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Unnecessary, Wrong, and Misguided – the US Supreme Court’s Blanket Ban on All ATS Suits against Foreign Corporations in Jesner v Arab Bank

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I  was waiting for it. I discussed it at length with students and colleagues. I envisaged many scenarios, even the worst possible one: the end of all claims against all corporations under the Alien Tort Statute (ATS) (see my previous post here). Yesterday, on  24 April 2018, it finally came: the US Supreme Court’s decision in Jesner v Arab Bank.

The question that was asked was whether the ATS categorically forecloses corporate liability. In a 5-4 decision, the Court issued a blanket ban on all ATS suits against foreign corporations. It said little about the liability of US corporations under the ATS so we can assume it remains a possibility, and that we dodged a bullet on this point. Regardless, this is the end of business and human rights ATS litigation against non-US companies, and a setback for those who seek to strengthen corporate accountability.

After a first read, here are my thoughts. The decision was unnecessary and amounts to, in the words of Justice Sotomayor writing for the dissenting minority, “us[ing] a sledgehammer to crack a nut.” The decision is also wrong, as it conflates the existence of a norm of international law and the possibility of its enforcement at the international level. Finally, the decision is misguided. The Court expresses concerns about the treatment of US corporations abroad if ATS suits against foreign corporations were allowed to continue. This argument attempts to oversimplify what is a complex matter. It is as if the Court aimed to appease those who believe US corporate giants cannot possibly do wrong, but actually have little understanding of how multinational corporations operate.

Ending all claims against foreign corporations was unnecessary

US federal courts have a set of tools at their disposal to address the legitimate concerns the facts of this, and other similar cases, raise. One of those tools is the “touch and concern” test that the US Supreme Court established merely five years ago in Kiobel, and whose raison d’être is now in question. The case could have been dismissed on forum non conveniens grounds or on the basis of nonjusticiability concerns such as the act of state, political question and comity doctrines. Instead of trusting lower court’s determinations on a case by case basis, the Court went for an absolute ban. I simply cannot find a good reason for this approach.

Conflating the existence of a norm of international law with the possibility of its enforcement is wrong

The Court discusses at length the existence of a norm on corporate liability for gross human rights violations under international law. It concludes that such liability is not recognised in international criminal tribunal’s statutes and that it therefore does not exist. Anyone who has taught an introductory international law course will tell you the same story: students often make a similar mistake when they first encounter international law. They mix up the existence of a norm and the possibility of its enforcement. International law is not really law, they assume, because it cannot be enforced in the same way domestic law is. While beginners can be forgiven for this mistake, to see one of the most prestigious judicial institutions in the world fall into that trap is mind-boggling. There is no question that certain norms of international law, particularly in international criminal law, apply to corporations. How they are held liable depends on states and is done precisely through mechanisms such as the ATS. To use this argument to prevent corporate liability at the domestic level is wrong.

The Court’s belief that ATS suits against foreign corporations jeopardize US corporations’ overseas operations is misguided

Towards the end of the judgement, the Court addresses another issue, that of the potential consequences of ATS suits against foreign corporations for US corporations. This, it argues,

“could subject American corporations to an immediate, constant risk of claims seeking to impose massive liability for the alleged conduct of their employees and subsidiaries around the world, all as determined in foreign courts, thereby ‘hinder[ing] global investment in developing economies, where it is most needed.’

In other words, allowing plaintiffs to sue foreign corporations under the ATS could establish a precedent that discourages American corporations from investing abroad, including in developing economies where the host government might have a history of alleged human-rights violations, or where judicial systems might lack the safeguards of United States courts. And, in consequence, that often might deter the active corporate investment that contributes to the economic development that so often is an essential foundation for human rights.”

To think that the mere possibility of an ATS lawsuit against foreign corporations could “ discourage” US corporations from investing abroad is misguided. Such lawsuits were possible until yesterday. Have US corporations ever stopped, or even refrained from, investing abroad for that reason? I doubt it. In any event, establishing this would require in-depth research that the Court does not even hint at. This argument is also ridiculous in light of the protections international investment law affords, and of the fact that no ATS lawsuit against a corporation has ever succeeded. The final point about how US corporations contribute to the realisation of human rights is also misguided. Of course it is true in certain circumstances but this is not the point. The point is that when corporations engage in human rights violations it is only right that they are held liable. Having done some good must not prevent liability. By suggesting otherwise, the Court reinforces the dangerous and misconceived idea that human rights standards are an inconvenience for the business world.


