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Over the past decade, there have been several cases finding corporations and foreign subsidiaries liable for extraterritorial environmental and labor-related violations (see, e.g., AJIL Agora articles by Robert McCorquodale, Andrew Sanger, and Nicola Jägers, et al.). In contrast to these suits involving primary liability and direct commission of violations by corporations and their agents, as addressed in my piece, Kiobel and Corporate Complicity – Running with the Pack, attempts to hold corporations responsible for aiding and abetting violations of international humanitarian and human rights law, committed by foreign states abroad have largely been unsuccessful. Indeed, out of the dozen or so cases alleging corporate complicity in foreign state abuses that have been filed in the past decade in North America and Europe, I am unaware of any resulting in a verdict against the company. (If AJIL Unbound readers know of any, I would be pleased to learn about them.)
Very few of these aiding and abetting cases (five are summarized in my article) get beyond the preliminary stages of adjudication, and most have been dismissed on the basis of jurisdictional doctrines such as standing, foreign non conveniens, failure to state a claim, mootness, comity, and political question. These dismissals on non-merits grounds suggest that there are significant policy and political considerations motivating courts and prosecutors to shy away from these cases. This is particularly true in ongoing, active conflicts. In addition to the cases I review, other examples include Sinaltrainal v. Coca Cola (11th Cir. August 11, 2009) and the case against Total in Belgium regarding alleged crimes committed by the military junta in Burma. Currently, there are a couple complaints pending (one involves a judicial inquiry in France against the company Amesys for providing surveillance equipment to the Qaddafi regime) and it will be interesting to see how they play out.
Part of what is motivating the courts and prosecutors in rejecting these cases, I believe, is skepticism about activists using courts as means to promote political agendas and to counter foreign policy with which they do not agree. In many of these cases, particularly those involving the Arab-Israeli conflict, the NGOs bringing these lawsuits are opposed to governmental stances (of both their own countries and the target state), and are using corporations as a means to judicially impose their preferred policy. Due to sovereign immunity laws, it is often difficult, if not impossible, for activists to bring suit against a state directly, and corporations serve as a convenient substitute. Corporations are powerful actors, but they are also susceptible to public pressure. A main goal of these lawsuits, therefore, is to generate significant PR in order to influence public opinion. It is also hoped that by making the companies operate under the specter of legal liability, the corporations too will act as pressure agents on governments.
Another factor limiting the success of these lawsuits is that the claims are often based on ill-defined concepts in international law and a tenuous connection to the alleged violations, such as allegations of indirect complicity or complicity by omission rather than direct action. For example, several cases have sought to impose judicial restrictions on companies on the basis that they are complicit in Israeli settlement activity. Yet, international law relating to settlements is not clear (as has been pointed out by Eugene Kontorovich, among others), and to the extent that such activity is unlawful, it is even less clear what type of corporate activity, if any, would fall within that designation. (See, e.g., summaries of the cases Alstom (France), Bilin (Canada), & Riwal (Netherlands) in my article.)
Lastly, these decisions appear to reflect a preference for addressing potential violations of international humanitarian and human rights law multilaterally, as discussed by Austen Parrish in his agora article entitled Kiobel’s Broader Significance: Implications for International Legal Theory. Kiobel and the rejection of corporate complicity cases in Europe and North America send a message that these issues are often better resolved through negotiations and multilateral channels rather than via litigation initiated unilaterally by activists subject to limited accountability. A patchwork of judicial decisions levied on corporations in multiple jurisdictions, yet actually aimed at changing the behavior of a state, can only lead to chaos and more conflict.
Anne Herzberg is the Legal Advisor of NGO Monitor, a Jerusalem-based research institute.