human rights & business (and a few other things)

Not quite ‘beating your head against a brick wall’: the Supreme Court’s decision in Vedanta v. Lungowe

It is a pleasure to welcome back Lucas Roorda as a guest poster on “Rights as Usual”. M. Roorda is a Ph.D. candidate at Utrecht University, in the Institute of International, Social and Economic Public Law. He specializes in extraterritorial jurisdiction over corporate human rights violations. This post is his.

***************************************

On 10 April 2019, the Supreme Court of the United Kingdom delivered its highly-anticipated decision in the case of Vedanta v. Lungowe (Lungowe v. Vedanta in the lower courts). The Supreme Court unanimously decided the case should proceed in English courts, dismissing the appellants’ arguments against English courts assuming jurisdiction. This marks an important next step in an ongoing series of cases, wherein foreign victims of human rights and environmental harms sue corporations and their foreign subsidiaries in the domestic courts of the companies’ European home States. Next to Lungowe, the series includes Okpabi v. Shell that I discussed previously on this blog, AAA v. Unilever and Akpan v. Shell, discussed here.

This post examines how the Supreme Court has provided some important clarifications on both the substantive and jurisdictional rules that govern these cases, thus making it somewhat easier for claimants to argue duties of care on parent companies. It also shows the Court’s emphasis on access to justice compared to the lower courts may be laudable in the abstract, but is unlikely to increase access to justice in practice.

Background

Lungowe concerns a lawsuit brought by over 1,800 Zambians who allege that toxic discharge from the Nchanga copper mine into nearby rivers has damaged their health and livelihood. They have brought their case against Kongola Copper Mines, Ltd (KCM) which is the owner and operator of the mine, and its UK-registered parent company Vedanta Resources Plc. The main thrust of the claim is that Vedanta had a large degree of control over KCM, and committed a common law tort of negligence against the claimants by failing to take precautions against the toxic runoff; KCM was argued to be a ‘necessary and proper party’ to that claim. The defendant companies disputed the claims, as well as the jurisdiction of English courts to deal with the case. They argued that the claimants had no arguable claim against parent company Vedanta to which KCM could be ‘anchored’. Even if there was such a claim, the case should be continued in Zambia as this was the more natural forum.

The High Court and the Court of Appeal sided with the claimants on the jurisdiction issue, as detailed more extensively here. Both courts found that the claimants had sufficiently argued their case that Vedanta may have committed a tort of negligence with regard to the claimants, pursuant to the degree of control it had exercised over its subsidiary KCM. According to both courts, that degree of control may be sufficient to satisfy the Chandler v. Cape criteria for proximity, necessary to incur a duty of care. The courts also agreed with the claimants that KCM should be joined with that claim through the ‘proper party’ gateway, in order to avoid the risk of irreconcilable judgments.

The Supreme Court’s decision

The Supreme Court was asked to deal with a number of questions relating to both the substantive legal basis for the claim, and jurisdiction. The case was argued extensively over two days, and subject to two interventions. The Supreme Court’s decision delivered by Lord Briggs focused primarily on the jurisdiction issue and the appropriateness of England as a forum. As a preliminary point, Lord Briggs commented unfavorably on the size of the parties’ submissions and the disproportionate engagement with the jurisdiction issue, which he argued should be dealt with in summary judgment (paras. 12-14).

On the question of whether the claimants had committed abuse of EU law by solely filing a claim against Vedanta to anchor jurisdiction against KCM, Lord Briggs answered negatively (para. 31 ff). He did so on the assumption that there was a real triable issue against Vedanta and a genuine desire of the claimants to have a judgment issued against Vedanta. This was a factual finding of the lower courts which should not be overturned by the Supreme Court, even if it was clear that the claim against Vedanta was also filed to get KCM within the jurisdiction of English courts (paras. 26-27).

The case against Vedanta could however still be summarily dismissed if the Supreme Court had found that there was no ‘real issue to be tried’. This boiled down to the question of whether the claimants had convincingly argued that Vedanta was under a duty of care. On this issue, Lord Briggs also sided with the lower courts, with two points standing out. First, he confirmed that parent company liability for acts of subsidiaries is not a new category of negligence liability, as the claimants had argued (para. 49); second, a duty of care can exist when a parent company intervened with its subsidiary’s operations as in Chandler, but that may also be the case if it proclaims itself to exercise supervision without actually doing so (para. 53).

