The Legal Framework Relevant to Corporate Conduct

International Law and the Complicity of Business in Human Rights Abuses

Hocine Ouazraf

The debate over the complicity of transnational corporations in violations of human rights and international humanitarian law (IHL) and, in particular, war crimes and crimes against humanity, has in recent years begun to attract renewed attention. The responsibility of multinational companies for complicity in the violation of human rights and IHL, especially in areas of armed conflict, required a response from the international community and the formulation of a judicial framework within which to supervise the conduct of multinationals. The obligation to avoid any involvement in violations of human rights and IHL is clearly set forth in the 1999 United Nations Global Compact, which was adopted at the initiative of the secretary-general at that time, Kofi Annan. Principle 2 of the pact stipulates that 'Businesses should make sure that they are not complicit in human rights abuses.'

While it is not binding, that text makes it possible to identify some major trends that can clarify the various forms which may be covered by the idea of complicity. The commentary on this principle clearly establishes a typology for various types of complicity in the following terms:

Direct Complicity occurs when a company knowingly assists a State in violating human rights. An example of this is where a company assists in the forced relocation of peoples in circumstances related to business activity. Beneficial Complicity suggests that a company benefits directly from human rights abuses committed by someone else. For example, violations committed by security forces, such as the suppression of a peaceful protest against business activities or the use of repressive measures while guarding company facilities, are often cited in this context. Silent Complicity describes the way human rights advocates see the failure by a company to raise the question of systematic or continuous human rights violations in its interactions with the appropriate authorities. For example, inaction or acceptance by companies of systematic discrimination in employment law against particular groups on the grounds of ethnicity or gender could bring accusations of silent complicity.

For example, it will be up to the tribunal to consider the cases of such businesses as Caterpillar, Volvo and Daewoo and to see whether they are complicit in violations of human rights committed by the Israeli authorities in the Palestinian territories. The bulldozers which those companies supply to the state of Israel are used in the wholesale destruction of Palestinian homes, schools, orchards and olive groves. In recent years, thousands of Palestinians have seen their homes destroyed with the direct support of Caterpillar, Volvo and Daewoo. Such conduct constitutes a violation of the most basic rules of IHL. The interdiction on the destruction of civilian dwellings is taken from the Fourth Geneva Convention of 1949 relative to the protection of civilians in time of war and, in particular, Article 53, which provides as follows:

Art. 53. Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

Furthermore, those three businesses are involved in the construction of the West Bank wall by supplying construction material. In its advisory opinion of 9 July 2004, the International Court of Justice stresses that the construction by Israel, the occupying power, of the wall in occupied Palestinian territory, including in and around East Jerusalem, and the associated regime, violate the international obligations which are incumbent upon it. Furthermore, through the construction of the wall, Israel ignores its international obligations under the relevant treaties. According to the Court, '... the construction of the wall has led to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention.'

The construction of the wall has imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory as guaranteed under the International Covenant on Civil and Political Rights, Article 12, paragraph 1, which states that 'Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.'

An important and significant step was taken in August 2003 with the adoption by the Sub-Commission on the Promotion and Protection of Human Rights of a text concerning norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights. Companies are enjoined in the following manner not to render themselves guilty of complicity in violations of human rights and IHL:

3. Transnational corporations and other business enterprises shall not engage in nor benefit from war crimes, crimes against humanity, genocide, torture, forced disappearance, forced or compulsory labour, hostage-taking, extrajudicial, summary or arbitrary executions, other violations of humanitarian law and other international crimes against the human person as defined by international law, in particular human rights and humanitarian law.

The commentary on this article makes absolutely clear what is meant by 'the complicity of companies'. It forcefully stresses as follows:

(a) Transnational corporations and other business enterprises which produce and/or supply military, security, or police products/services shall take stringent measures to prevent those products and services from being used to commit human rights or humanitarian law violations and to comply with evolving best practices in this regard.

(b) Transnational corporations and other business enterprises shall not produce or sell weapons that have been declared illegal under international law. Transnational corporations and other business enterprises shall not engage in trade that is known to lead to human rights or humanitarian law violations.

The significance of this text lies essentially in the fact that it contains principles that are directly derived from international law and major human rights-related international conventions. In other words, it merely confirms the existing law and demands that it should be applied to company activities.

The Russell Tribunal on Palestine will consider the case of the French company Veolia, which is directly involved in the construction of a tramway to link Jerusalem to West Bank settlements, and will examine its contribution to the violation of one of the most fundamental rights of the Palestinian people: the right to self-determination. The pursuit by the Israeli authorities of an aggressive colonisation policy in the West Bank violates numerous provisions of international law and, in particular, of IHL. Indeed, under Article 49, paragraph 6, those settlements are illegal, and contravene the principles set forth in this article, which stipulates as follows: 'The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.'

Those practices, which are forbidden by the Fourth Geneva Convention and aim to change the demographic character of the Palestinian population, have been condemned on several occasions by the United Nations Security Council and General Assembly. On 8 December 1972, General Assembly resolution 2949 (XXVII) recalled the prohibition on the modification of the physical character or demographic composition of the occupied Arab territories in the following terms:

Declares that changes carried out by Israel in the occupied Arab territories in contravention of the Geneva Conventions of 12 August 1949 are null and void, and calls upon Israel to rescind forthwith all such measures and to desist from all policies and practices affecting the physical character or demographic composition of the occupied Arab territories ...

The involvement of Veolia in constructing a tramway line that links the settlements to Jerusalem directly reinforces the infrastructure of the Israeli occupation.

