Wednesday, March 21, 2007

Corporate responsibility for fundamental human rights norms

Corporations are today major influences on our lives. From the 100 largest economies in the world, 51 are corporations while only 49 are states. While it is could be said that economic development coupled with the rule of law and democracy could be the one best for the entire spectrum of human rights, corporations, especially some transnational corporations, often avoid any from of legal responsibility when they commit human rights violations. Then there is inequality in international legal system. International Law on Foreign Investment guarantees protection to corporations from loosing their investments when investing in developing countries with at times fragile economic and legal systems of the. This is coupled with wide several bilateral or multilateral investment treaties which require States to equally treat foreign investors. In turn, corporations are not asked in any international legal instrument to comply at minimum with fundamental human rights norms. This inequality derives from period of decolonization when former colonial powers sought to protect their property when they left their colonial territories. Even though there is no binding mechanism at international level at this period of time regarding corporate human rights obligations, soft law documents provide some enforcement mechanisms such as OECD Guidelines for Multinational Enterprises, which are addendum to OECD Declaration on International Investment and Multinational Enterprises. Guidelines are recommendations providing voluntary principles and standards for responsible business conduct for multinational enterprises operating in or from countries adhered to the Declaration. 2000 Version of OECD Guidelines specifies that each OECD State Party has to set up the National Contact Point. NCP is a government department of each State Party responsible for promotion of the Guidelines on a national level. NCP handles all enquiries and matters related to the Guidelines on adhered country.

Recently Global Witness has lodged a complaint to British National Contact Point has submitted a complaint against British company Afrimex to the Brititish National Contact Point under the strengthened procedures for considering breaches of the OECD Guidelines for Multinational Enterprises.

The Global Witness complaint describes how Afrimex, which traded in the minerals coltan and cassiterite (tin ore) throughout the conflict in the DRC from 1996 onwards, made tax payments to the Rassemblement congolais pour la démocratie-Goma (RCD-Goma), an armed rebel group with a well-documented record of carrying out grave human rights abuses, including massacres of civilians, torture and sexual violence. During the conflict, the RCD-Goma controlled large parts of the eastern provinces of North and South Kivu, where coltan and cassiterite are mined. The complaint also highlights the life-threatening conditions in cassiterite mines and the
use of forced labour and child labour. It further alleges that “Afrimex’s payments to the RCD-Goma perpetuated the conflict and strengthened the rebels’ capacity to inflict extreme suffering on the civilian population.

Prospects for corporate responsibility for breaches of fundamental human rights norms might not be so gloomy as it may seem at first instance. However, it may be more feasible to pursue corporate responsibility through the avenues of individual criminal responsibility at international or domestic level. Alternatively, States may have positive obligation to ensure that corporations do not commit any breaches of fundamental norms.

-Jernej Letnar Cernic

Thursday, March 15, 2007

Fair Trial or Water Boarding?

It emerged today that Khalid Sheikh Mohammed confessed to the killing of American journalist Daniel Pearl, who was killed in Pakistan in 2002. Khalid Sheikh Mohammed, who was apprehended by the American forces in Pakistan in 2003, confessed before a military tribunal at the Guantánamo Bay, Cuba - the centre where the US keeps more than 400 detainees awaiting trials before the special military tribunals the Bush administration set up in wake of the 9/11 atrocities. Mohammed had previous confessed to planning the attacks of 9/11. In addition to this, Mohammed has confessed to have taken responsibility for the 2002 Bali bombings and has made plans for a line of other terrorist attacks.

Pearl was working as a journalist for the Wall Street Journal in Pakistan in 2002 when he was kidnapped and later beheaded. Images of the beheading were distributed by the kidnappers on the internet and made for gruesome viewing of Pearl’s last minutes.

While the heinous crimes of 9/11 and Pearl's beheading are not in any way disputed, Mohammed's confessions raise questions regarding the methods that might have been used to obtain his confession. It has previous been alleged that Mohammed has been the victim of torture, including the well-known method of water boarding - methods which the use of Vice-President Dick Cheney has referred to as 'no-brainers'. Can we trust that his confessions are legitimate? Is it more reasonable to assume they have been obtained by the use of torture? And what fait awaits Mohammed before the Military Tribunals?

Here is a link to the story in the NY Times

And the BBC’s coverage

Friday, March 09, 2007

After Scooter Libby, a Topless Bather is Convicted

Most States have some archaic laws on their books. Some States choose to enforce them. Malta, an otherwise liberal democracy with European ideals, is one of the latter group. The Times of Malta today reports about a human rights appeal in this case.

The facts of the case are quite straightforward. On 20th August 2006 a young lady went to one of Malta's many sandy beaches and bathed 'sans bikini top'. That is pretty much it.

