UFRGSMUN 2012
UNITED NATIONS HUMAN RIGHTS COUNCIL
INTRODUCTION
The United Nations Human Rights Council (UNHRC) was established by the United
Nations General Assembly through the Resolution 60/251 on 15 March 2006, and replaced
the United Nations Commission on Human Rights on its functions. The Council is responsible
for promoting universal respect for the protection of all human rights and fundamental
freedoms for all, without distinction of any kind and in a fair and equal manner. It is mandated
to consider violations of human rights, including gross and systemic violations, and to make
recommendations. The Council is also expected to promote the effective coordination and
mainstreaming of human rights within the UN system.
Among the Council’s elements is the Advisory Committee, which serves as the ‘think
thank’ of the Council to provide it with expertise and advice on thematic human rights issues;
and the Revised Complaint Procedure mechanism, which allows individuals and
organizations to bring complaints about human rights violations to the attention of the
Council. The Special Procedures are its independent expert mechanisms, which have factfinding and reporting mandates that provide global coverage of major thematic human rights
issues.
The UNHRC comprises 47 UN member States elected by the General Assembly for
staggered three-year terms. Membership is based on equitable geographical distribution: 13
members are from Africa, 13 from Asia, six from Eastern Europe, eight from Latin America
and the Caribbean, and seven from Western Europe and other states.
Although UNHRC’s resolutions are not binding, they carry great weight on human
rights issues, since the organ is one of the most prominent institutions concerning them. This
year, delegates attending to the United Nations Human Rights Council at UFRGSMUN will
be invited to debate on transitional justice and transnational corporations and human rights
abuses.
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Exploring new possibilities. Treasuring the past.
TOPIC A: Transitional Justice
Cláudia Pfeifer Cruz, Gabriela Jahn Verri,
and Renata Schmitt Noronha
We are unable to forgive what we cannot punish and we are unable to punish what has turned out to be
unforgivable. (ARENDT, 1958, p.241)
1. HISTORICAL BACKGROUND
Although it has gained more relevance in the last decades, the idea of transitional
justice (hereinafter TJ) is nothing new. Around 400 B.C. the Athenian political system has
witnessed transitions and elements of TJ, such as purges and trials (ELSTER, 2004). In the
late 19th century, after the French intervention in Syria-Lebanon and the subsequent massacre
of Druze and Christians, the foreign minister of France proposed an international commission
with the purpose to investigate causes of the war and to compensate the victims of the conflict
through reparations (BASS, 2009 apud FORSYTHE, 2011).
Nevertheless the series of prosecutions held after the World War II against those
responsible for the mass murders and other inconceivable violations of basic human rights,
otherwise known as the Nuremberg Trials (1945-1946), are often regarded as the starting
point of transitional justice in its current form. The Nuremberg Tribunal not only fulfilled its
main duty and purpose by judging each of the perpetrators individually, but also took a step
further in narrating the events from the recent horrifying past in order to be able to overcome
it (ANDRIEU, 2010). That concept of grasping the ugly truth of the matters and freeing
society from its overshadowing ghost, only after fixing it in the popular memory as a subdued
wrong, is one of the fundamental purposes of transitional justice.
The International Tribunal for the Far East (1946-1948), also known as the Tokyo
Trials, followed the Nuremberg one, and faced some of the same critics of the later: it is often
considered biased and vindictive. With the adjournment of the Tokyo Trials, international
criminal prosecution fell into oblivion in the context of the Cold War (ANDRIEU, 2010). In
the bipolarized world, transitional justice “went on hiatus” (ARTHUR, 2009, p.342) for
almost half a century.
In the aftermath of the third wave of democratization (HUNTINGTON, 1991), which
occurred in the late 1980s and early 1990s, transition to democracy processes emerged in
Latin America. Officials from the military regime were put on trial in Argentina and Bolivia –
although very few of them were in fact convicted –, and reparation processes took place in
Argentina, Brazil, Chile and Uruguay (ELSTER, 2006). Meanwhile in Africa, the Transitional
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Government of Ethiopia (TGE) initiated its TJ process after seventeen years under a civil war
in which gross human rights violations were committed. The military regime in the country –
known as the Derg – fell in 1991, and the TGE made the decision to investigate and prosecute
members of the former government in order to provide accountability for past abuses. The
Ethiopian trials (established in 1994) constitute a landmark, since it was the first time such
mechanism was implemented in the continent (TSADIK, 2007). A year after the Ethiopian
trials, and in a sharp contrast to those, was established in Cape Town the Truth and
Reconciliation Commission of South Africa, a restorative justice mechanism with the purpose
to deal with human rights abuses committed during the apartheid rule.
In the same context, a succession of conferences that addressed to transitional justice
aspects was established. In 1988, the Aspen Institute sponsored the conference State Crimes:
Punishment or Pardon. Four years later, in 1992, the Salzburg Conference on Justice in Times
of Transition took place in Austria, under the sponsorship of the Charter 77 Foundation. In
1994, the Institute for Democracy in South Africa promoted the conference Dealing with the
Past (ARTHUR, 2009). All these events had the purpose of debating on how to deal with past
abuses and facilitate transition to a new political order.
Notwithstanding, the greatest landmarks in the development of transitional justice
after the Nuremberg Trials was the creation by the United Nations of two ad hoc tribunals: the
International Criminal Tribunal for the former Yugoslavia (ICTY)1, in 1993, and the
International Criminal Tribunal for Rwanda (ICTR)2, in 1994. These were established in
response to the two largest-scale genocide of the decade (CALL, 2004). The ICTY was
created aiming at a series of purposes directed to attempt to secure a thorough political,
economical and social transition from a situation of drastic contravention of human rights to
one of peace and stability. However valuable the ICTY's mission may be, there is much
debate about how effective the trials actually are outside the legal scope, perceiving that the
effects of the tribunal as a transitional justice instrument have limitations (HOARE, 2008). It
is, however, argued that we cannot expect immediate positive changes in the affected
populations, since a time is needed in order to build a conscience about past abuses and
overcome the sense of loss (FORSYTHE, 2011).
Less than a year after the Yugoslav Tribunal was established, genocide raged through
the African nation of Rwanda. In order to restore collective peace, security and stability in the
country, the United Nations Security Council authorized the creation of the ICTR. The
1 The ICTY was established by the United Nations Security Council resolution 827, adopted unanimously on 25
May 1993 (UNSC, 1993).
2 The ICTR was established by the United Nations Security Council resolution 955, adopted on 08 November
1994 (UNSC, 1994).
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Tribunal should count with the co-operation of other States to conduct the investigations and
prosecutions of accused persons. The objective was to expand the decisions to an international
scope, since the national courts were unable to reach effective results.
The trial of the president of the former Yugoslavia, Slobodan Milosevic, constituted
the first time a political leader was prosecuted in an international proceeding (TEITEL, 2005).
The ICTR also constituted a historical landmark regarding the implementation of the rule of
law, since it was responsible for the first conviction for genocide in history. In addition, the
Tribunal accomplished the first-ever successful conviction of a former prime-minister – the
Rwandan Prime Minister Jean Kambanda –, and the first conviction of rape as a crime against
humanity (CALL, 2004). Such convictions shall strongly reflect in the jurisprudence of
International Humanitarian Law.
Since the end of the Cold War, the rule of the law has enhanced as a peacebuilding and
Nation-building instrument through the expansion of the application of human rights law and
International Humanitarian Law (TEITEL, 2002). In addition there has been a growing
implementation of transitional justice mechanisms – both judicial and non-judicial.
2. STATEMENT OF THE ISSUE
2.1. Definition of transitional justice
The term transitional justice became popular as an academic concept in debates on
democratization and State reconstruction in the 1990s, following the collapse of the apartheid
regime in South Africa and the new conjecture established by the third wave of
democratization (OHLIN, 2007). The concept of TJ derives from the international human
rights field (FISHER, 2010), and in its broadest sense refers to how transitioning societies
face abuses committed in the past, after a period of repressive rule or armed conflict.
Despite the increasing importance the field has gained in the past decades, there still
no consensus about the definition of the concept of TJ. Ruty Teiltel, one of the main authors
on the subject, defines it as “a concept of justice, intervening in a period of political change,
characterized by a judicial answer to the wrongs of past repressive regimes” (2003, p. 69 apud
ANDRIEU, 2009, p. 2).
The International Center for Transitional Justice (ICTJ), a New York-based
organization created in 2001, which is an authority on the matter, defines transitional justice
as follows:
[t]ransitional justice refers to the set of judicial and non-judicial measures that have
been implemented by different countries in order to redress the legacies of massive
human rights abuses. These measures include criminal prosecutions, truth
commissions, reparations programs, and various kinds of institutional reforms.
Transitional justice is not a ‘special’ kind of justice, but an approach to achieving
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justice in times of transition from conflict and/or state repression. By trying to
achieve accountability and redressing victims, transitional justice provides
recognition of the rights of victims, promotes civic trust and strengthens the
democratic rule of law (ICTJ, 2012).
In a first moment, the term TJ was used to refer to the process of political changes
faced by dictatorial or repressive regimes in the path to a democratic transition, mostly during
the late 1980s and early 1990s in Latin America and Eastern Europe. The concept became an
essential component of democratization processes (AVELLO, 2008). More recently the
concept has being largely used to characterize the process of dealing with war crimes and
human rights abuses committed during armed conflicts (FISHER, 2010). With the creation of
the International Criminal Tribunal for the former Yugoslavia, and the International Criminal
Tribunal for Rwanda the international law was incorporated in the field of Transitional Justice
(AVELLO, 2008). Since then many ongoing peace processes have considered TJ mechanisms
as important elements of peacebuilding (AVELLO, 2008).
Notwithstanding it was not until 2004 that the United Nations acknowledged the
importance of issues related to transitional justice and the definition of the term. In the
occasion, the then United Nations Secretary-General, Kofi Annan, issued a report on the rule
of law and transitional justice in conflict and post-conflict societies, stressing the importance
of “articulating a common language of justice” (UNSC, 2004, p.4) for the organization in
order to enhance human rights.:
[t]he notion of “transitional justice” (…) comprises the full range of processes and
mechanisms associated with a society’s attempts to come to terms with a legacy of
large-scale past abuses, in order to ensure accountability, serve justice and achieve
reconciliation. These may include both judicial and non-judicial mechanisms, with
differing levels of international involvement (or none at all) and individual
prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals,
or a combination thereof (UNSC, 2004, para. 8).
2.2. Transitional justice mechanisms
In order to fulfill its aims at providing justice to transitioning societies, transitional
justice rely on a number of mechanisms, such as judicial proceedings, truth commissions,
reparations, public apologies, and development of a shared vision of history. The use of these
practices depends on the conjecture of the country, they can be applied simultaneously,
selectively or chronologically (HAZAN, 2006).
2.2.1. Judicial proceedings
The judicial proceedings can take different forms of punitive policy: international
tribunals, such as the ad hoc criminal tribunals form the former Yugoslavia and Rwanda and
the International Criminal Court; hybrid courts; and local justice. It is undeniable that judicial
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proceedings have helped to strengthen international humanitarian law. Nevertheless there are
many issues that make it a challenge in countries where such proceedings have been
implemented. The perception that trials “reflect victor’s justice” (CALL, 2004, p. 109)
constitutes the reality of many people in Rwanda, Haiti, Kosovo and Iraq. In addition, there is
a structural problem of disparities regarding prosecutions: judicial proceedings depend on
where international donors (governments or organizations) are willing to dedicate resources to
mechanisms of TJ (CALL, 2004).
2.2.1.1. The international tribunals
In the last few decades there has been an increase in the number of international
tribunals with the purpose to process human rights violations committed in the past. In
addition to the International Criminal Court, the United Nations ad hoc tribunals from the
Former Yugoslavia and Rwanda, and the international tribunal for Sierra Leone, there has
been roughly eleven national trials to address issues regarding transitional justice (HAFNER,
2007). These international tribunals created after the end of the Cold War were largely based
in the model established in the Tokyo and Nuremberg trials.
The ICTY and the ICTR were responsible for collaring top-level officials who have
permitted massacres take place under their rule (CALL, 2004). Among the affected
populations, such international actions generated expectations that those responsible for the
war crimes would face justice. Slobodan Milosevic, president of the former Yugoslavia was
handled to the Hague and charged with war crimes and crimes against the humanity alongside
with Serb, Croat, and Bosniaks officials (CALL, 2004).
