Complicit in Conflict: An Upswing in Corporate Accountability

Claudia A. Frankel April, 2024

Share with:

Speaking at Baku Energy Week in June 2022 in the city of Shush, British oil company BP’s regional president remarked that Azerbaijan’s “liberated territories” have “some of the country’s best solar and geothermal resources,” providing a “perfect opportunity for a fully net zero system.”[1] Born out of its 1994 production-sharing agreement to develop oil fields in the Caspian Sea,[2] BP is now Azerbaijan’s largest foreign investor, operating and holding the majority share of two oil and gas projects.[3] Their production-sharing agreement has reportedly earned the government nearly $35 billion since 2020.[4]

The coincidence between Azerbaijan’s increasing militarization in the last few years and its lucrative partnership has not gone unnoticed, with an investigation by the NGO Global Witness revealing that BP earnings have indirectly funded Azerbaijan’s military campaign against the ethnic Armenians in the disputed Nagorno-Karabakh region.[5] According to BP, its profitability is a testament to the close relationship and common purpose it shares with the Azerbaijani government.[6] The strength of these ties could be BP’s greatest liability.

International criminal law and heightened human rights due diligence (HRDD) standards serve as sources of human rights obligations for corporate actors. A high-profile case against oil executives in Sweden demonstrates that a failure to fulfill the latter is increasingly becoming less tolerable and consequently amplifies the risks of being sanctioned under the former.[7] In the fall of 2023, after a series of violent clashes with Azerbaijani forces that killed an estimated 400 individuals, including civilians, approximately 120,000 ethnic Armenians fled the Nagorno-Karabakh region.[8] This blog will analyze how international criminal law and HRDD are helpful frameworks to identify the scope of BP’s responsibilities amidst the recent escalation in violence and its ensuing liability for corporate complicity in Azerbaijan’s ethnic cleansing of Armenians.

Innovative Approach to Criminal Enforcement Against Multinational Corporations

For both national and international criminal law, the ongoing trial against Swedish oil company Lundin Oil AB (“Lundin”) former chairman and CEO has been described as a historic development in corporate accountability under the theory of complicity.[9] Set to conclude in 2026, Ian Lundin and Alexandre Schneiter face charges for aiding and abetting gross crimes against international law in southern Sudan from 1999 to 2003.[10]

In 1997, during the Sudanese civil war, Lundin entered into an exploration and production-sharing agreement with the Sudanese government in an oil-rich area referred to as Block 5A.[11] At the time, the Sudanese government did not fully control the concession area. Yet, as part of the agreement, the Sudanese government was responsible for protecting the project.[12] According to the prosecution, Lundin executives requested military support from the Sudanese government to secure their oil operations, knowing that this would involve the military forcefully taking control of Block 5A under the terms of their agreement.[13] The prosecution is arguing that while the Sudanese military carried out systematic attacks explicitly and indiscriminately targeting civilians, the indicted Lundin executives were nonetheless complicit in the war crimes.[14]

The Lundin case does not stand alone. A handful of other European cases signal a growing trend to hold individual corporate actors suspected of being complicit in war crimes accountable.[15] Moreover, the fact that these are criminal and not civil cases — and are against individuals and not corporations — means that executives could face imprisonment for the first time since Nuremberg.[16] While these cases fall under national law, international criminal law also criminalizes forms of complicity. The Nuremberg tribunal after World War II pioneered individual criminal responsibility under international law, trying managers and executives of companies for their collaboration with the Nazis.[17]

Aiding and Abetting Under International Criminal Law

To constitute aiding and abetting, one must knowingly assist in the commission of a crime.[18] According to the International Commission of Jurists, corporate actors with the political and economic influence to stop or prevent a crime could face greater accomplice liability.[19] Concerning the knowledge requirement, a corporate actor’s knowledge of the impact of the company’s actions suffices.[20] Whether or not the principal perpetrator is prosecuted does not impact the corporate actor’s liability for complicity.[21] By addressing complicity under this theory of liability, everyone who contributes to the commission of the crime can be held accountable.[22]
The Nuremberg trials paved the way for individual criminal responsibility under international law generally and for corporate actors specifically. It prosecuted individuals whose corporate activities implicated them in the crimes outlined in its charter.[23] Since Nuremberg, the practice of holding corporate actors accountable under this theory of liability has been underutilized. The Lundin case shows that this status quo is beginning to change.[24]