These findings implied that the lower court’s analysis for finding whether the claimants had demonstrated an arguable case was done on the correct legal basis. That the claimants indeed had such an arguable case was again a finding of fact by the lower courts which the Supreme Court did not wish to revisit; it restricted itself to concluding that the lower courts had applied the correct principles and the right level of scrutiny (paras. 60-62).

The main issue of the case, however, was the jurisdiction of English courts over foreign subsidiary KCM, through the ‘necessary and proper party’ gateway. The main issue here was whether England was the ‘proper place to bring the claim’, as per the third part of the necessary and proper party test (para. 66). This requires Courts to balance the factors that connect the case with England – i.e., the case against the parent company over which English courts have mandatory jurisdiction – against the factors that connect the case to Zambia – i.e., the domicile of the claimants, the defendants and the locality of the harmful acts.

In the lower courts, that balance was tipped in favor of England as the place to bring both claims, to prevent parallel proceedings with the risk of irreconcilable judgments, especially considering that there was no room to stay the entire case in favor of Zambia (paras. 71-72). Lord Briggs was however not persuaded that this risk was a decisive factor in deciding that England was the appropriate forum, in particular as Vedanta had agreed to submit to the jurisdiction of Zambian courts (para. 75). Thus, the claimants could avoid irreconcilable judgments by bringing the entire case there, where it was evidently more strongly connected; according to Lord Briggs, the risk of parallel proceedings and conflicting judgments thus existed mostly as a consequence of the claimants’ choices, and this could not be the deciding factor in favor of English jurisdiction (para. 87). This meant that in principle, England was not the proper place to try the case against KCM.

However, Lord Briggs also noted that such considerations could be set aside if it was found that there is a real risk that no substantial justice can be done in the foreign forum (para. 88). In this case, he found that lower courts had identified the main risk in bringing the case in Zambia as the unavailability of legal aid, and of proper legal representation (paras. 90-92). Given the ‘unavoidable complexity’ of the case, Lord Briggs asserted that the lower courts were entitled to conclude that these factors would stand in the way of the claimants obtaining substantial justice in Zambia (para. 100). The Court thus concluded that in spite of the stronger connections with Zambia, the risk of no substantial justice meant that the case should continue in England (para. 102).

Discussion

There is a lot to unpack in this decision, and here I will focus on the issues of particular relevance to establishing jurisdiction. The first point, however, is of substantive law: duty of care litigation based on Chandler is still very much alive in English courts. In para. 53 the Court even appears to extend the situations where a parent company may be under a duty of care. Whereas under Chandler claimants need to demonstrate that parent companies actually exercised control over their subsidiaries, Lord Briggs mentions that duties of care can also exist when parent companies claim they have control, but do not exercise it in practice. This is also easier to argue in a preliminary stage of the proceedings, before disclosure proceedings give claimants access to internal company documents. Such statements of control could for example be derived from company statements to shareholders.

This is important, as the two other main duty of care cases (Okpabi v. Shell and AAA v. Unilever) failed on the basis that claimants could not convincingly make a case that the respective parent companies exercised sufficient control, and that foreign subsidiaries relied on that control. Similarly, had the Supreme Court restricted duty of care litigation, this would also have impacted the Dutch case of Akpan v. Shell, where common law forms part of the applicable law and the claimants’ arguments are also based on Chandler. Had it become harder to argue the existence of a duty of care, it would also have become correspondingly harder to argue cases against foreign subsidiaries. After all, the feasibility of these cases taking place in home State domestic courts still depends on an arguable claim against the parent under the ‘necessary and proper party’ doctrine.

On that aspect of the case, however, the decision of the Supreme Court is a double-edged sword. Of course, it is positive news for the claimants and their representatives that the case is allowed to continue and that they still have the prospect of getting access to remedy. But the Court also erects a new hurdle in the ‘necessary and proper party’ test that may affect future cases. Previously, courts had generally assumed that avoiding conflicting judgments was a strong, if not decisive factor in deciding that England was the appropriate forum for a joint claim against parent and subsidiary companies, but no more. Instead, claimants will have to argue either that there are more factors that link the case to the home state or that a fair trial is not possible in the more natural forum. As also mentioned by the Court, this makes the test akin to how forum non conveniens was applied in early English foreign direct liability cases such as Connelly v. RTZ and Lubbe v. Cape. Not coincidentally, the relevant factors for deciding whether substantial justice can take place in the alternate forum are comparable: financial hurdles and inadequate legal representation.