Okpabi v. Shell on Appeal: Foreign Direct Liability in Troubled Waters

 

It is a pleasure to welcome Lucas Roorda as a guest poster on “Rights as Usual”. M. Roorda is a Ph.D. candidate at Utrecht University, in the Institute of International, Social and Economic Public Law. He specializes in extraterritorial jurisdiction over corporate human rights violations. This post is his.

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These are busy days in English courts, insofar as foreign direct liability cases are concerned. Last year saw the London High Court decline jurisdiction in AAA v. Unilever on post-election violence in Kenya, while the Court of Appeals upheld the High Court’s interlocutory decision in Lungowe v. Vedanta on mining operations in Zambia. This February, on Valentine’s day no less, the Court of Appeals decided on the appeal against the interlocutory decision in Okpabi v. Shell. There seems to be little love lost between the applicants and the court: in a split decision (Sales LJ disagreeing) it upheld the High Court’s ruling that the applicants had no arguable claim against Shell, dismissing the appeal on all counts. This post examines the main tenets of the Okpabi appeals decision, how it compares against similar cases like Lungowe, and what that may mean for the future of foreign direct liability cases in English courts.

Okpabi and duties of care in the courts

To recap, the Okpabi case concerned a complaint filed by Nigerian plaintiffs from the Ogale community against Royal Dutch Shell (RDS) and its Nigerian subsidiary SPDC. The plaintiffs alleged that faulty maintenance of pipelines had caused oil pollution in their communities. The argued that RDS had breached a common law duty of care pursuant to Caparo v. Dickman. To argue a duty of care on the basis of Caparo exists, the plaintiffs needed to argue (1) that is was foreseeable that the subsidiary’s activities may result in harm, (2) that the parent was in close proximity to its subsidiary, and that (3) it was reasonable and appropriate to impose such a duty. The proximity criterion has been further clarified in Chandler v. Cape. As discussed by Ekaterina Aristova in her excellent blog, this approach also makes it possible to assert jurisdiction over subsidiary SPDC as a “necessary and proper party” to the claim against the parent. It has been argued in a number of recent cases, including Lungowe and AAA, and mutatis mutandis in the Dutch case of Akpan en Stichting Milieudefensie v. Shell, discussed here on this blog.

RDS and SPDC both denied that the leakages were the result of lacking maintenance and disputed the English courts’ jurisdiction over the case, arguing that the case should take place in Nigeria. In particular, they argued that the claim against RDS had no prospect of succeeding, and was merely used as an empty vessel to “anchor” the claim against SPDC and bring it within the jurisdiction of English courts. In 2016, the High Court accepted the defendants’ motion to dismiss, holding that the claimants did not have a “good arguable case” against RDS; consequently, there was no viable claim to which SPDC could be a “necessary and proper party”, and the entire case was dismissed. I have discussed that decision in detail here. The main thrust of the High Court’s decision was that RDS as the ultimate holding company was too far removed from its subsidiary in Shell’s corporate structure, and was not “in the same business” as its subsidiary as required by Chandler.

On appeal, Lord Justice Simon writing for the Court of Appeals agreed with the conclusions of the High Court, albeit with a different argumentation. The parties had agreed that the principal issue was the proximity element of the Caparo test: if there was no “good arguable case” against RDS on this basis, the case would fall apart entirely. In contrast to the High Court, the Court of Appeals’ decision focused more on RDS’ operational control over SPDC, and its involvement in the activities of its subsidiaries. While Simon LJ did recognize the plaintiffs’ argument that RDS has a central role in designing, implementing and monitoring environmental and security policies of the entire group, he did not consider those general policies to be sufficient to establish a degree of control that would satisfy the proximity requirement under Caparo (para. 127). The appeal was thus rejected.

The Okpabi decision stands in sharp contrast to Lord Justice Jackson’s assessment of very similar arguments made in Lungowe v. Vedanta recently. Lungowe also concerned duties of care of parent companies (the case is cited in Okpabi para. 23). The main difference between these cases is that the Lungowe court saw much more active involvement of the parent company with its subsidiary than the Okpabi court did with respect to RDS and SPDC. Moreover, the Lungowe court tried to avoid an all-too-deep inquiry into the merits, warning against “mini-trials” in this preliminary phase of the proceedings (see Lungowe 2017, para. 86 citing Coulson J, and para. 90). Instead, it recognized that while the case might not be open-and-shut at this stage, evidence may become available at a later stage to support the claimants’ assertions.