Heightened Human Rights Due Diligence

In 2022, the United Nations Development Programme, in collaboration with the Working Group on Business and Human Rights, published international standards for companies operating in conflict regions to supplement the United Nations Guiding Principles on Business and Human Rights (UNGPs), under which corporate actors are responsible for respecting human rights.[25] The heightened standard instructs corporations to carry out conflict sensitivity analysis as part of respecting human rights. According to the UNDP, there are three distinctive features in conflict contexts. First, conflict always results in adverse human rights impacts. Second, the activities of businesses in this context are never neutral. Third, businesses must respect human rights and international humanitarian law.[26] Consistent with the UNGPs, the scope of the due diligence duty in conflict-affected contexts is established using the concept of proportionality.[27] The greater the risk of human rights abuses, as would be the case in conflict-affected areas, the more robust due diligence businesses will have to adopt to minimize human rights violations.[28] As part of this due diligence, BP would need to assess the impact of operating in the region, ways it can prevent and mitigate the conflict, and how it can contribute to the peace and stability in the region.[29]

As was the case with Lundin’s projects in Sudan, the Azerbaijani military is responsible for the physical security of BP’s infrastructure.[30] In 2007, BP and the Azerbaijani government entered into a bilateral security protocol to oversee the protection of BP’s energy projects.[31] The protocol purportedly aims to “promote respect for, and compliance with, internationally recognized human rights principles.”[32] However, since violence escalated in 2020, BP has worked with the government to bolster the physical security of its projects and increased the presence of military-trained private contractors.[33] Energy securitization exacerbates the potential for conflict and further intertwines BP’s operations with the Azerbaijani government’s actions.[34] BP’s demonstrated interest in developing renewable energy in the disputed Nagorno-Karabakh region indicates its willingness to venture into conflict-stricken areas to advance its business interests and thereby contribute to the increased military presence and use of force.[35]

In September 2023, BP turned down a request to sign onto a letter by corporate leaders sent to President Ilham Aliyev of Azerbaijan urging the state to uphold human rights and de-escalate tension in the Nagorno-Karabakh.[36] There is no international agreement with an enforcement mechanism to respond to companies that do not implement the appropriate standard of HRDD in the face of conflict. The Lundin case indicates that besides reputational or operational concerns, BP executives face an international community that is increasingly willing and able to use legal mechanisms to hold corporate actors accountable for complicity in crimes.

  1. Baku Energy Week was held in the city of Shush in the conflict-stricken Nagorno-Karabakh region. Gary Jones, regional president for Azerbaijan-Georgia-Turkey, BP, Speech at Baku Energy Week (June 2, 2022),

    http://www.bp.com/en_az/azerbaijan/home/news/interviews/baku-energy-week–speech-by-bps-regional-president-Azerbaijan-Georgia-Turkey.html. ↑