From an academic perspective, more emphasis on access to justice as a relevant issue in these cases is positive. At the end of the day, inadequate access to justice in host states is what drives cases like Lungowe to European domestic courts. It makes sense that this gets emphasized in jurisdictional decisions – even if the Court stops short of actually mentioning access to justice as a human right, or the UN Guiding Principles. In practice, claimants may face an uphill battle in convincing courts that there is no substantial justice in the alternate forum. Moreover, the access to justice question is still only the final part of a long and elaborate test to determine whether cases can proceed in English courts, which still predominantly hinges on the existence of an arguable case against the parent company. In that respect, the Court may complain of disproportionate litigation on jurisdiction, but it has itself made this litigation only more complex.

Instead of doing this balancing act at the very end of what is still a meaty jurisdiction test, English courts could in future cases go one of two ways. Either a more marginal test for assessing a ‘good, arguable case’ of parental negligence could be adopted, such as argued by Sales LJ in his dissent in Okpabi; that case has also been appealed to the Supreme Court, which might choose to engage more extensively with this test. Or, access to justice could be put front and center, and jurisdiction should be asserted on the basis of forum necessitatis.

Conclusion

It remains to be seen how Lungowe will proceed from now. From the perspective of an academic observer, it would be good to finally see another case litigated on the merits. The case may also get settled before it moves on to the merits. Even if that happens, the Supreme Court decision in Lungowe will remain important for future foreign direct liability cases.


Companies Operating in a Conflict or Post-Conflict Country: Exercise Leverage or Stand Ready for Litigation

anna3It is a pleasure to welcome Anna Triponel (@ATriponel) on Rights as Usual. Anna is a business and human rights advisor specialized in advising companies, their in-house legal departments, law firms and investors on what human rights mean for business on a day-to-day basis. She has lived and worked in many countries, including Kenya after the post-election violence, Libya in the post-Qadhadi era and Myanmar during the transition to semi-civilian government. On 20 November 2018, she spoke at the launch of the Business and Human Rights Practitioners’ Network (BHRPN). This blog post is Anna’s and is based on the presentation she gave that evening.

******************************************************************

A few weeks after Qadhafi was killed, I was one of a handful of passengers, and the only woman, on a flight into Tripoli. I had been asked by Nobel Peace Prize nominee PILPG to coordinate strategies with civil society for how human rights could be placed front and centre of the planned constitutional dialogue process. I was solemnly greeted by members of a militia group at the bottom of the airstair. This militia group proceeded to escort me to a checkpoint where I was handed over to another militia group, who then handed me over to a third militia group just as I entered my hotel. My belongings were subject to an in-depth search by several men with guns. As I was waiting, one of the men with a rifle slung over his back informed me that he was a sniper and that he wanted my full name so that we could become Facebook friends. Sitting in the comfort of my office in New York, would I have thought that being friends with a Libyan sniper was a good idea? Standing there, in this bullet-scarred city, with no functioning government in sight and this sniper representing the last obstacle between me and my hotel room, my Facebook etiquette quickly changed. I was Facebook friends with a sniper for over a year before the images posted were too gruesome and I bore the courage to unfriend this man, hoping I would never bump into him in the hotel lobby again.

Decisions that are obviously not a good idea when sitting in the safety of our offices may not seem like such a bad idea when surrounded by guns in a state vacuum. For businesses, just as for people, it is incredibly difficult to operate responsibly in a conflict or post-conflict setting. But make no mistake, this difficulty has never served as an extenuating factor for companies that have faced challenges to their business conduct: quite the contrary, companies who continue to operate in these environments are held to a higher standard, by virtue of how their choices and actions can further harm already-suffering civilians.

Companies’ experiences highlight that decisions and actions that take place in these difficult contexts will most likely be investigated, and prosecuted – even years later. Let’s take the example of Colombia where companies were caught for years between left-wing guerrillas and right-wing paramilitary groups.

