THE CORPORATE
CRIMES PRINCIPLES
ADVANCING INVESTIGATIONS AND
PROSECUTIONS IN HUMAN RIGHTS CASES
OCTOBER 2016
MEMBERS OF THE
INDEPENDENT COMMISSION OF EXPERTS
The Corporate Crimes Principles were adopted by the
following experts in their individual capacity.
Justice Ian Binnie (Co-Chair) Anita Ramasastry (Co-Chair)
William Bourdon
Siri Frigaard
Nuhu Ribadu
James G Stewart
Mark Taylor
Alex Whiting
Martin Witteveen
PROJECT ADVISERS
Amnesty International is a global movement of more than
7 million supporters, members and activists in more than 150
countries and territories who campaign to end grave abuses
of human rights. Its vision is for every person to enjoy all the
rights enshrined in the Universal Declaration of Human Rights
and other international human rights standards. It is independent of any government, political ideology, economic interest
or religion and is funded mainly by its membership and public
donations.
The International Corporate Accountability Roundtable (ICAR) is a coalition of human rights, environmental,
labour and development organisations that creates, promotes
and defends legal frameworks to ensure corporations respect
human rights in their global operations. ICAR is a project of
the Tides Center.
ACKNOWLEDGEMENTS
The Independent Commission of Experts and the Project Advisers would like to thank the following organisations for their
support and collaboration in the organisation and facilitation
of the Commerce, Crime and Human Rights Project’s various
events and consultations:
American Bar Association (ABA)
International Commission of Jurists (ICJ)
International Association of Prosecutors (IAP)
Ofice of the United Nations High Commissioner
for Human Rights (OHCHR)
The listing of the above organisations and their participation
in this Project does not constitute an endorsement of the
Principles.
TABLE OF CONTENTS
THE CO Introduction
THE CO Methodology
THE CO Key Terms
i
vi
viii
THE CORPORATE
CRIMES PRINCIPLES
THE CORPORATE
CRIMES PRINCIPLES
impunity for corporate crimes by investigating
1 Fight
and prosecuting offences
impunity for cross-border corporate crimes by
2 Fight
choosing to assert jurisdiction
Guarantee accountability and transparency in the
3 justice process when pursuing corporate crimes
19
Identify the legal standards and secure the evidence
needed to establish liability for corporate crimes in
your jurisdiction
28
4
widely to ensure accountability for
5 Collaborate
corporate crimes, particularly in cross-border cases
charges that relect the gravity of the
6 Pursue
corporate crimes committed
and prosecute those corporate actors
7 Investigate
most responsible for the wrong doing
8
Use all available legal tools to collect evidence,
build cases and obtain the cooperation of critical
witnesses in corporate crimes cases
that victims of corporate crimes are able to
9 Ensure
obtain effective remedies
10
Put in place appropriate measures and incentives
to protect victims, informants, whistle-blowers,
witnesses and experts in corporate crimes cases
1
9
34
42
47
53
58
64
INTRODUCTION
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 isheries in Asia, the traficking 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 deined 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 ill 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.
i
Introduction
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 stiles
fair competition.
These Principles address corporate crimes broadly, focusing
not just on human rights abuses that should be criminalised,
such as forced labour, human traficking 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 proit from human rights abuses); extortion (by abusive armed groups who
control mine sites); handling of stolen goods (the sale of which
beneits 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 oficials may lack the expertise and resources to
pursue this type of offence or face dificulties 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.
Introduction
ii
In contrast, transnational businesses often operate across
borders with ease. They may beneit 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
signiicant 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 relected 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 relected 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 clariied 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
iii
Introduction
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 beneiting
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 speciic 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 afirmed 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.
Introduction
iv
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.
v
Introduction
METHODOLOGY
Over a period of two years, the Project Advisers conducted a
series of global consultations with prosecutors, investigators,
academics and other experts specialising in criminal prosecution and investigation as well as international criminal law
and human rights law. Drawing from the indings of the consultations, the Project’s Independent Commission of Experts
(“experts”) developed the Principles to advance investigations
and prosecutions in human rights cases.
The Independent Commission of Experts
The nine Experts were chosen due to their expertise in relevant subject areas, including international criminal law and
human rights law, and to represent a diversity of legal jurisdictions. The Commission is co-chaired by Justice Ian Binnie, a
former justice of the Supreme Court of Canada, and Professor
Anita Ramasastry, an expert in anti-corruption and business
and human rights.
Consultations with Civil Society and Law Enforcement
From February 2014 to May 2016, the Project Advisers,
together with the Experts, conducted a series of conidential
consultations with over 120 law enforcement oficials, including investigators and prosecutors, legal experts, non-government organisations (NGOs) and academics. The consultations
were conducted in person, or via telephone, written questionnaire or correspondence. The Project Advisers conducted 57
individual consultations and ive group consultations held in
Bangkok, Addis Ababa, New York, London and The Hague.
The consultations included representatives from twenty countries: Argentina, Bangladesh, Belgium, Canada, France, Germany, Ghana, India, Indonesia, the Netherlands, Nigeria,
Norway, Portugal, Slovenia, South Africa, Switzerland, Thailand, Uganda, the United Kingdom and the United States.
Methodology
vi
The individuals consulted specialised in a wide range of legal
disciplines, such as international human rights law; international criminal law; environmental law; commercial and
inance law; economic crime law including bribery, corruption, money laundering and economic sanctions; and general
criminal law.
Drafting of the Principles
Working sessions between the Experts and the Project Advisers took place over a one-year period, including three in-person meetings. During this period, proposals and text were
formulated for addressing key challenges identiied during the
consultations. The inal draft was presented at the last of those
meetings, which also involved individuals external to the Project from law enforcement as well as NGOs.
During the consultations, cases were discussed to illustrate
both the problems and successes in pursuing investigations
and prosecutions against corporate actors. While some of
these cases are not speciic to human rights, they have been
included in the Principles for illustrative purposes along with
an accompanying explanation.
Company responses
Before publication, the Project Advisers contacted the companies referenced in the Principles to provide the text of the
relevant case studies and provide an opportunity to respond.
The responses are relected in the Principles as appropriate
and available on the Project website at www.commercehumanrights.org.
All other materials relating to the Commerce, Crime and Human Rights Project and the Principles are also available on the
Project website.
vii
Methodology
KEY TERMS
Corporate actor
A corporate entity or individual acting on
behalf of a corporate entity.
Corporate crime
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.
Corporate entity
Any type of undertaking that carries on a
business or trade, whether an incorporated
entity, a limited liability company, a
partnership or otherwise.
Home State
The State in which a corporate entity is
incorporated, registered, has its legal
address (domicile) or main ofice.
Host State
The State, other than the home State, in
which a corporate entity operates, whether
through a subsidiary, joint venture or other
commercial arrangement.
Law enforcement
Police, investigators, investigative judges
and prosecutors.
NGO
Non-governmental organisation.
Key Terms
viii
1
Fight impunity for corporate crimes by
investigating and prosecuting offences
States have a duty to protect against human rights abuses committed
by corporate actors. This includes addressing issues of political will,
adopting adequate regulations, prohibiting corporate crimes, investigating abuses and providing an effective remedy. Where there are
gaps in the existing legal frameworks, States must adopt or amend
laws. States must also guarantee the safety and independence of
investigators and prosecutors to pursue corporate crimes.
Law enforcement plays a central role in ensuring justice. They can
face signiicant personal risks and other obstacles in doing so. Yet
to ight impunity, law enforcement must take action to confront the
challenges of pursing corporate crimes head-on, including the inherent complexity and power of corporate actors.
COMMENTARY
Challenges
Investigators and prosecutors interviewed by the Project Advisers
acknowledged that in some States a signiicant obstacle to justice in
corporate crimes cases is the inluence corporate actors may have
over governments and regulatory systems, either directly or indirectly. For example, in some cases it may not be in the interest of
government authorities to pursue a corporate entity or its directors
for corporate crimes due to personal and professional relationships,
or inancial and/or other aligned interests between the corporate
actor and the State. Individual investigators or prosecutors may be
pressured into, or rewarded for, turning a blind eye. On the other
hand, if they do decide to act in that situation and pursue corporate
actors for illegal activities, they may face real personal risks and ind
their safety compromised.
Where law enforcement does have the independence to act, corporate crimes cases still often receive less priority than other domestic offences. There are many reasons why corporate crimes cases
1
Principle One
receive insuficient attention. Examples include a lack of experience
with such cases among investigators and prosecutors as well as internal pressures to close cases quickly and successfully. Additionally,
corporate crimes cases can generally be seen as more complicated,
requiring specialised knowledge and additional resources. They can
involve a large number of actors: the company itself, its subsidiaries
and afiliates as well as those directors, employees and agents acting
on their behalf. In some jurisdictions, laws applicable to corporate
crimes may set out speciic or even unique legal tests for establishing liability that are challenging to meet. Other jurisdictions may not
criminalise serious human rights abuses in line with international
law or may not provide for the criminal liability of corporate actors.
In some cases, very speciic evidence (e.g. senior level involvement
in the crime) may be required to satisfy the legal standards needed
to charge or prosecute. Finding the right evidence may require particular expertise that individuals considering the case may not have,
including an understanding of corporate and management structures
or recovering and analysing large amounts of inancial, commercial,
electronic, telecommunications and digital data. Moreover, some
of that evidence may be under the control of the relevant corporate
actor.
Corporate actors may also have greater inancial, legal and technical resources to ight a case than other investigative targets. For
example, although the inancial burden of defending a case is high,
wealthy corporate actors could more easily afford to retain many of
the more specialised technical and inancial experts, consequently leaving prosecutors and investigators with few experts at their
disposal.
The cumulative effect of these challenges is the perpetuation of a
culture of impunity for corporate crimes. Where illegal conduct goes
unchallenged, victims are left without effective remedies and there is
little deterrent against future abuse.
Solutions
Issues of political will must be tackled head-on: States must make
accountability for corporate crimes a priority. Where there are gaps
in the existing legal frameworks, States must adopt or amend laws.
Principle One
2
States must also create an environment that is conducive to pursuing
corporate crimes cases. States must ensure that law enforcement is
incentivised to pursue corporate crimes and has the necessary tools
and resources, institutional capacity, independence and impartiality
to do so. States should provide targeted training and guidance on
corporate crimes.
Law enforcement must also be free to pursue corporate crimes cases
without fear of reprisals or undue inluence. Senior oficials in government must regard the independence and impartiality of investigators and prosecutors as sacrosanct. Where required, States must
build speciic protections into the system. These could include legal
measures (e.g. statutory requirements that ensure transparency about
how and when ministers have oversight of the prosecutor’s ofice)
and sanctions to protect the independence and impartiality of law
enforcement, as well as practical measures to ensure their personal
security and that of their families.
For its part, law enforcement oficials must be committed to ight
impunity for corporate crimes. In particular, they should take steps to
ensure they feel able to take corporate crimes cases forward, having
both the conidence and skills required to do so. They should also
take steps to ensure they are properly equipped to address corporate
crimes cases, including through accessing training as well as global
expert networks and corporate intelligence specialists (e.g. individuals or ofices familiar with techniques or technologies for investigating corporate transactions or asset tracing). When pursuing corporate
crimes cases, law enforcement should take appropriate measures to
protect themselves from harassment, intimidation, threats of violence
or other reprisals.
Ultimately, law enforcement must make as strong a commitment to
the investigation of corporate crimes as it does to the ight against
other types of serious crimes. They should recognise the merit of
pursuing these cases and be aware of the diversity and types of
illegal acts that can constitute corporate crimes in their jurisdiction.
Priority should be given to cases that are of strategic value or importance, will set or build a precedent or are likely to be successful.
This will build knowledge and expertise, and make it more likely
that additional resources and support will be made available by the
State to pursue future cases.
3
Principle One
Law enforcement should consider the following factors when prioritising corporate crimes cases for investigation and, if appropriate,
prosecution:
1.
Whether the crime involves human rights abuses;
2.
The public interest in pursuing the case, including the
potential harm or risk to society for not doing so;
3. The history of wrongdoing of the corporate actors involved;
4.
Whether the corporate actors beneitted or could have
beneitted from the wrongdoing;
5.
The deterrent effect of pursuing the case; and
6.
The availability, or unavailability, of alternative
accountability mechanisms (i.e. will the failure to pursue
a criminal case mean that the victims will not obtain
effective remedies).
In pursuing cases, it must also be remembered that enforcement has
to be executed in a manner that is consistent with international and
national laws for procedural fairness, particularly with respect to
individuals who are accused.
Principle One
4
EXAMPLES
EXAMPLE ONE: The importance of protecting prosecutors’ personal
safety to ensure that they are free from intimidation, hindrance,
harassment, improper interference, unjustiied exposure to civil,
penal or other liability or reprisal when discharging their duty in
pursuing cases is recognised by international organisations, such as
the International Association of Prosecutors (IAP).
The IAP is a global organisation of prosecutors with representatives
from over 170 countries. It was established in 1995 primarily to
address the rapid growth in serious transnational crimes, including
drug traficking, money laundering and fraud.3 Its aim is to set and
raise standards for the professional conduct and ethics of prosecutors; promote the rule of law, fairness, impartiality and respect for
human rights; and improve international cooperation to combat
crimes.4
In 2008, the IAP adopted the Declaration on Minimum Standards
Concerning the Security and Protection of Public Prosecutors and
their Families.5 The Declaration established standards that States
should abide by in protecting prosecutors and their families from
threats to their safety and security as a result of their work. The
Declaration, consisting of fourteen principles, establishes that States
should take appropriate steps to assess the security risks facing
prosecutors and their families, and implement measures to ensure
they are physically protected. When threats, violence, harassment or
other forms of intimidation or inappropriate forms of surveillance
occur, States should ensure that such incidents are fully investigated
and steps are taken to prevent reoccurrences.
EXAMPLE TWO: The prosecution in Belgium of multinational
company Carestel (now Auto-Grill) and German company Kronos for
human traficking demonstrates how prioritising the investigation
and prosecution of certain types of crimes can encourage police and
prosecutors to pursue cases even if they are resource-intensive and
complex. Belgium’s multi-disciplinary and collaborative approach to
tackling human traficking also provides lessons relevant to Principle
5 (Collaborate widely to ensure accountability for corporate crimes,
particularly in cross-border cases).
5
Principle One
In 2012, following an extensive criminal investigation that began in
2006, Carestel and Kronos were found guilty of human traficking
for the purposes of labour exploitation under Article 433 of the
Belgian Penal Code.6 Carestel managed various motorway service
stations in Belgium. It outsourced the cleaning of the bathrooms to
Kronos, which was responsible for hiring and managing staff. The
investigation started after a routine visit by labour inspectors found
that cleaners in the restrooms were subject to harsh working conditions.7
The cleaners hired by Kronos came mostly from Eastern Europe, had
been brought into Belgium illegally and worked seven days a week
for ifteen hours a day for about three to four euros per hour.8 The
cleaners worked as self-employed sub-contractors who are not
protected under Belgian labour laws on wages and working hours.9
The cleaners had signed contracts they did not understand, were
unaware as to whether they were working as employees or independent contractors, lived in a house owned by Kronos and were
transported by Kronos staff to and from the various locations they
worked every day.
The court ruled that Kronos was guilty of human traficking and that
Carestel was also guilty as an accomplice under Article 66 of the
Belgian Penal Code.10 Although Carestel claimed it was not responsible for the actions of Kronos as a sub-contractor, the court found
that it willingly and knowingly collaborated with Kronos and that
such collaboration resulted in an illegal act. At the very least, the
court ruled, Carestel willingly and knowingly collaborated with
Kronos in awareness and acceptance of the risk of such collaboration. The court ined Kronos €528,000 (then US$649,000) and
Carestel €99,000 (then US$122,000).11
The fact that human traficking is a priority area for the Belgian
government played a key role in enabling the prosecution of cases
such as the Carestel/Kronos case. Since 1999, the Ministry of Justice
(MOJ) and the Board of Prosecutors General have issued a directive
to law enforcement agencies outlining national policy on the investigation and prosecution of human traficking, which is reviewed by
the MOJ’s Criminal Policy Department on a yearly basis.12 The
Directive provides standardised guidance on investigating and
Principle One
6
prosecuting human traficking cases, including recommendations on
investigative methods in more complex cases. It sets out criteria for
which cases to prioritise, including the young age of the victims, the
extent of the infringement on human dignity, the degree of violence
used or threatened, elements pointing to the repeated occurrence of
the offence, and elements revealing the major social impact of the
offence. The Directive also promotes a multi-disciplinary approach
to traficking, providing for collaboration and regular information
and data sharing between judicial oficials and law enforcement, as
well as between local and national authorities.
EXAMPLE THREE: The partnership between the UN International
Commission to Combat Impunity in Guatemala (known by the
Spanish acronym CICIG), the Guatemalan Prosecutor General’s
ofice and the “high-risk” courts demonstrates how international
cooperation can help to overcome the political hurdles inherent in
the investigation and prosecution of high-proile human rights cases.
CICIG was created at the request of the Guatemalan government to
deal with the extremely high levels of impunity for violent crime,
parallel criminal structures and a lack of progress on human rights
cases from the internal armed conlict in Guatemala that resulted in
the deaths of nearly 200,000 people, mostly indigenous persons.13
CICIG is mandated to support the Guatemalan judicial system and
operates under Guatemalan law. CICIG may act as a prosecutor,
with the authority to initiate investigations into “illegal security
groups” and “clandestine security structures”, deined as groups that
“commit illegal acts that affect the Guatemalan people’s enjoyment
and exercise of their fundamental human rights, and have direct or
indirect links to State agents or the ability to block judicial actions
related to their illegal activities”.14 CICIG can also ile administrative
complaints against public oficials, and particularly those that seek
to impede the functions of CICIG.
