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.

• Author: Johnston, Debbie

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 Abstract

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.

Resume

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 >. 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.

I INTRODUCTION

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...