Lifting the veil on corporate terrorism: the use of the criminal code terrorism framework to hold multinational corporations accountable for complicity in human rights violations abroad.
I INTRODUCTION II THE CURRENT ACCOUNTABILITY FRAMEWORK APPLICABLE TO MNC'S Establishing Jurisdiction in International and Domestic Criminal Law The Inadequacy of the Current Domestic Regulatory Framework for Canadian MNC's Operating Abroad III THE ANTI-TERRORISM ACT AMENDMENTS AND THE OFFENCES OF FACILITATING AND FINANCING TERRORISM Terrorist Activity Armed Conflict Carve-Out Terrorist Group Facilitating Terrorist Activity Terrorist Financing Asset Forfeiture IV CASE STUDIES--THE DARK SIDE OF COLOMBIAN OIL Overview of the Colombian Armed Conflict Petroleum Investment in Colombia The Economics of War: Exploring the Link between Foreign Investment and Human Rights Abuses Chiquita V LEGAL ANALYSIS The Defence of Duress Possible Drawbacks of Terrorism Offence Prosecutions Defining the Public Interest Politicization of the Definition of Terrorism Veering from Original Legislative Intent Evidence Gathering Standards of Proof No Operational Presence Realities of Doing Business in Conflict Zones Possible Advantages of Terrorism Offence Prosecutions Procedure Elements of the Offence: Actus Reus and Mens Rea Deterrence Exemplifying Commitment to the Human Rights and Human Security Agenda Sentencing Opportunities for Compensation and Prevention VI CONCLUSION
Multinational corporations are increasingly finding themselves under the spotlight in respect of their human rights records. The corporate social responsibility movement has generated widespread discussion and debate about how individual states and the international community should address corporate complicity in human rights abuses in conflict zones, particularly in respect of extractive industries. A growing chorus is highlighting the inadequacy of existing domestic and international accountability frameworks in this respect. Human rights groups and victims have resorted to imperfect mechanisms, most notably the US Alien Tort Claims Act (ATCA) to seek redress. In Canada, contemplation of civil and criminal accountability mechanisms has centered on the ATCA and the Crimes Against Humanity and War Crimes Act. This article proposes that the Criminal Code terrorism provisions, in particular the new offences of facilitating terrorism and terrorist financing and the asset forfeiture regime, can and should be added to Canada's rather bare corporate social accountability toolbox. Not only would this provide ex post facto accountability, but, arguably more importantly, a genuine threat of criminal liability would act as an effective deterrent in a corporate world shaped by strategic risk management, thereby serving a pre-emptive function. While an extensive body of literature and jurisprudence exists on the ATCA, to date there is no writing on the terrorism offences as a means to hold multinational corporations accountable for their complicity in gross human rights abuses in conflict zones.
Les multinationales se retrouvent de plus en plus sur la sellette en ce qui concerne leurs repercussions sur le droit humanitaire. Le mouvement pour la responsabilite sociale corporative a genere beaucoup de debats et discussions a savoir comment les etats individuels et la communaute internationale devraient adresser la complicite corporative dans des cas d' abus de droits humanitaires dans des zones de conflits, particulierement en ce qui a trait aux industries extractives. Une voix grandissante pointe les deficiences des lois domestiques et internationales de responsabilite corporative. Des groupes de droit humanitaire et de victimes ont utilise des mecanismes imparfaits, dont le plus notable est le << US Alien Tort Claims Act (ACTA) >>. Au Canada, la contemplation des mecanismes de responsabilite civile et criminelle fut centre sur ACTA et sur la loi sur les crimes contre l'humanite et les crimes de guerre. Cet article propose que les lois visant le terrorisme contenu dans le code criminel, en particulier les nouvelles offenses portant sur la facilitation du terrorisme, du financement au terrorisme, et sur le regime de perte d'actifs, puissent et devraient etre ajoute a la boite a outils plutot vide du Canada en ce qui a trait a la responsabilite sociale corporative. Non seulement ceci pourrait generer de la responsabilite ex post facto, mais, probablement plus important, une veritable menace de responsabilite criminelle agirait comme moyen de dissuasion efficace dans un monde corporatif modele par la gestion strategique de risque. Bien que la litterature et la jurisprudence concernant ACTA soient vastes, il n'y a aucun ecrits jusqu' a present sur l'utilisation des offenses sur le terrorisme comme moyen pour rendre les corporations multinationales responsable de leur complicite dans des violations fragrantes de droit humanitaire dans des zones de conflits.
Over the past two decades, major technological, financial, and telecommunications advancements have dramatically increased the interdependence of the world's markets and businesses. With globalization, many developing states are deregulating their economies and attracting foreign direct investment from industry in more developed states. As a result, multinational corporations (MNC's) have mushroomed both in size and control and are now influential global actors. (1) The increasingly transnational nature of capital investment and business operations has significant implications for law-making and state legal authority. One of the themes emerging in public discussion and debate on corporate social responsibility (CSR) is how countries and the international community should address corporate involvement in serious human rights violations in conflict zones. The extractive industry's presence in less developed and sometimes warring states gives rise to distinct concerns. Stories abound of forced displacement, of orchestrated and deadly attacks on civilian populations located in regions of oil, gas, and mineral exploration or natural resource extraction, and of foreign businesses--directly or indirectly--funding terrorist groups and repressive regimes within these conflict zones. (2)
Economic globalization presents new challenges for Canada as it reflects on its role in the world community. The Canadian economy relies heavily on natural resources both domestically and internationally. (3) Canada's oil and mining extractive industry is particularly active abroad. Many of these natural resources are located in underdeveloped and "underexploited" countries, which depend on foreign investment of capital, technology and expertise to generate revenue. Unsurprisingly, these underdeveloped resource-rich states often feature weak governance, higher levels of corruption, ongoing armed conflicts, and a consequent inability or unwillingness to enforce existing laws. (4) Therein lies a fundamental problem. Despite the existence of a fairly comprehensive human rights regulatory framework governing the domestic operations of Canadian companies, (5) there is a dearth of legislation governing Canadian MNC's operating abroad. (6) Regulation is instead left to the host countries which are often unable or unwilling to enforce human rights laws, particularly when they are immersed in armed conflict. (7) Similarly, at present, there is very little in the international legal sphere to rein in the conduct of international corporate actors. (8)
Human rights advocates, academics, and other state and non-state actors have extensively documented the chronic coexistence of extractive industry foreign direct investment and human rights violations, and corporate ties to oppressive regimes or groups. (9) A recurrent pattern of complicity has emerged: in contracting out security services from army and militias to protect workers, property and pipelines, MNC's or their subsidiaries provide any or all of the following to tyrannical regimes, violent militias, and rebel groups: funding, weapons, use of materials, space, and logistical support. A growing national--and international--chorus is highlighting the inadequacy of the domestic regulatory framework for MNC's operating abroad and calling for greater scrutiny of corporations' human rights records. (10) Recently, a multitude of proposed solutions for a strengthened regulatory regime have emerged. (11) In studying the current accountability gap in Canada and the fight against corporate impunity, some experts (12) have considered the use of the Crimes Against Humanity and War Crimes Act (13) as well as the growing trend of lawsuits under the US Alien Tort Claims Act. (14) While there is an extensive body of literature and jurisprudence on corporate multinational liability under the ATCA, (15) there is no existing writing on our terrorism framework as a source of corporate liability for complicity in human rights violations. (16) This article takes a flesh approach and proposes that, in the absence of specifically tailored civil or criminal sanctions, the recently enacted Criminal Code terrorism provisions, (17) in particular the new offences (18) of facilitating terrorism, (19) terrorist financing, (20) and the asset forfeiture regime, (21) add another implement to Canada's rather bare corporate social accountability toolbox, at least in respect of some of the most egregious actions of Canadian MNC's operating in conflict regions. Similarly, and perhaps more importantly, a genuine threat of criminal liability would act as an effective deterrent for Canadian MNC's that are heavily influenced by risk assessments.
In examining the practical applicability of the terrorism offences as a corporate accountability tool, this article focuses on Canadian investment in Colombia, a country that is plagued by a longstanding armed conflict. Foreign oil interests have been linked both to left wing guerilla and right wing paramilitary violence in Colombia. (22) The two leading guerilla groups, the Revolutionary Armed Forces of Colombia (FARC) (23) and the National Liberation Army (ELN), (24) and the leading paramilitary coalition, the United Self-Defense Forces of Colombia (AUC), (25) are listed in Canada as terrorist groups. (26) The terrorist links to oil and foreign investment should be of concern to Canada because Canadian petroleum companies have an important presence in Colombia.
This article first canvasses the jurisdictional principles applicable to the extraterritorial activity of Canadian nationals. It then considers the current corporate accountability framework in Canada and highlights the current emphasis on voluntarism as the favoured means of ensuring corporate respect for human rights. The article then examines the Criminal Code terrorism provisions, in particular the offences of facilitating terrorism, terrorist financing, and asset forfeiture. It then turns to case studies with a special focus on Colombian oil. Finally, the article considers some of the advantages and drawbacks to using the terrorism offences to hold accountable the worst corporate offenders. The underlying premise is that a comprehensive compliance regime requires both carrots and sticks. That is, enforcement mechanisms, in the form of effective civil and criminal sanctions both to deter potential corporate wrongdoers and to hold accountable the worst corporate offenders, must buttress public education, voluntary codes, compliance incentives, and assistance.
II THE CURRENT ACCOUNTABILITY FRAMEWORK APPLICABLE TO MNC'S
Establishing Jurisdiction in International and Domestic Criminal Law
As a general rule, flowing from its common law roots, Canadian criminal law adheres for the most part to the principle of territoriality whereby prosecutorial jurisdiction is exercised only over persons who are alleged to have committed crimes in whole or in part in Canada. (27) Although territoriality is the principal source for domestic criminal jurisdiction, another acceptable basis is the nationality principle, which allows Canada to criminalize, not only the conduct of natural persons, but also the conduct of corporations that are either incorporated provincially or federally, headquartered in Canada, or whose direction and control is from Canada, for conduct occurring entirely outside of Canada. (28) Additionally, under international law, states may exercise universal jurisdiction over persons suspected of acts universally recognized as criminal "according to general principles of law recognized by the community of nations", (29) including genocide, crimes against humanity, (30) war crimes, (31) extrajudicial executions, enforced disappearances, (32) and torture (33).
The Canadian government and judiciary traditionally have been reluctant to extend our criminal laws extraterritorially. This reluctance is rooted largely in the international law principle of state sovereignty whereby independent nations have jurisdiction to enact and enforce laws on their own territories. (34) In recent years, however, this reticence about extraterritoriality has increasingly given way to more expansive notions of jurisdiction and to legislative assertions of extraterritorial jurisdiction, particularly in relation to transnational crimes resulting in large part from globalization. (35) This shift is based on a series of often interwoven considerations, most notably, the universally abhorrent nature of the crime in question; (36) the defendant's nationality; (37) the impact of globalization; the resulting upsurge in Canadian transnational activity, interests, and crime; (38) and finally, the need to implement certain international treaty obligations. (39) Frequently, the underlying motive for more expansive notions of jurisdiction is a desire to combat gross violations of human rights, such as genocide, crimes against humanity, and trafficking of women and children, particularly where host states lack the capacity or will to hold perpetrators accountable. (40)
The Inadequacy of the Current Domestic Regulatory Framework for Canadian MNC's Operating Abroad
Academic and civil society experts have acknowledged repeatedly and with increasing urgency the inadequacy of the domestic regulatory framework for Canadian MNC's operating abroad. (41) Additionally, parliamentarians have called for clear legal norms to hold accountable Canadian mining companies for environmental and human rights abuses. (42) In a 2006 poll, four out of five Canadians agreed that voluntary measures are insufficient and that new laws should be enacted to enhance corporate multinational respect for human rights in Canada and abroad. (43) In effect, in recent years, momentum appears to be building for holding Canadian MNC's accountable for their conduct abroad.
The Special Economic Measures Act (44) provides for the imposition of trade sanctions against states and, by extension, economic restrictions on corporations, whose international operations are linked to human rights violations in conflict regions. The federal government posits, however, that it cannot act unilaterally in the absence of a multilateral response to a conflict. (45)
International law, the primary focus of which is governing relations between states and between states and individuals, imposes no duty on MNC's to ensure respect for human rights within their sphere of influence. (46) While treaty bodies confirm a positive obligation on States to prevent and punish human rights violations, as part of their general duty to protect, there is no clear legal obligation on home states to regulate their transnational corporations in respect of the human rights impact of their extraterritorial activities. (47) In theory, civil liability can extend extraterritorially if consistent with one of the five justifications in international law. (48) Nonetheless, a lawsuit will be dismissed under the forum non conveniens rule where a foreign jurisdiction has a closer connection to the issue being litigated, particularly where the defendant is not domiciled in Canada. (49) So, for example, if the plaintiffs, the alleged wrongdoing, or the bulk of evidence are located elsewhere, that jurisdiction arguably would be the more appropriate forum in which to hear the matter. Currently, with the exception of the 1999 Corruption of Foreign Public Officials Act, (50) there are no specifically tailored civil or criminal accountability measures that target corporate Canadian conduct abroad. In fact, there is a "governance gap" in this sphere. (51)
Despite numerous calls for regulatory reform in Canada to fill that gap, the federal government, perhaps following the lead of the international community, has tended to favour voluntary codes of corporate conduct over regulation and civil and criminal liability, (52) For example, it has usually adhered to the OECD Guidelines for Multinational Enterprises, revised in 2000. (53)
Undoubtedly, combined with appropriate fiscal and economic incentives, as well as effective reporting, compliance measures, and public education, voluntary codes of conduct and industry-specific guidelines play an important normative role in shaping corporate attitudes and behaviour, while concurrently influencing the perceptions of shareholders and the general public. Corporations could internalize these standards, which then become part of their corporate value system. (54) Nonetheless, this article argues that voluntary principles alone are insufficient to ensure universal corporate respect for human rights norms. (55) This view is gaining increasing acceptance. As will be discussed, recent judicial developments and congressional interest in the United States may be indicative of an emerging trend towards holding corporations civilly and criminally accountable for their transnational misfeasance. (56) Accordingly, it is useful to identify existing mechanisms for corporate accountability wherever they arise, and to develop new ones whenever the opportunity presents itself.
In Canada, the universal jurisdiction offences of crimes against humanity, genocide, and war crimes have attracted the most attention in terms of possible criminal liability for corporate complicity in egregious human rights abuses abroad. Nevertheless, these crimes are extremely complex to prove against an individual, particularly on the basis of complicity. (57) Three elements of complicity are required to establish guilt as an accomplice: (1) commission of a war crime or crime against humanity by the principal perpetrator(s); (2) the accomplice's material contribution to that crime; and (3) the accomplice's intention that the crime be committed or recklessness as to its commission. (58) There is conflicting authority in the international legal realm as to the threshold level of contribution required. (59) It should be noted, however, that, after having examined judicial developments before international criminal tribunals, the Supreme Court of Canada clarified and lowered what had been a very high standard of mens rea for crimes against humanity. (60) In pronouncing upon what constitutes a crime against humanity in 1994, a majority of the Supreme Court held that a conviction for any crime against humanity required proof of specific intent to discriminate on the basis of race, religion, nationality, ethnicity, or political persuasion. (61) The Court clarified in 2005 that, with the exception of the underlying offence of persecution, establishing mens rea for crimes against humanity does not require proof of discriminatory intent. (62) The mens rea element requires proof of the perpetrator's knowledge of a systemic attack and knowledge or taking a risk that his or her acts comprise part of that attack. Further, the Court observed that knowledge may be implied factually from the circumstances, such as drawing inferences of an accused person's knowledge of systemic abuse in circumstances where that abuse is publicly well-known. Nonetheless, any attempt to attribute responsibility for such offences to a Canadian corporation, and in particular establishing guilty intent or knowledge of the corporation through its senior officers, would be very difficult. (63) A fundamental query is at what point a corporation, whose central motive is profit, can be prosecuted for the most highly stigmatized and abhorrent crimes on the planet where its underlying illegal conduct is merely doing business with persons, entities, or governments who actually commit these horrible crimes. (64) As will be discussed later, the mens rea for facilitating terrorism and terrorist financing is less stringent.
Crimes against humanity and war crimes prosecutions would be especially tricky where the actus reus is the conduct of otherwise legitimate business transactions that incidentally fund the crimes. (65) Perhaps unsurprisingly, no Canadian corporation has ever been charged for a universal jurisdiction crime under the Criminal Code. In fact, in the first seven years since its enactment, there has been only one prosecution under Canada's 2000 War Crimes and Crimes Against Humanity Act, which is ongoing. (66) By extending the arm of Canadian criminal law for terrorism offences on the basis of universality, the Anti-terrorism Act (67) provides one interesting example of existing legislation that may provide some measure of corporate accountability and could serve an effective deterrent function.
III THE ANTI-TERRORISM ACT AMENDMENTS AND THE OFFENCES OF FACILITATING AND FINANCING TERRORISM
In the aftermath of the 9/11 terrorist attacks, Canada's Parliament swiftly enacted the Anti-terrorism Act (ATA) in December 2001. In addition to fulfilling Canada's international treaty obligations (68)--most notably the 2000 UN Convention for the Suppression of the Financing of Terrorism (69)--the provisions were created to deter, identify, prosecute, and disable those engaged in terrorist activities and those supporting terrorist activities financially. (70) The underlying rationale of the ATA was to protect Canadian soil and Canadian citizens from the consequences of terrorist activity irrespective of terrorists' locations. (71)
Towards that end, the ATA added a new chapter to the Criminal Code that, together with other measures, provides for the domestic prosecution of terrorism offences even if the ultimate terrorist activity takes place entirely outside of Canada or is intended to take place elsewhere. (72) In penalizing conduct that occurs entirely outside the country and subjecting both nationals and non-nationals to its reach, the Criminal Code terrorism offence regime diverges from the traditional criminal law principles of territorial jurisdiction and adopts the jurisdictional principle of universality.
