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Corporations, international crimes and national courts: a Norwegian view
Published online by Cambridge University Press: 03 December 2013
Abstract
For a number of reasons, questions regarding the accountability of corporations for actions that might be complicit in the commission of international crimes have gained prominence in recent times. Though initiatives regarding what is more broadly described as business and human rights are to be welcomed, this sometimes distracts from existing systems of accountability, especially when those acts, which may be discussed as human rights violations, equally constitute crimes. Whilst not all criminal jurisdictions extend to legal persons, the Norwegian Penal Code does. This article analyses the Norwegian Penal Code's provisions, in light of amendments made to it in 2008 to include international crimes in it, with the effect of extending those crimes to corporations. The article first addresses the personal, material, temporal, and geographical scope of the penal code. It then addresses the potential consequence of the exercise of jurisdiction in light of the only case in recent times in Norway that deals explicitly with a corporation's potential criminal liability for war crimes. The article then addresses three additional issues with respect to provisions on complicity, intent, and defences under the Norwegian Penal Code, before concluding with some reflections on the possible future effects of this legislation and the possibility that it will inspire developments elsewhere.
- Type
- Business and the law – in armed conflict and other situations of violence
- Information
- International Review of the Red Cross , Volume 94 , Issue 887: Business, violence and conflict , September 2012 , pp. 1007 - 1025
- Copyright
- Copyright © International Committee of the Red Cross 2013
References
1 See, for example, the significant volume of material available from the Business and Human Rights Resource Centre (www.business-humanrights.org), though the section on conflict (www.business-humanrights.org/ConflictPeacePortal/Home) arguably addresses issues of tort liability more than criminal liability. Similarly, see the initiatives of Amnesty International (www.amnesty.org/en/business-and-human-rights), the Institute for Human Rights and Business (www.ihrb.org), and the Office of the High Commissioner of Human Rights (www.ohchr.org/EN/Issues/Business/Pages/BusinessIndex.aspx). All internet references were accessed in May 2013.
2 Significant work has been done, of course, such as the three-volume International Commission of Jurists' (ICJ) Report of the ICJ Expert Panel on Corporate Complicity in International Crimes, 2008, available at: www.icj.org/report-of-the-international-commission-of-jurists-expert-legal-panel-on-corporate-complicity-in-international-crimes/. To the author's knowledge, however, neither this nor any other work has addressed the Norwegian jurisdiction in its current form. A special edition of the Journal of International Criminal Justice similarly dealt with these issues in broad terms, though with perhaps less focus on domestic criminal systems. See Special Issue: Transnational Business and International Criminal Law, Journal of International Criminal Justice, Vol. 8, No. 3, July 2010.
3 See ‘Recommendations on Follow-Up to the Mandate’, February 2011, p. 4, available at: www.globalgovernancewatch.org/docLib/20110218_GGW_-_Ruggie.pdf.
4 Ibid.
5 This is not to suggest that the Norwegian Penal Code offers the ideal model for all domestic legal systems. Rather, it is to illustrate those aspects of it that will not be inconsistent with others, considering their own jurisdictions or judicial principles or practice. This is not, however, a comparative paper and will not therefore identify similarities across jurisdictions.
6 Both Hart and Dworkin have employed the phrase ‘liability-responsibility’: see Hart, H. L. A., Punishment and Responsibility, Clarendon Press, Oxford, 1968, pp. 216 ffGoogle Scholar; Dworkin, Ronald, Justice For Hedgehogs, Harvard University Press, Cambridge, 2011, p. 103Google Scholar (though Hart goes on to qualify his notion in terms broadly in line with how I wish to approach it, namely to talk of – or emphasise on – liability, not responsibility). Descriptions may however differ dependent on the premise or discipline from which the issue is viewed. See, for a legal perspective, Wells, Celia, Corporations and Criminal Responsibility, 2nd ed., Oxford University Press, Oxford, 2001, p. 1CrossRefGoogle Scholar: ‘This is a book about the criminal liability of corporations’, and, for a philosophical perspective, Donaldson, Thomas, Corporations and Morality, Englewood Cliffs, NJ, Prentice-Hall, 1982Google Scholar, a work in which the word ‘liability’ does not appear once, compared to the pervasive use of the term ‘responsibility’.
