Corporate Accountability for Atrocity Crimes in Myanmar: Business Complicity in the Investigations of the UN Fact-Finding Mission

Abstract

In the field of international criminal law, it is often claimed that a norm of corporate accountability is expanding, yet commercial actors who profit from atrocity frequently do so with impunity. The situation in Myanmar exemplifies the potential for greater corporate accountability for international crimes, highlighted by the findings of the UN Independent Fact-Finding Mission (FFM) on the role of economic actors in alleged Tatmadaw crimes against humanity and other serious human rights violations. These under-acknowledged allegations of serious corporate complicity present an opportunity for the Independent Investigative Mechanism for Myanmar (IIMM) and the International Criminal Court (ICC) to investigate. Doing so would challenge the accountability carve-out for corporate accountability that currently exists in the enforcement practice of international criminal law. If prosecutions for atrocity crimes in Myanmar focus solely on senior military and political figures, this will be a matter of policy rather than legal mandate, disavowing the heritage of international criminal justice after Nuremberg, where industrialists were charged for the complicity of their business activities in international crimes. We analyse the existing allegations of corporate complicity in Myanmar, describe the (expanding?) accountability norm, and evaluate jurisdictional possibilities. We argue that Myanmar presents a testing ground for international criminal justice: rise to the challenge and apply international rules of individual complicity to commercial activity (normative expansion), or maintain the status quo (enforcement carve-out).

Keywords: International Criminal Tribunals, Myanmar, Corporate Accountability, Business and Human Rights, Complicity

JEL Classification: K14, K33, K41, K42, K4