Next week sees the first-ever global Forum on Business and Human Rights, held on 4-5 December at the Palais des Nations, UN head office in Geneva.

Under the guidance of the Working Group on the issue of human rights and trans-national corporations and other business enterprises, by resolution 17/4 of 6 July 2011, the UN Human Rights Council established the Forum to

“discuss trends and challenges in the implementation of the Guiding Principles [on Business and Human Rights] and promote dialogue and cooperation on issues linked to business and human rights, including challenges faced in particular sectors, operational environments or in relation to specific rights or groups, as well as identifying good practices.”

With my background in international criminal law and human rights, I’m specifically interested in discussing what impact the Business and Human Rights movement (of which the Forum is a significant product) will have on the prosecution of companies and corporate executives for complicity in war crimes and other violations of international humanitarian law.

Undoubtedly the Forum will add weight to the building global momentum raising awareness that businesses as well as States bear a responsibility to respect the human rights of those affected by commerce.

Currently, however, there is no international mechanism to prosecute businesses as legal entities for involvement in war crimes and other international crimes. The jurisdiction of the International Criminal Court is restricted to ‘natural’ persons, and none of the other international(-ised) courts have prosecuted companies.

These restrictions mean that the prosecution of business entities is limited for the time being to national jurisdictions – and there has been an historical reluctance for a State to use its domestic criminal justice system to prosecute a corporation extra-territorially, even for the erga omnes international crimes of war crimes, crimes against humanity and genocide.

Nevertheless, a number of high profile civil suits brought by victims alleging corporate torts that are in effect international crimes (see Kiobel, Anvil Mining and others – referred to in earlier batesmithlaw blogposts) have been particularly prominent recently. Will these civil claims be important test cases for wider accountability?

My theory is that, emboldened by successful civil suits against major multinational companies for complicity in (for example) torture and war crimes, and coupled with the prevailing spirit of the business and human rights movement as embodied by the Geneva Forum, future victims may find governments more willing to listen to their demands to prosecute unscrupulous (or even simply careless) businesses operating in conflict zones or unstable regions. Doing so would acknowledge the international community’s disapproval of irresponsible trading, whilst promoting ideas of sustainability and ethical commerce.

Just as environmentalism grew wings in the 1990s, the business and human rights movement is taking off in the second decade of the twenty-first century. With the aid of social media not previously available to the green campaigners 20 years ago, companies and business executives who fail in their obligations to respect the human rights of the people in the countries with whom they trade will face severe reputational damage, or in the worst cases imprisonment for complicity in human rights abuses.

I am researching these issues for a publication to be released next year entitled Corporate Criminal Responsibility for War Crimes and Other Violations of IHL: the Impact of the Business and Human Rights Movement. I would be very happy to hear your views.

On 16 November 2012 the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia reversed the convictions for war crimes and crimes against humanity previously entered by the Trial Chamber against the two most senior Croats accused by the tribunal. General Ante Gotovina and Assistant Minister of the Interior Mladen Markač were subsequently released and returned as free men to Croatia.

The acquittals not only prompted diametrically opposed reactions across the Balkans, they also bitterly divided legal opinion within the tribunal itself.

The acquittals were confirmed by a narrow three to two majority in the Appeals Chamber, with Judges Pocar and Agius issuing dissenting judgments laced with contempt for the reasoning of their three colleagues who overturned the original convictions entered by the Trial Chamber.

Ever since the tribunal began handing down its first judgments on the major belligerent ethnicities (simplistically speaking: Bosnian, Croat, Kosovar Albanian and Serb), reactions to the results have always been polarised along ethnic lines. It is nothing new for an acquittal of Croatian accused to be hailed in Zagreb whilst condemned in Belgrade.

The difference in the case of Gotovina and Markač is that the acquittals mean, as Tim Judah recently wrote, that no Croats from Croatia (as opposed to Croats from Bosnia-Hercegovina) have been convicted by the ICTY throughout its nineteen year existence. Judah neatly summarises that the judgment “vindicates [Croats’] belief that their generals are heroes and not war criminals; and … consolidates [Serbs’] deeply held belief that the tribunal is a kangaroo court, whose main aim was to vilify and convict Serbs.”

