Unfinished business: corporate accountability and ESCRS in transitional justice processes.

1 Unfinished Business: Corporate accountability and ESCRs in transitional justice processes. PhD submitted by Laura García Martín Supervisors: Profa. Dra. Carmen Márquez Carrasco and Prof. Dr. Wouter Vandenhole Sevilla- Antwerpen, June 2018. 2 (Intentionally left in blank) 3 ´El derecho sirve para la vida o no sirve para nada´ Legaz y Lacambra. 4 A la memoria de mi abuela Valle, su alegría, su fuerza y su entusiasmo vivirán siempre en mí. 5 ACKNOWLEDGEMENTS Anyone might think that writing the acknowledgments is the easiest part of the thesis. However, it seems to me quite difficult to condense in a couple of paragraphs the immense gratitude I owe to all those who, in one way or another way, have contributed to develop this project. This thesis would not have been certainly possible without the continuous support and encouragement of my two supervisors, Professor Carmen Márquez Carrasco and Professor Wouter Vandenhole. They believed in me and in my project since its early stages and provided me constant intellectual guidance throughout the whole process. I will never be able to express my gratitude to them. I am also grateful to Professor Olga Martín Ortega and Professor Stephan Parmentier, who helped me to ground my thoughts when all that I knew was that I wanted to work on ‗private sector and peace issues‘. I extend my gratitude to the whole Department of International Public Law and International Relations at University of Seville for making me feel part of it all these years. I am also very grateful to the Law and Development Research group at University of Antwerp for always welcoming and treating me as being at home. I was fortunate to meet many altruistic and welcoming people during my fieldwork in Argentina. Professor Gustavo Beade, who rapidly accepted my application as a visiting scholar and who gave me the opportunity to present my ideas in an organised seminar. Professor Victoria Basualdo, Professor Maria Laura Böhm and Professor Marcelo Ferreira, who always found time in their tight schedule to discuss with me about history, politics and law. I am also grateful to all those I interviewed, accepting and receiving me to tell me their stories and experiences. Thank you all for making my experience in Argentina unforgettable. I want to thank my close friends and my doctoral colleagues who have always listened, grounded and supported me in ‗crisis times‘. Amongst all them, Inés deserves a special mention for being there for me since we were three. Having such kind and 6 great people surrounding me makes me feel very lucky. Certainly, you are the family that I have chosen. I feel also very lucky of having a family who loves me wholeheartedly. My grandparents, who taught me what is really important in life, thank you for being such compassionate and loving persons. My mother and my father have shown me how to be dedicated and hardworking while helping me to become a better person. Mum and dad, I owe all I am to you. Thank you for believe in me more than myself and encouraging and supporting me unconditionally. My little brother Pablo, who has grown into a kind and young man, thank you for being my confidant and for making me always smile with Blacky after a hard day. I will always be such a proud older sister. Finally, Antonio, thank you for being always there for me, for lovingly listening me endlessly talking about my work and cheering me on every step of the process. I could not have imagined a better partner in life. It seems quite clear now that the journey has been as important as the outcome… 7 Abstract While corporations often develop their activities in territories affected by conflict or authoritarianism, human rights abuses in which companies are involved in such contexts are not usually conceptualised as part of transitional justice programmes. Instead, transitional justice has been traditionally focused only on State-sponsored violence. Similarly, transitional justice programmes have ignored violations of economic, social and cultural rights, largely focusing on breaches of civil and political rights and bodily integrity violations. Given that economic actors, such as multinational corporations, gather more power and strength and the division between State and non- State actors under international law is eroded, transitional justice is being forced to address corporate-related human rights violations. Furthermore, recognising the role of all actors and the whole spectrum of human rights violated in such contexts is crucial to properly address the root causes of violence and conflict, as well as to contribute to sustainable and positive peace. This thesis explores theoretical and practical challenges of including corporate accountability for human rights abuses in transitional justice processes, as well as discussing the suitability of addressing economic, social and cultural rights violations within the existing transitional justice mechanisms. Finally, this work aims to provide a critical assessment on those issues through the lens of a real case study: the Argentinian transitional justice process. Resumen Es común que las corporaciones desarrollen sus actividades en territorios afectados por conflictos o regimens autoritarios. Sin embargo, los abusos contra los derechos humanos en los que las empresas están involucradas en tales contextos, no se conceptualizan generalmente como parte de los programas de justicia transicional. Tradicionalmente, dichos programas han concentrado sus esfuerzos en las violaciones causadas por los Estados. Asimismo, la justicia de transición históricamente no ha prestado atención a las violaciones de los derechos económicos, sociales y culturales, centrándose principalmente en abusos de los derechos civiles y politicos y en 8 violaciones relacionadas con la integridad física. Dado que los actores económicos, como las corporaciones multinacionales, gozan en la actualidad de mucho poder poder e influencia, y la division entre actores estatales y no estatales bajo el derecho internacional está siendo erosionada por este motivo, resulta oportuno y necesario que la justicia de transición aborde las violaciones de los derechos humanos en las que las empresas están involucradas. Además, reconocer el papel de todos los actores y el espectro completo de los derechos humanos violados en tales contextos resulta crucial para examinar de manera adecuada las causas profundas de los conflictos, así como para contribuir a una paz positiva y sostenible. Esta tesis explora los desafíos teóricos y prácticos de incluir la rendición de cuentas a las empresas por abusos de los derechos humanos en los procesos de justicia transicional, así como examina la idoneidad de abordar las violaciones de los derechos económicos, sociales y culturales con los mecanismos de justicia de transición existentes. Por último, este trabajo tiene como objetivo proporcionar una evaluación crítica sobre dichos temas a través de un caso de estudio real: el proceso de justicia transicional en Argentina. Abstract Bedrijven ontplooien vaak hun activiteiten in gebieden die zijn getroffen door conflicten of waar autoritaire regimes heersen. Toch worden mensenrechtenschendingen door bedrijven in dergelijke contexten zelden geconceptualiseerd als onderdeel van transitional justice programma‘s. Traditioneel zijn transitional justice programma‘s enkel gericht op door de staat ondersteund geweld. Tegelijkertijd hebben transitional justice programma's schendingen van economische, sociale en culturele rechten veeleer links laten liggen en zich grotendeels gefocust op schendingen van burger- en politieke rechten en schendingen van de lichamelijke integriteit. Gezien economische actoren zoals multinationale ondernemingen meer macht en invloed verkrijgen en de scheiding tussen Statelijke en niet-Statelijke actoren onder internationaal recht wordt uitgehold, wordt het veld van transitional justice gedwongen om zich ook te richten op bedrijfsgerelateerde mensenrechtenschendingen. Bovendien is het cruciaal om de rol van alle actoren en het hele spectrum van geschonden mensenrechten in dergelijke 9 contexten te erkennen om de grondoorzaken van geweld en conflicten grondig aan te kunnen pakken en bij te dragen aan duurzame en positieve vrede. Dit proefschrift onderzoekt de theoretische en praktische uitdagingen om verantwoording door bedrijven voor mensenrechtenschendingen te integreren in transitional justice processen, alsook bespreek het de geschiktheid van de bestaande transitional justice mechanismen voor het behandelen van economische, sociale en culturele schendingen. Tot slot, beoogt dit werk een kritische beoordeling van deze uitdagingen te maken aan de hand van een case study over het Argentijnse transitional justice proces. 16 (Intentionally left in blank) 17 INTRODUCTION Background Countries affected by armed conflict and authoritarian regimes have frequently suffered from gross human rights violations. On their road to achieve positive peace afterwards, States usually pass through a period of transition in which political and social changes take place, so the rule of law, democracy, and human rights protection and respect can flourish. These achievements would also definitely contribute to protecting international peace and security. In such contexts, transitional justice comes into play. The focus of transitional justice has progressively expanded from human rights accountability in democratic transitions to a broader conception of transition, involving a variety of legal regimes, mechanisms and justice theories. While the field of transitional justice now constitutes a set of studies that involve a wide range of disciplines, 1 its primary goal is still to address the legacies of past violence and human rights abuses and contribute to reconciliation through accountability. 2 Transitional justice strategies were not originally conceived as a tool to achieve peace, but rather they were designed to stabilise social relations. 3 However, this does not mean that they did not contribute to peace processes. 4 Indeed, the aims of transitional justice have shifted from their earlier accountability goal to the goal of building and preserving peace. 5 Therefore, it has been shown that transitional justice possesses peacebuilding 1 Such as law, anthropology, political science, development studies, economics, education, ethics, history, philosophy, psychology and sociology. See for instance Bell, C., ‗Transitional Justice, Interdisciplinarity and the State of the ‗Field‘ or ‗Non-Field‘’, The International Journal of Transitional Justice, vol. 3, issue 1, 2009, pp.5–27. 2 See for instance, Freeman, M., ‗Transitional Justice: Fundamental Goals and Unavoidable Complications‘, Manitoba Law Journal, vol. 28, no.1, 2000, pp. 114-116; Roht-Arriaza, N. and Mariezcurrena, J., Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, Cambridge University Press, 2006, p.2. 3 De Grieff, P., ‗Algunas reflexiones acerca del desarrollo de la Justicia Transicional‘, Anuario de Derechos Humanos, Centro de Derechos Humanos de la Facultad de Derecho de la Universidad de Chile, 2011, pp. 39. 4 In fact, there is no long-term sustainable peace that does not redeem claims of justice. Ibid. 5 See Teitel, R., Transitional Justice Genealogy, Harvard Human Rights Journal, 2003,vol. 16, p. 80. 18 functions. 6 Peacebuilding initiatives aim to promote sustainable peace and cover a wide range of multidimensional tasks, ranging from the disarming of warring factions to the rebuilding of political, social, economic, and judicial institutions. 7 While analysing the whole spectrum of peacebuilding measures is beyond the scope of this thesis, this author assumes that transitional justice initiatives can be framed within the general field of peacebuilding. Therefore, the final and long-term aim of transitional justice would be facilitating the road to achieve sustainable and positive peace. According to Galtung, the notion of positive peace implies not only the absence of violence, but also the restoration of relationships, the creation of social systems which cover the needs of the population and the constructive resolution of conflicts. 8 The goal for positive peace is, therefore, to address deeply rooted causes of conflict so that conditions for violent conflict would be resolved. 9 Consequently, transitional justice strategies should address the root causes of conflict or repression and, to this end, it is fundamental to consider the role of all actors, as well as the whole spectrum of human rights violations committed. 10 Corporations often operate in countries affected by conflict or repression. However, their involvement in human rights violations has not been usually conceptualised as part of transitional justice. 11 This is largely explained by the fact that 6 See for instance, Sriram, C.L, García-Godos, J., Herman, J., and Martín-Ortega, O., Transitional Justice and Peacebuilding on the Ground. Victims and Ex-combatants’, Routledge, 2013. See also, Peacebuilding initiative, ‗Transitional Justice: Transitional Justice & Peacebuilding Processes‘, 3 February 2009. Available at http://www.peacebuildinginitiative.org/indexf0e6.html?pageId=1883#_ftn55, accessed 2 February 2018. 7 See UN Peacebuilding Support Office, ‗Peacebuilding & The United Nations. What Is Peacebuilding?‘ http://www.un.org/en/peacebuilding/pbso/pbun.shtml, accessed 2 February 2018. 8 Galtung differentiates between negative and positive peace, arguing that the first one simply refers to the absence of violence, as something negative/undesirable which has stopped. He also States that peace theory is intimately connected not only with conflict theory, but equally with development theory. See Galtung, J., Theories of Peace. A Synthetic Approach to Peace Thinking, International Peace Research Institute, 1967, pp. 12-17. Available at https://www.transcend.org/files/Galtung_Book_unpub_Theories_of_Peace_A_Synthetic_Approach_to_P eace_Thinking_1967.pdf, accessed 2 February 2018. See also for a brief analysis Galtung, J., ‗Violence, Peace, and Peace Research‘, in Journal of Peace Research, vol. 6, no. 3, 1969, pp. 167-191. 9 See for instance, Sandole, D. J. D., ‗Typology‘, in Cheldelin, S., Druckman, D. and Fast, L. (Eds.), Conflict: From Analysis to Intervention, Continuum, 2003, pp.39-45. 10 Including non-State actors such as corporations and ESCRs violations. 11 Michalowski, S., ‗Introduction‘, in Michalowski, S. (ed.), Corporate Accountability in the Context of Transitional Justice, Routledge, 2013, p.1 19 transitional justice has been traditionally focused on State-sponsored violence. Nevertheless, recognising the role of business in those situations of conflict and repression is crucial to properly address the root causes of violence and the possible links of complicity in human rights violations. Private economic actors, and particularly multinational corporations, today enjoy unprecedented power and influence and the division between State and non-State actors under international law is eroded. Consequently, transitional justice is being forced to address corporate-related human rights violations in such circumstances. 