While CICIG is unusual in that it has independent investigative
authority, it nonetheless depends upon Guatemalan authorities to
investigate and adjudicate cases.15 It was therefore essential for
CICIG and the international governments who support CICIG,
including the United States and other western donors, to
7
Principle One
encourage the appointment of independent prosecutors and judges
to process these cases. CICIG and its supporters therefore
publicly monitored and reported on the proceedings to select these
judicial personnel and CICIG also investigated sitting judges for
failing to properly adjudicate high-proile cases.16
A key component of CICIG’s success has been its focus on the
security of Guatemalan judicial personnel, who are the subject of
violent threats and extortion by powerful criminal networks. CICIG
and its supporters contributed to the creation of “high-risk” courts
that adjudicate cases concerning human rights and organised
crime.17 While these courts continue to face signiicant political
barriers, they have been successful in overcoming many such
barriers to prosecute high-level military personnel involved in mass
atrocities committed during the armed conlict.18
CICIG’s efforts to promote the independence of the Prosecutor
General’s ofice also contributed to the nomination of the irst female
Prosecutor General of Guatemala who played a signiicant role in
reducing rates of impunity in Guatemala for atrocities committed
during the armed conlict. All of these efforts contributed to a wave
of high proile arrests, including the arrest of the then-President of
Guatemala, Otto Perez Molina, on major corruption charges.19
Principle One
8
2
Fight impunity for cross-border corporate
crimes by choosing to assert jurisdiction
Exercising jurisdiction in cross-border corporate crimes cases is
essential to ighting impunity. For these purposes, consider the State’s
obligations under international law, all potential bases for jurisdiction and the likelihood that victims will not receive effective remedies elsewhere. If it is legally or practically impossible to exercise
jurisdiction, refer the case to appropriate authorities, collaborate
with them where possible and provide support to any investigation
or prosecution that may occur.
COMMENTARY
Challenges
Investigators and prosecutors noted additional challenges speciic
to cross-border corporate crimes cases, where a corporate actor
registered or domiciled in one jurisdiction (the home State) is suspected of causing or contributing to a human rights abuse in another
jurisdiction (the host State).
Multinational corporate entities act across borders with ease due to
developments in technology as well as favourable corporate, trade
and investment laws. They exercise signiicant power and inluence.
Laws to protect human rights and deter companies from committing wrongful acts have not kept pace with these developments. For
example, the issues of separate legal personality and limited shareholder liability present signiicant legal challenges for accountability
where the case involves a parent company based in a home State
that operates through a local subsidiary or joint venture in the host
State. This “governance gap” has created an environment in which
corporate actors are able to commit serious human rights abuses and
other corporate crimes with little accountability for doing so.
The governance gap may be exacerbated when law enforcement
in the host State where the harm occurred is unwilling or unable
to pursue the case. The corporate actor may exercise signiicant
9
Principle Two
economic and political power and inluence in the host State, and
law enforcement may be under-resourced or have weak institutional
capacity. As such, legal action against corporate actors is rarely taken. There may also be speciic practical barriers to overcome – the
corporate entity involved in the abuse may no longer operate in the
host State, other corporate actors involved may have led the jurisdiction or the corporate entity (including its subsidiary or afiliates)
may have insuficient assets or resources in the host State to meet
any ine.
Home State laws may not provide for jurisdiction over offences committed abroad. Even where grounds for exerting jurisdiction exist,
law enforcement may not know they can assert jurisdiction or may
be reluctant to do so because the harm occurred in another country.
The prosecutors may also need to overcome certain additional procedural hurdles before exercising jurisdiction. These may include:
(1) the need to obtain consent from senior and other government
oficials; (2) legal restrictions on the home State prosecuting crimes
more closely connected with another State; (3) a requirement that
the relevant act be an offence in both the home State and the host
State; or (4) a requirement that the suspect be present in the jurisdiction.
Solutions
Where the relevant host State is unable or unwilling to exercise
jurisdiction, or where remedies provided to victims have not been
effective, law enforcement in home States should, as a matter of
principle, exercise jurisdiction over all cross-border corporate crimes
cases that come to their attention, taking the following into account:
1. Whether the State is obligated under international law
to investigate and prosecute the case (see sources in
Endnote 1);
2. The possibility of victims not achieving effective remedies
in any other jurisdiction; and
3. The challenges or threats that victims and witnesses may
face if the case is pursued in an alternative jurisdiction.
Principle Two
10
When determining whether the State should exercise jurisdiction,
law enforcement should consider all potential bases for asserting
jurisdiction, such as the following:
1. Nationality and location of the victims and the relevant
corporate actors;
2. Location of the harm;
3. Location of the evidence;
4. Where the elements of the offence were committed; and
5. The role played by the corporate actors in the wrongdoing
and the location of the corporate entity’s subsidiaries and
afiliates, business activities and assets as well as where
key decisions were made.
If law enforcement determines that it is legally or practically impossible to exercise jurisdiction, they should refer the case to appropriate authorities in another relevant jurisdiction (such as where any
corporate actors involved may be registered, are nationals or reside).
They should commence discussions with relevant jurisdictions as
early as possible to determine who is in the best position to successfully investigate and prosecute the case. They should then cooperate
with any investigation and prosecution in that jurisdiction and, as
appropriate, offer support to law enforcement.
11
Principle Two
EXAMPLES
EXAMPLE ONE: The prosecution for genocide and war crimes
of a Dutch businessman who supplied chemicals to Saddam
Hussein’s regime in Iraq shows how pursuing cross-border cases
not only ensures justice for victims but also catalyses action in
future cases.
Between 1984 and 1988, Dutch national Frans van Anraat purchased large quantities of thiodiglycol from the United States and
Japan and then sold the chemicals through numerous companies
in different jurisdictions to the government of Saddam Hussein
in Iraq.20 The government used the thiodigylocol to produce
mustard gas.21 The gas was used in chemical weapon attacks by
the Iraqi government against the Kurds in Iraq in 1987 and 1988,
including an attack in Halabja that killed over 5,000 people.22
Van Anraat was originally arrested in Italy in 1989 at the request
of the U.S. government.23 He was released on bail and then
led to Iraq, where he stayed until 2003.24 In December 2004,
van Anraat was arrested in the Netherlands and charged with
complicity in genocide and war crimes for, among other things,
providing the opportunity and/or means to commit those crimes
by supplying chemicals.25 He was prosecuted under Article 1 of
the Genocide Convention Application Act and Article 8 of the
Criminal Law in Wartime Act, in conjunction with Article 48 of
the Dutch Penal Code.26
In December 2005, van Anraat was found guilty by a court in The
Hague of complicity in war crimes and sentenced to ifteen years
in prison (later extended to seventeen years).27 Although the court
found that the attacks against the Kurds amounted to genocide,
it found van Anraat not guilty of complicity in genocide due to
insuficient evidence that he knew of the genocidal intent of the
Iraqi government.28 In March 2013, a Dutch court ruled that van
Anraat must pay €25,000 (then US$33,000) each to sixteen victims who originally joined his criminal case as plaintiffs to seek
civil damages.29
The case is notable because it is relatively rare for corporate
actors to be charged with international crimes and because it
Principle Two
12
was one of the irst such international crime cases brought in the
Netherlands. Originally established in 1994 to investigate war
crimes in the former Yugoslavia, the Dutch International Crimes
Unit that brought the case is now widely recognised as one of
the most effective and active units specialising in international
crime. It consists of both investigators and prosecutors as well as
specialist consultants hired on a case-by-case basis.30
EXAMPLE TWO: A 2006 toxic waste dumping case involving
multinational commodities trader Traigura shows how a corporate crime case involving multiple jurisdictions can give law
enforcement in relevant jurisdictions legal grounds to take action.
The case is also relevant to Principle 5 (Collaborate widely to ensure accountability for corporate crimes, particularly in cross-border cases), as it shows how a lack of international cooperation
and experience in tackling cross-border cases obstructs justice.
In August 2006, toxic waste was dumped at various locations
in and around the city of Abidjan, Côte d’Ivoire. The waste had
been generated by Traigura by using caustic soda to “wash” on
board a vessel at sea an extremely sulphurous petroleum product called coker naphtha. Traigura intended to mix the cleaned
naphtha with gasoline and sell it to the West African market,
among others, for a proit of around US$7 million per cargo. This
process (called “caustic washing”) produces a hazardous and
highly-odorous waste product. Traigura attempted to dispose of
the waste in Amsterdam using a company that processed ships’
waste. The company unloaded half of the waste from the ship
but, the next morning, residents near the port complained of a
bad smell and experienced nausea, dizziness and headaches.
The company tested the waste and realised it was more contaminated than Traigura had led them to believe. Traigura rejected
the company’s offer to dispose of the waste safely in the Netherlands for €544,000 (then US$694,000). The waste was loaded
back onto the ship and ultimately dumped in Abidjan by a local
company hired by Traigura to dispose of the waste for just under
US$17,000.31
As a result of the dumping, over 100,000 people sought medical
assistance, and extensive clean-up and decontamination was required. Côte d’Ivoire authorities recorded about ifteen deaths.32
13
Principle Two
At the time of publication, the extent of ongoing pollution and
the long-term health impacts of the dumping remain unclear.
In September 2006, authorities in Côte d’Ivoire arrested two Traigura executives who visited the country following the dumping
and charged them with poisoning and breaches of public health
and environmental laws.33 In October 2006, authorities also started a damages claim against Traigura for 500 billion West African
francs (then around US$1 billion).34 In February 2007, Traigura
entered into a settlement agreement with the Côte d’Ivoire government for 95 billion West African francs (then around US$200
million) with no admission of liability.35 In return, Traigura and
its executives and employees were granted blanket protection
from any legal proceedings in Côte d’Ivoire, effectively granting
them immunity from prosecution. The following day, the Traigura executives were released from prison and left the country.
The prosecution against them was subsequently dropped due to
insuficient evidence. Ultimately, successful prosecutions were
brought against only two local residents who were not Traigura
employees.36
Criminal actions were also explored in the Netherlands and the
United Kingdom. Action was pursued in the Netherlands because
the parent company of the Traigura group was based there and
because of Traigura’s attempt to dispose of the waste in Amsterdam. Actions were pursued in the United Kingdom on the basis
that Traigura’s UK subsidiary coordinated the events leading to
the dumping.
In September 2006, Greenpeace iled a report with the Dutch
Public Prosecutor requesting that a criminal investigation be
instigated into offences relating to the dumping of the waste in
Côte d’Ivoire.37 In June 2008, Dutch prosecutors brought limited charges against Traigura and an employee in relation to the
events that occurred in the Netherlands (i.e., illegally importing
and exporting the waste). Traigura was found guilty and eventually ined €1.3 million (then around US$2 million).38 Although
having jurisdiction under the Dutch Penal Code, prosecutors
decided not to prosecute Traigura for the dumping in Abidjan
because, despite attempts to do so, it “appeared impossible” to
conduct an investigation in Côte d’Ivoire.39
Principle Two
14
In March 2014, Amnesty International sent a detailed legal brief
and supporting evidence to UK authorities calling on them to
investigate whether Traigura’s UK subsidiary conspired in the
United Kingdom to dump the waste in Abidjan.40 In March
2015, the UK Environment Agency refused to investigate despite acknowledging that, if the allegations were true, “a serious
offence was committed with a relevant aspect of the conduct
taking place within the jurisdiction”.41 The Environment Agency
acknowledged that, despite having a criminal enforcement unit,
it lacked the resources (particularly due to government inancial
cuts), expertise and capacity to pursue the case. The Environment
Agency only agreed to look at Amnesty’s evidence under threat
of judicial review proceedings.42
Civil actions have also been pursued in the United Kingdom, the
Netherlands and Côte d’Ivoire.
In November 2006, 30,000 victims of the dumping brought a
civil claim against Traigura in UK courts.43 Under a September
2009 settlement agreement, Traigura agreed to pay £30 million
(then US$45 million), amounting to around £1,000 (US$1,500)
to each person with no admission of liability for the dumping.44
At the time of publication, victims are still pursuing civil proceedings against Traigura in Côte d’Ivoire and the Netherlands.
As such, while Traigura has been subject to civil and criminal
proceedings related to the dumping and paid some compensation to victims, it has never admitted responsibility, or been
properly held to account, for its role in the actual dumping of the
waste.45
Traigura denies responsibility for the dumping and maintains
that this case and earlier publications contain signiicant inaccuracies. It disputes in particular that the matter has not been subject to proper judicial scrutiny, that the dumpsites have not been
remediated and that the long-term health impacts of the dumping
remain unclear. Traigura also maintains that it believed the local
company would dispose of the waste safely and lawfully.46
15
Principle Two
EXAMPLE THREE: A case involving serious human rights abuses
in the Democratic Republic of the Congo (DRC) and Canadian/
Australian multinational Anvil Mining Ltd. illustrates how the
failure of States to assert jurisdiction can leave victims with no
avenue to obtain justice or an effective remedy. This case is also
relevant to Principle 3 (Guarantee accountability and transparency in the justice process when pursuing corporate crimes)
because it shows that a government policy of deliberately not
commenting on individual investigations, to any degree, can
detract from ensuring that victims have adequate information,
accountability and transparency with respect to the process itself.
In 2004, a United Nations in-country investigative mission found
that multinational Anvil Mining LTD (Anvil Mining) had provided logistical support to a Congolese army operation carried out in October 2004. This operation had been conducted to counter an attempt
by a small armed rebel group to take over the town of Kilwa, a key
port for the company’s operations.47 The UN report stated that Anvil
Mining had provided the army with trucks, food, lodging and other
logistical support for the operation.48 In addition it found that planes,
chartered by Anvil Mining to evacuate its personnel to the nearby
city of Lubumbashi, were used to transport around 150 soldiers back
to Kilwa.49 The UN report stated that, during the operation, soldiers
from the army murdered and tortured civilians. The UN concluded
that seventy-three civilians were killed, including at least twenty-eight who were summarily executed.50 In response, Anvil claimed
that the logistical support was forcibly requisitioned by authorities
and has publicly denied that the company or its employees committed any wrongdoing.51
In October 2006, a Congolese military prosecutor charged three employees of Anvil Mining’s DRC subsidiary with aiding and abetting
war crimes committed by the Congolese army.52 These employees,
as well as nine Congolese soldiers, were tried before a DRC military
court between December 2006 and June 2007 under, among other
things, Articles 173 and 174 of the DRC Military Code and Article 8
of the Rome Statute of the International Criminal Court.53 Ultimately,
all twelve defendants were found not guilty. The court also found
Anvil Mining’s DRC subsidiary “not guilty” despite the company
never being formally tried before the court.54
Principle Two
16
Contrary to the indings of the UN investigation, the Congolese court
held that no summary executions had occurred in Kilwa, but that
people had been killed during “ierce” ighting between the rebels
and the army.55 As a reaction, the United Nations High Commissioner for Human Rights at the time publicly expressed serious concerns about the verdict.56 Non-governmental organisations (NGOs)
expressed concerns relating to laws in the trial process, including
intimidation of witnesses and political interference.57 In February
2008, the military court denied the victims’ appeal against the judgment.
Subsequent criminal actions were explored in Australia and Canada
because of relevant links. Australia was chosen because the ultimate
parent company of the corporate group was listed on the Australian
Stock Exchange. It was the principal place of business of Anvil Mining, as well as the jurisdiction of incorporation of one of the holding
companies of Anvil Mining’s DRC subsidiary. Furthermore, the CEO
at the time, Bill Turner, who publicly represented the company’s
view on the events that occurred in Kilwa on Australian TV, was
Australian.58 Engaging a third jurisdiction, the ultimate parent company had legally reorganised in Canada at the time of the incident
and was listed on the Toronto Stock Exchange. The Canadian entity
directly employed two senior employees of the Congolese entity,
both of whom were Canadian, one of whom managed the Congolese operations.59
The Australian Federal Police opened an investigation into the
Australian entity in September 2005 based on acts carried out in the
DRC, but advised that they closed the case following the military
court decision. They advised that investigations could be re-opened
if new evidence came forward.
In March 2007, Rights and Accountability in Development (RAID)
and Global Witness asked the Canadian Minister of Justice to open a
formal investigation into the Canadian entity based on acts carried out in the DRC.60 The War Crimes Unit of the Royal Canadian
Mounted Police (RCMP) in Canada opened an investigation, but its
current status, many years later, is unknown. In a letter to RAID and
Global Witness of June 2007, the Minister of Justice and Attorney
General of Canada stated that “it is generally contrary to Canadian
government policy to comment on individual investigations, or even
to provide information as to whether or not a particular investigation
18
Principle Two
is being conducted”.61 In August 2016, RAID, acting on behalf of
victims, wrote to the RCMP seeking an oficial statement relating to
the status of the investigation. A response is pending.
The victims also made subsequent attempts to seek compensation
through non-criminal processes in Anvil Mining’s home States of
Australia and Canada but faced signiicant hurdles.
The victims’ preliminary efforts to obtain disclosure of documents
prior to starting a civil lawsuit in Australia had to be abandoned
when DRC authorities refused to allow the victims’ legal representatives to travel to Kilwa to meet the claimants. The DRC lawyers
received death threats and the Australian law irm withdrew. Given
the extremely limited inancial means of the Congolese claimants as
well as the security threats that had blocked access to Kilwa and prevented conirmation of the lawyers’ instructions, it was not possible
at that time to approach another law irm to take up the case.
In November 2010, the Canadian Association Against Impunity
(CAAI), an organisation established by an international consortium
of NGOs with the primary purpose of undertaking a class action,
iled a class action complaint in Québec on behalf of the victims.62
Although the lower court in Québec ruled that it had jurisdiction
and that there was no other viable forum for the victims to seek justice, the Québec Court of Appeal overturned this decision in January
2012.63 The appellate court ruled that, on the facts of the case, the
conditions for taking jurisdiction under Québec law were not met.64
In May 2014, the African Commission on Human and Peoples’
Rights agreed to hear a complaint submitted on behalf of the victims
against the DRC for violations of the African Charter on Human and
Peoples’ Rights.65 At the time of publication, there has not been a
ruling on this complaint.
Principle Two
19
3
Guarantee accountability and transparency in
the justice process when pursuing
corporate crimes
Ensure the justice process is as accessible, transparent and
accountable as possible, from when the crime is alleged to the
close of the case.
