This morning I participated to a consultation on access to judicial remedies in the UK hosted by the British Institute of International and Comparative Law. This is part of a wider project on access to judicial remedies in the UK, the United States and different jurisdictions in the European Union, with Olivier De Schutter, Andie Lambe, Robert McCorquodale and Gwynne Skinner as the lead experts. The project team also includes Marilyn Croser from CORE, Katie Shay from the International Corporate Accountability Roundtable, and Filip Gregor from the European Coalition for Corporate Justice.
The project aims to map obstacles to litigation and access to remedies and, more importantly, to propose practical ways to overcome these obstacles.
The usual, yet critical, issues of legal aid for foreign victims, access to evidence, and de facto inequality of arms between often disimpowered communities and powerful global corporations, were discussed. Other questions that I find are a lot less touched upon were also discussed, such as the consequences of EC Regulation No 864/2007 (‘Rome II’). The Regulation provides that in tort claims judges in European Union member states must apply the law of the state where the damage occurred. While the principle is now well established, I had not fully realised the practical consequences of this. It means that the onus is on the claimant to present the judge with a clear picture of what the law is in that particular country. The identification of the relevant law and its niceties can be long and costly. A related problem, also stemming from ‘Rome II’, is that the victims, if successful before British courts, can only be compensated according to the host state’s rules on the matter, not British rules, which may mean a lot less money.
We also had a fascinating discussion on ‘remedies besides money’. The nature of tort claims brought in the UK to address human rights violations calls for purely monetary compensation to selected, identifiable, individuals when remedies for the benefit of the wider community may actually be fairer in the long run and have a better chance of ensuring non repetition.
The project is timely and has the potential to move things forward in this complex area of law where many questions remain unsolved. I look forward to reading the report that will come out of it.
It is a pleasure to welcome back Valentina Azarov on Rights as Usual. Valentina heads and lectures on the Human Rights & International Law program at Al-Quds Bard College, Al-Quds University, Palestine. She worked with human rights groups in Palestine and Israel from 2008 until 2012, and has done some corporate accountability litigation and advocacy work for Al-Haq. This post is hers.
On 14 May 2013, the Dutch public prosecutor issued a decision to dismiss the case against Lima Holdings (the Dutch parent) for Riwal’s role in Israel’s construction of the Separation Wall in occupied Palestinian territory. Al-Haq, a Palestinian human rights organisation, with the help of advocate Liesbeth Zegveld, submitted the complaint to the prosecutor in March 2010, based on the Dutch International Crimes Act (Wet Internationale Misdrijven). This is the first instance of a European company being criminally prosecuted for aiding and abetting Israel’s international law violations.
The complaint described the company’s complicity on a number of counts related to the Separation Wall (which the International Court of Justice 2004 Advisory Opinion held to be unlawful), including the war crime resulting from the extensive and wanton appropriation and destruction of property, without military necessity; the war crime of indirect forcible transfer of Palestinians; and the crimes against humanity of apartheid and of persecution resulting from the discriminatory regime ensuing from the Wall. This regime consists in access restrictions on Palestinians to the territory de facto annexed by the Wall, including in the so-called “Seam Zone” (the Israeli military name for most of the Palestinian territory located between the Wall and the 1949 Armistice line/the “Green Line”). Documentation compiled by Al-Haq presented prima facie evidence of the company’s involvement in six specific instances of the Wall’s construction.
The Dutch prosecutor dismissed the case without providing any information concerning the content of documents obtained by the Dutch police in the raid of the company’s headquarters and the company executives’ homes in the Netherlands, in October 2010; and without initiating any further investigative actions through the Israel authorities. An industry news outlet reported, “In a statement, Lima said the prosecution service decided against bringing charges because it had reduced its activities in Israel and the occupied territories and because its involvement had been limited. Cranes and aerial platforms were rented for a few days and sometimes to third parties.”
The case was dismissed on three main grounds. First, as noted in the prosecutor’s letter, the prosecutor decided that the company’s involvement was minor “taking into account the worldwide company activities”, as opposed to the other foreign companies involved in the Wall construction, whereas Dutch war crimes legislation requires a “substantial” contribution by an accomplice to such acts. The additional Dutch legal requirement of evidence of the company’s knowledge and proximity to the acts was arguably met through the company’s engagement by Dutch state officials, including the Minister of Foreign and Economic Affairs.
Second, the prosecutor mentions the restructuring of the company’s Israeli branch following the incidents in the complaint, as if such measures amount to either a remedy for victims or a manner for the company to correct its previous conduct. The prosecutor noted that “the danger of repetition (within the Dutch jurisdiction) seems to be minor”.
Finally, the prosecutor states that since the question of the company’s responsibility is “complex” it requires further investigation, which would “consume a significant amount of resources”, while consisting of protracted proceedings. Also, “lack of cooperation from the Israeli authorities” would hinder efforts to obtain further evidence.
The prosecutor’s light-handed decision to dismiss the case flies in the face of the international legal norms that require states to take effective measures to ensure that their corporate nationals are not involved in international law violations abroad. The Netherlands and other states have war crimes legislation that incorporates these norms into domestic law and makes them applicable to corporations and corporate officials. However, the attempt to activate domestic war crimes legislation, particularly in the Israel-Palestine context, is often trumped by foreign policy considerations and political interests. This was the case when the Canadian courts dismissed a corporate liability suit against a Canadian company involved in settlement construction, and more recently when the French courts rejected the case against Veolia, a French company involved in the construction of settlement infrastructure (previously discussed on this blog). The Riwal case is yet another instance where a judicial authority is reluctant to make a politically-charged decision to initiate an investigation of facts committed under Israel’s de facto authority.