12 Indeed, States are no longer the only actors involved in human rights violations, particularly in conflict-affected areas or countries under authoritarian regimes. These other non-State actors, including corporations, may operate in ways that significantly impact on individuals‘ enjoyment of human rights. However, abuses in which companies have been involved have frequently enjoyed impunity. Corporate accountability for human rights abuses has been left normatively undetermined at international level. Debates around whether to penalise the company‘s managers or directors or the corporation itself are still open. While individuals may be prosecuted and punished, this can have little effect on the corporate behaviour, which could continue its misconduct. Prosecuting individuals therefore may not deter the behaviour of the corporation as a whole. Conversely, prosecuting a corporation may not deter an individual's criminal conduct. Thus, although a parallel approach to this issue would be necessary, this author agrees with Ramasastry that penalising the company itself may provide a greater deterrent for corporations than the isolated prosecutions of individuals. 13 However, as this work specifically analyses in chapter three, holding corporations accountable is not easy task. For the purpose of this thesis, the term ‗accountability‘ refers to the general obligation to ‗answer‘, implying the condition of being responsible for certain actions. 14 12 Ibid. p.2. 13 Ramasastry, A., ‗Corporate Complicity: From Nuremberg to Rangoon –An examination of forced labor cases and their impact on the liability of Multinational Corporations‘, Berkeley Journal of International Law, vol. 20, issue I, 2004, p.96. 14 See for instance, Noalkaemper, P.A., and Curtin, D., ‗Conceptualizing Accountability in International and European Law‘, Netherlands Yearbook of International Law, vol. 36, no.1, 2005, pp. 3-20; Kool., R.S.B., ‗(Crime) Victims‘ Compensation: The Emergence of Convergence‘, Utrecht Law Review, vol. 10, no. 3, 2014, pp.14–26. However, as Brunée notes, ‗notwithstanding its increasingly frequent invocation 20 Similarly, ‗responsibility‘ is used throughout this chapter according to the meaning given to it in Public International Law. Thus, this work understands ‗responsibility‘ as for a wrongful conduct according to international law on responsibility. 15 Consequently, responsibility refers to secondary norms through which corporations can be held accountable for breaches of the primary norms. 16 Likewise, the term ‗liability‘ is used to refer to cases in which accountability for human rights abuses can be demanded by legal means, and therefore, litigated in the corresponding courts. 17 Progressive developments in the field of business and human rights, such as the adoption in 2011 of the UN Guiding Principles, are increasingly addressing corporate accountability concerns. In fact, the UNGPs recognised that corporations are more likely to be involved in human rights violations in those high-risk situations, although they do not specifically refer to transitional justice processes. As pointed out by Sandoval and others, the UNGPs provide a window of opportunity for linking corporate accountability with transitional justice. 18 Furthermore, with the endorsement of the UNGPs, the Council provided the first authoritative guidance on how companies should meet their human rights responsibilities. In conflict settings, the UNGPs (Principle 7) recommend a high standard of care because of the greater risks, which is intimately connected to States‘ duty to protect. 19 However, it is precisely under armed conflicts that States may be unable to provide a high level of protection, generally due to the lack of effective control of the territory. Equally, gross human rights violations do occur in the contexts of oppressive and authoritarian regimes, where many challenges also arise regarding corporate accountability. by international lawyers, the concept of ―accountability‖ has not acquired a clearly defined legal meaning‘. Brunnée, J.,‗International legal accountability through the lens of the laws of State responsibility‘, Netherlands Yearbook of International Law, vol. 36, no.1, 2005, p.22. 15 Responsibility thus primarily refers to the substantive aspect of having to act diligently. 16 By contrast, the term ‗obligation‘ refers to the primary norms by which actors are legally bound. 17 This term will be mainly used at section 3 of this chapter, regarding domestic criminal law and civil law of remedies regimes. attaching legal consequences to unlawful behaviour, thereby implying a legal obligation to provide for redress 18 Sandoval, C., Filipini, L., Vidal, R., ‗Linking Transitional Justice and Corporate Accountability‘, in Michalowski, S. (ed.), Corporate Accountability in the Context of Transitional Justice, op. cit., p. 25. 19 Mares, R., ‗Corporate and State Responsibilities in Conflict-Affected Areas‘, Nordic Journal of International law, vol. 83, no. 3, 2014, p.298. 21 This thesis will not discuss or refute the central and primary role of States as subjects of international law and as key actors in transitional justice processes. However, this study seeks to find cross-cutting elements of corporate accountability for human rights violations and transitional justice, looking for the common ground in which both areas could work connected. In this sense, although international attempts to regulate corporate activities have been primarily focused on multinationals/transnational companies, 20 this thesis will use the concept of corporations in a general and broad manner, without distinctions regarding their size or whether they operate at the national or transnational level, or are State or privately owned. Given that corporations are not primary subjects of Public International Law, they originally can only be considered as accomplices of human rights violations, as only States are primary subjects of Public International Law. Thus, corporate involvement in violations of international human rights law is generally categorised as complicity. 21 In addition, this author departs from the premise that every single transition is unique and shaped by its particular political and social context. While past measures and mechanisms could inspire and be used in future transitional justice processes, they will finally have to be tailored to the specific country in which they operate. Otherwise, the effectiveness of transitional justice mechanisms would be probably undermined by the different and specific situations which they could be dealing with. The economic and social dimension of transitional justice has been largely ignored in favour of traditional emphasis on violations of civil and political rights. Socioeconomic elements of conflict or authoritarianism have been traditionally 20 Multinationals or transnational corporations are characterised by being based or registered in one country but having affiliates or doing business in other countries, so they have a transnational character in their operations. In fact, the UN Human Rights Council resolution to elaborate an international binding instrument is intended to regulate this sort of business entities. See Human Rights Council, A/HRC/26/L.22/Rev.1, 25 June 2014, p.1, footnote 1. Available at https://documents-dds- ny.un.org/doc/UNDOC/LTD/G14/064/48/PDF/G1406448.pdf?OpenElement accesed 2 February 2018. 21 Some authors, such as Clapham, argue that non-State actors do already have international human rights obligations, but there is still a lack of academic consensus. See for instance, , Clapham, A., Human Rights Obligations of Non State Actors, Oxford University Press, 2006; Clapham, A., ‗Human Rights Obligations for Non-State-Actors: Where are we now?‘ in Lafontaine, F., and Larocque, F., Doing Peace the Rights Way: Essays in International Law and Relations in Honour of Louise Arbour, Intersentia, 2017. 22 relegated to the background issues. 22 Socioeconomic grievances however often appear as relevant aspects to the past violent dynamics, so considering them can potentially provide a deeper understanding of the root causes of conflict, as well as helping to reduce the chances of recurrence in the future. 23 While early transitional justice processes mainly focused on criminal prosecutions for bodily integrity violations, it has been shown/demonstrated that these violations of civil and political rights (herein CPRs) are intrinsically linked to violations of economic, social, and cultural rights (herein ESCRs). 24 Indeed, the consequences of the latter violations can be infringements on the most basic rights, such as the right to life. Thus, paying attention to these elements would be desirable for accountability purposes and to achieve a sustainable peace. Furthermore, as corporations‘ main domain of activity is economic, it cannot be denied that there are essential links between their activities and the enjoyment of ESCRs. While using the abbreviation of the usual grouping of economic, social and cultural rights (ESCRs), this study‘s is primary focus is on economic and social rights violations. This author is aware of the indivisibility of human rights, including ESCRs. However, this approach is based on the assumption that economic and social rights are most closely aligned to projects of development and they are consequently, often argued 22 See for instance, Sharp, D.N., ‗Addressing Economic Violence in Times of Transition: Toward a Positive-Peace Paradigm for Transitional Justice, Fordham International Law Journal, vol.35, 2012, p. 780; Calvet Martinez, E., 'La exigibilidad de los derechos económicos, sociales y culturales en situaciones de post-conflicto y en procesos de justicia transicional', in Bonet Pérez, J. and Alija Fernández, R.A., La exigibilidad de los derechos económicos, sociales y culturales en la Sociendad Internacional del siglo XXI: una aproximación jurídica desde el Derecho internacional, Marcial Pons, 2016, p.199. 23 Indeed, many conflicts and dictatorial regimes are often fueled by socioeconomic injustices, and frequently involve ESCRs violations. Szoke-Burke, S., ‗Not Only ‗Context‘: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights‘, op. cit., p.469-470: see also Muñoz Nogal, E. and Gómez Isa, F., ‗¡Pan, Libertad, Justicia Social! Las revueltas populares de Túnez y Egipto y la defensa de derechos económicos y sociales‘, in Bonet Pérez, J. and Alija Fernández, R.A., La exigibilidad de los derechos económicos, sociales y culturales en la Sociendad Internacional del siglo XXI: una aproximación jurídica desde el Derecho internacional, op.cit. pp.219-241. 24 Arbour, L., ‗Economic and social justice for societies in transition‘, Second Annual Transitional Justice Lecture hosted by the Center for Human Rights and Global Justice at New York University School of Law and the International Centre for Transitional Justice. New York University Law School, 25 October, 2016. p.4. A transcription of her speech can be found at http://chrgj.org/wpcontent/uploads/2012/07/WPS_NYU_CHRGJ_Arbour_-Final.pdf accessed 3 February 2018. 23 to be outside the bounds of transitional justice. 25 This thesis seeks to review, analyse and find out the suitability of such arguments. Economic and social conditions are frequently linked to human rights abuses, often constituting a cause, means and/or consequence of conflict and authoritarianism. 26 Similarly, the economic legacy of authoritarian regimes and conflict-ridden societies will obviously influence the chances of establishing a stable democracy afterwards. As Hecht and Michalowski noted, economic stability might play an important role for the success of transitional justice. 27 Including the assessment of socioeconomic elements as well as ESCRs violations as an issue for transitional justice might serve the purpose of establishing a more comprehensive understanding of the root causes of past human rights violations, addressing, for instance, the potential links between economic actors (and even economic policies) and conflict or authoritarianism. Although the notion of progressive realisation of ESCRs constitutes a key aspect of States‘ obligations in this field, not all the obligations regarding ESCRs are progressive. Instead, States also have immediate obligations. 28 In this sense, this work will take labour rights as reference of inclusion of ESCRs in transitional justice processes, particularly from the lens of specific labour rights, namely the right to form and join trade unions and the right to collective bargain. This selection is based on two main reasons: on the one hand, because State obligations with regard to these rights can be implemented immediately, so they are not originally subject to progressive 25 See for instance Schmid, E., and Nolan, A., ‗‘Do No Harm‘? Exploring the Scope of Economic and Social Rights in Transitional Justice‘, The International Journal of Transitional Justice, vol. 27, no. 3, 2014, pp. 362-382; see also Szoke-Burke, S., ‗Not Only ‗Context‘: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights‘, Texas International Law Journal, vol. 50, no. 3, 2015, p. 468. 26 Hecht, L. and Michalowski, S., ‗The Economic and Social Dimensions of Transitional Justice‘, Transitional Justice Network, 2012, p. 1. Full text Available at https://www1.essex.ac.uk/tjn/documents/TheeconomicandsocialdimensionsofTJ.pdf accessed 3 February 2018. 27 Ibid. p.4. 28 The Committee has clearly claimed that States also have immediate obligations such as the obligation to take deliberate, targeted and concrete steps towards the realization of these rights, the prohibition of discrimination and the prohibition to adopt retrogressive measures. See Committee on Economic, Social and Cultural Rights, general comment No. 3 (1990) on the nature of the State parties‘ obligations, paras. 1–5 and 10. 24 realisation, 29 and they do not require significant State investment or resources to allow their enjoyment; on the other, because labour rights are certainly the set of rights more affected by corporations‘ activities, due to the intrinsic relationship between labour and capital. As the primary domain of activity of companies is economic, links between their operations and the enjoyment of economic and social rights are hardly refutable. Undoubtedly, companies play a significant role in fostering economic progress, which is needed to bring prosperity and to avoid falling back into instability and, eventually, conflict. However, this cannot be a reason to barter contribution to economic recovery with immunity from accountability. Transitional justice processes should establish mechanisms to discover and reveal the truth, in order to provide justice and reparations for victims of abuses to achieve social stability and peaceful societies. Therefore, addressing corporate accountability and ESCRs rights in transitional justice could potentially enhance and strengthen the pathway to positive peace. Research questions and arguments Whereas corporate accountability and transitional justice have received significant academic and political attention lately, there is hardly any literature exploring the potential links between them. So far, a significant number of studies have addressed issues such as corporate human rights obligations and responsibilities, 30 but just a few studies are on the specific issue of corporate accountability in transitional justice contexts, as they have traditionally been studied separately. 