Both tribunals constituted a great landmark in the progress of international law and the
International Humanitarian Law. In addition, as in Nuremberg, the trials should fit a greater
purpose: “documenting the history for future generations, acting as a deterrent for the future,
[…], and strengthening the rule of law” (ANDRIEU, 2010, p. 6). Notwithstanding, the
tribunals are still subject of great controversy due to its politic motivated character. Part of the
population of some ethnic groups from the countries from the former Yugoslavia and Rwanda
see the tribunals as “tools for ethnic prosecution rather than prosecution” (CALL, 2004, p.
105). The ICTR is most criticized, considering a series of issues. The court was located in
Tanzania, outside Rwanda; consequentially, only a small percentage of the perpetrators would
be tried, and the role of the trial as an educational tool would be limited as well. Moreover,
after nine years, in 2003, the tribunal had accomplished only twelve convictions and one
acquittal (CALL, 2004). In addition, those tribunals have consumed a great deal of United
Nations annual budget, and considering its results, many start asking whether the investment
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would not be more effective if directed to rebuild the judicial system and the rule of law in the
countries affected (HAZAN, 2006).
In spite of the critics, the international ad hoc tribunals constituted a prelude to the
creation of the International Criminal Court (ICC), which came into force in 2002 through the
Rome Statute. The Statute gives the ICC jurisdiction over crimes against the humanity3, war
crimes, genocides and crimes of aggression. However, the Court is conducted by the principle
of nullem crimen sin lege, which prohibits prosecution and punishment for acts that did not
constitute a crime at the time of commission. Furthermore, the ICC follows the principle of
complementarity: it considers a case inadmissible when it is “being investigated or prosecuted
by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to
carry out the investigation or prosecution” (UN, 1998, Art. 17 (a)).
Although until the present year 121 States have ratified or acceded the Statute,
influential States such as China, Russia and the United States are not part of the Court (ICC,
2012). The failure of some countries to participate in the ICC raises import questions about
the partiality of the accountability system of transitional justice, since it applies “to even the
most powerful individuals of the world’s middle powers and poor countries, but not to the
lowest-ranking soldier of the United States, Russia, or China” (CALL, 2004, p. 106). In
addition, despite the relevance of such international tribunals, it is undeniable that these
mechanisms alone cannot provide the demanded justice. Thus was raised the idea that
criminal tribunals must be placed alongside other TJ mechanisms in order to serve justice.
2.2.1.2. Hybrid Courts
Hybrid courts are constituted by both national and international elements of justice,
with variation of the levels of such elements (ANDRIEU, 2010). Most of researches defend
that the participation of local actors in the transition of a society is an important factor to the
maintenance of peace. In addition, hybrid courts usually strengthen the rule of law in the
country concerned, for the training of local personal and granting more legitimacy to the
process on the ground (ANDRIEU, 2010).
3 According to the Rome Statute, “crime against humanity means any of the following acts when committed as
part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e)
Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international
law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other
grounds that are universally recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of
persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health” (UN, 1998, Art. 17 para. 1).
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In the case of Timor Leste, the hybrid court was composed by a United Nationsoverseen Special Panel (with Timorese and international judges), a Serious Crimes Unit
(made of international prosecutors and investigators), and a Public Defenders Office
(composed mainly by Timorese staff) (CALL, 2004). The cases under the Special Panels were
processed faster and with much less expenses than the ones under ICTY and ICTR.
Nevertheless, the courts suffered from bad coordination, issues of fairness, and failed to
process most of the crimes committed before 1999 (CALL, 2004). The hybrid tribunal of
Sierra Leone suffered from many of the same problems of the one in Timor Leste. The
Special Court of Sierra Leone was created in 2000 in order to prosecute those who bear the
greatest responsibility for crimes against humanity and war crimes. However, “[t]he court had
difficulty meeting its budget; high-ranking suspects either died (or in Charles Taylor’s case,
fled to regional power); and public education about the Special Court was ineffective as only
fifty-nine percent of the population supported its work” (CALL, 2004, p. 108).
The development of national courts is an important aspect of transitional justice. The
capacity to establish domestic trials evidences a functioning judiciary and strengths the
confidence in the new government (HAFNER, 2007). In addition, national trials are more
effective than international ones in a very important aspect: international courts have limited
mandate and their jurisdiction is usually restricted to the gravest crimes. However the State in
question not always have the capacity to carry on prosecutions, especially when it has been
devastated by an armed conflict. In cases when the national courts cannot alone provide
justice, they can share the mandate over the cases on the ground with international courts.
Nevertheless, if not acting in coordination, international and national tribunals can destabilize
the work of each other (HAFNER, 2007). One of the greatest challenges of hybrid courts has
been the establishment of an independent and effective judiciary in national courts, especially
when the entering government does not replace the former biased judiciary (HAFNER, 2007).
Historically, hybrid courts were also established in Bosnia, Sierra Leone and Iraq
(ANDRIEU, 2010).
2.2.1.3. Local Justice
It is important to acknowledge that tribunals usually have a laudable purpose.
Nevertheless they are often culturally or geographically – such as in the case of Rwanda – too
distant from the people. Moreover they can be too remote from the daily life of communities
that faced widespread abuses (HAFNER, 2007).
Thus traditional or indigenous justice
mechanisms have been seen as an alternative to international instruments of TJ, due to its
direct engagement with local actors, and the sense of achievement of justice that it can
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provide among local communities. It is considered to have a great impact in empowering local
people and capacity building (ANDRIEU, 2010).
Indigenous courts usually incorporate mechanisms of punishment and reparations
(ANDRIEU, 2010). A well known example is the gacaca courts in Rwanda, which were “part
court, part truth commission, and part community council” (HAFNER, 2007, p. 105). The
traditional system was historically used to settle local community disputes. The main ideas of
these local system were restore communities and provide victims with a sense of justice
(HAFNER, 2007). Notwithstanding, the use of such mechanism of transitional justice can
raise issues of due process, since these courts can be biased and have a patriarchal character.
Therefore, traditional justice must be carefully managed in order to assure fairness of the
processes considered (ANDRIEU, 2010).
2.2.2. Truth (and Reconciliation) Commissions
Truth commissions – also known as truth and reconciliation commissions (hereinafter
TRCs) – are traditionally oriented towards victims.
Dedicated to establishing a historical record of human rights abuses over a defined
time period, these bodies have contributed to creating shared accounts of disputed
and hidden events, clarifying who committed abuses and how, eliciting
acknowledgment of [S]tate misconduct, and restoring some degree of social
reconciliation and moral order (CALL, 2004, p. 103).
Such commissions constitute an extrajudicial process which complements or
substitutes criminal proceedings (HAZAN, 2006). Considering they do not have to be
submitted to complex rules of procedure, such commissions “may be able to set their work
more swiftly than tribunals” (HAFNER, 2007, p.101). However, the same reasons that make
the work from truth commissions run more swiftly, also make it is subject to complications,
such as the lack of coordination.
A very common procedure regarding TRCs is the concession of amnesty to
perpetrators of violations in exchange for their testimony; the procedure was used in the South
African Truth and Reconciliation Commission. The idea of restorative justice, based on social
reconciliation, was largely developed by the South African TRC (CALL, 2004). Nevertheless,
considering possible flaws such as insufficient resources or political constraints, there is a
great chance this procedure can be misconduct; thus producing disappointment among victims
(HAFNER, 2007).
Despite their innovative way of “extending the reach of human rights (…) without
creating a disincentive to peace negotiations, they have increasingly come under pressure
from international criminal accountability” (BELL, 2011, p.347). Considering this matter,
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TRCs have been used as complements to judicial procedures. It is worth mentioning that a
very relevant work developed under truth commissions is a report containing
recommendations aiming at strengthening the rule of law under the new government.
However there has been disillusionment regarding TRCs, since their recommendations on
societal reform are usually not implemented (FISHER, 2010).
2.2.3. Reparations
As the truth commissions, the process of reparations is victim-oriented. It aims at
compensating victims or their legal successors for the suffering caused for abuses committed
in the past. They constitute traditionally in “voluntary payments by a [S]tate for moral and
political purposes to individual or groups” (HAZAN, 2006, p. 24). Nowadays, reparations can
also be ordered though a judicial proceeding. The first reparation as an instrument of
transitional justice ocurreed in the Federal Republic of Germany in the aftermath of the World
War II, in 1952, when reparations were granted to survivors of the Nazi concentration camps
(HAZAN, 2006).
The Basic Principles and Guidelines on the Right to a Remedy and Reparation to a
Victim of Gross Violations of International Human Rights and Serious Violations of
International Humanitarian Law4 states that
[c]ompensation should be provided for any economically assessable damage, as
appropriate and proportional to the gravity of the violation and the circumstances of
each case, resulting from gross violations of international human rights law and
serious violations of international humanitarian law (UNGA, 2005, para. 20).
According to the Principles, compensations should cover not only material damage,
but also moral damage. Although very laudable in theory, the idea of reparations is not always
realistic. The Guatemalan peace agreement (1994), for instance, states that the government
should return properties to their original owners, or at least provide some form of
compensation. However, "the process has not been fully implemented" (BINNINGSBØ;
ELSTER; GATES, 2005, p.14).
2.2.4. Public Apologies
A public apology is used stated by a head of State or high-ranking State officials. The
concept of public apologies is an old one. Nevertheless, in the last few decades, the number of
4 The referred Principles were adopted and proclaimed by the General Assembly resolution 60/147 of 16
December 2005.
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world leaders expressing public apologies has been increased. Some of those apologies
concerned abuses committed decades or even centuries ago, as the apology of the former
United Kingdom’s Prime Minister Tony Blair for the Irish famine in the 19th century, the
former French President Jacques Chirac apology for the France’s deportation of Jews, and the
former Germany’s Chancellor Gerhardt Schröder for the Nazi regime in the country
(HAZAN, 2006).
2.2.5. Developing a Shared Vision of History
Developing a shared vision of history is not an independent mechanism. In fact it is
directly related to the instruments aforementioned. Judicial proceedings, truth commissions,
reparations and public apologies all play an important and unique role in constructing history
for future generations. This process is developed along with the opening up of archives and
the construction of memorials (HAZAN, 2006).
2.3. The concession of amnesties and the provision of accountability
All the mechanisms aforementioned have been developed as manner to provide some
form of accountability for past abuses. For many years, peace negotiators have argued that
pushing accountability mechanisms “may prevent a deal from being signed, or undo a ceasefire and reignite conflict” (ICHRP, 2006, p. 78). Amnesties were seen as a price to pay for
peace. In order to proceed with negotiations, blanket amnesties have been conceded to parts
responsible for committing human rights abuses. The 1999 Lomé Accord in Sierra Leone,
which granted blanket amnesty, permitted the rebel leader Foday Sankoh to have a position in
the new-established government (SRIRAM, MARTIN-ORTEGA; HERMAN, 2010).
The concession of amnesties was broadly accepted for a long period, and in most cases
they were established along with truth commissions, as it was the case of many countries in
Latin America. “By the end of 1980s, truth commissions in Latin America became as
commonplace as amnesty laws that compelled their conception” (LAPLANTE, 2009, p.924).
However, in 1998, the decision by the House of Lords to trial the former Chilean President
Augusto Pinochet for human rights abuses constituted a landmark in international law
regarding not only the ineffectiveness of national amnesties under international judicial
proceedings, but also the immunity of State officials (LAPLANTE, 2009).
It was not until 1999 that the United Nations developed a policy regarding blanket
amnesties. After the Lomé Peace Agreement, the United Nations Special representative wrote
a reservation to the accord: “[t]he United Nations holds the understanding that the amnesty
provisions of the Agreement shall not apply to international crimes of genocide, crimes
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against humanity, war crimes and other serious violations of international humanitarian law”
(SCHABAS, 2004, p.148-149 apud HRW, 2009, p.16). Regarding the referred accord, the
then UN Secretary-General Kofi Annan also stated that “[s]ome of the terms under which this
peace has been obtained, in particular the provisions on amnesty, are difficult to reconcile
with the goal of ending the culture of impunity” (SCHABAS, 2004, p.148-149 apud HRW,
2009, p.16).