In 2005, the wish to clarify and expand the concept of the complicity of companies led the United Nations Secretary-General to appoint Professor John Ruggie of Harvard University, as Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises (hereafter referred to as the Special Representative). The report which the Special Representative submitted in 2008 unquestionably constitutes a considerable advance in the discussion of the activities of multinationals and their consequences for human rights and IHL. The responsibility borne by companies with respect to human rights is emphatically confirmed. The report states as follows:

23. The corporate responsibility to respect human rights is the second principle ... Because companies can affect virtually all internationally recognized rights, they should consider the responsibility to respect in relation to all such rights, although some may require greater attention in particular contexts. There are situations in which companies may have additional responsibilities – for example, where they perform certain public functions, or because they have undertaken additional commitments voluntarily. But the responsibility to respect is the baseline expectation for all companies in all situations.

In order to carry out this mission of respect for human rights, the report refers to the idea of 'reasonable diligence', which obliges every company to evaluate the potential risk of human rights violations to which it is exposed as a result of its activities and, where possible, to cease those activities. Reasonable diligence revolves around three principles which the Special Representative summarises in the following terms:

Companies should consider three sets of factors. The first is the country contexts in which their business activities take place, to highlight any specific human rights challenges they may pose. The second is what human rights impacts their own activities may have within that context – for example, in their capacity as producers, service providers, employers, and neighbours. The third is whether they might contribute to abuse through the relationships connected to their activities, such as with business partners, suppliers, State agencies, and other non-State actors. How far or how deep this process must go will depend on circumstances.

The Russell Tribunal will have to consider whether the Belgian bank Dexia, which is accused of financing the construction of West Bank settlements, has shown disregard for the obligation of 'reasonable diligence'. The implantation of settlements has been condemned on several occasions by the United Nations Security Council. In resolution 446 (1979), the Security Council notes that the colonisation of occupied Arab territories has no legal validity and

... calls once more upon Israel, as the occupying Power, to: abide scrupulously by the 1949 Fourth Geneva Convention, to rescind its previous measures and to desist from taking any action which would result in changing the legal status and geographical nature and materially affecting the demographic composition of the Arab territories occupied since 1967, including Jerusalem, and, in particular, not to transfer parts of its own civilian population into the occupied Arab territories.

Is it possible to maintain that the Belgian banking group Dexia, through economic involvement in illegal activities linked to settlement, ignored the obligation of 'reasonable diligence' and was complicit in the sense meant by the Special Representative in that it supported the process of colonising the Palestinian territories?

The Special Representative devotes particular attention to areas of armed conflict. He calls for more systematic recourse to the sanctions which are taken by the Security Council against companies that are implicated in the arms trade, with a view to ending the flow of arms towards areas of armed conflict. He refers to a report of the United Nations Secretary-General which recommends that this principle should be applied to companies that have helped to kindle certain conflicts, particularly in the Congo, Sierra Leone and Liberia. In that regard, the Secretary-General noted in 2008 that:

Arms embargoes can be effective in reducing conflict by preventing new outbreaks of fighting, if they are properly monitored and enforced and violators held responsible. Monitoring of compliance by expert groups is an important component in ensuring the effectiveness of sanctions regimes. However, greater attention must be paid to implementing the recommendations of such monitoring groups. ...

It is not always easy to establish legal complicity. In order to carry out that task, the Special Representative advocates reasoning by analogy with the principles of international penal law. If the ratione personae competence of the international criminal tribunals for the former Yugoslavia and Rwanda only concern natural and not legal persons, the jurisprudence of those two tribunals with regard to complicity in such international crimes as war crimes and crimes against humanity makes it possible to extrapolate principles that go well beyond the complicity of natural persons stricto sensu. In 1998, for example, the Court of First Instance of the Tribunal for the Former Yugoslavia maintained the following: '... the Trial Chamber holds that the actus reus of aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.'

This passage appears to echo the 1996 version of the International Law Commission draft code of crimes against the peace and security of mankind which, in Article 2, paragraph three (d), provides that an accomplice is someone who 'Knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime, including providing the means for its commission.'

Furthermore, analysis of the jurisprudence of national criminal tribunals makes it possible to deduce the existence of an international obligation on the part of companies not to be complicit in international crimes. In fact, several domestic courts have felt compelled to make statements on cases of complicity linked to multinational companies. As the Special Representative underlines:

A number of domestic jurisdictions allow for holding legal persons, including companies, criminally liable for at least some international crimes. Provided these jurisdictions also have aiding and abetting liability, it will generally be possible to criminally prosecute companies for aiding and abetting such crimes.

The action taken in the Belgian courts in 2002 against Total on the basis of the Belgian Law of Universal Jurisdiction of 16 June 1993, as amended by the law of 10 February 1999, albeit inconclusive because of an unduly restrictive interpretation by the Belgian Court of Cassation of certain provisions of that Law, none the less illustrates the position of the Special Representative on the existence of international obligations on companies and, in particular, the obligation not to be complicit in international crimes. In Belgium, plaintiffs relied on the law of 1994/1999, which allows the Belgian courts to refer to cases relating to crimes of genocide, crimes against humanity and war crimes, in order to denounce the complicity of Total in certain crimes against humanity that were committed by the Burmese authorities. That case makes it possible to draw certain lessons as to the existence of international obligations on the part of multinational companies. In this case, a company was accused of complicity in human rights violations, which means that the rules of international criminal law also cover legal persons, not just natural persons. The Total case that was brought before the Belgian courts demonstrates that when transnational companies ignore their international obligations, they may be held criminally responsible.