  • American banana company Chiquita admitted to paying close to $2 million protection money to a paramilitary group to enable it to continue operating its banana farms. The company has since been subject to numerous civil law suits, has paid a $25 million fine to the US Government, and – in a recent twist – 13 of its executives are now being prosecuted by the Colombian Prosecutor General’s Office (as discussed in a post on this blog).
  • British oil and gas company BP chose to settle with farmers requesting £15 million compensation for the harassment and intimidation they suffered at the hands of the paramilitaries guarding BP’s Ocensa oil pipeline. More recently, BP has been sued by a Colombian trade union leader for failing to halt his kidnapping and torture by paramilitaries.
  • American coal company Drummond has also undergone numerous lawsuits, with claims that the company hired Colombian paramilitaries to kill and torture trade union leaders and paid a paramilitary group to protect its mine operations. In another recent twist, the Colombian Prosecutor General’s Office announced it was reopening an investigation into Drummond’s activities during the conflict and has called upon company officials to testify.

In more recent conflicts, the judicial fall out for companies has started to unravel more rapidly. In the ongoing civil war of Syria, triggered by 2011 protests against Syrian leader Bashar al‐Assad, French cement company Lafarge decided to continue operating while the majority of its peers opted to withdraw their operations. Lafarge has now been placed under a formal criminal investigation in France for providing over $5 million to Syrian terrorist groups (including the Islamic State) and aiding and abetting crimes against humanity (as discussed in a post on this blog). It is also facing a lawsuit by 11 former employees for placing their lives in danger. French software company Qosmos is also under investigation in France for providing mass surveillance and interception capabilities to the Syrian regime which allegedly helped the regime track, torture, and execute its opponents. The French court has named Qosmos an ‘assisted witness’, which means that it could formally charge the company for the crime of complicity in acts of torture. The company has responded that it withdrew from Syria before the capabilities were usable, because of concerns of supporting the regime.

While there will never be an easy answer for companies operating in these challenging contexts, there is increasingly a spectrum of possible actions in between the ‘should I stay or should I go.’ All of these entail the careful consideration of a range of questions, as well as consideration of how leverage can best be built with relevant stakeholders. How could continuing to operate in this context harm people (e.g., local workers, expats, specific groups in the workforce, surrounding communities)? How could my decision to leave lead to harming people? How could my company’s presence and operations further enable, contribute to or entrench the conflict? If I choose to stay, what role might I feasibly play to help the country move from conflict to post-conflict and from post-conflict to peace, security and stability? Who else should I be seeking to combine forces with (e.g., other companies, international organisations, embassies, local/ international civil society groups)? Do I have a role to play in pushing for accountability and the creation of transitional justice mechanisms? Do I have a role to play in supporting the socio-economic reintegration of former combatants through employment?

Companies are not expected to take on the role of the United Nations, neither are they expected to become negotiators of peace agreements, campaign organisations or experts in disarmament, demobilization and reintegration. But they are expected to ask themselves tough questions to continually assess whether their efforts are effective in this challenging environment and how they can create new and innovative ways to reduce harm to people through their operations.

While the vast majority of the sensitive conversations companies are having – internally and with other actors – in conflict and post-conflict settings are not in the public domain, due to understandable sensitivities, some examples from challenging environments are.

  • Consider the example of Kenya’s largest mobile operator Safaricom. Seeking to avoid the use of its network for sending mass text messages (a major contributing factor in the 2007-2008 post-election violence), Safaricom took an early stand in the run-up to the 2013 election to issue guidance limiting how messages with political content could be sent. Recognising the limitations of unilateral guidance, the company further worked with the regulatory body for the Kenyan communications sector to ensure that similar guidelines were issued on a country-wide basis for all mobile network operators.
  • Apparel companies H&M and Tchibo decided not to source local cotton from the Omo Valley region in Ethiopia when local communities alleged discrimination and impacts on their livelihoods resulting from land displacement and inadequate compensation on the part of the government. In parallel to implementing this ban, these companies also engaged with relevant stakeholders, including the government, on what community consultation would look like moving forward to avoid future conflict in cotton-producing areas.
  • The Swiss football governing body FIFA took a stand when the Chechnyan authorities jailed one of Russia’s most prominent human rights defender, Oyub Titiev. Although the jailing of Titiev may not have been linked to the Egyptian football team’s decision to train in Chechnya in the run up to the 2018 World Cup, FIFA decided to have a number of conversations on this point, which included the Secretary General taking a strong public position that all human rights defenders should be able perform their work freely without fear of reprisals (FIFA’s work in the area of human rights is discussed in a post on this blog).