Within hours, the ‘losing’ side was delivering its familiar rhetoric: Serbia's President Tomislav Nikolic damned the judgment as ‘political’, adding that it ‘will open old wounds’. Other senior Serbian politicians protested that the ICTY had ‘lost all its credibility’ and was ‘proof of selective justice which is worse than any injustice.’ Vladimir Vukčević, Serbia’s Chief Prosecutor for War Crimes, called the decision ‘scandalous’.

Such comments were very similar in tone to the original reactions from Croatia’s leaders following Gotovina and Markač’s original convictions by the Trial Chamber in May 2011. This time around, the comments from Zagreb’s leaders were a little more measured, although the tens of thousands that welcomed the acquitted pair on their return were jubilant.

The acquittals will obviously not improve Belgrade’s opinion of ‘The Hague Tribunal’ – but that is to be expected. The political legacy of the ICTY within the Balkans was never going to be straightforward; the regional divisions are simply too deep and entrenched for even a lavishly funded judicial exercise to have had much impact alone, although it remains one of my personal bugbears that too much is expected of international tribunals. In the first instance, let the judges get on with the essentially retributive process of adjudicating the guilt or innocence of the accused, rather than burdening them with functions of capacity building, peace and reconciliation or reparations. Rather more important to the political situation is the continued international support for domestic initiatives, including local efforts to prosecute middle and lower ranking accused within the region (for example through initiatives such as the War Crimes Justice Project).

Notwithstanding Serbia’s predictable response to the acquittals, the more serious challenge to the legacy of the ICTY comes from the scathing dissent from the minority of the Appeals Chamber itself.

The legal dispute in the Appeals Chamber centred upon three main questions in relation to the Croatian military attacks in 1995 on four towns in the self-proclaimed Serb entity of Krajina within Croatia:

(1) What evidence is required to prove the existence of unlawful artillery attacks (in this case using allegedly imprecise missiles that failed the test of distinguishing civilian from military targets)?

(2) What evidence is required to prove the existence of a joint criminal enterprise (JCE) (which in this case was said to be the permanent removal of the Serb civilian population from Krajina by force or threat of force, including through persecution, murder and inhumane acts, plunder of property, wanton destruction and cruel treatment)?

(3) What power does the Appeals Chamber have to enter convictions under alternate modes of liability where it is overturning the Trial Chamber’s convictions under the principal charges?

There is a good deal of jurisprudence on each question, and none of them is especially novel – although I’ll leave it to others to expand on the legal principle. Rather, my focus is on the vehemence with which the minority so caustically disagreed with the majority.

It is relatively common for judges to disagree – usually on the interpretation of a point of legal principle. But it is unheard of for judges to so utterly damn their colleagues.

The tone adopted by Judges Pocar and Agius in their dissenting judgments to describe the reasoning of the majority is astonishing: ‘artificial and defective’, ‘confusing and extremely problematic’, ‘disturbing’, ‘extraordinary’, ‘completely unjustified’, ‘untenable’, ‘unwarranted and petty’, ‘wholly erroneous’, ‘negligent’ and ‘simply grotesque.’ Judge Pocar concluded with the vitriolic comment ‘I fundamentally dissent from the entire Appeal Judgment, which contradicts any sense of justice.’

In short, this was some dissent: unparalleled in the tribunal’s history, perhaps in modern international criminal jurisprudence.

For Gotovina and Markač their acquittal is final. On one view, a judgment is still a judgment whether carried unanimously or by a majority. In this case, the Pocar/Agius dissent was so vigorous as to strip the majority judgment of virtually all authority. And in such an important and sensitive case, the tenor of the dissent has called into serious question the credibility of the ICTY’s judges and their judicial competence.

If the majority’s judgment was not based on a correct reading of the law, there will be many critics of the tribunal who will demand to know precisely what it was based on, and will speculate upon all manner of conspiracies. Was it a political decision – something to do with Croatia’s membership of the EU, perhaps? Or was it another example of the tribunal’s ‘anti-Serb’ bias? Of course, there is clear jurisprudence establishing that judges presumptively discharge their functions competently and independently, in the absence of evidence to the contrary. Judges Pocar and Agius alleged ‘negligence’ rather than bad faith. But these distinctions may be too nice for some of the affected people in the Balkans, and it is a great pity that the dissent should come so close to the end of the ICTY’s mandate, and in such a high-profile case.

