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New FIDH Report and the Prospects of International Justice

The International Federation for Human Rights (FIDH), a major umbrella NGO for over 160 different organisations, recently (July 2010) launched “Corporate Accountability for Human Rights Abuses: A Guide for Victims and NGOs on Recourse Mechanisms“. The guide is comprised of five sections. Each examines a different type of instrument, including intergovernmental mechanisms, legal options, mediation mechanisms such as the OECD national contact points, complaints mechanisms stemming from financial support received by companies and mechanisms that can be explored according to voluntary commitments taken by companies.

The report’s section II on Judicial Mechanisms considers both the civil and the criminal avenues for extraterritorial liability of corporations for human rights abuses. The issue of criminal liability is in practice a less explored avenue which should in fact become the focus of the work of many organisations who have reported and monitored the complicity of corporations in violations of international humanitarian law committed by states. It is also interesting to consider Yasmine Gado’s paper for this purpose, see here.

The research done on the criminal liability of companies attests to the fact that the legal means by which a victim can hold a company accountable for its criminal liability are immensely limited compared to those available for civil liability claims. This is also why the two, i.e. the civil and the criminal, have produced two different types of struggle, the former for the application and usability of the mechanisms and their effectiveness, and the latter for the creation of appropriate avenues that recognise the ability of companies to violate IHL and bring about the result of their criminal liability in international courts and tribunals. The underlying logic of international justice has produced this very conclusion with regards to the reach of companies’ operations on a number of previous occasions. The FIDH report refers to one of these conclusions as follows,

“In South Africa, following hearings which began in November 1997 on the involvement of economic actors in the system of apartheid,234 the Truth and Reconciliation Commission (TRC) ruled unequivocally that companies had provided material support to the institutionalised crime. The TRC held that the companies played a central role in supporting the economy which kept the South African State running under apartheid and that companies derived substantial profit from the system of racial privileges. The TRC went so far as to say that some companies, particularly in the mining sector, contributed to the development and implementation of the apartheid system.235 A full ten years earlier, the United Nations General Assembly had already condemned apartheid’s widespread and systematic use of racial discrimination as a crime against humanity. The UN Convention of 1973 on the elimination and Repression of the Crime of Apartheid established that “organisations, institutions and individuals committing crimes of apartheid are criminal.”” (p. 247)

De facto, multinational corporations have taken up an eminent role in the world of non-state actors in international law. It is strongly arguable that they have become part and parcel not only of the law-breaking but also of the law-making forces on the international arena. As a non-state actor, corporations have even been granted greater recognition than most non-state, even though state like, armed opposition groups, such as Hezbollah or Hamas. The latter may have a longer history and a government structure more akin to that of a statal entity, but would nevertheless be denied the minimal “recognition” and the needed “legitimacy” in the political sense to be afforded international rights and be held as fully obligated to comply with all international laws, just like states are.

The FIDH notes that this guide seeks to provide a practical tool for victims and their representatives to seek justice and obtain reparation for human rights abuses involving multinational corporations. It should be noted that in the world of international, or should we say transnational, human rights litigation it is the multinational corporations who are often the ‘best’ targets for victims to obtain reparation. In other words, courts are more readily scrutinising the behaviour of delinquent companies (i.e. under the doctrine of civil universal jurisdiction) compared to that of delinquent states (i.e. under the doctrine of criminal universal jurisdiction). It is also apparently much easier for victims to haunt down violators of international law on civil grounds than it is on criminal ones; presumably this is based not only on the lower evidential thresholds of civil suits but also their less abrasive political ramifications. It is widely agreed that this, often artificial, non-application of international humanitarian and human rights law to companies as non-state actors on the international plain, as well as the absence of precedent on the incrimination of companies’ officials on grounds of individual responsibility, are grave deficiencies that stand in abrupt contradiction with the foundational spirit and intended prospects of international justice (see also our previous coverage of this issue, here).

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