Corporate actors may be involved in the supply of a range of goods and services that can be used to further the commission of gross human rights violations. The supplies include:

  • overtly military goods (such as weaponry) and dual use goods, which have a civilian use but can also be used for military purposes; and
  • common goods and services provided by businesses that can include construction equipment, chemicals, mechanical equipment or software. 

Broadly speaking, a supplier (any actor within the supply chain, from the manufacturer to the distributor) can face criminal charges for their role in supplying such goods or services in two ways:

  • through complicity in international crimes where the goods and services are used to commit further crimes;
  • by violating domestic or regional sanctions regimes where the violations lead to criminal liability.
International criminal law
Domestic law
Sanctions

International criminal law

Supplying as a war crime or crime against humanity
A natural or legal person who supports the commission of a war crime or a crime against humanity through the provision of goods and services might be found liable for complicity in those crimes if the relevant goods or services assist a principal perpetrator in the commission of that crime.1
In order to establish that the perpetrator was complicit in such crimes, it must be demonstrated that:

    1. a war crime or a crime against humanity was committed or attempted;
    2. the perpetrator aided, abetted or otherwise assisted in the commission of the crime or its attempted commission, including by providing means for its commission; and
    3. the perpetrator provided assistance to facilitate the commission of the crime.2

Domestic law

  1. France

Complicity in war crimes, genocide and crimes against humanity

Articles 461-2 to 461-31 of France’s criminal code enumerate the acts that amount to war crimes, which include infringement of the rights to life, physical or psychological integrity, individual liberty and other human rights and freedoms.3 

Articles 211 to 212-3 enumerate the acts that amount to genocide and crimes against humanity, including deportation or transfer, enslavement or the massive and systematic practice of summary executions; abduction and enforced disappearance; and torture and inhuman acts that are motivated by political, philosophical, racial or religious motives. 

The code recognizes the criminal liability of any person who knowingly aids, abets or facilitates the preparation or commission of such crimes, and considers them to be an accomplice and punishable as a direct perpetrator. 4

The code establishes that criminal liability can also arise against a legal person, which means that corporations and other legal entities can be held criminally liable for offences committed on their account by their organs or representatives.5 As an accomplice, the corporation too may be punished as if it was a direct perpetrator. 

A corporation found guilty of complicity in war crimes or crimes against humanity may incur the following penalties:6 

      • dissolution;
      • a ban on exercising directly or indirectly certain social or professional activities either permanently or for up to five years;
      • permanent closure or closure for up to five years; 
      • judicial supervision for up to five years;
      • disqualification from public tenders; 
      • confiscation of some or all of its assets.
  2. USA

Complicity in war crimes and genocide

Under Title 18, Chapter 118 of the US Code on Crimes and Criminal Procedure (USC), whoever inside or outside of the USA commits a war crime can be fined or imprisoned for up to life.7 The Chapter enumerates the actions which, if committed in an armed conflict and under certain circumstances, could amount to war crimes, including torture, cruel or inhuman treatment, murder, performing biological experiments and rape.8

Under Chapter 50A, whoever commits the crime of genocide can be sentenced to death or life imprisonment and a fine. The 2007 Genocide Accountability Act amended the 1987 Genocide Convention Implementation Act to allow prosecution of non-US nationals found in the USA and responsible for acts of genocide outside of the USA. 

The USC establishes that: 

“whoever commits an offence… or aids, abets…, induces or procures its commission, is punishable as a principal”.9 

This means that a person who aids and/or abets another to commit a crime may be held criminally liable to the same extent as the direct perpetrator. As corporations are generally considered to be legal persons capable of committing crimes, a corporation may be found guilty of crimes if it is proved that they aided and/or abetted through their actions a war crime.

Additionally, under US law, a corporation can be convicted of crimes when an employee or agent of the corporation, while working within the scope of their employment and whose acts at least in part were motivated by the intent to benefit the corporation, committed an offence.10 

Sanctions

  1. International law
    Generally speaking, the term “sanctions” covers the consequences of violating an international legal rule.11 They range from soft responses such as public shaming to coercive measures such as economic sanctions. Sanctions are also defined as socially organized acts of constraint, and in international law often refer to coercive measures taken in execution of a decision of a competent social organ – a body legally empowered to act on behalf of the society or community that is governed by the legal system.12Economic sanctions, more specifically, are political trade restrictions directed at specific countries, entities or individuals designed to apply pressure, in order to compel targets to change their policies or actions.13  Excluded from the scope of this Hub are: 

    • non-coercive measures: including purely legal sanctions such as the nullity of an act, or the soft mechanisms of condemnation by public opinion; 
    • counter-measures: unilateral measures taken by states or international organizations as a response to a breach of their rights that constitute counter-measures. 

