On the first day of springabout a month before the U.S. Supreme Court issued its ruling in Kiobel v. Royal Dutch PetroleumI told a European audience in Paris why the law of U.S. corporate alien tort was about to wither. I expected to hear at the conference, sponsored by the American Bar Association and the Conseil National des Barreaux, about civil actions for corporate accountability taking root on the Continent. But I soon learned that Europe’s fresh shoots are mostly in the soilbox of criminal law.
Literally the day after the conference, the Versailles Court of Appeal rejected the possibility of a civil action based on international law, in a case that was initiated in 2007 by France-Palestine Solidarity Association against Alstom S.A. and Veolia Transport S.A. for building a tramway through East Jerusalem. At the conference, the French magistrate Simon Foreman argued that the Jerusalem tramway case would have stood a better chance had it been brought as a criminal casebut France only integrated international criminal law into the French criminal code in 2010, and formed a prosecutorial unit dedicated to those crimes in early 2012.
In the leading French criminal case, the Paris Court of Appeal ruled in January that an investigation should proceed against the Amesys unit of Bull S.A. over the resistance of the Paris prosecutors office. Amesys was charged with complicity in torture by the International Federation for Human Rights and Human Rights League after intrepid Wall Street Journal reporters found its snooping software in the Qaddafi spy headquarters during the fall of Tripoli. The same two NGOs have filed a similar complaint against Qosmos S.A. for supplying Syria’s Assad regime with spyware. (Both firms deny the allegations. Bull has since sold the controversial program to one of its designers, and Qosmos has sued the NGOs for defamation.)
The Netherlands is experimenting with both public and private enforcement of corporate human rights. But Europe’s most closely-watched private actionagainst our old friend Royal Dutch Shell plcwas a wash at the trial level. On Jan. 30, the District Court of the Hague in the Netherlands held Shell’s Nigerian subsidiary liable for damage to the fishing ponds of plaintiff Friday Akpan in the village of Ikot Ada Udo because it failed to install a concrete plug to prevent sabotage of an abandoned oil well. However, Shell won on the vital issue of parental liability. In a statement, the plaintiff Friends of the Earth Netherlands complained that it had been denied access to internal company documents that would prove that the parent determines the daily affairs of its subsidiary. An appeal is pending.
The first Dutch attempts to prosecute corporate human rights criminally have also been mixed. On May 14, Dutch prosecutors declined to prosecute Lima Holding B.V., whose Israeli subsidiary operated under the brand of the Dutch manufacturer Riwal B.V. The Palestinian NGO Al-Haq had argued in its complaint that Lima should be liable for war crimes for leasing cranes to build the West Bank barrier, after the Riwal logo was spotted on a crane in a Dutch news report about the controversial Israeli wall. According to the Associated Press, the prosecutors stated that they would not investigate whether the conduct violated war crimes because Lima had taken "far-reaching steps to halt its activities in Israel and the occupied territories."
The Netherlands has so far used criminal law to greater effect against executives than against corporations. In 2009 the Dutch Supreme Court upheld a 17-year sentence for complicity in war crimes for a private businessman, Frans Van Anraat, who supplied Saddam Hussein with chemical weapon materials and was foolish enough to speak about it on Dutch television. (He was acquitted of genocide.) The Dutch businessman Guus Kouwenhovenprosecuted for supplying weapons to former Liberian president Charles Tayloris being retried after his conviction for violating U.N. economic sanctions was overturned on procedural grounds. He was never convicted of war crimes.
In Germany, individual prosecution is the only option for corporate accountability, because corporations can’t be prosecuted. Only three weeks ago, Global Witness and the European Center for Constitutional and Human Rights filed a criminal complaint against a German-based senior manager of the Swiss timber company Danzer Group. Intriguingly, they allege that he failed to prevent human rights offenses committed by Congolese police and military in the village of Bongulu, including rape, by failing to clearly instruct a Congolese subsidiary on dealing with Congolese security forces notorious for sexual violence during conflicts between loggers and local communities.
Can any tentative lessons be drawn from these assorted cases, other than that war criminals shouldn’t go on Dutch TV, or leave spy software lying around?
My main takeaway from the Paris conference is that corporate accountability on the Continent seems more likely to be advanced through criminal than civil actions. Perhaps that’s a matter of legal culture, or perhaps it’s because European criminal law can empower NGOs while keeping the safety screen of prosecutorial discretion. I learned that criminal cases are easier to win against executives than businesses; that cases against executives are easier to win under war crimes than genocide; and that sanctions-busting cases are easier still. "Sanctions regimes are a valuable alternative to international crimes, which are very hard to prove," says Larissa van den Herik of Leiden University.
Can these lessons be applied in America? Arguably, they already have been.
U.S. war crimes ambassador Stephen Rapp declared in his Paris keynote address that, although it is not usually conceived as such, the November 2011 conviction of the arms dealer Viktor Bout was among the most important recent developments in the deterrence of gross human rights abuse. "The Viktor Bout prosecution matters too," he said. "We need to look at other ways and other modes of responsibility."
Bout was convicted, based on a weapons deal with Columbia’s FARC rebels, of conspiring to kill U.S. nationals and U.S. officers and employees, to use anti-aircraft missiles, and to materially support terror. There may have been more direct ways to make a statement about human rights. (For instance, the War Crimes Act of 1996 makes it a U.S. crime for an individual to gravely breach the Geneva Conventions when either the perpetrator or victim is a U.S. national). And doubtless, the applicable U.S. criminal regimes could be sharpened, for instance by making war crimes applicable to corporations, or criminalizing the violation of U.N. economic sanctions. But when U.S. prosecutors are motivated, they have many tools at their disposal. And, even after Kiobel, they have significant extraterritorial reach.
Conference organizer Elise Groulx-Diggs, who was a pioneer of the international criminal defense bar, believes that in Kiobel‘s aftermath criminal law will be invoked more by human rights activists, and ultimately by prosecutors on both sides of the Atlantic.
"The U.S. is the number one prosecutor for corruption, money laundering, and assisting terror," says Groulx-Diggs, who seeks to establish a human rights compliance and education practice at Washington D.C.’s Boyle Litigation firm. "Since the U.S. already has a record of going after corporations, it’s only a matter of adopting a strong policy on human rights."
