The Paradox Of Prosecuting War Criminals While Ignoring Corporate Human Rights Abuses

Swiss court is currently prosecuting Liberian national Alieu Kosiah for war crimes committed during that country’s civil war. Fernando C. Saldivar SJ questions, however, why it is so easy for international courts to try war criminals but so difficult to prosecute large corporations for human rights abuses in Africa and other parts of the global south.

Prosecutors have completed their arguments in the trial of Alieu Kosiah, which has been underway in the Federal Criminal Court in Bellinzona, Switzerland since December 3, 2020. Kosiah is charged with war crimes during his time as a commander in the United Liberation Movement of Liberia for Democracy (ULIMO) during the First Liberian Civil War from 1989 to 1996.

Kosiah is the first person to be tried for war crimes in a civilian court in Switzerland. He is also the first Liberian to be held to account for atrocities committed during the Liberian Civil War. Yet, the question which should come to mind is, “What does this have to do with Switzerland?”

In 2001, the Swiss Criminal Code was amended to incorporate the Rome Statute of the International Criminal Court (ICC). The Rome Statute established the ICC and defined the four core international crimes which are subject to the court’s jurisdiction: genocide, crimes against humanity, war crimes, and the crime of aggression.

While the ICC can prosecute individuals for these crimes, its jurisdiction is relatively limited. The ICC can only hear claims that arise from conduct taking place on the territory of a State Party, where the crime is committed by a national of a State Party, or where the matter is referred by the UN Security Council. Outside of these limits, particularly without connection to a state which has ratified the Rome Statute, the ICC does not have authority to act.

While the ICC can prosecute individuals for these crimes, its jurisdiction is relatively limited.

 

Under Swiss law, these four crimes under the Rome Statute are made actionable in Swiss courts under the principle of universal jurisdiction. Therefore, it does not matter where in the world these crimes took place, or to whom, so long as the alleged perpetrator is present in Switzerland, and can therefore be charged and convicted of any of these crimes under Swiss law. That is how Alieu Kosiah, who had been a permanent resident of Switzerland for over twenty years, found himself on trial in a Swiss court for war crimes taking place entirely in Liberia, with no connection to Switzerland other than his presence in the country.

Switzerland is not the only European country exercising universal jurisdiction to haul the world’s human rights abusers into its courts. On February 24, 2021, a German court found Eyad al-Gharib, a former colonel in Syria’s intelligence services, guilty of aiding and abetting crimes against humanity in connection with President Bashar al-Assad’s brutal crackdown on protesters in Damascus in 2011. Belgium, France, the Netherlands, and Spain also recognize universal jurisdiction in these matters.

Universal jurisdiction stems from the premise that some crimes are so heinous that they truly are “crimes against all,” and that all nations have a vested interest in having them prosecuted. This desire to prevent impunity for crimes which the global community has determined to be the worst of the worst is one of the lasting legacies of the Nuremberg and Tokyo war crimes trials following the Second World War.

Should not countries that exercise universal jurisdiction to try alleged war criminals abroad be just as zealous in prosecuting their own nationals when they are accused of the same?

 

However, what is good for the goose is certainly good for the gander, right? Should not countries that exercise universal jurisdiction to try foreign nationals alleged to have committed gross human rights abuses abroad be just as zealous in prosecuting their own nationals when they are accused of the same? When those nationals are the country’s corporations, the answer has been a resounding no.

Switzerland takes a keen interest in what individuals who appear on its soil have done abroad, but turns a blind eye to what its own corporations do.  In fact, on November 29, 2020, less than a week before the Kosiah trial began, Switzerland rejected the Responsible Business Initiative (RBI), which would have allowed foreign victims of human rights abuses or environmental damage committed by Swiss corporations to sue for relief in Swiss courts.

Although the RBI garnered the support of 50.7% of the total Swiss electorate, it failed to pass with a majority in the requisite number of cantons to make it law. The failure of the RBI, and the general reluctance of governments in the developed world to open their courts to similar claims against their own corporations, represents a tremendous gap in the way we conceive of justice for victims of human rights abuses. For communities throughout Africa this question of access to remedy, as it applies to the conduct of multinational corporations, is of critical importance.

The general reluctance of governments in the developed world to open their courts to claims against their own corporations, represents a tremendous gap in the way we conceive of justice for victims of human rights abuses.

 

This is not to deny that the Alieu Kosiahs of the world need to be brought to justice, especially when you consider that the charges against him include murder, cannibalism, rape, sexual enslavement, and recruitment of child soldiers. The testimony offered in the Kosiah trial has been horrific and the fact that he is the only Liberian to stand trial anywhere in the world for war crimes in connection with the Liberian Civil Wars is itself inexcusable. Charles Taylor, the former president of Liberia, was convicted of human rights abuses in connection with the civil war in neighboring Sierra Leone, not the crimes he committed against his countrymen. 

However, there is a disconnect in international human rights law when it comes to Africa. While the overwhelming majority of investigations and indictments by the ICC have been directed at Africans, African citizens seeking redress in U.S. and European courts for what their companies do to them and their communities are stymied at every turn. In many cases, litigation alleging corporate malfeasance has dragged on for decades through numerous rounds of appeal. While access to remedy is itself recognized in international law as a human right, realizing that right when it comes to holding multinational corporations accountable for their conduct in Africa has been easier said than done.

Corporations wield tremendous power throughout the Global South, particularly in places where state governance is weak or non-existent. Unethical behaviour on their part can cause great harm to individuals, their communities, and the environment.

There is absolutely no point in pretending, glossy prospectuses aside, that corporations act in the interests of the communities where they do business. While the promotion of this way of thinking this may be one of the goals of investment based on Environmental, Social, and Governance (ESG) criteria, it does not address what is happening on the ground right now. ESG needs teeth to hold corporations legally responsible for what they do abroad and guarantee access to remedy to victims.

Environmental, Social, and Governance criteria … need teeth to hold corporations legally responsible for what they do abroad and guarantee access to remedy to victims.

 

One of the most tangible ways to bring this to fruition is for a renewed commitment to the negotiations for a UN Binding Treaty on Transnational Corporations with Respect to Human Rights, which aims to address this very justice gap on a global level. A human rights violation is no less egregious when it is at the behest of a corporation. Our desire for justice should be the same, regardless of whether the perpetrator is a powerful multinational or a war criminal.

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JENA works towards a just, poverty-free and
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JENA works towards a just, poverty-free and
ecologically regenerative Africa where people can unlock their full potential, free from direct, cultural, and structural violence.