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Business and Human Rights in Armed Conflicts—Exclusion of Corporate International Criminal Liability from the Second Revised Draft

"BHR Symposium: Business and Human Rights in Armed Conflicts—Exclusion of Corporate International Criminal Liability from the Second Draft Treaty", 8 September 2020.

Business and Human Rights in Armed Conflicts is a new branch within the “Business and Human Rights” field. The United Nations Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises identified conflict zones as the most vulnerable context for corporate human rights abuses as early as 2011...

Since then, there have been two major developments regarding corporate responsibility. The first is inspired by the Guiding Principles based on corporate human rights due diligence. The second is more critical of the Guiding Principles and is based more firmly in international criminal corporate liability. The IGWG’s second revised draft seems to be aligned with the former, while making compromises with respect to the latter...

The current draft treaty only creates obligations for future State parties and recognizes their pre-exiting obligations under the human rights law (HRL). However, the draft remains unclear as to the concise legal obligations of corporations...

The second revised draft excludes any international corporate liability, be that before international human rights mechanisms, the ICC or by establishing a novel court in which to review claims of human rights abuses by businesses....

While the draft treaty does not recognize international responsibility of corporations, it could potentially open the door to additional Rome Statute negotiations. Article 8(9) in fine supports the idea that another (Rome Statute?) instrument may be complementary to the current instrument...

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