A/HRC/38/49
(a)
Although most States have legal systems capable of handling corporate
wrongdoing, there are many different approaches to these issues, such as attribution of
criminal liability; lack of enforcement is a major issue;
(b)
Corporate complicity is a key concept for the attribution of liability; most
States that recognize corporate liability also recognize corporate complicity;
(c)
Legal regimes relevant to business respect for human rights are generally not
framed in human rights terms, resulting in problems such as outcomes, where the only
applicable sanctions (such as a fine) might not be commensurate with the severity of the
abuse or the harm caused;
(d)
Resources available to prosecutors are limited (often accompanied by a lack
of political will) to pursue companies or company representatives involved in alleged
human rights abuses, and resources are even more limited when the harm has been inflicted
in other jurisdictions.
22.
Participants in the Forum examined how to overcome challenges and increase
accountability for cross-border corporate human rights crimes by examining the life cycle
of a criminal prosecution. Discussions highlighted recent work and initiatives to address
existing accountability gaps, in particular:
(a)
The Corporate Crimes Principles, 5 which build on the experiences of legal
practitioners and prosecutors in combating corporate crimes actively;
(b)
The study of the Working Group on best practices of cross-border
cooperation between law enforcement agencies on business-related human rights cases
(A/HRC/35/33), which confirmed that there was not a lot of practice in prosecuting such
cases. The Working Group found, however, that in areas such as environmental protection,
anti-corruption and anti-trafficking, there was good practice on which to build. In addition
to formal mechanisms, it highlighted the importance of informal networks and cooperation,
such as joint investigation teams. With political will, such practices could be replicated for
business-related human rights cases.
23.
Participants highlighted the key role of civil society organizations, including with
reference to the recognition by the International Criminal Court that civil society plays an
important part in collecting evidence, and the role of investigative journalism in exposing
offshore tax avoidance schemes, money laundering and bribes (such as the investigations
on the Panama Papers and the Paradise Papers by the International Consortium of
Investigative Journalists). At the same time, both non-governmental organizations and
prosecutors cautioned that evidence collected by the organizations had to follow the
principle of due process and principles of justice; otherwise, prosecutors may not be able to
rely on them.
24.
The safety and protection of whistle-blowers and civil society representatives was
another main concern, as underlined by the recent deaths of investigative journalists,
representatives of non-governmental organizations, United Nations field workers and
human rights defenders. Prosecutors participating in the discussions stressed that
collaboration with whistle-blowers and civil society actors had to be based on the protection
of anonymity and safety. From the perspective of judges, it was noted that, often, the
problem that courts face is not the lack of evidence, but rather the lack of the conceptual
framework in which the evidence is considered, particularly the challenge of piercing the
corporate veil. In this regard, participants noted that the concept of “corporate identity” had
been introduced to promote risk-taking and economic development, not to act as a shield
from accountability or liability. Judges therefore have to have the courage to apply
responsibility right up to the head organization. With regard to existing legal and practice
limitations in the application of extraterritorial jurisdiction by the judiciary, public opinion
could bring about rapid change, as witnessed in the areas of anti-bribery/anti-corruption and
anti-trafficking.
5
See www.commercecrimehumanrights.org.
7
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents