Conflict-driven societies are the most difficult places for exercising even basic human rights and are more prone to gross violations of human rights. Quite often, corporations are also found to be involved in the commission of such gross abuse or assisting in their commission. The Rome Statute is the only legally binding instrument which seeks to bring about accountability for such gross violations of human rights committed by individuals and recognises three broad categories of international crimes i.e., genocide, war crimes and crimes against humanity. Although not expressly mentioned in the Statute, an  individual may include such corporate officers who are involved in perpetration of international crimes (see here). It was only in 2019 that the Revised Draft of the legally binding instrument on business and human rights laid down provisions establishing explicit legal responsibility for activities of business entities involving grave breaches of human rights. A similar legal framework was envisaged by John Ruggie too.

Incorporation of such a concept in the Revised Draft makes it unique primarily for two reasons. Firstly, the Revised Draft provides the first-ever normative framework governing criminal responsibility of corporations for international crimes as mentioned under the Rome Statute. Although this concept in itself is not novel and has been highlighted at different forums, this is the first innovative step providing a mandatory obligation for States to prevent and mitigate business-related abuses in conflict situations. And, secondly, inclusion of such a concept strengthens the rights of victims and provides them with platforms to exercise their rights, not only against violations of human rights treaties but also gross violations under international criminal law. The article seeks to analyse this novel concept present under the Revised Draft by looking into the language of its substantive provisions, State practices and its possible interpretation in line with the Rome Statute.

Legal Liability:

It is widely acknowledged that prior to the Nuremberg Tribunal, there was no well-defined concept of individual responsibility under international law. The concept has evolved with time and a refined version is presently found under the Rome Statute of 1998. However, the Rome Statute has its limitations too. The absence of stronger commitments and strengthened cooperation being a few of the major issues which are reflective of the unwillingness of States to be party to this Treaty as well as State Parties not respecting their obligation to cooperate with the Court. These drawbacks of international criminal law make it more difficult to bring accountability to the acts of businesses involved in gross violations of human rights. The Revised Draft seeks to fill this gap in the regime by making businesses liable for their conduct involving international crimes.

The Preamble of the Revised Draft is reflective of such recognition where the Draft desires to contribute to the development of international law, international humanitarian law and international human rights law in this field and upholds the right of access to justice and remedy in case of violations of international human rights law or international humanitarian law. Establishing legal liability explicitly for the corporations committing international crimes is indeed a critical development in international law.

Sub-clause (a) of Article 6(7) is the primary substantive provision laying down the liability for corporations involved in activities constituting international crimes as recognised under Rome Statute. It states that State Parties shall ensure that their domestic legislation provides for criminal, civil, or administrative liability of legal persons, subject to their domestic law, for “War crimes, crimes against humanity and genocide as defined in articles 6, 7 and 8 of the Rome Statute for the International Criminal Court.” Apart from imposing legal liability for the commission of offences recognised under the Rome Statute, the Revised Draft, under Article 6(9), also establishes liability for acts that constitute attempt, participation or complicity in commission of such offence. This is in line with obligations laid down under Article 25(3)(c) of the Rome Statute. State Parties have an obligation under the Revised Draft to formulate domestic legislation or modify existing ones to incorporate liabilities for the crimes, as recognised under Rome Statute, committed by corporations.  The feasibility of carrying out such obligation at domestic level can be seen from the State Practice in obliging with the similar obligation under Rome Statute. Many countries such as Argentina, Belgium, Canada, Germany, South Africa etc. have complied with their obligation of fully incorporating the Rome Statute’s three international crimes into their domestic legislations. A similar practice of making businesses responsible for perpetration of international crimes can be found under Article 46 C of Malabo Protocol that imposes criminal liability under the African Court for crimes committed by corporations. However, such a protocol is also not bereft of any shortcomings, providing immunity to senior state officials being one of them.

Implementation of such provision is possible as evidenced from State practice over the past two decades. The issue, however, lies in framing the language of this provision. The Revised Draft gives the option to States to impose either civil or criminal or administrative liabilities for international crimes which is contrary to what is envisaged under the Rome Statute which is limited to imposing criminal liability for such heinous crimes. Also, the Draft doesn’t make any reference to approaching the International Criminal Courts or any other international courts in case of its violation by corporations. This can lead to major hurdles in actual implementation of this provision where the domestic courts, due to reasons of corruption, less expertise, delayed process etc, are unable to prosecute corporations effectively.

Other Obligations:

The Revised Draft, along with imposing legal liability for international crimes, also establishes another obligation on States and corporations to ensure the overall protection of individuals from human rights violations even in conflict situations. The provision which regulated the conduct of businesses in conflict situations is found under Article 5 titled, ‘Prevention’. This Article, in its clause (3)(e), requires undertaking due diligence measures to prevent human rights violations or abuses in occupied or conflict-affected areas, arising from business activities or contractual relationships, including with respect to products and services. Article 5 lays down several processes for effective compliance and implementation of due diligence measures, such as – providing incentives to small- and medium-sized undertakings to reduce their undue burdens but it fails to prescribe any penalties, in case of its violation.

Further, Article 8(1) precludes State Parties from putting any statutory or other limitations in prosecuting and punishing for “all violations of international human rights law and international humanitarian law which constitute the most serious crimes of concern to the international community as a whole”. This Article is a progressive step towards effective implementation of this Treaty, however the Article contains broadly worded and ambiguous phrase such as – “all violations of international human rights … the international community as a whole”. Article 6, which prescribes legal liability for offences, doesn’t mention such wide-ranging phrase and instead provides, under its clause (7), for an exhaustive list of criminal offences which is preceded by the words “for the following criminal offences”. The chapeau of Article 6(7) doesn’t use “including” or “inter alia” for the sole reason of making the list of crimes exhaustive and the same has been reiterated by delegations in its negotiating process as well.

Conclusion:

By including separate provisions on legal liability and due diligence, along with providing exemptions from statutes of limitation, the Revised Draft establishes the first-ever normative framework governing violations of international crimes in conflict situations committed by the corporations. However, certain limitations in the language of these provisions as well as the Draft’s sole reliance on domestic legal frameworks for addressing this serious abuse may affect the effectiveness of compliance of such novel provisions. Also, looking at the trend of exiting from the Rome Statute and its related backlash, the actual implementation of such provisions in the Revised Draft a little murky.

Nidhi Singh holds a B.A. LLB (Hons.) from Chanakya National Law University and an LLM (International Law) from South Asian University. She is currently working as a Legal Research Fellow in the Trade Policy Division, Department of Commerce and Industry, Government of India.

This post reflects the author’s personal views.