For the international criminal lawyer, it is perhaps more dispiriting to read Judge Pocar’s comments that the ‘paucity of [the majority’s] legal analysis…does not leave a good legacy in terms of respecting IHL [International Humanitarian Law] principles.’ 

The latest twist in the case of Omar Mahmoud Othman, otherwise known as Abu Qatada or simply by more emotive descriptions as ‘the radical / Islamist / extremist cleric,’ has angered not only consumers of tabloid newspapers but Prime Minister David Cameron. Judges (who in this country are properly independent from the executive) at the Special Immigration Appeals Commission Tribunal had the temerity to invoke human rights principles – in this case the fundamental right to a fair trial and the prohibition on torture – and to insist that the UK should hold firm to these principles, however unpalatable the person claiming their protection.

The Qatada case is yet another reason for some to demand that the Human Rights Act 1998 be abolished and the UK withdraw from the Council of Europe and the European Court of Human Rights. But why is it so difficult for ECHR critics to understand that in a country governed by (and priding itself upon) the rule of law, law must be equally applied to all? Perhaps it is precisely because we have an impartial, independent and competent judiciary that it is so difficult to truly empathise with those who live in country governed by power not law. Or maybe it is because defeated Nazi totalitarianism (to which the Charter of the United Nations, the Universal Declaration of Human Rights as well as the ECHR were drafted as a bulwark to future similar extremism) is such a distant memory.

Qatada’s case in the UK has been running for ten years. For the vast majority of that time he has been in detention in the UK, without either trial or charge – albeit awaiting deportation to Jordan for a re-trial on charges for which he has already been convicted and sentenced in his absence relating to serious terrorist activity.

The SIAC Tribunal decision of 12 November (available here), adjudicated three issues.

Firstly, that sufficient guarantees (in the form of diplomatic assurances from the Jordanian government to the UK) had been provided that Qatada himself would be protected against the risk of ill-treatment by or at the behest of Jordanian state agents.

Secondly, the Tribunal rejected the argument that in the event Qatada was acquitted after his re-trial there was a real risk that Jordan would invoke an old 1954 law to nevertheless secure his administrative detention in breach of his Article 5 ECHR right to liberty.

Thirdly, however, the Tribunal concluded that the Home Secretary had failed to satisfy them that in relation to Qatada’s Jordanian re-trial there was no real risk that statements from two alleged accomplices no longer subject to criminal proceedings might be used against him – the context being that there was a real risk these statements had been obtained using torture.

As a result, the SIAC Tribunal found that the Home Secretary should have exercised her discretion differently and should not have declined to revoke the deportation order.

The central aspect of this case relates to the UK’s treaty obligations – both under the European Convention on Human Rights and the United Nations Convention Against Torture. It would be a violation of the right to a fair trial under Article 6 of the ECHR for evidence obtained through torture to be used against Qatada. It would also be a violation of the prohibition on complicity in torture under Article 4 of the Torture Convention for the UK to deport Qatada to Jordan if a ‘real risk’ of torture exists there, including where there is a ‘real risk’ that third parties were tortured into making statements that would be used against Qatada.

Taking a step back for one moment and returning to fundamental principles, the necessity of a fair trial is almost too obvious to be re-stated: without due process, there can be no confidence in the criminal justice system. Without such confidence, we descend to the depths of a police state or to anarchy.

Similarly self-evident is the global prohibition on torture, to protect ‘the inherent dignity of the human person’ (in the words of the Torture Convention) against physical or mental abuse inflicted by or with the instigation, consent or acquiescence of an official. Deporting someone to a country where there is a real risk that torture will be used on or against the interests of someone would undermine the whole basis of this prohibition.

However unpleasant Qatada’s associations may be, however extremist (but not criminally so, otherwise presumably he would have been tried for this in the UK) his speeches, he is entitled to the same protections from British courts as anyone else. On what basis are we to conclude otherwise: that he is foreign? That his views are offensive to us? That he has been convicted in his absence for terrorist charges? And if we are to start making exceptions to our treaty obligations for Abu Qatada, who else might be next?