Notwithstanding, a peace process which lays on impunity for serious crimes
committed under international law is not sustainable. The lack of accountability creates a
precedent of impunity, encouraging future violations (HRW, 2009). There is a present idea
that unaddressed past abuses fuel conflicts. “[T]here can be no just and lasting reconciliation
unless the need for justice is effectively satisfied” (UNCHR, 2005), states the preamble of the
Updated Set of Principles for the Protection and Promotion of Human Rights through Action
to Combat Impunity. For instance, in Sierra Leone,
three blanket amnesty provisions in different accords failed to consolidate the
hoped-for peace, and in Angola, six successive amnesties did not lead to the called
for ‘forgiving and forgetting’. In both places, war and war crimes resumed within a
short period after peace agreements had been reached (HRW, 2009, p.4).
In fact, one of the main purposes of international justice is to prevent new crimes to
happen. The implementation of accountability mechanism is seen not only as way to prevent
future abuses, but also as a mean to strengthen peacebuilding (FISHER, 2010).
It is worth mentioning that implicit – or de facto – amnesties can have the same
dangerous effect than blanket amnesties, fact that was well seen in Sudan, through the use of
ethnic militias against civilians by Khartoum following a government strategy that remained
long unpunished (HRW, 2009). An important aspect concerning the lack of individual
accountability is that “the notion of collective responsibility for crimes has greater resonance,
and it is easier for blame focused on a group to be passed from one generation to the next”
(HRW, 2009, p. 6). It is now clear that blanket amnesties for serious crimes under
international law are unaccepted (ICHRP, 2006). Notwithstanding, the issue of whether and
when amnesty can apply remains a very complex and debated one.
2.4. The State responsibility to prosecute
The denial of amnesty for serious crimes under the international law is directly related
to the obligation of States to prosecute such crimes. As the Special Court for Sierra Leone
stated:
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[w]here jurisdiction is universal, a State cannot deprive another State of its
jurisdiction to prosecute the offender by the grant of amnesty. It is for this reason
unrealistic to regard as universally effective the grant of amnesty by a State in regard
to grave international crimes in which there exists universal jurisdiction. A State
cannot bring into oblivion and forgetfulness a crime, such as a crime against
international law, which other States are entitled to keep alive and remember (SCSL,
2004, para. 67).
Since its first session, in 1946, the United Nations General Assembly has reiterated the
duty to investigate and prosecute those responsible for war crimes (HRW, 2009). It is now
generally accepted that States have the duty to prosecute those responsible for serious crimes
under international law. This principle, reflected in customary law, is strengthened by the
establishment of universal jurisdiction and international tribunals (HRW, 2009). In a first
moment the duty to prosecute serious crimes was limited by the provisions of the 1949
Geneva Conventions, i.e. in situations of international armed conflicts. Nevertheless decisions
ruled by the International Criminal Tribunals for Rwanda and Yugoslavia constituted a
landmark in extending such duties to non-international armed conflicts (HRW, 2009).
According to the 1948 Convention on the Prevention and Punishment of Genocide,
persons who commit the referred crime must face punishment (UNGA, 1948, Art. 3). The
1984 Convention Against Torture, Inhuman or Degrading Treatment or Punishment states that
acts of torture shall be submitted to the “competent authorities for the purpose of prosecution”
(UNGA, 1984, Art. 7). The 1987 Inter-American Convention on Torture and the 1994
Convention on Forced Disappearance of Persons also establish the duty of prosecution for the
referred crimes (ICHRP, 2006). In addition, the Geneva Conventions states the obligation to
prosecute persons who have committed grave breaches of International Humanitarian Law
(ICHRP, 2006). Notwithstanding, the Geneva Conventions only apply to situations of
international armed conflict. The 1968 Convention on Non-Applicability of Statutory
Limitations to War Crimes and Crimes against Humanity states that such crimes cannot have
their prosecutions disregarded with the passage of time (ICHRP, 2006). In addition – and in
consequence – to these judicial mechanisms, it is now accepted that crimes against humanity
and gross human rights violations constitute a violation of the international customary law,
i.e. they apply even in occasion the aforementioned conventions have not been ratified
(ICHRP, 2006).
Notwithstanding, according to the 1977 Additional Protocol II to the Geneva
Conventions “[a]t the end of hostilities, the authorities in power shall endeavor to grant the
broadest possible amnesty to persons who have participated in the armed conflict, or those
deprived of their liberty for reasons related to the armed conflict, whether they are interned or
detained” (APIIGC, 1977, Art. 6, para. 5). In addition the Updated Set of Principles for the
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Protection and Promotion of Human Rights through Action to Combat Impunity also has
provisions of permissibility of amnesties in specific situations. Although these mechanisms
constitute soft law, i.e. they are not binding; it does not mean they do not represent
obligations (MENDEZ, 1997). Nevertheless even when a conflict does fall under the Geneva
Conventions parameters, States are “often reluctant to concede its application and (unlike with
human rights treaties) there is no supervisory body to enforce and interpret the treaties
(BELL, 2011, p. 338).
Notwithstanding, regional mechanism also developed the idea: according to the InterAmerican Court of Human Rights, States have the duty to investigate and prosecute violations
committed under their jurisdiction. In addition, the referred State must provide the victims of
violations some form of compensation. In the case Barrios Altos v. Peru5, the Inter American
Court of Human Rights considered amnesty provisions and the
establishment of measures designed to eliminate responsibility (…) inadmissible,
because they are intended to prevent the investigation and punishment of those
responsible for serious human rights violations such as torture, extrajudicial,
summary or arbitrary execution and forced disappearance, all of them prohibited
because they violate non-derogable rights recognized by international human rights
law (IACtHR, 2001).
2.5. The challenges in implementing transitional justice
Many authors view transitional justice as a selective justice process, imposed by
western powers, arguing that it constitutes an extension to the right to intervene at the
humanitarian and military level, since transitional justice mechanisms permit intervening in
the criminal-law field (GALLOIS, 2002 apud HAZAN, 2006). “At the crossroads of moral
standards, politics, law, history and psychology; transitional justice has narrowly
circumscribed the bounds of national sovereignty by limiting the definition of diplomatic
immunities and the permissible scope of amnesties” (HAZAN, 2006, p. 21).
The prosecution of heads of States and other political leaders is still matter of debate,
since it is argued can hamper peace negotiation process. This issue is not only controversy in
theory: the former United Nations Administrator in Afghanistan, Lakhdar Brahimi, argued
against prosecuting suspects of committing war crimes in the past which were members of the
new government supported by the organization, stating that taking the prosecutions further
would undermine peace (HAZAN 2006). On the other hand, at the Special Tribunal for Sierra
Leone, the Liberian president Charles Taylor was indicted even though peace negotiations
were already on the table. Notwithstanding, Mr. Taylor’s prosecution is viewed as a very
5 The dispute concerns the amnesty law promulgated in 1995 by the former Peruvian President Alberto Fujimori,
which granted amnesty to those who had been responsible for human rights violations during the armed conflict
that occurred in the country between 1980 and 2000 (LAPLANTE, 2009).
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positive contribution to the reestablishment of political order (HAZAN 2006). The dichotomy
peace versus justice is still very present and continues to challenge the international society.
Frequently, transitional justice mechanisms are forced by the international community
into countries, disregarding their particularities (HAZAN, 2006). In order to be effective,
transitional justice process must be adapted culturally and address the local needs. Public
awareness is an essential aspect in the process of transitional justice, as it facilitates the
involvement of the local and affected population, and gives the process the sense of
legitimacy and justice. Alienation of societies regarding TJ procedures can generate
skepticism and hostilities towards the tribunals (GSDRC, 2011). Unless transitional justice
mechanisms are well introduced and coordinated, they can undermine credibility of judicial
proceedings, and the very purpose of it.
3. PREVIOUS INTERNATIONAL ACTION
As the primary United Nations forum for discussion of human rights issues, the
Human Rights Council (hereinafter HRC) has acknowledged the importance of transitional
justice through important initiatives, such as resolutions on Human Rights and Transitional
Justice (UNHRC, 2008a) and Right to the Truth (UNHRC, 2008b), both adopted at the 9th
session of the Human Rights Council, in September 2008. Although both resolutions were
adopted by consensus, some issues raised intense debate among the countries, such as the
concession of amnesties and the scope of the State’s obligations to investigate and prosecute
those responsible for serious crimes under international law (ICTJ, 2011). Despite the recently
grow in the use of TJ mechanisms, there are no clear alliance within the HRC committed to
push forward the issue of transitional societies (ICTJ, 2011).
As a succeeding committee to the Commission on Human Rights (CHR), the Human
Rights Council has inherited much of the CHR’s parallel organs. As one of the most
important ones, the Office of the High Commissioner for Human Rights (OHCHR) has been
acting in several transitional societies not only providing reports, but also with effective
transitional justice mechanisms (ICTJ, 2011). Together with other United Nations’ organs, the
OHCHR has researching issues such as accountability, healing processes, truth seeking and
security in post-conflict nations.
Additionally to assisting other committees besides the
Human Rights Council (especially the General Assembly and the Security Council), the
issued reports set their own guidelines on how to deal with overcoming human rights abuses
(HANNUM, 2006).
As another widely recognized instrument of transitional justice, the International
Criminal Court (ICC). The creation of the Court followed the creation of the United Nations’
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ad tribunals of the former Yugoslavia and Rwanda, which were previously discussed. Despite
ICC laudable purpose, it does not elude criticism. If not for its allegedly political perspective,
for other faults in its functioning many are skeptical about its actual contribution to
peacebuilding and peacekeeping (ABDULAI, 2010). In July 2009, African heads of State met
in Libya to discuss its views on the International Criminal Court as tool for accountability.
What later would be called the “Sirte decision” was the official position of the African Union
of not cooperating with the ICC, in acknowledgement of its perceived flaws as far as justice
went. Accompanying that general agreement, it was also decided that the organization would
refuse to extradite Sudanese president, Omar Al-Bashir, should he enter in their territory
(ABDULAI, 2010)6.This delicate situation has been frequently addressed by the international
community.
The Organization of Economic Cooperation and Development (OECD) has played an
important role supporting TJ programs aiming at rebuilding national justice systems and
enhancing States’ capacities in post-conflict situations (AVELLO, 2008). Most of OECD
funds have been directed to the creation of international and special tribunals (AVELLO,
2008).
Although the Council of Europe has not an official definition of the term transitional
justice, the fact has not prevented it to act in the field. The Committee of Legal Advisors on
International Public Law, a body of the Council, has a whole array of projects in the area of
TJ, mainly concerning issues such as immunity of heads of State and other governmental
officials, and the duty of States to investigate and prosecute those accused of serious crimes
(AVELLO, 2008). Moreover, in 2008, the European Commission established a transitional
justice facility to enable speedy and flexible funding to transitional justice measures, noting
that:
[t]ransitional justice and ad hoc tribunals have emerged as a critical issue for
peacebuilding and postconflict resolution and have been integrated into broader EU
crisis management approaches, reflecting the importance of addressing the question
of past human rights abuse in transitional and post-conflict situation[s] for
sustainable peace and stability (DAVIS, 2010, p. 11-12).
Besides, the EU and its Member States are the main contributors of financial and
technical assistance of the ICC (DAVIS, 2010).
6 In respect to a United Nations Security Council request, in 2005, the case of Sudanese president Omar AlBashir was taken to the ICC and, from 2007 to 2010, arrest warrants and summonses to appear have been issued
against him (SUDAN, 2010). Concerning prosecutions of those involved in the country’s issues with crimes
against humanity and war crimes, the United Nations Commission of Inquiry (UNICOI) in Darfur has presented
its doubts. Although the local population has criticized the ICC’s approach, the UNICOI defends the trials
should be carried out in international courts, since it fears the Sudanese criminal justice system lacks legislation
concerning human rights abuses and war crimes (UNICOI, 2005).
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In the field of non-governmental organizations (NGOs), the creation of the
International Centre for Transitional Justice (ICTJ) was a major evolution towards the
application of TJ mechanisms in a more appropriate way. The ICTJ works to assist societies
in transition to embrace the transitional justice and establish greater confidence in the local
institutions and in the rule of law. Their work consists in presenting researches, analyses and
reports on the matter in a vast number of countries and organizations, such as the Human
Rights Council. In addition, they work alongside with victims’ groups, communities, activists
and organizations, and advice State institutions and policymakers (ICTJ, 2012).