31 The main purpose 29 See for instance, Committee on Economic Social and Cultural Rights General Comment No. 3, 14/12/90, The nature of States parties obligations (Art. 2, par.1). This comment identified steps that can be taken immediately for any level of resource availability. See also, Ssenyonjo, M., ‗Reflections on State obligations with respect to economic, social and cultural rights in international human rights law‘, 2010, The International Journal of Human Rights, vol. 15, no. 6, p.971; OHCHR, ‗Frequently asked questions on Economic, Social and Cultural Rights‘, Factsheet no.33, 2008, p. 15. Document available at http://www.ohchr.org/Documents/Issues/ESCR/FAQ%20on%20ESCR-en.pdf accessed 4 February 2018. On the general notion of progressive realisation see Committee on Economic Social and Cultural Rights, General Comment No. 10, The role of national human rights institutions in the protection of economic, social and cultural rights, UN Document E/C.12/1998/25 (14 December 1998) para. 1. 30 See for instance, Clapham, A., Human Rights Obligations of Non State Actors, Oxford University Press, 2006; Clapham, A., ‗Human Rights Obligations for Non-State-Actors: Where are we now?‘ in Lafontaine, F., and Larocque, F., Doing Peace the Rights Way: Essays in International Law and Relations in Honour of Louise Arbour, Intersentia; Mares, R., ‗Corporate and State responsibilities in conflict affected areas‘, op. cit.. 31 It should be highlighted the book edited by Sabine Michalowski, Corporate Accountability in the Context of Transitional Justice, Routledge, 2013. Articles of this book are the result of two international 25 of this thesis is to provide a critical assessment of the issue of corporate accountability and ESCRs in transitional justice processes, while exploring the potential key role of business actors in those contexts. Following a legal and human rights based approach, this thesis aims to delimitate the theoretical and practical challenges of including corporate accountability in transitional justice processes through the existing mechanisms, as well as to provide specific conclusions to deal with those challenges and desirable outcomes. Similarly, this study would like to provide some reflections around the suitability of considering ESCRs violations in transitional justice processes, and how this can be effectively implemented. Conclusions drawn from this work could ideally be adapted and implemented in ongoing and future transitional justice processes. The present study seeks to answer one central and primary question regarding the role of business entities under conflict or authoritarianism and how to properly address their involvement in human rights violations, particularly ESCRs violations, during the transitional justice process: ● How International Human Rights Law deals with corporate accountability and violations of ESCRs in transitional justice processes? In order to provide an answer to the above-mentioned question, the study also addresses a number of secondary questions which tackle more detailed considerations: ● Are traditional transitional justice mechanisms able to address ESCRs violations and corporations‘ involvement? Does this inclusion imply rethinking and adapting the whole transitional justice paradigm? ● Could specific violations of ESCRs, such as labour rights, be addressed in transitional justice processes? seminars entitled ‗Linking Corporate Complicity and Transitional Justice‘ which took place at the University of Essex (UK) in 2010 and University of Palermo (Argentina) in 2011. 32 structured interviews with relevant actors of the transitional justice process. 47 This qualitative method of research was considered useful to approach highly politicised and sensitive issues, such as those involved in addressing a violent past. 48 The main purpose of the interviews was to gain a deeper understanding of political, institutional and social dynamics of the transitional process in Argentina, as well as to interact with scholars there who worked in this field. It is important to note in this sense that the majority of relevant facts and data in the field have not been yet processed by the doctrine, so certain relevant information can only be reached by communicating directly with the protagonists. However, information collected through the interviews was not treated as hard evidence, but rather used to understand institutional initiatives and experiences of key informants who had dealt directly with the events being analysed in this thesis. Such a holistic approach to the case study has allowed the author to gain a deeper knowledge than one that can be provided by only employing primary and secondary sources. Thesis outline This dissertation is divided into three sections, each one containing two chapters. The work‘s final structure is directly related to the methodology employed, as main sections correspond to three of the building blocks earlier mentioned. Section one relates to Transitional justice and ESCRs. Since the field of transitional justice is very broad and complex, chapter one focuses on main justice theories and mechanisms while chapter two focuses on ESCRs, particularly labour rights, and its potential inclusion in transitional justice processes. Both chapters identify four main processes, namely ‗truth‘, ‗justice‘, ‗reparations‘ and ‗institutional reform‘. Transitional justice mechanisms are analysed within the corresponding process where they belong according to their goals. 47 A detailed list of interviews can be found in the Annex I. 48 See for instance, Yin, R.K., Case study research. Design and methods, Sage Publications. Applied Social Research Methods Series, vol. 5, Second Edition, 2009, p. 7-8. 33 Section two discusses the issue of corporate accountability in transitional justice contexts. Therefore, chapter three examines the general notion of corporate complicity for human rights abuses and how corporations can be held accountable for them through the existing legal regimes. Chapter four provides an analysis about how corporate accountability can be included in transitional justice processes, focusing on the economic and social aspects of transitions and the role of corporations during those processes. It also outlines the challenges of including corporations in transitional justice for the field of business and human rights, particularly within the framework of the UNGPs. Section three deals with the case study to better illustrate theoretical frameworks analysed in previous sections. Chapter five provide an account of the historical, political, social and international context of Argentina‘s last dictatorship. It is argued that, within the backdrop of the Cold War, a blend of economic crisis, social unrest and polarisation, and extreme right and left-wing terrorism resulted in military regimes being responsible for massive human rights violations in most Latin-American countries, Argentina being one of them. This chapter also focuses on the corporate involvement and economic groups that directly supported and benefited from repressive State action. Chapter six provides an account of transitional justice in Argentina since its earliest stages in 1983. It is noted that three major phases can be distinguished, although a fourth and current stage can be added from 2015 to date (2018). Different phases and evolution of transitional justice policies have been closely related to the role of human rights organisations and the development of an international human rights doctrine, as well as the leaderships of different governments. Through those phases, Argentina used a wide range of mechanisms, including truth commissions, criminal prosecutions, and economic and symbolic reparations, to come to terms with its violent past. Final conclusions return to the primary and secondary research questions, providing them with a response derived from the principal points analysed through this thesis. 34 (Intentionally left in blank) 35 SECTION 1 – TRANSITIONAL JUSTICE AND ECONOMIC SOCIAL AND CULTURAL RIGHTS (ESCRs) I. CHAPTER ONE – Analysing the Transitional Justice paradigm I.1 Introduction Societies affected by armed conflict and repressive regimes have frequently suffered from mass atrocities and gross human rights violations. In the road to achieve democracy and sustainable peace afterwards, States usually pass through a period of transition in which political and social changes take place in order to build systems where the rule of law, democracy, and human rights protection and respect can flourish. These achievements would clearly also contribute to protect international peace and security. In such contexts, transitional justice comes into play. As one of the most relevant fields among peacebuilding measures, it specifically helps to secure a stable democratic future and peace. 49 There are many political and practical issues to be considered carefully when making a transition from a violent past, some of which come often into conflict with each other. For instance, the Spanish transition to democracy was so fragile after Franco‘s dictatorship that it adopted silence –for more than thirty yearsfor abuses committed during the civil war and the repressive regime. 50 Similarly, during the South African transitional process, De Klerk's National Party threatened civil war if the African National Congress insisted on war crime trials against apartheid officials. 51 As States coming out of conflict or repression usually face legacies of human rights abuses, 49 Studies have demonstrated that without peacebuilding measures, States tend to relapse into conflict within five years of the signing of a peace agreement. See for instance Collier, P. and Hoeffler, A., ‗The Challenge of Reducing the Global Incidence of Civil War‘, London Copenhagen Consensus Challenge Paper, 2004. 50 For more information about the Spanish transition, see for instance Rodríguez, J., El derecho a la verdad en la justicia de transición española. Asociación Española para el Derecho Internacional de los Derechos Humanos, Luarca, 2014. 51 For more information about the South African process, see Graybill, L.S., Truth and Reconciliation in South Africa: Miracle or Model?, Lynne Rienner Publishers, 2002. 36 it is difficult within this environment to make choices about how to deal with past abuses while at the same time engaging in peacebuilding strategies. This tension is usually labelled as the ‗peace versus justice‘ dilemma, which reflects how potentially conflictive the transitional justice goals can be. 52 Whereas perpetrators‘ and accomplices‘ accountability is crucial to fight against impunity and the perpetuation of the sense of injustice, deploying transitional justice mechanisms –such as truth-telling exercises or criminal processescan jeopardize the fragile peace and democratic process. 53 Transitional justice processes also face policy and practical challenges stemming from the number of those implicated in past human rights abuses, which would surely overwhelm the under-construction judicial system in transition. 54 Indeed, successor regimes are often engaged in rebuilding political and judicial institutions, so processing such an important volume of cases associated with past abuses results in difficulty and high cost in terms of resources. Moreover, a transitional justice process which does not guarantee a minimum standard of due process is likely to be discredited or politicised. 55 While minimalist conceptions of peace refer to the ‗absence of large scale, organized violence or war and the extremely low probability of the resumption of war,‘ 56 minimalist conceptions of reconciliation are linked to the principle of democratic reciprocity amongst conflicting parties. 57 Nevertheless, tolerance of political and ethnic diversity and respect for human rights has been also incorporated in more 52 See for instance, Freeman, M., Necessary Evils: Amnesties and the Search for Justice, Cambridge University Press, 2010. See also Teitel, R.G, Transitional Justice, Harvard Human Rights Journal, vol.16, 2003, pp. 78-85. 53 Leebaw, B., ‗The Irreconcilable Goals of Transitional Justice‘, Human Rights Quarterly, vol. 30, no. 1, 2008, pp. 100-101. 54 Ibid. p.101. 55 See for instance, Stan, L., and Nedelsky, N. (eds), Encyclopedia of Transitional Justice, Cambridge University Press, 2013, pp 112-279; see also ‗Peace versus justice? Understanding transitional justice in fragile States‘, ODI public event, 2009. A Transcription and video available at: https://www.odi.org/events/2043-peace-versus-justice-understanding-transitional-justice-fragile-States accesed 5 March 2018. 56 Mendeloff, D., ‗Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?‘, International Studies Review, no. 6, 2004, pp.355- 363. 57 See Gutmann, A. and Thompson, D., ‗The Moral Foundations of Truth Commissions‘, in Rotberg, R. and Thompson, D. (eds.), Truth v. Justice: The Morality of Truth Commissions, Princeton University Press, 2000, pp. 22- 44. 37 expansive conceptions of both notions. 58 Ultimately, reconciliation encompasses not only the goals of stabilizing and legitimating the new State authority, but also the aspiration for a political community based on consent and shared norms. 59 This expanded notion of reconciliation, thus, has been at cross purposes with the goal of addressing accountability, promoting ongoing political reform, and the ongoing politics of memory. Additionally, although transitional justice processes aim to maintain some degree of order, they also pretend to advance political transformation. 60 In other words, transitional justice institutions challenge the legitimacy of former regime practices while simultaneously seeking to establish their own legitimacy, trying to minimise the challenge that they pose to dominant frameworks for the memory policies. 61 The focus of transitional justice has progressively expanded from human rights accountability in democratic transitions to a broader conception of transition involving a variety of legal regimes and mechanisms. Nowadays, the field of transitional justice constitutes a set of studies that involve a wide range of disciplines, such as law, anthropology, political science, development studies, economics, education, ethics, history, philosophy, psychology and sociology. 62 Both practice and literature on transitional justice have proliferated enormously in the past twenty years. Indeed, transitional justice is a relatively young field which has been initially driven by practice. The establishment of the International Center for Transitional Justice in 2001, and the growing interest amongst scholarship have increased the study in this relatively new field. While the early transitional justice literature was primarily law-focused and dealt mostly with criminal prosecutions of perpetrators and truth commissions, the emphasis has been recently placed on the role of victim reparations as well as on informal local justice initiatives. According to Miller, scholars have defined and classified the transitional justice field in three primary 58 See for instance, Gibson, J.L., ‗Overcoming Apartheid: Can Truth Reconcile a Divided Nation?