News came from Phnom Penh this morning that the hybrid Cambodian-UN tribunal had convicted the two most senior surviving officials of the Khmer Rouge regime of crimes against humanity.* The ECCC Trial Chamber judges handed down sentences of life imprisonment to both Nuon Chea, Pol Pot’s Brother Number Two and the Deputy Secretary of the Communist Party of Kampuchea, and Khieu Samphan, former President of the state of Democratic Kampuchea.

These convictions are the ECCC’s first since Case 001 in July 2010 against Kaing Guek Eav, or Comrade Duch, whose role as the chief of the Khmer Rouge regime’s principal security centre was examined by the Trial Chamber. Duch too was eventually sentenced to life imprisonment for his part in the torture and murder of more than 12,000 victims deemed enemies of the revolution.

The trial of Nuon Chea and Khieu Samphan, Case 002/01, lasted 222 days, during which the court heard testimonies from nearly one hundred individuals, including witnesses, Civil Parties and experts.

Yet this so-called ‘mini’ trial represented only a small fraction of the initial investigation, evidence and charges against the ‘senior leaders and others most responsible’ for the crimes of the regime.  In September 2011, the ECCC’s Trial Chamber decided to sever the global case against the surviving senior leaders into a series of smaller trials. Today’s verdict only focuses on the specific allegations examined in Case 002/01, namely crimes against humanity related to the forced movement of the population from Phnom Penh and other regions, and execution of Khmer Republic soldiers immediately after the Khmer Rouge takeover in 1975.

Case 002/02 will be heard in a second trial for Nuon Chea and Khieu Samphan, scheduled to commence in the coming months. This subsequent case represents the central core of the allegations historically levelled at the Khmer Rouge leadership: genocide of Cham Muslims and the Vietnamese; appalling treatment of Buddhists; nationwide forced marriages and rape; internal purges and political persecution of enemies; the network of torture and execution centres; and the worksites in which civilians were enslaved and worked to death.

Whether Nuon Chea and Khieu Samphan will survive long enough to hear the evidence and participate in Case 002/02, let alone to allow the Trial Chamber to deliberate and pronounce their second verdict, is highly questionable. Yet the 88- and 83-year-old accused have at least lived long enough to hear the judgment of an internationalised criminal tribunal: that their actions as leaders of a sovereign nation against their own population were beyond reasonable doubt criminal, based on the testimony of Cambodian victims and witnesses and international experts alike.

The initial reactions in online comments to the verdict from Western Media sources rehearsed the already well-worn criticisms of excessive delay, unconscionable expense and ultimate futility of prosecuting octogenarians to be sentenced to derisory punishment.

I’ve been familiar with these arguments against historic prosecutions ever since I began my career as an international criminal lawyer, and they’re not easy to respond to. 35 years after the Khmer Rouge were driven from Phnom Penh, saying that these convictions represent a ‘symbolic victory for accountability’ and are another ‘important milestone in the development of international criminal justice’ (as I think I might have said in the past) are well and good as a rational lawyer’s response, but those most affected by what happened are often far better placed to comment on the (f)utility of the trial process for Cambodia and what it means for their everyday life and identity as Cambodians.

I returned to Phnom Penh in March this year for the first time in nearly four years, this time around working with a transitional justice project for Queens University Belfast. In the years since I left the Office of the Co-Prosecutors and the Duch trial, I admit I became increasingly disappointed with the slow pace of justice at the ECCC, and disillusioned by the persistent and corrosive allegations of corruption and political interference, not to mention the corresponding impunity with which the current Cambodian government continued to treat their citizens.

Not by nature a cynic, I returned to Cambodia in 2014 nevertheless in a much more muted frame of mind on the usefulness and relevance of the ECCC. But after a week of observing several dozen interviews with Khmer Rouge survivors, Cambodian lawyers, ECCC personnel and civil society, and discussing the issues with QUB’s transitional justice experts Kieran McEvoy and Louise Mallinder, I was left feeling more at ease with the complexity of international criminal justice. I was also left more affected by the differing emotions of ordinary Cambodians. I had of course known that some victims were relieved to have their suffering acknowledged in public, that others felt deeply let down by the court’s failure to prosecute more people or to hold the government to account, and even some who were indifferent to the entire process. But to hear that expressed, face to face, left a lasting impression.

We have a tendency to seek simple explanations of large-scale human suffering. How else to comprehend the motivation, scale and impact of widespread and systematic criminality without making generalisations? Certainly, the black-letter law constrains those operating in the courtroom to fixed theories proved or otherwise by a preponderance of evidence. The politics of international criminal justice is itself prone to reductionism: the supporters and detractors of selective and often delayed-by-a-generation prosecution of ‘those most responsible’ for international crimes seldom admit any merit in the arguments of their opponents.

