewise now attracting broad media attention. Civil liability of companies1 and violations of international humanitarian law are therefore familiar concepts not only for legal specialists but also for the public. However, they are rarely addressed together. And yet companies are increasingly operating in places which would have been inconceivable only a few years ago, namely in areas of armed conflict. Although companies working in conflict areas or in support of armed forces do not constitute an entirely new phenomenon, the conflict in Iraq, where foreign companies providing security and other support services appeared on the scene * The author wishes to thank Professors Marco Sasso`li and Eric David for their invaluable comments on the various drafts of this article. 665 E. Mongelard – Corporate civil liability for violations of international humanitarian law almost at the same time as the US army, is an extreme example of the role private entities can play during hostilities. Companies can play many different roles in an armed conflict and may becalledupontotakepartinitinvariousways.Intheearlystagestheycanbe a source of revenue for the belligerents, and this can cause the fighting to goon longer than it might have done otherwise. In Colombia, for example, oil companies were obliged to pay a special contribution towards restoring lawand order, which took the form of a special tax of $1.25 a barrel. In 1996 this tax brought the Colombian government a total revenue of $250 million.2 In Angola, duringthelasttenyearsoftheconflict,itcouldbeclaimedthattheparties were able to go on fighting only because of the revenues derived by the government side from the oil companies working the offshore oil deposits, and those derived from De Beers by the then rebel force UNITA, which controlled the diamond mines.3 Another way in which companies can take indirect part in an armed conflict is by financing security forces specially mandated to protect the company and its facilities. This type of financing can be arranged either by the signing of contracts between the company and the Ministry of Defence, for example, or tacitly, through the company’s free provision of services to the military units in charge of its security.4 In such a case, are companies liable if their equipment is used by the army to commit violations of international humanitarian law? That is one of the questions this paper sets out to answer. Finally, a company can be considered to take part in a conflict when it engages private security firms or is itself a private military company thathas signed a contract with the government to supply military services. If a company can be deemed to have committed a breach of international humanitarian law, what does that mean in practice? What liability does the company have in sucha case? Serious violations of international humanitarian law are often associated with criminal liability. It should not be forgotten, however, that a numberof countries do not recognize the criminal liability of legal persons and, moreover, civil liability offers certain advantages. If civil actions are brought against companies and the courts award large sums of money in damages and interest against them, this could make them more accountable and induce them to change 1 In this article, the terms ‘‘companies’’, ‘‘firms’’, ‘‘corporations’’ and ‘‘multinationals’’ are used interchangeably. We do not wish to enter into the legal definitions thereof; they are used to mean any legal person exercising a commercial activity. The term ‘‘corporate’’ is also used here with this general connotation. 2 ‘‘Colombia: Human rights concerns raised by the security arrangements of transnational oil companies’’, Human Rights Watch, ,http://www.hrw.org/advocacy/corporations/colombia/ Oilpat.htm. (consulted on 28 May 2006). 3 BBC, ‘‘Fuelling the war: diamonds and oil’’, 28 January 1999, ,http://news.bbc.co.uk/1/hi/ special_report/1999/01/99/angola/264228.stm. (consulted on 28 May 2006). 4 For example, in Colombia a consortium of oil companies concluded a contract with the Colombian army for $2 million a year to be paid in cash or in kind in the form inter alia of equipment, troop transports and helicopter flying hours. Human Rights Watch, above note 2. 666 Volume 88 Number 863 September 2006 their corporate culture; shareholders, too, would become more aware of their responsibilities on seeing their profits thus dwindle and fearing the loss of their investments. There is also the practical aspect of civil action, which enables victims or their representatives to set in motion a judicial inquiry. This is particularly important in legal systems without a mechanism for victims to initiate criminal proceedings. A civil action furthermore enables victims to obtain material compensation for their sufferings, whereas some legal systems do not allow for this possibility in criminal proceedings. Finally, the standard for a decision in a civil case is the preponderance of evidence, whereas in a criminal trial, the existence of reasonable doubt is sufficient to prevent a guilty verdict. A civil suit therefore provides an easier route for victims to obtain the moral compensation afforded by recognition of liability by a court. To examine the question of corporate civil liability, three aspects must be considered: the legal bases of corporate civil liability, in particular, the extent to which international law can create obligations for companies and whether there is a general obligation to make reparation for violations of international humanitarian law; the establishment of liability for a violation of international humanitarian law; and the enforcement of that liability before the national courts, that is, the determination of the law applicable and domestic courts’ jurisdiction for corporate violations of international humanitarian law. The legal bases of corporate civil liability for violations of international humanitarian law In any legal system the failure to respect a commitment, contract or treaty creates a liability on the part of the defaulting party; generally, there arises a duty to provide compensation for any resulting damage. Several contemporary authors consider that responsibility can be viewed today as a general principle of law.5 Both the Permanent Court of International Justice and its successor, the International Court of Justice, confirmed very early on that the consequence of an unlawful harmful act was the duty to provide compensation.6 This general principle has recently been codified in the International Law Commission’s Draft Articles on 5 ‘‘Today one can regard responsibility as a general principle of international law, a concomitant of substantive rules and the supposition that acts and omissions may be categorized as illegal by reference to the rules establishing rights and duties’’, I. Brownlie, Principles of Public International Law, 6th edn, Oxford University Press, Oxford, p. 420. See also Q. D. Nguyen, P. Dallier and A. Pellet, Droit international public, Paris, LGDJ, p. 762: ‘‘Tout ordre juridique suppose que les sujets engagent leur responsabilite´ lorsque leurs comportements portent atteinte aux droits et inte´reˆts. Cette ide´e est e´quitable et irre´futable.’’ 6 Case concerning the Factory at Chorzo´w, Permanent Court of International Justice, 1927: ‘‘It is a principle of international law that the breach of an engagement involves an obligation to make reparation in adequate form’’, Corfu Channel Case, [1949] ICJ Rep., p. 23: ‘‘these grave omissions involve her [Albania’s] international responsibility. The Special Agreement asks the Court to say whether, on this ground, there is ‘‘any duty’’ for Albania ‘‘to pay compensation’’ to the United Kingdom. … The Court answered in the affirmative.’’ 667 E. Mongelard – Corporate civil liability for violations of international humanitarian law Responsibility of States for Internationally Wrongful Acts (hereinafter the ILC Draft),7 subsequently adopted by the General Assembly of the United Nations.8 The specific case of international humanitarian law Well before it was codified by the ILC, the principle that there is an obligation to make reparation was expressly formulated in the specific context of international humanitarian law, in Article 3 of the 1907 Hague Convention IV.9 On examining the reports of the Hague Peace Conference, it can be seen that the delegates’ intention was not to create a principle but rather to extend the existing precept of private law that a principal is responsible for acts of his agents