The Criminal Code now defines a terrorist activity as an act or omission that is committed in or outside of Canada (1) that is an offence under one of 10 United Nations anti-terrorism conventions and protocols; or (2) that intentionally causes death, seriously harms or endangers a person, causes substantial property damage that is likely to seriously harm people or interferes with or disrupts an essential service, facility, or system, (73) and that is taken or threatened for political, religious, or ideological purposes, and that is intended to threaten the public or national security, including economic security or to compel a person, a government or an organization (whether located in or outside of Canada) to do or to refrain from doing something. (74)
Canadian legislators followed the British model by grafting a "political, religious or ideological" motive clause onto the definition of terrorist activity, in an effort to narrow the reach of an otherwise broad definition and to distinguish it from other criminal acts aimed at intimidation. (75) In effect, this element of the definition augments the Crown's burden of proof requiring proof beyond a reasonable doubt of one of the stated motives. (76) It also excludes violence that is motivated purely by economic gain. Proof of the motive element of the underlying terrorist activity could be particularly tricky in the context of corporate complicity for human rights abuses in conflict zones, which are inevitably characterized by greed and profit. One could anticipate challenges to the Crown's evidence of motive, with claims that the real motive is indeed profit.
In 2006, the Ontario Superior Court of Justice struck down and severed the motive clause from the definition of "terrorist activity" as an unjustifiable violation of the freedoms of conscience, religion, thought, belief, expression, and association protected under s. 2 of the Canadian Charter of Rights and Freedoms, stating the court's concern that it possibly constituted racial or religious profiling. (77) Mr. Khawaja sought and was denied leave to appeal the ruling on the pre-trial motion directly to the Supreme Court of Canada. Nonetheless, this constitutional issue may well be revisited on appeal of the trial proper. If this ruling is ultimately upheld in an appeal, it strengthens the argument that this provision can be used to prosecute Canadian MNC's operating in conflict regions where economics and profit are frequently the key drivers of armed conflict. The motive clause has generated intense and widespread debate and has been subject to much criticism within political, legal, and academic circles and in civil society. (78) Despite the Khawaja decision, the Government of Canada has indicated its intention to maintain the motive clause within the definition, stipulating that it may reconsider the definition when the Khawaja litigation on the trial proper has concluded. (79)
It is ultimately unclear whether Parliament or the courts will maintain the Khawaja reasoning and keep the motive clause out of the terrorist activity definition. In the event of further appeals, appellate courts will have the benefit of vast amounts of writing on the definition, including two Parliamentary reports as part of the ATA review. In any event, should the motive clause be reinstated by the Supreme Court of Canada or by Parliament, this article suggests, using past and ongoing armed conflicts in resource rich countries as an indicator, that even money-driven conflicts typically are also driven by politics, ideology or religion. The two are inextricably linked. For example, the blood diamond conflict of Sierra Leone was heavily influenced by profit and greed, but was also political. The civil war in the Democratic Republic of Congo has been motivated by political and ethnic strife and is fuelled by gold. The decades-old Sudanese civil war, in which Talisman Oil was embroiled, has featured both ethno-religious and economically motivated violence. Tensions between the Sudanese Arab-Muslim majority and the Christian minority are exacerbated by oil profits. At its roots, the Colombian armed conflict is motivated in large part by ideological clashes of the right-wing paramilitaries and the left-wing guerillas, in addition to greed and a desire to profit from the country's ample natural riches. In effect, it may be more apt to describe many of these "dual purpose" conflicts as fueled by money but motivated by politics, religion, ethnic strife, or ideology.
Most importantly, for the purposes of this analysis, the legislators opted to exclude from the definition of terrorist activity (1) acts committed during armed conflict that comply with international humanitarian law (IHL) and (2) the actions of army personnel in the line of duty that are otherwise governed by international law. The specific language of s. 83.01 of the Criminal Code, creating those two exemptions from the definition of terrorist activity, is as follows: (1) those acts or omissions committed during an armed conflict and that are in accordance with customary international law or conventional international law applicable to the conflict; (80) and (2) "the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law". (81)
Defining terrorism has engendered significant controversy and debate in the development of international treaties. (82) The types of exemptions above are common in terrorism conventions, with their primary rationale being to distinguish terrorism from a people's right to self-determination and its fight against colonial domination, foreign occupation, and oppressive regimes. (83) It is clear from its wording that the first s. 83.01 exclusion applies only to situations of international or non-international armed conflict. (84) Yet, it includes both state actors and non-state actors, such as rebel forces or "freedom fighters", involved in an armed conflict as long as those actions are executed in accordance with IHL. Notably, for the purpose of this analysis, IHL applies only to international armed conflict and protracted non-international violence that has reached the level of armed conflict, such as in Colombia. (85) It does not cover internal tensions or disturbances such as riots involving the military or state police, sporadic acts of violence, or isolated terrorist attacks committed in peacetime, such as the March 11, 2004 train bombings in Madrid, the July 11, 2006 Mumbai train bombings, and the June 30, 2007 Glasgow Airport attacks.
In contrast to the first exclusion, the second exemption applies only to the state military. Moreover, it is not predicated on actual compliance, with international law. Rather, it is a choice of law provision. Its wording, which appears to have been transplanted largely from the International Convention for the Suppression of Terrorist Bombings and from the Draft Comprehensive Convention on Terrorism, is ambiguous in terms of its applicability to situations of armed conflict. (86) Unfortunately, these exemptions received scant parliamentary attention during the Anti-terrorism Act committee hearings and plenary debates in 2001. In addition, although the House of Commons and Senate reviews of the ATA focused considerable attention on the Criminal Code definition of terrorist activity--particularly the motive clause--and of the various offences, they largely overlooked this particular component of the definition. (87) Furthermore, there is very little interpretive guidance on this portion to be drawn from the international treaty realm. Nonetheless, because armed conflict is specified as a prerequisite to exclusion from the definition of terrorist activity in the first paragraph but omitted from the second paragraph, a reasonable inference can be drawn that the latter exemption applies only in peacetime. In fact, this interpretation is consistent with the existing international legal commentary on the analogous Terrorist Bombings Convention provisions. (88) Additionally, it is consistent with our conventional characterization of terrorism: isolated violent attacks by non-state actors in peacetime. That said, if a Canadian court were to interpret the second exemption as applying to all state military activity coming within the confines of its "official duties", both in peacetime and in war, it would exclude from the purview of the Criminal Code most lawful and unlawful military actions that are otherwise governed by the vast body of international law, and significantly curtail the potential reach of the Criminal Code to corporations associating with offending military units.
Armed Conflict Carve-Out
The type of conflicts in which MNC's most often find themselves embroiled are protracted, involve armed opposition groups, and frequently are intrastate rather than international in scope. Accordingly, this article focuses on the armed conflict exemption for the purpose of analysis. International humanitarian law governing non-international armed conflict does not prohibit state military attacks against armed insurgent groups and rebel group attacks on the military, in the course of armed conflict, as long as their use of force respects the rules on the means and methods of war. Accordingly, because IHL permits certain types of violence as legitimate war tactics, it is logical to exempt such uses of force from the terrorist label.
Common Article 3 to the four Geneva Conventions and Additional Protocol II, along with various principles of customary IHL, (89) constitute the core legal framework regulating non-international armed conflicts within the territory of a single State, involving either the military fighting rebel groups (90) or armed insurgent groups fighting each other. Common Article 3 creates an absolute prohibition on specific violent acts against civilians, including murder, mutilation, torture, other forms of cruel treatment, hostage-taking, and degrading treatment. Although IHL, as codified in the 1949 Geneva Conventions and the Additional Protocols of 1977, permits the use of violence against combatants, it is a cornerstone of IHL that parties to an armed conflict must, at all times, distinguish between combatants and civilians who do not take direct part in the hostilities, (91) and between military objectives and civilian objects. This "principle of distinction" is a customary rule of IHL. (92)
Additional Protocol II, Part IV sets out the basic rules aimed at protecting civilians during internal armed conflict. Article 4.2 prohibits inhumane treatment of civilians during armed conflict, including violence to life or physical wellbeing, torture, hostage-taking, and acts of terrorism. Article 13 states that the civilian population and civilians shall enjoy general protection against the direct and incidental (93) dangers arising from military operations. In particular, paragraph 2 creates an absolute prohibition on direct attacks on civilians and of acts or threats of violence committed with a view to terrorizing them. Article 17.2 states further that civilians shall not be compelled to leave their own territory for reasons connected with the conflict, thereby outlawing internal displacement. Unlike Additional Protocol I applicable to international armed conflicts, Protocol II is simple and brief. It is supplemented, however, by broader customary international law protections. In addition to the principle of distinction, customary IHL applicable to non-international armed conflict includes the requirement that both the party launching the attack and the party being attacked take all feasible precautions, including giving advanced warning to minimize incidental harm to civilians and damage to civilian objects, (94) as well as prohibitions on indiscriminate attacks (95) and attacks on undefended villages. (96) Customary IHL also extends the principle of proportionality to the non-international sphere, thereby prohibiting any attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination of the three, which would be excessive relative to the concrete and direct military advantage anticipated. (97) Additionally, there are limits on acceptable warfare between combatants. For example, warfare that violates IHL includes methods that cause unnecessary injury or suffering, (98) attacks on the natural environment--such as oil pipeline sabotage that are not military targets (99)--and methods that may cause widespread, long-term, and severe damage to the natural environment. (100)
Turning to the Colombian situation, the hostilities have been categorized as an internal armed conflict (101) to which the state military, the left-wing guerilla groups--FARC and ELN--and the right-wing paramilitaries are parties. Accordingly, any analysis of the applicability of the terrorism framework to MNC's operating in Colombia requires a consideration of the first s. 83.01 exclusion, which is applicable to acts committed during armed conflict. The systematic breaches of the laws of armed conflict by both the guerilla and paramilitary groups are well-documented. (102) In addition, IHL breaches by the Colombian military, including extrajudicial executions, have also been documented. (103) The Colombian Office of the UN High Commission for Human Rights (OHCHR) has received numerous complaints regarding IHL violations in Colombia by both state and non-state actors. (104) Most of the violations were attributed to illegal armed groups--guerilla and paramilitary--while others were attributed to the military, (105) In 2006, the members of the FARC and ELN guerrilla groups were accused of numerous violations of IHL, including selective murders, death threats, massacres against the civilian population, indiscriminate attacks, hostage-taking, (106) acts of sexual violence, acts of terrorism, recruitment and use of child soldiers, (107) use of anti-personnel mines, (108) forced displacement, isolation of communities, and attacks against medical and humanitarian teams. (109) Additionally, guerilla groups have disregarded continuously the humanitarian principles of limitation, differentiation, and proportionality, by launching attacks on the civilian population and conducting indiscriminate attacks. (110) Meanwhile, the paramilitaries have been responsible for widespread massacres, disappearances (111) and torture of civilians, selective killings, extortion, use of child soldiers, and forced takings of land from civilians. The paramilitaries have often engaged in these crimes with the acquiescence of the security forces, and in some cases, even the active collaboration of military units. (112) Insofar as these state and non-state actors engage in the aforementioned conduct that violates IHL, they would not be exempted from the Canadian definition of terrorist activity. As such, MNC's operating in Colombia that assist these groups could be criminally liable for facilitating terrorist activity of both state and non-state actors associated with terrorism.
The Criminal Code defines a "terrorist group" as an entity that the Government of Canada has listed by regulation as such. (113) In addition, it classifies generally as a "terrorist group" any "entity" that has as one of its purposes or activities facilitating or carrying out any terrorist activity or any entity that associates with such a group.
The definition of terrorist "entity" as a "person, group, trust, partnership or fund or an unincorporated association or organization" presumably is targeted at non-state actors, and primarily, terrorist cells. Accordingly, a government that engages in or facilitates terrorist activity could not be designated a terrorist entity. Similarly, the designation could not apply to governments that associate with groups, such as the government-backed Sudanese mujadeen militia and the Colombian paramilitaries, that have, as one of their activities or purposes, carrying out or facilitating terrorist activity. That said, as discussed in the context of the exclusions from the terrorist activity definition, there are circumstances in which a government's actions might fall within the definition of terrorist activity because the quality of the actor is not integral to the definition.
Facilitating Terrorist Activity
The ATA created a series of new Criminal Code terrorism offences, namely prohibiting the following activities: instructing someone to carry out terrorist activity, (114) participating in or contributing to a terrorist group for the purpose of enhancing their terrorist activity, (115) committing an indictable offence in order to assist a terrorist group's activity, (116) facilitating terrorist activities, and harbouring or concealing a terrorist. (117) Of particular interest in the context of MNC's, s. 83.19(1) of the Criminal Code prohibits the facilitation of "terrorist activities" and, by extension, "terrorist groups": "Everyone who knowingly facilitates a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years."
What distinguishes the offence of facilitating terrorism from the offences of participation, contribution, instructing, harbouring, and concealing, is the mens rea component. More specifically, unlike the latter offences, facilitation of terrorism is not a purposive crime. Mens rea would exist regardless of a corporation's opposition or indifference to the terrorist agenda. Additionally, s. 83.19(2) clarifies that "facilitation" of a terrorist activity will exist whether or not (1) the facilitator knows that a particular terrorist activity is facilitated; (2) any particular terrorist activity was foreseen or planned at the time it was facilitated; or (3) any terrorist activity was actually carried out. Accordingly, the facilitator need only have general knowledge of terrorist activity or of a terrorist group rather than actual knowledge of a precise act of terrorism. As such, the mens rea component is less stringent than for crimes against humanity. Moreover, the ultimate result of the terrorist activity is inconsequential to the establishment of mens rea. (118)
Applying this analysis to MNC's, a corporation can be held liable for mens rea offences if a senior officer, intending at least in part to benefit the corporation, either commits or directs subordinates to commit a crime knowing that these actions would facilitate a terrorist activity. (119) In addition, corporate liability can be established through omission, that is, where a senior officer (1) knows employees or subordinates are going to commit an offence, and (2) fails to stop them because he or she wants the organization to benefit from the illegal act. (120) Accordingly, credible and admissible evidence of senior officials' indirect facilitation, or their directing, encouraging, or being willfully blind to their association with terrorist activity or a terrorist group, in order to benefit the company, may satisfy the s. 83.19 mens rea requirement.
The knowledge requirement for facilitation was designed specifically to be general in recognition of the decentralized terrorist cell phenomenon, its high levels of secrecy, and the manner in which terrorist activity is carried out whereby different cells can knowingly be working towards the same broad terrorist objectives--such as intimidating the American people--without actually knowing the details of a specific terrorist plot--such as flying planes into major American buildings to maximize casualties. (121) Similarly, multinationals also function in a decentralized manner. The senior officers of a parent or subsidiary may not know of specific acts of terrorism. Nevertheless, a corporation may be criminally liable where its senior officers are generally aware of terrorist activity committed or threatened by a particular entity and they nonetheless facilitate the work of that entity, knowing that it engages in terrorist activity with intent, at least in part, to benefit the corporation. (122) There can be many senior officers within a particular corporation, particularly in the transnational context, each having discrete functional or geographic delegated authority over a particular aspect of the corporation's affairs, thereby subjecting the corporation to potential criminal liability. (123) More importantly, in the context of the CSR movement and the proliferation of corporate codes of conduct, the mere existence of corporate rules or policies prohibiting certain conduct does not constitute a defence to criminal liability. (124) Moreover, the criminal activity need not be sanctioned or expressly authorized by the corporation for corporate liability to attach. (125)
Although the Criminal Code specifies that no link is required between facilitation and a specific terrorist act, establishing the actus reus would require sufficient evidence of a causal link beyond the de minimis range between the "facilitating" act--such as security payments--and subsequent terrorist activity. For instance, logically, a corporation could not facilitate terrorist acts retroactively. Besides, any material or financial support would have to be of a nature that it actually assists, albeit minimally. For example, a small, one-time payment to an illegal armed group might be seen to have too tenuous a connection to the group's subsequent terrorist acts to come within the definition of criminal facilitation. Similarly, a state's military typically is decentralized into units and contracting security services with one army brigade may have a very tenuous link to human rights abuses by another brigade. The Criminal Code is silent in respect of any requisite level of assistance. It will be left to the courts to determine the threshold in order to constitute facilitation. It is entirely possible that the judiciary would counterbalance the relatively lower mens rea standard for facilitation by setting a higher definitional threshold for criminal facilitation.
To summarize, corporations potentially could facilitate terrorist activity by assisting or providing financial or material contributions to rebel forces, paramilitary groups, or state army units, engaged in armed conflict, where a sufficient link can be established between that assistance and any subsequent attacks by one of those parties that are outside the IHL parameters of acceptable warfare.
