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.

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.