‘, Politikon, no. 31, vol. 2, 2004, pp. 129–155 59 Leebaw, B., ‗The Irreconcilable Goals of Transitional Justice‘, op. cit., p.105. 60 Teitel, R., Transitional Justice, Oxford University Press, 2000, pp.3-4. 61 Leebaw, B., ‗The Irreconcilable Goals of Transitional Justice‘, op. cit, p. 97. 62 See for instance, Bell, C., ‗ International Journal of Transitional Justice’, The International Journal of Transitional Justice, vol. 3, issue 1, 2009, pp.5–27; See also Buckley-Zistel, S., Koloma Beck, T., Braun, C., and Mieth, F., ‗Transitional Justice Theories: An introduction‘, in Buckley-Zistel, S., Koloma Beck, T., Braun, C., and Mieth, F. (Eds), Transitional Justice Theories, Routledge, 2014, p.2. 38 ways: (1) through its tools, instruments and institutions; (2) through a chronological assessment of either institutional development or the scholarship on the field; and (3) by elucidating versions of regime change that lead to an enactment of transitional justice. Likewise, as scholarship has approached transitional justice from different disciplines, there is a large number of scientific articles, books and practical factsheets dealing with elements and the process of transitional justice in different ways, varying from political theories to operational issues in the field. This first chapter will focus on the conception and evolution of transitional justice, as well as the analysis of its processes and mechanisms. It will similarly consider that several elements, political variables and actors certainly influence the design and implementation of transitional justice strategies. Consequently, different approaches have been developed depending on the specific circumstances of each transitional process. The employment of diverse mechanisms reflects internal and international political, historical and sociocultural dynamics unique to each particular context. However, despite those differences, there are also many elements in common within transitional justice processes. I.2 Background and evolution of Transitional Justice Most of literature locates the beginning of transitional justice in the post-Second World War Nuremberg and Tokyo military tribunals. 63 Teitel, for instance, provides a three-phase model for understanding the historical evolution of transitional justice: a first phase beginning in 1945; the second one took place during the last quarter of the 20th century, characterised by the collapse of the Soviet Union and significant economic and political changes in Latin America and Eastern Europe; and a third contemporary stage in which transitional justice ‗moves from the exception to the norm.‘ 64 63 See for instance, Elster, J., Closing the Books: Transitional Justice in Historical Perspective, Cambridge University Press, 2004. Or Bass, G., Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, Princeton University Press, 2000. 64 Teitel, R.G., ‗Transitional Justice Genealogy,‘ op.cit.., p. 70. 39 In 1945, allies ran the Nuremberg Trials, benefiting from the special international political conditions of the postwar period, which would not last long in the same manner. Consequently, this first stage of transitional justice ended soon after the war and was followed by an impasse on the issue during the period of the bipolar world of the Cold War. 65 Although short in time, this first phase was characterised by international war crimes trials and interState cooperation, 66 and contributed to developing modern human rights law. 67 Criminal accountability being the primary goal of transitional justice by that time meant that an important innovation in this phase was the extension of international criminal law beyond the State to the individual. Postwar transitional justice‘s legacy has been irrefutable in international law, where the accountability precedents for wartime abuses were enshrined in international conventions shortly after the war. 68 Indeed, the transitional justice model of this first phase was exported through ‗legal transplants of international treaties and conventions‘. 69 The second phase of transitional justice took place over the last quarter of the twentieth century. It was characterised by a period of accelerated democratization and political fragmentation which has been so-called the ‗third wave‘ of democratic transition. 70 The disintegration of the Soviet Union and the end of military rules in Southern Cone countries were followed by other transitions in Eastern Europe, Africa 65 Ibid. 66 National justice was in this sense displaced by international justice. For an account see Battle, G., The Trials before the Leipsic Supreme Court of Germans Accused of War Crimes, Virginia Law Review, vol. 8, no. 1, 1921, pp. 1-26. 67 See Steiner, H., and Alston, P., International Human Rights in Context: Law, Politics and Morals, Oxford University Press, 2000. On the impact of the Nuremberg trials see Teitel, R.G., ‗Nuremberg and Its Legacy, Fifty Years Later‘, in Cooper, B. (ed.), War Crimes: The legacy of Nuremberg, TV Books, 1999, p. 44. 68 Such as the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951). For a discussion of the codification process of the International Law Commission, see Bassiouni, M. C., The History of the Draft Code of Crimes Against the Peace and Security of Mankind, in Bassiouni, M. C (ed.), Commentaries on the International Law Commission‘s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, Nouvelles Etudes Penales No. 11, Eres, 1993, p.11.For broader discussion on human rights post-war developments, see Teitel, R.G., ‗Human Rights Genealogy‘, Fordham Law Review, vol. 66, issue 2, 1997, p. 301. 69 Teitel, R.G., ‗Transitional Justice Genealogy‘, op. cit., p. 74 70 See for instance, Huntington, S., ‗The Third Wave: Democratization in the Late Twentieth Century‘, Journal of Democracy, vol.2, no.2, 1991. 40 and Central America. 71 These events evidenced how the United States and Soviet Union influenced and supported local and regional conflicts within a bipolar-world context. 72 Under this post-Cold War wave of transitions, the emerging model of transitional justice was based on nation-building, which however remained at cross purposes with broader conceptions of international justice. 73 Therefore, the first phase model of transitional justice was replaced at this stage with domestic trials and emphasis on the rule of law, thus attempting to legitimate the successor regime. Nevertheless, despite the lack of international trials, international legal norms contributed to providing consistency to the rule of law, as it was universally standardised at the Nuremberg model. 74 In contrast with the first phase, legitimation of punishing human rights abuses was not simply assumed in this second phase. Conversely, tensions between punishment, amnesties and their contribution to build the rule of law were raised. This second wave of transitions revealed that what is just in such special circumstances had to be determined from the transitional process itself. 75 In fact, discussions on the notion of justice in transition are best understood when situated in the actual transitional political context. Therefore, the potential of criminal accountability impacts in transition will ultimately rely on the nature, origin and significance of past abuses. 76 Debates at this stage covered not only the question of accountability for past abuses but also how to heal and reconcile the entire society. Transitional justice in this phase became also associated with the more complex political conditions of nation-building. 77 These 71 See Popovski, E. and Serrano, M., After Oppression: Transitional Justice in Latin America and Eastern Europe, United Nations University Press, 2012, p. 1-17. On the discussion of the balance of power in Latin America see Schoultz, L., National Security and United States Policy Towards Latin America, Princeton University Press, 1987; see also Brown, C. (ed.), With Friends Like These: The Americas Watch Report on Human Rights and U.S. Policy in Latin America, Pantheon Books, 1985. On Central America see Lefeber, W., Inevitable Revolutions: United States and Central America, Norton & Company, 1984. 72 It should be noted that the end of these political circumstances does not imply that such conflict has also ended, as there remain numerous interconnected insurgency movements, particularly in Latin American countries. See Schoultz, L., National Security and United States Policy Towards Latin America , op. cit., pp. 112–204 73 There are however exceptions in the turn to international justice regarding the conflicts in the Balkans and in Rwanda. 74 Teitel, R.G., ‗Transitional Justice Genealogy‘, op. cit, p.76 75 Teitel, R.G., Transitional Justice, op. cit., p.234. 76 Teitel, R.G., ‗Transitional Justice Genealogy‘, op. cit., p. 77. 77 Ibid. 41 dilemmas were seriously taken into account in many countries when deciding their transitional strategy and considering putting into place alternative methods to face past violations. 78 Different conceptions of justice consequently emerged in this second phase, moving beyond simply retributive justice as understood in the first phase. 79 Given that revealing the truth of past events was one of the main purposes of transitional justice in this phase, new institutional mechanisms emerged. The most significant one is the Truth and Reconciliation Commission (TRC), an official body whose primary task is to investigate and record past human rights abuses and root causes of conflict. 80 Transitional justice then was conceived also as form of dialogue between victims and perpetrators, often using TRCs as a vehicle to reconcile and recover from a violent past. Similarly, this sort of model and mechanisms combined the establishment of a historical record while at the same time leaving open the possibility of future judicial actions. Exceptional and limiting national political conditions were therefore thoughtfully considered in most of this second phase‘s transitions. However, while in this phase international justice was replaced by domestic mechanisms, this model did not ultimately prove to be suitable for later transitional justice processes, in which national and international factors became interdependent contributors to political change. 81 The third phase of transitional justice is characterised by the expansion and normalisation of transitional justice. 82 International justice which developed in the postwar period recurs at this point but is transformed by new political contexts. Transitional justice has now extended beyond its historic role in regulating international conflict to regulate intrastate conflict as well as peacetime relations. Weak and fragile States, domestic conflicts, and political fragmentation are some of the common factors of this third and contemporary phase. Indeed, the key element of normalisation of transitional jurisprudence is the institutionalisation of the International Criminal Court 78 Such as truth-seeking mechanisms and alternative accountability initiatives. South Africa and Rwanda‘s transitional processes are good examples of that. See for instance, Van Zyl, P., ‗Dilemmas of Transitional Justice: The Case of South Africa‘s Truth and Reconciliation Commission‘, 52 Journal of International Affairs, vol.52, 1999, p. 647; and Waldorf, L., ‗Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice‘, Temple Law Review, vol. 79, no.1, 2006. 79 Different theories are further analysed below in section I.5 80 Truth Commissions are further analysed in section I.4.A 81 Teitel, R.G., ‗Transitional Justice Genealogy‘, op. cit., p.78 82 Ibid. p.89. See also Engbo Gissel, L., ‗Contemporary Transitional Justice: Normalising a Politics of Exception‘, Global Society, vol. 31, no. 3, 2017, pp.353-369, 48 I.4 Transitional Justice Processes and Mechanisms It is commonly accepted that four processes constitute the core of transitional justice, 119 namely, a truth process, which allows the full investigation of mass atrocities so that the reality of what happened during the conflict or the repressive regime could be known by the whole society, including who the perpetrators were, how the violations were committed and where the remains of the victims lie; a justice process, in which perpetrators of human rights violations should be brought to justice; a reparation process, focusing on victims of atrocities; and an institutional reform process, to ensure and guarantee that such atrocities will not happen again. Transitional justice mechanisms can be developed at domestic, international or even regional level. The UN has clearly Stated that regarding the international community, its main role is not to build international substitutes for national structures, but to help build domestic justice capacities. 120 This argument is reaffirmed when referring to specific mechanisms such as Truth Commissions and the institutional reform process as a whole. 121 The UN has also emphasized the importance of implementing a comprehensive approach to transitional justice, incorporating the full range of mechanisms at its disposal. 122 Additionally the OHCHR, 123 the UN 119 See for instance, Alija Fernández, R.A., ‗La multidimensionalidad de la justicia transicional: un balance entre los límites jurídicos internacionales y los límites de lo jurídico‘, op. cit., p. 143-162; See also on this topic Galain Palermo, P., ¿Justicia de Transición? Mecanismos políticos y jurídicos para la elaboración del pasado, Tirant lo Blanch, 2016; Sandoval, C., Filipini, L., Vidal, R., ‗Linking Transitional Justice and Corporate Accountability‘ in Michalowski, S., Corporate Accountability in the Context of Transitional Justice, Routledge, 2013, p.12; Domingo, P., ‗Dealing with legacies of violence: transitional justice and governance transitions‘, Background note, Overseas Development Institute, May 2012, p.4. See also OHCHR, Analytical Study on Human Rights and Transitional Justice, UN Doc. A/HRC/12/18, 6 August 2009, p.9. 120 UN Secretary General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, op. cit., p.1. Available at: http://www.ipu.org/splz-e/unga07/law.pdf accesed 6 March 2018. 121 For instance, the OHCHR Report,‘ Rule of Law Tools for Post-Conflict States. Truth Commissions‘, op.cit., p.5 States that ‗International actors should provide comparative information and expertise, but should recognize from the start that a country may choose, for very legitimate reasons, not to have a truth commission or at least not to have one immediately upon transition. National views on this matter should be respected‘. 122 Resolution adopted by the Human Rights Council on Human Rights and Transitional Justice, A/HRC/RES/21/15, 2012 p. 3. Document available at https://documents-dds- ny.un.org/doc/RESOLUTION/GEN/G12/174/47/PDF/G1217447.pdf?OpenElement accessed 8 March 2018. 123 In decision No. 2006/47 on the rule of law, the Secretary-General designated OHCHR as the lead entity within the United Nations system for transitional justice. 