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.
Further information on the Forum can be found on the website of the UN’s Office of the High Commissioner for Human Rights here.