Mini-trials and perverse incentives

The Okpabi appeals decision is disappointing for several reasons. First, assessing “proximity” according to the standards set by the Court of Appeals essentially rewards corporate groups whose parent companies do not get actively involved with their subsidiaries’ operations. Even when the parent is instrumental in creating operational standards across the entire group, that would not be sufficient for it to incur a duty of care; whereas more hands-on involvement would. This creates perverse incentives for parent companies not to improve the environmental, security and health and safety standards of specific subsidiaries, lest they are held liable when harm occurs later. It also punishes companies that do try to be more responsible. It is a strange movement in times when transnational corporations are encouraged to take due diligence with regard to the human rights and environmental risks of their operations.

Second, it could be argued that the Court of Appeals’ approach to the proximity standard requires the plaintiffs to have a “winnable” rather than an “arguable” case. Earlier cases required that the plaintiffs’ claim against the parent was more than hypothetical. Simon LJ’s examination of the claimants’ arguments in contrast seems to suggest that a virtual ‘smoking gun’ was necessary to make the claim arguable. That “smoking gun” could be a document that showed that RDS had indeed actively intervened in SPDC rather than documents showing its capacity to do so. It is questionable whether this is appropriate at the jurisdiction stage of the case, or if this inches close to the “mini-trials” the Lungowe court warned of.

Third, this early incursion into the merits puts plaintiffs at a serious disadvantage with regard to producing evidence. They cannot rely on disclosure rules in this phase of the proceedings, which is arguably instrumental for producing the specific evidence required to argue the type of direct involvement required by the Court’s high standard for proximity. Instead they must build their case on public documents, supplemented with more general expert witness statements. Those can however be easily dismissed as irrelevant to the specific case, as indeed happened in Okpabi. On the other hand, defendants do have all access to those relevant documents, which they can use to their benefit. The Okpabi court’s approach may thus lead to serious equality of arms issues.

A better approach: from general to specific control

A better approach in my view would be the one advocated by Lord Justice Sales in his separate opinion. This would “merely” require that the claimants demonstrate that their case was “more than speculative” (para. 136). The documents discussed by Simon LJ, demonstrating the general control of RDS over the group and its operations would be sufficient to satisfy that test. While they might not be sufficient to eventually win the case on the merits, they provided a substantive context that rendered the claim more than speculative. The evidence could be strengthened by later evidence following disclosure on the argument that RDS also exercised specific control sufficient to satisfy the proximity requirement (see e.g. paras. 161 and 171). Unfortunately, Sales LJ was not joined by the third judge Lord Chancellor Vos.

Perhaps the most important point, however, was made by Sales LJ in his conclusions (para. 172-xi). RDS sought to control certain activities and their accompanying risks for its own interests, which are not inconsequential in terms of financial gain. Now that these activities have resulted in significant harm to others, it seems strange not to address the actor that was in a prime position to prevent those harms. In that context, it seems hardly appropriate to be overly concerned with how bad it would be for the parent company to be under a duty of care for all its subsidiaries’ operations (see para. 206). As the claimants have opted to take the case to the UK Supreme Court, it can only be hoped that some of the deficiencies in the Okpabi appeals decision are remedied later. If Okpabi is adopted as the right approach for assessing a ‘good arguable case’ for a duty of care, the prospects for foreign direct liability cases in the United Kingdom may be in serious jeopardy.


Draft Guidelines on Human Rights and the Environment – Submission in Response to the Call for Inputs by UN Special Rapporteur

imagesThe Business, Human Rights and the Environment Research Group at the University of Greenwich (BHRE), led by Dr Olga Martin-Ortega, and of which I am an associate member, answered the call for inputs on the Draft Guidelines on Human Rights and Environment, prepared by the UN Special Rapporteur on Human Rights and the Environment. Dr Martin-Ortega and myself were the main authors of the submission, with input from Dr. Opi Outhwaite and Dr. Daniel Aguirre.

Rationale for the submission

We welcome the Draft Guidelines on Human Rights and the Environment (hereinafter Draft Guidelines) and highly regard the work of the UN Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. This submission aims to support this work and provide further insights to help ground it into current international law and policy developments. Our recommendations seek to frame the Draft Guidelines within the current developments regarding business and human rights, environmental rights, children’s rights and international criminal justice.