Having revisited Cambodia and considered these issues with the perspective of time and distance, I’m inclined more than ever to think that prosecutions for international crimes are inevitably messy and inconveniently incapable of being reduced to a simple ‘yes, they’re a good thing’ or ‘no, they’re a waste of time.’ Having been a prosecutor I am naturally supportive of the process of international criminal justice, but I now feel the need to temper this binary appreciation with what I see is the multiple complex realities for victims who continue to live in the affected society.

Youk Chhang, director of the Documentation Center of Cambodia, recently referred to the difference between what he called legal justification and human instinct. The former relates to being not guilty until proven otherwise, the black letter law. The latter, so much in evidence in the reactions of the survivors, is something undoubtedly part of how the world should view prosecutions of international crimes. To put it differently, the formal legal conviction of Nuon Chea and Khieu Samphan is just one (albeit extremely important) aspect of the post-Khmer Rouge environment. Transitional justice also requires the sense that the people have been able to tell their stories, whether they support the process or not.

For any transition to truly occur however, the people have to feel that the country is not only capable of moving on from the events, but that it has taken steps towards a fairer and more just society in which the crimes are less likely to re-occur. Although it would be a real disappointment to many if Nuon Chea and Khieu Samphan do not live to hear the evidence in Case 002/02 and any subsequent judgment on whether genocide and systematic persecution is legally proven, it is a far greater loss if Cambodians in 2014 do not feel confident that their country has made significant progress towards tolerance, equality of opportunity and the enjoyment of basic human rights.

As one of the original team of prosecutors who had helped to investigate the crimes and draft the initial request for the Co-Investigating judges to open the case back in 2007, it is some satisfaction to hear that the tribunal has been able to reach a verdict on two of the senior leaders of the Khmer Rouge. However, after my March 2014 visit to Phnom Penh in the wake of the violent government crackdown on opposition protesters and striking garment workers, and speaking to prominent (and peaceful) civil society representatives, I was left with the distinct impression there can be no confidence at all in the current Cambodian administration’s ability to act with fairness and equality towards its citizens.

Trial Chamber President Nil Nonn in his remarks to the court today said the Khmer Rouge regime left people living in “a state of terror…unwilling to question orders.” The current Cambodian administration, under the premiership of ex-Khmer Rouge cadre Hun Sen, portrays itself as a modern democracy with a vibrant economy. State of terror it may not be, but there are many thousands of Cambodians who live in a state of fear, particularly those who question the orders of the rich and the powerful or who seek to pursue legitimate political opposition.

The symbolism of Nuon Chea and Khieu Samphan’s convictions is not just confined to international criminal justice: there is a resonance with the current dire state of human rights in modern-day Cambodia.

*For more details of today’s verdict, see http://www.eccc.gov.kh/en/articles/nuon-chea-and-khieu-samphan-sentenced-life-imprisonment-crimes-against-humanity

Some years ago, whilst working as a prosecutor at the Extraordinary Chambers in the Courts of Cambodia, I appeared on a Cambodian radio phone-in programme to take questions from listeners about the court. One particular caller sticks in my mind. I was asked what would happen if a convicted accused died in custody before serving his sentence. Could the bones of the deceased be kept in chains in the prison, only to be released to his relatives at the end of the expiry of the jail term?

At that time, I had already lived in Phnom Penh for over eighteen months. I was well aware of the significance in Cambodian Buddhist culture of a proper funeral. The body would be brought back to the family home, where monks would offer prayers for the first few hours after sunrise each day for several days. Subsequent ceremonies were spread over several weeks and months. A failure to observe these rituals would be unthinkable, as it would not only bring shame on the surviving family but would not augur well for the deceased in the next life.

The caller’s point was obvious. Those convicted of Khmer Rouge era atrocities that died before condign punishment had been served should forfeit the right to a proper and timely burial.

Ieng Sary, former Foreign Minister and member of the Standing Committee of the Communist Party of Kampuchea in Democratic Kampuchea from 1975-1979 (better known as the Khmer Rouge regime) died aged 87 on 14 March 2013. He was a little over eighteen months into his public trial at the ECCC, where he was facing charges of genocide, crimes against humanity and war crimes.

