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14 Oct 2015

Dr Nadia Bernaz, Middlesex University School of Law

Including Corporate Criminal Liability for International Crimes in the Business and Human Rights Treaty: Necessary but Insufficient

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This blog is part of the debate blog series on the proposed treaty and its complementarity with the UN Guiding Principles. We believe that an inclusive and open debate is crucial to make sure these initiatives deliver for everyone, and that the business & human rights movement continues its "unity in diversity".

As discussions over the contents of the future business and human rights treaty are under way, an important aspect of the debate has to do with the type of direct obligations, if any, that the treaty should place on corporations. In this blog post, I will argue that including corporate criminal liability for international crimes in the business and human rights treaty is necessary but insufficient in itself if we want to maximise the impact of the treaty and call it a success. This is because the vast majority of human rights abuses committed by businesses do not amount to international crimes but still urgently need to be addressed.

1. Including corporate criminal liability for international crimes in the treaty: a unique opportunity not to be missed

For the first time since the negotiations for the establishment of the International Criminal Court (ICC) in the 1990s, States have an opportunity to clearly recognise, in a binding international instrument, the notion of corporate criminal liability for international crimes. This was seriously envisaged during the negotiation of the Statute of Rome establishing the ICC, and not massively rejected. However, in the end, the notion didn’t make its way into the Statute, which only provides for individual criminal liability. This has led to uncertainty over the very existence of the concept of corporate criminal liability under international law, with some states even arguing that corporations are outside the scope of international criminal law (see for example one of the amicus curiae briefs of the UK and Dutch Governments in support of Shell in the Kiobel case, pp. 17-20).

In 2014, the Special Tribunal for Lebanon decided that the Tribunal had jurisdiction over a news corporation, though the offense at stake was contempt of court and not one of the core crimes over which this international tribunal has jurisdiction. This was an important move, as it was the first time an international criminal tribunal decided to prosecute a company, but the case remains isolated and the international prosecution of a company for a core crime is not possible at present.

Including the notion of corporate criminal liability for international crimes in the business and human rights treaty would therefore solve a persistent ambiguity in the field, a positive step in itself. It would also send a clear and important message to corporations regarding their potential role in the commission of international crimes and would be a powerful tool for advocacy purposes. Finally to include the notion would force the drafters to solve another ambiguity, that regarding the required mental element when it comes to corporate complicity liability, hopefully in a way that will not close the door to future claims and prosecutions.

2. Should the treaty address less serious corporate human rights violations as well?

Professor Ruggie has argued that if the treaty is to impose direct human rights obligations onto corporations, then these obligations must be limited to the area of human rights violations amounting to international crimes. Others, such as Nicolás Carrillo-Santarelli , consider that the treaty must impose direct obligations on corporations for all human rights violations and not just international crimes

Both positions bring about their own set of challenges. On the one hand, if the treaty only focuses on international crimes, it will not cover the vast majority of corporate human rights violations. To put it simply, that would be not good enough. On the other hand, imposing direct obligations onto corporations for all human rights challenges one of the most well-established principles of international human rights law, which is that states, and states only, bear responsibilities in that area. The endless debates over the UN Draft Norms which had attempted to go this route but had to be abandoned are testament to the fact that it will not be easy to sell. This is not to say it shouldn’t be attempted but that expectations should be managed.

3. So… what will success look like?

A middle-of-the-road solution would be for the business and human rights treaty to provide for international corporate criminal liability for international crimes but at the same time, for violations of lesser gravity, to follow the model of International Labour Organisation conventions and impose direct obligations on states only, but in areas of relevance to business. At the international level, States would then be solely responsible to prevent corporate human rights abuse not amounting to international crimes. In essence it would give binding force to Pillar I of the Guiding Principles that refers to the State’s responsibility to protect against human rights abuses by third parties, including business. It would also be a welcome opportunity to go further than Pillar I in relation to contents. States could be under the obligation to prevent violations, for example through the adoption of legislation criminalising certain conduct and setting up a system to guarantee better access to courts for victims.

The bottom line is that if the process currently under way leads to a treaty that includes both elements – corporate criminal liability for international crimes as well as extended state responsibility for preventing and redressing corporate human rights violations – I think we should call it a major success.