Kalika Mehta explores the limitations of international law in addressing corporate atrocities. The author argues for a strategic approach to international criminal law that challenges systemic biases and promotes justice for marginalized communities.
TWAILR: Reflections ~ 68/2024
In a world that glorifies decisive authority, the harbouring of uncertain attitudes is often perceived negatively. With respect to the international legal order, TWAIL responses are marked by ambivalence on several counts. While it is able to challenge the legitimacy of the international legal order effectively, it is also painfully aware of the value of this framework as a site for contestation, as a site to demand justice for marginalized peoples. In doing that, arguably, it carries ambivalence with level-headedness, with its contradictions at the forefront.
My recently published book ‘Strategic Litigation and Corporate Complicity in Crimes Under International Law: A TWAIL Analysis’ speaks of and to this ambivalence. Looking at international law through a TWAIL lens, it highlights the limitations of international legal order vis-à-vis the role of corporations in atrocity crimes. It rests on the understanding that critique of international law does not negate the possibility of engaging with it, particularly when addressing its structural failings. In that vein, the book is an exploration of an alternative practice of international criminal law that is not only aware of but also aims to address and challenge the biases of the international criminal justice system. This practice is referred to as strategic litigation: legal interventions that are situated against the backdrop of the socio-legal context within which the law operates and are primarily aimed at reforming the structures that perpetuate inequality in the global order. Whether a given attempt to litigate international law is strategic largely depends on answers to the questions of where, when, to what end, and on whose behalf.
Contrary to what the frequent claims of ‘strategic litigation’ by a varied range of actors might suggest, such political understanding of the term considerably limits its scope. Typically, actors seeking greater implementation of international law (e.g. anti-impunity initiatives) would claim to be engaged in strategic litigation. However, while important, such an enforcement exercise is not strategic if it ignores the underlying biases at play. It is simply an act of repair that helps to perpetuate the status quo.
One manifestation of such structural bias in the international legal order is the way in which international criminal law treats corporations. These multinational corporations are often headquartered in Western states but are complicit in large-scale violations in the ‘Global South’. Historically, corporations have been the flagbearers of colonial missions and the violence inherent to the colonial encounter. In the current global economic order, multinational corporations continue to exploit the circumstances in the formerly colonized nations for their profit, either in the more popular ‘sweatshops’ model or in the less highlighted yet more violent ways by contributing to atrocity crimes. These are cases where, instead of capitalizing on corporate power in morally defensible ways to address an already precarious situation, multinational corporations actively choose to embroil themselves in violence for exponential profits and, as a result, end up prolonging or aggravating the violence against the marginalized. For instance, German and Italian companies selling arms to groups/states reportedly committing war crimes in Colombia, Yemen; or a Swedish company forming a consortium with local actors in South Sudan, contributing to thousands of deaths and forced displacements of the local population; French companies selling surveillance technologies to the repressive governments in Syria, Libya, and Egypt.
Despite clear records and documentation of this instrumental role of corporations in historical and current conflicts, international criminal law fails to hold them accountable. No international criminal court/tribunal has ever prosecuted a corporate entity for their involvement in international crimes. The Rome Statute of the International Criminal Court does not have jurisdiction over the corporations. In the book, I describe how both Nuremberg and Rome offered clear and concrete opportunities to lay the groundwork for international economic criminal law – models that would embrace the principle of individual criminal responsibility while recognising the corporate structures that drive and perpetuate large-scale violence. However, on both occasions, the opportunity was missed for practical and political rather than normative reasons. At Nuremberg, a planned international trial of industrialists who supported the Third Reich did not take place, largely because of political differences among the Allied, and in Rome, the proposal for accountability of legal entities was not voted on, as it was considered premature to introduce the notion. While there is a clear accountability gap at the international level, international criminal law is increasingly being invoked in domestic courts to address cases of corporate complicity.
The book examines three case studies in great detail, focusing equally on what makes the litigation of non-state actors strategic and how they have used existing legal avenues to seek corporate accountability for crimes under international law. These three cases are emblematic of the general trends that emerge from a stocktaking of this practice in domestic courts, which broadly include cases brought under the Alien Tort Statute in the United States invoking international criminal law, trials in a transitional justice context largely based on domestic criminal law relying on international criminal law norms, and extraterritorial prosecutions based on legislation incorporating the Rome Statute into domestic law. To illustrate these three avenues, the book looks at civil society organizations in the United States, Argentina and Germany/France challenging corporate giants and their alleged complicity in international crimes.
One of the case studies looks at the practice of a US-based organization, the Centre for Constitutional Rights (CCR). They were in the news earlier this year for filing a federal lawsuit against the US President on behalf of Palestinian human rights organizations and Palestinians in Gaza for complicity in genocide – another legal intervention that qualifies as strategic because of its timing, the constellation of actors actively involved and supporting the litigation, and the actors and the kind of conduct it seeks to challenge, among other things. The book looks at their very long journey and the difficulties – typical of corporate cases – against CACI International Inc., a US-based private military security company, for its complicity in war crimes committed during the Iraq war. Another case study follows Buenos Aires-based Centro de Estudios Legales y Sociales (CELS), a key player in Argentina’s long-running transitional justice movement. They have been instrumental in seeking accountability for crimes committed by the last military dictatorship and in incorporating the framework of crimes against humanity into domestic law. Through their documentation and record-keeping, the extent of systematic corporate involvement in crimes against humanity committed by the military has been established. More than four decades later, several of these companies are being investigated for their role in military repression as part of ongoing transitional justice initiatives.
