Ruben Carranza is the Director of the Reparative Justice Program at International Center for Transitional Justice (ICTJ). These views are personal and do not necessary reflect those of the ICTJ.
When Latin American countries emerging from military dictatorships began their pursuit of transitional justice thirty years ago, they were not concerned with holding corporations accountable. They were more concerned with finding a balance between prosecuting individual perpetrators without jeopardizing political stability and responding to demands for truth and reparations. (They also didn’t call what they were then doing ‘transitional justice,’ which might be helpful to remember in debates over what kinds of human rights violations should be subject to accountability and whenever those from the global North involved in such debates presume to tell transitioning countries in the global South which kinds of perpetrators they should hold accountable.) But in the last few years, not only have Argentina, Chile and Brazil pursued prosecutions against former military leaders of their respective dictatorships; they have also started to seek the truth about economic crimes and the links between businesses and perpetrators of human rights violations during the dictatorships.
Corporate accountability, corruption, other economic crimes, violations of economic and social rights and disputes involving access to land and natural resources are all part of a broader set of grievances that many in the field of transitional justice simply regarded as background but did not consider inherent to the work of truth commissions, reparations programs or prosecutors. That has changed. There is now more pluralism and transitional justice has evolved from being narrowly focused on physical integrity violations to recognizing that armed conflict, political violence and repression cannot be de-linked from their economic and social causes and consequences. The way taken by transitional justice to get to where it is now might be a helpful map for those working on corporate accountability.
In 2011, Colombia’s Peace and Justice Court sentenced the notorious paramilitary leader known as El Aleman for various conflict-related crimes (this case was one of a number of domestic criminal cases cited in the reparations proceedings submission ICTJ filed in the Tomas Lubanga case). The Peace and Justice Courts are a transitional justice mechanism that imposes reduced sentences on leaders of right-wing paramilitary groups in exchange for confessing the truth and paying reparations. Instead of limiting herself to condemning El Aleman, the judge asked Colombia’s Attorney General to investigate the multinational company Chiquita Banana and to take measures to seize its assets in the country. It is not a thoroughly-argued discussion (the Justice and Peace court’s main mandate is to address the paramilitaries’ individual criminal responsibility) but it demonstrates that domestic courts established as a transitional justice mechanism can help establish certain corporate responsibility.
Before it became harder for victims of human rights violations abroad to sue corporations for compensation in the US under the Alien Tort Claims Act (ATCA), civil actions via ATCA were in effect the extensions of domestic transitional justice initiatives. By demanding compensation through their ATCA action, apartheid survivors belonging to Khulumani, were extending efforts in South Africa to hold corporations accountable through the truthseeking process. The ICTJ amicus brief in support of the plaintiffs argued that the TRC process “did not put an end to the pursuit of accountability for human rights violations committed under apartheid (but) in fact started it.”
But South Africa’s transitional justice experience shows the limits of holding corporations accountable in a transitional justice process animated by ‘reconciliation’ and guided by a design that limited to a matter of days the hearings on the role of business during apartheid. It did not help advance corporate accountability that post-apartheid governments ignored the TRC’s recommendation for a one-off ‘wealth tax’ on businesses that profited from apartheid. The failure of transitional justice in South Africa to hold corporations accountable was inherent in the design of the South African transitional justice ‘model.’ It makes it unreasonable to expect the Khulumani ATCA case to rectify these deficiencies.
But countries such as Timor-Leste, Chad, Liberia, Sierra Leone, Kenya and most recently Tunisia, were not dissuaded from turning to transitional justice as a way of extracting corporate accountability for the role of businesses during dictatorship or armed conflict. In different ways, their truth commissions and prosecutors examined ‘economic crimes’ alongside physical integrity violations, and the role of corporations in both types of abuse. The Liberia Truth and Reconciliation Commission (TRC) devoted 54 pages of its report to defining ‘economic crimes’ and identifying ‘economic criminal actors.’ The effort was inconsistent. The categories of violations, for example, refer to corporations involved in ‘aiding and abiding’ in economic crimes without an explanation of what that meant. On the other hand, the report detailed the impact of illegal timber exploitation during the conflict and the role played by corporations. This was possible because of the collaboration among local civil society, government and international community representatives in the Forest Concessions Review Committee (FCRC), whose data the TRC used. This suggests that when international technical expertise works with and respects local civil society and national government knowledge, examining corporate accountability in post-conflict contexts can be done effectively.