I presume that she was surprised to find herself accused of a contravention in terms of Article 338 of the Criminal Code. That article, introduced in 1933, provides that 'every person is guilty of an offence against public order the harbours, on the seashore, or in any other public place, exposes himself naked or is indecently dressed.' The Court of Magistrates found the accused guilty. She was discharged on the condition that she did not commit any other offence within a week.

She appealed the judgment on the grounds that it was in breach of Article 7 of the ECHR:

No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

Since the offence is a contravention, not a crime, there is no requirement of a mens rea. The actus reus will suffice. The appellant argues that whether or not one is prosecuted depends on the prosecutor's appreciation (no pun intended) of the facts. Worse still, a conviction depends on the forma mentis of the judge. There is no a priori definition of whether or not one is indecently dressed, unlike the offence of public nudity which is also provided for in the relevant article of the Code. Accordingly, the appellant argues that the offence did not exist when it was purportedly committed. The prosecution argues that it is incorrect to propose that every offence that requires some degree of interpretation falls foul of Article 7 of the ECHR.

We await the judgment on the human rights matter with interest and some amusement. Tax payers might not find the expenditure of public funds and time as entertaining. I assume that the appellant is appalled.

Thursday, March 08, 2007

The Abolition of the House of Lords: Confining history to history

The ongoing constitutional reform in the UK took an unexpected but welcome turn yesterday when the House of Commons voted to replace the House of Lords with a completely elected second chamber.

Britain was a pioneer of democratic reform in centuries past but resistance to change has left this State with an Attorney General who straddles all three branches of government, a legislative chamber that is composed of political appointees and an electoral system that guarantees perverse results to the detriment of any semblance of proportional representation.

Although it isn’t clear that yesterday’s Commons vote will bear fruit, it seems like the ball is rolling. The Lords will resist the measure but the transformation of this State looks inevitable.

Britain is far from achieving an acceptable constitutional settlement but there is an unprecedented consensus for modernisation. The coming years should be interesting from a constitutional perspective. The current level of public scrutiny may ensure that politicians continue to bring about thoughtful reform to a State that is, perhaps, too attached to its traditions.

Wednesday, March 07, 2007

Scooter Libby Convicted

"Are you ready for that great Atomic Power?"
-Charlie Louvin

I. Lewis Libby, aka "Scooter" was convicted yesterday for lying to a grand jury and FBI agents. Libby was Vice-President Cheney's chief of staff. The New York Times has a story here. Slate has an excellent feature as well. NPR has audio here, where you can hear interviews from many of the players involved.

This is a conviction stemming out of the leak of the identity of CIA agent Valerie Wilson, after her husband diplomat Joseph Wilson was sent to Nigeria to look into claims that Iraq had been attempting to purchase "yellow cake", a substance which could be refined and made into a nuclear weapon. He found no evidence that Iraq was attempting to acquire the material, and when President Bush made such claims at the state of the union address, he publicly criticized the claims. In response, the identity of his wife, Valerie Wilson, was disclosed to the press.

Libby was convicted of lying to the jury, not of the substantive charge of revealing Wilson's identity. It would be nice to know what the administration thinks of the conviction, however they have refused to comment, claiming that because Libby has appealed they cannot comment on an ongoing legal investigation.

The message is very clear, do not lie to a grand jury.

Patrick J. Fitzgerald, the Federal prosecutor said that "it’s sad that we had a situation where a high-level official, a person who worked in the Office of Vice President, obstructed justice and lied under oath." We should remember that Fitzgerald was a Republican appointee. It would be too easy to lump all Republicans in with the shady dealings of the current administration.

This is yet another setback for the Bush administration, after the deteriorating situation in Iraq, the firing of a number of other US prosecutors to groom others for political positions, the deplorable situation in US military hospitals, and now a conviction related to the administration's build-up to the Invasion of Iraq in 2003.

Though there might be questions whether Karl Rove or even Cheney should have been investigated as well, it seems Libby will be the only conviction. Curiously, Richard Armitage revealed Valerie Wilson's identity to the press, though because he cooperated with the investigation, no charges were brought. Though this might seem like a conviction on a technicality, we should remember that once you open the door to a federal investigation, prosecutors have a number of potential charges they can choose from. Al Capone was convicted of tax fraud, and Martha Stewart was convicted of lying to investigators as well.

Sentencing will take place later this year. Though the maximum for the four offenses is 30 years, federal sentencing guidelines dictate that he would probably serve between 1 and 3 years. Of course, one wonders if President Bush will simply pardon Libby.

What do some of you guys think of all this mess? What is the European perspective?