ICAR Concept Note Commerce Crime and Human Rights

COMMERCE, CRIME, AND HUMAN RIGHTS: CLOSING THE PROSECUTION GAPS SUMMARY When businesses engage in illegal conduct that results in serious human rights abuse, they rarely, if ever, are held to account. This problem is particularly acute in the context of business activity involving multiple jurisdictions. Home States rarely take steps to investigate or prosecute their companies for their involvement in human rights violations, even if the home State’s legal framework appears to permit such remedies.1 The victims of corporate abuse continue to demand justice without success.

State authorities must take action to protect human rights. This can be achieved by enforcing criminal laws where they exist and/or enacting reforms to allow for criminal prosecution, including against businesses.

There is a need to build consensus around addressing prosecution gaps at the national level, with a view to ultimately moving towards international consensus. These gaps include those related to prevention, investigation, punishment, and redress for corporate criminal acts that either are or lead to serious human rights abuses (“corporate crimes”). A number of hurdles exist. In many instances, State authorities do not enforce existing laws because they do not prioritize prosecution of corporate crimes. The result is that businesses are not properly held to account and the right to remedy for victims is not realized.

ICAR’s Commerce, Crime, and Human Rights (CCHR) project will develop recommendations for State practice in addressing these prosecution gaps for corporate crimes. The project will bring together a group of experts in criminal investigation and prosecution who will: (i) identify prosecution gaps at the national level and (ii) develop a framework to govern State practice in addressing those gaps. In so doing, the project aims to establish a common baseline for how States should address corporate crimes. This work will also inform calls at the international 1

See ANITA RAMASASTRY & ROBERT C. THOMPSON, COMMERCE, CRIME, AND CONFLICT (2006) available at http://www.fafo.no/pub/rapp/536/536.pdf; AMNESTY INTERNATIONAL, INJUSTICE INCORPORATED (forthcoming 2014); GWYNNE SKINNER, ET. AL, THE THIRD PILLAR: ACCESS TO JUDICIAL REMEDIES FOR HUMAN RIGHTS VIOLATIONS BY TRANSNATIONAL BUSINESS (2013) available at http://accountabilityroundtable.org/wp-content/uploads/2013/02/The-Third-PillarAccess-to-Judicial-Remedies-for-Human-Rights-Violation-by-Transnational-Business.pdf. The project builds on ICAR experience and on-going work on this issue and on the broader challenge of access to remedy for victims of corporate human rights abuses.

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level (e.g. UN declaration, legal instrument, other) for corporate accountability for human rights abuses.

BACKGROUND Legal and policy experts recognize that prosecution gaps exist when it comes to holding business actors to account for corporate crimes. In his paper entitled “Some Preliminary Thoughts on the Follow-Up to the Mandate of the SRSG for Business and Human Rights,” the former UN SRSG John Ruggie found that “national jurisdictions have divergent interpretations of the applicability to business enterprises of international standards prohibiting gross human rights abuses, potentially amounting to the level of international crimes.”2 This divergence is particularly problematic where States are either unable or unwilling to protect people from corporate-related human rights abuse, such as in situations of conflict or widespread violence.

Ruggie argued that in order to create “greater consistency in legal protection” afforded by States, a multilateral instrument may be necessary.3 The SRSG pointed to the UN Convention against Corruption as a potential model for such a legal instrument.

Civil society groups continue to call for stronger standards relevant for corporate accountability at the international level. In 2013, some called for “binding systems of international regulation and norms for TNCs”4 going beyond gross human rights abuses.

Later that year, a number of UN Member States at the UN Human Rights Council stated: An internationally legally binding treaty instrument, concluded within the UN system, would clarify the obligations of transnational corporations in the field of human rights, as well as of corporations in relation to states, and provide for the establishment of effective remedies for victims in cases where domestic jurisdiction is clearly unable to prosecute effectively those companies.5

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Recommendations on Follow-up to the Mandate, United Nations, Mandate of the Special Representative of the Secretary-General (SRSG) on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, (Feb. 11, 2011), available at http://www.business-humanrights.org/media/documents/ruggie/ruggiespecial-mandate-follow-up-11-feb-2011.pdf 3 Professor Ruggie suggested three options to this end: an expert process involving government-appointed experts with cross-regional representation to assess and develop options for multilateral action; an inter-governmental process of drafting a new legal instrument; or a mandate to an individual or group to prepare the ground for an intergovernmental process. To date, no such process has been launched.

4 See Statement to the Human Rights Council in Support of the Initiative of a Group of States for a Legally Binding Instrument on Transnational Corporations (Sept. 13, 2013) available at http://www.stopcorporateimpunity.org/?p=3830; see also Joint Statement: Call for an International Legally Binding Instrument on Human Rights, Transnational Corporations and Other Business Enterprises (Nov. 7, 2013) available at http://www.escrnetpeoplesforum.org/joint-statement-binding-international-instrument.

5 Statement on Behalf of a Group of Countries at the 24rd Session of the Human Rights Council (Sept. 2013) available at http://business-humanrights.org/media/documents/statement-unhrc-legally-binding.pdf. The group

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The Office of the High Commissioner for Human Rights will in early 2014 publish a research study examining the effectiveness of domestic judicial mechanisms in relation to business involvement in gross human rights abuses. The study will form the first part of a process to provide conceptual, normative and practical clarification of key issues aimed at creating a fairer and more effective system of domestic law remedies to address corporate liability for gross human rights abuses.