Case 002, as it is known, is the centrepiece of the ECCC’s work: the largest trial against the most senior remaining figures of the Khmer Rouge. The trouble is, with Ieng Sary now dead and his wife Ieng Thirith last year having been adjudged mentally unfit to stand trial through dementia, the only surviving defendants in the dock are Nuon Chea, former Deputy Secretary of the CPK, and Khieu Samphan, former DK Head of State. Aged 86 and 82 respectively, their own grip on mortality is tenuous.

Yesterday, at a press conference, the Co-Prosecutors offered the consolation that they believed the end of the trial was only four months away. International Deputy Co-Prosecutor Bill Smith rejected a suggestion that the OCP had overreached itself when submitting the accused should be indicted for more charges than was safe given their age. Smith conceded that it was always a gamble when prosecuting accused of this age that they would die before the process had run its course. Nevertheless, limiting the trial to a single crime site to achieve a quick trial would he said have been unlikely to have satisfied the public. So far so good.

I was not convinced by his follow-up argument, however (apologies if you’re reading this, Bill…). To paraphrase the Deputy Co-Prosecutor’s words, whether we reach the end before an accused dies in some cases may be less important than the fact of holding of a proper process adjudicating allegations against them. Reading through the comments on the website of the Documentation Centre of Cambodia (The People’s Reactions on Ieng Sary’s Death) it’s unlikely that many Cambodians share Smith’s view. ‘It is an insult to justice that Ieng Sary died while the trials are still ongoing. Due to its lack of independence the ECCC is extremely slow and reluctant try more individuals’ said one – these comments were entirely typical.

Less plausibly still however, Smith also made the point that people should focus on the ECCC’s legacy, or as he put it, on the fact that the court process marked the end of impunity in Cambodia for people in power who commit crimes against the people: no matter how old you are, you’re never too old to face justice. Unfortunately, the most relevant (and unpleasant) fact relating to impunity today is that powerful and influential people accused of crimes still buy off the judges to escape justice. The (non) functioning of Cambodia’s modern-day justice system makes a mockery of the claim that the ECCC has brought the end of impunity for the powerful.

The limited ‘end of impunity’ we all believed in (to a greater or lesser extent) when we started work at the ECCC in 2006 related to the belief that ‘some justice is better than none’ for the victims of the Khmer Rouge. Yet as the years have gone by, the inherent weaknesses of the hybrid system have been exposed and the Government’s obstructions to further investigations have prevailed. Not only does it seem that the expensive international experiment is failing as an exemplar to domestic courts for modern-day crimes, even the narrow sense of a symbolic victory over impunity for DK crimes is fading as fast as the life in the remaining defendants.

The failure to bring the accused to justice before their demise cannot of course be laid wholly (or even mostly) at the door of the ECCC. As Bill Smith reminded everyone yesterday, the suspects (as they then were) were delivered to the custody of the hybrid tribunal at an already advanced age and state of considerable ill health. The failures of diplomacy in the 1990s and early 2000s to expedite the creation of the court are partly to blame for this. As are the failures of Cold War politics in the 1980s (and, arguably, the underdeveloped state of international criminal law at the time), when the West’s antipathy towards the Vietnamese-backed post-Khmer Rouge government in Phnom Penh prevented any attempt to seek the arrest and trial of the main suspects when they were in middle age and of sound health.

On 19, August 1979 the Vietnamese PRK Revolutionary Tribunal convicted Ieng Sary in his absence of genocide and sentenced him to death. The trial bore none of the recognised hallmarks of due process and is widely recognised as a sham. It is a great pity – but no great surprise – that history will record this to be the only completed judicial process against him.

Brad Adam of Human Rights Watch has recently argued that there are real questions about the purpose of continuing international UN involvement and donor support for the ECCC. To use Ieng Sary’s death as a reason for the UN to pull out now would add gross insult to grave injury – but the damage to the process was already done in the decades after the Khmer Rouge were driven from power. The shame is that no one acted to bring justice to Cambodia sooner.

With every fresh setback the ECCC faces, the best that one can hope for is that the lessons learned from the entire project do not go unnoticed, and the compound failings over three decades are not re-made in the future of international criminal law.

Yesterday, the Documentation Centre of Cambodia’s website published photographs of the family house and the freshly-swept yard surrounded by frangipani trees to where Ieng Sary’s mortal remains were to be brought. His bones would be unchained at his own funeral. As one DC-Cam interviewee put it, ‘Ieng Sary's death is a loss for the Khmer Rouge tribunal since they were not able to deliver a final judgment on him. His death will be buried alongside the justice that people have waited so long for.’  However extreme such a reaction may sound, the sentiment is a wholly understandable one.