COMMENTARY
Challenges
Lawyers and investigative NGOs interviewed stated that they faced
signiicant obstacles in accessing the justice system and obtaining
effective remedies for victims. They expressed concerns that law
enforcement may not pursue cases even if compelling evidence is
presented to them. Prosecutors may be permitted broad limits of discretion by law, and this may contribute to cases not being pursued.
In many jurisdictions, the prosecutor’s discretion is unfettered and
cannot be legally challenged.
Prosecutors interviewed also stated that issues of independence
and accountability are especially problematic in corporate crimes
cases, as law enforcement may face particular political or external
pressures not to pursue a case due to the power and inluence of the
corporate actors involved.
Many of these cases are brought to the attention of law enforcement
by NGOs, whistle-blowers and others acting in the public interest.
These actors request State action based on evidence of illegality
that has come to light, possibly during the course of their work or
their investigative research. As they are external to the formal State
system, these actors often have no oficial rights to demand action
by law enforcement.
If authorities do respond to complaints, they sometimes do so only
with signiicant delays. In the worst-case scenario, statutory time
limits for charging or prosecuting the crime may have already lapsed
19
Principle Three
when they do. They may also respond by declining to pursue a case
without explaining their reasons. Victims or other persons reporting
crimes may be unable to formally challenge that decision, or may
be unaware that such a right exists. Where a formal review process
does exist, it may lack transparency because inal decisions are not
made public. These issues relating to access, transparency and accountability are not unique to corporate crimes, but can be exacerbated in these instances.
Solutions
To overcome these obstacles, law enforcement should ensure that
the justice process in their jurisdiction is as accessible, transparent
and accountable as possible.
What law enforcement can do in practice will vary from country to
country depending on the legal limits and practical challenges within their national systems.
In recognition of these variations, law enforcement should consider best practices across jurisdictions including what is outlined in
the examples below. At a minimum, law enforcement should issue
publicly-available guidance on how to access the system by bringing a complaint as well as how law enforcement will respond. This
guidance should include: an overview of the process, timeline of the
different steps including appropriate time-frames for responses to
complaints, criteria for deciding whether or not to pursue the complaint, any right to review that decision and the procedure for doing
so. Law enforcement should act in accordance with the guidance,
and communicate with the complainants about their decision-making process to the extent possible.
The importance of accountability and transparency in the justice
process is recognised by international organisations, such as the International Association of Prosecutors (IAP) and the United Nations
Ofice on Drugs and Crime (UNODC). In 2014, the UNODC and
the IAP produced a guide on The Status and Role of Prosecutors
(“UNODC/IAP Guide”).66 The UNODC/IAP Guide highlights that
in jurisdictions where prosecutors have discretion over whether
to prosecute cases or not, this discretion “can potentially lead to
abuse”.67 As such, the UNODC/IAP Guide states that prosecutors
Principle Three
20
should be able to make that decision “free of outside inluence” and
recommends the relevant jurisdiction adopt policy guidelines on
the use of the discretion.68 To reduce outside inluence, it calls for
transparency and public accountability in the relationship between
prosecutors and any government ministers to which prosecutors are
accountable. It also recognises that internal review mechanisms and
the ability of victims to appeal decisions not to prosecute can minimise the risk of prosecutorial discretion being abused.
The UNODC/IAP Guide also notes that prosecution services are
“accountable to the public they serve and as such they should be
in a position to inform and explain actions they have taken in the
administration of justice”.69 In particular, it highlights the importance
of providing reasons for speciic decisions and notes that “prosecutors should be held accountable for the way in which they discharge
their functions and duties”.70
21
Principle Three
EXAMPLES
EXAMPLE ONE: UK codes of practice and guidance include
various provisions that seek to address issues of transparency,
accessibility and accountability in the justice system.
The Code for Crown Prosecutors sets out general principles that
prosecutors should follow in deciding whether or not to prosecute a case. It provides a two-stage test for prosecutors to apply:
is there a realistic prospect of conviction (the evidential test) and
do the public interest factors against prosecution outweigh those
tending in favour (the public interest test).71 The Code includes a
number of public interest factors to take into account for these
purposes, such as the seriousness of the offence and the harm
caused to victims. UK law enforcement agencies have also issued
the Guidance on Corporate Prosecutions.72 This includes additional guidance on evidential and public interest issues relevant
to the prosecution of corporate actors, including whether the
corporate entity has a history of similar conduct.73 Both sets of
guidance are publicly available. The Crown Prosecution Service
(CPS) also publishes guidance on its website which describes
the legal tests and relevant precedents for establishing criminal
offences (such as corporate manslaughter) as well as certain procedural issues (such as what offences require Attorney General
consent before prosecution).74
In particularly serious or noteworthy cases, UK law enforcement
agencies may issue public statements explaining their reasons not
to pursue a case. For example, the CPS issued a detailed statement in December 2015 explaining its decision not to prosecute
News Group Newspapers in connection with well-publicised
phone hacking charges.75
Victims can seek review of a decision by the CPS not to prosecute, through the Victims’ Right to Review Scheme. The CPS has
issued public guidance on the Scheme, which includes time limits for review and response. Victims and other interested parties
can also apply for judicial review of any decision whether or not
to investigate or prosecute a case.76 Court judgments are generally made public.
Principle Three
22
EXAMPLE TWO: Political interference has been recognised by
the Organisation for Economic Co-operation and Development
(OECD) as a serious concern in certain cases, such as those that
involve bribery. Article 5 of the OECD Anti-Bribery Convention
(OECD Convention) provides that the investigation and prosecution of bribery should not be inluenced by, among other things,
“the potential effect upon relations with another State” (which
has been interpreted by some to include national security).77
Although the UK government is a party to the OECD Convention,
it has not incorporated Article 5 into domestic law. While not a
human rights case, a decision to discontinue an investigation by
the UK Serious Fraud Ofice (SFO) calls into question the implementation of Article 5 and illustrates how political interference
may affect the exercise of prosecutorial discretion.
In 2004, the SFO began an investigation into bribery allegations
concerning a 1985 arms-for-oil deal between the UK and Saudi
Arabian governments under which UK defence company BAE
Systems was the key contractor.78 In December 2006, the SFO, a
prosecuting authority that is independent of the government, decided to stop the investigation following representations by BAE,
the UK government (including then-Prime Minister Tony Blair)
and the Saudi government that the continuation of the investigation would negatively affect the United Kingdom’s national
security.79 That month, according to newspaper reports, the Saudi
government had given the United Kingdom ten days to halt the
investigation or lose a key contract to supply ighter jets worth
US$10 billion.80 In March 2007, the OECD expressed “serious
concerns” about the decision to discontinue the investigation and
whether it was consistent with the OECD Convention, as well as
about shortcomings in the UK’s anti-bribery legislation.81
EXAMPLE THREE: A criminal case in France against a multinational timber company illustrates the challenges that claimants
may face when there is uncertainty and signiicant delays in the
investigation and prosecution process. The company was alleged
to have bought illegally obtained timber during the Liberian civil
war, the sale of which enabled its then President Charles Taylor to
procure arms in breach of UN sanctions and to wage a campaign
of violence which saw over 250,000 people killed and almost 1
million displaced.
23
Principle Three
In November 2009, human rights and environmental organisations, including SHERPA, Global Witness, Greenpeace France
and Les Amis De La Terre (collectively “the complainants”), iled
a criminal complaint in France against DLH France and DLH
Nordisk A/S, both part of the Dalhoff, Larsen, Horneman Group
(collectively referred to as “DLH”), one of the world’s biggest
timber and wood products wholesalers.
The complaint alleged that DLH bought wood from timber companies in Liberia that had been illegally awarded forest concessions by Charles Taylor.82 More speciically, the complaint alleged
that DLH France traded in wood originating from Liberian timber
companies that failed to comply with Liberian law and/or did not
have a legal right to operate. The complaint relied on evidence of
DLH’s suppliers’ involvement in corruption, tax evasion, environmental degradation, UN arms sanctions violations and gross
human rights abuses. As a result, it was claimed that by importing timber from forest concessions operated by unscrupulous and
corrupt Liberian companies, the French arm of DLH was guilty of
recel – the handling of and proiting from goods obtained illegally, punishable under French criminal law.
Revenue from forestry was a major source of funding for President Charles Taylor’s illicit off-budget activities during the
conlict. Taylor also used forest exploitation as a major source
of funding for arming his forces during the Liberian civil war.83
In fact, two companies that were major suppliers of logs to DLH
were operated by Dutch businessman, Guus Kouwenhouven,
who smuggled arms through timber factories into Liberia and to
Charles Taylor.84 Kouwenhouven was charged in the Netherlands
in June 2006 with illegally supplying weapons in violation of the
UN arms trade ban and complicity in war crimes committed with
these weapons. After a lengthy legal battle, he was acquitted of
all charges due to lack of reliable evidence in 2008.85
The prosecutor in the Republic of Nantes (France), where the
case against DLH was iled, initiated a preliminary investigation in 2010. After two years of investigation, he transferred the
case to the public prosecutor’s ofice of Montpellier.86 During
this period, the complainants sent letters, translated documents
from English to French, and requested to meet with prosecutors
in both Nantes and Montpellier in order to encourage a proper
Principle Three
24
consideration of this case.87 Complainants advised that prosecutors were reluctant to communicate with them. They were also
advised that the prosecutor’s ofice could not comment on the
case as an inquiry was still underway. In 2013, the prosecutor in
Montpellier dismissed the complaint citing insuficient evidence
to support the claims.88 The complainants made four written
requests to see the documents the prosecutor had on ile for the
case, but received no answer.89
In March 2014, after the prosecutor dismissed the case, the complainants decided to initiate a criminal case themselves by iling
a claim avec constitution de partie civile. Under this proceeding,
victims can submit a complaint directly to a French magistrate
who can start a criminal investigation.90
Meanwhile, Global Witness also submitted a complaint to the
Forest Stewardship Council (FSC) regarding DLH’s purchasing of
illegal timber and violations of Liberian national laws for harvesting timber.91 The FSC is an international NGO established to
promote the responsible management of forest resources, while
providing sustainability certiications to its stakeholders.92 In February 2015, the FSC oficially decided to terminate DLH’s membership and suspend its sustainability certiicates.93 In February
2016, the FSC placed DLH back on probation after the company
submitted a report on progress made to compensate communities
affected by the illegal timber trade and on improving DLH’s due
diligence system.94
While the French court case remained pending adjudication, and
the FSC continued to keep DLH on probation, DLH announced
in February 2016 that it would be closing down DLH France,
one of the defendants in the criminal case.95 The closure process,
including selling of DLH France’s assets, was due to be completed by August 2016. The termination of DLH France may further
affect the decision of the French magistrate to pursue this case, as
it will make it dificult for the authorities to enforce the sentencing if the complainants’ recel case proves successful.
EXAMPLE FOUR: A case concerning the murder of a Colombian trade union activist who was involved in a labour dispute
with a subsidiary of Swiss food company, Nestlé, demonstrates
25
Principle Three
how prosecutorial decisions about whether or not to pursue a
case can obstruct the investigation and prosecution of corporate
crimes.
In September 2005, a former employee and trade union activist
of Nestlé’s Colombian subsidiary was kidnapped, tortured and
murdered by members of a paramilitary group.96 The former employee, Luciano Romero, had previously received death threats
following a long-standing labour dispute between the trade union
and the subsidiary. The trade union reported these death threats
to the subsidiary as well as Nestlé in Switzerland.97
In March 2012, the European Centre for Constitutional and
Human Rights (ECCHR) and the trade union iled a criminal
complaint against Nestlé and ive of its managers in the canton
of Zug, Switzerland, alleging that they were guilty of “homicide
through negligence through omission” under Swiss Criminal
Code Articles 117 and 12(3) for failing to take precautionary
measures to prevent the murder. In particular, ECCHR’s complaint alleged that the subsidiary put Romero in greater danger
by falsely accusing him of being a guerrilla and that Nestlé in
Switzerland failed to prevent these actions.
The ofice of the prosecution in Zug transferred the case to the
canton of Vaud because it had jurisdiction over Nestlé’s other
headquarters in Switzerland. In May 2013, the Vaud prosecutor’s
ofice decided not to open an investigation, on the basis that the
seven-year time limit for prosecuting the case under the statute
of limitations had passed in September 2012. Prosecutors did
not therefore consider the substance of the allegations made by
ECCHR.98
Under Article 7 of the Swiss Criminal Code, criminal justice
authorities are “obliged to commence and conduct proceedings
that fall within their jurisdiction where they are aware of or have
grounds for suspecting that an offence has been committed”.
The ECCHR appealed the prosecutor’s decision to the Cantonal
Court, arguing that the case was not statute-barred because the
criminal liability of corporate entities represents an on-going
offence and that prosecutors were in breach of their obligations
under Article 7 of the Criminal Code for failing to take action for
Principle Three
26
fourteen months after ECCHR iled the complaint.99 The Cantonal
Court dismissed the appeal in December 2013 on the grounds
that the statute of limitations had passed. The ECCHR then made
a inal appeal to the Swiss Federal Supreme Court. In July 2014,
the Supreme Court conirmed the legal reasoning of the prosecutor’s ofice and the Cantonal Court and concluded that the
investigations were statute-barred.100
In October 2012, the ECCHR and other human rights organisations included the Romero case in a communication requesting the
International Criminal Court (ICC) to open an investigation into the
situation in Colombia, on the basis that the level of violence against
trade unionists reached the threshold of crimes against humanity.
At the time of publication, the ICC is still conducting a preliminary
examination into the situation in Colombia. In December 2014,
ECCHR submitted a complaint to the European Court of Human
Rights on behalf of Romero’s widow, asking the court to examine
whether the Swiss judiciary adequately investigated the case. The
Court dismissed the complaint in March 2015 without providing any
reasons.101
27
Principle Three
4
Identify the legal standards and secure the
evidence needed to establish liability for
corporate crimes in your jurisdiction
Know the laws and evidence required to establish the liability of
corporate actors for corporate crimes. From the early stages of the
investigation process, identify the speciic evidence needed to meet
these requirements, how and where it can be obtained and what
specialist assistance is required.
COMMENTARY
Challenges
Prosecutors interviewed noted that establishing liability for corporate
entities and individuals involved in corporate crimes can present
particular legal and evidentiary challenges. For example, laws applicable to corporate crimes can set out speciic or even unique legal
tests for establishing liability. Under some criminal laws, the State
must prove that the defendant had the required guilty state of mind
when committing the offence. Under other criminal laws or strict
liability offences, the state of mind of the defendant is irrelevant as
long as he or she committed the relevant act. Some laws may also
provide for speciic offences that are applicable only to corporate
entities.
In many jurisdictions, a corporate entity will only be guilty of an
offence if the conduct of an individual can be attributed to it. There
are different legal tests for doing so, such as:
1. The corporate entity will be liable if a member of the
board of directors or a senior level oficial was involved in
committing the offence (known as the “identiication” or
“directing mind and will” principle); or
2. The corporate entity will be liable for the relevant wrongful
acts of any employee or agent if they were acting within
the scope of their employment and, in some jurisdictions,
acting in part to beneit the company (known as “vicarious
liability” or “respondeat superior”).
Principle Four
28
Evidence may therefore be needed to meet the relevant legal standards for charging or prosecuting the corporate actors involved. Specialist skills may be required to recover and analyse that evidence.
As these skills may not be easily available in some contexts, building
them will require additional costs and assistance from other agencies
or international bodies. For example, it can be dificult in practice to
ind evidence of the involvement of board members or senior level
oficials in an offence, and to identify which particular oficial was
involved, especially within multinational corporate entities where
decisions may be taken by various entities or individuals. This may
require analysis of complex corporate documents to understand who
has authority to make decisions relevant to the alleged corporate
crimes on behalf of the corporate entity and how the entity is actually managed and makes decisions. It may also require the recovery
and analysis of large amounts of data to determine if there has been
board or senior-level involvement in an offence. Investigators and
prosecutors who have no experience investigating corporate crimes
may ind it challenging to navigate these cases for the irst time.
The corporate entity itself may make the evidence-gathering process
more dificult by taking deliberate action to obscure the involvement
or knowledge of senior oficials in the wrongdoing or by destroying
data or materials. Furthermore, some evidence may be located in
multiple jurisdictions, which presents additional challenges.
Interviewed prosecutors noted that law enforcement may underestimate the type and extent of evidence required to establish liability
for corporate crimes or face dificulties in obtaining the evidence
required to meet the legal standards for proving corporate crimes in
that jurisdiction. Interviewed prosecutors also noted that investigators should identify and collect key pieces of evidence at the start of
the investigation, but that this does not always happen in practice.
As a result, evidence may have disappeared or may no longer be
available. All of this can result in the case being delayed (e.g. if case
iles are sent back because more evidence is required), dropped or
unsuccessful in court.
29
Principle Four
Solutions
To address this challenge, it is vital that investigators and prosecutors
know the laws applicable to corporate crimes in their jurisdiction,
what evidence is required to establish liability and how and where
it can be obtained. States should take action to build the capacity of
law enforcement in this area, including by looking to best practices
in other jurisdictions and seeking international assistance.
Where investigators and prosecutors do not have expertise in this
area, they should request guidance and training from relevant senior
oficials or departments (such as the Prosecutors’ Ofice or the Ministry of Justice). Guidance and training should address:
1. The range of corporate crimes cases with a human rights
impact and the public interest in pursuing these from a
human rights perspective;
2. The legal standards for charging and prosecuting corporate
crimes in their jurisdiction;
3. Typical corporate structures and decision-making processes; and
4. Effective investigative methods, especially in cases involving large corporate entities or cross-border offences. This
training should identify speciic techniques for gathering
evidence against corporate actors, areas where specialist
assistance is likely to be required and what resources and
technology are available in the jurisdiction.
