The Legal Framework Relevant to Corporate Conduct

International Law and the Complicity of Business in Human Rights Abuses

Hocine Ouazraf

The debate over the complicity of transnational corporations in violations of human rights and international humanitarian law (IHL) and, in particular, war crimes and crimes against humanity, has in recent years begun to attract renewed attention. The responsibility of multinational companies for complicity in the violation of human rights and IHL, especially in areas of armed conflict, required a response from the international community and the formulation of a judicial framework within which to supervise the conduct of multinationals. The obligation to avoid any involvement in violations of human rights and IHL is clearly set forth in the 1999 United Nations Global Compact, which was adopted at the initiative of the secretary-general at that time, Kofi Annan. Principle 2 of the pact stipulates that 'Businesses should make sure that they are not complicit in human rights abuses.'

While it is not binding, that text makes it possible to identify some major trends that can clarify the various forms which may be covered by the idea of complicity. The commentary on this principle clearly establishes a typology for various types of complicity in the following terms:

Direct Complicity occurs when a company knowingly assists a State in violating human rights. An example of this is where a company assists in the forced relocation of peoples in circumstances related to business activity. Beneficial Complicity suggests that a company benefits directly from human rights abuses committed by someone else. For example, violations committed by security forces, such as the suppression of a peaceful protest against business activities or the use of repressive measures while guarding company facilities, are often cited in this context. Silent Complicity describes the way human rights advocates see the failure by a company to raise the question of systematic or continuous human rights violations in its interactions with the appropriate authorities. For example, inaction or acceptance by companies of systematic discrimination in employment law against particular groups on the grounds of ethnicity or gender could bring accusations of silent complicity.

For example, it will be up to the tribunal to consider the cases of such businesses as Caterpillar, Volvo and Daewoo and to see whether they are complicit in violations of human rights committed by the Israeli authorities in the Palestinian territories. The bulldozers which those companies supply to the state of Israel are used in the wholesale destruction of Palestinian homes, schools, orchards and olive groves. In recent years, thousands of Palestinians have seen their homes destroyed with the direct support of Caterpillar, Volvo and Daewoo. Such conduct constitutes a violation of the most basic rules of IHL. The interdiction on the destruction of civilian dwellings is taken from the Fourth Geneva Convention of 1949 relative to the protection of civilians in time of war and, in particular, Article 53, which provides as follows:

Art. 53. Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

Furthermore, those three businesses are involved in the construction of the West Bank wall by supplying construction material. In its advisory opinion of 9 July 2004, the International Court of Justice stresses that the construction by Israel, the occupying power, of the wall in occupied Palestinian territory, including in and around East Jerusalem, and the associated regime, violate the international obligations which are incumbent upon it. Furthermore, through the construction of the wall, Israel ignores its international obligations under the relevant treaties. According to the Court, '... the construction of the wall has led to the destruction or requisition of properties under conditions which contravene the requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53 of the Fourth Geneva Convention.'

The construction of the wall has imposed substantial restrictions on the freedom of movement of the inhabitants of the Occupied Palestinian Territory as guaranteed under the International Covenant on Civil and Political Rights, Article 12, paragraph 1, which states that 'Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.'

An important and significant step was taken in August 2003 with the adoption by the Sub-Commission on the Promotion and Protection of Human Rights of a text concerning norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights. Companies are enjoined in the following manner not to render themselves guilty of complicity in violations of human rights and IHL:

3. Transnational corporations and other business enterprises shall not engage in nor benefit from war crimes, crimes against humanity, genocide, torture, forced disappearance, forced or compulsory labour, hostage-taking, extrajudicial, summary or arbitrary executions, other violations of humanitarian law and other international crimes against the human person as defined by international law, in particular human rights and humanitarian law.

The commentary on this article makes absolutely clear what is meant by 'the complicity of companies'. It forcefully stresses as follows:

(a) Transnational corporations and other business enterprises which produce and/or supply military, security, or police products/services shall take stringent measures to prevent those products and services from being used to commit human rights or humanitarian law violations and to comply with evolving best practices in this regard.

(b) Transnational corporations and other business enterprises shall not produce or sell weapons that have been declared illegal under international law. Transnational corporations and other business enterprises shall not engage in trade that is known to lead to human rights or humanitarian law violations.

The significance of this text lies essentially in the fact that it contains principles that are directly derived from international law and major human rights-related international conventions. In other words, it merely confirms the existing...