Legal risks of IHL violations

Violations of IHL can entail both civil and criminal liability for businesses.

Civil liability

Businesses can be, and in the past have been, sued for wrongdoing in conflict zones by individual victims. Civil claims have been launched in the United States and Europe, including against major Australian companies.

In civil proceedings, the standard of proof is lower than that in criminal proceedings. Consequently, civil proceedings are becoming an increasingly common way for victims to seek redress for violations of IHL.

The substantial risk of liability arises not only for businesses carrying out regular or sustained operations in conflict zones, but also businesses providing goods or services to conflict-facing operators. The same applies to those who partner with third party entities linked to an armed conflict.

Criminal liability

Businesses can be, and in the past have been, accused of and charged with war crimes. They can be prosecuted under domestic criminal law or under international criminal law. Further, it is important to note that complex corporate structures may not immunise a parent company from IHL abuses committed by a subsidiary company.

Businesses risk criminal liability for violations of IHL if they directly breach the law or if they are complicit in the commission of a breach carried out by another, such as security contractors. ‘Complicity’ involves assisting, supporting or encouraging the commission of a war crime, with knowledge that assistance or support would facilitate the crime. Under IHL, superiors and accomplices – not only perpetrators of war crimes – can be held criminally responsible. For example, an arms dealer who sells weapons to a member of an armed group, with knowledge that those weapons will be used to commit war crimes, is complicit in those crimes. Similarly, the directors of a company providing logistical support to an armed group that commits IHL violations also risk legal liability.

It is important to understand that the principle of universal jurisdiction for war crimes is recognised by a number of countries, including Australia. This means that Australian prosecutors do not have to show that there is a territorial connection between Australia and the alleged crime or the alleged perpetrator. A number of other countries around the world also apply the principle of universal jurisdiction. Consequently, businesspeople who commit international crimes may be prosecuted in a number of different countries, despite there being no obvious or direct link between that country and the alleged crime or alleged perpetrator.

Ongoing prosecution of executives of Lundin Energy

The risk of criminal prosecution is not merely hypothetical. There are currently ongoing criminal proceedings in Sweden against the former Chairman and CEO of Lundin Energy for alleged complicity in the forcible displacement of civilians during the second civil war in Sudan between 1999 and 2003.

According to the Swedish prosecutorial authorities, the two businessmen paid the former Sudanese armed forces to secure for them a site in South Sudan for oil exploration. To achieve this, Swedish prosecutors allege that the armed forces committed numerous war crimes, including attacking civilians, abducting civilians and plundering and burning civilian property. While it is difficult to find a precise number, it is estimated that up to 160,000 civilians were forcibly displaced and 12,000 died as a result of these war crimes.

The case is significant for a number of reasons. First, it demonstrates that even though the executives are not alleged to have physically perpetrated the war crimes themselves, they may still be criminally responsible for having paid the Sudanese armed forces to secure the oil site while knowing or turning a blind eye to the crimes committed by the armed forces to achieve this end. This demonstrates the broad reach of IHL to conduct that may, at first glance, not appear to fall within the rules of IHL.

Secondly, the case marks the first time that executives of a listed company have been charged with war crimes since the executives of German companies were prosecuted during the Nuremberg Trials for their involvement in the German war efforts during World War II.

Thirdly, the case demonstrates the risks of prosecution at both the international and domestic levels. Omar Al-Bashir, the former President of Sudan, is currently facing trial at the International Criminal Court (ICC) for his alleged involvement in the war crimes and crimes against humanity committed by the armed forces under his control during the conflict. While the ICC tends to focus on prosecuting high-ranking military and political figures, domestic prosecutions of international crimes do not always have the same focus. Consequently, domestic investigations and prosecutions can focus on other individuals allegedly involved in the commission of international crimes. Indeed, the two executives of Lundin Energy are also the subject of an investigation by Swiss authorities for the same conduct.