Where companies are being called out for decisions taken in times of crisis, some have decided to take a forward-looking approach. Dutch brewing company Heineken had an OECD complaint lodged against it for firing workers at the height of the civil war in the Democratic Republic of Congo. The company resolved to sit down and listen to the complaints voiced by the workers, including their deep disappointment that the last bastion of stability that they felt they had (their employer) had let them down. This resulted in productive negotiations and a successful OECD outcome, both for the complainants and the company.

We see that the environments companies operate in are subject to rapid change. A country that may be viewed as post-conflict, may remain very fragile and/or rapidly back track into full blown conflict; a country that is perceived as stable may suddenly be faced with conflict in one region. Companies are expected to be prepared for these possibilities. They are expected to consider their impact and build their leverage with stakeholders before it is too late: as the burgeoning of civil and criminal law suits against companies in these contexts demonstrate, it is the right thing to do for both people and the business.


Launch of the Business and Human Rights Practitioners’ Network in London

seamless_network_background_312309

The Business and Human Rights Practitioners’ Network aims to connect professionals from all sectors in the business and human rights field, particularly early to mid-career practitioners. It acts as a forum for those with expertise in business and human rights to share their knowledge. It aims to promote cross-stakeholder debate on business and human rights in a neutral environment. Its mission is to update practitioners on current issues and positively contribute to problem-solving in the field of business and human rights.

The Business and Human Rights Practitioners’ Network is an initiative founded by practitioners from legal practice, government, academia and civil society. Its founders are: Katherine Tyler (Kingsley Napley LLP), Sarah Macrory (Foreign & Commonwealth Office), Patrick Geary (Children’s Rights & Business Specialist), Francis West (SHIFT), Lise Smit (British Institute of International and Comparative Law), Lise Johnson (Columbia Center on Sustainable Investment), Tim Cooke-Hurle (Doughty Street Chambers), Rachel Chambers (SOAS/University of Connecticut), Lucy Graham (Amnesty International) and me (Dr Nadia Bernaz, Wageningen University).

In a few weeks the Network will be officially launched in London. Details below.

DATE

20 November 2018

TIME

17:30-18:00: Registration and refreshments

18:00-19.30: Panel discussion

19.30 onward: Drinks

VENUE

Kingsley Napley LLP, Knights Quarter, 14 St John’s Lane, London EC1M 4AJ

SPEAKERS

The Board of the Business and Human Rights Practitioners’ Network is pleased to announce that for the inaugural event, Rae Lindsay (Clifford Chance LLP) will chair a distinguished cross-stakeholder panel, including Anna Triponel (Triponel Consulting) Dr Irene Pietropaoli (BIICL) and Tim Cooke-Hurle (Doughty Street Chambers), who will discuss business and human rights in conflict and post-conflict societies.

The panel discussion will be followed by drinks and networking.

COST

There is no cost for attending but registration is required to attend and places are subject to availability.

REGISTRATION

Please click HERE to request a place. Places are subject to availability


A Commentary of the Draft Optional Protocol to the Business and Human Rights Treaty

imagesEarlier this month, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the Open-Ended Intergovernmental Working Group (OEIGWG) in charge of the elaboration the business and human rights treaty, released a Zero Draft Optional Protocol to the Zero Draft “Legally binding instrument to regulate, in international Human Rights law, the activities of transnational corporations and other business enterprises”. The Business and Human Rights Resource Centre published my commentary of the Zero Draft treaty, as part of a series.

Here I present my thoughts on the Draft Optional Protocol only (hereafter “the Draft Protocol”). Under the Draft Protocol, states parties shall establish a National Implementation Mechanism (hereafter “the Mechanism”) to promote compliance with, monitor, and implement the future treaty (Articles 1-7). This is the key innovation of the text and the focus of this blog post. The Draft Protocol also purports to establish a system of individual communications, similar to those administered under the nine core UN human rights treaties and protocols. This is not covered here.

The proposed Mechanism has three main tasks: raising awareness of the business and human rights treaty at the domestic level; conducting due diligence reviews; and running a mediation process.

Raising Awareness

The Mechanism will be tasked with raising awareness of the business and human rights treaty, in cooperation with other national institutions, civil society organizations, and foreign Mechanisms; and making recommendations to the state (Article 3). Both functions are important and provide added value compared to what we have now. In many countries the Mechanism could be run within existing, domestic National Human Rights Institutions (NHRIs), thus pooling resources and expertise. The Draft even refers to the Paris Principles on NHRIs (Article 2).