I have lived and worked in countries where power rules over law. I have personally witnessed an incident where a rich man co-opted the police to use brutality against a poor man, later to be misreported in a government-run newspaper. I have seen at first hand judges who are incompetent, clearly partial and certainly not independent. And I have read with my own eyes confessions extracted under torture that sent their unfortunate deponents to their deaths. I do not want to live in a country where any of this is a remote possibility, let alone a reality.

David Cameron declared himself ‘completely fed up’ at the ‘extremely frustrating’ fact that Qatada remains in the UK despite claiming to have ‘moved heaven and earth to try and comply with every single dot and comma with every single Convention’ in order to ‘get him out of our country.’ Many of Cameron’s backbenchers have been even more directly critical of the ECHR. For otherwise rational (presumably) and highly qualified professionals serving as Members of Parliament to fail to grasp one of the most fundamental principles in a democracy – that the law should be applied equally to all – suggests a third reason for the reaction to the Qatada case and others: populism. But it is irresponsible of politicians to fail to explain to the population the principles of why the rule of law matter and why the executive cannot order the judiciary to reach a particular judgment.

Claims for the Human Rights Act to be scrapped are dangerous, misguided and inimical to the principles of equality and the rule of law described in all the major human rights treaties. Politicians and commentators have an obligation to reiterate the critical importance of human rights protection within our country – particularly in the realm of criminal justice. It should never be considered a wasted breath to reiterate the paramount considerations of the right to a fair trial and the universal prohibition on torture. It is worth reminding people of the freedoms for which the Second World War were fought, and the perils of failing to scrupulously uphold the rule of law, regardless of the distaste widely held for Abu Qatada.

 

 

Last Saturday at the Royal York Hotel I presented a powerpoint on the topic of working at a United Nations war crimes tribunal, using Kosovo and Cambodia as examples, sharing the task with Judge Tim Clayson, Presiding Circuit Judge at Bolton Crown Court and former International Judge of the Supreme Court of Kosovo. Also on the bill were other judges and lawyers who had worked abroad in similar capacities.
The audience comprised about 50 barristers who practice on the North Eastern Circuit.
The powerpoint is available to view / download here, and a blog review of the day from a barrister who attended is available here. 

It seems to be the end of the road for victims seeking compensation in the Canadian courts for alleged war crimes committed in the Democratic Republic of Congo in October 2004.  But will the very fact that such a claim was even brought in the first place advance the cause of those seeking to enforce extra-territorial jurisdiction against trans-national corporations? And will companies be more cautious in future about working in zones of conflict and instability?

The victims, represented by the Association Canadienne Contre l’Impunité (ACCI), were applying for leave to appeal a decision of the Canadian Court of Appeal, which had ruled that they could not sue Anvil Mining, a Canadian-Australian company, in the Canadian Courts. On 1 November 2012, the Supreme Court in Ottawa dismissed the victims’ application.

These rulings dealt purely with the question of whether Canada was an appropriate forum to hear the case for damages against Anvil. At no stage were the facts of the 2004 incidents litigated before the Canadian courts.

Anvil had operated a silver and copper mine 50km from the Congolese town of Kilwa. They are alleged to have been complicit in atrocities said to have been committed by the Congolese Armed Forces (FARDC) in October 2004.

ACCI’s case is that FARDC soldiers committed murder, torture, rape and looting in the operation to re-take Kilwa, which had been temporarily occupied be a small group of rebel soldiers. According to a UN report, more than 70 people were murdered in the FARDC attack. ACCI allege that Anvil provided logistical support to the FARDC in the form of vehicles, company drivers, flights, food and money.

After sustained international pressure, in October 2006 a Congolese military prosecutor investigated the allegations. Nine FARDC personnel and three of Anvil Mining’s employees were indicted on charges of commission of and complicity in war crimes respectively. After a stop-start trial before a military tribunal, the verdict announced in June 2007 ruled that no war crimes had been committed in Kilwa. All accused were acquitted of the October 2004 attack, although there were two convictions for murder relating to an incident in January 2005. The victims’ claims, as parties civiles, were all rejected, the tribunal holding that any deaths had in effect been the result of legitimate military action against a rebel uprising, even though the evidence overwhelmingly pointed to the commission of serious crimes by the FARDC.