4. BLOC POSITIONS
In 2002 the Bush administration withdrew the United States of America’s signature
of the Rome Statute. Following, the National Congress passed a law prohibiting all kinds of
cooperation with the ICC (CALL, 2004). However, the country’s government formally
strongly supports the instruments of transitional justice, defending it constitute a mean to
reach the democracy in the countries after crises (ICTJ, 2009).
Mexico’s legislation is not favorable to transitional justice. There have been attempts
to establish a truth commission in the country in order to investigate the crimes committed
before the political transition of 2000; however, the idea has not gain many enthusiasts (ICTJ,
2008). Presently these measures have been dismantled and Mexico is being pressured by
international actors to take new actions in this regard. The main issue is the lack of political
support in the country, which hampers the development of a good transitional justice (ICTJ,
2008).
Costa Rica has passed through a dictatorial regime, similarly to other Latin-American
countries, yet no measures were taken to implement investigations (GRAY, 2007)
Guatemala has created a Truth Commission and has tried to provide justice to its victims
(GRAY, 2007). However, the local courts are believed to be biased, blocking the actions of
the Truth Commission, which shows that the instruments of transitional justice are not so
trustable in the country (CRANDALL, 2007). Bolivia had some important prosecutions taken
by the local courts, such as the case of the former president General Luis Meza7, which is
viewed as a real landmark in the justice system of the country (BLANK, 2007).
Peru accepted truth commissions as a compromised way of transition from its military
rule, supporting it politically and raising the expectations of achieving its results. The strength
7 The case of Meza consists of the trial of General Luis García Meza, former head of State of Bolivia and
initiator of the coup d‘etat in the country. Mr. Meza was convicted, although in absentia, of 36 charges including
murder, sedition, theft, fraud, genocide and violating the constitution. In 1995 he was extradited from Brazil to
Bolivia and still serving a 30 years prison sentence (BLANK, 2007).
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Exploring new possibilities. Treasuring the past.
of the commission relies on its good relation with the local courts, which are very keen on the
search for the truth and justice in the country. The nationally televised hearings in Peru
represent the first time in the Americas that a truth commission has conducted its truthseeking process so publicly (CRANDALL, 2004).
Following the steps of the Latin American countries, Brazil established a truth
commission to investigate human rights violations committed during its military rule (19641985). The commission was created rather late in comparison to other countries in the region.
In addition, the current president, Mrs. Dilma Rousseff, has signed a Freedom of Information
law, which aims at allowing investigations of the security archives of the dictatorial regime
(ICTJ, 2012b).
Since the end of the military rule in Argentina, the country has pursued to carry on
the prosecutions for human rights violations committed during the period. In 1986 and 1987
Argentina implemented the full stop and due obedience laws, which were highly
compromised with prosecutions (ICTJ, 2005). Chile had also implemented transitional justice
measures. The one that had the most success was the truth-commissions: the National
Commission for Truth and Conciliation and the National Commission on Prison and Torture
Policy to investigate the issues from the military period, which already provided the victims
with lifelong pensions and better life conditions (AGUILAR, 2007).
The United Kingdom of Great Britain and Northern Ireland Foreign’s Office
Human Right Strategy considers the improvement of criminal justice one of its centerpieces.
The office has an important role in supporting the rule of law internationally, and has
highlighted the work of its lawyers in countries such as Nepal and Iraq (AVELLO, 2008). In
Northern Ireland, the creation of the Historical Enquiries Team, considered an alternative
mechanism of transitional justice, had the purpose of investigating the cases of deaths
attributed to the security situation in the region between 1968 and 1998 (BAGGOT, 2008).
For France, transitional justice is a priority measure to maintain regional peace and a
weapon to end impunity and support human rights. Since 2006, the country has been
participating in several cooperation projects related to transitional justice, and has been trying
to expand the knowledge of this process to the French-speaking world. France has already
used TJ instruments in security systems reform, disarmament, demobilization and
reintegration processes (FRANCE DIPLOMATIE, 2010).
The Netherlands bears a specific responsibility in the field of transitional justice, not
only as the host country to a large number of international legal institutions, but also in view
of its constitutional obligation to promote the international legal order (AIV/CAVV, 2009).
Despite the well-succeeded transition process that occurred in Germany, starting with the
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Nuremberg Trials, the mechanisms of transitional justice used for the restoration are still seen
as controversy, since they were mainly controlled by the victorious nations of the war (CALL,
2004). The country is one of the main promoters of the Justice Rapid Response (JRR)
programme, which aims to develop the capacity to respond issues concerning justice
(AVELLO, 2008). The attempt to use instruments of transitional justice in Hungary and
Poland after the Soviets presence was not very successful, since both countries have not
concluded the investigations. The access to the files is very strict and the political obstacle is
strongly present (TUCKER-MOHL, 2005).
As a republic of the former Yugoslavia, Croatia has been dealing with transitional
justice since its independence. The attitude of Croatia has changed regarding the ICTY since
the country began negotiations with the European Union, for the cooperation with the tribunal
is required for the admittance in the group. In addition, Croatia has organizations and
programs that conduct researches and inform the public about the major problems in
transitional justice, such as the Youth Initiative for Human Rights and the Regional
Transitional Justice Programme, created alongside with Bosnia and Herzegovina and Serbia
(ICTJ, 2006).
Besides participating on the Regional Transitional Justice Programme to strengthen
cross-border cooperation on transitional justice issues, Bosnia and Herzegovina also had the
support of the ICTY in the judgments of war crimes. However, most of the cases have not yet
been judged, and will be passed to a new court, the War Crimes Chamber. Bosnia and
Herzegovina created as well the Srebrenica Commission, to report all the actions taken in
transitional justice issues (ICTJ, 2004a).
Also a republic of the former Yugoslavia, Serbia TJ cases are under the jurisdiction of
the ICTY. Years after the implementation of the Tribunal, most of the Serbians still view it
with distrust, believing it is conducted by the North Atlantic Treaty Organization (NATO)
countries against the Serbs. Moreover, the country lacks on independence and expertise
regarding international humanitarian law issues. The United States of America has assisted
Serbia economically expecting some cooperation with the ICTY (ICTJ, 2004b).
Having established one of the most well known TRCs, South Africa prides itself of
popular involvement in the processes of reconciliation, which is believed to be the key
element to such success (SOUTH AFRICA, 1998). South African exemplary mechanisms for
reconciliation have already been addressed by Zimbabwe, which firstly intends to complete
its political transition that has not yet become an issue of its past (ICTJ, 2010). Having gone
through widespread violence in 2007 due to democratic disputes, Kenya has also been
implementing in its territory modest TJ mechanisms. In face of the ICC’s sent of warrants for
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Kenyans allegedly responsible for crimes against humanity during the period of conflict, the
country has shown, however, its preference for nationally held prosecutions (HRW, 2009;
MUSUNGU, 2009).
On another end, both Uganda and the Democratic Republic of Congo (DRC) have
referred nationals accused of crimes against humanity to the International Criminal Court
(ERO, 2010). Child soldiers’ Congolese recruiter, Mr. Thomas Lubanga, has gone into trial in
the ICC, although his judgment has generated some controversy (RAMKI-NOGALES, 2010).
Another great concern in this post-conflict society is its reform of abusive institutions,
particularly army and police, commonly known as security service reform. The European
Union has effective relation with this aspect of the DRC’s rebuilding. The organization has
centered its efforts specifically in defense and police, having invested millions of Euro in the
establishment of Congolese security (BAUSBACK, 2010).
International concrete support has been seen in cases such as that Rwanda. The
ethnical-based animosity between Tutsis and Hutus has left deep scars in both Rwanda and
Burundi. With abused societies, both have had encounters with transitional justice tools; in
one case, however, they have been more deeply applied than in the other. It is arguable if
whether for political reasons or for public pressure, Rwanda has found accountability in an ad
hoc tribunal while Burundi is still subject of criticism concerning its efforts to achieve justice
(SOTTAS, 2008). Still, Burundi’s questioning regarding its own international aid has been
left unanswered. It has been suggested that crimes against Rwandese Tutsi victims has, for
some reason, caught the international community’s eye more than those committed against
Burundian Hutus (SOTTAS, 2008). Nigeria’s intentions of ending violence in Liberia
presented serious concerns to transitional justice. On one hand, the trial of resigned abusive
president Charles Taylor had to occur; on the other, Nigerian’s promise of asylum as payment
for his abdication could make the offering of exile an unreliable option for transitional justice,
having it not succeeded in Taylor’s case (KAUFMAN, 2005).
Contrarily to most cases in African history of internal conflict, in Angola there was
not a change of government with the settlement of peace. Civil war was accounted for
disputes between to political groups, one of which holds power to date. Angola now wishes to
“forgive and forget the offenses [...] and face future with tolerance and trust” (LUSAKA
PROTOCOL, 1994, annex 6 (I) para. 5). This unwillingness to revisit painful memories along
with the authority-suggested closure in the matter does not offer much room for transitional
justice to act. The question now is whether to move forward once and for all or to focus
efforts in rebuilding Angolan society taking its recent past of abuse into account (SOUTH
AFRICAN REGIONAL ASSESSMENT MISSION REPORT ON ANGOLA, 2008).
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Conflict still clouds western Sudan’s region of Darfur. In order to fight local rebel
groups, the government has been acting through tribal militia, which is partially perceived as
source for such stability in the region (SRIRAM; PILLAY, 2009). With the tragic results from
the two civil wars in the country and its human rights violations, the emerging of South Sudan
as a new State and the ongoing conflicts in Darfur, the international community has been
trying to implement transitional justice mechanisms in the region. The Sudanese authorities
have stated its wish to reestablish peace and resume pendant negotiations with its succeeding
State (ICTJ, 2011).
The cases of Libya and Egypt recently settled governments also puts TJ in discussion.
Still in completion, revolution against Mubarak’s human rights-violating regime in Egypt has
sorted initial desired effects (MISTRY, 2012). Today, the country stands at a crossroads
point, its newly settled transitional leadership which has had considerable popular support,
showing its will to repair and play close attention to human rights violations acknowledged
during the Egyptian lasting regime. The present government has shown support for
prosecutions in the ICC, but again, the matter presents some controversy. It has been noted on
more than one occasion that the indictments concern mostly and solely crimes that happened
at the end of the revolution and those relatable directly to Mubarak and close ones (MISTRY,
2012). Moreover, there is still polemic debate regarding other nations’ favoring of
circumstances of human rights violations in the country, with consent and in alliance with the
Mubarak government, that clearly contradicts jus cogens norms of international law
(MEYER, 2011).
As for cases which involve external actors, as those of Afghanistan and Iraq, it is
hard to set a line between repairing violence from before and during interventions.
Nonetheless, both countries, although unmentioned by the ICC, have been offered foreign aid
to rehabilitate its societies (BRANCH, 2010). During the American occupation, the Afghan
Independent Human Rights Commission has been established, although little effective
accountability or reconciliation has been achieved (ZYL, 2005). As for Turkey, silence is the
answer given to requests for truth commissions to analyze and overcome past human rights
violations in the country. The country still refuse to recognize its genocide against the
Armenians of the Ottoman Empire (FORSYTHE, 2011).
Along with Azerbaijan, Pakistan, India, Vietnam and the People’s Republic of
China, the Russian Federation has not ratified the Rome Statute, which accepts the
International Criminal Court’s jurisdiction (ICC, 2012) . Moreover, the country has expressed
its views about particular mechanisms of transitional justice such as authority indictment and,
on occasions, the establishment of ad hoc criminal tribunals (HRW, 2009). Concerning the
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Exploring new possibilities. Treasuring the past.
former, Russia feels that warrants sent to high-ranking leaders during a period of conflict may
work against expectations of settling peace (HRW, 2009). The Chinese government does not
stand too far from that perspective either. In the questions of Sudan and Zimbabwe, the
country has not demonstrated intention of investigating or placing accountability for crimes
on government leadership (OOLA, 2008). China has also shown opposition to a joint effort of
the United Nations and Timor Leste to establish this country’s hybrid court, as did Japan and
Australia (NAGY, 2008; JAERVINEN, 2004).