    Legally, the term “sanctions” covers restrictive measures that an individual state or international organization such as the European Union (EU) decides to take against another state or organization (often called “autonomous sanctions”) as well as measures a state is obliged to take by virtue of a decision issued by a multilateral organization (such as the UN).

  2. Sanctions in practice
    States and multilateral bodies can impose economic, trade or other sanctions against other states, organizations, individuals or groups. Sanctions are usually imposed against:

    • countries that threaten international peace and security or violate human rights; or 
    • individuals, organizations, groups or corporations that violate human rights or are involved in terrorist activities. 

    Specifically, the UN Security Council has the authority to introduce sanctions in an effort to maintain or restore international peace and security.14  

    The EU, under its Common Foreign and Security Policy, can similarly impose sanctions as a means of promoting international peace and security; preventing conflict; supporting democracy, the rule of law and human rights; and defending the principles of international law. It can do so autonomously or by implementing binding Security Council resolutions. 

    States acting in compliance with Security Council resolutions and EU Council decisions or regulations abide by the sanctions imposed by both the UN and EU. They can introduce legislation or regulations that criminalize acts that try to circumvent and breach these sanctions by engaging in trading or other activity with sanctioned individuals, groups, organizations or countries. 

    States may also use sanctions autonomously for other purposes, including to support foreign policy and national security objectives.

Implications for businesses
Corporations must ensure that their business operations comply with financial and trade sanctions introduced both at the domestic level (where they operate) or at the international level, by conducting thorough due diligence and background checks on their suppliers and trading partners. Corporations, groups or other organizations that are trading or dealing with goods emanating from countries affected by sanctions (particularly in industries such as arms, oil and gas, timber, gold and diamonds, and nuclear-related equipment) can be found criminally liable for knowingly trading and/or benefiting from illegally obtained goods and/or can be subjected to sanctions themselves.Sanctions include: 

  • Economic/trade sanctions, including embargoes and other restrictions on imports and exports that tend to apply to specific economic sectors, good, services, technologies or types of investments.15
  • Restrictions on admission of listed persons including through travel bans and visa restrictions.
  • Freezing of assets that belong to listed persons or entities.
  • Financial prohibitions on financial transactions with, or on behalf of or at the direction of, listed persons. 

 

Arms embargo

An arms embargo is a prohibition that aims to prevent weapons and military equipment from leaving or reaching a targeted country. It generally comprises prohibitions on export, supply or delivery, making available and transfer of military items and on providing technical assistance, financial services and funds, and brokering services related to military items. It may also prohibit communicating technical data or financial transactions related to military activities.

UN sanctions
The UN Security Council can take action to maintain or restore international peace and security.Specifically, Chapter VII of the UN Charter16 gives the Security Council broad powers to impose economic sanctions. The UN has demonstrated in its practice that measures it can apply include the full range of economic sanctions, such as limits on trade and financial transactions, and severance of diplomatic relations.Indeed, UN sanctions have taken different forms, in pursuit of a variety of goals. 

  • Measures have ranged from comprehensive economic and trade sanctions17 to more targeted measures such as arms embargoes, travel bans and financial or commodity restrictions.18 
  • Goals have included supporting peaceful transitions, deterring unconstitutional changes, curtailing terrorism, protecting human rights and promoting non-proliferation of prohibited weapons. 

Several of the UN sanctions regimes were imposed in response to major violations of international humanitarian law and human rights abuses.19

The Security Council can designate sanctions as mandatory.20 In this case, UN member states are obliged to implement the measures in their jurisdictions. Moreover, these obligations prevail over competing obligations stemming from any other international agreement.21 

Since 1966, the Security Council has established 30 sanctions regimes – against Southern Rhodesia, South Africa, the former Yugoslavia (twice), Haiti, Iraq (twice), Angola, Rwanda, Sierra Leone, Somalia and Eritrea, Eritrea and Ethiopia, Liberia (three time), Democratic Republic of Congo, Côte d’Ivoire, Sudan, Lebanon, North Korea, Iran, Libya (twice), Guinea-Bissau, Central African Republic, Yemen, South Sudan and Mali, as well as groups that include the Islamic State of Iraq and the Levant, Al-Qaida and the Taliban.22 

In implementing Security Council sanctions, UN member states tend to introduce legislation or regulations which criminalize acts that try to circumvent and breach its sanctions regime by engaging in economic activities with sanctioned individuals, groups, organizations or countries. 