A Law Society event on a cold and wet Thursday evening drew an impressive 200 people to a public debate on how lawyers should be advising their clients on the United Nations Guiding Principles on Business and Human Rights – and how the UNGPs might affect law firms as businesses in their own right. The large turnout was testament to the importance with which the audience viewed the subject matter. Billed under the banner ‘Responsible business for lawyers: balancing the client duty and the UN Guiding Principles on Business and Human Rights,’ the five speakers set about the topic with sometimes contrasting viewpoints.

Moderating the debate was Des Hudson, Chief Executive of the Law Society, who got proceedings underway by suggesting that although the UNGPs did not create any hard legal obligations, they clearly demonstrate how the debate of the corporate impact on human rights is as he put it ‘hotting up.’ Hudson was unequivocal: lawyers will need to know and show that they are aware of the UNGPs when they advise their clients. He added that lawyers play a crucial role in how clients manage their activities, a theme repeated by all the speakers later in the debate.

Anna Triponel, from Professor Ruggie’s organization SHIFT, was the first speaker. She gave a very brief overview of how the UNGPs had come into being, describing the culmination of 6 years of multi-stakeholder consultations as ‘a momentous achievement.’ Triponel explained how the fundamental purpose of the UNGPs was to operationalise what it means in practice for a company to respect human rights. Many major institutions had already bought into the substance of Professor Ruggie’s work – for example, the OECD’s Guidelines for Multinational Enterprises now mirror the wording of the UNGPs insofar as they relate to human rights. Triponel also described how corporate lawyers from 39 jurisdictions (working on a pro bono basis) had been instrumental in helping Ruggie’s team assemble the text of the UNGPs. In noting that lawyers are the first people to whom companies turn when faced with human rights issues, she reminded the audience that law firms are business enterprises in their own right and have discrete human rights responsibilities under the UNGPs.

This theme was developed by the next speaker, Anthony Crockett from Clifford Chance. He made the point that many solicitors’ firms are also MNEs, advising on international business deals the effect of which may potentially impact the human rights of others. To that end, he advised that large firms should assess the areas where their activities may lead to adverse human rights consequences, and ensure processes are in place to avoid, mitigate or remedy these. In terms of what practical steps law firms should take to implement the UNGPs themselves, Crockett stressed the need for individual lawyers to be aware of their content and to advise their clients accordingly. He raised the sobering point that it was entirely possible that a failure to advise clients on the UNGPs could amount to professional negligence.

Nevertheless, he highlighted client confidentiality as a major challenge for developing understanding of the UNGPs. He felt that there would be limited opportunities to share case studies relating to the steps taken to discharge human rights obligations.

Chris Esdaile of human rights claimant specialist solicitors Leigh Day sought to identify how the UNGPs fit into the existing civil and criminal legal framework. In the most basic sense, they clearly require respect for human rights. In practice this could mean five things for lawyers: (1) Refusing to take on new clients if it was suspected that they violated human rights; (2) Considering carefully the nature of advice to give to clients, particularly if the client’s suggested policies were inconsistent with the law firm’s own human rights policy; (3) Terminating the relationship with the client where it was clear that the client company was violating human rights; (4) Questioning their client’s strategy in (for example) pursuing litigation if this conflicted with the philosophy of the UNGPs; and (5) Assisting in the development of accountability mechanisms under Pillar 3 of the Protect-Respect-Remedy framework. Esdaile ended his presentation by reminding the audience that whilst the international system is relatively young, the business and human rights movement is even younger. His hope was that the UNGPs are a step towards creating binding legal obligations for businesses, and to expand the web of accountability mechanisms for victims. He ended by echoing Christian Aid’s position on bringing to justice the authors of human rights violations: that this should not be left to voluntary mechanisms. The UNGPs are after all more of an encouragement and not an obligation for businesses to respect human rights.

The final speaker was Francis Neate, retired senior solicitor (Slaughter & May) and former President of the International Bar Association. Addressing the point that the UNGPs did not currently have the force of law, he remarked that best practices tended to become law, or at least to affect law, over time. In practice, he did not see any problem for a solicitor to advise his client to comply with the UNGPs: it has always been part of a solicitor’s job to give his client guidance on both legal and non-legal obligations, as the way a company conducts their business has a public relations impact.

In contrast to Chris Esdaile, Neate was rather more sceptical of the suggestion that all law firms would refuse to act for client companies that might be suspected of involvement in adverse human rights impacts. As he put it, ‘everyone wants to act for Shell!’ However, he recognised that public opinion would exert real pressure on companies to comply with the UNGPs, and concluded by remarking on how advice on the Ruggie guidelines clearly represented a new business opportunity for lawyers.

