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.

Several weeks of research, a day or so trawling through my back-catalogue of black-and-white images and the last two days putting together the new website, I'm now ready to launch.

My idea behind batesmith law and the batesmith law blog is to provide a focus for my ever-expanding international consulting practice, which over the last three years has seen me in such disparate places as Tashkent, Freetown, Beirut, Pristina, Ottawa, The Hague, Zagreb, Lisbon, Warsaw, Zurich Airport (more times than I'd care to remember), Lancaster...and many more places in between.

I would also like to share some thoughts on the inter-linked worlds of international criminal law, transitional justice and human rights, and will also post links to articles I have found interesting or events within these fields that might be of interest.

I'll start off very briefly by musing how international criminal law may have developed very differently (or may not have developed at all?) had the senior Nazis been summarily executed at the end of World War II rather than being put on trial at Nuremberg. An article appearing in today's Guardian newspaper describes how the British favoured hanging Goering et al, and felt that the proposal advanced by the Americans and the Russians to put the Nazis on trial was 'quite dreadful' to use the words written by Guy Liddell, head of counter-espionage at MI5, in his now-declassified diary of 21 June 1945. Liddell believed that the prosecutions would be no better than the Stalin-era show trials - in fact, Stalin himself seems to have believed that the Nazi prosecutions would have 'excellent propaganda value.' 

The argument over whether Nuremberg's IMT was victor's justice has long since gone stale (so I won't rehearse it here), and we all knew that Churchill was not in favour of a tribunal (see for example the excellent description of this in Gary Jonathan Bass's Stay the Hand of Vengeance: The Politics of War Crimes Tribunals), but it's worth bearing in mind that holding up Nuremberg as a flawless paradigm rightly championed by the free world is not an accurate historical (or legal) portrayal.

Rather, the creation, functioning and legacy of the International Military Tribunal, as with each of the subsequent steps taken in the development of international criminal law, should be seen as more nuanced, complex and at times controversial than we sometimes allow for.

Is the world a better place because Roosevelt and Stalin outvoted Churchill at Yalta in February 1945? Unquestionably. However flawed the Nuremberg model was, however imperfect the subsequent iterations of international criminal justice have been, the recognition at the IMT of individual criminal responsibility for atrocities committed on behalf of States was an unarguable milestone. No longer could leaders perpetrating egregious crimes against humanity evade personal prosecution and conviction by claiming act of State. Even the decision to commit such serious crimes is taken by human beings: and it is they who should be held accountable.

The development of international criminal law is far from complete. Respect for it is far from universal. Practice  of it is far from uniform. But without the work of the tribunals, from Nuremberg to the ICC and beyond, there would be more impunity. 

The more difficult question to answer, however, is how far selective prosecutions (and no-one could seriously argue that the ICC's prosecutions are significantly representative of all the international crimes committed in the world since 2002) are a necessary evil in the development of international criminal law, or how far they will ultimately contribute to the disintegration of this nascent legal system....

...which might be a good cliff-hanger to end on. To be continued at some later stage.