7 I do not suggest that this is an endemic fact, but I think clarity of expression is merited here.
8 A previous review of the scope of Norwegian criminal law in this regard took place in the context of the ‘Business and International Crimes Project’ at the Fafo Institute for Applied International Studies, Oslo: see www.fafo.no/liabilities/Norway.pdf. However, this review, undertaken in 2004, concerned the previous 1902 Penal Code (as amended). It did not therefore consider the newer specific war crimes provisions in the context of corporate punishment. The Fafo review assessed the likelihood of corporate complicity for war crimes but considered their application via a generic provision of the Military Penal Code. How private corporations would fall under the Military Penal Code was not discussed, but in light of the new Penal Code provisions, this issue is now likely moot. This review was similarly relied upon, though cursorily, in the February 2008 report prepared for the Special Representative of the UN Secretary-General on Human Rights and Business. See Allens Arthur Robinson, Corporate Culture as a Basis for the Criminal Liability of Corporations, p. 59, available at: http://198.170.85.29/Allens-Arthur-Robinson-Corporate-Culture-paper-for-Ruggie-Feb-2008.pdf. Additional remarks to the Fafo study have been provided by Professor Jo Stigen (p. 9) and can be found at: www.fafo.no/liabilities/Additional%20commentary%20Sept%202009.pdf. The Fafo/International Alert Red Flags initiative can be found at: www.redflags.info/index.php?page_id=11&style_id=0.
9 General corporate criminal liability might be thought to exist in different jurisdictions under three forms: vicarious liability, the identification liability, or organisational liability. This paper will not examine the respective merits or details of these variant forms of liability.
10 General Civil Penal Code, LOV 2005-05-20-28, hereinafter also ‘Penal Code’. Whilst a formal translation is pending, a working translation was made available by the Norwegian Ministry of Justice and is in the public domain. It is also due to be used in forthcoming updates for Norway in the ICRC Customary Law Study database.
11 The following comment, though rendered slightly differently as ‘the corporation is not indictable, but its members are’, was recently quoted in Stewart, James A., Corporate War Crimes: Prosecuting the Pillage of Natural Resources, Open Society Justice Initiative, Open Society Foundations, New York, 2010, p. 75Google Scholar, available at: www.opensocietyfoundations.org/sites/default/files/pillage-manual-2nd-edition-2011.pdf.
12 This statement appears as a single-sentence citation from an anonymous case recorded in 1701. See Anonymous Case No. 935, 88 Eng. Rep. 1518, 1518 (K.B. 1701).
13 See Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, Vol. I, 1947, p. 223, available at: www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-I.pdf.
14 In proceedings, a motion adopted by all defence counsel of 19 November 1945 was submitted, which inter alia challenged the jurisdiction of the court to try individual persons on the basis that there was no such premise in international law. The focus on attribution of responsibility for unlawful acts of force was on states and not the ‘thought of bringing up for trial the statesmen, generals and industrialists of the state which recurred to force’. Ibid., p. 168.
15 The recent title of an essay by Florian Jessberger on the IG Farben trial is illustrative of where the emphasis lay (and continues to lie in some fora). See Jessberger, Florian, ‘On the origins of individual criminal responsibility under international law for business activity’, in Journal of International Criminal Justice, Vol. 8, 2010, p. 783CrossRefGoogle Scholar.
16 Sections 101 (‘Genocide’), 102 (‘Crimes against humanity’) and 103–107 (‘War crimes’) of the Norwegian Penal Code can be found on the ICC Legal Tools database, available at: www.legal-tools.org/en/doc/a9b7c1/. A summary of the provisions can also be found on the ICRC's National Implementation Database, available at: www.icrc.org/ihl-Nat.nsf/6fa4d35e5e3025394125673e00508143/5f7063073aa4a891c12576ce00589022!OpenDocument.