49 Peacebuilding Commission, has added other processes to the above-mentioned ones which could help to build peace after conflict, such as national consultations and disarmament, 124 demobilization and reintegration (DDR). 125 At the regional level, the IACtHR became the first human rights court to conduct a trial on self-amnesty law in The Barrios Altos vs. Peru case. 126 The Court held the Peruvian State internationally responsible for the violation of Articles 4 (right to life), 5 (human treatment), 8 (judicial guarantees), 25 (judicial protection), all in connection with article1.1 (obligation to respect rights) and 2 (duty to adopt provisions of domestic law) of the American Convention. 127 Therefore, the Court decided that the amnesty laws had no legal effect because of their incompatibility with the American Convention. 128 It should be noted here that while the Court recognised early on that non-State actors could commit human rights violations, the focus in transitional justice mechanisms was on the responsibility of the State to prevent and prosecute these abuses. 129 The EU adopted its Policy Framework on transitional justice in November 2015. Following the bottom up principle, -which recognises that external actors can only play a supporting role– it developed policies and strategies to help and support national transitional 124 Ibid. See also UN Secretary-General, Report of the Secretary General on Peacebuilding in the Immediate Aftermath of Conflict, UN Doc. A/63/881- S/2009/304, 11 June 2009, para.71. National Consultations are nowadays considered a condition sine qua non of transitional justice. Similarly, the UN hass indicated in many reports and resolutions that transitional justice initiatives may encompass both judicial and non-judicial mechanisms, including individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals. 125 DDR focuses on assisting ex-combatants to stop with the armed violence and reintegrate into society. It mainly takes place in case of conflict and, although in a parallel way to the main transitional justice process, it usually complements it. For further information see: Ball, N., and Van de Goor, L., ‗Disarmament, Demobilization and Reintegration: Mapping issues, dilemmas and Guiding Principles‘, Clingendael Security and Conflict Programme, 2006. 126 The Barrios Altos vs. Peru case considered the participation of the Colina group, a death squad linked to the Peruvian Army, in the invasion of a meeting which resulted in the execution of fifteen people and the serious injury of four others. IACtHR, Case Barrios Altos v. Peru, Merits, Judgement of March 14, 2001. 127 The last four violations resulted from the promulgation and application of amnesty laws No. 26.479 and 26.492.11. See De Campos, C., ‗Transitional Justice in South America: The Role of the Inter- American Court of Human Rights‘, Jurídica, Año IV, nº5, 83-92, 2009, p.85. 128 IACtHR, Case Barrios Altos v. Peru, Merits, Judgement of March 14, 2001, para. 44. 129 This aspect will be further analysed in Chapter III and IV. See Roth-Arriaza, N., ‗Why was the Economic Dimension Missing for So Long in Transitional Justice? An Exploratory Essay‘, in Verbitsky, H. and Bohoslavsky, J.P, The Economic Accomplices to the Argentine Dictatorship. Outstanding Debts, op.cit., p.22. 50 justices processes. 130 However, the EU Policy Framework does not mention or recognise the role of non-State actors in conflict, so it does not include particular references to business. While all these initiatives may be relevant within the transitional justice framework, this thesis will focus on the core processes as they are widely implemented in most of the transitional justice contexts. Therefore, this section will analyse mechanisms and instruments according to their objectives and the processes in which they can be categorised. Transitional justice mechanisms and strategies may be grouped in four different categories according to the underlying logic, namely, on the need for justice, on the seeking for truth, on the search for restoration and rehabilitation, and focusing on reform. I.4. A Truth This process is based on the belief that victims and the society as a whole have the right to know what really happened, the right to know the truth. This right has been affirmed by treaty bodies, 131 regional courts 132 and domestic tribunals. 133 Accordingly, 130 EU Policy Framework on transitional justice, 2015. Document available at http://eeas.europa.eu/archives/docs/top_stories/pdf/the_eus_policy_framework_on_support_to_transitiona l_justice.pdf accessed 10 March 2018. 131 See for instance, International Convention for the Protection of All Persons from Enforced Disappearance, December 20, 2006, E/CN.4/2005/WG.22/WP.1/Rev.4.; American Convention on Human Rights, OAS Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3, entered into force December 7, 1978. See also, Orentlicher, D., ‗Independent study on best practices, including recommendations, to assist States in strengthening their domestic capacity to combat all aspects of impunity,‘ 24 February 2004, (E/CN.4/2004/88). 132 While there is no specific international convention on the right to the truth (and while UN declarations are not binding agreements), certain regional and national courts have confirmed the enforceability of this right within their jurisdictions. See for instance, IACtHR, Velasquez Rodríguez v. Honduras, Merits, Series C. No.4 (1988); IACtHR, Myrna Mack Chang v. Guatemala, Series C, No. 101, (2003); IACtHR, Bamaca Velasquez v. Guatemala, Series C, No. 91, (2002). See also ECtHR, Cyprus v. Turkey, 2001-I. 1(2001). 133 See for instance, Corte Suprema de Justicia de la Nación Argentina [National Supreme Court of Justice], 14/6/2005, ‗Simón, Julio Héctor y otros s/ privación ilegítima de la libertad‘, Case S. 17.768; Constitutional Tribunal of Peru, Genaro Villegas Namuche. Case No. 2488-2002-HC/TC, March 18, 2004; Constitutional Court of Colombia. Gustavo Gallón Giraldo y Otros v. Colombia. Sentencia No. C- 51 this right finds strong support in relation to certain crimes, such as disappearances. 134 In addition, the UN Working Group on Disappearances confirmed the existence of this right under international law, and not only in relation to disappearances. 135 While criminal prosecutions are undeniably relevant, there are also other mechanisms to discover the facts of past events. Legal process could be more accurate when examining and evaluating the evidence, but many practitioners hold that the narrow focus of the legal process could produce a limited truth. For instance, political strategy behind crimes, social and cultural dynamics enabling them, and the effects on the victims are not usually captured. The main and most common mechanism to deal with these issues is the Truth and Reconciliation Commission (TRC). A TRC is a commission of enquiry created by the State -usually by the executive or parliament- to investigate the most egregious crimes committed during conflict or repression with the aim to produce recommendations for dealing with the consequences. 136 While their mandates could be very diverse, TRCs constitute a very useful mechanism for considering the root causes of conflict or repression, the consequences and the nature of gross human rights violations. For instance, the South African TRC had the power to investigate crimes committed during the apartheid regime – including the use of subpoena and seizure powers-, as well as recommending the granting of an amnesty for perpetrators in exchange for full disclosure. 137 On the other hand, the Argentinian National Commission on the Disappeared (CONADEP) was mandated only to investigate the 370/2006, May 18, 2006; Constitutional Court of South Africa. The Citizen 1978 (Pty) Ltd and others v. McBride. Case CCT 23/10, 2011, ZACC 11, April 8, 2011. 134 See for isnstance, OHCHR, ‗Rule of Law Tools for Post-Conflict States: Truth Commissions‘, HR/PUB/06/1, 2006, p.1. Available at: www.ohchr.org/Documents/Publications/RuleoflawTruthCommissionsen.pdf accessed 10 March 2018. 135 UN Working Group on Enforced or Involuntary Disappearances, General Comment in Relation to the Right to the Truth in Relation to Enforced Disappearances, 22 July 2010. Available at: www.ohchr.org/Document/Issues/Disappearances/GC-right_to_the_truth.pdf accessed 10 March 2018. 136 See for instance, Freeman, M., Truth Commissions and Procedural Fairness, Cambridge University Press, New York, 2006. 137 Promotion of National Unity and Reconciliation Act 34/1995, sections 5 and 6, www.justice.gov.za/legislation/acts/1995-034.pdf accessed 8 March 2018. 52 disappearances that took place during the military junta, without subpoena or seizure powers. 138 TRCs usually have four main objectives. Primarily, they aim to establish what happened in the past and under what circumstances the crimes were committed. Secondly, they aim to establish an official record of causes of the conflict and provide recommendations. In addition, their findings can be used as a body of evidence for the purposes of reparations, for vetting public institutions of identified perpetrators or criminal justice investigations at a later, less politically risky, time. Finally, official recognition of the truth and acceptance of it can contribute to the process of healing and reconciliation. 139 Although some TRCs are often primarily seen as models, their scope and modes of operation vary, as well as their context-specific mandates in practice. 140 Indeed, TRCs have been most popular in countries dealing with past authoritarian regimes where there were disappeared persons and hindered access to information about the persecution policy, as typically happened in Latin-American countries. 141 Conversely, TRCs have been of less interest in post-Communist Europe, where diverse governments used history itself as a destructive dimension of State repression. 142 Truth-telling exercises could also differ according to the political contexts, the extent of their credibility, the degree to which they are chaired by victims and other domestic constituencies and their ability to give voice to victims. In a very complex context, such 138 Alfonsín, R., (former Argentina‘s President), Decree 157/83, 15 December 1983, www.derechos.org/ddhh/arg/ley/conadep.txt accessed 2 March 2018. 139 Domingo, P., ‗Dealing with legacies of violence: transitional justice and governance transitions‘, op. cit. p.4 140 See for instance, the 1984 Argentine Truth Commission Report, Never Again, which was the first of its kind; or the South African truth-telling exercise, that became a model for the region and a powerful marker of the end of Apartheid. 141 Teitel, R.G., ‗Transitional Justice Genealogy‘, op. cit., p.79 142 Accordingly, in Eastern Europe, main responses by the successor regime were guaranteed access to the historical record, rather than creating official histories. In fact, many countries in the region enacted laws allowing victims and others access to the files. See for instance, Teitel, R.G., ‗Preface‘, in Truth and Justice: The Delicate Balance: The Documentation of Prior Regimes and Individual Rights, Budapest College, 1993. 53 as ongoing conflict or unresolved power struggles, truth-telling exercises can be undermined by those circumstances. 143 According to the UN, Truth Commissions are not the best option for every country or every transition, and thus the decision to have a commission must always be taken by nationals after a broad consultative process in which the views of victims and survivors are taken into account, as well as the functions, and potentially strengths and limitations of the forthcoming TRC. 144 In any case, Truth Commissions‘ experiences so far have shown a potentially valuable tool in the quest for truth and to establish a historical record of the past events, particularly due to their victim-centred approach. I.4. B Justice The justice process builds on the assumption that sustainable peace and lasting reconciliation require that perpetrators of gross human rights violations are held accountable and punished for their acts. In this sense, common mechanisms include prosecution and sentencing at national, international and hybrid tribunals –joint international and domestic courts. Additionally, administrative measures to lock perpetrators out of public positions, as well as public exposure and social shaming constitute softer –and non-judicial- mechanisms. States are obligated by Public International law to investigate some specific crimes, such as genocide, crimes against humanity, war crimes and torture. 145 Likewise, human rights treaties - such as the International Covenant on Civil and Political Rights - include the right to an effective remedy which has been generally understood to raise an 143 For instance, States such as Mozambique and Cambodia decided that revisiting the past would be too devastating for their traumatised populations. For more information about these issues see Mobekk, E., ‗Transitional justice in post conflict societies: approaches to reconciliation‘, Geneva: Geneva Centre for the Democratic Control of Armed Force, 2005. 144 OHCHR Report, ‗Rule of Law Tools for Post-Conflict States. Truth Commissions‘, op. cit., p. 5. 145 See for instance, Mendez, J., ‗Accountability for Past Abuses‘, Human Rights Quarterly, vol.19, no.2, 1997, pp. 255-288; see also Orentlicher, D, ‗Setting Accounts Revisited: Reconciling Global Norms and Local Agency‘, op. cit., pp. 10-22; see generally Márquez Carrasco, C., Crímenes Contra la Humanidad: Noción y Elementos en Derecho Internacional Penal, Servicio de Publicaciones de la Universidad de Sevilla, 2008. 54 obligation to provide reparations in relation to certain human rights violations, such as torture, disappearances and killings. 146 As mentioned above, the judgement of the Inter-American Court on Human Rights in the case of Velásquez Rodríguez v. Honduras in 1988 set the legal basis for the above-mentioned Statement. In this judgement, the Court found that all States have four fundamental obligations in the area of human rights, namely: (1) to take reasonable steps to prevent human rights violations; (2) to conduct a serious investigation of violations when they occur; (3) to impose suitable sanctions on those responsible for the violations, and; (4) to ensure reparation for the victims of the violations. 147 Those principles have been explicitly confirmed in later decisions by the Court and endorsed in judgments by the European Court of Human Rights and UN treaty bodies such as the Human Rights Committee. 148 At international level, ad hoc criminal tribunals have been established by the UN Security Council to deal with specific atrocities committed in Rwanda and the former Yugoslavia, and two hybrid international tribunals were set up for Sierra Leone and Lebanon. These developments have shown that if States fail to fulfill their obligations to pursue perpetrators of mass atrocities within their own jurisdiction, the international community can take action to do it instead. Similarly, the International Criminal Court statute enshrines State-relevant obligations – such as aut dedere aut judicare obligations- to the fight against impunity and respect for victims‘ rights. 