On appeal to the superior military tribunal, the only change to the original verdict was to reduce the sentence on the two soldiers convicted for the January 2005 murders from life to five years. The appeals from the 144 victims were rejected summarily.

Both the trial and appeal process were roundly criticised as unfair, subject to political interference and biased. The United Nations High Commissioner for Human Rights expressed grave misgivings about the whole legal process.

Unable to secure justice within their own country, the victims of the Kilwa massacre attempted to pursue their claim for compensation in Australia, where Anvil Mining was registered. A class action was launched in 2007, but from the outset there were real difficulties in gathering information from victims within the DRC. It is alleged that victims received death threats from the authorities. The case collapsed when the Australian lawyers representing the victims withdrew and no replacement could be found.

In parallel, the Australian Federal Police conducted an investigation into whether Anvil Mining was criminally complicit for the crimes committed by the FARDC. However, the investigation was dropped and no charges were ever brought.

The only remaining option for the victims appeared to be to bring a case in Canada, where Anvil had offices. ACCI scored a notable victory when at first instance it won the right to bring the class action against Anvil Mining. Sitting in the Superior Court of Québec, Judge Benoît Emery decided that the case was properly brought in Montréal. But the optimism was short-lived, the Court of Appeal overturning Emery’s judgment and holding that the victims had not proved that Québec was a suitable forum for their case.

The Court of Appeal’s reasoning does not establish any general principle against extra-territorial jurisdiction, and does not close the door to future class actions brought by victims of war crimes in appropriate cases. The reason the Congolese victims’ claim failed against Anvil was because it could not be proved that there was a ‘real and substantial link’ between the events in the DRC in October 2004 and Anvil’s satellite office in Montréal – which incidentally did not open until June 2005. Anvil’s office in Montréal consisted of only two people: one who maintained links with shareholders and investors, and a part-time secretary. At no point did the Court of Appeal consider that the Montréal office had anything to do with the management of the mine in the DRC, and there was no direct or indirect connection between what happened in Kilwa and Montréal.

The second issue raised before the Court of Appeal was whether, even if Québec did not have jurisdiction, it could exceptionally assume jurisdiction based on the ‘demonstrated impossibility of obtaining access to a tribunal abroad in a case that has a sufficient connection to Quebec.’ Such impossibility appears to refer to procedural rather than evidential impossibility.

The Court of Appeal held that the ACCI had failed to prove why it was impossible to institute proceedings in the DRC and Australia. Somewhat unconvincingly, the Court of Appeal reasoned that the ACCI’s reliance on the reports of international organisations (including the United Nations) was insufficient to prove that the victims could not have obtained access to the Congolese Supreme Military Tribunal. However, the Court of Appeal held that the ACCI had also failed to show that the situation that existed in Australia regarding lack of collaboration with DRC authorities would be any different were the claim to be brought in Québec. In any event, the ACCI had failed to establish that the case had a sufficient connection to Québec.

Although of no consolation to the victims of the Kilwa massacre, the court’s examination of this case showed how lawyers advising claimants might prepare their cases differently in the future.

Firstly, consolidate victims’ claims: coordinated group action is more powerful than disparate multiple claimants. The Congolese victims were doubtless only able to carry their fight for so long because of the support of the ACCI and the coordinated legal and media strategy.

Secondly, establish that all possible judicial remedies in the country of commission have been exhausted, even if the political situation in the country means that such efforts would be futile – unless of course there is credible evidence of serious threats to the claimants were they to pursue their legal rights.

Thirdly, ensure that every aspect of the domestic case has been documented, and where possible any allegations of bias or political interference are independently verified. United Nations reports, and those by other respected organisations such as Amnesty or Human Rights Watch, should be sought.     

Fourthly, choose the most suitable foreign jurisdiction. Realistically, courts will not entertain actions where there is nothing more than a post box office: the aim is to establish how the foreign enterprise could have had knowledge and control over the criminal events complained of.

