Frequently Asked Questions

International crimes refers to very serious offenses prohibited under international conventions. Examples of international crimes include war crimes, genocide, and crimes against humanity. In the situation of an international armed conflict, violations of the Grave Breaches provisions of the four Geneva Conventions 1949 are prohibited and prosecutable by States Parties. In the situation of an internal armed conflict, Violations of Common Article 3 of the four Geneva Conventions 1949 are prohibited and prosecutable by States Parties. Provisions in the Additional Protocols of 1977 of the Geneva Conventions of 1949. Some of these offenses have attained the status of customary international law and are thus prohibited and prosecutable in all jurisdictions; the prohibition against crimes against humanity, for example, is a matter of customary international law. Other relevant criminal law treaties are the Convention Against Torture, the Genocide Convention, and more recently, the Rome Statute of the Criminal Court

They are different legal regimes, but both human rights and international crimes – like genocide, crimes against humanity and war crimes – operate on the principle of protecting people. As a result, some of the Red Flag fact patterns raise issues which are governed by the International Covenant on Civil and Political Rights, a human rights treaty which is widely ratified. The ICCPR also requires States Parties to ensure that persons whose rights are violated have effective remedies (Art. 2), which could include legal remedies. The UN Special Representative on Business and Human Rights, John Ruggies, summarises the link between businsess, human rights and international crimes in his report or 2007

In some countries, domestic criminal law allows business entities to be prosecuted for criminal acts. If those same countries permit prosecution of international crimes, then a business entity may also be subject to prosecution as well as individuals. In 2006,
the Fafo Institute surveyed the national laws of 16 countries from both civil and common law traditions, and from most continents, and found that most legal systems permit the criminal prosecution of legal persons. According to Fafo, these provisions, when coupled with plus widespread integration of the Rome Statute of the ICC to domestic legal systems, have resulted in an emerging “web of liability” (Ramasastry and Thompson, Fafo, 2006).

No one likes to think of themselves as in the same category as war criminals or dictators. But factors like global trade integration or the increasing demand for strategic minerals mean that many companies are closer than they think to very serious human rights abuse. The primary risk – although not the only one – lies in the danger of complicity, aiding and abetting those who commit international crimes. In many cases this will come down to a question of whether or not the company ‘knowlingly provided substantial material assistance’ to the commission of a crime. But definitions of complity vary according to jurisdiction and application to businesses remains to be defined. The bottom line is that, whether the problem lies somewhere down the supply chain or embedded in their relationship with a host government, companies will have to conduct due diligence to ensure they avoid participating in the international crimes of others.

Some of the types of events illustrated by the Red Flags may generate a separate basis for liability under civil law, particularly tort law. In the United States, for example, a federal statute, the Alien Tort Claims Act, allows plaintiffs to sue when the harm they allege is both a tort and a violation of international law. In addition, in some cases, alleged tortious acts may give rise to extra-territorial liability in the jurisdiction where the action is brought. Under extra-territorial jurisdiction, the harm may occur anywhere in the world as long as the court in which the action is commenced has jurisdiction over the individual or business. For individuals, this means that the defendant must be physically present in the United States to be sued. For corporate defendants, the court must have some basis for exercising jurisdiction over the entity. In other jurisdictions, a plaintiff may characterize a violation of international law as a tort and commence a civil proceeding for damages.

Complicity is a crime. Someone who may have assisted the commission of a crime may themselves be liable for “aiding and abetting” that crime, otherwise known as complicity. Those indirectly connected to alleged criminal acts committed by principals may, depending upon the circumstances, be at risk of criminal liability under the doctrine of “aiding and abetting” as a mode of commission, or may face other forms of liability under domestic civil and criminal statutes. As described in the case summaries on this web site, a number of cases against companies and individual business people have alleged complicity in the international crimes. The applicability to companies of aiding and abetting doctrines in various countries, or internationally, is at present being explored by legal researches and the courts.

International criminal law offenses may be prosecuted in international criminal tribunals, such as the International Criminal Court, but are more frequently enforced in domestic military or civilian courts, where they are subject to domestic procedural and substantive criminal law. Many serious international crimes are subject to universal jurisdiction and may be prosecuted in any jurisdiction where the accused is present in the absence of any other connection to the alleged criminal act(s). In practice, universal jurisdiction is not frequently employed. Most of the Red Flags examples may be offenses under domestic law inside the jurisdiction where the alleged acts take place, as well as international crimes.