Despite this activity, no process exists to ensure that States close prosecution gaps. This Project aims to set the process in motion.

PROJECT DESCRIPTION The project will map the prosecution gaps that currently exist, drawing on the experience of lawyers and other practitioners who have encountered these obstacles. Then, the project will identify senior jurists and criminal law experts and will work with these individuals to examine the causes of these gaps and develop an authoritative framework for State action.

These results will be achieved through the following activities: Phase One: Mapping. The first phase of the project will involve a mapping study focused on establishing the range of corporate crimes. The mapping study will identify perceived and actual obstacles that hinder prosecutions and draft practical recommendations for addressing these. The project will draw on actual examples of attempts by lawyers and other practitioners to mount prosecutions for corporate crimes. The study will also examine existing models of legislation and regulation at the national and international level. This phase of the project will result in draft recommendations to be shared with experts on investigations and prosecution as the basis for their deliberations about options for state action.

Phase Two: Framework for State Action. In Phase Two, the Project will develop a concrete framework to improve State practice with respect to corporate crimes. To this end, the Project will draw on the expertise of senior jurists and criminal law experts to develop an authoritative framework for State action. In order to achieve access to justice for victims, the framework will address and attempt to resolve a range of legal and policy issues. For example: the standards for appropriate investigation, punishment, and redress; effective, appropriate, and dissuasive sanctions; greater transparency with respect to the exercise prosecutorial discretion; the appropriate extension of jurisdiction by States; the basis for such jurisdiction; options for the resolution of jurisdictional disputes; the fora and mechanisms for international cooperation.

included the African Group, the Arab Group, Pakistan, Sri Lanka, Kyrgyzstan, Cuba, Nicaragua, Bolivia, Venezuela, Peru and Ecuador.

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The goal is for the framework to provide the basis for advocacy to States to close prosecution gaps. As a byproduct, this framework will contribute much needed evidence to the process of establishing international consensus on this issue.

We have organized a Leadership Team to drive the work of this Project. The Leadership Team will include members of ICAR, such as Amnesty International, as well as Mark B. Taylor as an External Advisor. The Leadership Team will execute Phase One of the project and will serve as the secretariat to the group of experts in Phase Two. The Leadership Team will seek out strategic collaborations when opportunities arise.

PROJECT TIMELINE (SUBJECT TO REVISION)        

February 2014 – Leadership Team consultation on project strategy; May/June 2014 – Leadership Team convenes planning meeting with practitioners; September 2014 – Leadership Team convenes initial meeting with Commission of Experts; January 2015 – Leadership Team reports to Commission of Experts; February 2015 – Commission of Experts convenes to discuss report and develop framework; May 2015 – Commission of Experts convenes meeting to discuss report and develop framework; (If needed) June 2015 – Commission of Experts shares draft principles for multi-stakeholder commentary; September 2015 – Commission of Experts publishes final framework.

EXTERNAL ADVISOR Mark B. Taylor Mark B. Taylor is a Senior Researcher at the Fafo Institute for Applied International Studies in Oslo, Norway. For over a decade, Mr. Taylor has worked on the law and policy applicable to economic dimensions of armed conflict and has written, among other things, on business due diligence, business in conflict zones, conflict minerals, and business and human rights. He has acted as an advisor on these issues, working with governments, the United Nations, nongovernmental organizations and businesses. Most recently, Mr. Taylor authored the mapping study on the state duty to protect human rights commissioned by the government of Norway as part of its preparations for developing a national action plan for implementing the UN’s Guiding Principles on Business and Human Rights. Mr. Taylor participated as an expert in the OECD-led process which produced the “OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas” and advised the UN SRSG on Business and Human Rights, Professor John Ruggie, in the latter’s dialogue with governments on how to 4

respond to business in conflict zones. A former Managing Director of Fafo AIS, Oslo, Mr. Taylor is Fafo’s representative on the Just Jobs Network led by the Center for American Progress, in Washington DC. Mark is Editor of the legal analysis blog “Laws of Rule” (www.lawsofrule.net) as well as the “Red Flags” initiative (www.redlfags.info) on liability risk for business in conflict zones. A list of publications can be found here: http://www.fafo.no/pers/bio/mta.htm. Mr. Taylor was also an Expert Author for the Human Rights Due Diligence Project, a collaborative project commissioned by the International Corporate Accountability Roundtable, the European Coalition for Corporate Justice and the Canadian Network on Corporate Accountability.

ORGANIZATIONAL INFORMATION The International Corporate Accountability Roundtable (ICAR) is coalition of leading civil society groups from the human rights, labor, environmental, development and union communities.

Members include Amnesty International, EarthRights International, Global Witness, Human Rights First, and Human Rights Watch. Based in Washington, D.C., the organization harnesses the power of the human rights, environmental and labor communities to identify and promote robust frameworks for corporate accountability; strengthen current measures; and defend existing laws, policies and legal precedents.

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