The issue of corporate criminal liability is a subject of intense debate, generating varying approaches. Some States have rendered it possible for corporations to be held liable based on the ‘identification approach’, while others depend on the ‘organisational approach’. Although this sufficiently provides a solution for legal practitioners to address criminal liability for most crimes, the potential of ensuring corporate liability for gross human rights violations remains ambiguous, primarily because such crimes are usually linked with individual perpetrators rather than corporations. The Rome Statute of the International Criminal Court, for instance, regulates individual criminal liability for gross human rights violations, when in reality, companies have a similar capability to commit such crimes. In fact, some are found to have systematically and repeatedly executed destructive criminal acts intended to maximise profits.

The transition of corporations into multinational enterprises has opened the door for their involvement in countries where foreign subsidiaries are established. Businesses are not far from acts of lobbying with state governments or even armed groups to ensure that their operations are not impeded. A report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes identified that companies have deliberately facilitated governments, armed groups, or others to commit gross human rights abuses by providing them money, weapons, vehicles, and air support, in exchange for concessions and security. These are then utilised by government or armed rebel groups to execute attacks on civilians. Recognizing the capacity of corporations to commit such crimes and inflict social harm, it is possible to hold them criminally liable.

Several cases have illustrated the influence that corporations have in the execution of war crimes or crimes against humanity. In the case of Lundin Energy, for instance, the Swedish company is currently facing charges of complicity in the war crimes in Sudan relating to an agreement it made with the Sudanese Government in 1997. The agreement permitted the corporation to explore and produce oil in southern Sudan. However, the area where it operated was impacted by the civil war. Subsequently, Lundin Energy demanded that its exploration zone be secured by the Sudanese regime forces, even though the military and militia were conducting gross violations of international humanitarian law.

On-going cases such as the conflict between Palestine and Israel further illustrate the need to address the corporate criminal liability of corporations for gross human rights violations. In the context of the Palestine-Israel conflict, companies are reported to have sent funds and/or facilitated the operations of the Israeli forces. For instance, in 2009-2010, Lima Holding BV were brought to the court for its alleged complicity in war crimes in Israel by providing machinery and services, which facilitated the construction of the annexation wall and Israeli settlements in the Occupied Palestinian Territory. In Indonesia, the participation of corporations in human rights violations is a pertinent issue. The most notable case would be ExxonMobil’s hiring of soldiers who committed human rights abuses, from murder to torture. The company’s involvement was highlighted by its payment of over US$500.000 to the Indonesian National Armed Forces, which were tasked with protecting their business operations at that time.

In addition to this, a state-owned company producing armed weapons was recently suspected to have provided arms to Myanmar’s military junta, whose acts have been described to amount to genocide and crimes against humanity. In 2023, a group of activists filed a complaint to the Indonesian National Human Rights Commission, alleging that three state-owned arms makers had been selling equipment to Myanmar since the coup. While these companies have affirmed that they have never been in contact with nor sold their arms to Myanmar, such an event raises questions on how criminal responsibility could be addressed if an Indonesian corporation is discovered to have provided arms or any form of assistance to a group or government who is deemed to be the main perpetrator of a gross human rights violation.

Corporation involvement in gross human rights violations is often described as complicity or aiding and abetting. Although they are not direct perpetrators, a corporation could be held accountable for knowing that its assistance and encouragement have a substantial effect on the commission of the crime.  This, however, should not eliminate the possibility of corporations’ involvement outside of aiding and abetting. The theory of corporate culture responds to this concern. It enforces the idea that corporations shall be held liable as they are deemed to cultivate a culture that pushes or tolerates a criminal act or is recognized to have failed to foster a culture that could prevent the commission of a crime. By implementing these two concepts, it becomes possible for corporations to be held liable for gross human rights violations.

Implementing these gross human rights violations concepts is inseparable from the recently revised Indonesian Criminal Code, Law No. 1 of 2023. Both aiding and abetting and the corporate culture theory are essentially reflected in the new Indonesian Criminal Code. On top of that, the new Indonesian Criminal Code has amended several provisions under Law No. 26 of 2000 on Ad Hoc Human Rights Court, specifically Articles 8 and 9, which respectively regulate genocide and crimes against humanity. In connection with this, as the new Indonesian Criminal Code acknowledges corporations as subjects of criminal law, it entails whether the new Indonesian Criminal Code could be used to prosecute corporations for their involvement in gross human rights violations. Finding the answer to this question is pivotal to ensuring that Indonesia possesses a robust legal framework when responding to corporate involvement in gross human rights violations.

The proliferation of corporations involved in gross human rights violations in the international community serves as a wake-up call for Indonesia. Its law must be ready for increased involvement amongst corporations in assisting the commission of crimes or engendering a culture that fails to recognize its extent and role in preventing the tolerance of a gross human rights violation. With this in mind, this reserach aims to assess how the Indonesian Criminal Law addresses such an issue. Given that genocide and crimes against humanity are classified as international crimes, this research is first assessing the rules of aiding and abetting under international criminal law, and followed by the exploration of corporate culture theory. Lastly, it evaluates how the Indonesian Criminal Law, particularly its new Criminal Code, could be implemented to address corporate criminal liability for gross human rights violations.

Authors: Mia Amiati, Adhryansah, and Iman Prihandono
The full version of this research paper may be found at: http://journal.fh.unsri.ac.id/index.php/sriwijayalawreview/article/view/3687/pdf