The ATA also added to the Criminal Code a series of new terrorist financing offences. (126) First, s. 83.02(a) makes it an offence, punishable by a maximum ten-year sentence, to collect or provide property, directly or indirectly, wilfully and without lawful excuse or justification, with the intention or knowledge that the property will be used wholly or in part for terrorist activity as defined in nine terrorist conventions. (127) Second, s. 83.02(b) goes further and includes property that will be used, not only for terrorist activity as defined in the treaties, but also more expansively, for "any other act or omission intended to cause death or serious bodily harm to a civilian or to any other person not taking active part in the hostilities in a situation of armed conflict" that, by its nature or context, is for the purpose of intimidating the public, or compelling a government or an international organization to do or refrain from doing any act. (128) Presumably, because this does not include the armed conflict and military forces carve-outs found in the general "terrorist activity" definition, this would extend to providing property used for acts committed both by state and non-state actors regardless of the lawfulness of those acts under IHL. Third, under s. 83.03, it is an offence to provide or make available property or financial services intending or knowing they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out terrorist activity. (129) Unlike s. 83.02, s. 83.03 does not include a defence of "lawful justification or excuse". Arguably, this offence could extend to a corporation that contracts out security services with a military unit that it knows is responsible for terrorist activity against the civilian population in addition to carrying out legitimate military duties.
Perhaps of most significance in the context of corporate complicity and routine protection payments to terrorist organizations is the offence of providing, directly or indirectly, property knowing that the organization will use or benefit from that property wholly or in part. (130) Thus, for example, making security payments to a paramilitary or rebel group knowing that they will be used by or benefit that group, would constitute terrorist financing. Similarly, loaning a helicopter or providing banking services to a militia or rebel group would constitute a terrorist offence so long as the latter falls within the definition of "terrorist group".
In order to comply with Canada's international obligations relating to terrorist financing, (131) the ATA also added measures to the Criminal Code regarding the freezing, seizure, restraint, and forfeiture of terrorist property. (132) Of particular interest to the present analysis, the Code permits a Federal Court judge to make a forfeiture order in respect of property for which the judge is satisfied, on a balance of probabilities, that it has been or will be used in whole or in part to facilitate or carry out terrorist activity. (133) Moreover, any proceeds from the sale or other disposal of the forfeited property can be used to compensate victims of terrorism or to fund anti-terrorist initiatives. (134) As such, this forfeiture regime might allow the Attorney General of Canada to seek forfeiture of corporate funds for redistribution, that are believed on a balance of probabilities to have been used to facilitate terrorist activity. Although forfeiture and restitution may be ordered upon conviction, the burden of proof for a criminal conviction is the higher "beyond a reasonable doubt" standard. Accordingly, the civil forfeiture order could be obtained even without criminal conviction. Even so, there would be numerous legal--in addition to political--hurdles in seeking such a novel forfeiture order. For example, it is questionable whether a court could forfeit property owned by and located within the parent company where its foreign subsidiary, incorporated and headquartered abroad, is alleged to have facilitated terrorism. This would require establishing a sufficient level of control by the parent over the subsidiary. Moreover, while the Code does allow for restraint of property located outside of Canada, in practice enforcement against a subsidiary could be difficult and likely would depend on the cooperation and legal assistance of the foreign government.
IV CASE STUDIES--THE DARK SIDE OF COLOMBIAN OIL
A recent and enduring example that highlights the hazards of multinationals operating in conflict zones is that of oil exploration in Colombia. This backdrop will constitute the central case study for this article.
Overview of the Colombian Armed Conflict
The stark history of Colombia's ongoing, half century-old armed conflict has been documented and analyzed extensively. (135) In the past twenty years, more than 70,000 Colombians, primarily non-combatants, have been killed. Many more have been "disappeared", kidnapped, tortured, and displaced. In fact, in 2004, the United Nations labelled Colombia the worst humanitarian crisis in the Western hemisphere. (136) While a thorough examination of the conflict exceeds the scope of this article, a brief review of its political underpinnings helps contextualize the local environment in which MNC's operate.
The FARC and ELN are the two oldest and respectively the largest and second largest guerilla groups in Colombia. They are notorious for blatant violations of the laws of armed conflict. (137) They expanded rapidly in the 1980's, largely as a result of the dramatic rise in the popularity of cocaine in North America and the ensuing profits from their involvement in the illegal drug trade. On the other side of the political divide, the right-wing paramilitaries originated as legally constituted "self-defence groups" in the mid-1960's to protect wealthy land barons, emerald dealers, and drug lords and to counter left-wing guerrilla insurgency. They mushroomed in size throughout the 1980's and continue to grow despite being outlawed in 1989. The paramilitaries are responsible for widespread massacres, selective killings, extortion, and forced expropriation of land from civilians. (138) They are also known to provide direct and indirect protection to foreign business interests. (139) The AUC, which is the paramilitary umbrella organization formed in 1994, has expanded its initial focus on protecting land owners to defending the interests of Colombian and foreign corporations often in conjunction with the Colombian army. The paramilitaries have a sizeable presence in resource-rich regions such as Arauca (near Occidental Petroleum's operations), Casanare (near British Petroleum's operations), Uraba (where Dole and formerly Chiquita owned banana plantations), and Putumayo (where Solana Resources and Gran Tierra Energy operate and other Canadian oil companies have operated previously, including Petro Canada and EnCana). Both Canada and the United States have designated FARC, ELN, and AUC as terrorist organizations. (140) Paramilitary assistance to MNC's often extends beyond the protection of workers and facilities from direct insurgent attacks to include suppression of civilians who are suspected guerilla sympathizers. (141) Since the 1990's, the paramilitaries have taken control over large areas by fighting guerillas, forcibly displacing civilians, "disappearing" and killing suspected guerilla sympathizers and those who are perceived to oppose paramilitary control, bribery of public officials, election rigging, and conducting other forms of terrorism and corruption. It is generally acknowledged that the Colombian army has tolerated and at times colluded with paramilitary criminal activity. (142) More recently, there have been allegations of paramilitary control over politicians. (143) The FARC has retaliated to this paramilitary presence by intimidating and attacking civilian populations that are perceived to sympathize with the paramilitaries or oppose FARC control. (144) Despite recent progress being made in respect of a paramilitary demobilization process launched in 2005, many of the demobilized paramilitaries are alleged to have regrouped and other groups have refused to disarm. (145)
Petroleum Investment in Colombia
Like many Latin American states that embraced a neo-liberal economic model, Colombia began market deregulation and liberalizing its economy in the early 1990's, and has courted foreign investors, particularly those in the extractive industry, through privatization of state-owned industries, tariff reduction, and the implementation of other investment-friendly measures. (146) Discoveries by foreign oil companies, such as American-owned Occidental Petroleum's discovery of the Cano-Limon deposit in 1983, resulted in an exponential growth of Colombia's oil industry and reshaped the national economy. (147) By 2000, petroleum became the country's largest export. While British and American petroleum companies have the largest presence, Canada's petroleum operations are substantial nonetheless. These oil companies entered Colombia at a time when the armed conflict was intensifying. As of June 2006, there were at least nine Canadian oil companies with Colombian investments. (148)
The Economics of War: Exploring the Link between Foreign Investment and Human Rights Abuses
To comprehend fully the political economy of internal armed conflict, one must appreciate the role of foreign multinational corporations, particularly in the extraction business, (149) and the resultant impact of foreign direct investment on communities and citizens. With at least 2 million--and as many as 3 million--of Colombia's 45 million people internally displaced, and another one million Colombians having sought refugee status elsewhere, forced displacement is arguably the worst outcome of the Colombian war. Primarily Afro-Colombian and indigenous peasants, (150) and often entire villages, are removed against their will from their land. Some community leaders in Colombia claim that foreign investors provide the incentive, if not the means, to displace communities to allow for natural resource exploration. (151)
Much of Colombia's oil deposits are located in indigenous-occupied lands controlled by illegal guerilla or paramilitary groups. According to one account, 87 percent of forced displacements, 82 percent of human rights abuses and 83 percent of trade union killings occur in Colombia's resource-rich regions. (152) A unique and tragic characteristic of the Colombian war is that, rather than targeting opposing enemy combatants, the paramilitaries and guerillas often target defenceless civilians who are suspected sympathizers of the opponent, or the opponent's ideology or business interests. (153) By extension, paramilitary groups often label opponents of foreign investment as guerilla sympathizers. (154) Moreover, the government, the paramilitaries, and guerillas all have used natural resource extraction profits to boost arms spending and expand their ranks. (155) There is an undeniable and inexorable connection between resource extraction and armed conflict.
For years, the guerillas have repeatedly sabotaged pipelines throughout the country, claiming as their motive protection of an important national resource from foreign exploitation. It is estimated that guerillas attacked the Cano-Limon pipeline at least 900 times between the mid-1980's and 2002. (156) Considering the government's efforts to attract foreign investment, it is perhaps not surprising that as much as half of the country's military spending is dedicated to protecting oil wells and pipelines. (l57) The higher the security risks, the more difficult it is to attract foreign investors. Colombia's military has a very poor human rights record. (158) The army's well-documented links to the right-wing paramilitaries have enabled the army to deflect part of the blame for human rights abuses to these private armies. (l59) Muddying the waters even further, foreign petroleum companies have entered into security arrangements, and helped to fund, with cash and in-kind contributions, ill-equipped local military, units to protect the pipelines, their operations, and their workers. (160) As will be seen later, some companies have also directly or indirectly funded the paramilitaries for the same purpose. Paradoxically, despite their professed desire to destroy it, foreign oil exploration has been lucrative business for the guerillas. (161) Guerilla groups have routinely targeted extraction MNC's with extortion and kidnapping of personnel. (162) By some estimates, the guerillas profited roughly $140 million USD per year from oil industry extortion and kidnapping throughout the 1990's. (163)
One of the worst documented massacres occurred in December 1998, when an American cluster bomb was dropped on the village of Santo Domingo from a Colombian Air Force helicopter, killing seventeen civilians including six children. In April 2003, surviving villagers and the families of victims sued two American corporations under the ATCA as a result of their alleged role in the attacks. (164) The lawsuit is ongoing. (165) Prior to the ATCA litigation, a Los Angeles Times reporter undertook the most detailed investigation of the massacre in 2002. (166) Guerillas and the army had been fighting in the nearby jungle. While there is no evidence that the US government or any private corporation knew their assistance might destroy that village, Colombian military records and a forensic investigation revealed that the US army helped initiate the military operation and that two American companies, Occidental Petroleum (OP) and AirScan, helped plan and support the operation. More specifically, OP provided the Skymaster high-tech spy plane that its security contractor, AirScan, used to provide the bombing coordinates to the army and, with its infrared and video equipment, identified targets on the ground. Additionally, it is alleged that OP supplied directly or through contractors, troop transportation in helicopters, cars, and motorcycles, fuel and uniforms to the Colombian military, including the helicopter that dropped the bomb, and hosted the meeting to plan the bombing at its Cano-Limon offices. Despite documentation to the contrary, AirScan denies allegations that it helped to plan the attack and provided surveillance for it. The Air Force claimed that the attack on Santo Domingo was intended to defend Occidental's oil pipeline from guerilla attack. Yet, no insurgents were killed in the attack. In fact, the guerillas were located at least one to two kilometres outside of the village. It is alleged that, despite knowing the guerillas were not in Santo Domingo, AirScan and the Air Force carried out the attack. (167)
If one accepts these allegations as true, a solid argument can be made that the actions of Airscan and OP would constitute facilitation of terrorist activity as defined in ss. 83.01 and 83.19 of the Criminal Code, in that they knowingly provided material assistance and property for a military operation and this military operation contravened customary international humanitarian law, and constituted terrorist activity by targeting and killing members of a civilian population not taking direct part in the non-international armed conflict. (168) Even if one were to accept that the actions of the Colombian military were in response to a perceived guerrilla threat in the village of Santo Domingo, despite no persuasive evidence to support that claim, the attack was clearly disproportionate in relation to any possible direct and concrete military gain. (169) The Air Force necessarily would expect an aerial bombing of a village to cause significant incidental loss of civilian life, civilian injury, and damage to civilian objects, as was the case in Santo Domingo. And, in this case, the level of civilian casualties far exceeded any professed concrete and direct military gain to annihilate guerilla insurgents in the area. There was no attempt at mitigation, nor any advanced warning given. In fact, the Colombian Constitutional Court ruled in October 2002 that the Santo Domingo bombing was indiscriminate and unlawful under international humanitarian law. (170) Accordingly, the s. 83.01 armed conflict exemption would not apply. In addition, the alleged actions of OP and AirScan could come within the s. 83.03 definition of "terror financing".
A more commonplace form of financing or facilitating terrorists is through protection payments to paramilitaries, guerilla forces, or even state military units. The guerilla forces or paramilitaries frequently supplant the military in resource-rich regions. They then extract regular security payments from foreign corporations to ensure the safety of their operations. This often becomes a routine part of doing business in a war zone. (171) This practice is well-documented in respect of US companies. In fact, testifying before the US Congress, Occidental Petroleum Vice-President Lawrence Meriage readily admitted to making the protection payments, rationalizing these "war taxes" as the cost of doing business in Colombia in order to safeguard their workers and property. (172) As the Chiquita example illustrates below, such "rationales" may no longer hold sway. The relationship between Canadian oil companies and the paramilitaries is not as well documented. Nevertheless, one can infer that they may be confronted with the same moral and legal quandaries faced by other foreign investors who have made security payments to terrorist groups or supplied state security forces, particularly in the extractive industry where there is a manifest correlation between investment and violence. Canadian oil and mining companies operate in some of Colombia's most active conflict zones. In 2004, Canada's Petrobank, along with the State-owned Ecopetrol, provided the Colombian military stationed in Putumayo with two helicopters to protect its pipelines from guerilla attacks. (173) While there are no allegations that those helicopters were used to commit terrorist acts, the case highlights the risks of collaborating and supplying a state army that has a reputation for human rights abuses. Canada's Enbridge Corp. owns one quarter of OCENSA, Colombia's largest pipeline consortium. In 1998, Amnesty International revealed ties between OCENSA and the Colombian army's 14th brigade, a unit notorious for its atrocious human rights record and violations of IHL, and that was under investigation at the time for civilian massacres. Amnesty reported that OCENSA purchased military equipment for the unit and that it used paid informants to gather intelligence on possible "subversives" in the civilian population which it passed on to the military. Some subjects of this intelligence were subsequent victims of military and paramilitary extrajudicial killings and "disappearances". (174) In 2004, stemming from these revelations, Enbridge adopted a Human Rights Policy and a Code of Conduct which includes avoiding association with illegal armed groups and providing only non-lethal equipment to the army. (175)
The saga of Chiquita epitomizes the endemic quandary confronting foreign corporations operating in Colombia, where terrorist organizations on both sides of the conflict thrive in part on illegal payments by foreign interests, and acutely illustrates the thorny moral and legal dilemmas these MNC's face. It sends a cautionary message regarding what constitutes legally and morally acceptable responses by MNC's to the complexities of armed conflict.
Chiquita Brands International (Chiquita) is a multinational corporation, incorporated and headquartered in the United States, which produces, markets, and distributes bananas and other fruit. Until 2004, Chiquita operated in two banana-growing regions of Colombia--Uraba and Santa Marta--through its wholly-owned subsidiary Banadex (C.I. Bananos de Exportacion S.A.). On March 19, 2007, Chiquita pleaded guilty in the US District Court to one count of engaging in transactions with a designated terrorist organization. (176) Pursuant to a written plea agreement, (177) District Court Judge Royce Lamberth sentenced Chiquita on September 17, 2007, to pay a $25 million fine, to implement and maintain an effective compliance and ethics program, and to five years' probation. Chiquita also agreed to cooperate with an ongoing investigation into the terrorist payments. On July 19, 2007, Colombian families filed a federal class-action lawsuit under the ATCA against Chiquita for funding and arming known terrorist organizations in Colombia in order to maintain its profitable control of Colombia's banana growing regions. (178) In March 2008, the families of five American missionaries killed by the FARC in 1993-94 filed a lawsuit in US District Court against Chiquita claiming the company's payments to the left-wing guerilla group during that period contributed to the missionaries' deaths. (179)
The indictment outlined the illegal payment scheme leading up to the guilty plea. (180) Between 1997 and 2004, Chiquita made "security" payments, through Banadex, to the AUC, designated as a foreign terrorist organization (FTO) in the United States in September 2001 and as a Specially-Designated Global Terrorist (SDGT) in October 2001. (181) The terrorist designations were well-publicized both in the United States and in Colombia. Chiquita and Banadex officials were aware of the designations. Like Canada, the United States prohibits any financial support to a designated foreign terrorist organization.
In all, Chiquita made more than 100 payments totaling $1.7 million to the terrorist group, at least $825,000 of which was paid after the 2001 terrorist group designation. Despite recording the payments in the corporate books as "payment for security services", no security services or equipment were ever provided in exchange for these payments. From 1989 to 1997, Chiquita had been making similar payments to the left-wing FARC and ELN guerillas that controlled the region in those years. The United States government designated the FARC and ELN as terrorist organizations in 1997. Chiquita CEO Fernando Aguirre defended the payments stating that they were motivated by a good-faith concern for its employees' safety. Company spokespeople indicated that Banadex employees had been killed and the AUC had threatened to harm employees if security payments were not made. Considering that senior Chiquita officials asserted their only alternative to making the payments was divestment, it is noteworthy that, in 2003, Banadex was Chiquita's most profitable banana-producing operation. (182) Ultimately, however, Chiquita sold Banadex in 2004 notwithstanding its profitability.
