Corporate Accountability in the Context of Transitional Justice

Sabine Michalowski

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317577485
• Edition: 1
• Topic: Betriebswirtschaft
• Subtopic: Organizational Behavior

Corporate Accountability in the Context of Transitional Justice explores how corporations can be held accountable for their role in past human rights violations when a country is making a transition from conflict or repression to peace and democracy. It breaks new ground in theorizing the linkages between the areas of transitional justice and corporate accountability and analyzing problems frequently arising where the two fields meet in practice, for example where the role of corporations in past human rights violations is examined by truth and reconciliation commissions or in the course of litigation.

The book provides an overview of the current trends in law and in legal and political discussion relating to both areas, as well as in-depth analysis of how tools of corporate accountability and transitional justice can complement each other in order to achieve the best outcomes for bringing justice to victims and lasting peace to societies. The authors bring extensive experience from diverse professional backgrounds and jurisdictions to provide the first sustained attempt to address this link. The book will be of interest to scholars, practitioners, policymakers and activists working in the areas of transitional justice; corporate accountability; and business and human rights.

Part 1 Transitional Justice and Corporate Accountability: Exploring Current Trends and Potential Linkages

Chapter 1 Linking Transitional Justice and Corporate Accountability

Clara Sandoval with Leonardo Filippini and Roberto Vidal

DOI: 10.4324/9780203338094-2

Introduction

Armed conflicts and repressive regimes constitute a potential threat to the international community since they have damaging spillover effects, such as the commission of massive atrocities, the migration of people, the expansion of terrorism, arms production and proliferation, drugs proliferation, organized crime, environmental damage, poverty, and lack of development. This threat makes it imperative to help states in such situations undergo important political and social change that enables them to build systems where the rule of law, democracy, and human rights protection can flourish. Transitional justice is one of the mechanisms designed to achieve such political and social changes. Nevertheless, if it fails to address all causes of conflict and repression, a relapse into conflict is the most likely consequence.¹

¹ P. Collier, A. Hoeffler and M. Söderbom, ‘On the duration of civil war’, 41 Journal of Peace Research 253–273 (2004); and P. Collier and A. Hoeffler, ‘Greed and grievance in civil war’, 56 Oxford Economic Papers 563–595 (2004).

Addressing the causes and consequences of conflict and repression requires considering the role of all actors that caused or contributed to the commission of mass atrocities—even if they are not state actors, as in the case of corporations. Nevertheless, as the chapters in this book demonstrate, whether or not corporations should be included in the work of transitional justice mechanisms is a much debated question to which there is no clear-cut answer. Indeed, the issue requires careful consideration. First, transitional justice is a field with particular goals, mechanisms, and processes whose adequacy for dealing with corporations needs to be examined, and cannot be taken for granted. Second, when using transitional justice mechanisms to hold corporations to account, consideration must be given to the role of other mechanisms that deal with corporate accountability, such as arbitration tribunals, the regulation of corporations, and economic agreements.

Therefore, to begin the discussion about the possible linking of transitional justice with corporations, and the extent to which doing so is desirable, this chapter starts by introducing the concept of transitional justice and providing an overview of its different components (justice, truth, reparations, and institutional reform). It then notes some of the key challenges faced by those working in this area when considering the responsibility of corporations in the commission of serious crimes or their possible role in the aftermath of mass atrocities and in social reconstruction projects. The chapter concludes by challenging a narrow understanding of transitional justice and its processes in order to provide some fertile terrain for the discussions taking place in the rest of this book.

Defining transitional justice

The term “transitional justice” was coined in 1995, as a result of the publication of Transitional Justice: How Emerging Democracies Reckon with Former Regimes, edited by Neil Kritz.² Today, almost two decades later, the concept of transitional justice has influenced the legal, social, and political discourse of societies undergoing fundamental social change, as well as that of the international community. The key assumption in such periods of change is that any state where mass atrocities have taken place should engage in processes (judicial and non-judicial) that provide justice for past crimes, peace, a democratic society, and an established rule of law.³

² N. Kritz, Transitional Justice: How Emerging Democracies Reckon with Former Regimes, United States Institute for Peace Press, Washington DC, 1995. ³ N. Roht-Arriaza and J. Mariezcurrena, Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, Cambridge University Press, New York, 2006; R. Teitel, Transitional Justice, Oxford University Press, Oxford, 2001; M. Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, Beacon Press, US, 1998; P. Arthur, ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice’, 31 Human Rights Quarterly 321–367 (2009); C. Turner, ‘Delivering Lasting Peace, Democracy and Human Rights in Times of Transition: The Role of International Law’, 2 International Journal of Transitional Justice 126–151 (2008).