International human rights law and environmental law have advanced greatly, both substantively and procedurally, to protect the rights of those affected by environmental damage and guarantee the enjoyment of a safe, clean, healthy and sustainable environment. These advancements have both widened the scope of State obligations and increased the responsibilities of third parties, in particular corporations, towards human rights and the environment.

In this regard, we believe it is important that the Draft Guidelines further reflect these advancements and more decisively highlight the role of the private sector in harming human rights and the environment, and addressing such harms. The harmonisation of language is particularly important in order to consolidate increasing State human rights obligations and efforts to hold corporations accountable for the impact of their actions and business relations. This is why this submission recommends the Draft Guidelines include some of the terms and concepts which are today consolidated elements of the business and human rights scholarship and practice.

It is important that the Draft Guidelines builds on other international legal instruments which are today widely accepted by the international community, including States, Intergovernmental Organisations, NGOs and corporations themselves. These include the Convention on the Rights of the Child (1990); the Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters (1998), the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005); UN Guiding Principles on Business and Human Rights (2011), OEDC Guidelines on Multinational Enterprises (2011), the UNICEF-Save the Children-Global Compact Children Rights and Business Principles (2012); the IFC Performance Standards on Environmental and Social Sustainability (2012); the World Bank Environmental and Social Safeguard Policies (2017) and the Policy Paper of the International Criminal Court Office of the Prosecutor on Case Selection and Prioritisation (2016), as well as the work of the UN Working Group on Business and Human Rights, and previous reports from the Special Rapporteur himself.

Current gaps in the Draft Guidelines

1. State duty to protect from harm by third parties, including corporations 

Most of the violations of human rights related to harm to the environment are directly connected with corporate activity. It is the private sector which produces the highest volume of pollution and harmful activity which has a direct impact on the full enjoyment of human rights. The State duty to protect human rights against third party action is long established in international human rights, and has been further consolidated since the publication of the UN Guiding Principles on Business and Human Rights and States National Action Plans to implement them. Considering this, we recommend that the Draft Guidelines includes a reference to the private sector, specifically corporations, in the General Obligations section, in order to reinforce this existing duty and harmonise language with current developments in international law.

2. Corporate responsibility to respect

It is widely accepted today that business have a responsibility, which is no longer exclusively a social expectation, to respect human rights and conduct themselves with due diligence in the development of their commercial activities and partnerships. Pillar II of the UN Guiding Principles on Business and Human Rights establishes the basic elements of this responsibility, which has been consolidated and further developed by other intergovernmental instruments, such as the OECD Guidelines on Multinational Enterprises, the EU Corporate Social Responsibility Strategy, National Action Plans on the implementation of the UN Guiding Principles on Business and Human Rights and prolific corporate statements and practice. Considering this, we recommend adding a fourth General Obligation establishing that every corporation has the responsibility to respect human rights from harm produced by environmental damage.

3. Right to remedy and access to justice

The right to remedy and its correlating State duty to provide access to justice are well established both in international human rights law and environmental law. The Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters does so in relation to public decision-making and it is the core of Pillar III of the UN Guiding Principles on Business and Human Rights, obliging States to guarantee an effective remedy and corporations to participate in remediation efforts. State obligations to provide remedy and reparations for victims are further reinforced in the case of gross violations of human rights and serious violations of international humanitarian law, by UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. The Draft Guidelines should build on the work of the Special Rapporteur himself, who in 2013 extensively elaborated on the matter (A/HRC/28/61, 3 February 2015, p. 12 et seq.). As well established, victims’ lack of resources and the inequality of arms brought by it is one of the most prevalent obstacles to access to justice. We suggest the Draft Guidelines add a strong reference to Guideline 8 in the part on Procedural Obligations to States obligation to guarantee access to justice, by providing the adequate procedures, resources and support to victims of environmental and human rights harm.

4. Rights of those who are most vulnerable to environmental harm: children

As the Draft Guidelines highlight, children are particularly vulnerable to environmental harm. The Convention on the Rights of the Child recognizes the right of children to a healthy and safe environment, as one of the elements to ensuring the healthy development of each child. The UNICEF-Save the Children- Global Compact Principles on Business and Children establish specifically that “All business should…[r]espect and support children’s rights in relation to the environment and to land acquisition and use” (Principle 7). When developing the corporate responsibility to respect in relation to children’s rights the Principles elaborate respecting children’s rights in relationship to the environment as: “i. When planning and implementing environmental and resource-use strategies, ensure that business operations do not adversely affect children’s rights, including through damage to the environment or reducing access to natural resources; ii. Ensure the rights of children, their families and communities are addressed in contingency plans and remediation for environmental and health damage from business operations, including accidents”. Therefore, we suggest a reference to the duty of the State to regulate business to specifically respect children’s rights and remedy harm (in Guideline 14) as well as a direct reference to the corporate responsibility to respect children’s rights in relation to the environment and contribute to harm remediation (by adding a further Guideline).