  2. Under this 1994 agreement, BP provides a portion of its production to the state. Iɴᴛ’ʟ Tʀᴀᴅᴇ Ass’ɴ, Azerbaijan Country Commercial Guide (Nov. 21 2011), http://www.trade.gov/country-commercial-guides/azerbaijan-energy. As of 2021, BP’s oil fields represented 95% of Azerbaijan’s exports. Press Release, Global Witness, Azerbaijan’s warring regime with billions in fossil fuel money (Nov. 8, 2023), http://www.globalwitness.org/en/press-releases/oil-firms-bankroll-azerbaijans-warring-regime-with-billions-in-fossil-fuel-money/. ↑
  3. Id. ↑
  4. Id. ↑
  5. Id. ↑
  6. See Gordon Birrell, Executive Vice President, Production & Operations at bp, Speech at Baku Energy Week (last visited March 23, 2024), http://www.bp.com/en_az/azerbaijan/home/news/interviews/baku-energy-forum–speech-of-bp-s-evp–production-and-operations.html. ↑
  7. See Salpi Ghazarian, Conflict and Exodus in Nagorno-Karabakh: BP’s Urgent Responsibilities, Bᴜsɪɴᴇss & Hᴜᴍᴀɴ Rɪɢʜᴛs Rᴇsᴏᴜʀᴄᴇ Cᴇɴᴛʀᴇ (Oct. 27, 2020), http://www.business-humanrights.org/en/blog/conflict-and-exodus-in-nagorno-karabakh-bps-urgent-responsibilities/. ↑
  8. David J. Scheffer, Ethnic Cleansing Is Happening in Nagorno-Karabakh. How Can the World Respond?, Cᴏᴜɴᴄɪʟ ᴏɴ Fᴏʀᴇɪɢɴ Rᴇʟᴀᴛɪᴏɴs (Oct. 4, 2023), https://www.cfr.org/article/ethnic-cleansing-happening-nagorno-karabakh-how-can-world-respond. ↑
  9. Cɪᴠɪʟ Rɪɢʜᴛs Dᴇғᴇɴᴅᴇʀs, Report 1: Landmark Trial at Stockholm District Court: Allegations of Complicity in Serious International Crimes in Sudan (1999-2003) Against Two Corporate Leaders (Sept. 5, 2023), http://crd.org/2023/09/05/report-1-landmark-trial-at-stockholm-district-court-allegations-of-complicity-in-serious-international-crimes-in-sudan-1997-2003-against-two-corporate-leaders/. See also, Miriam Ingeson & Alexandra Lily Kather, The Road Less Traveled: How Corporate Directors Could be Held Individually Liable in Sweden for Corporate Atrocity Crimes Abroad, EJIL: Tᴀʟᴋ! (Nov. 13, 2018), http://www.ejiltalk.org/the-road-less-traveled-how-corporate-directors-could-be-held-individually-liable-in-sweden-for-corporate-atrocity-crimes-abroad (explaining that because individual liability for corporate crimes is an underdeveloped part of Swedish criminal law, the trial, regardless of its outcome, will have great importance). ↑
  10. Per Chapter 22, Section 6 of the Swedish Penal Code, international crimes amounting to war crimes committed prior to July 1, 2014, are prosecuted as “crimes against international law” on the basis of universal jurisdiction, thus incorporating international humanitarian law into the domestic legal framework. As such, the Lundin executives can be prosecuted irrespective of the nationality of the victims, perpetrators, or the location of the committed crimes and face up to life imprisonment. Ingeson & Kather, supra note 9. ↑
  11. Lundin entered into this agreement as part of a consortium with Malaysia’s Petronas Carigali Overseas Sdn Bhd (“Petronas”), Austria’s OMV (Sudan) Exploration GmbH (“OMV”), and the Sudanese state-owned Sudapet Ltd. Hᴜᴍᴀɴ Rɪɢʜᴛs Wᴀᴛᴄʜ, Part II: Oil Fuels the War Oil Development and Displacement in Block 5a, 1996-98, in Sᴜᴅᴀɴ, Oɪʟ, ᴀɴᴅ Hᴜᴍᴀɴ Rɪɢʜᴛs at 138 (2003). ↑
  12. Ingeson & Kather, supra note 9. ↑
