Public-Private Genocide?

[Professor Sundhya Pahuja is ARC Kathleen Fitzpatrick Laureate Professor and Professor of international law at the University of Melbourne.  She is the Director of the Laureate Program in Global Corporations and International Law.

Dr. André Dao is a postdoctoral research fellow with the Laureate Program]

On 30 June 2025, UN Special Rapporteur Francesca Albanese issued a report detailing corporate complicity in Israel’s illegal occupation of Palestinian territory and genocide against the Palestinian people. Special Rapporteurs are independent experts appointed by the United Nations Human Rights Council to investigate and report on specific human rights situations or themes around the world. Albanese provides a forensic account of how corporations across eight sectors, including arms manufacturers, tech firms and extractive industries, are both crucial to, and profit from, Israel’s violations of international law. The report thus provides a map of the specific corporations and sectors involved in the genocide.

The report comes at a time when many people are growing uneasy about the increasing power and impunity of corporations, particularly as the state in many places is becoming authoritarian. From modern slavery to climate change, and from war profiteering to genocide, major corporations around the world seem to be able to harm people and planet with impunity. The global movement to hold corporations to account for harmful behaviour has steadily gained ground. But Albanese’s recent report, entitled ‘From economy of occupation to economy of genocide’, is a landmark statement in challenging corporate impunity. It advances a new vision of corporate accountability that understands that many of the world’s harms are the result of states and corporations working closely together.

The existing mechanisms for holding corporations to account are inadequate to the task. The most important, in the field of Business and Human Rights (BHR), is encapsulated in a document known as the United Nations Guiding Principles (the UNGPs). The UNGPs were a compromise response to demands by many states and civil society activists for something much stronger than what eventuated, in both substance and form, for holding corporations to account.  Formulated by Harvard Professor John Ruggie in the mid-2000s, the success of the UNGPs lies in their widespread acceptance by the business world.  This uptake is largely due to their voluntary nature and their reliance on language and tools corporations are familiar with. Chief among these is the stipulation that all corporations should carry out ‘human rights due diligence’. In substance, this is a tool that encourages corporations to investigate and mitigate the risk of potential human rights violations in the same way they would approach more familiar financial or legal risks.

But what attracts corporations to the UNGPs is also their weak point for everyone else. Besides being voluntary and not binding, by translating human rights into the language of risk management, due diligence makes it possible for corporations to focus narrowly on discrete harms rather than on the effects of their business models as a whole. And in practice, the human rights risk assessments at the heart of due diligence are often an opportunity for corporations to ‘balance’ presumed economic benefits to vulnerable peoples against actual human rights violations.

A similar problem plagues the other core regime of accountability for grievous corporate conduct, international criminal law (ICL). As a mechanism for holding individuals within companies responsible for corporate harms, ICL dates from the Nuremberg trial of directors of IG Farben, the German chemicals manufacturer responsible for amongst other acts, making the Zyklon B gas used in the concentration camp chambers. Unlike BHR, ICL is binding, and punishing individual decision-makers can meet some victims’ demands for justice. But like BHR, it also misses the structural point, both by being confined to individual actors within corporations, and by taking a ‘few bad apples’ approach to corporate misconduct, normalising wider patterns of harm.  Even were international criminal responsibility to be extended to corporations themselves rather than the individuals within them, this structural problem would remain, and the deleterious effects of ‘business as usual’ would remain unchallenged. This is particularly problematic when corporations operate within, and often in close partnership with, undemocratic states.

As many scholars have detailed, the Holocaust could not have happened without corporate complicity. A few corporate leaders were tried, but most companies complicit with the regime escaped unscathed. Many still operate today. What is less widely known is that Fascists (first the Italian version, then the German version) invented the modern practice of ‘privatisation’. This involved handing over control of state-owned monopolies to corporations. This had the immediate consequence of shoring up business support for the regimes of Mussolini and Hitler. In the longer term, it created a certain pattern of power, whereby economic control and benefit was concentrated in a wealthy, fascist-supporting elite and away from the ‘public’. At the same time, the state maintained its monopoly on legitimate violence, which was re-orientated in service of private corporations.

It is telling that the man who popularised the concept of privatisation in the Anglosphere, the management consultant Peter Drucker, originally called it re-privatisation. He meant that giving private corporations responsibility over ‘economic’ life was merely to return to them a responsibility they had held before the late nineteenth century, which had seen the birth of the modern public sector through successive waves of nationalisation and municipalisation. Drucker’s argument sought to naturalise privatisation in modern democratic states. In fact, he was more correct than he realised, but in a different way: long before the 19^th century, private corporations had been responsible for engaging in colonial conquest and colonial government. The ‘public’ colony of British India, for instance, was originally ruled for over 200 years by the ‘private’ British East India Company. Colonialism was, in other words, always a form of public-private partnership.

Today, many states going “bad” are led by authoritarian populists supported by big business, who are in turn supported by those leaders. Think of the conclave of oligarchs standing behind Donald Trump at his inauguration, Adani’s funding of Narendra Modi after the Gujarat massacre, or the concentration of media ownership among businessmen linked to Victor Orbán in Hungary. This form of company-state relation far exceeds mere ‘corruption’. It represents what we might call empire coming home: a technology of governance from the colonial encounter, used to extend a form of public-private rule over distant peoples, is now turned inwards, upon the state’s ‘own’ people.

This intimacy between corporation and state is at the heart of Albanese’s report. Refusing the tendency of Business and Human Rights and international criminal law to focus on discrete, ‘rogue’ behaviour, Albanese insists on understanding corporate crimes in a long historical trajectory. Thus the very first line of the report acknowledges that ‘colonial endeavours and associated genocides have historically been driven and enabled by the corporate sector’. This turn to history then makes it possible to see that the activities of major corporations such as IBM, Caterpillar, and Blackrock in Israel and the Occupied Palestinian Territories is not incidental or aberrant, but part of a longstanding pattern of power.

The innovative part of Albanese’s report is that she does not jettison human rights or international criminal law, but instead reworks them so that they can begin to address genocide and other serious harms as the result of a public-private partnership. One of the ways she does this is by refocusing corporate accountability efforts on how corporations’ ‘specific human rights violations may also be constitutive of more structural and systemic violations of international law’. In the case of Palestine, this means that corporate due diligence is not satisfied simply by muddying the evidentiary waters over whether a specific weapons part was used to commit a specific violation. It is the very relationship itself between company and state that enables, among other things, the systemic violation of Palestinians’ right to self-determination. And as Albanese points out, the systemic nature of this violation invalidates ‘paternalistic’ arguments about the economic benefits of continued engagement with Israel’s occupation regime.

The response to Albanese’s report has confirmed its significance. Nine days after Albanese filed the report, the US government announced it was imposing sanctions on her for ‘writing threatening letters to dozens of entities worldwide, including major American companies across finance, technology, defense, energy, and hospitality, making extreme and unfounded accusations and recommending the ICC pursue investigations and prosecutions of these companies and their executives.’  These letters to corporations were deemed by US Secretary of State, Mark Rubio, to constitute ‘political and economic warfare, which threatens our national interests and sovereignty.’ The ‘our’ says it all, revealing the US’ own perception about how to understand its ‘national’ interest. When it comes to the genocide in Gaza, as was the case throughout colonial history, public and private interests – and culpability – are inextricably linked.