On Friday 20 May I had the pleasure to participate to a workshop on business and human rights, convened by Professor Karin Buhmann at Copenhagen Business School. I presented on the developing notion of corporate criminal liability under international law.
I started by setting the scene with 3 basic points:
(1) Under international human rights law, there is currently no route to hold corporations liable for human rights violations as this branch of law is state-centred.
(2) The UN Guiding Principles on Business and Human Rights talk about corporate responsibility to respect human rights but, beyond compliance with domestic law, this is a social expectation not grounded in law.
(3) The International Criminal Court doesn’t have jurisdiction over corporations, but only over individuals.
In this context, which shows an accountability gap, I believe that corporate criminal liability for international crimes is a concept worth exploring and pushing for and that the field of business and human rights would benefit from its clear recognition. This is so for two main reasons.
(1) It would be a symbolic move
Corporate criminal liability would not cover the majority of corporate human rights violations but it would be an important, symbolic move. The truth is that at the moment, when corporations become complicit with international crimes under the jurisdiction of the International Criminal Court (genocide, crimes against humanity and war crimes), international law has no response. Or, rather, it has an imperfect response: it focuses only on individual perpetrators. While this is of course an important step, it doesn’t fully address issues related to corporate culture and corporate governance which are key in the commission of crimes. Individual business executives within companies who have allegedly been involved in violations of international law (e.g. Unocal in Burma) would likely not have been in a situation of doing this had they not worked for a company placing them in that situation. Focusing on individuals only does not give a full picture and therefore may only partially provide the deterrent effect that human rights advocates hope for. Put simply: can business and human rights as a field of international law and policy be taken seriously if even the worst human rights violations are not covered?
At the end of day, litigation in business and human rights is about individual victims but it is also, and one may say mostly, about shedding light on corporate misconduct and using the attention to foster change in other companies. This should not be underestimated. To take one example, dozens of cases were filed against companies under the Alien Tort Statute (ATS) in the United States. Only a handful led to tangible results for individual victims. However ATS litigation resulted in a lot of media attention, and arguably, a renewed interest in the field.
(2) It would be easier than focusing on liability under international human rights law
It is difficult for anyone to argue that it is right for companies who become complicit in genocide, crimes against humanity and war crimes to be left off the hook. Conceptually it is much easier to argue that individual criminal liability should be extended to companies than to argue than liability under international human rights law, which currently arises only when states have violated their human rights obligations, should be extended to companies. The latter is being considered in ongoing discussions on the business and human rights treaty, but it is not likely to be resolved soon.
Corporate criminal liability under international law could be officially recognised in three main ways:
(a) It could be included in the future business and human rights treaty. However, no one knows at this stage whether the discussions will lead to any tangible result and states disagree a great deal about the process.
(b) A separate treaty criminalising certain corporate conduct, but leaving it to states to prosecute, could be adopted. Such a treaty would follow the model of the Convention against Torture for example. This would be an important step, but would require to start yet another process from scratch.
(c) It could be included in the Statute of the International Criminal Court, through an amendment procedure. The Statute was amended in the past, so we know it is possible. The field of business and human rights has changed a great deal since 1998, so it might be possible to gather enough state interest to amend the statute. I think that’s the most coherent, less time-consuming option.
Yesterday, the International Consortium of Investigative Journalists (ICIJ) revealed the Panama Papers. The Panama Papers is a leak of unprecedented scale, more than 150 times larger than US diplomatic cables released by WikiLeaks in 2010.
The Guardian has published a short, useful guide to the Panama Papers. In a nutshell, the Panama Papers expose how some prominent individuals, including politicians, business leaders and celebrities from around the world have hidden money and avoided tax, using the services of Mossack Fonseca, a Panama-based law firm specializing in the incorporation of offshore companies.
As I was reading about this, one point particularly attracted my attention. As noted in The Guardian, “using offshore structures is entirely legal”. And this, I think, is the biggest challenge for those of us working in the field of business and human rights, a field which explores the negative human rights impacts of business and seeks to address and prevent those impacts.