Conducting Reviews

Articles 4 and 5 of the Draft Protocol are also interesting, albeit not entirely clear. Article 4 purports to entrust the Mechanism with a role in the prevention of human rights violations by corporations, covered by Article 9 of the Draft Treaty. Article 9 of the Draft Treaty is about due diligence. It requires states parties to “ensure in their domestic legislation that all persons with business activities of transnational character within such State Parties’ territory or otherwise under their jurisdiction or control shall undertake due diligence obligations throughout such business activities.” Presumably, though this is not explained, it is expected that when undertaking due diligence, corporations produce and publish reports on non-financial matters, “internal policies, outcomes and indicators of environmental and human rights impact assessments”.

In this context, Article 4 of the Draft Protocol indicates that the Mechanism “shall, as a minimum, have competence to request all necessary information from the State Party in whose territory” that Mechanism operates. Such information may include the said corporate reports on non-financial matters, “internal policies, outcomes and indicators of environmental and human rights impact assessments”. This assumes that states actually gather and somehow store or keep track of such information, which I am not sure is necessarily the case. More generally, under Article 4, the mechanism will be able to gather information but the article does not contain any indication about how gathering information is supposed to prevent human rights abuse.

Likely, Article 4 is to be read in conjunction with Article 5, which aims to give the Mechanism the power to undertake due diligence implementation reviews, but this is not explicit in the text. Article 5 seemingly aims to address an important gap in the current legal framework on business and human rights. In many countries corporations are required to report on their human rights performance but there is no consequence for poor reporting, and no systematic process to check whether corporations have done enough, or even the veracity of those reports. Instead, states rely on civil society scrutiny. Article 5 attempts to change this, by giving the Mechanism the power to review corporate performance of their due diligence obligations when prompted by “victims” or other stakeholders or even “ex-officio”.

The power granted to the Mechanism is extensive and includes visits, inspections (those terms are not defined) “to monitor the implementation and follow up of due diligence plans or policies”. In case they identify non-compliance they will provide recommendations. If those are not followed, the Mechanism will “inform the competent authorities”. In this process, the Mechanism is required to “comply with the minimum requirements of due process of law.”.

My first reaction upon reading this is that it is going to be difficult to implement. I foresee many ways in which this could go wrong. For a start, it is likely corporations will view this review process with suspicion, at the very least. This is not a deal-breaker in my opinion, but still an important point to make. Also, how detailed will this review be? How long will it take? How to ensure that the Mechanism is staffed with people with a good understanding of how corporations function? What will happen if the Mechanism has (allegedly) not complied with the minimum requirements of due process of law? I am sure other commentators will have many other questions.

Running a mediation process

Article 6 sets up a non-judicial complaint mechanism relying on mediation, similar to those run by OECD National Contact Points (NCPs). This is an interesting idea. I can see how this could really add value, in the same way as I am rather enthusiastic about some of the NCPs. One important point: in practice the potential for overlap between the work of the Mechanism in this area and the work of NCPs seems high. If States go forward with the idea, it would perhaps make sense to explore ways to merge the two institutions.


Evaluating the Likelihood of an ICC Prosecution for Crimes Committed by Chiquita Banana Employees in Colombia

icc

It is a pleasure to welcome Dr Caleb Wheeler on Rights as Usual (@CalebHWheeler). Caleb is a lecturer in law at Middlesex University in London whose work focuses on international criminal law and international human rights law. This post is his.

**********************************************

In May 2017, three non-governmental organisations submitted an Article 15 Communication to the International Criminal Court seeking the expansion of the Office of the Prosecutor’s on-going preliminary investigation in Colombia to include corporate officials of Chiquita Brands International, Inc. (‘Chiquita’). I scrutinised the claims made in the Communication in a recent article published in the Melbourne Journal of International Law in an effort to determine whether this case could serve as an opportunity for the International Criminal Court to pursue corporate officials for their complicity in the commission of atrocity crimes. This could allow the Court to expand the scope of its work beyond the military and political leaders it has pursued thus far, and to provide an international forum in which to try the employees of corporations involved in the commission of atrocity crimes. Unfortunately, the International Criminal Court’s Statute, as written, will make it very difficult for such prosecutions to succeed.