149 The jurisdiction of the Court, adopted by the Rome Statute in 1998 and entered into force in 2002, shall be limited to the most serious 146 Orentlicher, D, ‗Setting Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime‘, op. cit., p.14. 147 IACtHR, Velásquez Rodríguez v Honduras, Merits, Series C. No.4 (1988), para.166. 148 IACtHR, Velásquez Rodríguez v Honduras, Reparations and Costs (1989), para.28. See also ECHR Research Report, References to the Inter-American Court of Human Rights and Inter-American instruments in the case-law of the European Court of Human Rights, 2016. Available at http://www.echr.coe.int/Documents/Research_report_inter_american_court_ENG.pdf accessed 2 March 2018. 149 See ‗The obligation to extradite or prosecute (aut dedere aut judicare)‘ Final Report of the International Law Commission, 2014. Available at http://legal.un.org/ilc/texts/instruments/english/reports/7_6_2014.pdf accessed 2 March 2018. See also on this topic De Vos, C., Kendall, S., and Stahn, C., (eds.), Contested Justice. The Politics and Practice of International Criminal Court Interventions, Cambridge University Press, 2015. 55 crimes of concern to the international community as a whole. 150 Therefore, the Court has jurisdiction over individuals who commit any of the categorised international crimes as part of a widespread or systematic attack directed against any civilian population, namely: genocide, 151 crimes against humanity, 152 war crimes, 153 and aggression. 154 As Schabas has pointed out, the Rome Statute of the International Criminal Court is today at the centre of the legal debate in the field, as it is impossible for States to assess the transitional justice options that are best suited to their own needs -and political and historical circumstanceswithout taking into account the possibility that the Court will decide to involve itself based on a different evaluation of priorities and regardless of their concerns. 155 But indeed, there is now a backlash with States pulling out of the Rome Statute. 156 States have also made use of the universal jurisdiction for some human rights crimes, as happened with Chilean General Pinochet, who was arrested -and later releasedin London in 1998, or prosecutions against Franco‘s dictatorship collaborators from Argentinian judges in 2010. 157 This principle, classically defined as ‗a legal principle allowing or requiring a State to bring criminal proceedings in respect of certain crimes irrespective of the location of the crime and the nationality of the perpetrator or the victim‘, 158 allows States to go beyond the ordinary rules of criminal jurisdiction requiring a territorial or personal link with the crime, the perpetrator or the 150 Rome Statute of the International Criminal Court, article 5. A/CONF.183/9. 151 Rome Statute of the International Criminal Court, article 6. 152 Ibid., article 7. 153 Ibid., article 8. 154 Ibid.,, article 5. 155 Shabas, R.,‘Transitional Justice and the Norms of International Law‘, op. cit. p 11. 156 States such as South Africa, Burundi and Gambia have been lately planning to leave the ICC during. See for instance ‗African leaders plan mass withdrawal from international criminal court‘, The Guardian, 31 January 2017. Available at https://www.theguardian.com/law/2017/jan/31/african-leaders-plan-mass- withdrawal-from-international-criminal-court accessed 5 February 2018. 157 However, political will in such cases is a decisive element as it has been evidenced. See for instance, Serrano Maíllo, M.I., Prensa, Derecho y Poder Político: El Caso Pinochet en España, Dykinson, 2002. 158 Kenneth C. Randall, ‗Universal jurisdiction under international law‘, Texas Law Review, no. 66, 1988, pp. 785–8; International Law Association Committee on International Human Rights Law and Practice, ‗Final Report on the Exercise of universal jurisdiction in respect of gross human rights offences‘, 2000, p.2. The principle of universal jurisdiction could be extended to civil responsibility. This is e.g. the case in the United States with the Aliens Tort Act (28 U.S.C. para. 1350) and the wellknown decision Filartiga v.Pena-Irala 630F2d876 (2d Cir. 1980). 56 victim. 159 It thus departs from the premise that specific crimes are so harmful to the international community that States are entitled to bring proceedings against the perpetrator, regardless of the crime‘s location and the nationality of the perpetrator or/and the victim‘. 160 Joint tribunals have been used as another strategy, where domestic and international judges work together, as has happened in Indonesia and Sierra Leone. They represent the national legitimacy while at the same time compensating for problems in the domestic justice system. These above-mentioned justice mechanisms can be categorised into two further sub-types: mechanisms to obtain retributive justice and mechanisms that seek other forms of justice –not only punitive-, such as restorative justice. 161 States may usually choose the retributive route mainly because, together with the justice sector reform, domestic criminal prosecution can help to build the rule of law. 162 However, transitional contexts are characterized by weak institutional and political conditions which may make domestic trials not feasible. 163 As other applicable options, local community justice mechanisms have been established as means of restorative justice, such as the mato oput -a community rite of reparation and reconciliationin Northern Uganda 164 and more reinvented institutions, such as gacaca in Rwanda. 165 159 The territorial link has been gradually overcome by two criteria allowing for extraterritorial jurisdiction, such as jurisdiction over crimes committed outside the territory by the State‘s own nationals (active personality jurisdiction) or crimes committed against a State‘s own nationals (passive personality jurisdiction). This later possibility has been challenged by some States. 160 Robinson, M., ‗Foreword‘, The Princeton Principles on Universal Jurisdiction, Princeton University Press, 2001, p. 16. 161 Domingo, P., ‗Dealing with legacies of violence: transitional justice and governance transitions‘, op. cit., p.4. 162 See for instance, Kritz, N. J. (ed.) Transitional justice: how emerging democracies reckon with former regimes, US Institute of Peace, vol.1, 1995. The UN 2004 strategy recognises this linkage and it has also featured in some UN practice (e.g. its rule of law work in north Sudan). In addition, there are potential synergies between transitional justice and the rule of law, such as when the first one helps to build a culture of accountability, see for instance Skaar, E., Gianella Malca, C. Eide, T., A way out of violent conflict: the impact of transitional justice on peace and democracy. CMI (CHR Michelsen Institute), 2012. 163 The most unfavourable context would be the one where it continued the support for the past regime and/or groups responsible for past human rights violations, giving them a significant disruptive potential. 164 For more info about this initiative see https://www.facinghistory.org/reckoning/paradox-peace-and- justice-mato-oput-versus-icc-uganda accessed 22 March 2018. 165 For further information see: http://www.un.org/en/preventgenocide/rwanda/about/bgjustice.shtml accessed 22 March 2018. 57 At the social level, bringing perpetrators to justice shows a clear break with the past atrocities and responds to the popular claim for justice, which is needed to build trust in the new political, social and institutional system. The culture of impunity and amnesties, in contrast, could be detrimental to the reconciliation process and, therefore, to the achievement of sustainable peace. 166 I.4. C Reparations Transitional justice is based on the assumption that serious harm caused to victims should be redressed. 167 This conception is closely linked to States‘ obligation to provide reparation under international law, 168 which will be considered unfulfilled when the behavior of the State allows the violation to go unpunished. 169 Such State breach of international law, whether by action or by omission, constitutes an internationally wrongful act, so it will lead to international responsibility and will involve the obligation to repair victims. 170 Nevertheless, States often embark on a reparations process without acknowledging any legal responsibility for the human rights violations that were committed. They rather appear to contribute to the reparation process to help their own population to move forward. 171 By contrast, it is also common that third countries contribute to the reparations process, not because they are obligated by international law to do so, but because they decide to cooperate with such process. 172 Concerning the 166 See for instance, Thoms, O.N.T., Ron, J., and Paris, R., ‗The effects of transitional justice mechanisms: A summary of empirical research findings and implications for analysts and practitioners‘, In CIPS Working Paper, Center for International Policy Studies, 2008, p.39. 167 Sandoval Villalba, C., ‗Transitional Justice: Key Concepts, Processes and Challenge‘, Institute for Democracy & Conflict Resolution, Briefing Paper, 2011, p.5. 168 PCIJ, Affaire relative à l‘usine de Chorzów (Demande en indemnité), Compétence, 26 July 1927, Series A, no.9, p. 21. Literally, the Court Stated that ‗C‘est un principle de droit international que la violation d‘un engagement entraîne l‘obligation de réparer dans une forme adéquate‘. 169 IACtHR, Velasquez Rodriguez vs. Honduras, Judgement 29 July 1998, Serie C, n° 4, para. 176. 170 See ECHR, Bazorkina v. Russia, judgement of 27 July 2006, no 69481/01, para. 161. 171 In Colombia, for instance, the government established the ‗Programa de Reparación Individual por Via Administrativa’ (Administrative Reparations Programme) in order to provide reparations to victims of crimes (such as disappearances and arbitrary killings) committed by the guerrillas or paramilitary groups before 22 April 2008. 172 For example, the United States, through USAID, assisted in 1992 to finance the comprehensive health programme created for victims known as PRAIS (Programa de Reparación y Ayuda Integral en Salud y Derechos) in Chile. 64 with prevention. While methodologies for assessing impact are advancing, 204 there is as of yet, no comprehensive analytical framework for assessing the impact of transitional justice mechanisms. However, some interesting aspects related to this issue are worth mentioning here. 205 Firstly, we should bear in mind that transitional justice is a field based on principles rather than on data, which makes it difficult to assess detailed impact evidence. 206 Scholarship usually focuses on analyzing the strengths and weaknesses of some specific mechanisms – in particular Truth Commissionsbut much of the existing literature in the field simply assumes that those mechanisms offer tangible benefits, rather than treating them as testable propositions. 207 Secondly, it is extremely difficult to properly compare transitional justice mechanisms across countries, since they often have different structures, mandates and implementation. 208 Transitional justice processes are developed according to the specific contexts and circumstances of the country in transition, so there are not two identical transitional processes. Finally, some outcomes are inherently difficult to measure, such as reconciliation and healing. Similarly, it is also common for Transitional Justice studies to conflate analytically distinct outcomes, such as peace and democracy, and peace and reconciliation. 209 204 There are several large-scale transitional justice data collection projects and studies . See, for instance, the Transitional Justice Data Base Project, available at https://sites.google.com/site/transitionaljusticedatabase/ accessed 22 March 2018; also, Van der Merwe, H., Baxter, V., et al., (eds.), Assessing the Impact of Transitional Justice: Challenges for Empirical Research, United States Institute of Peace Press, 2009. 205 For a complete study on the impact and the challenges of transitional justice mechanisms see Skaar, E., ‗Understanding the Impact of Transitional Justice on Peace and Democracy‘, ECPR paper, 2011. 206 Mendeloff, D, ‗Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?‘, op.cit., p.11. 207 See for instance, Vinjamuri, L, and Snyder, J., ‗Advocacy and Scholarship in the Study of International War Crimes Tribunals and Transitional Justice‘, Annual Review of Political Science, no.7, 2004, p.359; Gloppen, S., ‗Roads to Reconciliation: A Conceptual Framework,‘ in (eds.) Skaar, E., Gloppen, S., and Suhrke, A., Roads to Reconciliation, Lexington Books, 2005, p.21-22. 208 On variation in truth commissions, see for instance Hayner, P., Unspeakable Truths. Confronting State Terror and Atrocity, op. cit. On variation in vetting processes, see De Greiff, P. (eds), Justice as Prevention: Vetting Public Employees in Transitional Societies, Social Science Research Council, New York, 2007. 209 Mendeloff, D, ‗Truth-Seeking, Truth-Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?‘, op.cit., p. 362. 65 I.5 Transitional Justice Theories The field of transitional justice has been characterised by a relative lack of theoretical frameworks. 210 Indeed, transitional justice practice and discourse have been mainly based on notions of political transitions and justice adopted from the Western thinking, and thus, shaped by specific historical experiences. 211 However, theories about how best to deal with past abuses in transitional contexts have recently proliferated. But before analysing those theories and their goals, some preliminary remarks should be made to better understand how transitional justice is -and has beenconceived. Given the heterogeneity of the field of transitional justice, articulating a common theoretical language has not been a simple task. While it is widely agreed that transitional justice has become a discipline of its own, 212 the boundaries of the field remain diffuse. As a multidisciplinary area, transitional justice encompasses not only different disciplines but also different perspectives and methodologies. Similarly, the wide range of mechanisms and practices involved in transitional justice processes broaden the field, hampering the task to adopt a unique theory of transitional justice. While formal rules and State institutions used to be the focus of legal and political science approaches, anthropological and sociological approaches to transitional justice is often oriented to the value and challenges of transitional politics on the group and individual level. 213 On the other hand, transitional justice seems to be continually in motion. The field has experienced a significant expansion, particularly regarding the contexts in which it should be applied. For instance, transitional justice mechanisms have been implemented in situations devoid of any form of political transition, such as in the 210 See Buckley-Zistel, S., Koloma Beck, T., Braun, C., and Mieth, F. ‗Transitional justice theories: An introduction‘, in Buckley-Zistel, S., Koloma Beck, T., Braun, C., and Mieth, F.(Eds), Transitional Justice Theories, op.cit., p.1. 211 Such as the Second World War Trials in Nuremberg and Tokyo, as well as the establishment of international criminal tribunals, such as the tribunals for the former Yugoslavia and Rwanda. 