Falling outside the jurisdiction of the ICC, crimes committed in Cambodia over thirty
years ago have found accountability in the Extraordinary Chambers in the Courts of
Cambodia, an ad hoc tribunal negotiated between the Cambodian government and the United
Nations (GOLDSTON, 2006). In Timor Leste, the Serious Crimes Panels of District Court of
Dilli has been supported for investigative as well as judicial purposes. There is, however,
strong criticism concerning accountability of external actors. Indonesia has acknowledged the
abuses among Timorese people, “promised that it would prosecute violators of human rights”
(SCHNEIDER, 2009, p. 301) and even set a court to judge its nationals who were suspected
to be involved in these crimes. Nevertheless, this dedication has brought questioning about its
true effectiveness, considering that the small number of members of the Indonesian military
that have actually been judged has been, in total, acquitted (NAGY, 2008).
5. QUESTIONS TO PONDER
1) How can international community better empower the civil society to deal with
transitions?
2) How can international mechanisms of transitional justice better fit the national
dynamic of the affected countries?
3) To what extent can amnesties be permitted?
4) To what extent are transitional justice mechanisms achieving their pre-established
goals?
5) What is the real effectiveness of mechanisms other than judicial proceedings?
6) How can balance between a State sovereignty and the international community
interest in protecting international human rights norms can be stricken?
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ANDRIEU, Kora. Transitional Justice: A New Discipline in Human Rights. In Online
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ARENDT, Hannah. The Human Condition. Chicago: Chicago University Press, 1958.
ARTHUR, Paige. How “Transitions” Reshaped Human Rights: A Conceptual History of
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AVELLO, María. European efforts in Transitional Justice. Working Paper, Madrid:
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BINNINGSBØ, Helga Malnim; ELSTER, Jon; GATES, Scott. Civil War and Transitional
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<http://www.peacestudiesjournal.org.uk/dl/perpetualimpunity.PDF> Last access: 23 Aug.
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DAVIS, L. The European Union and Transitional Justice. 2010. Available at:
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ELSTER, Jon. Transitional Justice in Historical Perspective.
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GRAY, D. Devilry, Complicity and Greed: Transitional Justice and Odious Debts. Law and
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HAFNER, Donald L.; KING, Elizabeth B.L., Beyond Traditional Notions of Transitional
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HAZAN, Pierre. Measuring the impact of punishing and forgiveness: a framework for
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Accountability-Case-2005-English.pdf>. Last access: 22 Aug. 2012.
_____. Croatia: Selected Developments in Transitional Justice, 2006. Available at:
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_____. U.S. Accountability: The Difficult but Necessary Task, 2009. Available at:
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LAPLANTE, Lisa J. Outlawing Amnesty: The Return of Criminal Justice in Transitional
Justice Schemes. Virgina Journal of International Law, v. 49, n. 4, pp.915-984, 2009.
MÉNDEZ, Juan E. Accountability for Past Abuses. Human Rights Quaterly, v. 19, n.2, pp.
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OHLIN, Jens D. On the Very Idea of Transitional Justice. The Whitehead Journal of
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SRIRAM, Chandra; PILLAY, Sulem. Peace versus Justice? The Dilemma of Transitional
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SUDAN: ICC Warrant for Al-Bashir on Genocide. Human Rights Watch News, 13 Jul.
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TEITEL, Ruti. The Law and Politics of Contemporary Transitional Justice. Cornell
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_____. Resolution 955 (1994) on The International Criminal Tribunal for Rwanda,
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TOPIC B: Transnational Corporations and Human Rights
Anaís Medeiros Passos and Pedro Rigon
1. HISTORICAL BACKGROUND
While international business activity involving direct investment can be traced back to
the Middle Ages in Europe (JONES, 1993), the appearance of the first large transnational
corporations (hereinafter TNCs) date from the early modern period, with the beginning of the
navigations and the colonization. Since then such companies have developed and widespread
for what we know today. From the British East India Company to many of enterprises that act
in the contemporary globalized perspective, TNCs have entered in conflict with human rights
in the fields of labor, environment and health, for instance.
However, the violations
committed by such companies have frequently evaded international law, since their actions
are often viewed as beyond the reach of any law (BRATSPIES, 2005).
With the advent of Mercantilism and the rise of the period of navigations, demanding
growth in expenses, States could no longer uphold the high expenses of those quests,
especially considering the risk of shipwrecks and loss of earnings behind it. Consequently it
aroused the necessity to assemble capital from different sources, despite the risk of losing its
investment. Within this scenario, emerged the largest known TNCs of the 17th century— the
Dutch East India Company and the British East India Company—, and yet even at such early
period those corporations already had practices that violated international law. Among those
practices piracy, smuggling, drug traffic were well known and widespread.
Despite the existence of such companies centuries ago, the modern concept of TNCs is
largely a post-1945 phenomenon originating in the United States (JONES, 1993). Growing
with an increasingly borderless economic order, globalization and the influence of the
liberalism at the time, those TNCs developed in way that its one and only social responsibility
would be to increase profits (FRIEDMAN, 1970). The Ford Foundation is the very example
of an American TNC that, rooted in the values of the Marshall Plan, increased its influence
and spread through a shattered Europe. Its main project was related to the promotion overseas
of the American managerial values and know-how (mainly oriented to increase production)
(CAREW, 1987). In a context of the creation of the International Monetary Fund (IMF) in
1945, the signature of the General Agreement on Tariffs and Trades (GATT) in 1947, the
creation of the World Bank in 1989, and further the World Trade Organization (WTO) in
1995, it became common ground the use of disparities between countries in order to gain
advantages and increase profit. This situation was aggravated by the policies of those
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institutions which prioritized trade over all. Thus the inequalities increased, and the life of
whole swathes of the world population degraded (OZDEN, 2005).
The reflexes of the scientific advances and discoveries of the post-war period were the
boost in matter of production; particularly since a huge amount of the development of
technology and research of that period8. This conjecture, reinforced by the process of
globalization, generated a new phase for TNCs. Starting with the end of the ancient regime of
oligopolies and capital gain, and enjoying from the benefits and subsidies offered by the
outskirt countries for acting and settling in its territory, TNCs started a dissemination of a net
of company branches worldwide. The world became one only sphere of investment,
realization and capital formation. From that moment on, TNCs developed a worldwide pattern
regarding planning, human resources, production and administrative norms related to across
borders affiliate companies (COSTA, 2008).
Throughout history many TNCs have used the premise that, considering they operate
across national borders, they elude national legal systems (BRATSPIES, 2005), and since
most of international law rules aims at regulating the behavior of States (CASSESE, 2005),
their actions would be immune to any law. Only after the recognition of individual
responsibility for acts committed by a State that international law developed mechanisms
attributing responsibility to non-State actors such as TNCs. The Nuremberg Trials, in the
aftermath of World War II, represented a significant development of that law, since they
applied international law doctrines and concepts to hold individuals accountable for crimes
committed under the Nazi regime. In the Subsequent Nuremberg Trials, one of particular
significance is The United States of America v. Carl Krauch et. al case - also known as the IG
Farben trial - in which the corporation was indicted for several human rights abuses, such as:
participation in enslavement and forced labor of the civilian population of countries
and territories occupied or controlled by Germany, the enslavement of
concentration-camp inmates within Germany and the use of prisoners of war in
operations and illegal labor. It also charges the mistreatment, terrorization, torture,
and murder of enslaved person (US Military Tribunal Nuremberg , p.5).
The corporation was also charged for the “participation, […], in a conspiracy to
commit crimes against peace” (US Military Tribunal Nuremberg , p.5). This and other
corporations at the time—Krupp Group, Flick Kommanditgesellschaft (Flick KG) —were all
condemned for crimes against humanity, and were individually held responsible for their acts.
As Nuremberg Tribunals prevented individuals to use the abstraction of the State to avoid
responsibility for their acts, those subsequent prevented the individual to hide behind the
abstraction of TNCs (CLAPHAM, 2000, apud ENGSTRÖM, 2002).
8 Being in the field of computers, electronics or even deriving of the space and armaments race.
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Despite numerous efforts throughout history to protect human rights, TNCs often have
policies that historically violate international human rights norms. In this sense, it is possible
to mention the violations against the environment committed by Monsanto chemical company
and the damage it caused to the population of the United Kingdom in circumstance of the
dumping of toxic waste between 1965 and 1972. In the occasion Monsanto paid contractors
to illegally dump toxic waste in British landfill sites (VIDAL, 2007). The company is also
responsible for developing controversial genetically modified organisms which were related
to cause harm not only to the environment but also to the population9. Chevron is another
TNC involved in serious violations of human rights during the same period. The company is
responsible for causing environmental damage in Ecuador during an operation from 1972 to
1993. The corporation allegedly made the residents ill and damaged national forests and rivers
by discharging water formation into the rainforest (FEIGE, 2008). When brought before the
Ecuadorian court, the corporation claimed that agreements made with the Ecuadorian
Government exempted the company from any liabilities at the national level10.
Considering the cases afore mentioned and many others that continuously happen
trough the passage of time, they only reinforce the statement of the Special Representative of
the Secretary-General on the issue of human rights and transnational corporations and other
business enterprises, John Ruggie, that “there isn’t an internationally recognized right that
some company somewhere hasn’t violated” (RUGGIE, 2009, p. 8). In this context, it is more
than needed for international community to come up with concrete solutions on how to deal
with the issue of human rights violations committed by transnational corporations.
2. STATEMENT OF THE ISSUE
2.1. Definition of Transnational Corporations
There is a lengthy discussion about the defining principles on transnational
corporations (TNCs). According to the United Nations Norms released in 2003, TNCs
refers to an economic entity operating in more than one country or a cluster of
economic entities operating in two or more countries – whatever their legal form,
whether in their home country or country of activity and whether taken individually
or collectively (para. 20).
A transnational company distinguishes itself from national companies by its capacity
of locating production across borders, promoting trade and organizing its managerial
9 There is a controversy that arose out of the research of Arpad Pusztai with genetically modified potatoes, in
which he deemed that the stunted growth and suppression of the immune system of the rats used in the
experiments were a result of the transformation procedure (RANDERSON, 2008).
10 Issue approached on the documentary Crude, premiered in 2009.
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structures “in a way that affects the international allocation of resources” (ENGSTRON,
2002, p.1). A TNC therefore also distinguishes itself from an enterprise that engages in
portfolio investment, which implies only a financial domain in the foreign venture without
any control on management.
Additionally the Organization for Economic Co-operation and Development (OECD)
Guidelines states that TNCs “usually comprise companies or other entities whose ownership
is private, state or mixed. The degree of autonomy of each entity in relation to the other varies
widely” (OECD, 2000, p.14). This notion stresses the fact that a corporation carries a variety
of relationships, including legal and natural persons, what makes more difficult determining
legal liability issues. Concerning their identity, corporations are business oriented, that is,
work for the profit. This characteristic has to be taken into account when discussing on
settling social parameters for their activities.
2.2. The Activities of Transnational Corporations Worldwide
The phenomenon of globalization has increased exponentially the role of TNCs
trough the expansion of world trade, growth in foreign direct investment, and increased
capital flows. The internationalization of production, for its turn, was facilitated due to a
deregulation of barriers to trade and a decrease in transport and communications costs.
In 2010, the United Nations Conference on Trade and Development (UNCTAD)
reports concluded that foreign sales, employment and assets of TNCs were continuously
increasing. TNCs production both at home and worldwide generated approximately US$16
trillion in 2010, about a quarter of the global GDP (UNCTAD, 2011b). The 20 largest
transnational companies have annual incomes greater than those of 80 developing countries.
Sales and value added of foreign affiliates reached US$33 trillion and US$7 trillion,
respectively, representing a growth of 9.1% and 8.3% in 2010. Exportations reached more
than US$6 trillion in the world, about one-third of global exports (UNCTAD, 2011b). If we
consider that in 2009 the post-crisis environment represented a decrease of 16.8% of the total
assets of foreign affiliates, and a loss of 5.3% of TNCs’ GDP, the 2010 indicators shows that
TNCs have recovered their economic activities. That is why Kobrin writes about transnational
companies and their private authority, arguing that “TNCs have become actors with
significant power and authority in the international political system: they can set standards,
supply public goods and participate in negotiations” (2008, p.4).