Background

The Article 15 Communication alleges that corporate officials employed by Chiquita made recurring payments to affiliates of the paramilitary group Autodefensas Unidas de Colombia (‘AUC’), despite the fact that those officials were aware that the AUC was committing crimes against humanity. That the AUC was committing human rights abuses is largely beyond dispute. At least six members of the AUC have been convicted of crimes committed within the temporal jurisdiction of the Court, including murder, attempted murder, abduction, forced displacement and child recruitment. Additionally, the Prosecutor of the International Criminal Court has concluded that a reasonable basis exists to believe that guerilla and paramilitary groups, including the AUC, committed crimes against humanity and war crimes during the relevant time periods.

Chiquita made the payments as part of a corporate policy implemented for the purpose of protecting Chiquita holdings in Colombia from harm threatened by the AUC. Chiquita has admitted that it knew no later than 2000 that the AUC was committing atrocity crimes.  Chiquita continued to make payments to the AUC even after it was declared a ‘Foreign Terrorist Organization’ by the government of the United States and despite the fact that Chiquita had been advised that it was acting illegally by continuing to pay the AUC. Chiquita only stopped making payments to the AUC several months before entirely divesting itself of its Colombian operations. It is asserted in the Communication that the money paid by Chiquita represented a significant contribution to the human rights abuses committed by the AUC.

The Meaning of Significant Contribution

The likelihood of an International Criminal Court prosecution being successful in this matter will turn on whether sufficient evidence exists to show that the implicated Chiquita employees made a significant contribution to the crimes committed by the AUC. Whether the accuseds’ actions constitute a significant contribution to the commission of the alleged crimes is determined by considering the accused person’s relevant conduct and the context in which his or her conduct is performed. In this case, it is debatable whether the amount of money paid to the AUC by Chiquita, estimated to be approximately 1.7 million USD over a period of seven years, constituted a significant contribution to the crimes committed by the AUC. Without knowing the full extent of the AUC’s assets during the relevant period, it is believed that by 2002 the AUC controlled 40% of Colombian cocaine trafficking and had an annual income of approximately 100 million USD. The Chiquita payments made up less than one quarter of 1 per cent of the AUC’s annual income suggesting that the money paid by Chiquita did not significantly contribute to the scope of the group’s activities.

Questions about the significance of the contribution are further reinforced by a lack of evidence linking the money Chiquita paid directly to the AUC’s criminal acts. At present, there is no evidence to support a reasonable suspicion that Chiquita’s employees made payments to the AUC for the purpose of furthering the AUC’s criminal activities. The mere supposition that because Chiquita paid money to the AUC, and the AUC in turn committed atrocity crimes means that Chiquita’s money was used to fund the commission of those crimes, is likely insufficient to lead to the conviction of Chiquita employees. In fact, Chiquita insists that the payments were made as a result of duress, although it is dubious whether that claim will hold up under scrutiny. Further, while Chiquita and its employees knew the AUC was committing atrocity crimes, there is no direct link between the money paid by Chiquita and any specific crimes committed by the AUC. Without this evidence it would be very difficult for the International Criminal Court to impose liability.

This analysis leads to the conclusion that the International Criminal Court is likely not the best forum for pursuing corporate actors for human rights violations. Here, we have a situation in which multiple members of the AUC have been convicted of atrocity crimes, Chiquita has admitted that it was aware that those crimes were being carried out and it still continued making payments to the AUC. Despite this undisputed evidence, an International Criminal Court prosecution will almost certainly fail because there is no direct link between the money paid and the crimes committed. If a case with such clear evidence stands little chance of success it is difficult to imagine that the Court will have much enthusiasm for pursuing other cases involving human rights violations committed by business entities.

Recent Developments

There is, however, some cause for hope. On 31 August 2018, the Colombian Attorney General charged 13 former Chiquita executives with crimes against humanity in relation to their funding of the AUC. By charging these 13 former Chiquita executives Colombia has indicated both its willingness and ability to investigate and prosecute the crimes alleged. While these cases are in the very early stages, it is encouraging that they have been brought at all. It further demonstrates that, as it stands, domestic courts are probably the best option for litigating human rights violations committed in the context of corporate operations.


« Previous Entries

Powered by WordPress | Designed by Elegant Themes