human rights & business (and a few other things)

UN Committee on Economic Social and Cultural Rights – Groundbreaking concluding observations re. overseas activities of corporate nationals

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.

Complicity of War Crimes: Criminal Complaint against a French Technology Company

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.

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