According to the indictment, the AUC payouts flowed from a 1997 meeting between AUC leader, Carlos Castano, and the General Manager of Banadex. Castano informed Banadex that the AUC was forcing the guerillas out of Uraba and instructed the company to make security payments via "convivirs", government-licenced private security companies formed to assist local police and military in fighting the guerillas and gathering intelligence. The AUC used certain convivirs as fronts to collect security payments from local businesses to fund the AUC's illegal activities. Amplifying the moral quandary, Castano insinuated that failure to make the payments could result in harm to Banadex property and personnel. Documentary evidence demonstrated that Chiquita senior executives, including high-ranking officers, directors, and employees, studied and approved the security payments, despite knowledge that the AUC was a violent paramilitary group. The indictment maintains the anonymity of those senior executives. From 1997 to 2002, the payments were made via convivir intermediaries by cheque. In 2002, following new directives from Chiquita's senior executives, Banadex made the Santa Marta region payments in cash directly to the AUC. In March 2003, a month after senior management at Chiquita learned that the paramilitary payments were illegal under US law, Chiquita sought legal advice on the matter. Outside counsel emphatically advised Chiquita to cease all payments to the AUC. Counsel observed in writing: "[Y]ou voluntarily put yourself in this position. Duress defence can wear out through repetition. Buz (business) decision to stay in harm's way. Chiquita should leave Colombia." In April 2003, Chiquita's Board of Directors was informed of the illegal payments. The Board decided to disclose the payments promptly to the US Justice Department. Nonetheless, after this disclosure, and despite warnings from outside counsel and the Justice Department, after deliberation, the Board directed Banadex to continue the AUC payments. It is unclear what transpired at the Justice Department meeting.
By filing the indictment and negotiating the plea agreement, the US government put American corporations on notice regarding their potential liability for operating in conflict zones. A US Justice Department press release issued after the plea stated: "Funding a terrorist organization can never be treated as the cost Of doing business. American businesses must take note that payments to terrorists are of a whole different category. They are crimes." (183) Notwithstanding these public pronouncements, there are indications of genuine internal debate surrounding the gravity of Chiquita's payments to the AUC that illustrate the underlying complexity of the issue. Some Senior Justice Department officials perceived them as payments to a violent South American organization that did not represent a direct security threat to the United States, such as al-Qaeda, and as simply helping to stabilize the company's operations in Colombia. (184)
One can draw a disconcerting but instructive analogy between Chiquita and the paradigmatic perils facing foreign oil companies operating in Colombia. While not identical to the Canadian offences of terrorist financing and terrorist facilitation, they are similar. Chiquita pleaded guilty to engaging in a "Prohibited transaction or dealing in property; contributions of funds, goods, or services" under s. 594.204 of the Global Terrorism Sanctions Regulations. (185) It prohibits US persons from engaging in any transaction, dealing in property or interests in property that belongs to persons whose property is blocked, (186) including but not limited to the making or receiving of any contribution of funds, goods, or services to or for the benefit of those persons. Although the payments were physically made by Banadex employees, the involvement of senior Chiquita officials was deemed sufficient to establish its liability. The Chiquita facts applied to a Canadian-controlled oil company, or any other foreign company, operating in Colombia, could result in a similar conviction in Canada for terrorist financing under s. 83.03(b) and facilitation under s. 83.19.
V LEGAL ANALYSIS
The Defence of Duress
Both the Criminal Code and the common law recognize a number of defences to charges on the basis that the accused was either justified in committing, or is at least partially excused for, the unlawful act. This includes the "lawful excuse" of duress. (187) Where sufficient proof of actus reus and mens rea is made, the duress or "threat of compulsion" defence enables an accused, whether corporate or human, to argue that the crime was committed as a result of an immediate threat of death or bodily harm, thereby rendering the actions "morally involuntary" and thus excusable from criminal liability. Yet, an accused person cannot rely on this defence if he or she had an opportunity to safely extricate himself or herself from the situation in order to avoid committing the offence. The rationale for this limitation is that, where a lawful alternative existed, the theoretical underpinning of the defence, "moral involuntariness", is absent. (188)
Extortion is considered to be a serious criminal offence with a maximum penalty of imprisonment for life. (189) The offence of extortion covers a broad range of activity, including direct or veiled threats of violence to person or property made to obtain monetary or other material advantage. Hence, the aforementioned "fundraising" tactics of Colombian right-wing and left-wing terrorist groups is clearly criminal by Canadian standards, and this article argues that the criminal nature of this activity would not give rise to a defence of duress.
Previously, corporations operating in Colombia have claimed that security payments or war taxes paid to paramilitaries or guerillas have been the cost of doing business in a conflict zone. The Meriage testimony before the US Congress and the Chiquita Board of Directors' decision to continue payments to the AUC, despite unequivocal legal advice to the contrary, are reflective of a pervasive, but not universal, corporate mindset towards this type of unsavoury financial arrangement. The Chairman and CEO of Chiquita phrased it in the following terms in an April 2007 statement:
Despite the harsh realities on the ground, the discovery that our payments were violating U.S. law created a dilemma of more than theoretical proportions for us: the company could stop making the payments, complying with the law but putting the lives of our workers in immediate jeopardy; or we could keep our workers out of harm's way while violating American law. (190)
While ransom and perhaps certain extortion payments may afford a "lawful excuse" defence to a charge of terrorist financing because they are made under compulsion of immediate and sudden threats with no reasonable alternative, such a defence would be feeble in the case of recurring protection payments or other material contributions over time that a corporation agreed to make. As unappealing as it may be from a pure shareholder profit standpoint, there is the option, albeit potentially costly, of divesting. If the comments of the US Department of Justice in Chiquita are reflective of Canadian attitudes, corporations can no longer claim "war taxes" and other similar forms of extortion as the cost of doing business in a war zone.
Possible Drawbacks of Terrorism Offence Prosecutions
While the offences of facilitating terrorism and terrorist financing may offer some response to the accountability void in respect of corporate complicity in human rights violations, such prosecutions would not be without hurdles and drawbacks. Undeniably, applying the Criminal Code terrorism offences to cases of corporate complicity in transnational human rights abuses would be a Byzantine task. In addition to the numerous evidentiary and procedural hurdles, two obvious critiques of the terrorism scheme as a corporate accountability tool are that Parliament did not envisage or intend the terrorism offences in this manner and, further, that there may be tepid government enthusiasm for prosecuting major Canadian corporations for extraterritorial conduct.
Defining the Public Interest
The commencement of terrorism offence proceedings requires the consent of the Attorney General of Canada. (191) As such, the Attorney General would decide whether or not charges were warranted and ultimately the Office of the Director of Public Prosecutions would conduct any terrorism prosecutions. Launching private prosecutions, (192) which arguably has served a useful function for public interest groups in Canada to force corporations to respect environmental laws, (193) would not be an option in the present context. Discretion to commence criminal proceedings must be exercised in accordance with the dual criteria of evidentiary sufficiency and the public interest. (194) In addition to the evidentiary obstacles discussed below, government reluctance to regulate MNC's and its emphasis on voluntarism, as exemplified by the Government of Canada's response to the Harker Report on Talisman in Sudan (195) and, more recently, its response to the Standing Committee on Foreign Affairs and International Trade (SCFAIT) Report, might lead to a conclusion that the government would not consider extraterritorial criminal proceedings against MNC's to be in the public interest. In its response to the SCFAIT, the government advocated for voluntary codes of conduct. It repeatedly emphasized the need for corporate "knowledge, support and incentives" to conduct their activities abroad in a socially and environmentally responsible manner, with comparatively few references to regulation and enforcement. (196) If one turns to the international sphere for guidance, under international law, states have the capacity and, at least to some extent, the right, but no legal duty, to regulate the extraterritorial activities of their corporate and individual citizens. (197) Despite recent initiatives of several industrialized countries to consider regulating the extraterritorial social and environmental conduct of their corporations, there is no emerging state practice in this respect. (198) These factors may tilt the "public interest" against prosecution. At the very least, it may result in an inadequate dedication of resources to investigate properly and prosecute alleged corporate wrongdoers, leaving it to human rights organizations and other non-state actors to identify those responsible, gather evidence, bring allegations to the public's attention, and demand action.
Politicization of the Definition of Terrorism
Over the years, international organizations and states have endeavoured in vain to craft a politically neutral definition of terrorism. To date, there is no single internationally accepted and authoritative definition of terrorism. (199) In effect, it is a highly politicized word. The Supreme Court of Canada cited one of the most prominent illustrations of the politicized nature of the term in Suresh v. Canada (Minister of Citizenship and Immigration). (200) World-revered anti-apartheid activist and Nobel Peace Prize winner, Nelson Mandela, led the African National Congress--including its armed wing, Umkhonto we Sizwe--which was labelled a terrorist organization during the apartheid era, not only by the South African government, but by much of the international community. Moreover, even where agreement is reached on a particular definition, there is substantial disagreement as to who falls within the definition. (201) The old adage that "one person's terrorist is another person's freedom fighter" is very much alive and well. While the Colombian example is arguably less politically charged because both sides of the armed conflict are listed terrorist entities in Canada and elsewhere, many less straightforward cases could become political lightning rods. In these circumstances, terrorism prosecutions would be less politically palatable. In effect, the entwined relationship of law and politics further complicates the decision of whether to launch a terrorism prosecution.
That said, the Canadian government has played a leadership role in advancing the human security agenda internationally, including the issue of corporate links to human rights violations. (202) The 2007 Advisory Report flowing from the Corporate Social Responsibility Round Tables may also shore up government interest in accountability. Moreover, the increased public dialogue regarding the need for extraterritorial regulation of MNC's, both in Canada and abroad, could fortify the public interest in investigation and prosecution. Finally and perhaps most importantly, in the clearest cases of corporate complicity in egregious human rights abuses, the public interest most certainly would best be served by using the laws at our disposal to prosecute and punish the offenders and to deter likeminded corporations. In view of the interconnectedness of Canadian and American foreign policy, the Chiquita guilty plea may well lend credence to the argument for holding our own corporations accountable for their extraterritorial conduct. In any event, private citizens or groups are free to make public any decision of the Attorney General not to lay charges, thereby holding the government to account in the court of public opinion for its decision and causing embarrassment to the corporation.
Veering from Original Legislative Intent
Using the terrorism offences to prosecute multinational corporations would involve veering from original legislative intent thereby potentially further shrinking state appetite for launching such prosecutions. Yet, these same concerns existed in respect of the Alien Tort Claims Act (ATCA) at its reincarnation in the 1980's. At its inception in 1789, the ATCA was a little known statute that simply granted jurisdiction to US courts to hear lawsuits of torts that violated the law of nations and made no reference to legal rights. In fact, there were no international human rights laws nor a domestic human rights movement in the late 18th century. (203) The general speculation is that the statute's original intent was to convince European countries that the new United States would not become a safe haven for pirates in American waters. (204) As piracy concerns waned, however, the law went dormant for nearly two centuries. Entrenched government resistance under the current US administration, a shift from original legislative intent, and a steady onslaught of evidentiary and procedural roadblocks that are inherent to ATCA litigation have not impeded victims and human rights groups from attempting to use the legislation as a corporate accountability tool. Admittedly, however, unlike Canada's Criminal Code terrorism offences, the civil ATCA does not require state intervention and, therefore, does not need state support for its use as a human rights accountability tool.
Gathering credible and admissible evidence that is located primarily in a foreign country presents formidable legal, political, financial, and even cultural challenges. First, evidence gathering will often require the cooperation and assistance of the host government. (205) Even where evidence is sought from a country with which we have a mutual legal assistance treaty, these agreements tend to give requested states ample discretion and typically do not deal specifically with universal jurisdiction offences. (206) Second, these investigations are extremely costly. Third, linguistic and cultural barriers, particularly if combined with potentially faulty memories of past traumatic events, may further complicate evidence gathering. Finally, the hurdles are even greater where, as is often the case, a host government also has unclean hands, or simply fears losing existing and future foreign investment in the competitive world of multinational investment. Thus, a host government may be reluctant to cooperate with foreign authorities or may even be obstructionist. The Colombian government has privatized its oil industry, recruited foreign investors, relied heavily on the military and paramilitaries to protect the oil fields, and benefits enormously from foreign capital investment. Nonetheless, Colombia's willingness to hold accountable the worst corporate offenders remains to be seen, despite a well-developed legislative framework. It is noteworthy that, in addition to the American proceedings against Chiquita, the Colombian government is investigating claims that in 2001, 3400 AK-47 rifles and ammunition that were destined for the AUC were unloaded on a Banadex controlled dock. (207) As well, the Colombian government is seeking the extradition of eight Chiquita executives in relation to these illegal payments. The outcome of these proceedings may shed some light on the Colombian government's willingness, or lack thereof, to hold accountable foreign investors and their subsidiaries.
Standards of Proof
The high burden of "proof beyond a reasonable doubt" in the criminal context, combined with the complexities of proving transnational corporate mens rea, makes a successful prosecution for terrorism offences more difficult than under the civil "balance of probabilities" standard for tort claims. That said, in contrast to a tort claim for damages, the facilitating terrorism offence does not require proof of a causal link between the actions of the accused and injury to a plaintiff beyond being able to come within the definition of facilitation. (208)
No Operational Presence
The terrorism offences require a link between the corporate accused and the terrorist group or activity. In theory, foreign subsidiaries could be charged alone or jointly with parent companies because the terrorism offences espouse the principle of universal jurisdiction. From a practical perspective, however, including the ability to serve process and enforce judgment, prosecuting Canadian headquartered or incorporated entities would be more effective. Establishing a chain of causation becomes much more complicated where a parent corporation located in Canada operates with a fairly independent subsidiary located and incorporated in the host country. (209) Establishing a sufficient causal link between corporate perpetrators and terrorism would not necessarily require physical presence. Arguably, failing to properly monitor and supervise its subsidiaries may suffice. (210)
Realities of Doing Business in Conflict Zones
A judge or jury panel may be reluctant to convict a corporation for terrorism crimes if the defendant is portrayed persuasively by the defence as a pawn "just doing business" in a conflict zone. As District Judge Cote observed in Talisman:
[T]he activities which the plaintiffs identify as assisting the Government in committing crimes against humanity and war crimes generally accompany any natural resource development business or the creation of any industry. Many countries, including on occasion our own, have encouraged investment by domestic corporations in foreign countries that have abysmal human rights records based on the belief that economic development will bring with it political development, respect for the rule of law and the observance of human rights. (211)
Additionally, these acts "have no necessary or obvious criminal component". (212) That said, the Chiquita prosecution may indicate a shift in judicial perception, at least insofar as terrorist activities or entities are involved.
From a policy standpoint, one might assert that prosecutions would essentially scapegoat a handful of relatively less blameworthy corporations, and ultimately their shareholders, through the imposition of fines or restitution orders in the event of a conviction, rather than attacking the much more egregious and deliberate acts of repressive regimes, terrorist organizations, and their supporters. Conversely, the looming threat of prosecution, combined with its potential reputational and financial costs, likely would prompt shareholders to pressure the corporation to cease any dubious activities, both to protect their pocketbooks and to stay within their ethical comfort zones.
Possible Advantages of Terrorism Offence Prosecutions
In light of the aforementioned accountability gap, labour and human rights organizations, and foreign national victims of human rights atrocities seeking justice and compensation have relied upon imperfect foreign instruments--most notably, the ATCA and the Torture Victims Protection Act (213)--to hold MNC's, as well as other individual and government defendants, accountable both for direct participation and complicity in the worst forms of human rights violations. Because the ATCA grants original jurisdiction to US District Courts to entertain civil suits by aliens for torts committed in violation of the law of nations or a treaty ratified by the United States, foreign plaintiffs can have recourse to American courts where their domestic laws are non-existent or ineffective. American courts have held that corporations may be held liable for violations of international law that come within the scope of the "law of nations", (214) and the ATCA litigation against corporate multinationals has been burgeoning.
Among the significant procedural hurdles under the ATCA, (215) is that in order to establish a cause of action, a plaintiff must demonstrate that the human rights violation alleged against the defendant is serious enough to constitute a violation of the "law of nations". (216) Additionally, gaining jurisdiction over defendants located abroad both to serve process, because the defendant must be served within the US borders, and to enforce awards of damages, has been problematic. Furthermore, the extension of universal jurisdiction under the ATCA has given rise to numerous forum non conveniens motions claiming on the basis of international comity that, as a third party state, the United Sates is not the appropriate forum in which to litigate claims between two independent parties. An example is the Santo Domingo bombing case, in which the US District Court rejected the defendant's motion to dismiss under the doctrines of forum non conveniens and international comity. (217) In May 2007, the Government of Canada filed an amicus curiae brief in the Talisman appeal arguing that the ATCA should not be applied extraterritorially to the alleged conduct of a Canadian multinational corporation that occurred entirely outside the United States based on the lack of a "genuine and effective jurisdiction link to that country". (218)
In this regard, reliance upon the defendant's nationality as a jurisdictional basis for domestic criminal proceedings would significantly diminish these legal impediments. Moreover, from a policy standpoint, it would be preferable to have recourse to Canadian laws and courts in respect of allegations related to Canadian corporations and their subsidiaries, rather than resorting to the American judicial system and principles of international law to seek redress and combat impunity. The Government of Canada takes this position in its amicus curiae brief filed in Talisman.