This assumption underpins the UN's working definition of transitional justice. For the UN, transitional justice refers to “the full set of processes and mechanisms associated with a society's attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation.”⁴ This definition, all-encompassing as it seems, leaves important issues unresolved. Among them are the relationship between international law and transitional justice; whether countries that move from authoritarian regimes toward democracy, but where gross human rights violations did not take place, should also engage with transitional justice processes; whether a transition can take place only after conflict or oppression has ceased to exist; how to come to terms with large-scale past abuse; and what mechanisms should be used.

⁴ UN Secretary General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, U.N. Doc. S/2004/616, 24 August 2004, p.4.

Other definitions of transitional justice complement and enrich the one used by the UN. Naomi Roht-Arriaza, for example, defines transitional justice as the “set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law.”⁵ According to this concept, transitions can take place only when conflict or repression has ended, and transitional justice processes could include abuses of all human rights, as opposed to violations of just certain civil and political rights. This concept was not followed by stakeholders involved in transitional justice processes in Argentina, Chile, and South Africa, for example, where a choice was made to limit the transitional justice process to serious and systematic violations of civil and political rights.⁶

⁵ Roht-Arriaza and Mariezcurrena, n.3, p.2. ⁶ In Argentina, for example, the focus was on disappearances (Comisión Nacional sobre la Desaparición de Personas (CONADEP), Nunca Más, 1984); in Chile, it was on disappearances, killings, and torture (Comisión Nacional de Verdad y Reconciliación, RETTIG Report, 1991, p. XIX and Decreto Supremo N355/1990, article 1); and in South Africa, it was on killing, abduction, and torture or severe ill-treatment (South African Truth and Reconciliation Commission, Final Report, Volume 1, Chapter 2, 1998, p.29).

Other definitions prefer to focus on the set of actors behind such processes rather than on the substance of transitional justice. Paige Arthur, for example, defines transitional justice as a “field” constituted by “an international web of individuals and institutions, whose internal coherence is held together by common concepts, practical aims, and distinctive claims for legitimacy,”⁷ most of which are articulated as a result of the need to resist and respond to mass atrocities in contexts of significant political change. In contrast, others, like Christine Bell, challenge the idea that transitional justice is a “field,” preferring to think of it as a “label or cloak that aims to rationalize a set of diverse bargains in relation to the past as an integrated endeavor, so as to obscure the quite different normative, moral and political implications of the bargains.”⁸ For her, understanding transitional justice as a field denies its very nature.

⁷ Arthur, n.3. p.324. ⁸ C. Bell, ‘Transitional Justice, Interdisciplinarity and the State of the Field or Non-Field’, 3 International Journal of Transitional Justice 5–27 (2009), p.6.

Despite important differences among these concepts, they all highlight the fact that transitional justice implies a particular set of approaches to deal with the legacy of gross human rights violations, serious breaches of international humanitarian law and international crimes. Some of these approaches are driven by the international law paradigm, meaning international human rights law, international humanitarian law, international criminal law, and international refugee law, which provide “the normative foundation” of transitional justice.⁹ Nevertheless, not all approaches to transitional justice accept this normative basis.¹⁰ In any case, and regardless of the approach that is followed, there appears to be some consensus about the role of transitional justice as aiming to deal with the legacy of mass atrocities, achieving justice, and moving toward a democratic society where the rule of law and human rights are respected. This guiding principle, which provides some flexibility, has given rise to different processes and mechanisms.

⁹ UN Secretary General, n.4, and OHCHR, Analytical Study on Human Rights and Transitional Justice, U.N. Doc. A/HRC/12/18, 6 August 2009, p.5. ¹⁰ Bell, n.8.

Processes of transitional justice

Four processes are believed to constitute the core of transitional justice, even if there is disagreement about what each of them entails and about the relationship that should exist between them. Usually, a transition encompasses a justice process, to bring perpetrators of mass atrocities to justice and to punish them for the crimes committed; a reparations process, to redress victims of atrocities for the harm suffered; a truth process, to fully investigate atrocities so that society discovers what happened during the repression or conflict, who committed the atrocities, and where the remains of the victims lie; and an institutional reform process, to ensure that such atrocities do not happen again.¹¹

¹¹ OHCHR, n.9, p.9.

In addition to these core processes, others have become part of the transitional justice agenda: primarily, national consultations, which have been strongly recommended by the Office of the High Commissioner for Human Rights (OHCHR) and the UN Peacebuilding Commission, which emphasize that “meaningful public participation” is essential for the success of any transition.¹² National consultations should take place in relation to different aspects of transitional justice and nowadays are considered a sine qua non of the...

Table of contents

• Cover Page
• Halftitle Page
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Contributors
• Introduction
• PART I Transitional Justice and Corporate Accountability: Exploring Current Trends and Potential Linkages
• PART II Linking Transitional Justice and Corporate Accountability: Examples and Case Studies
• Conclusion
• Index