When corporate actors, including corporate entities or individuals acting on behalf of a corporate entity, commit or are complicit in the commission of crimes linked to human rights abuses, accountability all too rarely follows. It is this impunity gap that “The Corporate Crimes Principles: Advancing Investigations and Prosecutions in Human Rights Cases” (“the Principles”) seek to address.
Human rights abuses occur in many different business contexts around the world. Examples include the murders of environmental defenders in Latin America, toxic waste dumping in Africa, the export of tools of torture from North America, forced labour in fisheries in Asia, the trafficking of migrant workers to the Middle East and the selling of surveillance equipment from Europe to enable governments to clamp down on freedom of expression. Yet systems of accountability built by regulators and implemented by law enforcement have not kept pace with the globalisation of corporate crimes. Particularly in the area of human rights and wrongdoing across borders, gaps exist where investigators, prosecutors and State policy-makers have failed to challenge corporate actors when they engage in crimes.
“Corporate crime” is defined in the Principles as illegal conduct that is linked to a human rights abuse, including conduct that should be criminalised in order to meet requirements under international law even if the State has failed to do so. In the latter case, law enforcement may be constrained in its ability to react. The State may also not have accepted certain international human rights obligations. The primary onus would be on the State to fill this gap. However, the Principles also call on law enforcement to use the full range of laws at their disposal to investigate and prosecute corporate crimes to the maximum extent possible under existing law.
The consequences of the status quo are grave – victims of corporate crimes cannot vindicate their rights and a culture of impunity is permitted. This fails to serve the public interest. In addition, corporate actors that seek to abide by the law are unfairly disadvantaged by the acts of competitors who may not behave ethically. This harms the integrity of markets and stifles fair competition.
These Principles address corporate crimes broadly, focusing not just on human rights abuses that should be criminalised, such as forced labour, human trafficking and aiding and abetting sexual and other forms of violence, but also conduct which may result in, or contribute to, human rights abuses. This latter category could include the following offences: toxic waste dumping (linked to negative impacts on the rights to health or water); pollution of air, land or water (which impair people’s rights to work, water or health); economic sanctions violations (which enable corporate actors to profit from human rights abuses); extortion (by abusive armed groups who control mine sites); handling of stolen goods (the sale of which benefits a human rights abuser); and other economic crimes such as fraud (used to circumvent environment or health regulations), tax evasion and corruption (which deprive the State of public funding for education and other essential services).
Tackling corporate crimes – especially when they occur across borders – raises many legal, political and practical challenges. Relevant laws may apply only within a State’s territory or may have been historically designed to address individuals rather than corporate entities. State authorities may not prioritise the investigation and prosecution of corporate crimes. Law enforcement officials may lack the expertise and resources to pursue this type of offence or face difficulties in collecting evidence, including from abroad. Because the corporate actors involved in crimes will often be located in multiple national jurisdictions, investigations can appear to be particularly daunting.
In contrast, transnational businesses often operate across borders with ease. They may benefit from differences in law and in the enforcement of law between States, or from well-established legal concepts such as limited liability and the corporate veil. They are often well-resourced and wield significant economic and political power in both their host and home countries.
To be clear, addressing corporate crimes is not a voluntary pursuit. A State’s duty to ensure remedy for human rights abuses, including to investigate allegations of violations and hold perpetrators accountable, is reflected in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. According to this instrument, the obligation to protect includes the duty to “[i]nvestigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law”.
This obligation is also reflected in the core international and regional human rights treaties, and has been further elaborated by the treaty bodies through their commentaries and jurisprudence. The UN Human Rights Committee (UNHRC), the expert body that provides authoritative guidance on the implementation of the International Covenant on Civil and Political Rights (ICCPR), has emphasised that, where investigations reveal violations, States parties must ensure that those responsible are brought to justice. A failure to do so could in itself give rise to a breach of the ICCPR. The UNHRC has stated that these obligations arise notably in respect of violations recognised as crimes under either domestic or international law. Various expert human rights monitoring bodies have also clarified that the State duty to protect human rights has an extra-territorial dimension – a State should take measures, consistent with international law, to prevent a corporate entity headquartered or incorporated in its jurisdiction from abusing human rights in another jurisdiction.1
To address corporate crimes, political barriers to pursuing these cases must be addressed. Investigators and prosecutors must be independent and impartial and have the capacity to bring cases without fear of reprisals, despite political ties that may exist between corporate actors and key government actors. To achieve this, States should provide political leadership by prioritising corporate crimes cases and making clear that corporate accountability is essential to ensuring the rule of law and access to justice. Once evidence of illegal activity comes to light, corporate actors need to know that they will be held accountable, whether at home or abroad, while still benefiting from due process and fair trial protections. Similarly, victims need to know that they will receive remedy and reparation for harm caused and that offenders will be held accountable.
In many cases, these goals can be achieved by actively recognising that corporate crimes need to be investigated and prosecuted properly through the better enforcement of existing laws and the use of specific policies and incentives encouraging law enforcement authorities to tackle corporate crimes. In his capacity as the UN Special Representative of the Secretary General on human rights and transnational corporations and other business enterprises, John Ruggie affirmed that “criminal provisions remain mere words on paper unless States act upon their obligations to investigate individual and corporate involvement in business and human rights-related crimes”.2
In other cases, achieving these goals will require the adoption of new laws or the reform of existing laws. The Principles recognise that across the globe, law enforcement will face very different kinds of challenges. This document seeks to identify ten core principles that should guide all investigators and prosecutors in their approach to accountability for corporate crimes, while taking into account the diversity of legal cultures. Each principle is supplemented by instructive commentary as well as examples of relevant tools and cases from particular jurisdictions.
In sum, the Principles are dedicated to implementing the State duty to protect as well as the realisation of the right to remedy and reparation for victims of corporate crimes. The Principles seek to ensure the highest possible level of accountability, deter future harm, encourage a responsible business culture and enable rights for the victims. They should be carefully studied and embraced by all State actors responsible for accountability for corporate crimes.