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30 Apr 2018

Ciara Hackett, Ciaran O’Kelly, Clare Patton, Luke Moffett, Rights as usual

Complicity issues and redress for victims in the aftermath of Jesner v Arab Bank

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Last week the US Supreme Court issued their decision on Jesner v Arab Bank...On complicity, the Court seemed particularly misguided, recognising only ‘active’ complicity – and suggesting that this was an issue for Congress to decide.  ‘Active’ complicity is also known as ‘aiding and abetting’... In Jesner, the majority seemed to say that plaintiffs allege ‘aiding and abetting’ to use corporations as surrogate defendants.  Justice Sotomayor (dissenting) recognises that this is misaligned and suggests that there are other forms of ‘aiding and abetting’.  However,...neither she, nor the rest of the Court seem to recognise the idea of ‘passive’ complicity.  This is where corporations may be complicit in human rights violations even when they are not the direct result of their own action...Passive complicity, in an era of due diligence and increasingly complex supply chains, is a key area for business and human rights moving forwards...[T]his would have aligned the Court’s decision with Principle 2 of the UN Global Compact which recognises direct, beneficial and silent complicity...The judgment is silent on where victims of human rights violations involving corporations might seek redress...Where alternative routes to recovery are mentioned, they all focus on an active abuse of human rights as opposed to complicity in the face of human rights abuses...This ignores the literature on collective responsibility and group agency dominating the area at present...If the Court has such a narrow view of what complicity is, they are failing to recognise the categories of victims that may exist where a corporation has been passively or silently complicit...