17 The full rationale for the decision not to proceed is not a public document. However, a press statement (in Norwegian) is available at: www.riksadvokaten.no/no/dokumenter/pressemeldinger/Pressemelding++Anmeldelse+av+Aker+Kv%C3%A6rner+ASA.9UFRrSZr.ips.
18 Whether an individual has, at the material time (either of commission or assistance to the commission of a crime), acted on behalf of the company will generally be a question of fact. Was the employee acting in the ordinary course of the company's business activities? Were the actions of the employees within their remit? Such questions of fact would also have relevance to the defence companies might wish to advance against being penalised.
19 The word used in Norwegian (tilregnelighet) can translate as both ‘accountability’ and ‘responsibility’. The term foretakstraff – the heading of Chapter 4 of the Penal Code – is translated as ‘corporate penalty’; where it is used in the body of the text, such as ‘foretaket straffes’, it denotes liability.
20 The likelihood of those of diminished mental capacity acting on behalf of a company in the probable scenarios that this paper postulates is perhaps so remote as not to warrant further exploration here, notwithstanding the interesting conceptual discussion of a company being criminally punishable/responsible for the acts of those not capable of being responsible for themselves.
21 International Criminal Tribunal for Rwanda (ICTR), The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (Trial Chamber), 2 September 1998, para. 531.
22 International Criminal Tribunal for the Former Yugoslavia (ICTY), The Prosecutor v. Krstić, Case No. 98-33-A, Judgement (Appeals Chamber), 19 April 2004, para. 143.
23 See above note 16 for the provision in the Norwegian Penal Code. Arts. 6 and 7 of the Rome Statute are available at: www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.
24 See above note 16.
25 The chapeau to sections 103–107 reads ‘Any person shall be liable to punishment for war crime who in connection with an armed conflict’ before listing the particular war crimes each section addresses.
26 See Penal Code, sections 103–107 respectively, above note 16.
27 Ibid., section 108.
28 Ibid., section 109.
29 For a discussion on the way in which Norwegian courts have dealt with this issue see Simon O'Connor, War Crimes before the Norwegian Supreme Court: The Obligation to Prosecute and the Principle of Legality – an Incumbrance or opportunity?, Oxford Institute for Ethics, Law and Armed Conflict Working Paper Series, February 2013, p. 17, available at: www.elac.ox.ac.uk/downloads/war%20crimes%20before%20the%20norwegian%20supreme%20court%20-%20working%20paper.pdf.
30 See discussions on section 5(c)(2) of the Norwegian Penal Code in this article.
31 See S. O'Connor, above note 29.
32 Penal Code, section 103(1)(h). The definition of a protected person under the Penal Code is found at section 103(3); see above note 16.
33 Oslo City Court, The Public Prosecutor v. Misrad Repak, Case No. 08-018985MED-OTIR/08, Trial Judgement, 2 December 2008. A translation of the trial judgement can be found at: www.icrc.org/ihl-nat.nsf/46707c419d6bdfa24125673e00508145/45061a413067e31cc125755c004a5773/$FILE/Public%20Prosecutor%20v.%20Misrad%20Repak.PDF.
34 Norwegian Supreme Court, Public Prosecuting Authority v. Misrad Repak, Court of Appeal Case No. 09-024039AST-BORG/01, Appeal Judgement, 12 April 2010.
35 The Supreme Court held two hearings in this case. The first concerned the conviction in Norwegian Supreme Court. A v. The Public Prosecutor, HR-2010-02057-P (sak nr. 2010/934), 3 December 2010, available at: www.domstol.no/upload/HRET/Avgj%C3%B8relser/2010/saknr2010-934-plenum(anonymisert).pdf, see especially paras. 106–111. The second sentencing, Norwegian Supreme Court, A v. The Public Prosecutor, HR-2011-00808-A (sak nr. 2010/934), 13 April 2011, is available at: www.domstol.no/upload/HRET/Avgj%C3%B8relser/2011/saknr2010-934(anonymisert).pdf. An English translation of this second hearing can be found at: www.domstol.no/en/Enkelt-domstol/-Norges-Hoyesterett/Summary-of-Recent-Supreme-Court-Decisions/Summary-2011/.
