A New Instrument on “Gross” Violations? Enthusiasm and Apprehension

I join this fascinating discussion to offer reflections on Professor Ruggie’s interesting proposal for “a legal instrument addressing corporate involvement in the category of “gross” human rights violations.” As someone whose work focuses on the relationship between commerce, atrocity and international criminal law (“ICL”), I applaud Professor Ruggie’s consistent expressions of interest in this relationship, and his desire to play a proactive role in moving this type of accountability forward. His desire coincides with a range of new initiatives that share similar aspirations: in one recently launched by the International Corporate Accountability Roundtable (ICAR), of which I am a member, a group of experts plans to explore the sorts of problems (legal, investigative and practical) that impede prosecutions of these sorts. In another, recently announced by the United Nations Office of the High Commissioner for Human Rights, ICL will feature as one part of a wider and longer project investigating best practices in corporate accountability for “gross” human rights abuses.

Neither of these twin initiatives advocates for the promulgation of a new treaty; both contemplate building frameworks similar to the UN Guiding Principles, that work with pre-existing legal tools. By contrast, the idea of a “new instrument” attempts to break new ground, presumably in treaty form. A treaty would certainly offer a number of benefits. A single instrument addressing corporate responsibility for “gross” human rights violations could help in producing clear, uniform law that provides helpful guidance to businesses and human rights advocates alike. A treaty could identify and confront barriers to justice, including the cost of financing litigation, difficulties with investigative capacity or the absence of a regulatory level playing field globally. It could also be helpful in recommending divisions of labor between home and host countries, such that everything from evidence acquisition to conduct of trial and enforcement of sentences is better coordinated. All of these features are salutary, important, and worth pursuing.

This said, I want to express a series of countervailing dangers involved in codifying a new instrument on corporate responsibility for “gross” violations of human rights, in the hopes that attempts at generating a legal instrument like this are appraised of the possible pitfalls that await. In a way, my concerns are reminiscent of David Kennedy’s Dark Sides of Virtue—the idea that while human rights initiatives frequently bring about a great deal of good into the world, at a very minimum, they must make conscious and address (if possible) their potential downsides. In what follows, I expand on several of these, in ways that I hope act as a friendly caution to those involved in this laudable project.

The first concern stems from how we understand “gross” violations. I appreciate “gross violations of human rights” is something of a term of art in the field, and that the UN General Assembly and others have adopted definitions that equate “gross” violations with ICL to avoid the ambiguities of separating more fundamental human rights from less. Whether ICL and “gross” human rights overlap perfectly or just substantially, there is a sense that these two sisters of international law are again lifting one another up. If some (not Moyn) see Nuremberg as the genesis of both international human rights and ICL, perhaps modern initiatives focused on civilizing business, such as this new instrument, can replicate the catalytic effect between the two fields. Personally, I see this possibility in positive terms, but we should also pause to observe the potential downsides.

For one reason, ICL is a relatively poor vehicle for enforcing economic, social and cultural rights. In its early years, the ICTY flirted with including violations of economic, social and cultural rights in its understanding of persecution as a crime against humanity, but that approach has received a mixed welcome, and by and large, is not close to adequately protecting systemic violations of economic, social and cultural rights. The mismatch between ICL and “gross” violations of human rights would cut the other way too. It’s unclear for instance, whether pillage of natural resources (a primary mechanism for modern conflict financing) constitutes a “gross” human rights violation within the meaning this new instrument would adopt, even though it is unquestionably an international crime that has deleterious consequences for civilian populations in many corners of the world. From the foregoing, one is left wondering whether a focus on “gross” human rights violations will do full justice to human rights or ICL?

And how about national law? Over the summer, a colleague and I sat through the entire Blackwater trial in Washington D.C. (see initial commentary here and a presentation here), in part, because we saw it as a pivotal moment for the idea of home states holding their own corporate officers accountable for conduct that amounts to international crimes perpetrated in foreign war zones. I say “amounts to” because the Blackwater trial was most striking in one respect: it made not an iota of reference to international law at any point. This purely American criminal trial could have constituted a corporate war crime case if charged as such, but instead, the US Attorney’s preferred to employ different, local offenses in providing a judicial response to the gross (corporate) human rights violations that transpired in Baghdad that day.

Still, the Blackwater trial should still count as a judicial response to “gross” human rights violations by a corporation, no? The trial is a remarkable example of the accountability the business and human rights movement aspires to, absent only the reference to international law. Surely we aren’t so wedded to international law that we deprive it of this status. The question for the new instrument then becomes, how would a treaty governing business and “gross” violations of human rights address purely domestic trials like this, that make no mention of human rights of international crimes at all. Is there not a danger that the new category of “gross” violations obscures more than it clarifies?