5. Rights of those who are most vulnerable to environmental harm: conflict situations and situations of mass and systematic violence

During situations of armed conflict, violence in weak governance zones and mass and systematic abuses of human rights, States have a heightened duty to protect human rights. The UN Guiding Principles on Business and Human Rights further develop the obligations of States to engage with business to identify, prevent and mitigate the human rights-related risks of their activities and business relationships in these environments as well as provide adequate assistance to business enterprises to assess and address the heightened risks of abuses; deny access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation; and ensure that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses (UN GP 7). This applies too to violations resulting from environmental harm. As argued above, the duty of the State to provide remedy, access to justice and reparations to victims in these situations is well established in international human rights law. Furthermore, the ICC Prosecutor, in her recent Policy Paper on Case Selection and Prioritisation (on this, please see a short blog post here and a more detailed article here), has highlighted how in order to consider the cases which merit prioritisation “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” (para. 41). In this context, the Office of the Prosecutor will give particular consideration to prosecuting crimes under the Rome Statute (war crimes, crimes against humanity and genocide) that are committed among others by means of, or that result in, inter alia, the destruction of the environment (ibid). Following these considerations, we recommend that the Draft Guidelines contain a reference to persons who are vulnerable due to the context in which the violations take place including armed conflict, weak governance and mass and systematic violence (Guideline 13). The obligations which the State is subject to in this case should include ensuring that the normative framework criminalises the actions which amount to international crimes in international criminal law (Guideline 14).

Recommendations

We recommend:

a. Including specific reference to current international law instruments which directly interact and further ground the Draft Guidelines in the Preamble. These include, among others:

  • · Convention on the Rights of the Child (1990);
  • · Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters (1998);
  • · UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005);
  • · UN Guiding Principles on Business and Human Rights (2011);
  • · OEDC Guidelines on Multinational Enterprises (2011);
  • · UNICEF-Save the Children-Global Compact Children Rights and Business Principles (2012);
  • · IFC Performance Standards on Environmental and Social Sustainability (2012);
  • · World Bank Environmental and Social Safeguard Policies (2017), and
  • · Policy Paper of the International Criminal Court Office of the Prosecutor on Case Prioritisation and Selection (2016),
  • · Reports from the UN Working Group on Business and Human Rights and the Special Rapporteur himself.

b. Including a reference to the private sector, specifically corporations, in the General Obligations section, in order to reinforce this existing duty and harmonise language with current developments in international law.

c. Adding a fourth General Obligation establishing that every corporation has the responsibility to respect human rights from harm produced by environmental damage.

d. Adding add a strong reference to Guideline 8, Procedural Obligations, to States obligation to guarantee access to justice, by providing the adequate procedures, resources and support to victims of environmental and human rights harm.

e. Inserting a reference in Guideline 14 to the State duty to regulate business to specifically respect children’s rights and remedy harm.

f. Adding a further Guideline (Guideline 16) which contains a direct reference to the corporate responsibility to respect children’s rights in relation to the environment and contribute to harm remediation.

g. Adding a reference to persons who are vulnerable due to the context in which the violations take place including armed conflict, weak governance and mass and systematic violence to Guideline 13.

h. Adding a reference to the obligations of States to ensuring that the normative framework criminalises the actions which amount to international crimes in international criminal law to Guideline 14.

Conclusions

We reiterate our support to the Draft Guidelines and our willingness to further ground them in international law developments for them to become an instrumental tool for the protection of human rights and the environment. We look forward to the final version of the Draft Guidelines.

 


Can the ICC Combat the Illegal Exploitation of Resources and ‘Land-Grabbing’?

10.5771_2192-1741-2017-1_big (002)It is a pleasure to welcome back Dr Evelyne Schmid as a guest poster on ‘Rights as Usual’. Dr Schmid is Associate Professor of International Law at the University of Lausanne. This post is hers and looks at the ICC Office of the Prosecutor’s Policy Paper on Case Selection and Prioritization, which I discussed here and here, from a different angle.