As this was an educated audience, the questions from the floor were informed and relevant: how to incentivise compliance with UNGPs? - should lawyers’ professional organisations set the moral compass regarding the duty to respect the UNGPs? - could a human rights accreditation programme be created so that businesses will be able to demonstrate they have achieved a benchmark standard for UNGPs compliance?

The debate and questions demonstrate that there are challenging issues of practical implementation ahead if the UNGPs are to progress beyond theoretical discussion. However, this well-attended Law Society event demonstrated that John Ruggie’s message is being understood by a wide and well-informed audience. And perhaps that Neate’s suggestion that there are business opportunities for lawyers seeking to advise their clients on how to comply with the UNGPs.

Apologies for the delay in posting - I've been writing a book chapter on the impact of the business and human rights movement on the prosecution of companies for complicity in international crimes. More of that later. But here are my latest thoughts from the world of business and human rights...

A few weeks ago, Human Rights Watch published a piece entitled “Without Rules: A Failed Approach to Corporate Accountability.” The central premise was that initiatives such as Professor John Ruggie’s United Nations Council-endorsed Guiding Principles on Business and Human Rights were ‘woefully inadequate’ as an effort to hold the corporate world accountable for its adverse impact on human rights. Worse still, HRW claimed that the Guiding Principles ‘may actually help entrench a dominant paradigm among companies and many governments, which derides the rules and regulations that companies need in favor of voluntary and largely unenforceable commitments.’ It was argued that instead of such non-binding initiatives, cold hard law was needed from the governments of the world; there was perhaps also the subtext that an overarching international body should be created to which all States and all companies would be subject.

Understandably piqued by such trenchant criticism, Professor Ruggie defended the Guiding Principles in an article published on the Institute for Business and Human Rights’ website, “Progress In Corporate Accountability.” Not pulling any punches, he waspishly retorted that the HRW article ‘risks turning the clock back rather than moving us forward.’ Recalling the size of the challenges he faced throughout his 6 year mandate as UN Special Representative on the question of business and human rights, and alluding to the need to build consensus gradually with States as well as business interests, Ruggie enumerated the major developments since June 2011, the date the UNGPs were approved by the Human Rights Council. These included:

-       Publication of the OECD Guidelines for Multinational Enterprises, containing a human rights chapter drawn from the Guiding Principles, and which also provide for national complaints mechanisms in the forty-two adhering states concerning the conduct of multinationals operating in or from those states.

-       Publication of the OECD Common Approaches for Export Credit Agencies, which affect access to capital at the national level.

-       Publication of the new International Finance Corporation Sustainability Principles and Performance Standards, which affect access to international capital. These standards are tracked by more than 80 of the private sector lending institutions.

-       Publication of ISO26000 Guidance on Social Responsibility, providing ‘harmonised, globally relevant guidance for private and public sector organisations’ to ‘encourage implementation of best practice in social responsibility worldwide.’

-       A request from the European Commission to member states to submit plans for implementing the Guiding Principles.

-       Incorporation of the UNGP’s concept of human rights due diligence into Section 1502 of the United States Dodd-Frank Act in relation to conflict minerals procured in the Democratic Republic of Congo.

-       Clear reference to the UNGPs by the U.S. government as the benchmark reporting requirement for entities investing more than $500,000 in the newly-opened-for-business Myanmar.

-       Encouraging initiatives from ASEAN and the African Union to align business and human rights programmes with the Guiding Principles.

As Professor Ruggie also pointed out, the number of companies developing human rights policies, due diligence procedures and grievance mechanisms is rising significantly. The UNGPs are gaining credibility as well as endorsements from a host of different sources including the American Bar Association and they have even been referred to by the US Supreme Court in the Kiobel litigation.

So, who has won this round of the debate? In one sense, it is of course an unanswerable point for HRW to argue that an absence of binding legal regulations, rigorously enforced by eager governments, results in errant companies enjoying impunity for human rights abuses committed today. Without question, a strict universal regime to hold corporations to account by imposing huge fines, revoking trading licences or even imprisoning senior management for criminal complicity in human rights abuses would have a dramatic impact and would remove at a stroke many of the ills referred to by HRW.

