A/HRC/42/CRP.3
41.
The OECD has also articulated international standards in its Guidelines for
Multinational Enterprises, which include a set of recommendations from OECD Member
States to multinational enterprises operating in or from those States. 74 These
recommendations specifically address “all the entities within the multinational enterprise
(parent companies and/or local entities)”75 and, according to their commentaries, extend to
the entire enterprise group, prescribing clear lines of accountability throughout any corporate
structure.76 These standards are relevant for foreign companies that have entered into joint
ventures or other business relationships with the Tatmadaw’s holding companies and
subsidiaries, including through their own subsidiaries based in Myanmar.
42.
The principles on which the United Nations Global Compact (Global Compact)
operate also assume the responsibility of a parent company for its subsidiaries.77 The Global
Compact, similar to the Guiding Principles, also provides businesses world-wide with a
framework of shared values through ten principles that include respecting human rights and
avoiding complicity in human rights abuses. The first principle is that businesses should
“support and respect the protection of internationally proclaimed human rights”. The second
principle is to “make sure that they are not complicit in human right abuses”. Complicity
arises when a business helps another business or organisation carry out a human rights abuse
with the knowledge that its act or omission could provide such help.78 This ‘help’ can include
assistance, facilitation, legitimization or encouragement, including acts or omissions by
companies (or their representatives).79
3.
Business officials and criminal liability
43.
International law also permits States to hold company officials criminally liable for
their direct acts or omissions and for involvement with others in crimes under international
law, if they aid, abet or otherwise assist in genocide, crimes against humanity and war
crimes.80 It is particularly relevant to the situation in Myanmar that these modes of criminal
liability can arise when business officials engage in acts or omissions that assist, encourage
or lend moral support to the perpetration of a crime. 81 This can include financial assistance
and the provision of goods, information and services, including banking and communications
services.82 If businesses rely on the services or resources of the States or encourage the State
74
75
76
77
78
79
80
81
82
16
designed to be consistent with the OECD Due Diligence Guidance”. OECD (2016), “OECD Due
Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and HighRisk Areas: Third Edition,” OECD Publishing, Paris. (http://dx.doi.org/10.1787/9789264252479-en),
p. 3.
OECD Guidelines for Multinational Enterprises, 2011 edition, Foreword.
OECD Guidelines for Multinational Enterprises, Concepts and Principles, 2011 edition, paragraph 4.
OECD Guidelines for Multinational Enterprises, Commentary.
UN Global Compact, Official website www.unglobalcompact.org/about/faq: “The UN Global
Compact applies the leadership principle. If the CEO of a company's global parent (holding, group,
etc.) embraces the Ten Principles of the UN Global Compact by sending a letter to the UN SecretaryGeneral, the UN Global Compact will post only the name of the parent company on the global list
assuming that all subsidiaries participate as well. Subsidiaries that wish to directly send a letter to the
UN Secretary-General to underline their commitment, whether alongside the parent company or
individually, will be listed as participants, and are invited to actively participate in our activities at the
global and local level, including through becoming active in the Global Compact Local Network of
their host country.”
Principle 2, UN Global Compact; https://www.unglobalcompact.org/what-isgc/mission/principles/principle2.
Principle 2, UN Global Compact; https://www.unglobalcompact.org/what-isgc/mission/principles/principle2.
Article 25(39(c) of the Rome Statute establishes criminal liability for someone who facilitates the
commission of a crime by aiding, abetting or otherwise assisting in the commission or attempted
commission of the crime.
ICTY, Prosecutor v. Momčilo Perišic´, Case No. IT-04-81-A, Judgement (Appeal Chamber), 28
January 2013, paragraph 29.
International Commission of Jurists Corporate Complicity & Legal Accountability: Report of the
International Commission of Jurists Expert Legal Panel on Corporate Complicity in International
Crimes, Volume 2: Criminal Law and International Crimes, 2008, p. 37-40. Joanna Kyriakakis,
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