At the start of its work, the Sierra Leone truth commission decided that “perpetrators may be both natural persons and corporate bodies, such as transnational companies or corporations” and that its mandate “is not confined to violations of human rights that might constitute crimes, under either national or international law, nor is it limited to violations committed by States or governments.” The Timor-Leste truth commission not only investigated economic and social rights violations during the Indonesian occupation but found that “violations of economic and social rights did not occur only as a by-product of military operations” but were “intertwined with private and corporate interests,” including the Indonesian military’s partnerships with business persons in the coffee, timber, and oil sectors. These examples demonstrate that normative definitions may be helpful in examining corporate accountability but should not become obstacles to establishing the factual and more complex historical narrative underlying allegations of corporate complicity.
In post-Marcos dictatorship Philippines, foreign corporations had a decisive role in facilitating mutually reinforcing impunity for large-scale corruption and human rights violations (an argument that I have written about elsewhere). Among the transitional justice measures later initiated, three processes led to successful outcomes, all related to the link between human rights violations and economic crimes: a commission prosecuted the Marcos family for corruption and recovered $680M of their ill-gotten assets in Switzerland; an ATCA case filed in Hawaii found the Marcoses liable to compensate around 10,000 victims of human rights violations; and a 2013 reparations law and program is being funded using $200M out of the $680M recovered from Swiss banks.
Tunisia’s Truth and Dignity Commission (TDC) will examine the relationship among repression, resource extraction in the south and land use in the north, to large-scale unemployment and marginalization. Even in countries such as Argentina, a new wave of transitional justice initiatives have led to calls for examining the role of foreign and local banks in financing the military junta or the role of businesses in violent repression. Argentina has set up a special Ministry of Justice unit to examine the complicity of businesspersons in crimes committed during the military junta period.
What lessons stand out from these experiences? Without oversimplifying these complex examples, it is clear that how we define perpetrators, violations and crimes must evolve with the ways in which armed conflict and repression have intersected with economic crimes and business practices. In many of these examples, the roles of banks and financial institutions have to be considered in examining corporate accountability. In countries emerging from the Arab Spring, but particularly Tunisia and Egypt, these cases are assumed to be a matter of transitional justice. Banks and economic policymakers have been implicated in dictatorship-era crimes, including those linking political repression and corruption.
The 2008 ‘Framework for Business and Human Rights” drafted by Special Representative of the Secretary-General on Human Rights and Transnational Corporations is useful. But they are also too broadly-framed, which might explain why banks that have been implicated in laundering dictators’ assets have accepted it since it may not be as consequential as such standards ought to be. This business and human rights framework can be read alongside the 2005 UN Basic Principles and Guidelines on the Right to Remedy and Reparation, which contains many of the norms relied on in transitional justice contexts. Prof. Theo Van Boven, who drafted the 2005 Basic Principles, notes that these were meant to apply as well “to business enterprises exercising economic power.” Norms on the recovery of ill-gotten assets and against large-scale corruption are now codified in the UN Convention Against Corruption (UNCAC). These are rooted in the experiences of global South countries. These norms apply not only to individual dictators with ill-gotten assets or leaders of armed groups who may be implicated in pillage; they also explicitly cover banks and financial institutions and the profits that are the products of human rights violations or international crimes.
In teasing out the meaning of these norms, it will be important to encourage contributions from global South practitioners and policymakers. Reliance on the incestuous reproduction of ideas among those working on accountability and transitional justice in the global North can lead to ‘international standards’ that are disrespected by mostly Western economic actors and disowned by global South governments and activists. This might not seem immediate to academics, but these legal questions have life-changing implications for people in impoverished countries in the global South, many of whom are already marginalized even before the drive for profit and the agendas of dictators or armed groups intersect. When Arundhati Roy challenged the notion of corporate philanthropy, she asked whether the idea was simply to “keep the world safe for capitalism” while masking the role of corporations in creating or maintaining conditions of poverty and exclusion. We should ask why then do we want to pursue corporate accountability? Is the goal simply to make corporations as susceptible to prosecution as individuals? Should we stop at having binding and more consequential regulation of corporate conduct? Perhaps this can be more than that and can instead be an opportunity to reconsider the assumption – now increasingly questioned in the global South –that democratization, human rights and transitional justice can only be pursued in post-conflict or post-dictatorship developing societies that also accept an economic model that ensures the profitability of corporations, particularly foreign capital.