In the 1990s and early 2000s, the Security Council refined its sanctions practice in two significant ways:

  1. It reduced the scope of its sanctions from comprehensive embargoes to a regime of “targeted” or “smart” sanctions – a series of specific economic or diplomatic restrictive measures that can only be applied to specific targets. 
  2. It started naming the targets of its sanctions, both natural and legal persons. 

As early as 1994, the Security Council developed a new sanctions model that listed designated individuals and entities.  

Notably, since the sanctions regime imposed on the Taliban in 1999 and Al-Qaida in 2000, the focus of sanctions has switched from states to individuals.23 Sanctions now include individual financial prohibitions (such as asset freezes) and travel bans as a way to focus measures on the decision-makers and their principal supporters responsible for threats to peace.

In short, since its creation, the Security Council has imposed comprehensive embargoes, embargoes on specific commodities, sanctions targeting designated individuals and entities, and combinations of such measures. 

Currently, embargoes on specific commodities often supplement targeted sanctions as a way to apply pressure on armed groups by cutting off their source of financing and weapons. 

Autonomous sanctions
International organs other than the Security Council along with sovereign states may impose measures restricting the rights of other states, individuals or entities to have an international legal order respected by the targeted third party.  An important recent example is the EU Global Human Rights Sanctions Regime (the EU Magnitsky Act), which came into effect in December 2020. This sanctions framework was established by two legal instruments24 and provides for targeted measures against any individual, entity or body involved in or associated with gross human rights abuses and violations outside EU borders. The EU Magnitsky Act establishes a horizontal framework that is not country specific, listing human rights abusers irrespective of their nationality. Individuals and legal persons can be listed under the EU Magnitsky Act when European institutions conclude that they are responsible for: (a) genocide; (b) crimes against humanity;(c) a limited set of “serious human rights violations” (including but not limited to torture and arbitrary detention); and (d) other human rights violations.

The violations must be widespread, systematic or of serious concern in light of the objectives of the EU’s Common Foreign and Security Policy.25 

Sanctions consist of travel bans, asset freezes and a prohibition on making funds and economic resources available to the listed individuals or entities. 

Notably, sanctions may also be imposed on those who materially support the violations or people associated with the violations.26

Under Regulation 2020/1998, the EU has sanctioned four Russian individuals linked to the arbitrary imprisonment of Alexey Navalny, and 15 individuals and entities involved in human rights abuses. The abuses include:

  • large-scale arbitrary detentions of, in particular, Uighurs in Xinjiang, China;
  • repression in North Korea; 
  • extrajudicial killings and enforced disappearances in Libya; 
  • torture and repression of lesbian, gay, bisexual, transgender and intersex (LGBTQ+) people and political opponents in Chechnya, Russia; and 
  • torture as well as extrajudicial, summary or arbitrary executions and killings in South Sudan and Eritrea.

The EU Global Human Rights Sanctions Regime is modelled on the US 2016 Global Magnitsky Act, which followed the Sergei Magnitsky Rule of Law Accountability Act of 2012.27 The USA adopted the 2012 Act to punish Russian officials responsible for or benefiting from the death of the attorney Sergei Magnitsky who had exposed a multi-million-dollar tax fraud scheme involving the Russian elite. 

The USA has targeted 189 entities and 146 individuals under the Global Magnitsky Acts.

Similar frameworks have been introduced in Canada, the UK and the Baltic states of Estonia, Latvia and Lithuania. 

Today, debate continues on whether sanctions against human rights offenders are solely for deterrence or can also be punitive.