Principle Four
30
In addition, law enforcement should reach out to relevant networks
and contacts for advice and assistance. For example, they should tap
into forensic expertise that exists in relation to inancial crimes, such
as corruption and banking. When pursuing corporate crimes, early
in the investigation process investigators should:
1. Seek to have prosecutors seconded to their team on a
temporary or permanent basis to provide on-going advice
and guidance on corporate crimes cases, where legally
permitted;
2. Identify, with prosecutors where legally permitted, what
evidence is needed to prove the case against the corporate
actors involved and how and where it can be obtained;
3. Identify and request any evidence and assistance required
from other jurisdictions;
4. Identify and request any specialist assistance needed to
recover and analyse inancial, commercial, electronic,
telecommunications and digital data; and
5. Involve the judiciary and other appropriate oficials to
ensure appropriate warrants and other authorisations are
provided in accordance with due process principles.
31
Principle Four
EXAMPLES
EXAMPLE ONE: While not a human rights case, a U.S. prosecution of both a corporate entity and individual employees shows
how speciic types of evidence can be used to establish guilt for
corporate crimes. Under U.S. law, the acts of any employee can
be attributed to a corporate entity, providing that the employee
was acting in the scope of their employment and at least in part
for the beneit of the corporate entity (known as vicarious liability
or respondeat superior).
In United States v. Ionia Management S.A., U.S. prosecutors successfully utilised vicarious liability to attach criminal liability to
a foreign corporate entity for the actions of low-level employees
after prosecutors determined that the wrongdoing in the corporate entity was widespread and reached high levels. In Ionia, a
Greek tanker company, Ionia Management (Ionia), was prosecuted for illegally dumping oil into U.S. territorial waters contrary to
the Act to Prevent Pollution from Ships, which implements into
U.S. law the 1973 International Convention for the Prevention of
Pollution from Ships (MARPOL).102 Ionia, which was incorporated in Liberia and headquartered in Greece, managed a Bahamas
lagged ship called the M/T Kriton.103 While in U.S. territorial
waters, crewmembers routinely discharged oily waste into the
sea (using a system that by-passed the ship’s pollution prevention
equipment) and made false entries into the ship’s oil record book
to hide the illegal discharges. They also obstructed the investigation by hiding the by-pass system and lying to Coast Guard
oficials.
During the trial, prosecutors showed that the crew was acting
within the scope of their employment by presenting witness evidence from the crew members that they were acting under direct
orders from superiors (chief engineers) in discharging the oil, falsifying the records and lying to the Coast Guard. To establish that
the crew was acting for the beneit of the corporate entity, prosecutors presented expert evidence about the time and expense
of properly maintaining and using the prevention equipment,
allowing the jury to infer that the crew used the by-pass system to
beneit the corporate entity and lied to the Coast Guard
Principle Four
32
to protect it. In September 2007, Ionia was found guilty and, in
2009, the U.S. Court of Appeals upheld its conviction.
EXAMPLE TWO: The International Criminal Court’s (ICC) involvement in a “irst responders” project is a good example of how
law enforcement can strategically position itself to collaborate
more closely with NGOs and others on the ground to ensure
quick and effective access to potential evidence.
Following the collapse of several high-proile trials due to insuficient evidence, the Ofice of the Prosecutor (OTP) of the ICC
announced in its 2012-2015 Strategic Plan that the Investigation
Division would be diversifying the type of evidence it collects
and enhancing its capabilities to collect such evidence.104 The
Strategic Plan recognised that individuals or groups working on
the ground have proximity to the crime scene and can play a key
role in collecting information, such as photos and videos, to support ICC investigations.105 The OTP therefore developed a model
for increased cooperation with these “irst responders”, with the
aim of encouraging them to provide information proactively to
the ICC.106
The “irst responders” project is designed to increase cooperation
between the ICC and irst responders, such as NGOs, journalists,
forensic scientists and health professionals, and to enhance the effectiveness of irst responders in collecting potential evidence.107
33
Principle Five
5
Collaborate widely to ensure accountability
for corporate crimes, particularly in
cross-border cases
In view of the particular skills and evidence needed to prove corporate crimes, especially in cross-border cases, collaborate as widely
as possible both nationally and internationally to build the knowledge, expertise, capacity, networks and contacts needed to tackle
corporate crimes effectively.
COMMENTARY
Challenges
Investigators and prosecutors interviewed noted that effectively
tackling corporate crimes can raise unique challenges that require a
different approach than other crimes and may require particular evidence or specialist assistance in some areas, especially in cross-border cases.
They also recognised that obtaining evidence and assistance in
cross-border corporate crimes cases can be especially challenging.
There is often a signiicant degree of formality involved in requesting cooperation under mutual legal assistance treaties (MLATs) and
equivalent mechanisms such as letters rogatory (a formal written request for assistance from a court in one country to a court in another
country). The formal nature of this system makes it dificult to ensure
that suficient evidence is provided upon request and to ask for additional information where insuficient evidence is provided.
There may also be additional legal or practical barriers to overcome
in gathering evidence from another jurisdiction, making it less likely
that adequate or even any evidence will be provided. These barriers may occur in circumstances where: (1) the offence in the home
State is not an offence in the host State; (2) the home and host States
have different tests for establishing corporate liability; or (3) the host
State lacks the law, equipment, material or skills necessary to obtain
evidence.
Principle Four
34
Solutions
Effectively tackling corporate crimes, and especially cross-border
cases, requires a multi-disciplinary, multi-jurisdictional and innovative approach that seeks to respond to criminal activity in a timely
manner and, ideally, to disrupt and prevent corporate crimes from
occurring in the irst place.
With respect to cross-border cases, States should enter into treaties
that allow for formal mutual legal assistance in criminal matters to
be provided in a fast and eficient manner, including directly between judicial authorities and prosecuting authorities.
In all cases, law enforcement should collaborate as widely as possible nationally, internationally, formally and informally. This will
help to build the knowledge, skills, capacity, networks and contacts
needed to tackle corporate crimes effectively even where there is a
lack of political will or support at the State level to pursue these cases. It will also help to obtain intelligence, evidence and assistance,
especially in cross-border cases. Information from informal contacts
(such as through direct police cooperation) can help investigators
be more speciic in subsequent formal requests to other countries
for evidence and to identify which authority to approach. Having
well-developed networks and contacts can mean law enforcement
receive intelligence about a potential case from other countries,
NGOs or other organisations.
Effective collaboration may include:
1. Building contacts, nationally and internationally, with:
(a) Other law enforcement or regulatory bodies and
(b)
35
oficials, particularly those specialising in corporate
crimes or other relevant areas (e.g. Interpol has
established an environmental crime unit);
Other bodies involved in work or analysis relevant
to corporate crimes (e.g., those looking at innova
tive ways to effectively recover and analyse large
amounts of data);
Principle Five
(c) Specialists in analysing corporate or management
(d)
structures or in recovering and analysing inancial,
commercial, electronic, telecommunications and
digital data; and
International organisations such as the
United Nations, NGOs and victims groups.
2. Joining existing networks or inter-jurisdictional teams
working on corporate crimes or similar issues, or building
new networks or teams.
3. Building networks of informants and developing speciic
methods for gathering information and intelligence on corporate crimes, especially to pro-actively detect corporate
crimes when they are occurring and to identify patterns of
illegal activity of corporate actors.
4. When pursuing a case:
(a) Obtaining background and intelligence from identiied contacts, networks and open-source data; and
(b) Consistent with the principles of due process and
evidentiary rules, requesting evidence and assistance early in the investigation process, both
informally through contacts and networks as well as
formally through MLATs or equivalent mechanisms.
Principle Five
36
EXAMPLES
EXAMPLE ONE: There are various formal and informal networks
focused on cross-border collaboration between the police,
prosecutors and the judiciary. For example, the European Union’s
Judicial Cooperation Unit (Eurojust) was formed by the European
Union to improve judicial cooperation in the ight against serious
crime by helping national authorities cooperate and coordinate on serious cross-border crime.108 The unit is comprised of
prosecutors, magistrates and police oficers.109 One of its main
functions is to facilitate the exchange of information between
interested parties and to strengthen cooperation between national authorities when tackling speciic cases.110 For example,
in a human traficking case, law enforcement in Bulgaria and
the Netherlands initially agreed at a Eurojust meeting that one
country would investigate the offence of human traficking while
the other would focus on money laundering linked to the traficking.111 However, law enforcement in one country later discovered
that, under its national law, it would be dificult to establish the
ancillary case of money laundering without the prior conviction
of human traficking.112 The countries subsequently decided at
another Eurojust coordination meeting that the money laundering
case should be transferred to the other country where the national laws allow the charge of money laundering to be established
absent conviction of the predicate offence of human traficking.113
EXAMPLE TWO: A traficking case in Southeast Asia shows how
multi-jurisdiction collaboration is vital to ensure the successful
investigation and prosecution of corporate crimes.
A March 2015 investigation by the Associated Press revealed
that migrant workers from Myanmar, Cambodia and the People’s
Democratic Republic of Lao were being traficked to work in the
Indonesian ishing industry. The ish and seafood they caught was
then transported to Thailand and eventually supplied to major
supermarkets and retailers in the United States. The commercial
ishing vessels involved were operated by Thai nationals.114
Indonesia commenced prosecution of six defendants for human
traficking in November 2015 after discussions between the
37
Principle Five
countries involved regarding the responsibility and jurisdiction
of each country to prosecute the case. Five of the six individuals
charged (including the captain) were Thai nationals and employees of Pusaka Benjina Resources, a large ishing irm in eastern
Indonesia.115
The defendants were accused of subjecting hundreds of foreign
ishermen to serious labour abuses. Law enforcement found that
these ishermen were mostly recruited in Thailand and brought to
Indonesia using fraudulent immigration documents.116 Thai oficials provided assistance leading up to the prosecution including
sending a multi-disciplinary team comprised of oficials from
the police; the prosecutors’ ofice; the Ministry of Labour, Social
Development and Human Security; and the Ministry of Foreign
Affairs to provide assistance on investigation and victim protection.117
In November 2015, the States of the Association of Southeast
Asian Nations (ASEAN) signed the Convention Against Traficking
in Persons, Especially Women and Children to formalise cooperative efforts in relation to law enforcement, mutual legal assistance
and extradition to further promote cross-border cooperation in
tackling human traficking in the region.118
EXAMPLE THREE: The on-going criminal case in connection with
the 1984 Bhopal gas leak disaster in India shows how a lack of
collaboration between India and the U.S. and the failure of the
U.S. Department of Justice (DOJ) to ile a notice to appear before
the Bhopal criminal court on relevant U.S. companies under a
mutual legal assistance treaty with India has obstructed justice in
this case.
The case is also relevant to Principle 2 (Fight impunity for
cross-border corporate crimes by choosing to assert jurisdiction)
in that it shows how the inancial and political power of multinational corporate entities, as well as their ability to lee the
jurisdiction, obstructs effective remedy in cross-border cases.
In December 1984, toxic gas leaked from a storage tank at the
Union Carbide pesticide factory in Bhopal, India. Nearly 10,000
people died in the immediate aftermath of the disaster.119 Around
Principle Five
38
500,000 were exposed to hazardous levels of toxins.120 In 1984,
Indian authorities brought criminal proceedings against U.S.based Union Carbide Corporation (UCC); its majority-owned
Indian subsidiary, Union Carbide India Limited (UCIL), that operated the plant; its Hong Kong-based subsidiary, Union Carbide
Eastern (UCE), that managed UCIL; UCC’s then chairman Warren
Anderson (a U.S. national); and various Indian nationals for “culpable homicide not amounting to murder”.121
Anderson, who visited the site shortly after the disaster, was
arrested in India in December 1984 but was released on bail
the same day, following intervention by the U.S. Embassy in
India, and left the country two days later.122 UCE ceased to exist
in 1991.123 In 1994, UCC sold all of its shares in UCIL to the
London-based Bhopal Hospital Trust (despite legal attempts to
prevent this). In effect, UCC ceased to operate in India and its
chairman led the jurisdiction.124
In February 1989, the Indian Supreme Court approved a settlement agreement between the Indian government, UCC and UCIL
under which the companies agreed to pay US$470 million – less
than 15% of the US$3.3 billion originally claimed by the government.125 The settlement was negotiated before the full extent of
damages had been estimated and without consultation with survivors. The settlement terminated all then pending claims against
UCC and UCIL including the criminal proceedings. In October
1991, following a public backlash, the Supreme Court revoked
the decision to quash the criminal proceedings.126
In June 2010, India-based UCIL and seven Indian nationals
were convicted of causing death by negligence.127 At the time of
publication, the culpable homicide charges against UCC remain
outstanding. Between 1991 and 1992, U.S.-based UCC was
ordered to appear six times before the Bhopal court, with three
summonses being served through the DOJ. In 1992, the Bhopal
court declared UCC an “absconder from justice” for failing to
appear.128 Warren Anderson never appeared before the Bhopal
court to face the charges against him and the United States denied requests from India for his extradition.129 The Bhopal criminal court declared him an “absconder from justice” in 1992.130
Proceedings against him were oficially stopped in March 2015,
following his death in September 2014.131
39
Principle Five
U.S.-based Dow Chemical Company now owns UCC. Dow has
been summoned to appear before the Indian courts on ive occasions to explain why UCC has not appeared before them.132 The
summonses were sent to the DOJ for service under a 2005 Treaty
on Mutual Legal Assistance in Criminal Matters between India
and the United States.133 Dow has not yet appeared before the
court, stating “any efforts to directly involve [Dow] in legal proceedings in India concerning the 1984 Bhopal tragedy are without merit”.134 In September 2015, according to Bhopal criminal
court records, the DOJ wrote to the Indian government stating
that it had not served the notice on Dow.135 The DOJ claimed that
it needed additional information in regards to whether the matter
was primarily civil or criminal in nature and the legal basis for
serving Dow given that it acquired UCC after the disaster. In June
2016, over 120,000 people signed a petition calling on the U.S.
government to meet its obligations under the treaty and international law and asking the White House to explain what it is doing
about the issue.136 The White House declined to comment on
this request, citing its Terms of Participation under which it can
decline to address certain matters to “avoid the appearance of
improper inluence”.137
EXAMPLE FOUR: Using local connections obtained through
State embassies may be a good way to collect cross-border evidence more swiftly. While not a human rights case, the example
below illustrates how U.S. investigators worked with the U.S. Embassy in Beijing to collect information in China in a case against
a Chinese businessman for inancial fraud.
In this case, the U.S.-based investigators acting under a court-appointed receivership discovered preliminary evidence indicating
that his company illegally diverted assets to a newly set up company
to the detriment of the U.S. shareholders in the irst company. The
investigators needed to obtain certain material information from
the businessman, who resided in China. Instead of asking U.S. law
enforcement to submit a formal MLAT request, they reached out to
contacts at the U.S. Department of State who connected them with
the Commercial Division of the U.S. Embassy in China. The U.S.
Embassy agreed to formally request the local vice mayor in Beijing
to provide information concerning the businessman. As a result, the
investigators were able to meet with the businessman and obtain
Principle Five
40
material information that helped them to discover concrete proof of
corporate fraud and malfeasance. This process enabled the investigators to obtain information that might not otherwise be available
through oficial channels in a much shorter timeframe.138
41
Principle Five
6
Pursue charges that relect the gravity of
the corporate crimes committed
Explore potential legal avenues for investigating the corporate crime
early in the process and pursue those relecting the gravity of the
offence, unless legitimate or strategic reasons exist for pursuing alternate or lesser charges.
COMMENTARY
Challenges
Prosecutors interviewed noted that law enforcement may not pursue the most serious charges against corporate actors involved in
corporate crimes due to a lack of familiarity with the subject, skills,
expertise, resources and evidence. For example, prosecutors referred
to cases where they were restricted from pursuing a more severe
criminal charge because the evidence required to prove that charge
had not been obtained during the initial investigation stage.
Law enforcement may also face internal pressure from their managers to bring cases to a close quickly and successfully, meaning
that even in cases involving serious corporate crimes there can be
pressure to pursue lesser charges that are easier to prove with the
aim of reaching a swift settlement with the corporate actor. In many
cases, the terms of the settlement are conidential and do not require
an admission of guilt or wrongdoing. This approach can entrench
corporate impunity because it does little to deter future harm or
provide justice for victims.
Solutions
To overcome these challenges, action is required on two different
levels. First, States and senior oficials in law enforcement should
create an enabling environment so that law enforcement has the
support and resources needed to take on corporate crimes cases and
pursue the most serious criminal charges against the corporate actors
involved.
Principle Six
42
Second, law enforcement should pursue charges that relect the
gravity of the crime. They should map all potential causes of actions
early in the investigation process, taking into account the nature and
location of the corporate entity’s business activities, assets and resources, proit lows, corporate structure and decision-making structure as well as the nature and extent of the misconduct involved.
In jurisdictions that do not provide criminal liability for corporate
entities, law enforcement should similarly identify causes of actions
under equivalent laws, in addition to pursuing criminal accountability for the responsible individuals. Investigators should undertake this
mapping exercise in collaboration with prosecutors, where legally
permitted, and other appropriate specialists in relevant government
bodies. Law enforcement should also reach out for assistance and
advice from other relevant contacts and networks.
Law enforcement should only pursue alternate or lesser charges,
such as regulatory or administrative sanctions, where there are legitimate or strategic reasons for doing so. For example, it may be impossible to secure the evidence required to prove the more serious offence. Or, if law enforcement pursues alternate or lesser charges, the
evidence collected might build towards future criminal or equivalent
actions against the corporate actor for more serious offences. For
example, where permitted by law, pursuing tax offences may give
access to books and records needed to prove grand corruption.
Care should be taken in pursuing alternate or lesser charges in
situations where the corporate crime is particularly severe, such as
where widespread human rights harms occur. In these situations, cooperation in the investigation or prosecution, or voluntary remedial
measures undertaken by the corporate entity or individuals, should
not presumptively result in alternate or lesser charges. Instead, such
actions should be considered in the sentencing phase of the case.
43
Principle Six
EXAMPLES
EXAMPLE ONE: In the Rana Plaza factory case in Bangladesh,
an initial charge of “culpable homicide” brought by investigators
against the accused was changed to the more serious offence of
murder, which was accepted by the court.