Elements of the Offence: Actus Reus and Mens Rea
For the purposes of civil and criminal liability, corporations act through their senior officials. Consequently, proving a corporation's knowledge or intent to commit an offence is often more complex than proof against a single individual. Criminal Code amendments came into force in 2004 to make it easier to hold organizations criminally accountable. (219) Bill C-45 expanded the class of representatives who can commit the actus reus in whole or in part on behalf of the corporation beyond the directing minds of the offending organization. A corporation is now deemed to act through its "senior officers", namely its directors, chief executive officer, chief financial officer--regardless of their specific duties--and agents, employees, and contractors with a sufficiently high level of managerial or policy-making authority within the corporation. (220) The Criminal Code definition of "senior officer" therefore extends to representatives who play important roles both in policy-making and operational management within the corporation. Bill C-45 also introduced s. 22.2 of the Criminal Code, which defines liability for mens tea offences. Section 22.2 sets out three alternative bases for corporate liability where a senior officer, who has, at least in part, the intent to benefit the corporation and is acting within the scope of his or her authority, (1) actually commits or is a party to the offence; (2) directs other representatives of the corporation to perform the actus reus of the offence for the benefit of the corporation; or (3) knowing a crime is being committed, does not take reasonable measures to stop a representative from committing the offence.
By way of example, let us return to the Chiquita security payments. The general manager of the Chiquita subsidiary, Banadex, committed the actus reus of negotiating and making the illegal payments to the Colombian paramilitaries. Chiquita claimed that these payments were made to protect Banadex workers and facilities. Yet, seemingly, these payments were made, at least in part, to maintain rather than divest Chiquita's most profitable subsidiary and to retain control over Colombia's profitable banana growing region. As such, these illegal payments benefited both Banadex and the parent corporation. The payments could be described as the "cost of profiting". Senior Chiquita executives, including its directors, knew the post-2003 payments to a terrorist organization were illegal and yet, not only failed to stop them, but actually directed Banadex to continue the payments, despite legal advice to stop. As such, applying Canada's Criminal Code to these facts, Chiquita's criminal liability could be established on the basis of either the second or third form of liability in s. 22.2.
Contrasting the ATCA with the Criminal Code terrorism facilitation and financing provisions, it is apparent that, while the civil standard of proof is lower under the ATCA, the requisite element of fault for the relevant offences recognized by customary international law is more stringent than the general intent requirement for facilitation of terrorism. More specifically, proof of aiding and abetting crimes against humanity, such as forced displacement or killing, under the ATCA requires not only evidence of knowledge of crimes but also specific intent to further those crimes. (221) Mere knowledge that a government or armed group is committing serious human rights violations is not enough. It must be shown that the corporation intended to encourage or knowingly encouraged those crimes. On July 26, 2007, in the first ATCA case against a multinational corporation to go to trial, the jury found Alabama-based Drummond Coal Inc. not liable for knowingly aiding, and thereby assisting in the commission of a war crime, the paramilitaries who kidnapped and murdered three company union leaders in Colombia. (222)
Corporations typically invest in these conflict zones with the intent to generate a profit for their shareholders and not with the purpose of abetting crime and violence. Although a corporation may be willfully blind as to the role its actions and financing may play in furthering armed conflict and human rights abuses, it does not intend violence. In contrast, the Criminal Code offence of facilitating terrorism requires neither knowledge of a specific terrorist activity nor intent to advance the terrorist goals. While the mens rea for terrorist financing is slightly higher than for facilitation, it is not as stringent as the offence of crimes against humanity under the ATCA.
Deterrence is espoused as a central tenet of both domestic and international criminal law. (223) In the context of MNC's considering investment in conflict regions, and conducting meticulous due diligence risk assessments, the mere possibility of domestic criminal proceedings could be a real deterrent and serve both a harm prevention and a stigmatizing function, with the added notoriety that comes with national media coverage in the language of the shareholders and the Canadian public. Corporations and their shareholders do not want the stigma of being branded as violators of human rights or labelled as doing business with terrorists. (224) Perhaps not surprisingly, following the Harker Report's release, there were widespread calls to divest Talisman shares, including those held by public pension funds. (225) Following the government's response to the report, which indicated no sanctions would be imposed, Talisman's stock rose. (226) A Canadian corporation may find it more difficult to defend its record through public relations campaigns where the allegations are litigated in the forum and language of its shareholders and the public. The threat of penal sanctions may provide an additional incentive for establishing and enforcing human rights codes for conducting business in foreign jurisdictions.
Exemplifying Commitment to the Human Rights and Human Security Agenda
Canada's human, security foreign policy acknowledges as one of its central tenets "working to enhance the safety and well-being of people abroad". (227) In this vein, Canada has committed itself to addressing the economic dimensions of armed conflict, noting that armed conflicts are increasingly motivated by profit rather than power in situations where "armed groups and other non-state actors seek to accumulate wealth, frequently through the exploitation of high value resources including diamonds, tropical timber, narcotics and even humanitarian aid". (228) Prosecuting egregious corporate complicity in transnational human rights atrocities abroad would uphold the foreign policy goals of human rights and human security protection.
Sentencing Opportunities for Compensation and Prevention
One of the recurring dilemmas in international criminal law is the provision of reparations, including restitution for lost property and land to victims of human rights violations, such as in the tragically common context of forced displacement. A shortcoming of ATCA litigation, for example, is that even successful plaintiffs have little hope of enforcing civil awards of damages extraterritorially against a foreign defendant with no assets in the United States. Conversely, sentences following terrorism offence convictions of Canadian headquartered corporations, which are governed by Canadian law, could be a more effective restitutionary tool. The terrorism offences were designed with human rather than corporate perpetrators in mind and accordingly provide only for sentences of imprisonment upon conviction. That said, an organization that is convicted of an indictable offence can be fined under the judge's discretion in lieu of imprisonment. (229) While they may serve punitive and deterrent functions, fines for federally prosecuted offences are paid to the federal government and thus are not intended to compensate victims. Therefore, perhaps more importantly in this transnational forum where the goal of reparations features prominently, courts may impose restitution upon corporate offenders within the confines of a probation order. (230) As noted previously, the terrorism framework also enables the Attorney General of Canada to seek forfeiture orders even in the absence of criminal prosecution.
Finally, it should be noted that although probation is rarely imposed on corporate offenders, there may be circumstances in which probation could be the appropriate sanction to monitor a corporation and to prevent future human rights crimes. The 1994 Criminal Code amendments added appealing educational and preventative tools in the context of possible corporate probation orders.TM This could include specific types of monitoring and reporting on compliance with a court-imposed corporate code of conduct. In effect, Canada's Criminal Code provides a number of appealing sentencing tools for Canadian corporate offenders that would enable courts to ensure deterrence and denunciation (through fines), provide reparations to victims of human rights abuses (through restitution orders), and prevent future complicity by that corporation and others (by establishing company or industry-specific policies and standards and by monitoring the offending corporation).
Multinationals increasingly are finding themselves under the spotlight in respect of their human rights records. On June 28, 2007, following up on the Chiquita revelations, the U8 Congress Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight announced that it would undertake a thorough examination of how American multinationals operate around the world, using Colombia as a model. The Subcommittee also indicated that it would identify any legislative gaps in the criminal code that allow US corporations to aid or abet violence in other countries. (232) In effect, there is a growing recognition that voluntary codes of conduct alone will not ensure compliance with human rights norms or sate a robust public appetite for effective accountability mechanisms. (233) We can anticipate multinationals more and more will be expected and required to adhere to international human rights norms in their operations abroad, (234) particularly in more precarious and fragile conflict zones such as Colombia.
Canada's extractive industry routinely seeks out unexploited natural resources located in underdeveloped nations that feature weak, failing and often oppressive governments that, in turn, rely on foreign investment of capital and technology to exploit their resources, to prosper, and in some cases to stay in power. (235) The Canadian government encourages this investment. (236) In view of the socioeconomic imbalance between industrialized and non-industrialized states and, more importantly, the monumental and ever-increasing amounts of evidence linking the presence of extraction multinationals to human rights abuses, one must question the appropriateness of adhering to the principles of state sovereignty, and the preference for voluntary compliance and education over proactive regulation and enforcement. One must question the ethics of claiming inability and turning a blind eye while Canadian companies and shareholders are deriving much of the profit from these foreign states' natural resources. Arguably, there is a countervailing moral, if not legal, obligation to use proactively the laws at our disposal, to dedicate adequate investigative and prosecutorial resources to ensure corporate accountability, and to further enact effective and specifically tailored domestic laws to regulate the conduct of our companies abroad where failed or weak states are unwilling or unable to do so.
Where shareholder profits are often the bottom line, voluntary codes of conduct are simply inadequate. The threat of criminal sanction bolsters respect for voluntary measures. It would further encourage MNC's to adopt and, more importantly, to adhere to meaningful internal policies and guidelines to prevent complicity in human rights abuses and to extricate themselves where the risks of complicity simply become too great. Ultimately, the enactment of voluntary codes of conduct will have little value unless combined with effective monitoring, regulatory and enforcement schemes, including civil or criminal sanctions to deal with the worst transnational corporate human rights violators.
While certainly no panacea, the Criminal Code terrorism provisions should not be discounted as an instrument at the Canadian government's disposal to hold accountable those MNC's that are suspected of complicity in the most egregious human rights violations when they are either committed by terrorist organizations, or they constitute terrorist activity. In comparison to other existing litigation paths, this likely is a more realistic and flexible alternative to prosecutions for corporate complicity in crimes against humanity and war crimes. Moreover, depending on the particular factual allegations, the terrorism provisions may be more appropriate, more effective, and less cumbersome than launching civil actions under the ATCA to litigate human rights atrocities implicating Canadian-based MNC's. Furthermore, even in the absence of criminal prosecutions and convictions, courts can freeze and forfeit assets of corporate wrongdoers.
Admittedly, the Criminal Code terrorism provisions were not specifically designed with the transnational corporate defendant and far-off victim in mind. And undeniably, applying the legislation to cases of corporate complicity in transnational human rights abuses would be fraught with difficulty. It would involve circumventing original legislative intent, possibly lukewarm state interest, and gargantuan evidentiary and procedural hurdles. Yet, these same hurdles existed almost three decades ago, but they did not deter American human rights activists that brushed off the cobwebs and drew out of obscurity the ATCA. At present, there are no simple made-in-Canada solutions to fill the corporate accountability void. Nonetheless, in the absence of more suitable civil or penal legislation, it is imperative that we think innovatively in order to devise concrete and viable solutions, with the tools at our disposal, to combat corporate impunity.
* This article was first presented at the Third Annual Conference on Student Publishing in Law held by the University of Toronto Faculty of Law Review on February 29, 2008. The author would like to thank the editorial board of the University of Toronto Faculty of Law Review, Professor Craig Forcese, Professor Cynthia Williams, Professor Ed Morgan, and her father David Johnston, for their valuable comments and suggestions.
(1) See generally Joseph Stiglitz, Making Globalization Work (New York: W.W. Norton & Company, 2007); John Gerard Ruggie, "Business and Human Rights: The Evolving International Agenda" (2007) 101 American J. Int. L. 819. See also Scott Pearce, "Tackling Corporate Complicity: Canadian Oil Investment in Colombia" in Liisa North, Timothy David Clark & Viviana Patroni, eds., Community Rights and Corporate Responsibility: Canadian Mining and Oil Companies in Latin America (Toronto: Between the Lines, 2006) 160 [Pearce, "Tackling Complicity"].
(2) See generally Penelope Simons, "Corporate Voluntarism and Human Rights: The Adequacy and Effectiveness of Voluntary Self-Regulation Regimes" (2004) 59:1 R.I./I.R. 101, online: <http://www.erudit.org/revue/ri/2004/v59/nl/OO9129ar.pdf> [Simons, "Corporate Voluntarism"].
(3) Government of Canada, Government Response to the Fourteenth Report of the Standing Committee of Foreign Affairs and International Trade (17 October 2005) at 2, online: <http://cmte.parl.gc.ca/cmte/committeepublication.aspx?com=8979& lang=1&sourceid=131218> [Government Response to SCFAIT]. Almost 60% of the world's exploration and mining companies are listed in Canada, accounting for 40% of worldwide exploration budgets located in over 100 countries.
(5) Ibid. at 6.
(6) Amnesty International, "Canadian regulations" (19 December 2006), online: <http://www.amnesty.ca/themes/business_regulations.php#>; Georgette Gagnon, Audrey Macklin & Penelope Simons, Deconstructing Engagement: Corporate Self-Regulation in Conflict Zones--Implications for Human Rights and Canadian Public Policy, (Paper prepared for the Law Commission of Canada, January 2003) [Deconstructing Engagement] at 61-62.
(7) Amnesty International, "Canadian Regulations", ibid.
(8) John G. Ruggie, State Responsibilities to Regulate and Adjudicate Corporate Activities under the United Nations' Core Human Rights Treaties: Report prepared for the mandate of the Special Representative of the United Nations Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises (12 February 2007), online: <http://www.reports-and-materials.org/State-Responsibilities-to-Regulate- Corporate-Activities-under-UN-Core-Treaties-12-Feb-2007.pdf> [Ruggie Report]; International Council on Human Rights Policy, Beyond Voluntarism: Human rights and the developing international legal obligations of companies (Versoix, Switzerland: ICHRP, 2002), online: <http://www.ichrp.org/files/reports/7/107_-_Business_ and_Human_Rights_-_Main_Report. pdf> at 73-75 [Beyond Voluntarism].
(9) See for example, Ruggie Report, ibid.; Canadian Council for International Cooperation Americas Policy Group, Towards a Human Rights Framework for Canadian Policy on Colombia (November 2006), online: <http://www.ccic.ca/e/docs/003_apg_2006-11_canadian _policy_towards_colombia.pdf> [CCIC Americas Policy Group]. See also generally Human Rights Watch reports on its "Business and Human Rights Section", online: <http://www.hrw.org/doc/?t=corporations_extract>. One of the most notorious cases of alleged corporate complicity in human rights abuses in conflict zones implicated Calgary-based multinational Talisman Energy Inc., in respect of its Sudanese operations. In a civil action under the Alien Tort Claims Act, the plaintiffs allege that, in order to allow for oil exploration and extraction, Talisman conspired with the Sudanese government and pro-government militia in the killing and widespread and systematic forcible displacement of civilians (1) by designating areas for oil exploration knowing that the government would then evict civilians from these areas; (2) by sharing with the military, and upgrading, airstrips within its concession knowing that the government would use them to conduct air attacks on civilians and property; (3) by paying royalties to the government knowing that the funds would be used to purchase weapons that would in turn be used against the civilian population; and (4) finally, by providing supplies, accommodations, and road-building for the military. It is alleged that Talisman's "directing minds" were made aware that the Sudanese government relied on both the army and government-sponsored militia to protect the oil fields. After years of procedural motions, the suit ultimately was dismissed in September 2006 for procedural reasons and is currently on appeal to the US Court of Appeals for the Second Circuit and awaiting oral argument. See The Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp.2d 633 (U.S. Dist. 2006) at 52, online: <http://efchr.mcgill.ca/pdf/ presbyterianchurch_talisman.pdf> [Talisman]. For other examples of alleged corporate complicity, see also Wiwa v. Royal Dutch Petroleum, 392 F.3d 812 (5th Cir. 2004), online: <http://bulk.resource.org/courts. gov/c/F3/392/392.F3d.812. 03-21222.html>; Doe I v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997). In a 2005 Report, the Standing Committee on Foreign Affairs and International Trade (SCFAIT) called on the federal government to further investigate the impact of a Canadian mining company, TVI Pacific, on human rights in the Philippines: Standing Committee on Foreign Affairs and International Trade, Fourteenth Report, 38th Pad., 1st Sess. Mining in Developing Countries and Corporate Social Responsibility (22 June 2005), online: <http://cmte.parl.gc.ca/cmte/ CommitteePublication.aspx?COM=8979&Lang=1 & SourceId=178650> [SCFAIT Report].
(10) David Petrasek, "Public Eye on Davos" (Speech delivered by Amnesty International Senior Director of Policy, 23 January 2003), online: <http://web.amnesty.org/library/index/ englOR500012003? open&of=eng-398>. See also Deconstructing Engagement, supra note 6; Pearce, "Tackling Complicity", supra note 1 at 172; Rachel Chambers, "The Unocal Settlement: Implications for the Developing Law on Corporate Complicity in Human Rights Abuses" (Article prepared in 2005 as part of an Australian Research Council Linkage project on the human rights responsibilities of multinationals), online: <http://www.globalpolicy.org/intljustice/atca/2005/09unocal.pdf>.
(11) See e.g. Department of Foreign Affairs and International Trade, National Roundtables on Corporate Social Responsibility and the Canadian Extractive Sector in Developing Countries (Advisory Group Report, 29 March 2007), online: <http://geo.international.gc.ca/cip-pic /library/Advisory%20Group%20Report%20-%20March%202007.pdf> [CSR Advisory Group Report], CCIC Americas Policy Group, supra note 9; United Nations Economic and Social Council, Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, E/CN.4/Sub.2/2003/12/Rev.2 (adopted at its 22nd meeting 13 August 2003), online: <http://www1.umn.edu/humanrts/links/norms-Aug2003.html>. Article 1 provides: "1. States have the primary responsibility to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including ensuring that transnational corporations and other business enterprises respect human rights. Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups."
(12) See e.g. Craig Forcese, Debunking the Myths on the Feasibility of CSR Regulatory Reform in Canada (Paper commissioned by the Canadian Network on Corporate Accountability (CNCA) and the National Round Tables on Corporate Social Responsibility and the Extractive Sector in Developing Countries, September 2006) at 14, online: <http://geo.international.gc.ca/cip-pic/library/ CSR_Submission_CNCA_Memorandum_CSR_and_ Jurisdiction.pdf> [Forcese, Debunking Myths]. In its Report to the CSR Roundtables, the CNCA recommended the enactment of an International Crimes Compensation Act that would contain a civil cause of action, similar to the US Alien Tort Claims Act, for violations of the Crimes against Humanity and War Crimes Act. See also discussion in CSR Advisory Group Report, supra note 11 at 41-45; Canadian Lawyers Association for International Human Rights (CLAIHR), "Options available to the Government of Canada in responding to Canadian corporate complicity with human rights abuses" (Paper produced by the CLAIHR Student Chapter at the University of Ottawa, 2 January 2000) at 24, online: <http://aix1.uottawa.ca/~cforcese/other/complicity.pdf>.