212 See for instance Buckley-Zistel, S., Koloma Beck, T., Braun, C., and Mieth, F. ‗Transitional justice theories: An introduction‘, op. cit., p. 2 213 Ibid. 66 internal conflict of Colombia or under consolidated democracy in Argentina, 214 where there are not political transitions. 215 Similarly, the notion of transitional justice has expanded its goals. As noted by McGonigle, earliest conceptions of transitional justice were predominantly top-down processes, focusing on civil and political rights violations and consequently later criticised by this narrow emphasis. However, the latest debates are focused on the socioeconomic dimension of justice and how transitional justice can be best connected to development. 216 Certainly, this expansion has enriched the field but also blurred the boundaries of the notion of transitional justice, which raises new theoretical challenges. While there are several theories of how transitional justice strategies should be developed and implemented, we will focus in this section on the most representative ones, namely retributive, restorative, reparative and transformative justice. 217 Retributive justice theories have inspired the earliest conceptions of transitional justice. Focused on retribution through criminal trials and punishment, the judicial accountability process has been considered an end in itself. 218 The notion, thus, essentially refers to the repair of justice through unilateral imposition of punishment. Therefore, retributive justice individualises the punishment and limits the scope of possible collective guilt, 219 highlighting that no individual is above the law. 220 Accordingly, perpetrators deserve to be punished in proportion to the severity of the wrongdoing to re-establish justice. However, retributive theories are not victim- 214 We refer here to the initiatives implemented for instance during Kichners‘ administration from 2003 to 2015, as democracy was installed in Argentina in 1983. 215 Hansen, T.O., ‗The vertical and horizontal expansion of transitional justice: explanations and implications for a contested field‘, in in Buckley-Zistel, S., Koloma Beck, T., Braun, C., and Mieth, F. (Eds), Transitional Justice Theories, op. cit., pp. 105-124. 216 See for instance, Mani, R., ‗Editorial: Dilemmas of expanding transitional justice, or forging the nexus between transitional justice and development‘, International Journal of Transitional Justice, vol. 2, 2008, pp. 253–265; or Greiff, P. and Duthie, R., ‗Transitional Justice and Development: Making Connections‘, Social Science Research Council, 2009. 217 In the development of these theories, we will follow the categorization done by Brianne McGonigle Leyh in her article ‗The Socialisation of Transitional Justice: expanding justice theories within the field‘, Human Rights and International Legal Discourse, Intersentia, no.1, 2017. 218 Heikkilä, M., International Criminal Tribunals and Victims of Crime, Abo Akademi University Press, 2004, p.23. 219 Leebaw, B., ‗The Irreconcilable Goals of Transitional Justice‘, op. cit., p. 110. 220 Orentlicher, D.F., ‗Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime‘, Yale Law Review, vol. 100, no.8, 1991, p.100. 67 centred. 221 Rather, it considers punishment as a response to a violation of State rules but not as a response to the harm suffered by the victim. 222 Theories of retributive justice have been strongly criticised, especially in situations of collective violence and mass victimisation. 223 Indeed, simply judging and punishing perpetrators do not contribute to alleviating victims‘ harm or the situation in which the abuse has left them. Furthermore, most trials within the framework of transitional justice processes have been focused on civil and political rights violations. 224 Due to the failure of retributive justice to address the needs of victims and to effectively respond to mass atrocity, new justice theories have raised, attempting to bridge those gaps. Restorative justice, conversely, considers that abuses are not committed against the State, but against another individual. Consequently, restitution for the damage suffered by victims should be the main goal of justice, rather than punishment. 225 The crime is, therefore, a breach of the social relationship in the first instance, and secondly, a violation of the law. 226 Restorative justice theories then place the focus on the attempt to repair the victim. 227 As McGonigle notes, restorative justice processes are most effectively employed only after the finding or acceptance of guilt, or acceptance by the alleged perpetrator of basic facts of the wrong committed. 228 Arguably, this theory has been implemented with relative success in cases such as Rwanda, 229 South Africa 230 and 221 McGonigle Leyh, B., ‗The Socialisation of Transitional Justice: expanding justice theories within the field‘, Human Rights and International Legal Discourse, Intersentia, no.1, 2017, p.86. 222 Heikkilä, M., International Criminal Tribunals and Victims of Crime, op.cit., pp. 26–27. 223 See for instance, Clark, J.N., ‗The Limits of Retributive Justice Findings of an Empirical Study in Bosnia and Herzegovina‘, Journal of International Criminal Justice, vol. 7, 2009, pp. 463-487. 224 See for instance Sharp, D.N., ‗Addressing Economic Violence in Times of Transition: Toward a Positive-Peace Paradigm for Transitional Justice‘, Fordham International Law Journal, no.35, 2012, p. 780; or Cahill-Ripley, A., ‗Foregrounding Socio-Economic Rights in Transitional Justice: Realising Justice for Violations of Economic and Social Rights‘, Netherlands Quarterly Human Rights, no.32, 2014, p. 183. We further discuss about the traditional invisibility of ESCRs in transitional justice processes in chapter two (section three). 225 Barnett, R.E., ‗Restitution: A New Paradigm of Criminal Justice‘, Ethics, no. 87, vol. 4, 1977, pp. 287–291. 226 Luna, E., ‗Punishment Theory, Holism, and the Procedural Conception of Restorative Justice‘, Utah Law Review, vol.1, 2003, p. 228. 227 See Rauschenbach, M and Scalia, D. ‗Victims and International Criminal Justice: A Vexed Question‘, International Review of the Red Cross, vol.90, no. 870, 2008, pp.441–459. 228 McGonigle Leyh, B., ‗The Socialisation of Transitional Justice: expanding justice theories within the field‘, op.cit., p.88. 229 See for instance, Retting, M., ‗Gacaca: Truth, Justice, and Reconciliation in Postconflict Rwanda?‘, African Studies Review, vol. 51, no. 3, 2008, pp. 25-50; or de Brouwer, A.M. and E. Ruvebana, E., ‗The 68 Uganda. 231 At the individual level, the notion of restorative justice implies focusing on the victim through healing, reparation (including economic or symbolic nature) and reconciliation. At the social level, these processes aim to advance national reconciliation. 232 Main criticisms of retributive justice theories argue that simply shaming and reintegration fail to acknowledge the cultural contexts in which it may or may not be effective. 233 Indeed, purely restorative justice theories have a number of limitations in the field, such as the focus on national reconciliation, which may come at the expense of actual reparation to victims. 234 As well as restorative theories, reparative justice is focused on victims and on the reparation of harm they have suffered. Specifically, this notion supports the idea that reparations are essential in the pathway to peaceful resolution of conflicts. 235 Importantly, reparations have become a major element in transitional justice strategies. Reparations should be proportional to the harm suffered and governments should strive to develop assistance programmes for victims. In contrast to restorative justice, reparative theories do not include the condition of forgiveness, but perceive that the victim will be empowered by publicly acknowledging the wrong and tangibly making amends. 236 Admittedly, the cost of providing reparations for mass violations is high and quite difficult to calculate. In fact, State reparation policies have traditionally tended to focus on a narrow set of victims and crimes precisely due to budgetary limitations and lack of political will. Critics of this theory argue that reparative justice should aim to improve or positively transform the position of the victim within society, not simply place them back in the position they had prior to the violation. 237 Legacy of Gacaca Courts in Rwanda: Survivors‘ Views‘, International Criminal Law Review, vol.13, 2013, pp. 937–976. 230 Koska, G., ‗Corporate accountability in times of transition: the role of restorative justice in the South African Truth and Reconciliation Commission‘, Restorative Justice International Journal, vol. 4, no.1, 2016, pp. 41-67. 231 Baines, E.K., ‗The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda‘, International Journal of Transitional Justice, no.1, 2007, pp. 91–114. 232 Hayner, P.B., Unspeakable Truths: Confronting State Terror and Atrocity, op. cit., p.155. 233 Braithwaite, J., Crime, Shame and Reintegration, Cambridge University Press, 1989, p.8. 234 Leebaw, B., ‗The Irreconcilable Goals of Transitional Justice‘, op. cit., p. 116 235 McGonigle Leyh, B., ‗The Socialisation of Transitional Justice: expanding justice theories within the field‘, op. cit., p. 89. 236 Ibid. 237 See for instance, Lambourne, W., ‗Transformative justice, reconciliation and peacebuilding‘, in Buckley-Zistel, S., Koloma Beck, T., Braun, C., and Mieth F., Transitional Justice Theories, Routledge, 2014, p.20; See also Uprimmy Yepes, R., ‗Transformative Reparations of Massive Gross Human Rights 69 Following this idea, several scholars have called on including social justice in transitional justice processes. This new approach has been defined as transformative justice. While transitional justice processes have been traditionally focused on a narrow set of human rights violations, 238 transformative justice implies a more holistic approach. Supporters of these theories argue that, to have an actual impact on victims‘ positions, transitional justice strategies need to integrate mechanisms to address all human rights, including violations of economic, social and cultural rights (herein ESCRs). 239 Transformative justice theories have faced criticism and have been questioned for being thin on conceptual inspiration and making a limited impact in practice. 240 In fact, some commentators have argued that these theories seek to fundamentally change the priorities of transitional justice by challenging ‗unequal and intersecting power relationships and structures of exclusion at both the local and the global level‘. 241 Others are concerned about transitional justice becoming ‗analytically overstretched and impractical‘ 242 if it tries to include too much, so goals of social justice may be better left to other fields, such as development policies. 243 Duthie, for instance, argues that even if transitional justice as a field should become ‗development sensitive‘, it is debatable whether such linkages would be transformative enough. 244 In this same line, it should be asked whether such transformative initiatives will promote social unrest in already unstable societies in transition. Be that as it may, scholarship and Violations: Between Corrective and Distributive Justice‘, Netherlands Quarterly of Human Rights, no. 27, 2009, pp. 625–648. 238 Primarily related to body integrity and property rights, and therefore included in the category of civil and political rights. We further analyse the traditional invisibility of ESCR‘s rights in the transitional justice process in chapter two. 239 See for instance, Lambourne, W., ‗Transformative justice, reconciliation and peacebuilding‘, op. cit. p.28; Laplante, L.J., ‗On the Indivisibility of Rights: Truth Commissions, Reparations and the Right to Development‘, Yale Human Rights and Development Law Journal, vol.10, no.1, 2007, p. 141; Szoke- Burke, S., ‗Not Only ‗Context‘: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights‘, op.cit., p. 471. 240 McGonigle Leyh, B., ‗The Socialisation of Transitional Justice: expanding justice theories within the field‘, op. cit., p.92. 241 Gready, P. and Robins, S., ‗From Transitional to Transformative Justice: A New Agenda for Practice‘, The International Journal of Transitional Justice, vol.8, no.3, 2014, p. 347. 242 See for instance, Waldorf, L., ‗Anticipating the Past: Transitional Justice and Socio-Economic Wrongs‘, Social and Legal Studies, vol. 21, no. 2, 2012, p. 179; or Mani, R., Editorial: Dilemmas of expanding Transitional Justice, or forging the Nexus between Transitional Justice and Development‘, op. cit., p.255. 243 McGonigle Leyh, B., ‗The Socialisation of Transitional Justice: expanding justice theories within the field‘, op. cit., p. 94. 244 See Duthie, R., ‗Towards a Development-sensitive Approach to Transitional Justice‘, International Journal of Transitional Justice, vol. 2, no.3, 2008, p. 292. 70 practitioners have been lately calling for a broad framework, moving towards the integration of social aspects in transitional justice. As McGonigle notes, however, this call is still largely aspirational and significant empirical data is needed. 245 Hence, research could examine how and which transitional justice mechanisms would be able to integrate ESCRs violations, according to the needs and priorities of each transitional justice process. I.6 Sociopolitical elements of transitional justice processes. There are many aspects which significantly interplay in transitional contexts, from the duration of the conflict or the authoritarian regime to the intensity and type of violent repression. Those elements certainly have an impact on how the transitional justice process is further developed. For instance, in cases like Spain and Brazil, repression was hardest early on. Consequently, at transition, the passage of time had blurred the memories of what had happened, and also in many cases, direct victims or their families were no longer around to foster accountability for past abuses. 246 Furthermore, in cases where repression was particularly virulent, prosecutions of perpetrators are more likely to take place, and thus, political pacts between opposing actors are quite rare. 247 In this sense, Panizza noted that in Latin America, 'the massive and unprecedented nature' of the abuses 'made human rights a crucial component of public debate in the region'. 248 Similarly, the political transition and democratisation processes shape the upcoming transitional justice process. According to Lessa, recent waves of democratisation have followed three patterns: collapse, negotiation or transformation. 249 245 McGonigle Leyh, B., ‗The Socialisation of Transitional Justice: expanding justice theories within the field‘, op. cit., p. 94. 246 Lessa, F., The Missing Memory of Transitional Justice: How Argentina and Uruguay confronted past evils, 1983-2009., PhD Thesis defended at London School of Economics, 2009, p. 46. Document available at http://etheses.lse.ac.uk/2052/ accessed 26 March 2018. 247 Ibid. 248 Panizza, F., ‗Human Rights in the Processes of Transition and Consolidation of Democracy in Latin America‘, op. cit., p.169. 