36 Equally, where those crimes are committed by a Norwegian national or resident outside of Norway, they similarly fall within this jurisdiction.
37 Those are issues of prosecutions for extraterritorial international crimes only being instituted when in the public interest and the apparent scope of successor or acquisition liabilities (though likely addressed through due diligence defences). Both, of course, merit sustained attention.
39 See above note 35. Norwegian Supreme Court, A v. The Public Prosecutor, 13 April 2011, para. 98.
40 Ibid.
41 Ibid.
42 See ICTY, The Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement (Trial Chamber), 10 December 1998, para.155; Special Court for Sierra Leone (SCSL), The Prosecutor v. Morris Kallon and Brima Bazzy Kamara, Case Nos. SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty (Appeals Chamber), 13 June 2004, paras. 82–84 as to the customary status of such a notion. Additionally, see the detailed reference inter alia to national practices of amnesties not covering core international crimes in Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. II, Part 2, Cambridge University Press, Cambridge, 2005, pp. 4017–4044CrossRefGoogle Scholar, available with updated material at: www.icrc.org/customary-ihl/eng/docs/v2_rul_rule159.
43 SCSL, The Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-03-01-T, Judgement (Trial Chamber), 18 May 2012.
44 Ibid., para. 6904.
45 Whilst there are certain aspects of accomplice liability across tribunals that may differ, the broad sense articulated in the Taylor trial judgement is one on which a domestic court considering international crimes could properly rely. This is particularly so where that test is markedly similar to the test for accomplice liability for domestic crimes, as is the case in Norway. At the time of writing there had been a further two trial judgements, three appeal judgements and one retrial judgement from the ICTY. The most recent articulation of the test before the ICTY can be found in ICTY, The Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement (Trial Chamber), 27 March 2013, paras.107–108.
46 There may be some discussion as to whether recklessness and dolus eventualis are directly related. Whilst for some they may seem synonymous, see Cassese, Antonio, International Criminal Law, Oxford University Press, Oxford, 2003, p. 168Google Scholar.
47 ICTY, The Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgement (Trial Chamber), 31 July 2003, para. 587.
48 Ibid.
49 Ibid.
50 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Decision on the Confirmation of Charges (Pre-Trial Chamber I), 29 January 2007, paras. 353–355.
51 ICC, The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. 01/09-01/11, Decision on the Confirmation of Charges (Pre-Trial Chamber II), 23 January 2012, para. 336; ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. 01/05-01/08, Decision on the Confirmation of Charges (Pre-Trial Chamber III), 15 June 2009, paras 358–360.
52 See Pigaroff, Donald K. and Robinson, Darryl, ‘Article 30: mental element’, in Triffterer, Otto (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article, 2nd edition, C.H. Beck, München, 2008, p. 860Google Scholar, footnote 67.
53 An additional paragraph to the three that now make up Article 30 was included in draft Article 29. It read: 4. For the purposes of this Statute and unless otherwise provided, where this Statute provides that a crime may be committed recklessly, a person is reckless with respect to a circumstance or a consequence if: (a) The person is aware of a risk that the circumstance exists or that the consequence will occur; (b) The person is aware that the risk is highly unreasonable to take; and (c) The person is indifferent to the possibility that the circumstance exists or that the consequence will occur. See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court Rome, 15 June–17 July 1998, Official Records, A/CONF.183/13 (Vol. III), pp. 33–34.
54 Werle, Gerhard and Jessberger, Florian, ‘Unless otherwise provided: Article 30 of the ICC Statute and the mental elements of crimes under international criminal law’, in Journal of International Criminal Justice, Vol. 3, 2005, pp. 51–55CrossRefGoogle Scholar.
55 Readers might ask whether this activity (i.e. dialogue on international humanitarian law) could enable a corporation to claim that it fulfilled its duties under section 28(c) above. This is arguably not the case, since the factor in mitigation would seem to go beyond mere education but rather to the inculcation of the understanding of the possible implications of international humanitarian law for the company's operations into its corporate practice.