In 2013, an eight-story commercial building called Rana Plaza
located in Savar, Dhaka, Bangladesh collapsed, killing more than
1,100 people and leaving over 2,000 injured.139 The majority
of the people in the building at the time of the collapse were
garment workers employed in ive factories located on the top
loors. These factories supplied clothing to well-known global
fashion brands.
Law enforcement in the case initially pursued charges against
owners of the factories for violations of the National Building
Code and for culpable homicide, the latter of which carries a
minimum seven-year prison sentence. This followed the indings of a government-led inquiry in the immediate wake of the
disaster, which recommended that charges of culpable homicide
be brought against the factory owners.140 However, investigators
decided to change the culpable homicide charge to the more
serious offence of murder two years later after further investigation revealed more evidence.141 It was speculated that the delays
in bringing murder charges were possibly the result of corporate
capture and political interference.142
The evidence that caused the shift in charges showed that Sohel
Rana, his staff and management of the factory had ignored warnings that the building was unsafe and also threatened and forced
workers to enter the building. Human Rights Watch reported
that a “government inspector had ordered the Rana Plaza’s
evacuation the previous day after large cracks had appeared in
the walls. But on the morning of the collapse, factory managers
persuaded and cajoled workers to return, telling them it was safe.
In some cases managers threatened them with dismissal if they
did not comply”.143 It was further reported that, “[s]hortly afterwards, Savar was affected by a power cut. Once the Rana Plaza’s
electrical generators were switched on, the building started to
shake and then collapsed”.144
Principle Six
44
In December 2015, the court ordered the arrest of 24 people,
who tried to abscond from proceedings, as well as the seizure of
their assets.145 Prosecutor Anwarul Kabir stated that those facing
arrests included “associates of Rana who ‘slapped and forced’ the
workers to join the shift”.146
In July 2016, a Bangladeshi court formally charged 38 people
with murder, including plaza owner Sohel Rana as the principal
accused, more than a dozen government oficials and factory
owners. Three were also charged with helping Rana to lee after
the incident. 147
In addition, RAJUK, the Capital Development Authority of Bangladesh, along with the Police have proceeded with the case
against the factory owners for violating the National Building
Code by constructing the structure with substandard materials
and building additional loors beyond what was permitted.148 It
has been reported that the building was intended as ofice and
retail space, and that the additional factory loors were added illegally.149 Eighteen people (17 of whom are among the 38
charged with murder) have been indicted, including plaza owner
Sohel Rana,150 and the trial is set for October 2016.151
It is reported that the family of a victim also iled a separate murder case with a Dhaka court who had ordered the Criminal Investigation Department to do the investigation for this case alongside
the case iled by the police.152
EXAMPLE TWO: While not a human rights case, a corruption
case against high-level oficials of the Fédération Internationale
de Football Association (FIFA), which started from a criminal investigation of one executive member’s tax records, demonstrates
how evidence collected for a lesser offence may lead to evidence
for more serious charges.
In 2011, an investigator at the U.S. Internal Revenue Service (IRS)
noticed one FIFA executive member, Chuck Blazer, had failed to
ile his personal tax return, and began investigating Blazer’s tax
record. The IRS investigation discovered evidence that revealed
a broader corruption scheme involving other high-level FIFA
oficials. The agency subsequently collaborated with the Federal
45
Principle Six
Bureau of Investigation to pursue the corruption investigation,
with Blazer acting as a conidential informant.153
The investigation found evidence that multiple FIFA oficials may
have accepted bribes in exchange for favours and used oficial funds
for personal purposes. The full investigation eventually pulled in assistance from police agencies and diplomats in 33 countries. To date,
it has led to criminal indictments of fourteen people.154
Principle Six
46
7
Investigate and prosecute those corporate
actors most responsible for the wrongdoing
Explore all potential defendants responsible for the wrongdoing early
in the investigation process. Identify and prioritise pursuing those
most responsible, including individual actors as well as the corporate entity itself, by considering any legal restrictions as well as the
facts of the case. With respect to individuals, prosecutors should not
limit their efforts to low or mid-level employees. Where suficient
evidence exists, senior executives and oficers should be pursued.
COMMENTARY
Challenges
Prosecutors interviewed noted that law enforcement does not always
pursue the corporate actors most responsible for the corporate crime.
This may arise for legal reasons, such as limitations in the law or the
availability of corporate criminal liability in the jurisdiction. It may
also be due to internal pressures, such as pressures to settle cases
quickly, or for other practical reasons, such as the complexity of
prosecuting a corporate entity.
Interviewed prosecutors recognised that taking this approach risks
entrenching corporate impunity. Where jurisdiction exists but law
enforcement only pursues the individuals implicated in a corporate
crime, there is little incentive for the corporate entity itself to create,
reform or implement compliance programmes and to take other
measures to prevent future wrongdoing and harm. In such situations, if law enforcement focuses on prosecuting only low-level or
mid-level individuals of the corporate entity, this may further permit
impunity as senior oficials and the corporate entity itself can escape
sanctions. On the other hand, where law enforcement only pursues
claims against the corporate entity, individuals responsible within the
entity are left unaccountable for criminal actions.
47
Principle Seven
Solutions
Action is needed on two levels to overcome these challenges.
First, States should criminalise serious harms under national law and
include clear provisions relating to the liability of corporate actors
for corporate crimes. Where appropriate, law enforcement should
look to develop legal standards and advocate for new laws in this
area.
Second, using the laws and tools at their disposal, law enforcement
should prioritise pursuing those corporate actors, whether individuals or corporate entities, most responsible for the wrongdoing. For
these purposes, law enforcement should map all potentially culpable
corporate actors linked to the corporate crime early in the investigation process. At this stage, no actor should be categorically exonerated. Where legally permitted, investigators should consult with
prosecutors and other legal experts in relevant government bodies to
ensure that appropriate evidence is gathered to prosecute the corporate entities or individuals.
In prioritising those actors most responsible for the wrongdoing, law
enforcement should:
1. Take into account the legal restrictions in the jurisdiction
pertaining to pursuing corporate entities or individuals;
2. Consider the strategic advantages of pursuing the corporate
entity, any individuals implicated in the offence or both;
and
3. In light of the facts of the case, consider:
(a) The level of seniority or decision-making power of
the individuals within the enterprise;
(b) The degree of responsibility and culpability each
actor has for the wrongdoing; and
(c) The scale and severity of the wrongdoing involved.
Principle Seven
48
In some jurisdictions, prosecutors may enter into agreements with
the corporate entity under which they agree not to prosecute the
entity in exchange for payment of a ine and undertakings from the
entity to identify responsible individuals or fulil certain other terms
and conditions (referred to as non-prosecution or deferred prosecution agreements in some jurisdictions). These agreements should not
be used where a corporate entity is implicated in a corporate crime
linked to a severe human rights abuse. Such agreements should also
not be used as a way for individuals implicated in severe human
rights abuse to escape liability. For example, where such an agreement is signed with a corporate entity in exchange for information
on the identity of responsible individuals, particularly senior executives and oficers, law enforcement should investigate and, where
appropriate, prosecute such individuals. In those situations, where
a prosecutor and a corporate entity enter an agreement, prosecutors
should enforce the agreement strictly by prosecuting the entity for
violations of its terms.
49
Principle Seven
EXAMPLES
EXAMPLE ONE: A recent policy shift in the United States highlights how focusing only on corporate entities rather than senior
level individuals may not suficiently deter wrongdoing or ensure
justice for victims. This policy is also relevant to Principle 6
(Pursue charges that relect the gravity of the corporate crimes
committed) in that it shows how corporate entities and their
directors and employees may see ines (whether under settlement
agreements or otherwise) simply as a cost of doing business.
In recent years, the U.S. Department of Justice (DOJ) has focused
mainly on pursuing and ining corporate entities connected with
wrongdoing, and has rarely prosecuted senior level individuals.
This policy has been criticised on the grounds that it has not
deterred further misconduct and that corporate entities and senior
management may view these ines simply as a cost of doing
business. For example, in September 2015, federal prosecutors
entered into a Deferred Prosecution Agreement (DPA) with General Motors (GM) concerning its decade long concealment of an
ignition switch default credited with killing at least 124 people.155
The U.S. Attorney General stated that the agreement was reached
in part because of the GM’s “extraordinary cooperation” with its
investigation.156 However, no individuals involved in the cover-up
of the defect were prosecuted due to insuficient evidence.157 In
the months following the settlement, a few lawyers made several allegations to the prosecutor that GM was in violation of the
DPA.158 GM refuted these allegations.159
The U.S. government has begun to shift its policy, aiming to deter
corporate misconduct by focusing more on individual accountability. In September 2015, the U.S. Deputy Attorney General
issued a memo (the “Yates Memo”), which states, among other
things, that corporate entities will only beneit from cooperation
credit if they provide the DOJ with “all relevant facts relating to
the individuals responsible for the misconduct”.160 The memo
also directs law enforcement to focus on individual wrongdoing
from the beginning of any investigation. This guidance has been
incorporated into the U.S. Attorneys’ Manual, which contains
policy and guidance for public prosecutors.161
Principle Seven
50
EXAMPLE TWO: While not a human rights case, the progressive
investigation and iling of criminal charges against Alstom Network UK and its former employees demonstrates how investigating and prosecuting both individuals and corporate entities can
serve the goals of ensuring the greatest possible level of accountability and deterring future harm.
In 2009, the UK Serious Fraud Ofice (SFO) began investigating
Alstom Network UK, a subsidiary of French power and transportation company Alstom SA, on suspicion of bribery, corruption
and conspiracy to pay bribes in relation to a number of foreign
projects.162 In September 2014, the SFO iled its irst set of criminal charges against the company for violations of the Prevention of Corruption Act 1906 and the Criminal Law Act 1977 in
relation to transport projects in India, Poland and Tunisia. The
SFO iled similar charges against Alstom Network UK in connection with the Budapest Metro project in Hungary in May 2014,
and against Alstom Power Ltd in connection with a power plant
project in Lithuania in December 2014.
While initial charges were brought only against the corporate
entity, a number of former employees were warned that the SFO
intended to charge them with corruption offences over the next
year.163 As investigations progressed, additional charges were
brought against two former managing directors, a business development director, and the company’s ex-senior vice president of
ethics and compliance.164 The various trials are due to take place
between June 2016 and May 2017.165
EXAMPLE THREE: A 2013 Canadian price ixing case involving
petroleum company Global Fuels illustrates a successful prosecution of mid-level managers and the corporate entity. While not a
human rights case, it also shows the key role that laws on corporate criminal liability play in ensuring successful prosecution.
In R. v. Pétroles Global Inc., two territorial managers and the
general manager of Global Fuel’s Quebec and Maritimes operations were prosecuted and subsequently pled guilty for engaging
in a scheme to ix gasoline prices.166 The State also prosecuted
Global Fuel under the Canadian Criminal Code, under which a
corporate entity can only be held criminally liable for the action
51
Principle Seven
of its senior oficers. “Senior oficer” is deined as a representative “who plays an important role in the establishment of the
organisation’s policies or is responsible for managing an important aspect of the organisation’s activities”.167 The Canadian
government amended the Criminal Code in 2003 to ensure that
corporate entities could be prosecuted for the acts of their middle
managers.168
The defence argued that the general manager was not a senior
oficer for the purpose of the law because he only had authority
over minor expenditures related to the daily operations of the
gasoline stations in the territories he oversaw. As such, his actions
alone could not expose the corporate entity to criminal liability.169 The prosecution argued that, although the general manger
did not possess the ultimate decision making power within the
entity and was not part of the senior management team, he managed “an important aspect” of Global Fuel’s business operation.
As the prosecution demonstrated, the general manager supervised over 200 service stations, which amounted to two-thirds of
the stations in Canada.170
The Quebec court ruled in favour of the prosecution and found the
corporate entity guilty of price ixing, establishing that corporate
entities may be punished for actions of mid-level territory managers
even in the absence of evidence that corporate executives knew of
the misconduct.171 When determining the appropriate level of penalty for the entity, the judge emphasised that, considering the seriousness of the offence and the need to send a message to the industry
to deter future wrongdoing, a ine of CAN$1 million (then around
US$962,000) was warranted.172
Principle Seven
52
8
Use all available legal tools to collect evidence,
build cases and obtain the cooperation of
critical witnesses in corporate crimes cases
Corporate crimes cases are often complex and corporate structures
can be dificult to penetrate. In addition, corporate entities can be
well-resourced and may take active steps to oppose or block investigations. Therefore, where it is feasible to do so, steps should be taken
to facilitate the cooperation of the corporate entity and key corporate
individuals to achieve a successful and expeditious investigation.
From the early stages of the inquiries, and consistent with the principles of due process, law enforcement should identify and use all
available investigative tools to collect and analyse evidence, build
cases and seek interim measures.
COMMENTARY
Challenges
Interviewed prosecutors noted that while some corporate actors
welcome an objective investigation as a way to clear their reputations, others accused of crimes are not as accepting. These corporate
actors may have structures that are dificult to penetrate evidentially
and can wield substantial amounts of economic and political power.
They are often better inancially, legally and technically resourced
than law enforcement. This can create a power imbalance between
corporate actors and law enforcement seeking to hold them to
account. Such imbalance can be intimidating to the authorities and
may discourage law enforcement from taking action in even serious
corporate crimes cases, or may increase the complexity or resources
required to pursue a case.
Solutions
To address this potential imbalance, law enforcement should use
all available legal measures to successfully investigate corporate
actors and encourage their early cooperation to resolve cases swiftly.
Where there is solid evidence of guilt and where permitted by national law, law enforcement should take appropriate interim steps,
53
Principle Eight
such as excluding the corporate entity from government contracts,
and obtaining interim, protective and precautionary judicial orders
to preserve assets within the court’s jurisdiction.
From the early stages of the investigation process, and consistent
with principles of due process, law enforcement should:
1. Identify the full range of measures available in their jurisdiction, including through close cooperation with other
agencies, departments or inancial institutions that may be
able to assist with inquiries or interim measures;
2. Decide which measures are strategic to use in the case,
move quickly to implement those measures in cooperation
with relevant agencies, departments and inancial institutions, and enlist the assistance of the judiciary where
applicable;
3. Decide on the beneits of pursuing covert or overt evidence gathering techniques; and
4. When seizing assets or using proceeds of crime legislation, to the extent permitted by law, take into account
any claims to compensation made by the victims and the
need to ensure suficient funds are left available for these
purposes.
In addition, law enforcement should consider signing agreements
with whistle-blowers (or the corporate entity itself where the perpetrators are rogue employees) to secure internal information on the
corporate wrongdoing and the identity of those most responsible. For
example, lower-level employees involved in any wrongdoing may
be willing to divulge crucial information such as the operation and
decision-making process within the corporate entity in exchange for
leniency in sentencing. When working with whistle-blowers, law
enforcement should take care that these individuals are protected
against retaliation under relevant laws.
Principle Eight
54
EXAMPLES
EXAMPLE ONE: While not a human rights case, the corruption case
of German company Lahmeyer in the Lesotho Highlands Water
Project (LHWP) illustrates how law enforcement may work in tandem with international inancial institutions to hold a multinational
corporate entity accountable.
The LHWP is a large dam project inanced by the World Bank to
deliver water and create hydroelectric power.173 The corporate
entities involved with the project have been criticised for inadequately compensating resettled families, particularly from rural
communities who lost grazing land to the project.174 The development project has also submerged sacred places, including burial
sites and medicinal grounds.175
In addition, the project has been marred by allegations of corruption and bribery. Speciically, in 2002 and 2003 in a Lesotho
court, four foreign companies were convicted of, or pleaded
guilty to, the crime of offering bribes to secure contracts related
to the LHWP. This included German engineering irm Lahmeyer
International.
After Lesotho prosecutors charged the corporate entities in 1999,
the World Bank began debarment proceedings and investigations
against the two entities based on its procurement guidelines.176
During this process, the World Bank worked closely with Lesotho
prosecutors and provided additional resources and expertise. The
European Anti-Fraud Ofice and Swiss authorities also collaborated with and provided assistance to the prosecutions.177
In November 2006, the World Bank debarred Lahmeyer for seven
years.178 In August 2011, the World Bank released Lahmeyer from
debarment early after determining that it had satisfactorily adopted and implemented a Compliance Management System.179
EXAMPLE TWO: While not a human rights case, a bribery investigation that relied on evidence provided by the World Bank shows how
law enforcement can use innovative investigative tools to collect
evidence relevant to a case. This case is also relevant to Principle 5
(Collaborate widely to ensure accountability for corporate crimes,
55
Principle Eight
particularly in cross-border cases) in that it shows the beneits of
networks for gathering information and intelligence.
On 17 April 2013, the World Bank announced the ten-year debarment of a major Canadian engineering company, SNC-Lavalin
Inc., and its afiliates, for misconduct related to two projects, one
of which was the Padma Multipurpose Bridge Project in Bangladesh. The corporate entities misconduct involved conspiring
to pay bribes and misrepresentations when bidding for World
Bank-inanced contracts in violation of the World Bank’s procurement guidelines.180
The investigation of the case was led by the World Bank’s investigatory wing, the Integrity Vice Presidency (INT).181 In the past,
the INT, whose principle mandate is to monitor World Bank loans
and ferret out corruption, has cooperated with national police
forces around the world to provide information about potentially
illegal activities of persons within their respective jurisdictions.
While conducting its own investigation of SNC-Lavalin, the INT
shared with the Royal Canadian Mounted Police (RCMP) information that incriminated some SNC-Lavalin’s employees.182 Acting on the INT information, and additional evidence the RCMP
collected, the prosecutor charged four individuals.183 The respondents iled a motion to compel the World Bank to produce all of
its iles related to the case. The World Bank took the position that
it enjoyed immunity from compelled disclosure under an international treaty, the Bretton Woods Agreement (to which Canada
was a party), and implementing legislation. There was a concern
that the World Bank would, in the future, withhold cooperation
with local police forces if the price of such cooperation were to
subject its internal iles to inspection of courts around the world.
