21 Apr John Ruggie on Corporate Complicity for Human Rights Violations
John Ruggie, the Special Representative of the Secretary-General on Human Rights and Transnational Corporations, issued a draft report last week that “presented a conceptual and policy framework to anchor the business and human rights debate.” The section that particularly grabbed my attention was on corporate complicity for human rights violations. Notice the shift toward recognition of corporate responsibility for international law violations, something that has been debated for decades:
73. The corporate responsibility to respect human rights includes avoiding complicity. The concept has legal and non-legal pedigrees, and the implications of both are important for companies. Complicity refers to indirect involvement by companies in human rights abuses – where the actual harm is committed by another party, including governments and non-State actors. Due diligence can help a company avoid complicity.
74. The legal meaning of complicity has been spelled out most clearly in the area of aiding and abetting international crimes, i.e. knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime, as discussed in the 2007 report of the Special Representative. The number of domestic jurisdictions in which charges for international crimes can be brought against corporations is increasing, and companies may also incur non-criminal liability for complicity in human rights abuses.
75. In non-legal contexts, corporate complicity has become an important benchmark for social actors, including public and private investors, the Global Compact, campaigning organizations, and companies themselves. Claims of complicity can impose reputational costs and even lead to divestment, without legal liability being established. In this context, allegations of complicity have included indirect violations of the broad spectrum of human rights – political, civil, economic, social, and cultural.
76. Owing to the relatively limited case history, especially in relation to companies rather than individuals, and given the substantial variations in definitions of complicity within and between the legal and non-legal spheres, it is not possible to specify definitive tests for what constitutes complicity in any given context. But companies should bear in mind the considerations set out below.
77. Mere presence in a country, paying taxes, or silence in the face of abuses is unlikely to amount to the practical assistance required for legal liability. However, acts of omission in narrow contexts have led to legal liability of individuals when the omission legitimized or encouraged the abuse. Moreover, under international criminal law standards, practical assistance or encouragement need neither cause the actual abuse, nor be related temporally or physically to the abuse.
78. Similarly, deriving a benefit from a human rights abuse is not likely on its own to bring legal liability. Nevertheless, benefiting from abuses may carry negative implications for companies in the public perception.
79. Legal interpretations of “having knowledge” vary. When applied to companies, it might require that there be actual knowledge, or that the company “should have known”, that its actions or omissions would contribute to a human rights abuse. Knowledge may be inferred from both direct and circumstantial facts. The “should have known” standard is what a company could reasonably be expected to know under the circumstances.
80. In international criminal law, complicity does not require knowledge of the specific abuse or a desire for it to have occurred, as long as there was knowledge of the contribution. Therefore, it may not matter that the company was merely carrying out normal business activities if those activities contributed to the abuse and the company was aware or should have been aware of its contribution. The fact that a company was following orders, fulfilling contractual obligations, or even complying with national law will not, alone, guarantee it legal protection.
81. In short, the relationship between complicity and due diligence is clear and compelling: companies can avoid complicity by employing the due diligence processes described above – which, as noted, apply not only to their own activities but also to the relationships connected with them.
To bring this home to many, I would encourage persons to read Edwin Black’s, IBM and the Holocaust that came out in 2000. It very persuasively points out how a key tool of the Nazis was to be early innovators in using punchcard technology newly developed at IBM. It describes the bidding for the 1933 census soon after Hitler came to power and the effort to essentially put the entire population of Germany on punchcards. Then you could proceed to sort and re-sort those cards in myriad ways. The result could be that you could make persons with certain characteristics who might only be a few in any given area all disappear. You would not have the sense of them all disappearing at once – that would be for later. But, in the beginning a few selected people disappear. The book also talks about (for any of you old enought to remember the 60’s and the IBM 360, punch card sorting, Hollerth codes on 80 column standardized cards) the fact that each punchcard for each project had to be specially designed – there was no standardization. So the Nazis had to explain what was the information to be put in… Read more »