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CORPORATE CASES >
1 Liu Daqun, “On Criminal Responsibility for Terrorist Financing”, Nina Jørgensen (editor), The International Criminal Responsibility of War’s Funders and Profiteers, 2020, pp. 331-361; International Commission of Jurists, Corporate Complicity & Legal Accountability, vol. 2, Criminal Law and International Crimes, 2008, pp. 37-43 and pp. 331-361.
2 Rome Statute, Article 25(3)(c); Prosecutor v. Kilolo et al., ICC-01/05-01/13, judgment pursuant to Article 74 of the Statute, 19 October 2016 (Kilolo et al, trial judgment), paras 83-84; Prosecutor v. Al Mahdi, ICC-01/12- 01/15, Decision on the Confirmation of Charges Against Ahmad Al Faqi Al Mahdi, 24 March 2016, para. 26; Prosecutor v. Ongwen, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, para. 43. See also Bosnia and Herzegovina v. Serbia and Montenegro, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, judgment of 26 February 2007, para. 419.
3France, Criminal Code, Articles 461-2 to 461-31.
4 France, Criminal Code, Articles 121-6 and 121-7.
5 France, Criminal Code, Article 121-2.
6 France, Criminal Code, Articles 462-5, 462-6, 213-3, 131-38, and 131-39.
7 USC Title 18: Crimes and Criminal Procedure (18 USC), point 1, Chapter 118, para. 2441.
8 18 USC, point 1, Chapter 118, para. 2441.
9 18 USC, point 1, Chapter 1, para. 2(a).
10 New York Central and Hudson River Railroad Company v. United States, 212 U.S. 481, 494-95 (1909); United States v. Singh, 518 F. 3d 236, 249-50 (4th Cir. 2008).
11 Excluded from the scope of this Hub are non-coercive measures, including purely legal sanctions and the soft mechanism of condemnation by public opinion; and counter-measures such as unilateral measures taken by states or international organizations as a response to a breach of their rights.
12 Georges Abi-Saab, “‘De la sanction en droit international”’ in Jerzy Makarczyk (editor) Theory of International Law at the Threshold of the 21 Century. Essays in Honor of Krzysztof Skubiszewskist, 1996, pp. 61–77, at 35.
13 Economic sanctions are political trade restrictions directed at specific countries, entities or individuals designed to apply pressure to compel targets to change their policies or actions. See Eurojust, the European Union Agency for Criminal Justice Cooperation – the Network for investigation and prosecution of genocide, crimes against humanity and war crimes, “Prosecution of Sanctions (Restrictive Measures) Violations in National Jurisdictions: A Comparative Analysis”, December 2021, p. 4.
14 United Nations Security Council, Sanctions Committee Information.
16 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 39, provides that: “The Security Council shall determine the existence of any threat to the peace, breach of peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”.
17 Among the most comprehensive UN sanctions are currently those against North Korea. See Leonardo Borlini, “The North Korean Gauntlet, International Law and the New Sanctions Imposed by the Security Council”, XXVI Italian Yearbook of International Law, 2016, p. 319.
18 Article 41 of the UN Charter offers the Security Council ample flexibility as regards to the choice of sanctions not involving the use of force, providing that: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. They may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 41.
19 See Vera Gowlland-Debbas, “The Security Council as Enforcer of Human Rights”, in Bardo Fassbender (editor) Securing Human Rights? Achievements and Challenges of the UN Security Council, 2011, p. 62.
20 Under Article 25 of the UN Charter.
21 See United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 103: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.
22 The Security Council has increasingly employed economic sanctions under Article 41 of the UN Charter. The first instance was the progressive implementation of sanctions against South Africa from 1962 to 1994, aimed at ending apartheid and recognizing the independence of Namibia. Another early example involved sanctions against Southern Rhodesia (now Zimbabwe) from 1965 to 1979 to obtain majority rule by black Africans. Both initiatives were generally considered effective. Since the end of the Cold War in late 1989, the countries the UN has applied economic sanctions against, with varying success, include Somalia, Iraq, Yugoslavia, Haiti, Liberia, Cambodia, Libya, North Korea, Rwanda, Sierra Leone, Afghanistan, Iran, the Democratic Republic of Congo, South Sudan and the Central African Republic.
23 In extending the sanctions regime imposed on the Taliban in 1999 to Al-Qaida in 2000, the Security Council removed the link between Al-Qaida and the territory of Afghanistan, which was then followed in 2011 by the complete separation of the two regimes.
24 Council Decision (CFSP) 2020/1999 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses, OJ L 410I, 7.12.2020, pp. 13-19; and Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuse. 
25 Article 21 of the Treaty on European Union.
26 The EU Magnitsky Act also targets “other actors exercising effective control or authority over a territory” as well as other “non-state actors”, thus implicitly acknowledging that non-state actors are within the scope of human rights law. 
27 S.1039 – Sergei Magnitsky Rule of Law Accountability Act of 2012, 112th Congress (2011-2012).