The media coverage generated by this case, and others like it, is also bound to have an impact upon how companies do business. Established companies are unwilling to expose themselves to unnecessary reputational risk: and being implicated in such serious human rights abuses as happened in Kilwa would be a public relations disaster for any organisation.

The more frequently these cases are reported, the more likely companies’ CSR departments will take their human rights due diligence obligations seriously. There are still enormous opportunities for business in the developing world, even in regions of conflict and insecurity, but there is a growing realisation that cases such as the Kilwa massacre will not be swept under the carpet. The claimants are getting closer

A recent article in the Huffington Post written by local North West MP Lisa Nandy has highlighted UK policy inconsistency in the area of business and human rights.

On 17 October 2012, the Foreign Affairs Committee published its Third Report, focusing on the FCO’s human rights work in 2011. During the course of gathering evidence for the report, the Committee received written evidence from Amnesty International dated 15 May 2012. Amnesty strongly criticised the British government for co-authoring, with the Dutch government, an amicus brief supporting the position taken by Shell in defence of the claim brought by Esther Kiobel and eleven other plaintiffs for complicity in alleged human rights abuses.

To recap, the Kiobel litigation concerns events during the 1990s when it is alleged that the Niger Delta protests of the Ogoni people concerning the activities of Shell were brutally repressed by the Nigerian government. The allegations include incidents of torture, execution without due process, destruction of property and forced movement of thousands of people. It is alleged that Shell conspired with the Nigerian military forces conducting the repression, providing arms, finance and logistics.

Esther Kiobel and her co-claimants have brought a civil suit in the USA under the Alien Tort Statute. The claimants argue that the ATS gives US courts the jurisdiction to hear claims for violations of universally recognised human rights norms against perpetrators found within the USA.

Shell, supported by the UK and Dutch government through their amicus briefs, have rejected the claims by, inter alia, arguing that the ATS does not make the US courts a suitable forum to hear the case. In particular, it is argued that international law does not impose direct liability on corporations. Rather, international obligations only fall upon States and (in the case of international criminal law) on individuals.

The defendants, and the British and Dutch governments, counter claimant arguments further by stating that instruments such as the UN Guiding Principles on Business and Human Rights are just that: non-binding guidelines which do not reflect the state of customary international law. In essence, the defendants (and their British and Dutch amici curiae) are arguing against expanding the notion of extra-territorial jurisdiction, even for such heinous acts as allegedly committed in the Niger Delta.

The Foreign Affairs Committee welcomed the FCO’s intention to develop a Business and Human Rights Strategy but stated that the Government was not doing enough ‘to meet the spirit of the UN Guiding Principles’ – particularly regarding the responsibility upon states to take "appropriate steps to prevent, investigate, punish and redress abuse through effective policies, legislation, regulations and adjudication". The Committee also referred to a 1996 Home Office report discussing criteria for permitting extra-territorial jurisdiction, one of which was, "Where it appears to be in the interest of the standing and reputation of the UK in the international community".  So, the ‘appropriate steps’ envisaged by the UN’s Guiding Principles would surely include extending extra-territorial jurisdiction in cases alleging torts and crimes against businesses that in effect amount to international crimes.

Beyond this obvious policy disconnect highlighted by Lisa Nandy in her article, the pertinent phrase that leaps out of the 1996 Home Office Steering Committee review is whether it would be in the interest of the standing and reputation of the UK in the international community.

Is it not manifestly in the interests of the UK’s overseas reputation to be seen to be at the vanguard of the fight against serious human rights abuses, rather than adopting an obstructionist approach to attempts to hold transnational corporations accountable?

Is it also not manifestly in the interests of the UK’s overseas standing to ensure it complies with obligations under (for example) Article 13 of the European Convention on Human Rights and Fundamental Freedoms to provide an effective remedy for such a serious violation as torture?

In the absence of agreement on the precise scope of corporate obligations under customary international law, a specific Act of Parliament to extend extra-territorial civil and criminal liability to companies committing or being complicit in the commission of limited, specific serious human rights violations would provide proof that the UK is serious in its commitment to taking ‘appropriate steps to prevent, investigate, punish and redress abuse’ as required by the UN Guiding Principles.

Sadly, the opinions expressed in the Kiobel amicus brief would suggest that this is far from likely.