Such a universal regime is, for the moment, nothing but wishful thinking. It has been hard enough for the international community to negotiate a permanent international criminal court to bring to justice those accused of the worst crimes known to humanity – and even now, there are many powerful nations who continue to abstain, pleading national sovereignty, neo-colonialism or other such outdated arguments. Whilst clearly a work in progress, the efforts of the Coalition for the ICC ensure that the number of States signing up to the Rome Statute is steadily increasing. Similarly, the UNGPs are slowly but surely creating a coalescing coalition of States, businesses, multi-stakeholder bodies and indigenous groups who are all working towards the goal of universal acceptance of corporate human rights responsibility.

The Guiding Principles are more than the first step on the road to greater accountability. But for their existence, it is almost certain that the OECD Guidelines, the IFC Standards, ISO26000 and section 1502 of the Dodd-Frank Act (amongst others) would simply not have existed.

So, whilst at this stage the name of the game should be more than just raising awareness of business and human rights, HRW are a little premature in damning the entire movement as ‘woeful.’ Securing agreement on these issues is an iterative, incremental process – as in many areas of human rights – and the NGO community would be well advised to remember this.

One thousand delegates from 80 countries is an impressive statistic for any conference, let alone for such an ambitious undertaking as the inaugural Forum on Business and Human Rights, held in Geneva this week. Fêted by organisers the United Nations Human Rights Council as ‘the largest global dialogue on the impact of businesses on human rights’, the central purpose was to discuss the Guiding Principles on Business and Human Rights, considering the obligatorily-phrased ‘challenges and opportunities’ facing those who would seek to implement them.

Although it was often difficult to see coherence amongst the disparate representatives from governments, businesses, labour movements, NGOs, indigenous groups, academics and others, there was at times a palpable sense of the business and human rights movement generating its own momentum – with the hope (if not yet expectation) of becoming a vehicle for good in the post-globalisation corporate world. However, a degree of evangelism was perhaps to be expected amongst speakers and an audience already largely converted to the cause.

When the dust has settled and the congratulatory tweets have subsided, the hard realities will begin to sink in. It will be a monumental challenge to change not just the attitude but the practice of states and businesses: requiring them to place the rights of others at the forefront of their otherwise predominantly political or profit-based impulses is, to paraphrase the unintended pun of a large oil boss at the conference, like turning a supertanker. Yet some would say that even this description might be exaggerating the chances of success – large container ships do at least have a steering mechanism that permits them to divert from their course, and a captain with the will to chart a new course. Many states and companies do not yet have the mechanism or the inclination to change.

To remind ourselves, the Guiding Principles comprise three central premises, or ‘pillars’: firstly, they call upon states to protect against human rights abuses within their territory and/or jurisdiction, including those committed by business enterprises; secondly, they urge companies to respect human rights by avoiding violations as well as addressing adverse impacts when they occur; and finally they require states to provide an effective remedy when human rights abuses occur on their territory and/or jurisdiction. Noble aims and exhortations, but it is equally important to remember that the Guiding Principles do not yet have any binding legal status. For now, they are at the level of voluntary guidelines, with states and businesses free to choose whether to apply or to ignore them.

How well then did the Forum achieve its principal aim of constructively discussing the implementation of the Guiding Principles, and were there any other beneficial outcomes?

As often happens at conferences of this kind, the Forum functioned on two levels: on the one hand, the official presentations and debates in the grand assembly hall and side rooms; on the other, the corridor and coffee room opportunities to meet and to exchange business cards, ideas and impressions. In both cases there was equal scope for being clear, reasonable and informed, as there was for getting bogged down in development-speak, platitudes and unfocused point scoring. Much like the United Nations as a whole (or any large gathering), it was possible for delegates to get everything or nothing from their participation.

Chief architect of the Guiding Principles and Chair of the Forum was Harvard Professor John Ruggie. The highly credible and persuasive champion of the business and human rights movement, his belief in the imperative need to embed the notion of greater business accountability rang true. He struck the right opening tone by reflecting on the unprecedented opportunity the Guiding Principles presented whilst acknowledging that the work had only just begun. The time for talk was over, he said. The time to build on the foundations had begun, and the politically endorsed platform the Guiding Principles represent should be taken as a new ‘constitution’ for the business and human rights movement.

Fine rhetoric indeed, yet the longest applause in the opening session came from a panellist who began her presentation with a roll call of some of the victims of corporate abuses, killed or imprisoned in violation of their human rights. There were sporadic efforts throughout the Forum to remind us all that the motive force for the gathering was to reduce real adverse effects on real people. Or, as one speaker from the Council of Global Unions put it, to implore businesses to constantly ask, ‘what are we doing and how does this impact on others?’ Every movement needs a cause, a rallying call, and this was it.

During an often-bewildering series of overlapping and simultaneous sessions, it would be difficult to catalogue every issue discussed. The following are a few highlights as I saw them, although not in any particular order.