In 2016, the Supreme Court of Canada reversed the lower court
ruling and held that the World Bank had not waived its immunity
by providing information to the police.184
EXAMPLE THREE: A civil case in the United Kingdom involving the
alleged complicity of British mining company Monterrico Metals
in police torture in Peru shows how legal measures to preserve a
defendant’s assets, either in criminal or civil cases, may address the
inherent inequities involved in pursuing cases against well-resourced
Principle Eight
56
corporate actors and prevent them from disposing of assets before
the resolution of a case.
In June 2009, thirty-one Peruvians sued Monterrico and its Peruvian subsidiary in a UK court for complicity in police brutality.185
The claimants alleged that, during a series of demonstrations in
2005 against the proposed development of a mine in Peru, the
police tortured and mistreated protestors by beating and whipping them, threatening them with death and rape and forcing
them to eat rotten food.186 According to the complaint, not only
did the corporate entity provide material support to the police,
but certain employees and subcontractors also participated in the
abuse.187
In 2007, a Chinese company bought Monterrico and subsequently
moved its headquarters to Hong Kong. In May 2009, Monterrico announced that it would be de-listing from the Alternative Investment
Market (AIM) of the London Stock Exchange in the United Kingdom.
Although it was accepted that this decision was for genuine commercial reasons, there were concerns that any resulting transfer of assets
out of the United Kingdom would affect the ability of the claimants
to claim damages. In June 2009, the claimants successfully secured a
£5 million (then around US$8.1 million) worldwide freezing injunction in both the London and Hong Kong courts.188 In June 2011,
Monterrico settled with the claimants out of court with no admission
of liability.189
57
Principle Eight
9
Ensure that victims of corporate crimes
are able to obtain effective remedies
Ensure that victims of corporate crimes are able to obtain effective
remedies in the justice process, including through adequate reparations, effective legal representation, the sharing of information and
consulting with victims at appropriate stages of cases where corporate crimes are alleged.
Consider ways in which criminal justice reforms might provide for a
greater focus on victims’ rights, consistent with ensuring due process
for the defendants, including through participation in cases where
corporate crimes are alleged.
COMMENTARY
Challenges
Interviewed experts noted that victims of corporate crimes can face
particular obstacles in the criminal justice process. In the worst-case
scenario, they are viewed solely as witnesses to the crime and do
not receive adequate reparation for the harm they have suffered. For
example, prosecutors may only seek ines or jail sentences for corporate actors. This may be the case even in jurisdictions where additional measures to remediate the harm to victims are permitted by
law within that jurisdiction such as: securing clean-up or an apology
or providing for health care and monitoring in the case of an environmental disaster involving criminal conduct. Similarly, victims’
rights may be sidelined or negatively impacted due to pressure on
law enforcement to resolve corporate crimes cases quickly and with
minimal costs.
Solutions
Within the criminal justice system, there is growing recognition of
the need to ensure more effective and meaningful participation and
representation of victims.
Principle Nine
58
Under international standards on victims’ rights, the right to an
effective remedy encompasses: (1) equal and effective access to
justice; (2) adequate, effective and prompt reparations; and (3)
access to relevant information concerning judicial mechanisms. At
the international level, the Rome Statute of the International Criminal Court (ICC) provides for the prosecutor to take into account
the interests of victims when pursuing or deciding not to pursue a
case, and for the views and concerns of victims to be presented and
considered at appropriate stages in court proceedings. This is balanced against the accused’s right to due process. The ICC’s revised
strategy in relation to victims speciically states that an objective is to
ensure that “victims are able to fully exercise their right to effectively
participate in the ICC proceedings with effective legal representation
in a manner that is consistent with their rights and personal interests
as well as with the rights of the accused to a fair, expeditious and
impartial trial”.
At the regional level, in 2012, the European Union adopted a directive on minimum standards on the rights, support and protection of
victims of crime. At the national level, the United Kingdom has, as
one example, committed to put victims irst in the criminal justice
system and developed a Code of Practice with minimum standards
around victims’ rights. This includes the right to be kept informed
about the progress of any investigation and prosecution and the right
to make a statement, referred to as a Victim Personal Statement, in
court if the defendant is found guilty.
To overcome the obstacle that victims can face in obtaining an
effective remedy, States should strive to adopt or amend laws and
procedures so that victims can receive an effective remedy for corporate crimes in line with international standards and principles of
due process. States must also comply with their obligations under
international law to ensure that victims have access to reparations.
Similarly, law enforcement should consider practical ways, consistent with their legal system, through which victims can obtain
effective remedy beyond inancial penalties and sentencing. As
some national jurisdictions are more open than others to taking a
victim-centred approach, what law enforcement can do to ensure
that victims obtain an effective remedy will vary depending on what
the law permits within a given jurisdiction. To the extent possible,
ensuring an effective remedy in corporate crimes cases should be
59
Principle Nine
pursued alongside other objectives, such as deterring future harm by
corporate actors or encouraging a more responsible business culture.
One way of ensuring equal and effective access to justice is to
enable victims to participate meaningfully and effectively in proceedings where possible. For example, in select jurisdictions, victims
have the right to legal representation, the right to make certain submissions in legal proceedings through a representative or the right
to take part in such proceedings as a civil party independent of the
prosecutor (commonly referred to as “partie civile”).
Additionally, prosecutors could pursue other available avenues for
redress to ensure that victims receive adequate, effective and prompt
reparations for any harm caused.
Reparations include not only compensation but also restitution,
rehabilitation, satisfaction and guarantees of non-repetition. At
an appropriate stage in proceedings, prosecutors should consider
consulting with victims about any speciic measures available in
that jurisdiction that they could require the corporate entity or other
corporate individuals to take if found guilty. Measures could include:
the corporate entity implementing a code of conduct that is enforced
through an internal compliance program to prevent future wrongdoing, or issuing a public apology and paying appropriate restitution to
the victims and communities affected by its commercial activity.
While practice may vary between jurisdictions, law enforcement
should seek to engage with victims from an early stage in the
investigation and/or prosecution of a corporate crimes case, and
ensure that they are given relevant information as it proceeds. This
includes information to ensure that victims are aware of their rights
as well as any assistance or support mechanisms available to them.
Victims should be promptly informed of any decision not to proceed
with the case, and the reasons for such a decision, as well as any
procedure open to victims to challenge such a decision. Similarly,
they should be informed as to why a prosecutor is seeking a speciic
sentence in their case. Information should be provided to victims in
an accessible manner, including appropriate language.
Principle Nine
60
EXAMPLES
EXAMPLE ONE: The legal framework in India is progressive on the
role of victims in criminal proceedings, although challenges remain
in regards to the implementation of the law.
Under India’s Criminal Procedure Code of 1973, victims can
challenge a law enforcement decision not to open an investigation into a complaint that alleges a “cognizable” offence by
appealing to a higher oficer in the police force.190 In extreme
cases, police oficers may be criminally convicted if they fail to
investigate a case.191
Victims can also challenge a prosecutor’s decision not to ile an
indictment. The Supreme Court in India held in a 1997 case,
U.P.S.C. v. S. Papiah, that when law enforcement seeks to forgo
a prosecution, “the informant must be given an opportunity of
being heard so that he can make his submissions to persuade
the magistrate to take cognizance of the offence and issue process”.192
In addition, victims have the ability to participate in court proceedings by appointing a “subsidiary prosecutor” who may, in
certain situations, submit written arguments on behalf of the victims.193 Finally, victims and their legal heirs are allowed to appeal
a decision of acquittal with permission from the High Court.194
EXAMPLE TWO: Two South African cases demonstrate the types
of reparations that can be used to redress harms with a broad
negative impact on society.
In 2012, the Regional Court of Ermelo, Mpumalanga, South
Africa convicted mining company Golfview Mining (Pty) for a
number of breaches of the Environmental Management Act and
the National Water Act in connection with the illegal mining and
pollution of a wetland in South Africa.195 A plea agreement was
reached and Golfview Mining was ordered to pay one-million
rand (then around US$115,000) to the South African government.196 Additionally, under the agreement, Golfview Mining was
also required to disperse one million rand each (then around
US$115,000) to agencies including the Water Research Counsel,
the Environmental Empowerment Services and the Mpumalanga
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Principle Nine
Tourism and Parks Agency for purposes of environmental research, awareness, protection and training. It was also agreed
that the accused rehabilitate the area and periodically report on
progress.197
In January 2014, the managing director of clay mining company
Blue Platinum Ventures in South Africa was convicted of violating
the National Environmental Management Act and sentenced to
ive years imprisonment.198 Blue Platinum began mining operations in the village of Tlhabine in Limpopo in 2007, causing
severe environmental damage that harmed the local community,
encroaching upon sacred sites, failing to rehabilitate damage to
mining locations and relocating to another site without authorisation.199
In response, following a complaint from the Batlhabine community, the Department of Mineral Resources (DMR) ordered
the corporate entity to remediate the damage and subsequently
informed Blue Platinum that its mining rights would be cancelled
unless it complied.200 The entity did not comply with the DMR directives and its mining rights were revoked in September 2013.201
The affected community subsequently brought fourteen criminal
charges to the Public Prosecutor against Blue Platinum and six
of its directors alleging violations of the National Environmental
Management Act (NEMA), the Mineral and Petroleum Resources
Development Act, and the National Water Act. During the court
case, community members and expert reports provided evidence
in support of these allegations.202
The Public Prosecutor subsequently investigated and prosecuted
the corporate entity and six of its directors, including the managing director.203 While the charges against most directors were
eventually dropped, Blue Platinum and its managing director
pled guilty to violating NEMA. The managing director was sentenced to ive years’ imprisonment, which was suspended on the
condition that he repairs the environmental damage caused by
Blue Platinum.204 The conviction represents the irst time that a
director of a corporate entity has been held personally liable for
a mining-related environmental offence in South Africa, setting a
precedent for future prosecutions.
Principle Nine
62
There are, however, some problematic aspects to this case. Although
both the managing director and Blue Platinum pled guilty, no penalty
was imposed on the corporate entity itself. Moreover, the managing
director’s sentence was inadequate because it provided no detailed
instructions as to what would constitute rehabilitation of the land. The
court could have, for example, speciied that the rehabilitation would
occur under the oversight of the DMR or laid out concrete expectations on the restoration. The lack of speciicity in the sentence also
makes it dificult for the community to show non-compliance.
63
Principle Nine
10
Put in place appropriate measures and
incentives to protect victims, informants,
whistle-blowers, witnesses and experts
in corporate crimes cases
Enforce the laws that protect whistle-blowers and others providing
evidence about potential cases. From the early stages of an investigation, identify and implement steps and processes needed to
encourage, support and protect whistle-blowers, victims and others
who provide intelligence and evidence so that they may act conidentially, anonymously and without fear of reprisals.
COMMENTARY
Challenges
Investigators and prosecutors interviewed noted that victims, informants and whistle-blowers can be key to exposing corporate crimes.
They, as well as other witnesses, can also provide vital information to law enforcement oficials and in court. Yet the interviewed
investigators and prosecutors recognised that these individuals may
be subject to social pressures from their community, the corporate
entity or co-workers to remain silent or may be subject to signiicant
personal risks such as harassment, intimidation and threats of violence. Whistle-blowers often do not have adequate protection under
domestic laws – in particular when they are seen to come forward
without “clean hands”, for example in situations where they may
have contributed to the crime. The investigators and prosecutors also
noted that the issue of witness and victim safety is particularly acute
in cross-border cases and that special protection measures, such as
resettlement, can be required. As a result, key individuals may be
reluctant to come forward and provide information or may not wish
to give evidence in court.
Solutions
At the national level, States should amend or adopt laws that
protect whistle-blowers from harassment, intimidation and threats
of violence.
Principle Ten
64
At the law enforcement level, where possible, investigators and
prosecutors should consider whether a corporate crimes case can be
prosecuted without testimony from victims or vulnerable witnesses. The case would therefore rely on documentary evidence alone,
with witnesses needed only to introduce evidence and/or testimony
from police or investigators. Many States have learned to prosecute
domestic violence and traficking without needing victims to testify,
and prosecutors might consider seeking to adopt similar strategies.
Where testimony from victims and witnesses is needed, law enforcement should encourage and put in place appropriate measures
and incentives at an early stage to protect such individuals and help
foster disclosure.
In particular, law enforcement should:
1. Understand the laws and procedures in their jurisdiction
and international standards on the provision to or management and exploitation of information by law enforcement.
This includes whistle-blower protection laws and evidentiary privileges that protect the source of the information;
2. Know what other measures and incentives are or could be
put in place to encourage and protect victims, informants,
whistle-blowers and witnesses. This includes technologies and mechanisms that allow individuals to provide
evidence conidentially and/or anonymously, for example
through protected sources such as journalists and using
technologies that route and obscure communications so
that they cannot be traced back to users; and
3. Ensure that such individuals are aware of the risks to themselves if they are identiied as the source of a disclosure
and what steps they can take to protect themselves;
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Principle Ten
In respect to whistle-blowers, to the fullest extent allowed under
applicable laws in their jurisdiction, prosecutors should use their
discretion to do the following:
1. Apply the term “whistle-blower” broadly to cover all of
those who expose information that they reasonably believe, at the time of disclosure, to be true and constitute a
threat or harm to the public;
2. Make the scope of the protected disclosure easily understandable;
3. Ensure that available disclosure channels are clear and
publicly known;
4. Guarantee the conidentiality and anonymity of whistle-blowers;
5. Afford whistle-blowers protection from all forms of retaliation and discrimination; and
6. Impose penalties on those who threaten or initiate retaliation for the protected activity and provide remedies to the
targets.
During the pre-investigation and investigation phases, law enforcement should take special care to ensure that protective and security
measures are in place for individuals who are vulnerable to abuse,
intimidation and retaliation. Such measures include:
1. Interviewing a large number of witnesses instead of only
one or two to avoid the interviewees being singled out as
targets for intimidation or retaliation;
2. To the extent possible, obtaining evidence from victims
and witnesses located outside of the affected community,
such as from members of the diaspora; and
3. Using investigators, police and translators who do not have
connection to the affected community.
Principle Ten
66
During trial, protective and security measures could include:
1. Issuing protective orders, relocating witnesses or seeking
to prosecute the case in a venue further from the location
where the abuse took place;
2. Allowing conidentiality or anonymity for certain information providers, taking into account due process and fair trial protections. For example, where such individuals do not
want to be identiied as the information provider in court,
processes could be put in place to disguise their identity
or to ensure investigators or prosecutors do not know or
become aware of the identity of that individual (such as
by ensuring that only a specialised prosecutor or speciic
contact knows their identity); and
3. Allowing victims, witnesses and experts to give testimony
in a manner that ensures the safety of such persons, such
as permitting testimony to be given through the use of
communications technology like video or other adequate
means.
Finally, at all stages of the justice process, law enforcement should
provide support services to particularly vulnerable groups, such as
victims of sexual violence, children or persons with disabilities. The
support service should take into account the social, cultural and
religious background of the victims.
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Principle Ten
EXAMPLES
EXAMPLE ONE: A range of legislative mechanisms exist
across jurisdictions to ensure that whistle-blowers are protected
and receive appropriate remedy for instances of reprisals and
victimisation. South Korea has a strong legal framework for
whistle-blower protection as it includes a number of important provisions. For example, the protection laws deine “whistle-blower” as any persons who reports, petitions, informs,
accuses or complains that a violation of the public interest has
occurred or is likely to occur to a wide range of designated authorities, including a corporate oficer.205 The Anti-Corruption and
Civil Rights Commission (ACRC), a government body, is mandated to help investigate and resolve whistle-blower protection
cases.206 The ACRC can grant protective measures such
as re-instatement or compensation when instances of discrimination or reprisal against the whistle-blower for the protected disclosure occur.207 Whistle-blowers can also request the issuance
of preventive measures when there is high likelihood of retaliation.208 Under South Korean law, disclosure of a whistle-blower’s
identity without his/her consent and retaliation are criminal
offences.209 Retaliation is presumed to be a consequence of the
whistle-blowing if it takes place within two years of the divulgence of information.210
In addition, in 2011, South Korea passed the Act on the Protection of Public Interest Whistle-blowers, which includes a large
awareness campaign. Since the promulgation of this act, there
has been a marked increase in the number of whistle-blowers.
While during the preceding ten years the ACRC recovered an
average of US$5 million per year, in 2012 alone US$10 million
was recovered due to an increase in whistle-blowers.211 The number of whistle-blowers on tax evasion doubled between 2011
and 2013, while the dollar amount recovered from tax evasion
investigations nearly tripled.212
EXAMPLE TWO: Ghana’s Whistleblower Act provides a good
framework for whistle-blower protection, although the lack of
suficient implementation of the Act also shows the importance
of law enforcement having knowledge of the whistle-blower
protection framework and using their discretion to apply the law
to protect whistle-blowers.
Principle Ten
68
The scope of the protected disclosures under the Act is sweeping.
Individuals are protected when they disclose economic crimes;
violations of the law; miscarriages of justice; waste, misappropriation, or mismanagement of public resources by a public institution; environmental degradation and danger to health and safety
of an individual or a community.213 The protected disclosure can
be made to a wide range of authorities and institutions, including
law enforcement, the Parliament, the Commission on Human
Rights and Administrative Justice (CHRAJ) or the head of a recognised religious body.214 Whistle-blowers are protected from any
form of retaliation and victimisation.215 The CHRAJ is tasked with
investigating complaints of retaliation and may refer the case to
High Court or make orders to request police protection.216
There have been challenges in implementation of this progressive legal framework. Very few members of the public know or
understand the Act. Many of the institutions mandated to receive
complaints under the Act do not have procedures in place to
process them, and few oficers in these institutions have received
training on how to handle such complaints.217
EXAMPLE THREE: Anonymous whistle-blowers are often vital to
establishing a corporate case. There are numerous ways to preserve the anonymity of the information provider.