The case of the Trade-Related Aspects of Intellectual Property Rights provision of the
World Trade Organization in 1994 provides an example on how TNCs can not only influence,
but also determine the international context. After an initiative of Pfizer and IBM, the United
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States-based twelve members of the Intellectual Property Committee were responsible for
putting the item on the agenda, developing standards to be negotiated, and determining the
best course of action concerning the topic under discussion.
The search for optimize the geographical location of transnational corporations value
chain is an ongoing and multifaceted process. The fragmentation of the production value
chain and the desire of companies to be located closer to big markets and scarce resources
have contributed to the internationalization of economic activities (UNCTAD, 2011b). This
has spread awareness in countries about the need to offer an attractive environment to
companies seeking to develop their activities in the most favorable scenario. Furthermore,
location’s determinants vary according to the nature of the activity developed. High quality
resources such as skilled labor, access to scientific capabilities and intellectual property right
regime influence more on high technology industry considerations, while costs related with
labor and resources are less important.
Concerning State-owned transnational companies, there are at least 650 of them in the
world, with 8.500 foreign affiliates distributed in several activities, especially the service
sector. Even though they are less than 1% of TNCs, their outward investment was responsible
for 11% of foreign direct investment (FDI) worldwide in 2010, representing 19 of the world
100 largest TNCs (UNCTAD, 2011b). Of these companies, 34.2% are located in European
Union countries, and 52.8%, in developing countries, especially Asia (36%) and Africa
(12.6%) (UNCTAD, 2011b).
As these recent UNCTAD studies have shown, the attractiveness of developed
countries to receive high technology is being challenged by developing countries due to an
increase of local markets and technological capabilities. In 2011, the UNCTAD World
Investment Report showed that for the first time developing and transitional countries have
received more than half of global FDI. East and South-East Asia and Latin America have
seen a deep increase of FDI inflows, while developing and underdeveloped countries continue
to receive less investment. “Flows to Africa, least developed countries, landlocked developing
countries and small island developing States all fell, as did flows to South Asia” (UNCTAD,
2011b, p.119).
2.3. Violation of Human Rights
Due to the non-enforceable character of the norms ruling corporate obligations
regarding human rights, the number of allegations of TNCs disrespecting international human
rights norms is vast. From the disregard to labor laws and international guidelines in China to
the illegal violence, forced labor, and support to armed conflicts in pursuit of their corporate
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interests by oil giants like Enron, UNOCAL and Shell, TNCs have been enjoying immunity of
liability and an ever increasing concentration of economic power (OZDEN, 2005;
BRATSPIES, 2005).
Reports regarding human rights violations committed by transnational companies
especially in undeveloped and developing countries have been more frequent, as these
activities spread throughout countries (RUGGIE, 2007). The United Nations Human Rights
Council has expressed many times its concern regarding States failure to prevent violations
committed by corporations regarding labor conditions, non-discrimination and indigenous
people11. The last draft of the United Nations Code of Conduct for Transnational Corporations
called upon the transnational companies to not disrespect the sovereignty of the countries
where they develop their activities. The issue is that competition between corporations for
comparative advantage, deepen by globalization and integration between economies, can end
up bringing negative consequences:
such consequences of ‘outsourcing’ are captured e.g. in the criticism of the ‘race to
the bottom’ phenomenon, i.e. use of low cost services provides through poor
environmental standards, low wages, or poor working conditions. In a worst-case
scenario this leads to competition between states with social and environmental
standards in order to attract companies. As a consequence large TCs can escape
national regulatory control trough relocating their production to countries offering
more favorable terms (ENGSTRON, 2002, p.5)
The list of human rights that transnational corporations have been reported to violate is
long (DEVA, 2003): the right to enjoy life, freedom from torture and cruel, inhuman, or
degrading treatment, freedom from forced or slave labor, freedom from arbitrary detention or
deprivation of security of person, freedom to enjoy property, freedom from deprivation of or
injury to health, enjoyment of a clean and healthy environment, freedom from discrimination,
free choice in work, fair wages a decent living, equal remuneration for work of equal value,
safe and healthy working conditions, protection of children from economic exploitation, etc.
A company can be directly involved in human rights violation or indirectly involved,
which means even though it is not directly responsible, it does not take any actions to prevent
certain violations to occur, characterizing a “pervasive violation” (DEVA, 2003, p. 22). In this
second case, we may refer to two different situations. One is when the company sells products
to a third part (State, private entity, individual), knowing that it will be used in activities
related to human rights abuses. This would be the case of the Nuremberg judgments and the
involvement of companies with the Nazi regime. A second situation of an indirect violation is
when companies get advantages from some kind of violation perpetrated by a third part, as the
ones committed by a military regime that is supported by a specific company. A famous
11 See for example A/HCR/4/35/Add.2
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example of this situation would be the UNOCAL case, in which the American company was
charged by its relation with the Burmanese military and its culpability in human rights
violations. The UNOCAL case II (also known as Doe. v. Unocal case), by its turn, fits in the
“direct violation” label. It reported forced labor in the construction of the Yadana pipeline, at
the Andaman Sea, to the south of Myanmar. The OECD has acknowledged that similar
problems were found in oil and gas developments owned by UNOCAL in Colombia, CongoBrazzavile, Indonesia, Nigeria and Sudan (OECD, 2002).
The case of Enron in India is well reported in the document “Human Rights Watch:
the Enron Corporation, Corporate Complicity in Human Rights Violations”, in which the
local entity of Enron in India, the Dabhol Power Corporation, took direct advantage from the
governmental conduct of suppressing dissent through the circumvent of due process of law,
harassment of anti-Enron protesters and environmental activists, and arbitrary and brutal
police practices. In the case Rodrigues v. Drummond Co., 2003, allegations were made
concerning corporate involvement in the death of Colombian trade union leaders.
2.4. Asserting Responsibility for TNCs Human Rights Violations
Considering this scenario of increasing human rights violations and the lack of
accountability, it is necessary to assess the legal means available for assert responsibility for
transnational companies’ activities. There is no consensus on how this should be done,
whether focusing on States, individuals or corporations.
Although the 1948 Universal Declaration of Human Rights entitles individuals, States
and “organs of society” the duty to promote and protect human rights (p. 3), the term “organs
of society” remains vague. Some scholars defend that corporations should fit in the term,
because it would obviously make a reference to entities not falling under the category of
individuals or States (BRATSPIE, 2005, p. 7).
Others argue that only States and State agents are holders of obligations, considering
they are the only entities capable of possessing international legal personality and having
duties and rights under international law. Corporate duties are therefore unprecedented and
unjustified because corporations are interpreted as being “derivative of, and enforceable only
by states, who as ‘subjects’ conferred those rights and duties upon them” (CUTLER, 2001, p.
13 apud KOBRIN, 2008, p.8). Following this reasoning, asserting corporations obligations
would jeopardize the State power itself. As Vasquez claims, giving direct obligations to
corporations “would result in a significant disempowering of states” (2005, p. 150). Corporate
direct accountability would then not be in order with the human rights framework. In the
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Presbyterian Church of Sudan v. Talisman Energy case, 2003, one find claims that
corporations could not violate international law, corroborating with this view.
Others point that transnational corporations have already recognized rights through
international treaties, multilateral trade agreements, and regional pacts. Entitling them certain
duties would be the natural consequence of this process. Routinely transnational companies
claim rights espoused by the Universal Declaration, especially the right to own property and
the right to freedom of opinion and expression. Corporations should then be held accountable
for violations of international law, either directly or through national courts (ICHRP, 2002;
RATNER, 2001).
States have already recognized many corporations’ duties trough soft law instruments
such as the International Labor Organization Tripartite Declaration of Principles Concerning
Multinational Enterprises and Social Policy (1977/2006), the UN Draft Norms on the
Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to
Human Rights (2003), the OECD Guidelines for Multinational Enterprises (1976/2000) and
the UN Global Compact (1999/2000). Additionally, one could argue that States have already
indirectly recognized duties entitled to corporations by prescribing international labor law,
environmental law, and economic sanctions.
If one accepts a corporate criminal liability approach, two theories may be used to
assert liability: identification and imputation. Under the identification theory, the actions of a
certain natural person are the actions of the corporation, being restricted to the ones who
actually represent the corporation, managers, chiefs, coordinators. The imputation theory, for
its turn, asserts that the corporation can be held responsible for the acts of all its agents, when
they are not performing in their “individual capacity” (VASQUEZ, 2005a, p.1352).
2.5. International Law
There are several soft law instruments regarding the duties of transnational
corporations towards human rights. The United Nations Global Compact released in 1999 by
the then UN Secretary-General Kofi Annan affirms that the Universal Declaration of Human
Rights applies to corporate entities as well as to governments. It lists ten principles that should
be followed by socially responsible TNCs, such as supporting and respecting the promotion of
internationally proclaimed human rights, not be in complicity with human rights abuses and
uphold the freedom of negotiation and the right of collective bargaining. Besides these
parameters, it acknowledges the need to follow up with internal systems to report results (UN,
1999).
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The Global Compact is a voluntary initiative that aims to promote responsible
corporate practices through the support for local networks, particularly centered in developing
countries. Since it is not a regulatory instrument, it basically relies on public accountability
and transparency to promote its principles. It is a follow-up from the International Labor
Organization Declaration, whose purpose is to offer a dynamic global picture where abstract
principles can be implemented indeed. This way, it settles priorities and prescribes technical
cooperation between companies and countries. An important mechanism it has brought are the
“Communication on Progress” reports, which analyze corporations performances’ annually
with regards to the covenant principles. Despite its contributions, many critiques have come
regarding its real efficacy to change companies’ behavior. Additionally, some have said it has
too vague terms and do not cover some crucial areas like financial and non-financial
disclosure, consumer interests, science and technology competition and taxation.
The International Labor Organization Tripartite Declaration of Principles Concerning
Multinational Enterprises and Social Policy of 1977 is an important document concerning the
matter, although one could point difficulties in regard to its directory nature, the absence of
any monitoring process and the lack of any implementation mechanism prescribed by it. The
ILO Principles were conceived as a more positive approach to the social clause - i.e. trade
sanctions for violation of worker rights. They are a useful basis to distinguish the roles of
governments and companies concerning the prevention of human rights abuses, by settling
fundamental principles that each State should promote. According to the Declaration, States
are responsible for creating and maintaining minimum national standards for corporations’
activities. That is the reason it has become a reference in the context of corporate social
responsibility and international framework agreements.
The OECD Guidelines for Multinational Enterprises of 1976 is an important
contribution, in spite of lacking an enforcement system12 and being restricted to the 39
adhering countries, which are mainly developed ones. Its government-backed mechanisms,
that could be considered the Guidelines’ more important innovation, include National Contact
points, which are government offices located in each one of the countries. These offices are
responsible for making sure the OECD principles and standards are being implemented,
annually reporting the progress to the OECD Investment Committee.
12 As Deva argues (2003, p. 5) “the efficacy of their implementation depends upon the National Contact Points
and the Committee on International Investment and Multinational Enterprises. But these two institutions only
perform advisory, consultative and clarificatory functions, and thus lack any enforcements powers. The OECD’s
usual practice of not revealing the identity of an enterprise involved in the dispute makes the matter worse. In
addition, the guidelines are very general and vague, and the follow-up process is taken up only in member
countries, not throughout the world”.
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An interesting initiative is the United States Alien Tort Claim Act (ACTA), which
permits aliens to sue the United States and foreign corporations for human rights violations
committed abroad. In the case between the Presbyterian Church of Sudan and the Talisman
Energy company, it was rejected the claim that national law cannot support corporate liability
In recent years the United Nations have issued important documents such as the
United Nations Code of Conduct for Transnational Corporations (1998) - although it was
never fully adopted - and the UN Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprise with Regard to Human Rights (2003), that
expressly recognizes that human rights violations have being committed by transnational
corporations. It is the first set of comprehensive international human rights norms concerning
specifically transnational corporations, establishing the responsibilities such companies have
with regard to human and labor rights. The Norms have also settled important guidelines for
activities of transnational companies in conflict zones. Other documents also reflect the
existing international practice regarding the protection of human rights, such as framework
agreements between TNCs and workers organizations, self-imposed company codes of
conduct and NGOs’ guidelines13.
