Corporate Accountability in Transitional Justice Settings

1. Corporate Accountability in Transitional Justice Settings

2. Some initial problems when reflecting on corporate accountability in the context of TJ • Traditionally, TJ has been dealing primarily with the responsibility of the state and that of individual perpetrators for gross violations of civil and political rights in the form of blood crimes • The standard mechanism for achieving accountability and justice have been criminal prosecution, but criminal liability of corporations is limited under both international and national law

3. Questions to be addressed • Should corporate accountability be included in TJ processes? • What role can holding corporations to account for their complicity in past crimes play for achieving the objectives of transitional justice? • Should they only be responsible for harm they caused directly, or also for harm facilitated through complicity with the regime or violent groups? • Through which mechanisms can this liability best be addressed? • What are appropriate remedies for corporate violations in transitional contexts and what is the relationship between state reparation programmes and remedies against corporations as private actors? • What measures are necessary to prevent recurrence?

4. Why address corporate accountability in the context of tj?

5. Corporate accountability to enhance Truthfinding • without determining the responsibility of all important actors, the account of the truth will inevitably remain partial and the roots and causes of the oppression or conflict will not be understood • an inclusion of the role of corporations in truthfinding might thus be necessary in order to paint the full truth with regard to the abuses that occurred, the reasons for which they occurred, and their consequences

6. Corporate accountability and Justice • To the extent that corporations played a major role in the commission ofgross human rights violations, their impunity might hinder the goal of obtaining justice; • in particular, victims, and potentially large parts of society, might be left with a feeling of dissatisfaction if economic actors are seen as responsible but receiving impunity

7. Corporate accountability and reparations • To the extent that corporations are responsible for violations it seems fair to make them liable to provide reparations to victims • Corporate reparations can have a substantial impact on the state’s ability to provide reparation • Remedies can be more easily adjusted to the transitional justice context if corporate accountability is addressed in the context of TJ mechanisms

8. How to address corporate accountability in the context of tj?

9. TRC reports and recommendations • TRCs can carry out investigations into the role of businesses, eg establish to what extent, if any, businesses were involved in the violations that occurred, either regarding individual businesses or certain business sectors, like the mining industry, agricultural businesses etc. • TRCs can make recommendations regarding corporate accountability (eg corporate reparations, one-off taxation, exclusion from future public contracts; asset freezing and recovery etc.)

10. Criminal prosecutions • International criminal jurisdiction does not include corporations • Corporate criminal liability under national law (outside of the corruption context) is often limited, but is increasingly introduced • Individuals such as company directors can be liable, both under international and national criminal law

11. Civil litigation • Can take place in the transitional country itself or abroad, usually under tort law principles • Litigation abroad has primarily taken place under the US Alien Tort Claims Act for aiding and abetting violations of the law of nations, but also in other jurisdictions like the UK or Canada; such litigation often ends in settlements

12. reparations • The UNBasic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Lawsuggest that legal persons and entities can be liable to provide reparation to victims • They also call on states to provide guarantees of non-repetition, such as by “[p]romoting the observance of codes of conduct and ethical norms, in particular international standards . . . by economic enterprises.” • Reparations can take many different forms, from financial compensation to apologies, restitution (eg of land), termination or renegotiation of contracts, excluding companies from future public procurements

13. Reparations continued • Even where clear legal responsibility cannot be established, based on principles of reconciliation, solidarity and justice, there might be a case for corporations that benefited from dealing with the past regime to assist in the country’s reconstruction by helping finance reparations—for example, by contributing to a special fund for reparations or paying an annual tax to the authorities • where a corporation is to continue working in the same area after conflict or repression, the company could help provide infrastructure for the community by constructing roads, clean water pipelines, provide employment to surviving victims etc. • Where corporations have caused or benefited from land displacement it might be feasible to consider engaging them in a land restitution process

14. Institutional reform • Vetting processes seeking to exclude from public contracts corporations that were responsible for human rights violations and/or economic crimes • reforms of state institutions that regulate corporate behavior • regulation of corporate activities in the light of the UN Guiding Principles on Business and Human Rights

15. UN Guiding Principles on Business and Human Rights • states have a duty to regulate corporate activity to make sure that no human rights violations occur, and to help companies with avoiding their occurrence - requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication) • Companies have a responsibility to respect all internationally recognized human rights – includes avoiding complicity in human rights violations and due diligence responsibilities of identifying and addressing human rights impact of their activities • Remediation, including where company could not foresee or prevent human rights violations or where abuses were not committed by the companies but are directly linked to their operations, products, or services

16. Example of South africa • the TRC investigated the role of international corporations in apartheid South Africa and held a special hearing on businesses • It distinguished between different levels of involvement: • first order involvement meant that businesses played a central role in helping to design and implement apartheid policies • second-order involvement referred to supplying products or services knowing that they would be used for morally unacceptable purposes (eg providing arms and ammunition used for repression) • third order involvement were ordinary business activities that benefited indirectly by virtue of operating within the structures of apartheid; (eg the white agricultural industry benefited from its privileged access to land

17. South africa continued • recommendations did not distinguish according to the different levels of corporate involvement in apartheid crimes and included: • debt cancellation • a wealth tax • establishment of a business reconciliation fund to finance small black entrepreneurs • a 1% levy of the market capitalisation of company’s registered on the Johannesburg Stock Exchange to go into a special fund • a retrospective surcharge on corporate profits

18. South africa continued • The government did not implement any of the TRC’s recommendations regarding businesses • reparations were not to be provided by the perpetrators and beneficiaries of apartheid but rather by the state, which led to underfunding of the reparations programme • A voluntary business trust was set up, but not many businesses contributed, and there was no real congruence between the objectives of the trust and the recommendations of the TRC • Problems with this approach: • Impunity of corporate actors and dissatisfaction of victims with reparations led to lawsuits against corporations in the US • Unaddressed apartheid legacy in the mining sector led to Marikana massacre and silicosis lawsuits in South Africa and the UK • Granting far-reaching investor rights caused investment disputes over black empowerment policies

19. Conclusions • It is doubtful that the recurrence of violence can be prevented effectively without addressing its main causes and without identifying and holding accountable the main perpetrators, including corporations for being complicit in the violations if their complicity was of sufficient severity. • to leave the role of corporations outside of TJ processes would be problematic because it would stand in the way of • a full account of the truth of what happened, • achieving reconciliation in society and • preventing a repetition of conflict or dictatorships