Leaving the scope of this new treaty to one side, what of the implications for ICL of a new treaty governing “gross” violations of human rights? A new instrument could allow a wholesale departure from previous standards in ICL that already rightly implicate private actors. This anxiety isn’t purely academic—one of the reasons we do not see new treaties governing International Humanitarian Law presently is that the International Committee of the Red Cross (ICRC) knows full well that opening up the Geneva Conventions in a post-September 11 world will lead to a net diminution of humanitarian protections. Are we certain that a similar process will not transpire for “gross” corporate violations of human rights, in ways that push the two bodies of international law further underground rather than lifting them up?

One idea is that a new instrument governing corporate responsibility for “gross” violations of human rights could contain an entirely compartmentalized set of principles that apply to businesses and their representatives, leaving ICL entirely unaffected. Yet, this idea of a segregated regime could pose both symbolic and substantive problems. At the level of symbolism, why should there be a separate category for one set of actors, when they are already bound by pre-existing doctrine in ICL itself? Does this preferential treatment imply that business is normatively or morally privileged? Although I’m sometimes tempted by Jules Coleman’s argument that markets deserve special moral deference because they stabilize notions of the good that we cannot otherwise agree on, overall, I am reluctant to venerate businesspeople over and above politicians, military leaders or other groups capable of committing these crimes.

I suspect that part of the response to these symbolic concerns is that the new instrument will really just focus on harmonizing disparate standards particular to corporations. The problem with this idea is that ICL itself is disparate already, so one can’t harmonize some standards (like complicity) without cutting across pre-existing law. Consequently, if the concern is harmonization, perhaps the task is to harmonize ICL as a whole, or at least portions of it that most closely affect these debates. Over the past years, I have argued that we should adopt a single concept of blame attribution universally (including, but not limited to, complicity) to address some of these problems. Since then, I have set out a set of arguments (see here) for this type of global standardization. Although commerce was a major driver in my thinking, I consistently pitched this claim to the entire field of ICL. The idea of a new instrument to do or encourage this for just business cases is less ambitious, but it does fragment the discipline.

In addition, equating “gross” human rights with ICL brings business and human rights face to face with transitional justice. Up until this point, much of this discussion has assumed a very juridical response to corporate malfeasance. For various reasons I won’t labor here, I believe that judicial responses to this problem are critically important, especially given the immense culture of impunity presently in place. Nonetheless, a number of scholars are less enthusiastic about the fetishization of legal accountability that ICL has brought about. To repackage their concerns into the present context, a new instrument governing gross violations of human rights should not preclude a Truth and Reconciliation Commission instead of a criminal trial, in response, say, to corporate implication in Apartheid South Africa. This poses an interesting tension, however, since we are unequivocally calling for greater judicial-type accountability, including overcoming legal barriers that tend to inhibit it. Those negotiating a new instrument will have to confront this inherent tension.

This brings us to the dangers of “crowding out”. A focus on “gross” violations of human rights could undermine Professor Ruggie’s excellent work on corporations and human rights simpliciter. A new and exciting scholarship is emerging in ICL lamenting the extent to which ICL crowds out other agenda. The moral intensity of atrocity impedes our vision of political economy, colonial history, and human rights performance, all of which also play important causal roles in reproducing mass violence. We simply forget about these other contextual factors in our enthusiasm for sensationalized trials (which arguably do too little to deal with root causes). I have misgivings about this “crowding out” thesis as a critique of ICL (see here), but it is helpful in reminding us of the need to pursue solutions to the problem of business and human rights generally at the same time we develop new tools for the worst types of violations. In other words, our enthusiasm for a new instrument on corporate responsibility for “gross” human rights violations should not obscure the need for deeper structural change and our commitment to pursuing it.

Overall, with respect to “gross” violations at least, one wonders whether the better approach is just to focus on what we already have—the relationship between current ICL and commerce remains very poorly understood, not to mention very infrequently enforced. To be sure, there are upsides to the treaty approach that may outweigh the potential pitfalls I point to; my enthusiasm may win out over my apprehensions depending on the precise parameters of a draft treaty. But however this particular initiative plays out, greater emphasis on the relationship between extant ICL and business will illuminate the possibilities for accountability that already exist, without inviting States back to a negotiating table. In this respect, too, the possibility of a new instrument should not blind us to the work already at hand.