(13) Crimes Against Humanity and War Crimes Act, S.C. 2000 c. 24.
(14) Alien Tort Claims Act, 28 U.S.C. [section] 1350 [ATCA]: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The ATCA extends the principle of universality to violations of United States treaties or the law of nations, enabling foreigners to sue foreign legal and moral persons in American district courts for atrocities and human rights violations that contravene the law of nations. In the last two-and-a-half decades, labour and human rights organizations have used the ATCA to sue corporations for complicity in human rights abuses abroad.
(15) Craig Scott, ed., Torture as tort: comparative perspectives on the development of transnational human rights litigation (Oxford: Hart Publishing, 2001); Sarah Joseph, Corporations and Transnational Human Rights Litigation (Oxford: Hart Publishing, 2004); "Corporate Liability for Violations of International Human Rights Law" (2001) 114 Harvard L Rev. 2025.
(16) One article discusses corporate liability generally under the ATA: Lawrence Herman, "Anti-terrorism law forces business to scrutinize all dealings" (January/February 2002) Ivey Business Journal, online: <http://www.iveybusinessjournal.com/view_article.asp?intArticle_ID=342>.
(17) Criminal Code, R.S.C. 1985, c. C-46, ss. 83.01-83.33 [Criminal Code].
(18) Because the Criminal Code terrorism offences are grounded in the principle of universal jurisdiction (and not simply nationality), in theory, they would extend liability to any corporation irrespective of its nationality. Nonetheless, the prosecution of foreign corporations would present additional practical and political hurdles and accordingly, it might be reasoned, it would not be in the public interest. This article, in consequence, focuses only on Canadian corporations.
(19) Criminal Code, supra note 17, s. 83.19.
(20) Ibid., ss. 83.02-83.04.
(21) Ibid., ss. 83.08-83.17.
(22) See for example Human Rights Watch, War Without Quarter: Colombia and International Humanitarian Law (Report prepared for Human Rights Watch, October 1998) at 205, online: <http://www.hrw.org/reports98/colombia/>.
(23) Fuerzas Armadas Revolucionarias de Colombia-Ejercito del Pueblo, FARC-EP, Revolutionary Armed Forces of Colombia. It is the largest guerrilla group with approximately 20,000 combatants. It is rural and peasant-based. See e.g. Amnesty International, Colombia: A Laboratory of War: Repression and Violence in Arauca, A1 Index: AMR 23/004/2004 (20 April 2004), online: <http://web.amnesty.org/ library/index/ENGAMR230042004> [Amnesty International, Laboratory of War].
(24) Ejercito de Liberacion Nacional (Army of National Liberation) is the second largest guerilla group with roughly 4,000 combatants. It is urban-based, with many members from the academic community. See Amnesty International, Laboratory of War, supra note 23.
(25) The Autodefenses Unidas de Colombia (AUC), translated in English to United Self-Defence Forces of Colombia is a violent right-wing organization in Colombia, formed in 1997 as an umbrella organization to organize loosely affiliated paramilitary groups formed to retaliate against left-wing guerillas fighting the Colombian government. AUC members are responsible for the kidnapping and murder of civilians and suspected guerilla supporters. The AUC has been responsible for some of the worst massacres in Colombia's four-decade old armed conflict and is linked to the country's cocaine exports.
(26) Public Safety Canada, "Currently Listed Entities", online: <http://www.psepc.gc.ca/prg/ns/le/cle-en.asp>.
(27) The Criminal Code, supra note 17, articulates the principle of territoriality in s. 6(2), which provides that, subject to the Code or other federal legislation to the contrary, no person may be convicted of an offence committed outside Canada. See also Libman v. The Queen,  2 S.C.R. 178 at 183.
(28) Forcese, Debunking Myths, supra note 12 at 5, quoting Ian Brownlie, Principles of Public International Law, 4th ed. (New York : Oxford University Press, 1990) at 422: "the nationality must be derived either from the fact of incorporation ... or from various links including the centre of administration (siege social) and the national basis of ownership and control".
(29) R. v. Finta,  1 S.C.R. 701 at para. 56 [Finta]. See International Law Association Committee on International Human Rights Law and Practice, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences (London Conference 2000), online: <http://www.ila-hq.org/pdf/HumanRig.pdf>: "Under the principle of universal jurisdiction a state is entitled or even required to bring proceedings in respect of certain serious crimes, irrespective of the location of the crime, and irrespective of the nationality of the perpetrator or the victim."
(30) Crimes against humanity are now defined in Article 7 of the Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90, 37 I.L.M. 1002, to include the following conduct when committed on a widespread or systematic basis: murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape and other sexual violence, persecution, enforced disappearance, apartheid, and other inhumane acts.
(31) The Crimes Against Humanity and War Crimes Act, supra note 13 creates the offences of crimes against humanity, genocide, and war crimes on the basis of universality.
(32) International Convention for the Protection of All Persons from Enforced Disappearance, GA Res. 61/177, U.N. Doc. A/RES/61/177 (2006).
(33) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85 requires state parties to prosecute in their own courts persons who are suspected of torture and who are found in their territories or to extradite them to a state that is able and willing to do so.
(34) For judicial consideration of extraterritorial extension of domestic laws and the principle of state sovereignty, see Bouzari v. Islamic Republic of Iran,  243 19 D.L.R. (4th) 406 (Ont. C.A.), leave to appeal to S.C.C. refused,  S.C.C.A. No. 410 and R. v. Hape,  S.C.J. No. 26. See also commentary in Ian Brownlie, Principles of International Law, 6th ed. (U.S.A.: Oxford University Press, 2003) at 287; CSR Advisory Group Report, supra note 11 at 41; Forcese, Debunking Myths, supra note 12 at 6, citing the Supreme Court of Canada decision in Finta, supra note 29 at paras. 60-72; commentary in Craig Forcese, "Memorandum: Response to PDAC Opinion on Extraterritoriality Regulation Prepared by Appleton & Associates" (13 November 2006) at 2, online: <http://geo.international.gc.ca/ cip-pic/library/CSR_Submission_Response_C_Forcese.pdf>.
(35) For a thorough discussion of the domestic exercise of extraterritorial jurisdiction see Steve Coughlan et al., "Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction in the Age of Globalization" (Paper prepared for the Law Commission of Canada, 23 June 2006), online: <http://www.library.dal.ca/law/Guides/FacultyPubs/Joint/GlobalReachFinal.pdf>. See also Bruce Broomhall, "Towards the Development of an Effective System of Universal Jurisdiction for Crimes Under International Law" (2001) 35:2 New England L. Rev. 399 (review of the evolving legal status of the principle of universal jurisdiction in international law as it relates to the prosecution of international crimes).
(36) The principle of universality provides that a state may assert jurisdiction over a person who is physically present in that state for certain criminal acts which are deemed to be offensive to the international community at large, irrespective of the alleged perpetrator's nationality or the location of the alleged offence.
(37) The principle of nationality provides that a state may assert jurisdiction over the acts of their nationals committed abroad. For example, in 1997, Canada added s. 7(4.1) of the Criminal Code to enable the prosecution of Canadian citizens and permanent residents, on the basis of their nationality, for a number of sexual crimes committed against children in foreign jurisdictions. Section 7 of the Criminal Code also extends jurisdiction extraterritorially for other serious crimes such as hijacking, hostage taking, and torture.
(38) Coughlan et al., supra note 35 at 1; Corruption of Foreign Public Officials Act, S.C. 1998 c. 34.
(39) The Crimes Against Humanity Act and War Crimes Act, supra note 13; the child sex tourism offences to implement the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, GA Res. 54/263, Annex II, UN GAOR, 54th Sess., Supp. No. 49, UN Doc. A/54/49, Vol. III (2000) 6; the Anti-terrorism Act, S.C. 2001, c. 41 [ATA]; and the Corruption of Foreign Public Officials Act, supra note 38, are all examples of domestic criminal legislation enacted to implement treaty obligations.
(40) CSR Advisory Group Report, supra note 11 at 41.
(41) See e.g. Forcese, Debunking Myths, supra note 12 at 11; Deconstructing Engagement, supra note 6 at 11; Simons, "Corporate Voluntarism", supra note 2 at 104.
(42) SCFAIT Report, supra note 9 at 3, recommended that the government work with the international community, industry, non-governmental organizations and experts to clarify responsibilities and establish specific Canadian rules and enhanced monitoring in respect of MNC's operating in conflict zones.
(43) Amnesty Canada commissioned a national poll of roughly 1,000 Canadians from September 21 to October 8, 2006, regarding government regulation of multinationals in which 79.3% of Canadians agreed with the statement, "The Canadian government should pass laws to require that Canadian companies respect human rights all the time, including when they do business overseas." Only 18.2% of respondents agreed with the statement, "Voluntary codes of conduct are sufficient and should be encouraged for Canadian companies operating overseas. There's no need for new laws or rules to be established by the government." Amnesty International, "National Poll: Selected Crosstabulation Results", online: <http:// www.amnesty.ca/themes/resources/business/bhr_poll_data_tableB123.pdf>.
(44) Special Economic Measures Act, S.C. 1992 c. 17.
(45) Deconstructing Engagement, supra note 6 at 31, 65. See also Scott Pearce, Fueling War: The Impact of Canadian Oil Investment on the Conflict in Colombia, CERLAC Working Paper Series (Toronto: Centre for Research on Latin America and the Caribbean, November 2002) at 22, online: <http://www.yorku.ca/cerlac/documents/Pearce.pdf> [Pearce CERLAC Paper], with the author quoting email communication on 6 August 2002 from Kai Alderson, Vice-President for Social Research at Real Assets Investment Management.
(46) For an in depth discussion of corporate accountability under international law in respect of human rights norms, see Craig Scott, "Multinational Enterprises and Emergent Jurisprudence on Violations of Economic, Social and Cultural Rights" in Asbjorn Eide, Catarina Krause, and Allan Rosas, eds., Economic, Social and Cultural Rights: A Textbook (The Hague, The Netherlands: Kluwer Law International, 2001) 563. Notwithstanding
the absence of a clear legal duty, Professor Scott observes at 568: "Despite its preoccupation with the responsibility of states, international human rights law has forged some inroads that demonstrate the unexploited potential of indirect scrutiny of corporate activity through the network of treaties that constitute the bulk of this area of international law." See also Deconstructing Engagement, supra note 6 at 7, 12.
(47) Ruggie Report, supra note 8 at paras. 7, 84. Compare R. McCorquodale & P. Simon, "Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law" (2007) 70:4 Modern Law Rev. 598 at 602 for a discussion of how states' international human rights obligations may extend not only to individuals within the state territory, but also extraterritorially to those persons subject to the state's jurisdiction. Professors McCorquodale and Simons posit at 606-15 that, while corporate conduct is not "prima facie attributable to a state under general international law", it may be in exceptional circumstances where the corporation is under the effective control of the state (e.g. Crown corporation) or is acting on the instructions, direction or control of the home state. Further, at 612, the authors suggest that a state or its Export Credit Agency (e.g. Export Development Canada) "might provide financing (such as loans, political risk insurance or investment guarantees), which is essential to its corporate national's activities in another state. In such a case, and where the host state allows the corporation or its subsidiary to operate within its territory in violation of its international human rights obligations (such as the protection of international labour rights) and the home state has the same international human rights obligations, then the home state could be found to be aiding and assisting an internationally wrongful act."
(48) Forcese, "Memorandum: Response to PDAC", supra note 34 at 1. The five justifications are territoriality, nationality, universality, passive personality (victim's nationality), and the principle of protection (vital state interests at stake).
(49) CSR Advisory Group Report, supra note 11 at 43. See also Bouzari, supra note 34.
(50) Corruption of Foreign Public Officials Act, supra note 38.
(51) CSR Advisory Group Report, supra note 11 at 53.
(52) Beyond Voluntarism, supra note 8 at 2; Government Response to SCFAIT, supra note 3, wherein the Government of Canada articulated a policy regarding Canadian MNC's operating in conflict zones that favoured voluntary codes of conduct. See also Annabel Short, To what extent does a corporate-state security consensus undermine human rights? Oil extraction in Arauca: Colombia, the United States and Occidental Petroleum (Dissertation submitted for M.Sc. in Development Studies, Birkbeck College, University of London, September 2004) at 27, online: <http://www.business-humanrights.org/Categories/ Lawlawsuits/Lawsuitsregulatoryaction/LawsuitsSelectedcases/ OccidentallawsuitreColumbia>; Deconstructing Engagement, supra note 6 at 32.
(53) Organization for Economic Co-operation and Development, OECD Guidelines for Multinational Enterprises (27 June 2000), online: <http://www.oecd.org/dataoecd/56/36/1922428.pdf>. The Guidelines constitute a set of voluntary principles for multinational enterprises to promote responsible corporate conduct in all major areas, including employment and industrial relations, human rights, environment, information disclosure, combating bribery, consumer interests, science and technology, competition, and taxation. Adhering governments commit to promoting the guidelines among multinational enterprises operating in or from their respective territories. Complaints can be filed with Canada's National Contact Point for the OECD Guidelines, online: <http://www.ncp-pcn.gc.ca/about_guidelines-en.asp>.
(54) David Grossman & Durwood Zaelke, An Introduction to theories of why states and firms do (and do not) comply with law (Paper prepared for the 7th International Conference on Environmental Compliance and Enforcement, 9-15 April 2005) at para. 3.2, online: <http://www.inece.org/conference/7/vol1/13_Grossman.pdf>.
(55) For a thorough critique of reliance upon corporate voluntarism, see e.g. Simons, "Corporate Voluntarism', supra note 2. Further, in 2006, Corporate Knights surveyed the transnational operations of Canadian oil and gas corporations that are operating in severe conflict zones. It found that, of the twenty-one companies surveyed, only five have a human rights policy or a policy that mentions respect for human rights; six have made an explicit commitment to avoid complicity in human rights violations; five have compliance monitoring mechanisms; and four specify in their policies that the potential human rights impacts of their investments must be considered prior to investing. Four companies signed on to the UN Global Compact. Caroline Law, "Energy & Conflict: A map and report card on human rights and conflict exposure for Canadian energy companies operating abroad." (2006) Corporate Knights Energy/Investment Issue at 27, online: <http://www.corporateknights.ca/downloads/CK16_energy_and_conflict.pdf>; see also Beyond Voluntarism, supra note 8 at 7.
(56) Oran Almog v. Arab Bank, 04-CV-5564 (NG)(VVP)(E.D.N.Y. 2007) at 17, 57-58: Victims of suicide bomber attacks by Palestinian militant groups, and victims' family members, sued the Jordanian-based Arab Bank through its New York branch under the ATCA alleging that it "knowingly provided banking and administrative services to various organizations identified by the US government as terrorist organizations that sponsored suicide bombings and other numerous attacks on innocent civilians in Israel". The Plaintiffs allege that the bank helped funnel compensation money to, and thereby incentivized, Palestinian suicide bombers and the families of "martyrs" or suicide bombers. On the defendant's summary motion to dismiss, the US District Court for the Eastern District of New York ruled that none of the provisions of the Anti-Terrorism Act require that Arab Bank have had the specific intent to cause the specific acts which injured plaintiffs. The Court concluded that: "It is sufficient that Arab Bank played a role in a well-publicized plan to reward terrorists killed and injured in suicide bombings and other attacks in Israel; knew that the groups to which it provided services were engaged in terrorist activities; and knew that the funds it received as deposits and transmitted to various organizations were to be used for conducting acts of international terrorism". Judge Nina Gershon concluded that the plaintiffs had pied sufficient evidence that Arab Bank's provision of banking services facilitated money laundering and also facilitated the payments to the suicide bombers' beneficiaries, creating an incentive for suicide bombings. Consequently, Judge Gershon ruled that plaintiffs successfully stated claims for genocide and crimes against humanity, and established a cause of action under the ATCA and the Antiterrorism Act. See also Talisman, supra note 9; United States, Department of Justice, Media Release "Chiquita Brands International Pleads Guilty to Making Payments to a Designated Terrorist Organization And Agrees to pay $25 Million Fine" (19 March 2007), online: <http://www.usdoj.gov/opa/pr/2007/March/07_nsd_161.html>.
(57) Deconstructing Engagement, supra note 6 at 66.
(58) William A. Schabas, "Enforcing International Humanitarian Law: Catching the Accomplices" (2001) 83:842 Int'l. Rev. Red Cross 439.
(59) The International Criminal Tribunal for the former Yugoslavia (ICTY) concluded that "criminal participation must have a direct and substantial effect on the commission of the offence in order to prove
actus reus". By contrast, the Rome Statute does not use such language in respect of the elements of the offence of crimes against humanity that are prosecuted before the International Criminal Court. Schabas, ibid. at 447-48.
(60) Mugesera v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 91 at para. 119. A crime against humanity, as defined by the Supreme Court of Canada in Mugesera, includes four elements: one of the enumerated proscribed acts was committed; the act occurs as part of a widespread or systematic attack; the attack is directed against any civilian population or any identifiable group; and in respect of the mens rea, in addition to the mental element of the underlying offence (e.g. murder, forced disappearance, forced displacement, torture), that the person committing the act must have knowledge of the attack and either know that his or her acts comprise part of it or take the risk that his or her acts will comprise part of it.
