Canadian energy and mining companies navigating International Humanitarian Law in the 21st century

With a particular focus on the impact of mining and energy companies in conflict countries, this paper examines the body of International law regarding human rights violations.

It highlights the following points:

• American, British, French, and Canadian companies have been implicated in crimes when contracting host country security forces to protect corporate assets and/or after building transportation infrastructure that is subsequently used by host governments to inflict harm on civilian populations
• International human rights law and international humanitarian law have evolved from the Geneva and Hague Conventions, the Nuremberg War Crimes Trials, and United Nations conventions
• the International Criminal Tribunals for Rwanda and for the former Yugoslavia have also contributed to the enforcement and rapid evolution of international human rights law that has taken place over the past 15 years
• corporate officers, directors, and employees, as individuals, are now exposed to criminal prosecution under the Rome Statute of the International Criminal Court and Canada’s Crimes Against Humanity and War Crimes Act (CAHWCA)
• criminal and civil liability may arise for companies deemed complicit in human rights violations. Courts have defined complicity as “practical assistance or encouragement that has a significant effect on the perpetration of the crime and the knowledge that these acts aid and abet the perpetrator”
• courts have also held that companies can be deemed complicit if they should reasonably have known that their conduct would assist or encourage the principal
• courts in developed countries are increasingly reluctant to send cases back to the countries where violations occurred, holding that viable legal remedies in these countries do not exist and for fear that victims will face further persecution
• officers and directors need to anticipate new areas of liability. Prudent companies will minimise human rights liabilities by putting in place a full suite of due diligence procedures that will serve to protect human rights and safeguard corporate interests.