The Ruggie Report released in 2011 provides an updated vision of the UN Norms,
trying to tackle its main critiques and commentaries. UN Norms aimed to impose to
companies the same duties countries have assumed under international law on the protection
of human rights after signing some agreements. This proposal generated a profound and
polarized debate between companies and human rights defenders’. Unfortunately, there was
little support and participation of countries in the discussions. In 2005, a Special
Representative was indicated by the Secretary-General to undertake a new process on the
issue of human rights and transnational corporations and other business enterprises. The work
involved extensive and multiple consultations with different countries, individuals and
organizations. For example, the efficacy of the Guiding Principles of human rights due
diligence provisions were tested by 10 different companies, and were discussed by corporate
law professionals from more than 20 countries. The final text rests on three assumptions,
aiming to balance States and business duties:
(a)States’ existing obligations to respect, protect and fulfill human rights and
fundamental freedoms;
13 Such as the European Commission Green Paper: promoting a European framework for corporate social
responsibility; Australian Corporate Code of Conduct Bill 2000; Declaration of Human Duties and
Responsibilities; Basic Code of Conduct covering Labor Practices adopted by the International Confederation of
Free Trade Unions; Workplace Code of Conduct initiated by Fair Labor Association for the Apparel Industry
Partnership; Shell International Petroleum Company, Statement of General Business and Human Rights.
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(b) The role of business enterprises as specialized organs of society performing
specialized functions, required to comply with all applicable laws and to respect
human rights;
(c) The need for rights and obligations to be matched to appropriate and effective
remedies when breached (RUGGIE REPORT, p. 4).
The Guiding Principles are complemented by commentaries, this way clarifying its
meaning and preventing misinterpretations. There is no doubt that establishing this global
and common platform for action is a big step towards more regulated corporation activities’.
The overall positive acceptance the document received from individual governments, business
enterprises and associations, civil society and workers’ organizations, national human rights
institutions, and investors is a sign of the well done process of writing it.
Civil society engagement with these issues has intensified, expanding and assuming
diverse forms. They are essential to make corporate activities’ more accountable. A frequently
used technique nowadays is known as ‘naming and shaming’, which is basically identifying
and publicizing corporate malpractice. Such kind of activism has been undertaken by several
organizations including: Corpwatch (United States), Corporate Watch (United Kingdom),
Greenpeace,
Human Rights Watch, International Baby Food Action Network (IBFAN),
Maquila Solidarity Network, Minewatch, Norwatch (Norway), Oilwatch, Pesticide Action
Network (PAN), Project Underground, and PR Watch Consumer.
If one accepts to directly regulate transnational corporations for their violations, some
issues arise. Firstly, TNCs must intend a consequence or should they just be aware of the
particular consequence being enough to impose criminal liability? Could liability be imposed
for negligence in taking certain actions? In this context, it has been proposed by some
scholars a cooperation between the United Nations and the World Trade Organization, to fill
the vacuum created in the power of States to regulate transnational corporations. In addition,
there is a need to clarify who is responsible and to what degree, what is the source of this
responsibility, towards who it develops and how such responsibility is asserted.
Presently, it is still prevalent a State-center context, in which States enjoy most of the
power and conditions to accomplish law. Entitling transnational corporations a legal
personality in international law equivalent to States could be an unrealistic attempt. An
alternative would be to treat TNCs as secondary limited subjects of international law,
considering their status derives from States despite their independence. This concept would
permit them to enter into international agreements with other entities, make claims for
violations of international law and be directly liable for their actions.
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2.6. State Responsibility
Appealing to corporate responsibility does not mean States do not need to accomplish
their duty to protect human rights. Despite the context of diffusion of public authority, States
still perform central functions in international relations. Concerning their obligations under
international human rights law, the 1997 Guidelines on Violations of Economic, Social and
Cultural Rights concludes that “[t]he obligation to protect includes the States responsibility to
ensure that private entities or individuals, including transnational corporations […] do not
deprive individuals of their economic, social and central rights” (Art. 18, sole paragraph).
Following the same reasoning, the UN Convention on the Elimination of All Forms of Racial
Discrimination “prohibits and brings to an end […] racial discrimination by any persons,
group or organization” (Art. 2 (1)).
In the case of asserting State responsibility for TNCs actions the issue that arises is if
liability should be imputed to the home or the host State. According to the first approach,
corporations are subjected to the national law under which they operate and therefore the host
State, for its territorial connection, would be liable if it fails to protect its citizens from
corporations’ acts. Alternatively, the home State responsibility approach would be based on
the presumption that States have not only the duty to protect their citizens and organizations,
but also the duty to prevent them from violating human rights abroad14. There are some
historic precedents for this responsibility, such as the International Court of Justice statement
regarding the Nicaragua v. United States case (1984), pointing out the responsibility of State
for acts of persons unconnected with it, if it can exert control over them. Additionally, the
Basel Convention prohibits citizens and corporations to export hazardous waste to other
nations.
The due diligence concept is a mean of establishing whether human rights are being
violated or not. It acknowledges the fact there is a wide choice of means to be used at the
discretion of the State. A human right violation cannot be stated in abstract, because it
depends on the specific circumstances and the rights violated. Foreseeability has then to be
taken into account. Sometimes there is no real condition of a State unconnected with TNCs to
know their actions abroad. Also, an issue remains whether due diligence questions should
take into account the capabilities of the State in specific or be ruled by international standards.
The International Court of Justice has employed the concept of “means at the disposal”15 of
14 Article 2 (2) of ICCPR, obliging states to adopt “necessary legislative and other measures”.
15 According to the excerpt ICJ decision, 1987, para. 157: “As the means at the disposal of the governments in
the region are roughly comparable, the geographical obstacles, and the intrinsic character of any clandestine
arms traffic, simply show that this traffic may be carried on successfully without any complicity from
governmental authorities, and even when they seek to put a stop to it. Finally, if it is true that the exceptionally
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Exploring new possibilities. Treasuring the past.
the State in question, Nicaragua, concerning the lack of resources it had to prevent traffic
arms from occurring inside its territory. In the situation, it was proved clandestine arms traffic
happened without any complicity from State (who even tried to stop it) and therefore
Nicaragua could not be held responsible for these activities.
Host State responsibility approach faces some difficulties. In many cases, TNCs ends
up being more powerful than the States in which they do business. Most cases of violations
occur in developing countries16, exactly because in these areas TNCs resist more easily to
domestic sanctions (ENGSTRON, 2002). Moreover, in many cases governments do not have
the financial and material resources to monitor and regulate corporate operations.
Home State responsibility approach, for its turn, raises concerns of extraterritorial
jurisdiction.
Extraterritorial responsibility is well established in international law. Some
scholars even argue “that decisions against the extraterritorial application of human rights law
is anathema to the effective protection of individual rights, the very purpose of human rights
law” (HOWLAND, 2008, p. 403). Notwithstanding it should be viewed carefully due to the
excessive use of this principle by some States to apply their laws abroad.
The present situation, one could argue, is of inadequacy of a regulatory framework on
transnational companies activities, considering there is no consensus on standards, which in
spite of the great amount of existent soft law documents rely on quite vague terms.
Additionally, they put excessive emphasis on dialogue and cooperation with transnational
corporations, without establishing sanctions in case they are needed. However is it realistic to
have a binding approach? Would States be capable of achieving a consensus on well-defined
standards? Monitoring and reporting still face many difficulties with regards to finance and
logistics. For all the reasons stated above, until the present moment, States have been
unwilling to take a step further and to sanction parent corporations for human rights violations
committed by their subsidiaries (UNCTAD, 2007).
extensive resources deployed by the United States have been powerless to prevent this traffic from keeping the
Salvadorian armed opposition supplied, this suggests even more clearly how powerless Nicaragua must be with
the much smaller resources at its disposal for subduing this traffic if it takes place on its territory and the
authorities endeavor to put a stop to it”.
16 An alternative would be to consider non-equity models (NEMs) of international production, especially in
developing countries, such as contract manufacturing, contract farming, franchising, management contracts, and
other types of contractual relationship that allows TNCs to coordinate their activities in host-country firms
“without owing a stake in those firms” (UNCTAD, 2011b, p. 121). This kind of enterprise can support industrial
development trough capacity building, technology dissemination and giving access to global value chain.
However employment can be highly cyclical through contract manufacture and NEMs can be a way of escape
from labor and environmental legislation (UNCTAD, 2011b). Concerning industrial development, should be
taken into account the existent risk of developing countries becoming too dependent on technologies and global
value chain owned and coordinated by TNCs.
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3. PREVIOUS INTERNATIONAL ACTION
When observing the evolution and development of capitalism and TNCs activities, one
can apprehend that there is a gradual evolution and development of human rights and
international law in order to regulate this process. Nonetheless there is a delay in delivering a
judicial response capable of adjusting these economic activities to national legislation and
internationally recognized good practices. In this sense the fast growth that TNCs have
experienced in the past—and, therefore, the increase of practices that violate human rights—
did not generate a similar response at the international law level to inhibit and uphold these
offenders. In this section, we analyze some important international, regional and national
initiatives done in the last years towards more regulated transnational activities.
In recent years, international plaintiffs have resorted to the United States Alien Tort
Claims Act (ATCA) in attempt to hold corporations accountable for human rights violations
committed outside the country. Although mechanisms of earlier age addressed to cases of
piracy and slave trade, the ATCA appears nowadays as the only available mean of redressing
in cases concerning TNCs.
The first plaintiffs to win, in 1997, were pleaded against
UNOCAL, a transnational petroleum company accused of complicity with forced labor, rape
and murder (OZDEN, 2005). The case occurred in Myanmar and involved the hiring of
militaries to secure a pipeline construction in the south of the country. The company was
accused of complicity with human rights violations committed by militaries against local
peasants17.
In a more recent tort brought before the ATCA, in July 2005 Nestlé was accused of
trafficking, torture and forced labor of Malian children in the cacao harvest of the Ivory Coast.
Another expression of the national struggle against abuses committed by TNCs occurred in
France, where the Totalfinaelf company and its affiliate Totalfinaelf E & P Myanmar were
brought to a Nanterre court in 2002 by Burmese refugees. The company in question was
accused of being involved with illegal confinement. In 2005 the case ended with a decision
obliging the company to indemnify the plaintiffs. According to the final decision, Totalfinaef
company also had to set a fund for others who might prove to have suffered from these
actions (OZDEN, 2005).
Opinions hold by the African Commission on Human and People’s Rights are also a
contemporary example of strive against corporations at the regional level. In October 2000 a
decision regarding cases of human rights violations committed by TNCs in Nigeria was
adopted (ACHPR, 2001). The Commission understood that the government of Nigeria was
violating human rights:
17 Cf. Doe v. UNOCAL and Roe v. UNOCAL.
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Exploring new possibilities. Treasuring the past.
the communication alleges that the military government of Nigeria has been directly
involved in oil production through the State oil company, the Nigerian National
Petroleum Company (NNPC), the majority shareholder in a consortium with Shell
Petroleum Development Corporation (SPDC), and that these operations have caused
environmental degradation and health problems resulting from the contamination of
the environment among the Ogoni People (ACHPR, 2001, p.1).
Consequently, an appeal was made in order to stop all the attacks on Ogoni
communities and permit free access to the territory. An investigation started to prosecute the
parties involved, ensuring an adequate compensation for victims. Lastly, the government was
oriented in the judicial decision to provide an environmental and social impact assessment
report, as well as information and meaningful access to regulatory and decision-making
bodies to communities likely to be affected by the oil operations.
Similarly, the European Court of Human Rights emitted a decision in November
200418 regarding the Turkish government authorization for E.M. Eurogold Madencilik
company to prospect gold and to use cyanide for extraction purposes, despite the claims of
Bergama’s residents about the risks to health, water and environment that these activities
would generate. The European Court of Human Rights concluded “that the respondent State
did not fulfill its obligation to secure the applicants right to respect for their private and family
life” (ECHR, 2004, p. 92-93). Therefore, it was violating several articles of the Convention
for the Protection of Human Rights and Fundamental Freedoms. Turkey was condemned to
indemnify each of the applicants for non-pecuniary damage.