(61) Finta, supra note 29.
(62) Mugesera, supra note 60.
(63) Government Response to SCFAIT, supra note 3 at 7; Kyle Rex Jacobson, "Doing business with the devil: the challenges of prosecuting corporate officials whose business transactions facilitate war crimes" (2005) 56 Air Force L. Rev. 167, online: <http://permanent.access. gpo. gov/lps28111/Vol.%2056%20(2005)/Volume%2056%20Combined.pdf>. "Senior officer" is defined in the Criminal Code, s. 2 (interpretation clause) which provides that a "representative", in respect of an organization, means a director, partner, employee, member, agent or contractor of the organization. Further, "senior officer" means a representative who plays an important role in the establishment of an organization's policies or is responsible for managing an important aspect of the organization's activities and, in the case of a body corporate, includes a director, its chief executive officer and its chief financial officer.
(64) Jacobson, supra note 63, at 168.
(65) For a discussion of the corporate liability for international crimes, see Schabas, supra note 58.
(66) R.v. Munyaneza, No. 500-737002500-052, (2007 Que. S.C. Crim Div.). Desire Munyaneza is the first person to be tried under Canada's Crimes Against Humanity and War Crimes Act, enacted in 2000. He is a Rwandan Hutu facing seven charges under the Act, including two counts of genocide, two counts of crimes against humanity and three counts of war crimes. The indictment accuses him of committing murder, psychological terror, physical attacks and sexual violence with intent to wipe out the Tutsi population. In 1994, an estimated 800,000 Tutsis and moderate Hutus were slaughtered by Hutu extremists within 100 days during Rwanda's genocide. Among other atrocities, Desire Munyaneza is alleged to have participated in the slaughter of as many as 500 Tutsis seeking shelter in a Catholic church. Munyaneza is also accused of having raped several women and having encouraged the militia under his command to do the same. In 1997, Munyaneza fled to Canada and immediately filed a refugee claim. He pleaded not guilty to all charges. The trial is ongoing; with the defence expected to resume in September 2008 and final arguments scheduled for November 2008. It should also be noted that there was only one prosecution under the old crimes against humanity regime, in which an acquittal was upheld on appeal to the Supreme Court of Canada in Finta, supra note 29.
(67) Anti-terrorism Act, supra note 39.
(68) Canada, Department of Justice, "The Anti-Terrorism Act Context and Rationale" (20 October 2005), online: <http://canada.justice.gc.ca/en/anti_terr/context.html>.
(69) International Convention for the Suppression of the Financing of Terrorism, 9 December 1999, GA Res. 54/109, 39 I.L.M. 270.
(70) Canada, Department of Justice, "The Anti-Terrorism Act Context and Rationale", supra note 68.
(71) See e.g. House of Commons Debates, No. 095 (16 October 2001) at 1015-35 (Hon. Anne McLellan, Speech of the Minister of Justice and Attorney General of Canada, upon second reading of Bill C-36), online: <http://www2.parl.gc.ca/HousePublications/Publication. aspx?pub=hansard&mee= 95&parl=37&ses=1&language=E#T1015>; Hon. Anne McLellan, "Review of the Anti-Terrorism Act" (Speech of the Minister of Public Security and Emergency Preparedness delivered to the Special Committee of the Senate, 14 February 2005), online: <http://www.psepc.gc.ca/media/sp/2005/sp20050214-en.asp>.
(72) Criminal Code, supra note 17, ss. 7(3.73), 7(3.74), 8.03.
(73) The reference to seriously interfering with or disrupting an essential service contains an exception for advocacy, protest, dissent and stoppage of work, providing this is not intended to cause any of the other forms of harm referred to in the definition.
(74) Criminal Code, supra note 17, s. 83.01(1). It should be noted as well that a "terrorist activity" includes a conspiracy, attempt or threat to commit any such act or omission described above, counseling or procuring a person to commit such acts, and being an accessory after the fact.
(75) Stanley Cohen, Privacy Crime and Terror: Legal Rights and Security in a Time of Peril (Markham, On" LexisNexis Canada, 2005) at 242, n. 145; cited in Craig Forcese, National Security Law" Canadian Practice in International Perspective (Toronto: Irwin Law Inc., 2008) at 268 [Forcese, National Security Law].
(76) Forcese, National Security Law, ibid. at 269.
(77) R.v. Khawaja,  O.J. No. 4245 at 22 (S.C.J.) [Khawaja]. The trial of Momin Khawaja commenced in June 2008 and was ongoing in August 2008.
(78) See e.g. Kent Roach, "The New Terrorism Offences and Criminal Law" in Ronald Daniels, Patrick Macklem & Kent Roach, eds., The Security of Freedom (Toronto: University of Toronto Press, 2002) 151.
(79) Government of Canada, Response of the Government of Canada to the Final Report of the House of Commons Standing Committee on Public Safety and National Security, Subcommittee on the Review of the Anti-Terrorism Act--Rights, Limits, Security: A Comprehensive Review of the Anti-Terrorism Act and Related Issues (tabled 18 July 2007) at 3, online: <http://www.justice.gc.ca/en/anti_terr/rep_res/cc_hc/index.html>.
(80) International humanitarian law (IHL) is a set of rules which aim to restrict the means and methods of warfare and to protect persons who are not or are no longer participating in the hostilities. IHL is also known as the law of war or the law of armed conflict. Many IHL provisions are now accepted as customary law. Much of IHL is contained in the four Geneva Conventions of 1949, to which most States have agreed to be bound. The Conventions have been supplemented by two Additional Protocols of 1977 relating to the protection of victims of armed conflicts. Other treaties ban or regulate specific types of weapons (e.g. landmines, chemical weapons) or protect specific types of people (e.g. children). For an overview of IHL, see International Committee of the Red Cross (ICRC), "What is International Humanitarian Law" (July 2004), online: <http://www.icrc.org/Web/eng/siteeng0.nsf/htmiall/ humanitarian-law-factsheet/$File/What_is_IHL.pdf>.
(81) Criminal Code, supra note 17, s. 431.2 defines "military forces of a state" in relation to the offence of attacking premises, accommodation or transport of United Nations or associated personnel as "the armed forces that a state organizes, trains and equips in accordance with the law of the state for the primary purpose of national defence or national security, and every person acting in support of those armed forces who is under their formal command, control and responsibility. The section contains the same exclusion as s. 83.01.
(82) See e.g. Human Rights Watch, "Commentary 2 on the Draft Comprehensive Convention on Terrorism: Articles 2 and 18" (22 October 2001), online: <http://www.hrw.org/press/2001/10/terrorcom1022.htm>. See also Special Senate Committee on the ATA, "Fundamental Justice in Extraordinary Times" (Parliamentary Review, 22 February 2007) at 15, online: <http://www.parl.gc.ca/39/1/parlbus/ commbus/senate/Com-e/anti-e/rep-e/rep02feb07-e.htm> [Senate Review of the ATA].
(83) Commonwealth Secretariat, Implementation Kits for the International Counter-Terrorism Conventions (Document prepared by the Criminal Law Section, Legal and Constitutional Affairs Division of the Commonwealth Secretariat, undated) at 242-43, online: <http://www.thecommonwealth.org/shared_asp_files/uploadedfiles /%7B8AE4DB15-88A5-46F2-8037-357DFF7D3EC1%7D_Implementation%20Kit%20for %20Counter_Terrorism.pdf>.
(84) IHL applies only to international and non-international armed conflict and does not cover internal tensions or disturbances such as riots, isolated terrorist attacks, or sporadic acts of violence.
(85) Whereas international humanitarian law applies to situations of armed conflict, international human rights law applies in peacetime. For a discussion of international humanitarian law, particularly as it interacts with international human rights law, see Rene Provost, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2002).
(86) Article 19.2 of the International Convention for the Suppression of Terrorist Bombings, 15 December 1997, 37 I.L.M. 249 (1988) ["Terrorist Bombings Convention"] states: "The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention." An ad hoc Committee of the United Nations General Assembly, established by General Assembly resolution 51/210 on 17 December 1996, is in the final stages of negotiating the Comprehensive Convention on Terrorism. The central point of contention is the scope of the definition of terrorism and appropriate exemptions for military and armed opposition groups, online: <http://www.un.org/News/Press/docs/2007/L3112.doc.htm>.
(87) House of Commons, Standing Committee Public Safety and National Security, Subcommittee on the Review of the Anti-terrorism Act, Rights, Limits, Security: A Comprehensive Review of the Anti-Terrorism Act and Related Issues (Parliamentary Review, 27 March 2007) at 7-9, online: <http://cmte.parl.gc.ca/Content/HOC/committee/391/secu/reports/rp2798914/ sterrp07-e.html>; Senate review of the ATA, supra note 82 at 10-16.
(88) See e.g. Commonwealth Secretariat, Implementation Kits for the International Counter-Terrorism Conventions, supra note 83 at 242-43. See also Human Rights Watch, "Commentary 2 on the Draft Comprehensive Convention on Terrorism: Articles 2 and 18", supra note 82.
(89) For a discussion of customary international humanitarian law applicable to non-international armed conflict, see Jean-Marie Henckaerts, "Study on customary international law: A contribution to the understanding and respect for the rule of law in armed conflict" (March 2005) 87:857 Intl. Rev. Red Cross 175.
(90) The term "rebel group" will be used throughout to refer to rebel, insurgent, and dissident groups that are armed and fighting against state authorities.
(91) The term "civilians" refers to those individuals who do not take direct part, or who have ceased to take direct part, in the hostilities.
(92) Henckaerts, supra note 89 at 198.
(93) International Committee of the Red Cross (ICRC), "Commentary on the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)", 8 June 1977, online: <http://www.icrc.org/ihl.nsf/COM/475-760019?OpenDocument>.
(94) Henckaerts, supra note 89 at 199-200.
(95) Ibid. at 199.
(96) Ibid. at 201.
(97) Ibid. at 199.
(98) Ibid. at 204.
(99) Ibid. at 202.
(101) United Nations High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, A/HRC/4/48 (5 March 2007) at para. 4, online: <http://www.hchr.org.co/documentoseinformes/informes/ altocomisionado/Informe2006_eng.pdf> [UNHCHCR Report].
(102) Ibid. at para. 68; Maria McFarland Sanchez-Moreno, Esq. Principal Specialist on Colombia, Human Rights Watch 'Testimony at a hearing before the United States House of Representatives Committee on Foreign Affairs, Subcommittee on International Organizations, Human Rights, and Oversight, and Subcommittee on the Western Hemisphere Committee on Education and Labor, Subcommittee on Health, Employment, Labor and Pensions, and Subcommittee on Workforce Protections, 28 June 2007), online: <http://foreignaffairs. house.gov/l10/mcf062807.pdf>.
(103) UNHCHR Report, supra note 101 at paras. 7, 21, 36: Documented breaches include extrajudicial executions attributed to members of the security forces, particularly the army; investigations involving several military officers charged with organizing terrorist attacks; and murders falsely attributed to the FARC. The Attorney General's Office prosecuted several members of a Colombian army brigade for the killing of six people in a false anti-kidnapping operation. In April 2006, the Procurator General's Office suspended a retired army general and a colonel for 90 days for failing to provide due security for the inhabitants of a peaceful community.
(104) Ibid. at para. 62.
(106) As a violation of Article 1 of the International Convention Against the Taking of Hostages, 17 December 1979, 1316 U.N.T.S. 205; as a violation of Common Article 3 of the Geneva Conventions of 1949; as a breach of Article 4.2(c) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 U.N.T.S. 609; and as a violation of Common Article 3(1)(b) of the Geneva Convention Relative to the Protection of Civilian Persons in Times of War, 12 August 1949, 75 U.N.T.S. 287.
(107) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict GA Res. 54/263, Annex I, UN GAOR, 54th Sess., Supp. No. 49, UN Doc. A/54/49, Vol. III (2000) 7.
(108) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, GA Res. 47/39, UN GAOR, 47th Sess., Supp. No. 49, UN Doc. A/47/49 (1992) 54.
(109) UNHCHR Report, supra note 101 at paras. 68-83. See esp. para. 68: "The guerrilla groups have continued to commit serious and systematic breaches of IHL. Talks between the Government and the ELN and the prospect of a 'humanitarian exchange' with the FARC-EP did not positively affect the attitudes of these groups in terms of their observance of IHL. Members of these two guerrilla groups were accused of murders, death threats, massacres, attacks against the civilian population, indiscriminate attacks, taking of hostages, acts of sexual violence, acts of terrorism, recruitment of children, use of anti-personnel mines, forced displacement, isolation of communities, and attacks against medical and humanitarian teams."
(110) Ibid. at Annex 1, para. 50.
(111) International Convention for the Protection of All Persons from Enforced Disappearance, supra note 39.
(112) Sanchez-Moreno testimony, supra note 102. See also United Nations, Human Rights Committee, "Concluding observations of the Human Rights Committee: Colombia", 26 May 2004, UN Doc. CCPR/CO/80/COL at para. 12; Michael Evans, "Para-politics Goes Bananas" The Nation (4 April 2007), online: <http://www.thenation.com/docprint.mhtml?i=20070416&s=evans>.
(113) Criminal Code, supra note 17, s. 83.01.
(114) Ibid., s. 83.22.
(115) Ibid., s. 83.18.
(116) Ibid., s. 83.20.
(117) Ibid., s. 83.23.
(118) In Canada's first and only prosecution under these new provisions, the Ontario Superior Court of Justice found the mens rea element of the offence of facilitating terrorist activity to be constitutionally sound in Khawaja, supra note 77.
(119) Criminal Code, supra note 17, s. 22.2.
(120) Canada, Department of Justice, A Plain Language Guide: Bill C-45--Amendments to the Criminal Code Affecting the Criminal Liability of Corporations at 7, online: <http://www.justice.gc.ca/eng/dept-min/pub/c45/>.
(121) Khawaja, supra note 77 at 13, citing former Assistant Deputy Minister Richard Mosley and former Senior Assistant Deputy Solicitor General Paul Kennedy testifying before the Senate Special Committee on 29 October 2001.
(122) J. Anthony VanDuzer, The Law of Partnerships and Corporations, 2d ed. (Toronto: Irwin Law Inc., 2003) at 171-72. Prior to the Bill C-45 amendments, the prosecution had to prove that the corporation and its directing minds were effectively one and the same in committing the offence. Criminal liability was established on the basis of the "identification theory" where the individual perpetrator has the identity of the corporation. The test for joining the individual and corporate identities was whether the human actor who committed the crime was "a vital organ or a directing mind and will of the corporation".
(123) Ibid. at 172.
(124) Ibid. at 173.
(126) Criminal Code, supra note 17, ss. 83.02-83.04, 83.08 & 83.12 set out the various terrorist financing offences.
(127) Ibid., s. 83.02(a); s. 83.01(1) sets out the nine terrorist conventions.
(128) Ibid., s. 83.02(b).
(129) Ibid., s. 83.03(a).
(130) Ibid., s. 83.03(b).
(131) These obligations include the International Convention for the Suppression of the Financing of Terrorism, supra note 69, UN Security Council Resolution 1373, and the Financial Administration Task Force Special Recommendations on Terrorist Financing (adopted in October 2001).
(132) Criminal Code, supra note 17, ss. 83.08-83.17.
(133) Ibid., s. 83.14(1)(b).
(134) Ibid., s. 83.14(5.1).
(135) For a history of the Colombian armed conflict see for example, Pearce CERLAC Paper, supra note 45, at 6-12; Short, supra note 52 at 14.
(136) United Nations Emergency Relief Coordinator, Press Briefing on Colombia (10 May 2004), online: <http://www.un.org/News/briefings/docs/2004/OCHABrf.doc.htm>.
(137) Sanchez-Moreno testimony, supra note 102.
(139) Short, supra note 52 at 16.
(140) The Governor in Council listed all three entities on 2 April 2003 and relisted them on 9 November 2006. "Currently Listed Entities", supra note 26.
(141) Amnesty International, Laboratory of War, supra note 23 at 43.
(142) Sanchez-Moreno testimony, supra note 102.
(144) Amnesty International, Laboratory of War, supra note 23 at 5.
(145) UNHCHR Report, supra note 101 at paras. 9 & 29, referring to Act No. 975, Colombia's 2005 "Justice and Peace Law".
(146) See e.g. Pearce, "Tackling Complicity", supra note 1 at 165.
(147) Ibid. at 161.
(148) Canadian petroleum companies operating in Colombia include Nexen Energy, Enbridge and Talisman. Smaller firms include Calgary-based Solana Resources and Petrobank Energy and Resources Ltd. through its subsidiary, Petrominerales Colombia; Loon Energy through Kappa Resources Colombia; Gran Tierra Energy; Pacific Rubiales Energy; and Petrolifera Petroleum. Shaun Polczer, "Columbia (sic) encourages Canadian oil interests" Calgary Herald (10 June 2006), online: <http://www.canada.com/theprovince/news/story.html?id=be0bf84f-8140-4 adS-92a5-ed 5a6ff67d16&k=6029>. See also Law, supra note 55, as well as the companies' websites: Nexen Energy <http://www.nexeninc.com/Operations/colombia.asp>, Enbridge <http://www.enbridge. com/about/enbridgeCompanies/international/>, Talisman <http://www.talisman-energy.com/operations /colombia.html?disclaimer=1>, Solana Resources <http://www.solanaresources.com/corporate>, Petrominerales <http://www.petrominerales.com>, Loon Energy <http://www.loon-energy.com/news/2007/2007-11-05.html>, Gantierra <http://www.grantierra.com/who-we-are>, and Pacific Rubiales <http://www.pacificrubiales.com>.