Although the application of war crimes legislation is frequently subjected to political discretion, other national laws – including laws on consumer protection, proceeds of crimes, and public procurement – could be invoked to bring corporate nationals to comply with human rights and international law. Under this paradigm, Dutch national regulatory authorities could be required to undertake risk assessments of their corporate nationals’ commercial activities abroad and these companies’ ability to respect Dutch law and public policy. In making such assessments, Dutch authorities would require Israel’s routine cooperation in providing information that enables them to make such assessments correctly in accordance with Dutch law. Such an exigent need to correctly implement Dutch legal obligations would constrain Dutch authorities’ political discretion in enforcing compliance with international law and human rights upon their corporate nationals in their activities abroad.
Yesterday I had the pleasure to go to Amsterdam to talk at the workshop of the European Society of International Law Interest Group on Business and Human Rights. It was a lively event, with 9 speakers and 2 panels. One focused on implementation and compliance, and the other on accountability and enforcement. I talked about the California Transparency and Supply Chain Act 2012 and discussed the effectiveness of reporting as a way to enhance companies’ human rights records. For the purposes of this post I will focus on two other papers presented during the workshop. Watch this space for more information about my paper and what I plan to do with it.
Karen Weidmann gave a presentation on the role of the OECD National Contact Points (NCP) in the area of business and human rights. Karen served on the German NCP and therefore brought her experience as a practitioner to the discussion. She made 3 main points.
First, she highlighted the fact that the OECD Guidelines for Multinational Enterprises are of increasing relevance in the business and human rights debates, not least because the language of the UN Guiding Principles is reflected in the Guidelines.
Second, she recognised that the complaint mechanism created by the Guidelines, through the setting up of National Contact Points, has an inherently limited impact. However, she argued that it has the potential to play an important role in the business and human rights sphere. This is because there is little formalism with regards to how to relate the “case” to the state of the National Contact Point. In other words, the daunting issues of jurisdiction that constantly arise in relation to the Alien Tort Statute litigation in the United States, for example, have considerably less impact when it comes to NCP cases. Also, the NCPs have a forward looking approach, which, she argued, is particularly well adapted to business and human rights where violations often come from companies having adopted wrong processes, that need to be changed for the violations to end.
Third, she defended the idea that NCPs ought to be closely linked with state administration. Indeed, she sees great potential in having NCPs formally linked to governments so that their decisions can in turn be considered as indications of state practice and opinio juris in business and human rights. Also, in her opinion, there is great value in having governments “stamping” the NCP decisions because it may make companies take the process more seriously and add political backing to the problem-solving in individual cases. I had never really thought about this in this way and I think these are interesting points.
Carmen Marquez Carrasco and Luis Rodriguez Piñero gave a presentation on the implementation of the UN Guiding Principles in Spain. Laura Iñígo Alvarez had also contributed to the research. I knew nothing of the situation there on this question so it was particularly interesting for me. They highlighted the quasi absence of so called “CSR culture” among Spanish companies and the difficulties in engaging Spanish NGOs in the debates, as they generally consider the UN Guiding Principles to be a negative development and refuse to participate to discussions on this. Finally, they mentioned the fact that three cases are currently pending before the Spanish NCP, with no final decision yet.
In the end, they raised a more fundamental question about the variety of implementation strategies for the UN Guiding Principles that EU countries seem to be working on at the moment and raised the following question: what will happen when the EU Commission realises that the 27 Member States have adopted different legislation or at least policies on this? I guess that’s the 1,000,000 million euro question!
I foresee we will hear more about this in the next months as countries hopefully start publicizing their strategies.
On 21, 22 and 23 May, Middlesex University is hosting a Fairness Conference, as part of our newly created Institute of Ideas.
The guest speaker on the human rights panel this morning was human rights defender Bianca Jagger, Founder and Chair of the Bianca Jagger Human Rights Foundation. She gave an inspiring talk focusing on issues of corporate human rights responsibilities and corporate crimes, calling for stricter laws to hold companies, but also CEOs and senior management, criminally liable for the human rights consequences of their actions.
She developed an interesting legal concept, that of “crimes against present and future generations”, which she campaigns to get recognised as international crimes susceptible to attract the jurisdiction of the International Criminal Court, and possibly other institutions as well. The concept is yet to be fully studied but the idea is that the offense would be phrased in a way that would catch conduct leading to gross environmental degradations, which impacts on future generations, as well as present victims. She gave several examples of the kind of conduct she thinks could fall in that category, such as the conduct of former CEO of Union Carbide Warren Anderson in relation to the Bhopal disaster.
The one and only Martin Sheen stars in a new movie on Union Carbide’s operations in Bhopal and the Bhopal disaster called Bhopal: A Prayer for Rain. Hopefully, since Martin Sheen plays the lead role, the film will reach an even wider audience than the award-winning documentary Bhopali, which we screened at Middlesex last year. The Bhopal disaster provides a painful example of corporate human rights violations and absence of redress.
For those who want to help, I have had a long standing relationship with the Bhopal Medical Appeal, a charity that helps alleviate the suffering of the tens of thousands of people maimed by exposure to toxins released from the former pesticides factory which exploded in 1984. If you fancy, you can run the British London 10K and raise money for them. If you are not a sports enthusiast, you can at least sponsor my run.
Thank you in advance.