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19 Jul 2018

Andrew Smith, Alice Lepeuple, Corker Binning (UK)

Commentary: Holding companies criminally liable for human rights abuses committed overseas

"Holding companies criminally liable for human rights abuses", 17 Jul 2018

The idea of holding companies criminally liable for human rights abuses committed overseas has gained traction over the past decade...[T]he UN Guiding Principles on Business and Human Rights encouraged states to legislate so that companies within their jurisdiction respect human rights, including through “criminal regimes that allow for prosecutions based on the nationality of the perpetrator no matter where the offence occurs.”...

Under existing law, it is extremely difficult to prosecute companies for human rights abuses committed overseas...[S]uccessfully prosecuting companies...depends on identifying a directing mind and will (“DMW”) in the company who aided and abetted the offending...The only offence relevant to human rights abuses that does not require the guilt of a DMW as a precondition of corporate liability is corporate manslaughter...but...[i]t cannot be used to prosecute a UK company that is complicit in a fire in its overseas factory resulting in multiple deaths...

The first challenge is identifying the human rights abuse of which should trigger corporate liability...A corporate offence of failure to prevent human rights abuses would therefore need to define “human rights abuses”...The next challenge is establishing criminal liability based on the conduct of an overseas associated person...[W]hilst the offence would benefit victims inasmuch as it would promote a corporate culture that deters human rights abuses, it is questionable whether this is as important as ensuring that victims...have effective access to civil remedies...[I]ntroducing the offence would disregard the company’s separate legal personality...These conceptual difficulties explain...why the Government is reluctant...to introduce a corporate criminal offence...