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.