A/HRC/8/16
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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.
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