(149) Pearce, "Tackling Complicity", supra note 1 at 161; Timothy David Clark and Liisa L. North, "Mining and Oil in Latin America: Lessons from the Past, Issues for the Future" in Liisa North, Timothy Clark & Viviana Patroni, eds., Community Rights and Corporate Responsibility: Canadian Mining and Oil Companies in Latin America (Toronto: Between the Lines, 2006) 1 at 7; CCIC Americas Policy Group, supra note 9 at 18. Although this article focuses on the petroleum sector, it is worth noting the presence of other extractive sectors in Latin America. Canada's mining industry leads the world with 33% of the larger exploration companies and controls roughly a quarter of the larger-company market in Latin America. Criticisms similar to those leveled against foreign oil corporations are plentiful in respect of the mining industry. Inti Landauro, "Colombia Signs 11 Oil Exploration Contracts for $36M in Investments" Dow Jones Newswires (13 June 2007), online: <http://www.rigzone.com/news/article.asp?a_id=46377>.
(150) United Nations High Commission for Refugees (UNHCR), 2006 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons (Geneva: UNHCR, 2007) at 15, online: <http://www.unhcr.org/statistics/STATISTICS/4676a71d4.pdf>; CCIC Americas Policy Group, supra note 9 at 1; Short, supra note 52 at 14.
(151) Pearce, "Tackling Complicity", supra note 1 at 160.
(152) CCIC Americas Policy Group, supra note 9 at 18, citing a communication with Francisco Ramirez, President of Sintramineracol.
(153) Pearce, "Tackling Complicity", supra note 1 at 166.
(154) Ibid. at 165.
(155) Ibid. at 161.
(156) T. Christian Miller, "A Colombian Village Caught in a Cross-Fire: The Bombing of Santo Domingo Shows How Messy US Involvement in the Latin American Drug War Can Be" Los Angeles Times (17 March 2002) at 3, online: <http://www.commondreams.org/headlines02/0317-01.htm>.
(157) Pearce, "Tackling Complicity", supra note 1 at 165, citing a subsequently published manuscript of Thad Dunning and Leslie Wirpsa, "Oil and the Political Economy of Conflict in Colombia and Beyond: A Linkages Approach" (2004) 9:1 Geopolitics 81.
(158) See e.g. UNHCHR Report, supra note 101 at para. 34.
(159) Pearce, "Tackling Complicity", supra note 1 at 166, citing Alfredo Molano, "Violence and Land Colonization" in C. Bergquist, R. Penaranda & G. Sanchez, eds., Violence in Colombia: The Contemporary Crisis in Historical Perspective (Wilmington: Scholarly Resources, 1992) 98.
(160) Miller, supra note 156 at 3-4.
(161) Garry Leech, "Plan Petroleum in Putumayo" Colombia Journal (10 May 2004) at 2, online: <http://www.colombiajournal.org/colombia184.htm>.
(162) Pearce, "Tackling Complicity", supra note 1 at 162.
(163) Amnesty International, Laboratory of War, supra note 23 at 38, citing Dunning and Wirpsa, supra note 157.
(164) Mujica v. Occidental Petroleum Corp. (Mujica I), 381 F. Supp.2d 1134 (C.D. Cal. 2005), currently on appeal to the Ninth Circuit; appeal heard 19 April 2007 [Mujica].
(166) Miller, supra note 156. This article provides a detailed analysis of the event and American state and corporate involvement.
(167) Mujica, supra note 164.
(168) Because these events predated the ATA, this is a hypothetical analysis. Section 11(g) of the Canadian Charter of Rights and Freedoms entrenches the principle of non-retroactivity that prohibits prosecution for an offence that, at the time of the alleged conduct, did not exist in Canadian or international law, unless the act or omission was criminal according to the general principles of law recognized by the community of nations. As the ATA received royal assent in late 2001 and offences of terrorism did not constitute offences of customary international law at that time, offences occurring prior to the enactment of the new Criminal Code terrorism provisions would be immune.
(169) For a discussion of dual-purpose targets, see Kenneth R. Rizer, "Bombing Dual-Use Targets: Legal, Ethical, and Doctrinal Perspectives" Air and Space Power Chronicles (1 May 2001), online: <http://www.airpower.maxwell.af.mil/airchronicles/cc/Rizer.html>.
(170) Amnesty International, Laboratory of War, supra note 23.
(171) Short, supra note 52 at 24.
(172) Lawrence P. Meriage, Vice President, Executive Services and Public Affairs, Occidental Oil and Gas Corporation, testimony before the House Government Reform Subcommittee on Criminal Justice, Drug Policy and Human Resources, Hearing on Colombia, 15 February 2000 referred to in Amnesty International, Laboratory of War, supra note 23 at 38 and Pearce, "Tackling Complicity", supra note 1 at 164.
(173) See Leech, supra note 161; see more generally CCIC Americas Policy Group, supra note 9 at 18, citing Gary Leech "Plan Petroleum in Colombia" (2004) 38:4 Canadian Dimension 42.
(174) CCIC Americas Policy Group, ibid. at 19, citing Amnesty International, Press Release, AMR 23/079/1998, "Amnesty Renews Calls to Oil Companies Operating in Colombia to Respect Human Rights" (19 October 1998); see also Pearce CERLAC Paper, supra note 45 at 18-19.
(175) Enbridge, "Corporate Social Responsibility Policy", online: <www.enbridge.com/corporate/pdf/2004-csr-policy.pdf>; see also Social Investment Organization, Press Release, "Enbridge to adopt human rights standards in Colombia following shareholder pressure" (March 2002), online: <http://www.socialinvestment.ca/ News&Archives/news-302-Enbridge.htm>.
(176) Engaging in Transactions with a Specially-Designated Global Terrorist (50 U.S.C. [section] 1705(b); 31 C.ER. [section] 594.204).
(177) Plea agreement of 6 March 2007 between Jeffery A. Taylor, United States Attorney for the District of Columbia, and Fernando Aguirre, Chairman of the Board of Directors, President, and Chief Executive Officer of Chiquita Brands International, Inc., online: <http://www.secinfo.com/d14D5a.u1qzn.d.htm#1stPage>.
(178) Marco Simons, "ERI Launches New Lawsuit Against Chiquita for Funding, Arming, and 'Supporting Colombian Terrorists: First Class Action to Challenge Multinational Fruit Company's Illegal Practice of Supporting Brutal Paramilitary Death Squads to Maintain Profits" Earth .Rights International eNewsletter (19 July 2007), online: <http://www.earthrights.org/legalpr/ eri_launches_new_lawsuit_against_chiquita_for_funding_arming_and _supporting_colombian_terrorists.html>.
(179) Carmen Gentile, "Families Sue Chiquita in Deaths of 5 Men" New York Times (17 March 2008), online: <http://www.nytimes.com/2008/03/17/us/17chiquita.html>.
(180) Indictment available online: United States of America v. Chiquita Brands International, Inc. (D.D.C. 2007) <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB217/indictment.pdf>.
(181) The FARC and ELN were listed as FTO's in October 1997, the AUC in September 2001. US State Department, "Current List of Foreign Terrorist Organizations", online: <http://www.state.gov/s/ct/rls/fs/37191.htm>. It is unlawful for a person in the United States or subject to the jurisdiction of the United States to knowingly provide "material support or resources" to a designated FTO. The term "material support or resources" is defined in 18 U.S.C. [section] 2339A(b) as "currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials". The FARC, ELN, and AUC are all SDGT's: Office of Foreign Assets Control, "Specially Designated Persons and Blocked Persons", online: <http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf>.
(182) Indictment, supra note 180 at para. 2.
(183) us Department of Justice, Chiquita Media Release, supra note 56.
(184) Carol D Leonnig, "in Terrorism-Law Case, Chiquita Points to the US: Firm Says It Awaited Justice Dept. Advice" Washington Post (2 August 2007) A1, online: <http://www.washingtonpost.com/wp-dyn/content/ article/2007/08/01/AR2007080102601_pf.html>.
(185) Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594.
(186) This includes the AUC, FARC, and ELN. Office of Foreign Assets Control, "Specially Designated Persons and Blocked Persons", online: <http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf>.
(187) Criminal Code, supra note 17, s. 17 states: "A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under ss. 280 to 283 (abduction and detention of young persons)."
(188) A corporate accused could invoke either the statutory defence set out in s. 17 or the common law defence of duress, depending on whether the accused is charged as a principal or as a party.
(189) Criminal Code, supra note 17, s. 346(1) states: "Every one commits extortion who, without reasonable justification oi; excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done."
(190) Fernando Aguirre, Media Release, "An Excruciating Dilemma Between Life and Law: Corporate Responsibility in a Zone of Conflict" The Corporate Citizen (April 2007), online: <http://www.uschamber.com/bclc/resources/newsletter/2007 /chiquita_newsletter_april2007.htm>.
(191) Criminal Code, supra note 17, s. 83.24.
(192) Private prosecutions provide a mechanism for citizens or groups to gather evidence of alleged wrongdoing and to present that evidence to a justice of the peace in order to lay charges against alleged offenders. The Criminal Code impliedly authorizes private citizens to institute criminal proceedings under the Code or any other federal statute unless the particular prosecution requires consent of the Attorney General. Criminal Code, ibid., s. 2 (and s. 785 for summary conviction offences) defines "prosecutor" as the Attorney General or another person who institutes criminal proceedings where the Attorney General does not intervene. Section 504 permits anyone to lay an information except where the Attorney General's consent is required.
(193) Ecojustice (formerly the Sierra Legal Defence Fund), for instance, has instituted private proceedings against Canadian government entities for pollution violations under the Fisheries Act. In 2006, with the help of a private environmental investigator, Ecojustice launched two separate private prosecutions under s. 36 of the federal Fisheries Act against the Province of British Columbia and the Greater Vancouver Regional District for pollution offences, alleging that the Lion's Gate and Iona sewage treatment plants were pumping toxic effluent into the Strait of Georgia. In 2007, the B.C. Provincial Court confirmed the charges in both prosecutions. In October 2007, the federal government stayed the private prosecution launched in respect of the Lion's Gate treatment facility. The federal government decision regarding whether or not to proceed with the Iona facility prosecution is pending. See Ecojustice, "Sewage Investigation and Prosecutions--B.C.", online: <http:// www.ecojustice.ca/cases/sewage-investigation-and-prosecutions-bc/>.
(194) See Canada, Department of Justice, The Federal Prosecution Service Deskbook (Ottawa: Department of Justice Canada, 2000) c. 15, online: <http://www.dpp.gc.ca/en/dept/pub/fps/fpd/ch15.html>. Regarding the decision to prosecute, it states at c. 15.2: "Crown counsel must consider two issues when deciding whether to prosecute. First, is the evidence sufficient to justify the institution or continuation of proceedings? Second, if it is, does the public interest require a prosecution to be pursued?"
(195) Gary Kenny, "Corporate Immunity for Oiling Repression? Talisman in Sudan" (1 February 2000), online: ICCAF Human Rights Brief on Sudan for 1999 <http://www.africafiles.org/article.asp?ID=621>.
(196) Government Response to SCFAIT, supra note 3.
(197) Ruggie Report, supra note 8; Deconstructing Engagement, supra note 6 at 103.
(198) Deconstructing Engagement, ibid. at 55-58.
(199) Suresh v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 3 at para. 94.
(201) Ibid. at para. 95.
(202) See e.g. Heidi Hulan, "Statement of Canada's Representative to the United Nations at the 62nd session of the UN General Assembly on the role of diamonds in fuelling conflict" (26 November 2007), online: <http://www.canadainternational.gc.ca/prmny-mponu/canada_un-canada_onu /statements-declarations/general_assembly-assemblee-generale/ll520.aspx?la ng=eng>: "By addressing the intersection between the exploitation of natural resources and the persistence, and in some cases intensification, of armed conflicts, the international community may be better placed to find solutions to some kinds of conflicts."
(203) Human Rights Watch, "Defend the Alien Tort Claims Act" (29 July 2003), online: <http://www.hrw.org/campaigns/atca/>.
(205) Broomhall, supra note 35 at 412 (analysis of the obstacles in investigating and prosecuting universal jurisdiction crimes, in particular the evidentiary hurdles, even in the context of mutual legal assistance agreements).
(206) Ibid. at 417.
(207) Evans, supra note 112.
(208) See e.g. discussion of aiding and abetting liability under international law for war crimes, genocide, torture, and crimes against humanity in Talisman, supra note 9, at 80-87.
(209) See generally Talisman, ibid.
(210) Forcese, "Memorandum: Response to PDAC", supra note 34 at 5 (discusses the causal link in the context of the principles of jurisdiction applicable to extraterritorial jurisdiction).
(211) Talisman, supra note 9 at 97-98.
(212) Ibid. at 98.
(213) Torture Victims Protection Act of 1991, 12 March 1992, P.L. 102-256, 106 Stat. 73.
(214) Talisman, supra note 9; Almog v. Arab Bank, supra note 56.
(215) Chambers, supra note 10 at 14.
(216) In Sosa v. Alvarez-Machain 124 S. Ct 2739 (2004), in its first consideration of the scope of the ATCA, the US Supreme Court confined ATCA claims to violations of the law of nations that are "specific, universal and obligatory" and concluded that one day of arbitrary detention did not violate any such norm.
(217) Mujica, supra note 164; Scott, supra note 46 at 588-90.
(218) Presbyterian Church of Sudan et al. v. Talisman Energy Inc. and the Republic of Sudan, 07-0016-cv (Brief of Amicus Curiae, the Government of Canada, in Support of Dismissal of the Underlying Action, filed before United States Court of Appeal (2d Cir.)), online: Kairos <http://www.kairoscanada.org/e/countries/sudan/canadaAmicusBrief.pdf>.
(219) Bill C-45, An Act to Amend the Criminal Code (Criminal Liability of Organizations), 2nd Sess., 37th Parl., 2003 (received royal assent on 7 November 2003, came into force on 31 March 2004, and is now part of ss. 22.1 and 22.2 of the Criminal Code).
(220) Criminal Code, supra note 17, s. 2.
(221) Talisman, supra note 9 at 80-87. See also Chambers, supra note 10 at 15-16, for a discussion of contradictory judgments on the meaning of corporate complicity for the purposes of ATCA litigation.
(222) "Jury Rejects Claims Drummond Is To Blame in Colombia Killings" Miami Herald (27 July 2007), online: <http://www.laborrights.org/end-violence-against-trade-unions/434>.
(223) Criminal Code, supra note 17, s. 718. For a discussion of the role of deterrence in international criminal law, see generally Mark A. Drumbl, Atrocity, Punishment and International Law (Cambridge: Cambridge University Press, 2007) c. 3: "Punishment of International Crimes in International Tribunals".
(224) Stiglitz, supra note 1 at 198 (where he cites the examples of corporations bowing to public pressure, such as Nike following revelations that its Vietnamese suppliers mistreated local employees and the injury to Shell's reputation following the murder of Ken Saro-Wiwa in Nigeria).
(225) See e.g. Social Investment Organization, Press Release, "Teacher federation votes to ask pension fund to drop Talisman" [n.d.], online: <http://www.socialinvestment.ca/News&Archives/news-800-Teacher.htm>.
(226) "US criticizes Talisman-Sudan report" (11 November 2000), CBS News, online: <http://www.cbc.ca/canada/ story/2000/02/15/talisman000215.html#skip300x250>.
(227) Canada, Department of Foreign Affairs and International Trade, Freedom from Fear: Canada's Foreign Policy for Human Security, online: <http://www.humansecurity.gc.ca/pdf/freedom_from_fear-en.pdf>.
(229) Criminal Code, supra note 17, s. 735(1)(a).
(230) Ibid., s. 732.1(3.1)(a).
(231) Under Criminal Code, ibid., s.732.1 (3.1) (b)-(f), a court may establish (presumably with the assistance of expert evidence) policies, standards, and procedures to reduce the likelihood of a corporate offender's repeat offending as well as specific monitoring mechanisms. A court may impose Court reporting obligations, and require a corporation to publicize the conviction, sentence, and specific methods of redress.
(232) Bill Delahunt, Media Release, "Delahunt Launches Inquiry into U.S. Business Ties to Colombian Terrorists: US Has a "Moral Responsibility" to Help End Violence in Soutb American Country" (28 June 2007), online: <http://www.house.gov/apps/list/press/ma10_delahunt/columbia0628.html>; Josh Meyer, "U.S. bending rules on Colombia terror? Several lawmakers say multinationals that aid violent groups in return for protection are not being prosecuted" Los Angeles Times (22 July 2007), online: <http://www.latimes.com/news/nationworld/nation/ la-na-chiquita22ju122,0,186594.story?coll=la-home-center>.
(233) Beyond Voluntarism, supra note 8 at 4; Simons, supra note 2 at 102-03. Amnesty Canada poll, supra note 43.
(234) Beyond Voluntarism, ibid. at 4.
(235) Government Response to SCFAIT, supra note 3 at 1-2.
(236) CCIC Americas Policy Group, supra note 9 at 15.
DEBBIE JOHNSTON, Counsel, Human Rights Law Section, Department of Justice Canada. An earlier version of this article was prepared as part of the requirements for an LL.M., University of Ottawa, while on leave from the Department of Justice. The opinions presented in the article represent the views of the author and do not necessarily represent the views of the Government of Canada or the Department of Justice.
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|Publication:||University of Toronto Faculty of Law Review|
|Date:||Mar 22, 2008|
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