When things go badly awry and violations are perpetrated, what are the consequences for offending corporations? Many speakers called for the Guiding Principles to be reinforced by the threat of serious and effective criminal sanctions. However, despite the now-solid definitions at the international level of crimes against humanity, war crimes, genocide and torture, it is an unfortunate reality that there is not as yet any international criminal mechanism to address egregious corporate human rights violations.

One solution would be for the International Criminal Court to extend its jurisdiction to include companies as legal entities. Currently restricted to ‘natural persons’ (ie, human beings), the ICC would seem to be the obvious forum for offending corporations to be prosecuted where the host states were unable or unwilling to try them. Would the Working Group on Business and Human Rights request the Human Rights Commission to petition the ICC in this way, I asked? It was unsurprising if deflating to receive the reply ‘yes, the Working Group could make that request, but it would depend on assembling the available evidence'. Yet here were we all gathered, rallying to Professor Ruggie’s battle cry that something must be done to halt corporate abuses.

Another pertinent recurring legal theme was the need to standardise domestic definitions of international crimes. As Professor Ruggie lamented, "national courts appear not to share a consistent understanding of international standards prohibiting gross crimes." The potential solution to the problem of weak domestic enforcement of criminal norms would be to promote the doctrine of extra-territorial jurisdiction, which permits a ‘home’ state to prosecute a company domiciled within its borders for commission of international crimes in a foreign ‘host’ country. This was rebuffed by some corporate speakers who argued that insisting on an agenda of extra-territorial jurisdiction would dissuade companies from investing in poor communities in the first place, the suggestion being that this would be disastrous for development. This disingenuous argument masks an unpleasant sub-text suggesting that occasional corporate human rights abuse must be tolerated in exchange for investment and development, which is of course antithetical to the entire spirit of the Guiding Principles. However, not all business representatives were as cynical or sceptical.  'We need to change the view that human rights are an obstacle to growth – we should relay the message that, in fact, they promote growth,' said one enlightened corporate speaker.

This debate highlights one of the principal challenges the business and human rights movement faces: how to retain control of the message, as well as the language used to convey it, especially in the cross-cultural environment inhabited by the trans- or multi-national corporation. In a fascinating example of the power of language within the field, a Japanese corporate speaker explained some of the difficulties in communicating the concept of human rights in Japan. The expression in the Japanese language and script has its origin in Chinese. However, the Chinese characters were simplified so that the literal meaning of the Japanese character is ‘consideration for others.’ The speaker explained that the understanding of human rights in Japan has thus traditionally been restricted to issues of discrimination, rather than the full panoply of universal fundamental rights.

Accepting that the business and human rights movement is still in its early stages, the obvious question repeatedly posed was how and where to advance both debate and practice. Several themes emerged.

One of the best interventions from the corporate sector came from the US Council on Business. Detecting a not always helpful focus on TNCs and MNCs, Adam Green from the CoB argued that it is critical to stimulate national audiences to debate the General Principles. This would then encourage greater uptake amongst small and medium enterprises, who themselves make up a significant proportion of the corporate world and whose acceptance of the Guiding Principles was critical to their success.

A linked theme to emerge was the idea of creating ‘safe spaces’ within which multi-stakeholder groups – businesses, civil society, governments, affected communities – could debate the issues surrounding human rights, ethical business and sustainability.  It was suggested that existing Global Compact Network groups would be the obvious arena within which discussions of business compliance with the Guiding Principles could be facilitated. To paraphrase the Chairman of the GCN Sir Mark Moody-Stuart, businesses should ‘dine with the devil’ (NGOs and affected stakeholders) in such safe spaces. As he put it, ‘you can only have an influence over someone if they believe you have an understanding of the problems they face.’

However, as one commentator put it, whilst due diligence is a broadly accepted concept, civil society wants to know what human rights due diligence amounts to in practice. Surely everyone would be better informed by focusing on more concrete examples of how to implement the Guiding Principles in practice. To that end, a welcome development was the suggestion that a global fund will be established to develop greater capacity for implementing the Guiding Principles in areas affected by conflict or weak governance.

An entire afternoon session was devoted to discussing the implementation of the Guiding Principles in conflict zones. Professor Ruggie has repeatedly underlined that the greatest human rights abuses occur in such regions. This consequently requires the greatest effort to prevent, mitigate and remedy the violations that occur in this context. As an international criminal lawyer, I was looking forward to this debate perhaps most of all. Presumably, he discussion would centre upon the need to ensure respect for international humanitarian law and criminal law (both national and international) as the baseline for developing compliance with the Guiding Principles. Somewhat disappointingly, there was only the merest passing mention of IHL – and no discussion whatsoever of criminal law or penal sanctions for violations.