The third case study focuses on the European Center for Constitutional and Human Rights (ECCHR) in Berlin and Sherpa, based in Paris, and their complaints against a French (now Swiss) cement giant, Lafarge, for its involvement in crimes against humanity in Syria. This case will be discussed in further detail due to disappointing developments that have taken place since the book’s publication. This case is significant because it marks the first time a corporate entity has been indicted for complicity in crimes against humanity. This is due to the French criminal law framework, which provides for corporate criminal accountability. Additionally, the French parent company and its executives are being prosecuted for the conduct of its subsidiary in Syria.
Between 2012 and 2014, Lafarge is alleged to have paid approximately 13 million Euros to the Islamic State (ISIS), endangering the security of its employees to continue its operations in Syria. ECCHR and Sherpa, along with Syrian employees of the company, filed a criminal complaint against the company. The ongoing trial is not only about prosecuting financing an armed group in Syria but it must also be seen against the backdrop of the 2015 terrorist attacks in Paris claimed by ISIS. Lafarge’s transactions with ISIS became even more critical due to the attacks, as they not only targeted civilians in Syria but also threatened the people and national security of France. As a result, this case was immediately framed within a repressive counter-terrorism context. Therefore, it was all the more critical and strategic for the two organizations to shift the narrative by implicating the corporation of crimes against humanity and endangering the lives of its employees in Syria.
In January 2024, the Supreme Court of France, acting on an appeal by the parent corporation, upheld the charge of complicity in crimes against humanity but dismissed the charge of endangering the lives of its employees in Syria. While it can be seen as a positive development that a French court confirmed that their corporations could be held accountable for international crimes committed abroad, the second part of this decision is an exemplary setback. The court accepted the argument that the French (now Swiss) corporation could not be held accountable for the labor conditions of its subsidiary in Syria. Despite unusually strong evidence of executive interference by the parent company in the subsidiary’s functions, the court refused to pierce through the structure of a multinational corporation. The same conduct by the same corporation in France against its French employees would have been unlawful. However, such high protection thresholds do not apply to Syrian employees because they were hired through a subsidiary. The corporate structure allows outsourcing of work and violence but not protection.
Such a decision confirms what Chimni recently argued: that the exercise of jurisdiction privileges the interests of capitalist structures and, therefore, implicates the law in perpetuating inequality. Such an understanding has far-reaching implications for the protection and rights of the vast majority of workers in the Global South whom wealthy Western corporations indirectly employ through subsidiaries. While this latest decision by the French Supreme Court is a procedural one that does not negate the guilt of the company and those acting on its behalf, it does deprive the victims of this rare avenue for justice and redress and brings to an abrupt end the efforts and mobilizations of the last eight years or so. In many ways, this interpretation of the law further cements a hierarchy among victims and protected interests. Such frequent setbacks and failures of strategic legal interventions confirm that ‘international legal subalternity, in the words of Ardi Imseis, is a permanent fixture of the international legal order’. This acknowledgement of subalternity and the persistence of engaging with the international legal order gives rise to TWAIL’s ambivalent responses.
The ambivalence is particularly noteworthy concerning TWAIL’s approach towards the state. On the one hand, its conception happened in an essentially statist framework during the anti-colonial phase. On the other hand, there is also simmering suspicion against the postcolonial state, which, in many ways, has inherited the oppressive ethos of its colonial predecessor. This has been, perhaps rightly, critiqued by TWAIL’s well-wishers. However, it cannot be overstated that the constituency that TWAIL claims to speak on behalf of the ‘peoples’ whose interests at times do not even align with those of the Global South states that continue to function in capitalistic, imperial frameworks. So, ultimately, a TWAIL-informed practice of international law has to work towards deprivileging the state and addressing material inequality regardless of whether it occurs in the metropole or the periphery.
Before I conclude, it must be highlighted that these strategic attempts by transnational non-state actors are not presented as ideal and do carry hierarchical tendencies. In some ways, they end up contributing to the power structures underlying the conflict and mirror unequal and in-egalitarian relationships. Their impact on the subversive capacity of resistance remains to be analysed, for they might serve as the life force of the oppressive framework that must be entirely overturned. The aim here was to put a spotlight on the shape activism takes in the international criminal justice framework and the ways in which it impacts its practice. As the Lafarge case discussed here illustrates, their interventions seek to challenge the biases of the international legal framework. The two organisations involved attempted to shift the discourse from a repressive counter-terrorism framework to one of responsibility of a Western multinational towards the violence and victims in Syria. Their impact is not contingent on legal victories because even if these interventions do not produce ideal results in the courtroom, they end up highlighting the coloniality of international law. In that context, this practice may be perceived as a counter-narrative to the mainstream account of the practice of international criminal law. The hope remains that further systematic engagement with this practice might either lead to more strategic counter-hegemonic attempts or make the need for such work more urgent.