Internet anonymity networks, such as TOR, allow communications to be routed and obscured so that they cannot be traced
back to the user. For example “whistle-blowing sites” such as
Afrileaks,218 Wildleaks219 and Transparency International220 use
TOR and GlobaLeaks technologies to allow informants to pass
information anonymously to journalists, wildlife crime activists
and anti-corruption NGOs respectively. The Guardian newspapers Securedrop facility also uses TOR and encryption technologies to allow informants to share iles with The Guardian
anonymously.221
Older and potentially less secure systems use more dated technologies but may also offer guarantees of non-disclosure and/or
operate processes which prevent identifying information from being collected to preserve anonymity. For example Crimestoppers
is a UK based registered charity, which allows anonymous infor-
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Principle Ten
mants to provide information by telephone and through the Internet.222 It provides a guarantee that it will not collect information
that identiies informants, it will not trace calls or internet-based
communications and will not allow any identifying information
to be included in its reports.223 This guarantee and the structured
information collection preserve anonymity. Crimestoppers was
contacted by 300,000 individuals in 2015. From those contacts
111,000 pieces of anonymous information were passed to the
police resulting in 19,500 crimes being solved and prevented.224
These systems rely on technology and structured processes to
create a void between the information provider and receiver. If
used correctly they will normally preserve the anonymity of the
information provider. The receiver will not know the provider’s
identity and hence cannot be forced to disclose the information,
nor could law enforcement trace the provider by forensic means.
Legal opportunities for anonymous information provision may also
be available, depending on the legislation in force in the relevant
jurisdiction. In general terms, many jurisdictions privilege certain
types of communications. For example, in common law jurisdiction
communications with lawyers are normally legally privileged. In the
United Kingdom, legal professional privilege protects legal communications between a registered and qualiied legal practitioner and
their client. This means that the content of communications between
the two parties cannot be disclosed without the client’s consent. In
such jurisdictions, an individual who wish to pass information to
law enforcement anonymously could pass it to a lawyer for onward
provision to law enforcement on the explicit stipulation that the
provider should not be identiied as a source.
Principle Ten
70
APPENDIX: RESOURCES AND FURTHER READING
INTRODUCTION
Report of the United Nations High Commissioner for Human Rights,
Improving accountability and access to remedy for victims of business-related human rights abuse. U.N. Doc. A/HRC/32/19 (May 10,
2016). Available at: http://www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/A_HRC_32_19_AEV.pdf.
See also, Improving accountability and access to remedy for victims
of business-related human rights abuse: explanatory notes for guidance. U.N. Doc. A/HRC/32/19/Add.1 (May 12, 2016). Available at:
http://www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/A_HRC_32_19_Add.1_AEV.pdf.
PRINCIPLE ONE
International Association of Prosecutors, Declaration on Minimum
Standards Concerning the Security and Protection of Public Prosecutors and their Families. Available at: http://www.iap-association.
org/getattachment/Resources-Documentation/IAP-Standards/Protection-of-Prosecutors/Standards-Protection-of-Prosecutors.pdf.aspx.
PRINCIPLE THREE
International Association of Prosecutors, Standards of professional
responsibility and statement of the essential duties and rights of
prosecutors (Apr. 23, 1999). Available at: www.iap-association.org/
getattachment/34e49dfe-d5db-4598-91da-16183bb12418/Standards_English.aspx.
PRINCIPLE FOUR
Rt Hon Dame Elish Angiolini, Report of the Independent Review
into the Investigation and Prosecution of Rape in London (Apr. 30
2015). Available at: www.cps.gov.uk/Publications/equality/vaw/
dame_elish_angiolini_rape_review_2015.pdf.
PRINCIPLE FIVE
International Criminal Police Organisation (INTERPOL). Available at:
http://www.interpol.int.
Europol. Available at: https://www.europol.europa.eu/content/page/
about-us.
71
Appendix
ASEANAPOL. Available at: http://www.aseanapol.org/home.
The European Union’s Judicial Cooperation Unit (Eurojust). Available
at: http://www.eurojust.europa.eu.
International Corruption Hunters Alliance (ICHA). Available at:
www.worldbank.org/en/about/unit/integrity-vice-presidency/icha.
International Association of Prosecutors (IAP). Available at: www.
iap-association.org/.
Corruption Hunter Network. Available at: https://www.norad.no/
en/front/thematic-areas/democracy-and-good-governance/corruption-hunters/.
International Corruption Hunters Alliance. Available at: http://www.
worldbank.org/en/about/unit/integrity-vice-presidency/icha.
PRINCIPLE NINE
U.N. General Assembly Resolution, 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, No. 60/147 (Dec. 16, 2005).
Available at: www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx.
REDRESS, Institute for Security Studies, Victim Participation in
Criminal Proceedings, (2015). Available at: www.redress.org/downloads/1508victim-rights-report.pdf.
PRINCIPLE TEN
OECD, Whistle Blower Protection. Available at: www.oecd.org/gov/
ethics/whistleblower-protection.htm.
Report of the U.N. Special Rapporteur, The promotion and protection of the right to freedom of opinion and expression, U.N. Doc.
A/70/361 (Sept. 8, 2015). Available at: http://www.un.org/en/ga/
search/view_doc.asp?symbol=A/70/361. Summary of the Report and
State submissions available at: www.ohchr.org/EN/Issues/FreedomOpinion/Pages/ProtectionOfSources.aspx.
Appendix
72
Government Accountability Project (GAP), International Best Practices for Whistle-Blower Policies, (Apr. 12, 2013). Available at: www.
whistleblower.org/sites/default/iles/pictures/Best_Practices_Document_for_website_March_13_2013.pdf.
Council of Europe, Whistleblowing: Update on Europe (Apr. 20,
2015). Available at: www.coe.int/t/dghl/standardsetting/cdcj/Whistleblowers/Whistleblowers_Update%20on%20Europe_20%20
04%202015.pdf.
US Congressional Research Service, Survey of Federal Whistleblower
and Anti-Retaliation Laws, (Apr. 22, 2013). Available at: www.fas.
org/sgp/crs/misc/R43045.pdf.
International Criminal Court (ICC), About Victims and Witnesses
Unit. Available at: www.icc-cpi.int/en_menus/icc/structure%20
of%20the%20court/protection/Pages/victims%20and%20witness%20unit.aspx.
Whistleblowing International Network (WIN), Mission Statement.
Available at: whistleblowingnetwork.org/.
Transparency International, International Principles for Whistleblower Legislation (Nov. 5, 2013). Available at: www.transparency.org/
whatwedo/publication/international_principles_for_whistleblower_legislation.
UN Ofice on Drugs and Crime, Good practices for the protection
of witnesses in criminal proceedings involving organized crime,
11 (2008). Available at: https://www.unodc.org/documents/organized-crime/Witness-protection-manual-Feb08.pdf.
73
Appendix
ENDNOTES
1
For example see: Committee on Economic, Social and Cultural
Rights (CESCR), General Comment 14: The right to the highest attainable standard of health, UN Doc E/C.12/2000/4 para 39 (11 August
2000); CESCR, General Comment 15 on the right to water, UN Doc.
E/C.12/2002/1 para 31 (January 2003); Committee on the Rights of
the Child, General Comment 16 on State obligations regarding the
impact of the business sector on children’s rights, UN Doc. CRC/C/
GC/16 paras 43 and 44 (April 2013); Committee on the Elimination
of Discrimination against Women, General Recommendation No.
28 on the core obligations of States parties under article 2 of the
Convention on the Elimination of All Forms of Discrimination against
Women, UN Doc. CEDAW/C/GC/28 para 36 (December 2010). See
also Maastricht Principles on Extraterritorial Obligations of States in
the Area of Economic, Social and Cultural Rights, Principles 23-27,
http://www.etoconsortium.org/nc/en/main-navigation/library/maastricht-principles/?tx_drblob_pi1%5BdownloadUid%5D=23.
2
United Nations Human Rights Council, Report of the Special
Representative of the Secretary General on the issue of human rights
and transnational corporations and other business enterprises, John
Ruggie 21 (Apr. 9, 2010), http://www2.ohchr.org/english/issues/
trans_corporations/docs/A-HRC-14-27.pdf.
3
About the IAP, Int’l Ass’n of Prosecutors, http://www.iap-association.org/About (last visited Apr. 28, 2016).
4
Vision & Objectives of the IAP, Int’l Ass’n of Prosecutors, http://
www.iap-association.org/About/Vision-Objects (last visited Apr. 28,
2016).
5
Int’l Ass’n of Prosecutors, Declaration on Minimum Standards
Concerning the Security and Protection of Public Prosecutors and
Their Families, http://www.iap-association.org/getattachment/Resources-Documentation/IAP-Standards/Protection-of-Prosecutors/
Standards-Protection-of-Prosecutors.pdf.aspx.
6
United Nations Ofice on Drugs and Crime, Human Traficking
Case Law Database, Case No. 2012/3925, https://www.unodc.org/
res/cld/case-law-doc/trafickingpersonscrimetype/bel/2012/case_
no__20123925_html/BEL030-Case_No._2012-3925.pdf.
7
Forced Labour and Traficking, InternAtIonAl trAde unIon confederAtIon (Feb. 10, 2015), www.ituc-csi.org/spip.php?action=converser&var_lang=en&hash=b1e58fed0a992cf70d4045c959dd281c037a36a6&redirect=joint-corporate-liability-in.
Endnotes
74
8
Human Rights Without Frontiers International, Traficking in Human Beings in Belgium 2007-2008 (Apr. 28 2009), http://lastradainternational.org/lsidocs/1020%20Traficking%20in%20human%20
beings%20%28HRWF%202009%29.pdf.
9
International Trade Union Confederation, Joint liability of legal
persons in labour traficking cases – court decision example (Belg.)
(Dec. 1 2013), http://www.ituc-csi.org/IMG/pdf/201502102041.pdf.
10
Human Traficking Case Law Database, Case No. 2012/3925,
supra note 6.
11
Id.
12
Belgium – 2. Institutional and Legal Framework: Criminal Law,
euroPeAn commIssIon, https://ec.europa.eu/anti-traficking/member-states/belgium-2-institutional-and-legal-framework_en (last
updated Aug. 25, 2016).
13
Background, Int’l comm’n AgAInst ImPunIty In guAtemAlA, http://
www.cicig.org/index.php?page=background (last visited Aug. 26,
2016).
14
About CICIG, Int’l comm’n AgAInst ImPunIty In guAtemAlA, http://
www.cicig.org/index.php?page=about (last visited Aug. 26, 2016).
15
Mandate, Int’l comm’n AgAInst ImPunIty In guAtemAlA, http://www.
cicig.org/index.php?page=mandate (last visited Aug. 26, 2016).
16
Thematic Reports, Int’l comm’n AgAInst ImPunIty In guAtemAlA,
http://www.cicig.org/index.php?page=thematic_reports (last visited
Aug. 26, 2016).
17
Arturo Matute, Ending Corruption in Guatemala, Int’l crIsIs grP.
(Apr. 30, 2015), http://blog.crisisgroup.org/latin-america/2015/04/30/
ending-corruption-in-guatemala.
18
Id.
19
Azam Ahmed & Elisabeth Malkin, Otto Pérez Molina of Guatemala Is Jailed Hours After Resigning Presidency, new york tImes (Sept. 3,
2015), http://www.nytimes.com/2015/09/04/world/americas/otto-perez-molina-guatemalan-president-resigns-amid-scandal.html?_r=1.
20
Judgment in the case against Frans Van A, (2005) 09/751003-04
(The Hague District Court).
21
Id.
22
Id.
23
Frans Van Anraat, trIAl wAtch (Apr. 26, 2016), https://trialinternational.org/latest-post/frans-van-anraat/ (last visited Aug. 26, 2016).
75
Endnotes
24
Id.
Id.
26
Frans Van A, (2005) 09/751003-04, supra note 20.
27
Id.
28
Id.
29
LJN: BZ8333, Rechtbank’sGravenhage, C/09/355125/HA ZA
094324 (Civiel Overig) (Neth.), http://www.liesbethzegveld.com/
user/ile/130424_uitspraak_van_anraat_(civiel).pdf.
30
REDRESS & the International Federation for Human Rights (idh),
Strategies for the Effective Investigation and Prosecution of Serious
International Crimes: The Practice of Specialised War Crimes Units
17 (Dec. 2010), http://www.redress.org/downloads/publications/
The_Practice_of_Specialised_War_Crimes_Units_Dec_2010.pdf.
31
Amnesty Int’l & Greenpeace, The Toxic Truth: About a Company
called Traigura, a Ship called the Probo Koala, and the Dumping of
Toxic Waste in Cote D’Ivoire 25-40, 45-49 (Sept. 25, 2012) [hereinafter The Toxic Truth], https://www.amnestyusa.org/sites/default/iles/
afr310022012eng.pdf.
32
Id. at 51-58.
33
Id. at 129.
34
Agreement of 13 February 2007 between the State of Ivory Coast,
Traigura Beheer BV, Traigura Limited and Puma Energy Côte d’Ivoire
Article 7, http://www.greenpeacephp.nl/traiguradossiers/Traigura%20koop%20vervolging%20Ivoorkust%20af.pdf.
35
Id.
36
The Toxic Truth, supra note 31 at 138-143.
37
Id. at 155.
38
Decision of the District Court of Amsterdam, In the case of:
Traigura Beheer B.V. (Public Prosecutor’s Ofice No. 13/84600306); Openbaar Ministerie (Functioneel Parket), Traigura’s punishment inal, top executive settles (Nov 16, 2012), https://www.om.nl/
vaste-onderdelen/zoeken/@31000/traigura-punishment/.
39
The Toxic Truth, supra note 31 at 160 fn 704.
40
Amnesty Int’l, Memorandum to the Director of Public Prosecutions Concerning Traigura (Mar 17, 2014).
41
Environment Agency, Environment Agency Decision Document:
Re Proposed Investigation of Traigura Ltd (Mar 17, 2015) (letter on
ile with Amnesty International).
25
Endnotes
76
42
Amnesty Int’l, Too Toxic to Touch? The UK’s Response to Amnesty
International’s Call for A Criminal Investigation into Traigura Ltd. 5
(July 23, 2015) [hereinafter Too Toxic to Touch?], https://www.
amnesty.org/en/documents/eur45/2101/2015/en/; Amnesty Int’l, UK:
Threat of High Court action spurs review of corporate conspiracy
claim (Nov. 20, 2014), https://www.amnesty.org/en/latest/
news/2014/11/uk-threat-high-court-action-spurs-review-corporateconspiracy-claim/.
43
Yao Esaie Motto & Others v Traigura Limited and Traigura Beheer
BV in the High Court of Justice, Queen’s Bench Division, Claim No.
HQ06X03370 [hereinafter UK Claim].
44
UK Claim, Agreed Final Joint Statement (issued on behalf of all
parties to the Traigura Personal Injury Group Litigation), http://www.
traigura.com/images/probo-koala/Traigura_and_Leigh_Day_Co_
agreed_inal_Joint_Statement.pdf.
45
Too Toxic to Touch?, supra note 42 at 3.
46
For Traigura’s full response to the case example, please see their
letter of 19 August 2016 at http://www.commercecrimehumanrights.
org. For full details of Traigura’s position and its response to The
Toxic Truth, see Probo Koala, trAfIgurA, http://www.traigura.com/
media-centre/probo-koala/ (last visited Aug. 26, 2016); The Toxic
Truth, supra note 31 at 228-229.
47
United Nations, Organization Mission in the Democratic Republic of Congo, Report on the conclusions of the Special Investigation
concerning allegations of summary executions and other human
rights violations perpetrated by the Armed Forces of the Democratic
Republic of Congo (FARDC) in Kilwa (Katanga Province) on 15
October 2004 8, http://www.raid-uk.org/sites/default/iles/monuc-inal-report.pdf.
48
Id.
49
Id.
50
Id. at 1.
51
Id. at 8.
52
See Rights and Accountability in Development (RAID), Congolese
Military Judge Calls for the Prosecution of Former Anvil Mining Staff
for Complicity in War Crimes, congo PlAnet (Oct. 18, 2006), http://
www.congoplanet.com/article.jsp?id=4526576.
77
Endnotes
53
Press Release, Victims of Kilwa Massacre Denied Justice by
Congolese Military Court, globAl wItness (July 17, 2007), https://
www.globalwitness.org/en/archive/victims-kilwa-massacre-denied-justice-congolese-military-court.
54
Public Prosecutor v. Adémar Ilunga, et. al. (2007) R.P. Nº
010/2006 (Military Court of Katanga, Congo).
55
Id.
56
United Nations, RDC : Louise Arbour préoccupée par un verdict
d’acquittement pour les exactions commises à Kilwa (July 5, 2007),
http://www.un.org/apps/newsFr/storyF.asp?NewsID=14405&Cr=RDC
&Cr1=Kilwa&Kw1=congo&Kw2=violations&Kw3=&_sm_
au_=iVVqZ22DDDv5tZRM#.V1lTTrsrK01.
57
Press Release,Victims of Kilwa Massacre Denied Justice by
Congolese Military Court, supra note 53.
58
Sally Neighbour, The Kilwa Incident, four corners (June 6, 2005),
http://www.abc.net.au/4corners/content/2005/s1384238.htm.
59
Letter from Global Witness, RAID and MiningWatch Canada to
the Minister of Justice and Attorney General of Canada (Mar. 6,
2007), available at http://www.raid-uk.org/sites/default/iles/raid-canada-ag.pdf; Anvil in Kilwa, DRC, 2004, RAID, http://www.raid-uk.
org/content/anvil-kilwa-drc-2004 (last visited July 15, 2016).
60
Id.
61
Letter from the Minister of Justice and Attorney General of Canada
to Global Witness, RAID and MiningWatch Canada (June 27, 2007)
(letter held on ile by RAID).
62
CAAI is an organization established by an international consortium of NGOs with the primary purpose of undertaking class action
cases. Some of the NGOs in this case included: Action Against
Impunity for Human Rights (hereafter “ACIDH”), the African Association for the Defence of Human Rights (hereafter “ASADHO”), the
Canadian Centre for International Justice (hereafter “CCIJ”), Global
Witness and RAID.
63
See Anvil Mining Ltd. c. Association canadienne contre l’impunité, 2012 QCCA 117 (COUR D’APPEL) [hereinafter Anvil v. CAII].