The problem with the use of offshore structures is that it quickly becomes difficult to distinguish between what is legitimate business and what is in reality a convenient way to break the law, hide assets illegally obtained, pay less or no tax, etc. The human rights implications of those activities are well documented. Criminal organizations, by definition, are involved in crimes with human rights impact, from sex trafficking to murder of civilians. Allowing them to hide their money means they can keep doing just that. With regard to legitimate companies and individual leaders, the millions in unpaid taxes which are hidden in offshore companies could be used to improve access to public services and avoid devastating spending cuts, hence fulfilling human rights to health, education, etc. (see the page on tax avoidance of the Business and Human Rights Resource Centre here).
Reading about the Panama Papers reminded me of an article published in the French magazine Marianne after the terrorist attacks in Paris in November 2015. In the article, titled “Facebook, Google, Apple : merci, mais la solidarité, c’est payer ses impôts en France”, the journalist, commenting on Google, Facebook and Apple’s various online displays of solidarity with the French, thanked those companies for their concern but noted that if they really want to help they should fully pay their taxes in France, which would allow the country to better protect itself and prevent terrorist attacks.
The business and human rights field has made important progress, for example with the adoption of the UN Guiding Principles on Business and Human Rights (UNGPs) in 2011, and the ensuing adoption of National Action Plans by certain countries, as well as the inclusion of the UNGPs in some companies’ human rights policies. But tax avoidance is not being given as prominent a place as other issues. This is not to say that I believe we should create a hierarchy among those issues, but simply to highlight that more attention should be given to tax matters.
On 29 March I had the pleasure to participate to a roundtable on business and human rights organized by the American Society of International Law Human Rights Interest Group at George Washington University School of Law. The roundtable focused on the implementation of the UN Guiding Principles on Business and Human Rights and on the controversial drafting of a treaty on business and human rights.
My presentation focused on the treaty. I have said before that I have strong reservations about it (see here), and I still do. However, the process has now started and I think it is important to engage with it and to consider options to move forward. To set the scene, I made the point that contrary to what we may hear here and there on this issue, there exist dozens of treaties pertaining to business and human rights. International Labour Organisation conventions touch upon issues that are frequently the object of so called “business and human rights” litigation. One can mention for example Convention 176 on Safety and Health in Mines, which includes an obligation for states not only to regulate the matter, but also to “take all necessary measures, including the provision of appropriate penalties and corrective measures, to ensure the effective enforcement of the provisions of the Convention.” (Article 16) Moreover, all nine UN human rights treaties, to name only the main conventions of international human rights law, cover rights that are susceptible to be violated by the business sector and that state parties ought to protect. It is therefore a crowded legal environment already.
In this context, I discussed how a business and human rights treaty could add value, not through the creation of direct obligations for corporations, which I think cannot work, but by focusing on state obligations in more detail than the UN Guiding Principles on business and human rights. To me, the added value here is that a treaty would force states to report on the matter to a dedicated treaty body, business and human rights issues would more naturally make their way into the Universal Periodic Review process, and it would lead to General Comments which could be of use from an advocacy point of view.
On 29 June I will give a lecture on corporate liability for international crimes at the annual International Criminal Court Summer School at the Irish Centre for Human Rights in Galway (Ireland). My lecture will be one of a series of intensive lectures over five days (27 June- 1 July). All lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court.
This will be my fifth participation to this event and I strongly recommend it. It attracts participants of high calibre and the discussions are always enjoyable for all involved. The course is open to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.
This year’s ICC Summer School will include a special session on victims at the International Criminal Court.
