On 15 September, the Office of the Prosecutor of the International Criminal Court issued a policy paper on case selection and prioritization which might result in business and human rights violations being prosecuted at the International Criminal Court in the near future. When it comes to assessing the gravity of crimes (which has always been one of the case selection criteria) the document highlights that:
The impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. In this context, the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land. [para. 41]
Formally, there is no change in the subject-matter jurisdiction of the Court, which remains genocide, crimes against humanity, war crimes and the crime of aggression. However, the policy paper is important from a business and human rights perspective because it may result in acts the Court previously considered irrelevant now being considered relevant either as contextual elements or as material elements of crimes against humanity.
The ICC statute defines crimes against humanity as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Those acts include “deportation or forcible transfer of population” and “persecution against any identifiable group or collectivity on (…) racial, national, ethnic, cultural, [and] religious (…) grounds (….).”
It is well documented that land grabs, the exploitation of natural resources and environmental damage tend to primarily victimize already marginalized communities such as indigenous communities and other minorities. The exploitation of natural resources, for example, can result in forcible transfers of population in order to free up the space for corporations. Moreover, the International Criminal Court’s definition of crimes against humanity does not require those crimes to be committed in the context of an armed conflict. It only requires a “widespread and systematic attack directed against a civilian population”, which may or may not include acts of physical violence. A mass eviction, for example, could be considered an attack for the purposes of the Statute even if no blood is shed. Hence the law is already in place to allow prosecutions for crimes against humanity on those grounds.
However, until now, the International Criminal Court, as indeed other international criminal tribunals, had considered that those crimes were not serious enough. Instead they had focused their attention on crimes falling more neatly within the traditional remit of international criminal law. Those crimes tend to be committed in times of armed conflict, although this is not a formal requirement for the commission of genocide and crimes against humanity.
This new policy document, therefore, is of paramount importance for the field of business and human rights. It means that governmental officials and, if relevant, corporate officials engaging in activities such as land grabs and the exploitation of natural resources are now fair game in The Hague.
A special thank you to Irene Pietropaoli for letting me know about this.
On 24 June 2016, the Committee on Economic Social and Cultural Rights published its latest Concluding Observations on the United Kingdom in the context of the review of that country’s 6th periodic report. The Committee strongly criticized the human rights impacts austerity measures have had on “disadvantaged and marginalized individuals and groups” (para. 18) and a whole section (para 11-13) is devoted to business and human rights.
The Committee “welcomes the adoption of the National Action Plan on Business and Human Rights”. However it expressed concerns “about the lack of a regulatory framework to ensure that (…) companies domiciled under its jurisdiction acting abroad fully respect economic, social and cultural rights.” Specifically the Committee recommends that the United Kingdom
adopt appropriate legislative and administrative measures to ensure legal liability of companies domiciled under the State party’s jurisdiction, regarding violations of economic, social and cultural rights in their projects abroad, committed directly by these companies or resulting from the activities of their subsidiaries. [para. 12(b)]
I have written before about the trend among treaty bodies to recommend that states monitor the overseas activities of their corporate nationals (see here and here. See also my chapter in forthcoming book: Carla Buckley, Alice Donald, Philip Leach (eds.), Towards Coherence in International Human Rights Law: Approaches of Regional and International Systems, Leiden: Brill, 2016).
As far as I know, however, this is the first time that a UN treaty body goes that far. First, the Committee is calling for “legal liability” of companies domiciled in the UK. It is not simply asking the country to loosely monitor what these companies are doing when operating abroad. Second, the Committee mentions the liability of parent companies for the activities of their subsidiaries. This is in line with the most recent case law from the English Court of Appeal, and recent decision by the English High Court (please see information on this here). However, as it seemingly bypasses the principle of separate legal personality of separate companies, this remains a controversial area of the law.
A Palestinian family, with the support of the ACAT and represented by the Paris-based law firm Ancile-avocats, have filed a criminal complaint against the French company Exxelia Technologies. They claim that the company is at least guilty of manslaughter and possibly also complicit in a war crime. In July 2014, a missile, probably dropped from a drone, landed on the Shuheibar’s family house’s roof where several children were feeding birds. A little girl – Afnan (8) – and two boys – Wassim (9) and Jihad (10) – were killed in the attack. Two other children – Udai (15) and Bassil (9) – were severely injured. As the house does not appear to have been a legitimate military target, the attack may constitute a war crime. In the debris, a component was found on which one could read “Eurofarad France”. Experts have since determined that the component is a Hall effect sensor made by Exxelia Technologies.
The core of the complaint is that the company sold the component to Israel with knowledge that it would be part of a missile and with knowledge that it was susceptible to be used to commit a war crime. Although it is directed against a company and not an individual businessperson, the complaint bears similarities with the case against Dutch businessman Frans Van Anraat. In 2005 the District Court of The Hague found him guilty of complicity of war crimes for having sold chemicals used in the fabrication of mustard gas, with knowledge of what the chemicals would be used for, to the Iraqi government under Saddam Hussein’s rule. The gas, made with the chemicals that Van Anraat sold, was later used against Kurdish villages as well as Iranian villages in the context of the Iran-Iraq war, killing thousands of civilians. Van Anraat was sentenced to 15 years in prison, a sentence that was increased to 17 years by the Appeals Court in 2007.
The complaint against Exxelia Technologies is the third of its kind in France where two separate complaints against French software companies Amesys and Qosmos for complicity of torture are currently being investigated. It is claimed that they sold surveillance equipment to Gaddafi’s Libya and Assad’s Syria respectively and trained local police forces on how to use it, leading to a number of individuals being identified, arrested and tortured. Neither company has formally been charged yet.
As the notion of corporate criminal liability for international crimes is still at its infancy in international law (see my post on this here), these domestic cases are of paramount importance for the field of business and human rights.
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.