A/HRC/8/16 page 12 Omission and silent presence 39. In the business and human rights context the question often arises whether a company’s mere presence in a country where human rights violations are occurring can amount to complicity. Legal liability for complicity when a company is merely present is unlikely. Analogizing from international criminal law cases, it would have to be shown that the company’s silence amounted to a substantial contribution to the crime, such as legitimizing or encouraging the crime, and that the company provided such encouragement knowingly. 40. In international criminal law, individuals have been convicted of aiding and abetting international crimes when they were silently present at the scene of a crime or in the vicinity of a crime. However, in these cases presence was only one factor that led to a finding that the individuals’ acts or omissions had a legitimizing or encouraging effect on the crime in the specific context, and all of the accused also had some form of superior status.22 Benefiting from abuses 41. As with mere presence, the sole fact that a company benefits from human rights abuses, is unlikely to result in legal liability for complicity. Nevertheless, the South African Truth and Reconciliation Commission noted that benefiting from abuse constituted a relevant factor in determining the responsibility of companies for involvement in abuses.23 As discussed further below, benefiting is a relevant consideration in non-legal contexts.24 (b) Knowledge 42. Cases in international criminal tribunals have required that the accused know the criminal intentions of the principal perpetrator, and that their own acts provide substantial assistance to 22 See Kvocka (ICTY Trial Chamber), 2 November 2001, paragraphs 257-261, summarizing the ICTY cases dealing with presence and accomplice liability. 23 In 1998, the South African Truth and Reconciliation Commission found that there were three levels of business involvement in apartheid: (i) playing a central role in designing and implementing apartheid; (ii) profiting directly from activities that promoted apartheid; and (iii) benefiting indirectly by operating in apartheid society (Truth and Reconciliation Commission, Final Report 1998, at vol. 4, Chap. 2). The Commission said that the first two levels must result in accountability (paras. 23 and 27). However, it said that benefiting indirectly from apartheid policies was of a “different moral order” (para. 23). It implied that it would be inappropriate to hold such companies accountable for furthering apartheid per se (para. 32), notwithstanding the Commission’s support for companies to engage in “realistic moral behaviour grounded in a culture of international human rights law” (para. 148). The Final Report is available at: http://www.polity.org.za/polity/govdocs/commissions/1998/trc/4chap2.htm. 24 See section C below.