The list of speakers at the 2016 ICC Summer School includes the following:
Professor William Schabas (Irish Centre for Human Rights/Middlesex University); Professor Anne-Marie de Brouwer (Tilburg University); Dr Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University); Paolina Massida (Office of the Public Counsel for Victims, International Criminal Court); Professor Ray Murphy (Irish Centre for Human Rights); Dr Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University); Dr Nadia Bernaz (Middlesex University); Fiona McKay (former head of Victims Participation and Reparations Section of the International Criminal Court) Dr Kwadwo Appiagyei Atua (University of Ghana and University of Lincoln); Dr Noelle Higgins (Maynooth University); Dr Shane Darcy (Irish Centre for Human Rights).
An early bird registration fee of €400 is available for delegates who register before 15 April 2016, with the fee for registrations after that date being €450. The registration fee includes all course materials, all lunches and refreshments, a social activity and a closing dinner. A limited number of scholarships are also available.
If you have any queries you can email: firstname.lastname@example.org.
On Tuesday 15 March, French newspaper Libération and radio station France Inter revealed the results of a large-scale inquiry they conducted on the activities of French IT company Amesys, a subsidiary of Bull. The company is being investigated for its activities in Libya, specifically for having sold a surveillance system called Système Eagle to the Libyan regime under Gaddafi. The surveillance equipment was used to track Libyan opponents who were subsequently arrested and tortured. It is allegedly still in use in Libya.
Journalists gained access to dozens of documents showing the scale of the operation, and these documents are now part of the investigative judges’ file against the company. The system worked by identifying key words in individuals’ emails. Words such as “corruption”, or anything vaguely critical of the regime written in an email could trigger a person’s increased surveillance and his or her arrest.
This is a significant development in an investigation which has been dragging on for years. To this day, the company is still not formally charged with anything and strongly denied the allegations in a press release published on its website.
Irrespective of the company’s guilt or innocence in this specific instance, this is an important case for the entire field of business and human rights. If only from an academic perspective it would be interesting to see a company prosecuted for complicity of torture, how causation aspects would be dealt with, and how potential defences would play out. As the fate of civil claims against companies under the US Alien Tort Statute remains uncertain post-Kiobel (see my blog post on this here), it would be nice to see some progress in other countries in the area of corporate liability.
Brill has just published a new book entitled Natural Resources Grabbing:an International Law Perspective, edited by Francesca Romanin Jacur, Angelica Bonfanti and Francesco Seatzu. Dr Jérémie Gilbert and I have contributed a chapter on “Resources Grabbing and Human Rights: Building a Triangular Relationship between States, Indigenous Peoples and Corporations.”
The chapter explores the notion of permanent sovereignty over natural resources and outlines the ambiguous status of the right to freely dispose of natural resources as both a right of the state (under a number of UN General Assembly Resolutions) and a right of the peoples (under Article 1 of the two 1966 International Covenants). While the ambiguity remains under international law per se, developments in two distinct human rights areas shed some light on the issue.
First, the rise of indigenous peoples’ rights at the international level suggest that at least those peoples have some rights over resources found on the land they live on. Article 32(2) of the UN Declaration on the Rights of Indigenous Peoples exemplifies this. It establishes that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
Second, the UN Guiding Principles on Business and Human Rights, which the UN Human Rights Council endorsed in June 2011, establish a corporate responsibility to respect human rights. Under this framework, corporations are expected to ensure they do no harm, and they “should avoid infringing on the human rights of others” (Guiding Principle 11). Guiding Principle 12 states that the human rights covered include those listed in the International Bill of Human Rights (the Universal Declaration of Human Rights and both 1966 Covenants). The official commentary of Guiding Principle 12 further states that “business enterprises may need to consider additional standards” and refers to “United Nations instruments [that] have elaborated further on the rights of indigenous peoples.” In practice. this means that corporations are now expected to play a role in the realisation of human rights, which includes the right to freely dispose of natural resources, especially but not only, when the project is likely to impact indigenous peoples.
The chapter concludes on the idea that while the international human rights legal framework does not expressly outlaw resources grabbing, it clearly calls for dialogue between states, corporations and indigenous peoples to address the issue.