Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon - An Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations, 20 20 Berkeley J. Int'l L. 91 91 (2002), https://digitalcommons.law.uw.edu/faculty-articles/741
multinational corporations, MNCs, forced labor, slave labor, Unocal
Part I of this article outlines various levels of corporate complicity as a way of understanding the spectrum of conduct for which MNCs have been criticized.This provides a necessary background for examining how courts have treated corporate actors with respect to their alleged involvement in war crimes and crimes against humanity. This also helps to delineate where on this continuum MNC conduct should give rise to accomplice liability.
Part II of this article examines the post-World War II trials of German and Japanese civilian businessmen for war crimes and crimes against humanity. The war crimes prosecutions provide an important starting point for developing amodem conception of corporate complicity. After the war, a group of major industrialists were prosecuted by the United States Military Tribunal (USMT) for their companies' use of slave labor. Similarly, a group of Japanese mining officials were also prosecuted by a British military court concerning forced labor activities in Formosa. These cases establish that there can be legal consequences to cooperation between economic actors and repressive governments,including prosecution for international crimes.
Part III focuses upon recent litigation brought by civilian victims internedin Nazi and Japanese concentration camps who were forced or slave laborers in mines, factories, and plants owned by private German and Japanese corporations. This section considers the significance of those cases for the future of international humanitarian law, as well as for the ATCA in the United States.
Part IV examines the issue of corporate complicity from a contemporary perspective. In particular, Part IV analyzes a recent case brought in a federal district court against Unocal Corporation for alleged use of forced labor as part of its pipeline project in Burma. The Unocal case relies heavily on the trials ofthe industrialists by the USMT, as well as the modern forced labor cases. The case is notable because of two seemingly conflicting opinions. The first judge who presided in the case issued an opinion that established that Unocal, as an MNC, could be sued for violations of international law-specifically, for knowing of the Burmese military's use of forced labor and for continuing to retain the military to provide security despite such knowledge. In a subsequent opinion, issued by a different judge, the case was dismissed. The court found that Unocal's actions were not sufficient to create liability because Unocal had not affirmatively sought out forced labor for the pipeline. The two opinions provide conflicting accounts of what kind of MNC conduct is sufficient to trigger possible liability.
Part V provides a critique of the most recent Unocaldecision. In particular, this section critiques the court's approach to defining corporate complicity and argues for a different standard for MNCs that operate outside of a wartime context.
Finally, Part VI argues that in light of recent litigation in the United States, there should be a further focus on criminal liability for MNCs in home states and also a renewed focus on how the International Criminal Court might deal with MNCs and legal persons. This section also notes that an expanded definition of corporate complicity should be included in international and national guidelines governing the conduct of MNCs as another way to deter MNCs from acting as accomplices.