64
Id. In reaching its decision, the appellate court accepted Anvil
Mining’s arguments that the dispute was not related to the company’s activities in Québec because Anvil Mining was not established
in Quebec at the time the events took place and its activities in
Québec were not linked to the management of the mine in the DRC.
Endnotes
78
This decision was in direct contravention with the indings of the
lower court, however, the Canadian Supreme Court still declined to
hear the plaintiff’s appeal given the appellate court’s decision. See
Canadian Press, Supreme Court won’t hear appeal in Congo massacre case, cbc news (Nov. 1, 2012), http://www.cbc.ca/news/canada/
montreal/supreme-court-won-t-hear-appeal-in-congo-massacrecase-1.1297191.
65
RAID, Ten years on: still no justice for Kilwa victims (updated),
http://www.raid-uk.org/sites/default/iles/kilwa-10-years.pdf.
66
See United Nations Ofice on Drugs and Crime (UNODC), The
Status and Role of Prosecutors, Criminal Justice Handbook Series
(2014), https://www.unodc.org/documents/justice-and-prison-reform/14-07304_ebook.pd
67
Id.
68
Id.
69
Id.
70
Id.
71
Code for Crown Prosecutors, crown ProsecutIon servIce, https://
www.cps.gov.uk/publications/code_for_crown_prosecutors/codetest.
html (last visited Aug. 26, 2016).
72
Guidance on Corporate Prosecutions, crown ProsecutIon servIce,
http://www.cps.gov.uk/legal/a_to_c/corporate_prosecutions/ (last
visited Aug. 29, 2016).
73
Id.
74
Id.
75
Press Release, No further action to be taken in Operations
Weeting or Golding, crown ProsecutIon servIce (Dec. 11, 2015),
http://www.cps.gov.uk/news/latest_news/no_further_action_to_be_
taken_in_operations_weeting_or_golding.
76
Director of Public Prosecutions of the Crown Prosecution Service,
Victims’ Right to Review Guidance 3 (July, 2016), http://www.cps.
gov.uk/publications/docs/vrr_guidance_2016.pdf.
77
See Organisation for Economic Co-operation and Development
(OECD), Convention on Combating Bribery of Foreign Public
Oficials in International Business Transactions and Related Documents (2011), https://www.oecd.org/daf/anti-bribery/ConvCombatBribery_ENG.pdf.
79
Endnotes
78
R (On the Application of Corner House Research and others)
(Respondents) v. Director of the Serious Fraud Ofice, [2008] UKHL
60 (appeal taken from [2008] EWHC 246) [hereinafter R v. Fraud
Ofice], http://www.publications.parliament.uk/pa/ld200708/
ldjudgmt/jd080730/corner.pdf.
79
The Attorney General, BAE Systems: Al Yamamah Contract, uk
PArlIAmentAry websIte (Dec. 14, 2006 5:21 PM), http://www.publications.parliament.uk/pa/ld200607/ldhansrd/text/61214-0014.htm; R
v. Fraud Ofice at paras. 3-22.
80
Christopher Hope, Halt inquiry or we cancel Euroighters, telegrAPh (Dec. 1, 2006), http://www.telegraph.co.uk/news/
uknews/1535683/Halt-inquiry-or-we-cancel-Euroighters.html.
81
Working Group on Bribery in International Business Transactions,
United Kingdom: Phase 2 Follow-up Report on the Implementation
of the Phase 2 Recommendations, oecd (June 21, 2007).
82
DLH lawsuit (re Liberian civil war), bus. & humAn rIghts res.
centre, http://business-humanrights.org/en/dlh-lawsuit-re-liberian-civil-war (last visited August 26, 2016).
83
Global Witness, Bankrolling Brutality (2010), https://www.globalwitness.org/sites/default/iles/import/bankrolling_brutality_hi.pdf.
84
Liberia: Danish irm DHL violates its own principles on wood
purchasing, world rAInforest movement, http://wrm.org.uy/oldsite/
bulletin/48/Liberia.html (last visited July 12, 2016).
85
The Public Prosecutor v. Guus Kouwenhoven, InternAtIonAl crImes
dAtAbAse, http://www.internationalcrimesdatabase.org/Case/2238
(last visited July 12, 2016); Press Release, Global Witness Welcomes
Dutch Court Decision to Retry Timber Baron Guus Kouwenhoven for
Crimes Committed During Liberian War, globAl wItness (Apr. 21,
2010), https://www.globalwitness.org/en/archive/global-witness-welcomes-dutch-court-decision-retry-timber-baron-guus-kouwenhovencrimes/.
86
Procedures & Milestones: DLH Liberia, SHERPA (Nov. 17, 2014),
https://www.asso-sherpa.org/procedures-and-milestones-dlh-liberia.
87
Information provided by SHERPA (June 16, 2016) (record on ile
with ICAR).
88
Procedures & Milestones: DLH Liberia, supra note 86.
89
Information provided by SHERPA (June 16, 2016) (record on ile
with ICAR).
90
Press Release, Complaint Accuses International Timber Company
Endnotes
80
DLH of Trading Illegal Timber and Funding Liberian War, globAl
wItness (Mar. 12, 2014), https://www.globalwitness.org/en/archive/
complaint-accuses-international-timber-company-dlh-trading-illegal-timber-and-funding-0.
91
Global Witness v. Dalhoff Larsen and Horneman (DLH), the
forest stewArdshIP councIl httPs://Ic.fsc.org/en/stAkeholders/dIsPute-resolutIon/ArchIved-cAses/dlh-lIberIA (last visited July 12, 2016).
92
Mission and Vision, forest stewArdshIP councIl, https://us.fsc.org/
en-us/what-we-do/mission-and-vision (last visited July 12, 2016).
93
Forest Stewardship Council Statement, Forest Stewardship Council
Disassociates from the DLH Group Decision due to reputational risks
for FSC linked to stakeholder disputes in Liberia (Feb. 12, 2015);
Liberia: Wartime Timber Company Penalized, AllAfrIcA (Feb. 16,
2015), http://allafrica.com/stories/201502170685.html.
94
Id.
95
Company Announcement, Close Down DLH France, DLH (Feb.
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96
European Centre for Constitutional and Human Rights (ECCHR),
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97
Id.
98
Malcolm Curtis, Time runs out for Nestlé ‘murder’ lawsuit, the
locAl (May 2, 2013 8:02 PM), http://www.thelocal.ch/20130502/
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99
ECCHR, Update in the Nestlé case: Prosecutor Under Court
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100
ECCHR, Nestlé precedent case: Murder of trade unionist Romero
in Colombia (Jan. 5, 2015), http://www.ecchr.eu/en/our_work/
business-and-human-rights/nestle.html.
101
Id.
102
United States v. Ionia Mgmt S.A., 555 F.3d 303 (2d Cir. 2009).
103
Id.
104
Tjitske Lingsma, The International Criminal Court’s Quest for
Scientiic Evidence, wItness (Apr. 27, 2016), https://blog.witness.
org/2015/04/the-international-criminal-courts-quest-for-scientiic-evidence.
81
Endnotes
105
Ofice of the Prosecutor, Strategic Plan, June 2012-2015, Int’l
crIm. ct. (Oct. 11, 2013), https://www.icc-cpi.int/iccdocs/otp/
OTP-Strategic-Plan-2013.pdf.
106
Id.
107
Human Rights Center at U.C. Berkeley School of Law, First
Responders: An International Workshop on Collecting and Analyzing
Evidence of International Crimes (Sept. 8-11, 2014), https://www.
law.berkeley.edu/iles/HRC/First_Responders_inal_with_cover4.pdf.
108
History of Eurojust, eurojust: the euroPeAn unIon’s judIcIAl
cooPerAtIon unIt (eurojust), http://www.eurojust.europa.eu/about/
background/Pages/History.aspx (last visited May 11, 2016).
109
Id.
110
Mission and Tasks, eurojust (last visited May 11, 2016), http://
www.eurojust.europa.eu/about/background/Pages/mission-tasks.
aspx.
111
Eurojust, Implementation of the Eurojust Action Plan against THB
2012-2016, Mid-Term Report 13-14 (Nov. 2014), http://www.
eurojust.europa.eu/doclibrary/eurojust-framework/casework/implementation%20of%20the%20eurojust%20action%20plan%20
against%20thb%202012-2016%20-%20mid-term%20report%20
(november%202014)/thb-mid-term-report-2015-02-05_en.pdf.
112
Id.
113
Id.
114
Robin McDowell, Margie Mason & Martha Mendoza, Slaves may
have caught the ish you bought, AssocIAted Press (Mar. 25, 2015),
http://www.ap.org/explore/seafood-from-slaves/ap-investigationslaves-may-have-caught-the-ish-you-bought.html.
115
Associated Press, Indonesia opens trials of 6 accused of enslaving
ishermen, bAngkok Post (Nov. 17, 2015), http://www.bangkokpost.
com/archive/indonesia-opens-trials-of-6-accused-of-enslaving-ishermen/767900.
116
Associated Press, Indonesia opens trials of 8 accused of enslaving
ishermen, honolulu stAr AdvIsor (Nov. 16, 2015), http://www.
staradvertiser.com/breaking-news/indonesia-opens-trials-of-8-accused-of-enslaving-ishermen.
117
Thailand Ministry of Foreign Affairs, Thailand’s Progress Report
on Anti-Human Traficking Efforts 5 (Mar. 31, 2015), http://www.mfa.
go.th/main/contents/iles/media-center-20150430-161606-980768.
pdf.
Endnotes
82
118
Press Release, PM joins ASEAN leaders in signing ASEAN Convention Against Traficking in Persons, Especially Women and
Children, royAl thAI gov’t (Nov. 21, 2015), http://www.thaigov.go.
th/index.php/en/government-en1/item/97737-pm-joins-asean-leaders-in-signing-asean-convention-against-traficking-in-persons-especially-women-and-children.html.
119
Amnesty Int’l, Clouds of Injustice: Bhopal disaster 20 years on
12-13 (Nov. 29, 2004), https://www.amnesty.org/en/documents/
ASA20/015/2004/en.
120
Gov’t of Madhya Pradesh, Bhopal Gas Tragedy Relief and
Rehabilitation Department, Annual Report 2003; for a brief description of gas-related health effects and their ongoing impact see
Amnesty Int’l, Clouds of Injustice, supra note 119.
121
S. Muralidhar, Unsettling Truths, Untold Tales: The Bhopal Gas
Disaster Victims’ Twenty Years’ of Courtroom Struggles for Justice,
Int’l envtl l. reseArch centre 39 (2004), www.ielrc.org/content/
w0405.pdf; See also Amnesty Int’l, Justice Incorporated: Corporate
Abuses and the human rights to remedy fn 156 (2014), https://www.
amnesty.org/en/documents/pol30/001/2014/en/.
122
The New York Times quoted a diplomatic source concerning the
intervention: “Throughout the day we were in close consultation
with the Indian government at a high level...We expressed deep
concern and our hope that the situation could be rectiied”. Robert
Reinhold, Indians arrest and then free U.S Executive, new york tImes
(Dec. 8, 1984), http://www.nytimes.com/1984/12/08/world/indians-arrest-and-then-free-us-executive.html?pagewanted=all. For a
comprehensive account, see dAn kurzmAn, A Killing Wind: Inside
Union Carbide and the Bhopal Catastrophe 122, McGraw-Hill,
(New York 1987).
123
Notice dated 22 July 1991, iled with the Hong Kong Registrar of
Companies on 20 August 1991. On 18 December 1990, UCE had
ceased to have a place of business in Hong Kong, according to
Notice of Cessation dated 8 January 1991, iled with the Hong Kong
Registrar of Companies on 12 January 1991.
124
See generally Muralidhar, Unsettling Truths, supra note 121.
125
Union Carbide Corporation v. Union of India, (1989) SCC 540;
14 February 1989, AIR 1990 SC 273 (India).
126
Union Carbide Corporation v. Union of India, (1991) 4 SCC 584;
AIR 1992 SC 248 (India).
83
Endnotes
127
State of Madhya Pradesh v. Warren Anderson (Absconder) and
Others, Cr. Case No.8460 /1996 (Court of the Chief Judicial Magistrate Bhopal) Madhya Pradesh– Date of Institution 1 Dec. 1987,
Judgment of 7 June 2010.
128
Bano v. Union Carbide Corp., 99 Civ 11329 (JFK) amended class
action complaint.
129
The request was rejected by the US Department of Justice in June
2004 “as it does not meet the requirements of Articles 2(1) and 9(3)
of the Extradition Treaty”. Fax from Ashley Deeks, United States
Department, Ofice of the Legal Adviser, May 25, 2004.
130
Union Carbide Corp., 99 Civ 11329 (India).
131
CBI v. Warren Anderson and Others, Criminal Case No. RC
3(S)/1984-ACU.I, MJC No. 91/92, NDOH-14.3.2015, Submission of
Death Investigation Field Report of Mr. Warren Anderson, Mar. 16
2015.
132
Notices of service were issued by the Chief Judicial Magistrate of
Bhopal on The Dow Chemical Company on 6 Jan. 2005, 23 July
2013, 4 Aug. 2014, 22 Nov. 2014 and 15 Sept. 2015.
133
CBI v. Warren Anderson and Others, Criminal Case No. RC
3(S)/1984-ACU.I, MJC No. 91/92, NDOH-12.11.2014, Service
report of show cause notice issued by this Honourable Court for
service upon The DOW Chemical Company U.S.A. (Nov. 12, 2014);
CBI v. Warren Anderson and Others, Criminal Case No. RC
3(S)/1984-ACU.I, MJC No. 91/92, NDOH-14.3.2015, Service report
of show cause notice issued by this Honourable Court for service
upon The DOW Chemical Company U.S.A. (Mar. 16, 2015).
134
Letter from The Dow Chemical Co. to Amnesty Int’l of July 1,
2014 (July 1, 2014).
135
Letter from the U.S. Dep’t of Justice to the Under Sec’y to the
Gov’t of India, Ministry of Home Affairs regarding Request for
Service of Summons on DOW Chemical Company in Criminal Case
No. RC 3(S)/1984-CBI, ACU.I, MJC No. 91/92 (No. 25012/11/2014
– Legal Cell 114) (Sept. 25, 2015).
136
Uphold International Law! Stop Shielding Dow Chemical from
Accountability for Corporate Crimes in Bhopal, India, we the PeoPle
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Endnotes
84
137
Email from the White House “We the People Team” of 10 August
2016 (record on ile with Amnesty International).
138
Case example provided by Robert W. Seiden, Esq., President,
Conidential Global Investigations (CGI) (June 9, 2016) (record on
ile with ICAR).
139
Jim Yardley, Report on Deadly Factory Collapse in Bangladesh
Finds Widespread Blame, new york tImes (May 22, 2013), http://
www.nytimes.com/2013/05/23/world/asia/report-on-bangladeshbuilding-collapse-inds-widespread-blame.html. For background
information, see also Bangladesh: Court accepts murder charges
against 41 people over fatal Rana Plaza building collapse, busIness &
humAn rIghts resource centre, https://business-humanrights.org/en/
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Most: Workers’ Rights in Bangladesh’s Garment Factories (2015),
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140
Jim Yardley, Report on Deadly Factory Collapse in Bangladesh
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141
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jun/01/rana-plaza-collapse-dozens-charged-with-murder-bangladesh.
142
Bangladesh murder trial over Rana Plaza factory collapse, bbc
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143
Human Rights Watch, Whoever Raises Their Head Suffers the
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144
Id.
145
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146
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85
Endnotes
147
Bangladesh murder trial over Rana Plaza factory collapse, supra
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com/article/bangladesh-rana-plaza-disaster-trial-idINKCN0ZY1GW.
148
Court Accepts Chargesheet in Murder Case Filed Over Rana
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149
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150
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152
Md Sanaul Islam Tipu, Rana Plaza: 2 get bail on surrender, dhAkA
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153
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154
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Endnotes
86
156
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157
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158
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159
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160
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162
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Endnotes
167
Criminal Code of Canada, L.R.C. (1985), ch. C-46; Blake, Cassels
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Parliament of Canada, Second Reading of Bill C-45, Hansard
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169
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170
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174
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175
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World Bank, Lahmeyer Sanctions, supra note 173.
177
Stolen Asset Recovery Initiative, Lesotho Highlands Water Project
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178
World Bank, Lahmeyer Sanctions, supra note 173.
179
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Endnotes
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180
World Bank Debars SNC-Lavalin Inc. and its Afiliates for 10
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181
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182
World Bank Group v. Wallace, [2016] SCC 15 (Can.) paras
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183
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184
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185
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186
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leIghdAy worldwide freezing injunction, supra note 185.
189
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192
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193
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194
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195
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196
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Endnotes
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204
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213
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Endnotes
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215
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91
Endnotes
ABOUT THE CORPORATE CRIMES PRINCIPLES
The Commerce, Crime and Human Rights Project (“the
Project”) was launched jointly by Amnesty International and the International Corporate Accountability
Roundtable (ICAR) on 26 February 2014. The Project seeks to
identify and address why States and law enforcement
are rarely pursuing corporate criminal accountability in
human rights cases.
A group of eminent legal experts, with the support of
Amnesty International and ICAR, developed “The Corporate Crimes Principles: Advancing Investigations and
Prosecutions in Human Rights Cases” (“the Principles”)
to encourage State actors to combat corporate crimes more
effectively. The Principles seek to address the impunity gap
by providing a common, global approach to the investigation and prosecution of corporate crime, taking better
account of the range of corporate actors that may be
implicated.
The Principles are aimed at law enforcement oficials,
including police, investigators, prosecutors, judges and
government legal counsel as well as State executive and
legislative bodies. They have been developed in consultation with investigators, prosecutors, lawyers and civil society
actors specialising in human rights. The Principles are
intended to ensure that corporate crimes do not go unpunished. This will beneit victims and their representatives,
human rights defenders, lawyers and law-abiding corporate
actors.
All materials relating to the Project and the Principles are
also available on the Project website at www.commercehumanrights.org.