It was heartening to see that representatives from indigenous peoples were given such a prominent place at the Forum – both on the panels as well as from permitted questions from the floor. As Cree Chief Willie Littlechild powerfully expressed it, ‘indigenous peoples are not just vulnerable groups or stakeholders, we are business owners and rights holders too.’ This intervention brought the first and only cheer from the audience in the closing session, although Working Group member and indigenous leader Pavel Sulyandziga injected a note of realism, regretting the slow pace of change in the situation for indigenous peoples.

The debate’s ebb and flow, from memorable sound-bite to bland restatements of theoretical concepts and back again to throw-away re-hashed rhetoric, was only to be expected. But the nuggets were there for those who were patient enough to listen. One of the most thoughtful speakers across both days was Working Group member Margaret Jungk – although even she confessed to needing time and perspective to be able to adequately synthesise the lessons to come out of the Forum. She was very clear on one point, however: in order to make the transition in implementation of the General Principles from the ‘innovators’ to ‘early adopters’ stage, everyone would need to move quickly if the momentum and ideas were not to be lost. She implored business leaders to bring more of their colleagues from the corporate world to next year's Forum.

On the issue of why companies should be motivated to embed issues of human rights due diligence into their management and processes in the first place, one statesman made the stark point that corporate wrongdoings can now be posted on YouTube within five minutes, from anywhere in the world. The rise of social media, and the clear awareness-raising benefits that it brings, ensures a qualitatively different environment. Severe reputational damage can result from unwelcome media coverage, which in turn may have disastrous consequences for a company’s share price. The converse must surely be true: there is a real business case to be made for a company proving concretely it respects human rights, with the prospect of gaining a competitive edge in the market. However, numerous NGOs cautioned against an exclusive focus on profit as the motive for businesses to apply the Guiding Principles. Safeguarding the rights of others, it was argued, should be a sufficient incentive in itself.

One senior business representative claimed that 'a well-managed company will usually manage the human rights issues well.' This was rather too convenient and glib for my liking. Again, it hints at an unhelpful subtext, namely that some companies can be trusted to continue to self-regulate without outside assistance, guidance or engagement. History and experience tells us this would be unwise.  

Another recurrent theme was the function of the state as a prudent regulator, creating a conducive environment for companies to be able to respect human rights throughout their business activities. The recent US Dodd-Frank Act was cited as an important precedent in this regard. However, whilst such state initiatives are to be applauded, we should be uncomfortable with any attempts to focus exclusively on state actions: the corporate sphere must be ready to play a major role in the development and implementation of the Guiding Principles.

Perhaps the defining theme of the Forum, repeated several times during the closing session at the end of an intense two days, was the power of collective action. Professor Ruggie reminded everyone that the quickest uptake of the Guiding Principles has been by collective actors such as OECD, ASEAN and business and labour associations.

The Chair of the Working Group, Puvan Selvanathan, with predictable hyperbole declared it had been ‘an unprecedented and fantastic two days of activity’ that was ‘beyond our wildest expectations’ whilst (somewhat less predictably) likening the thousand-strong Forum to a Lady GaGa concert ‘when fashions start and merchandising happens’. Mr Selvanathan, now warming to his theme, roused himself for a final rhetorical flourish urging all delegates to be ‘heroes’ in championing the Guiding Principles in the face of scepticism and ridicule to ensure ‘exponential growth’ of implementation.

Well, that was all a little over the top.

Yet real connections and collectivisation of ideas were to be found in the hundreds of human interactions taking place throughout the Forum, in the side events, the stairwells, beside photocopiers, through Twitter and even in the queues for rapid refreshment and refuelling the organisers had forgotten to make time for. Business leaders rubbed shoulders with indigenous claimants. NGO representatives spoke to state officials. Labour and union officials exchanged views with human rights auditors. It was in such meetings, random or planned, where it felt like the business and human rights movement was really something to be part of: not least because of the tangibly pioneering, game-changing spirit in which some of the conversations seemed to be taking place.

For the cynics and pessimists, whether this grass-roots spirit is enough to steer the twin supertankers of government and business towards the rosy horizon painted by John Ruggie and his human rights evangelists may be another matter. This writer is sufficiently persuaded to believe in the cause – and in the real possibility of change to bring about more responsible corporate conduct and greater state protection, with effective and strong remedies when things go wrong.

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