  13. Press Release, Swedish Prosecution Authority, Prosecution for Complicity in Grave War Crimes in Sudan (Nov. 11, 2021), http://www.aklagare.se/en/media/press-releases/2021/november/prosecution-for-complicity-in-grave-war-crimes-in-sudan/. ↑
  14. Id. ↑
  15. See Iɴᴛ’ʟ Iɴsᴛɪᴛᴜᴛᴇ ғᴏʀ Sᴛʀᴀᴛᴇɢɪᴄ Sᴛᴜᴅɪᴇs, The Proliferation of Corporate War-crimes Cases, 23 Strategic Comments (Nov. 2023), http://www.iiss.org/publications/strategic-comments/2023/the-proliferation-of-corporate-war-crimes-cases/. See e.g., Eᴜʀᴏᴘᴇᴀɴ Cᴇɴᴛᴇʀ ғᴏʀ Cᴏɴsᴛɪᴛᴜᴛɪᴏɴᴀʟ ᴀɴᴅ Hᴜᴍᴀɴ Rɪɢʜᴛs, Lafarge in Syria: Accusations of complicity in grave human rights violations (last visited Mar. 23, 2024), http://www.ecchr.eu/en/case/lafarge-in-syria-accusations-of-complicity-in-grave-human-rights-violations/. ↑
  16. See Iɴᴛ’ʟ Iɴsᴛɪᴛᴜᴛᴇ ғᴏʀ Sᴛʀᴀᴛᴇɢɪᴄ Sᴛᴜᴅɪᴇs, supra note 15, at 1. ↑
  17. In total, 12 managers or executives were tried in the “successor” trials which took place from 1946 to 1949. Cléméntine Météier, In Nuremberg, “We started to judge company executives and managers,” Jᴜsᴛɪᴄᴇ Iɴғᴏ (Sept. 12, 2022), http://www.justiceinfo.net/en/106304-nuremberg-judge-company-executives-managers.html. Walther Funk, President of the Reichsbank, entered an agreement with Himmler to receive jewelry and goods. The items belonged to victims of extermination in concentration camps. The Tribunal found that, despite maintaining that he did not know who the items belonged to, he either knew or “was deliberately closing his eyes to what was being done.” Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946, vol. 1, 306. ↑
  18. Iɴᴛ’ʟ Cᴏᴍᴍ’ɴ ᴏғ Jᴜʀɪsᴛs, Corporate Complicity & Legal Accountability (​​Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes), 2 Cʀɪᴍ. L. ᴀɴᴅ Iɴᴛ’ʟ Cʀɪᴍᴇs 17-18 (2008). See also, Ingeson & Kather, supra note 9 (explaining that while the International Criminal Court considers that the assistance should make a significant contribute to the commission of the crime, Chapter 23, Section 4 of the Penal Code, has a much lower threshold of “furthering by advice or deed,” suggesting that the interpretation of aiding and abetting is not uniform across legal mechanisms). ↑
  19. At the time of writing their report, the ICJ did not have any case law to support this, but rather posited that there could be situations in which leverage entailed greater liability. Id. at 20. ↑
  20. Id. at 21. ↑
  21. Id. at 26. ↑
  22. This also has the practical benefit of being able to hold individuals accountable without the obstacles that often impede the prosecution of the direct perpetrators. See Oona A. Hathaway, Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy, and Alyssa T. Yamamoto, Aiding and Abetting in International Criminal Law, 104 Cᴏʀɴᴇʟʟ L. Rᴇᴠ. 1593, 1597 (2020). ↑
  23. Id. at 13. “The concept of accomplice liability is also a feature of international or hybrid criminal courts and is incorporated into the statutes of the ICTY, ICTR, the SCSL, the Extraordinary Chambers for Cambodia, and the Special Tribunal for Lebanon. Most importantly, it is a feature of the ICC Statute,49 which represents the most significan recent source of the current state of international criminal law, both in general and as it applies to accomplice liability.” Id. at 16. ↑