Some international initiatives on this issue have an entirely voluntary character, such
as the Harkin-Engel Protocol19, a public-private agreement also referred as the Cocoa
Protocol. This initiative is an example of a voluntary document aiming to promote the end of
child forced labor. The main critics concerning these initiatives are precisely their voluntary
character. Another problem is the lack of any legal fundament in the agreements and the
absence of a mechanism to verify TNCs’ actual compliance with the commitments they claim
to have made. Some organizations even denounce that those documents are frauds, since they
would only serve to enhance the image of TNCs usually accused of human rights violations
before the public (OZDEN, 2005).
Another case to be mentioned would be the one involving the control of diamonds and
other natural resources. This issue has generated several conflicts in Sudan, Congo and Sierra
Leone. The term “blood diamonds” was created in reference to the situation where diamonds
18 Taskin et al. v. Turkey, No. 46117/99.
19 Formally entitled "Protocol for the growing and processing of cocoa beans and their derivative products in a
manner that complies with ILO Convention 182 concerning the prohibition and immediate action for the
elimination of the worst forms of child labor", it is an initiative of the United States Senator Tom Harkin and
Representative Eliot Engel (International Cocoa Initiative, 2001).
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UFRGSMUN 2012
are mined under condition of gross human rights abuses while TNCs make substantial profits.
A very clear example of that is the one reported by Human Rights Watch20 involving one of
the largest gold companies, AngloGold Ashanti, and its relations with the Front des
Nationalistes et Intégrationnistes (FNI), a combatant group with a record of human rights
abuses in Congo (HRW, 2005).
The company was proved to be clearly funding the
continuance of war and the group activities. Considering this alarming context, in 2002 the
United Nations Security Council has appointed a panel of experts to investigate the illegal
exploitation of these resources. The Council proposed to apply sanctions against implicated
legal entities that had violated OECD guidelines for Multinational Enterprises (UNSC, 2002),
thus turning soft law into hard law.
Under these circumstances and inspired by the previously created Global Compact, the
United Nations proposed the Kimberly Process Certification Scheme21, aiming:
to discuss ways to stop the trade in ‘conflict diamonds' and ensure that diamond
purchases were not financing violence by rebel movements and their allies seeking
to undermine legitimate governments (KIMBERLY PROCESS OFICIAL, 2012).
Notwithstanding, its effectiveness was questioned many times. In 2009 two of the
founder members were accused of failing to properly regulate the “issues of non-compliance,
smuggling, money laundering and human rights abuses in the world's [...] diamond fields"
(IRIN, 2009, p.4). Other similar voluntary agreements emerged in the last years. To mention
one, the Voluntary Principles on Security and Human Rights22
has gathered several
companies of the energy and extractive sector, as well as non-governmental organizations,
with the common objective of promoting and protecting human rights, while recognizing the
decisive role that business and civil society can play in advancing these issues. This range of
voluntary agreements, despite inherent limitations due to their voluntary character and lack of
any enforcement mechanisms, represent an actual effort of international community towards a
more solid recognition of human rights by both State and non-State actors.
4. BLOC POSITIONS
The United States of America affirms to have strong business regulatory
environment, ensuring the promotion of human rights. The country has supported efforts on
bringing transnational activities into more transparent terms and will continue with it. One of
the major findings United States had during recently is that corporate social responsibility
20 See also Human Rights Watch , Congo: Bringing Justice to the Heart of Darkness, February 7, 2006,
21 Adopted by the United Nations General Assembly in its Resolution 55/56, A/RES/55/56 (2000). Lately
suported by the Security Council in its Resolution 1459, S/RES/1459 (2003).
22 Proposed by the governments of United States and United Kingdom, and nowadays adopted by 5 other
countries: Canada, Norway, Switzerland, Netherlands and the Republic of Colombia.
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Exploring new possibilities. Treasuring the past.
requires a strong domestic legal and regulatory framework (UN, 2009) to be effective. When
dealing with human rights and transnational corporations, a negative attitude towards national
and international businesses has to be avoided since they are a positive and substantial force
capable of promoting economic and social development.
Argentina acknowledges the contemporary complex world posed by transnational
companies and international organizations (KIRCHNER, 2011). Considering this scenario the
country’s government states that transnational corporations may be either of valuable benefit
to the countries where they operated, or the cause of gross human rights violations.
Bolivia endorses any initiative aiming to settle a code of conduct for companies in
order to make them more accountable. It believes that in Latin American countries should
regulate economic activities directed to exploit natural resources (TELESUR, 2012).
Chile stresses the problem of gender representation inside transnational corporations
(UN, 2009), a theme essential to be included in the debate.
Brazil supports national legal standards observance by transnational corporations
when operating abroad. Foreign investments and economic activities have been an important
source of growth for developing and under-developed countries.
Notwithstanding, efforts
concerning the issue should be adopted multilaterally, respecting each country’s sovereignty
and specificities (AMORIM, 2009).
Peru believes that foreign operations of transnational corporations in Latin America
are essential for developing nations. However, is it necessary to settle a balance between the
environment, human rights and economic activities. Development “at all cost” is not a
reasonable state strategy for growth and will not be supported by the Peruvian government, a
country that has been historically committed with the human rights defense and dissemination
(PERU, 2012).
Guatemala has emphasized the need to come up with financial indemnifications for
those affected by human rights violations committed by transnational corporations, especially
those living in conflict zones. United Nations should be able to coordinate a dialogue with
both governments, companies and international corporations. Lastly, the country believes that
a gender perspective should be adopted (PAREDES, 1994) when dealing with labor
discrimination.
Mexico is especially concerned with issues related to child labor and migrant workers’
rights (UNICEF, 2012). The country is committed with settling legal patterns for economic
activities, harmonizing social and economic growth.
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Costa Rica believes that the World Trade Organization parameters should be taken
into account when regulating transnational corporations, especially those concerning freedom
of association and elimination of child and forced labor (COSTA RICA, 2012).
The European Union acknowledges substantial gaps between TNCs activities and
human rights. EU has been a strong supporter of the United Nations Guiding Principles on
Business and Human Rights, helping to implement effectively their principles worldwide. In
view of these arguments, European Union has renewed its policy on corporate social
responsibility sought to focus more on business and human rights (EU, 2011). Regarding the
State duty to protect human rights, more attention should be given to how conciliate businessrelated activities and human rights policy, especially when leading with countries that have
difficulties to prevent violation to occur in their own territory.
Germany defends that although securing the universal protection of human rights is
mainly a State obligation, individuals and every organ of society, including the business
community, must also play a part in this task. Companies have to strive for the promotion
and observance of human rights, environmental and social standards. In view of these
arguments, the German government has been supporting multilateral cooperation
(GERMANY, 2009) to enhance development and human rights observance in several
countries.
France is strongly concerned with human rights violations committed by transnational
companies. Failed states and conflict zones pose an even more alarming problem (FRANCE,
2011). PNUD, World Bank and the International Monetary Fund should be consulted to
acknowledge already exiting good practices concerning this domain.
The United Kingdom is committed with a strategy on business and human rights,
having set aside a significant sum to implement the Guiding Principles around the world.
Disseminating those parameters and good practices should be a priority for both governments
and business (UK, 2011). States should also be aware on deepen regulation on small and
middle-sized companies that are initiating foreign operations, since frequently they do not fit
in the scope of international agreements.
The Netherlands highlights the role of transnational corporations in the enjoyment of
human rights. The country welcome business’s and State’ efforts to harmonize economic
activities and human rights principles, since promoting them is one of the main aims of the
Dutch foreign policy
Poland and Hungary acknowledges their engagement with European Union
initiatives on implementing the UN Guiding Principles (EU, 2012).
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Bosnia Herzegovina is committed with regional integration in Europe, having signed
in 2008 the Interim Agreement on Trade and Trade-related issues (EU website, 2012). The
country believes this kind of dialogue can effectively help to disseminate good practices and
lessons learned when dealing with business and human rights.
Serbia and Croatia are engaged alongside their European partners in assuring
effective mechanisms to conciliate economic policy and human rights principles (EU website,
2012).
Russian Federation is directing efforts on the issue of human rights and transnational
corporations. It believes States are the primarily responsible for drawing up standards for the
observance of human rights by transnational corporations, but international community
should act together with them to tackle the issue (RUSSIAN FEDERATION, 2011).
Large parts of Asia provide significant manufacturing platforms within global supply
chain. The race among governments to attract business in spite of the social cost implied ends
up fueling the non-observance of human rights law.
The People’s Republic of China believes that claims regarding how to protect human
rights without putting companies at competitive disadvantages should be taken in
consideration. Nevertheless, it is willing to cooperate on advancing issues such as corporate
responsibility to respect human rights in the supply. In the last years, China has expanded its
presence abroad, fostering economic growth and development in poor nations in accordance
with human rights trough a win-win strategy (CHINA, 2012).
Japan believes that two areas should be given a high priority: the implementation of
the Guiding Principles on Business and Human Rights and the United Nations framework
Protect, Respect and Remedy (JAPAN, 2011). When dealing with violations committed by
transnational corporations, cooperation should be established with international organizations
such as ILO, OECD and the World Bank.
Cambodia and Vietnam are especially aware on the issue of human rights abuses and
land rights (HRW, 2012). India, for its turn, is particularly concerned with violations
committed with land acquisitions and mining (SARDANA, 2012). The country is committed
with incentivize corporate responsibility programmes to provide employment and
development.
Indonesia has recently directed efforts to bring into more regulated terms economic
foreign activities, especially concerning the environment (EJLT, 2012). It hopes to foster
similar initiatives from both developing and developed countries.
Turkey, alongside its regional partners, upholds national initiatives in assuring
business compliance with internally recognized good practices and standards. The country has
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UFRGSMUN 2012
been working in assuring healthy safety conditions for workers (TURKEY, 2006), both in
national and international companies.
Pakistan has worked in a National Policy of Home-Base Policy, helping to assure
rights for workers in global supply chains (ILO, 2010). The country is committed with the
workers’ rights when dealing with economic activities.
Afghanistan is concentrated in combating forced and child labor in the country
(AREU, 2009) hoping to regulate more their own economic activities. Due to its commitment
with more accountable transnational activities, it is a candidate country for the Extractive
Industry Transparency Initiative.
Iraq is particularly worried with abuses committed in conflict zones. Iraqi companies
have recently received training for Global Compact Principles (UN, 2012) and the
government is looking forward to support more activities like these.
Azerbaijan stresses the improved transparency in extractive industries operating in
the country (EITI, 2012), thanks to government actions on regulating these operations.
Australia acknowledges the opportunities and challenges brought by globalization
(AUSTRALIA, 2001). Nevertheless, the country is committed with protecting, respecting and
remedying a framework on human rights and transnational companies.
African countries have emphasized the links between development, security and
successful human rights protection and promotion, stressing the importance of the role of
business in achieving the Millennium Development Goals (UN, 2006). One of the major
difficulties in assuring better practices for companies are the deficit of tools for human rights
impact assessments, as well as the lack of African States capacity to regulate them.
South Africa is mainly concerned with violations committed during armed conflicts
and how to prevent them (UN, 2010).
Nigeria acknowledges the importance that transnational corporations have for African
countries development. The debate on regulating them should be done considering the needs
for more transparency, diversified economic growth, and improved fiscal
management in the region (CIA WORLD FACTBOOK, 2012). The government is
regulating petroleum activities in the area.
Sudan is engaged in assuring respect for internationally recognized good practices
when dealing with transnational corporations, particularly regarding property rights, food
security and the environment. It has signed over the last years many memorandums of
understanding with investors and organizations in order to advance corporate social
responsibility in the country (BUSINESS&HUMAN RIGHTS, 2012).
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The Democratic Republic of Congo is engaged in assuring certified origins of
products (GARREL; MITCHELL, 2009). It believes internationally community should
support this kind of initiative; otherwise it will be sustaining human rights abuses.
5. QUESTIONS TO PONDER
1) How can international community better apply international human rights norms to
TNCs?
2) How can TNCs be held accountable for violations of international law and
international human rights norms?
3) Considering there a corporate criminal liability approach, which theory would better
fit today’s international community’s needs: identification or imputation?
4) Considering the mechanisms to deal with TNCs’ respect for international human rights
norms available today, what are their flaws? How can they be remedied?
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