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In September 2016, the Chief Prosecutor of the International Criminal Court (ICC) in The Hague announced that her Office intends to pay particular attention to prosecuting ‘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’. A few days ago, Nadia convincingly argued that the statement in this Policy Paper on Case Selection and Prioritization holds considerable potential from a business and human rights perspective. Indeed, it is probable that the Policy Paper increases the chances that corporate actors and business activities will make it on the radar screen of the Office of the Prosecutor.

In addition, the Policy Paper is interesting from the point of view of economic, social and cultural rights and, in particular, the debate on whether abuses of economic, social and cultural rights could and/or should be part of transitional justice endeavours, including international criminal proceedings or other mechanisms that employ this body of law. In an article published earlier this summer, I add my two cents on the Policy Paper. The article was published in German in a journal issued by the German Association of Peace and Conflict Studies. I assess the reactions to the policy statement, ranging from enthusiasm to criticism that the Chief Prosecutor would give the ICC a new pretext for exclusively dealing with the Global South. What should we make of this controversy and what implications might the announcement of the Prosecutor have for the role of international law in transitional justice more broadly? Based on some of my previous research on the area of overlap between international crimes and violations of economic, social and cultural rights, I outline the limitations and potentials of international criminal law as an instrument against the illegal exploitation of resources and the illegal dispossession of land (‘land-grabbing’). Overall, my conclusions can be summarised as follows:

  1. The statement in the Policy Paper is not about an expansion of international criminal law. Obvious as it seems, this conclusion is important. The Policy Paper and the Chief Prosecutor are intending to shed particular light on crimes (or aspects of crimes) that may have been overlooked in the past but there is no question of expanding or otherwise changing the scope of existing international crimes contained in the ICC Statute. We should not assume that everything related to economic, social or environmental aspects of international crimes is about an expansion of the law as it stands today.
  2. Given that the universe of abuses is unfortunately vast and the possibility is real that there are accepted 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’, the Office of the Prosecutor is not abandoning the ‘core mandate’ of the ICC by paying attention to those alleged crimes.
  3. The idea of prosecuting such abuses is also not inherently more ‘symbolic’ than other prosecutions of alleged international crimes. The international crimes mentioned by Fatou Bensouda deserve to be taken seriously, for much the same reasons as other international crimes.
  4. At the same time, an increased focus of the Office of the Prosecutor on such abuses, of course, is not, will not and cannot be a silver bullet to solve all (or even many) problems related to allegations of abuses of economic, social or rights. Rather, international criminal law has serious, unavoidable and largely justified limitations. International criminal proceedings or other processes based on international criminal law are only a small part of the tools and mechanisms that can be employed in attempts to deal with the legacies of an abusive past.

In any event, I believe it is a very positive development that the Office of the Prosecutor is explicitly engaging with some of the very thorny questions of selectivity and case-selection at the ICC. Quick assumptions and a priori considerations that ‘typical crimes’ have certain characteristic and not others are not only legally inaccurate but risk failing victims and preclude us from making the most of international criminal law. Moreover, the statement of the Chief Prosecutor in the Policy Paper sends an important signal to national criminal authorities by flagging the relevance of environmental, economic, social and land-related aspects of international crimes.


New article – the ICC Office of the Prosecutor’s Policy Paper on Case Selection and Prioritization from the Perspective of Business and Human Rights

In September 2016, the Office of the Prosecutor of the International Criminal Court issued a policy paper on Case Selection and Prioritization in which it indicated that the Office will now ‘give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in … the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land’. I wrote a short blog post on this when the policy paper came out. The longer piece I wrote on the policy paper was published last week in the Journal of International Criminal Justice.

Because of the significant investment and technological capacities required to commit the crimes listed in the policy paper, multinational corporations, particularly in the mining and agribusiness sectors, play an active role in the perpetuation of these abuses. This is why the new policy paper has attracted the attention of those working in the business and human rights area in a context of prevalent impunity for such abuses. Against this background, the article evaluates the significance of the policy paper for the field of business and human rights. It does so by pointing to the current deficiencies of both international criminal law and international human rights law regarding business accountability, and by assessing whether, and if so how, the new policy paper can tackle those deficiencies. It also explores other areas of business activity the policy paper could have covered but did not, with references for example to the crimes associated with private companies running detention centres. The article concludes that, despite its limitations, the policy paper holds considerable potential from a business and human rights perspective.


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