  24. Philip Kroner et al., Lundin Leading the Way? A (Re-)Assessment of Corporate Liability for International Crimes, Fʀᴇsʜғɪᴇʟᴅs Bʀᴜᴄᴋʜᴀᴜs Dᴇʀɪɴɢᴇʀ: Rɪsᴋ ᴀɴᴅ Cᴏᴍᴘʟɪᴀɴᴄᴇ Bʟᴏɢ (Dec. 14, 2023), http://riskandcompliance.freshfields.com/post/102iv7m/lundin-leading-the-way-a-re-assessment-of-corporate-liability-for-internationa. But see Cɪᴠɪʟ Rɪɢʜᴛs Dᴇғᴇɴᴅᴇʀs, Major setback for victims in the Lundin Oil trial (Nov. 30, 2023), http://crd.org/2023/11/30/major-setback-for-victims-in-the-lundin-oil-trial/ (arguing that the Swedish court’s recent decision to separate the plaintiffs’ claims for damages makes it more difficult for victims to seek redress); Nᴏʀᴡᴇɢɪᴀɴ Nᴀᴛɪᴏɴᴀʟ Cᴏɴᴛᴀᴄᴛ Pᴏɪɴᴛ ғᴏʀ Rᴇsᴘᴏɴsɪʙʟᴇ Bᴜsɪɴᴇss, Response to the NCP on behalf of Aker ASA and Aker BP ASA, 1 (June 24, 2022) (alleging that the merger “will contribute to a foreseeable future failure by Lundin Energy to provide remedy to victims of human rights violations in Sudan.”). ↑
  25. Uɴɪᴛᴇᴅ Nᴀᴛɪᴏɴs Dᴇᴠᴇʟᴏᴘᴍᴇɴᴛ Pʀᴏɢʀᴀᴍᴍᴇ, Heightened Human Rights Due Diligence for Business in Conflict-Affected Contexts: A Guide (June 16, 2022). See also Oғғɪᴄᴇ ᴏғ ᴛʜᴇ Hɪɢʜ Cᴏᴍᴍɪssɪᴏɴᴇʀ ғᴏʀ Hᴜᴍᴀɴ Rɪɢʜᴛs, Business and Human Rights in Challenging Contexts Considerations for Remaining and Exiting (Aug. 2023) (providing additional guidance). ↑
  26. Uɴɪᴛᴇᴅ Nᴀᴛɪᴏɴs Dᴇᴠᴇʟᴏᴘᴍᴇɴᴛ Pʀᴏɢʀᴀᴍᴍᴇ, supra note 25, at 10. ↑
  27. See Kwame Taylor, Life During Wartime: New Guidance on Heightened Human Rights Due Diligence in Conflict-Affected Contexts, Sᴀɴᴄʀᴏғᴛ (Sep. 30, 2022), https://sancroft.com/life-during-wartime-new-guidance-on-heightened-human-rights-due-diligence-in-conflict-affected-contexts/; UN Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises (UNWG), Business, Human Rights and Conflict-Affected Regions: Towards Heightened Action, UN Doc: A/75/212 (2020). ↑
  28. Id. ↑
  29. Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Aʟᴇʀᴛ, Human Rights Due Diligence in Conflict-Affected Settings: Guidance for Extractives Industries (2018), http://www.international-alert.org/publications/human-rights-due-diligence-conflict-affected-settings/. ↑
  30. BP, BP in Azerbaijan Sustainability Report 2007, 32 (2007), http://www.bp.com/content/dam/bp/country-sites/en_az/azerbaijan/home/pdfs/sustainability-reports/bp-sr-2007.pdf. ↑
  31. Id. at 3. ↑
  32. Id. ↑
  33. Alexander Marrow and Vladimir Soldatkin, BP works on reinforcing security at Azerbaijan facilities, Rᴇᴜᴛᴇʀs, Oct. 7, 2020, https://www.reuters.com/article/idUSKBN26S27W/. ↑
  34. See Firuza Nahmadova, The Role of BP and NATO in the Militarization of Azerbaijan, Bᴀᴋᴜ Rᴇsᴇᴀʀᴄʜ Iɴsᴛɪᴛᴜᴛᴇ (May 21, 2022), http://bakuresearchinstitute.org/en/the-role-of-bp-and-nato-in-the-militarization-of-azerbaijan/. ↑
  35. See id. “In June 2021, bp signed an agreement with the Azerbaijan Ministry of Energy to develop a 240MW solar power plant in the Jabrayil district of the Nagorno-Karabakh area.” Global Witness, supra note 2. ↑
  36. See Pᴀᴜʟ Pᴏʟᴍᴀɴ, Business leaders call for human rights to be upheld in Nagorno-Karabakh (Sept. 27, 2023), http://www.paulpolman.com/business-leaders-call-for-human-rights-to-be-upheld-in-nagorno-karabakh/. ↑