249 Lessa, F., The Missing Memory of Transitional Justice: How Argentina and Uruguay confronted past evils, 1983-2009, op. cit., p.50. Lessa also notes that others scholars have referred to these patterns as transformation, rupture and negotiation. 71 In situations of collapse, the old regime has often been weakened almost to the point of disintegration, so few political constraints exist which facilitates accountability initiatives. Collapsing can be related to different causes 250 but the main consequence is that the old regime is discredited. 251 Usually, this means that accountability initiatives proliferate, as the former government does not have the power to prevent it, but there can be exceptions. 252 In contrast, transitions by negotiation or by transformation are considered the least favourable to accountability issues. As happened in Spain, for instance, the new government is unlikely to develop accountability policies for past crimes as the outgoing regime often retains a significant power to threaten democratic consolidation. 253 Thus, in transitions by negotiation or transformation, members of the previous regime are still able to impose limitations about the democratisation process and how to deal with the past events. Negotiated transitions imply pacts and agreements between the former and the new government, usually addressing key details of the transition process. That means that the outgoing regime is still able to establish and even impose the terms of transition. 254 On the other hand, in transitions by transformations, the former government decides to gradually open up in an attempt to evolve into a democracy. It usually culminates with free elections. Consequently, the members of the old government remain powerful throughout the process and even after the democracy in installed. 255 250 For instance, due to loss of internal legitimacy, foreign intervention or defeat in an external war, as was the case of Argentina as we further analyse in Chapter V and VI of this thesis. 251 Lessa, F., The Missing Memory of Transitional Justice: How Argentina and Uruguay confronted past evils, 1983-2009, op. cit., p.51. 252 If the former regime still has many supporters within the society or an important power in some State institutions, particularly the military forces, as happened in Argentina in the first stages of the democratisation process. Indeed, during Alfonsín and Menem‘s government, military forces were pushing the government to not adopt accountability policies. 253 Calhoun, N., Dilemmas of Justice in Eastern Europe's Democratic Transitions, Palgrave Macmillan, 2004, pp.14-15; see also Gómez Isa, F., and Márquez Carrasco, C., ‗Spain: from Totalitarianism to Fulfilment‘, in 6o Years of the Universal Declaration of Human Rights in Europe, Intersentia, 2009, pp. 247-261. 254 Calhoun, N., Dilemmas of Justice in Eastern Europe's Democratic Transitions, op. cit., p.14. 255 Ibid. 72 With regard to the democratisation process and its legal status, Nino categorizes them as continuous, legal breakdown/rupture, and legal restoration. 256 In the first case, accountability appears to be harder as human rights abuses have been usually legally protected at the time of commission, and afterwards by amnesty laws or other similar provisions. Regarding the cases of legal breakdown or rupture, former government actions can be prosecuted retroactively and amnesties can be disregarded, as happened after the Second World War in Germany and Japan. 257 Lastly, in cases of legal restoration, accountability policies may present an ‗intermediate degree of difficulty‘ as new political restraints may arise as a consequence of the restoration of earlier democratic laws. 258 I.7 Intermediate conclusions This chapter explored the notion and evolution of transitional justice as a field, focusing on its defining features and its main processes and mechanisms. Transitional justice is not a static field, but on the contrary, is in constant development and being adapted to the arising challenges of the new situations. The employment of diverse mechanisms depending on the specific transitional justice process itself reflects internal and international political, historical and sociocultural dynamics unique to each particular context. Indeed, implications of IHRL and Public International Law have been evidenced, particularly with regard to the justice process. While criminal prosecutions are undeniably relevant, there are also other mechanisms to discover and deal with a violent past. Indeed, legal process could be more accurate when examining and evaluating the evidence but it has been contended that the narrow focus of the legal process could produce a limited truth. Therefore, mechanisms such as TRCs can potentially provide a broad picture of past events. Other mechanisms such as economic reparations have proof to alleviate victims‘ harm and even contribute to transformative effects, although resources are frequently limited due to budgetary constraints. Institutional reform can also contribute to recover State institutions, as well as to restore trust in them. However, this task is often hampered by 256 Nino, C. S., Radical Evil on Trial, Yale University Press, 1996, p. 120. 257 Ibid. 258 Ibid. 73 the lack of political will to carry out the political and structural reforms needed, particularly when reforms might also entail accountability initiatives. It has also been suggested that political variables and several actors certainly influence the design and implementation of transitional justice strategies. Consequently, different approaches and theories have been developed and implemented depending on the specific circumstances of each transitional justice process. While retributive justice inspired the first transitional justice theories, it was revealed that only judging and punishing perpetrators does not contribute to alleviating victims‘ harm or the situation in which the abuse has left them. Therefore, other theories emerge, such as restorative justice and reparative justice, which focus on restitution and reparation as the main goal of justice. However, these last theories still present many limitations, such as a narrow focus on reconciliation at the expense of victims‘ redress, as well as financial constraints to implement economic reparations. Ultimately, several commentators contended that social justice should be included in transitional justice processes, which has led to a new approach called transformative justice. While this approach implies addresings all human rights, including violations of ESCRs, they have been questioned for being thin on conceptual inspiration and making a limited impact in practice. It has been argued that moving towards the integration of social aspects in transitional justice would be desirable, so research could examine how and which transitional justice mechanisms would be able to integrate ESCRs violations, according to the needs and priorities of each transitional justice process. Despite those specificities, there are also many elements in common within different transitional justice processes. Thus, previous experiences can serve as models, and mechanisms used there can be adapted to the specific contexts and challenges for new cases in the future. 80 While various international and regional mechanisms have been established to monitor States‘ compliance, justiciability of ESCRs still presents many challenges. 281 At international level, the Committee on Economic, Social and Cultural Rights monitors the compliance of State parties with their obligations under the Covenant. The Committee reviews their periodic reports and issues concluding observations and recommendations. With the entry into force of the Optional Protocol to the Covenant in May 2013, the Committee can also hear individual complaints and initiate inquiry procedures regarding alleged violations of the Covenant (ICESCR). At the regional level, both the Inter-American Court of Human Rights and the African Court on Human and Peoples‘ Rights have the competence ratione materiae to raise the legal enforceability of the ESCRs catalog recognized within their jurisdiction. 282 By contrast, the ECtHR is limited in this sense, given that the European Convention on Human Rights and their Additional Protocols recognise ESCRs in a more restricted manner. 283 While the European Social Charter allows the reporting of collective complaints for ESCRs, 284 only certain non-governmental organisations are entitled to lodge collective complaints concerning the Charter and individuals are not entitled to do so. On the other hand, the use of regional and domestic courts and quasijudicial mechanisms has significantly increased in the last decades, 285 which has 281 Saura Estapà, J., ‗La exigibilidad jurídica internacional de los derechos humanos: especial referencia a los derechos economómicos, sociales y culturales‘, in Bonet Pérez, J., and Saura Estapà, J.(eds), El derecho Internacional de los derechos humanos en periodos de crisis. Estudios desde la perspectiva de su aplicabilidad, Marcial Pons, 2013, p.59. 282 In the Inter-American system this is based in art. 62, relating arts. 44 and 45 of the American Convention of Human Rights of 1969, and the article 19 of Additional Protocol to the American Convention on Human Rights in the area of ESCRs of 1988. (Protocolo de San Salvador). In the African system, arts. 3 and 5 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights of 1988, in relation to arts. 47 and 55 of the African Charter on Human and Peoples' Rights of 1981. 283 Bonet Pérez, J., ‗Introducción general: presupuestos y dinamismo evolutivo de la exigibilidad jurídica internacional de los derechos económicos, sociales y culturales‘, in Bonet Pérez, J., and Alija Fernández, R.A., La exigibilidad de los derechos económicos, sociales y culturales en la Sociendad Internacional del siglo XXI: una aproximación jurídica desde el Derecho internacional, op.cit., p. 18. 284 The Collective Complaints procedure was introduced by the Additional Protocol in 1995. 285 See for instance the communications system of the ICESCRs or the complaints system of the European Social Charter, both of them coordinated by the corresponding Committees. 81 contributed to overcoming the traditional scepticism about the justiciability of ESCRs. 286 II.3 Labour rights as ESCRs: a particular focus on freedom of association at the workplace II.3. A Labour rights as human rights The question of whether labour rights must be considered as human rights has given rise to heated debates. While in human rights law and labour law scholarship some endorse the character of labour rights as human rights without hesitation, 287 others view it with skepticism and suspicion. 288 Attending to their definitions, while human rights are universal and possessed by all human beings by virtue of their humanity, labour rights can be defined as the set of rights that humans possess by virtue of their status as workers. 289 Notwithstanding that, some scholars have argued that workers should not be viewed as economic interests, but rather as bearers of fundamental human rights. 290 In 1998, the International Labor Organization (ILO) famously generated the Fundamental Declaration on Principles and Rights at Work (Fundamental Declaration). 291 The Fundamental Declaration was partly an attempt to achieve a degree of moral, political, and legal consensus on what constitutes universally recognized labor rights. It asserts that all member States of the ILO, regardless of which specific labour 286 Langford, M., ‗The justiciability of social rights: from practice to theory‘, in Langford, M. (ed.) Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, Cambridge University Press, 2008. 287 See for instance, Canessa Montejo, M.F., 'Los Derechos Humanos Laborales en el Derechos Internacional', Revista Latinoamericana de derechos humanos, vol. 23, no.1, 2012, pp. 115-144.; Drzewicki, K., 'The right to work and Rights in Work', Economic, Social and Cultural Rights, Kluwer, 2001, 2 edition, p 223; Ssenyonjo, M., ‗Economic Social and Cultural Rights: An Examination of State Obligations‘, in Joseph and McBeth (eds.), Research Handbook on International Human Rights Law, Edward Elgar, 2010, p. 36. 288 Mantouvalou, V., 'Are Labour Rights Human Rights?' , European Labour Law Journal, 2012.p.1 289 Kolben, K., ‗Labor Rights as Human Rights?‘, Virginia Journal of International Law , vol. 50, no.2, 2010, p.453. 290 See for instance, Adams, R., ‗Labor‘s Human Rights: A Review of the Nature and Status of Core Labor Rights as Human Rights‘, Human Rights and Human Welfare, Working Paper nº36, 2006. 291 Full document available at: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--- declaration/documents/publication/wcms_467653.pdf accessed 28 March 2018. 82 conventions they have ratified, are bound by a set of four ‗core labour standards‘, consisting of freedom of association, freedom from forced labour and from child labour and non-discrimination in employment. These enumerated rights differ from the broader conception in part because they do not necessarily require a given level of economic advancement. Some scholars, however, State that such a narrow conception of labour rights is limiting, and favor a more expansive account of labour rights. They argue that the entire corpus of rights, as embodied in the essential international human rights conventions and the ILO‘s conventions and jurisprudence, ought to be treated as fundamental and co-equal labor rights. 292 These rights include not only the civil and political rights highlighted in the Fundamental Declaration, but also the so-called ‗social rights‘, such as the right to ‗full and productive employment‘ as provided for in the International Covenant on Economic, Social, and Cultural Rights, 293 and the labour-related social rights included in the Universal Declaration of Human Rights (UDHR). 294 These scholars are opposed to the Fundamental Declaration because they argue that it excludes a number of what they consider economic and social rights, such as the minimum wage and health and safety standards. 295 By contrast, Langille and Maupain, noted international labour lawyers, argue that the heartland of labour rights is the core of 'procedural' or 'enabling' rights. 296 In particular, Langille argues that labour law and labour lawyers differentiate between labour rights, which are procedural in nature and labour standards, which are outcome- 292 See for instance Alston, P., ―Core Labour Standards‘ and the Transformation of the International Labour Rights Regime‘, European Journal of International Law, no.15, 2004, p. 457. See also Alston, P., and Heenan, J., ‗Shrinking the International Labor Code: An Unintended Consequence of the 1998 ILO Declaration on Fundamental Principles and Rights at Work?‘, New York University Journal of International Law and Politic, no.36, 2004, p. 221. 293 International Covenant on Economic, Social, and Cultural Rights (herein after ICESCR), 1966. Art. 6. 294 These rights include the right to work, free choice of employment, just and favorable conditions of work, and protection against unemployment. Universal Declaration of Human Rights. U.N. Doc. A/810, 1948. 295 Alston, P., and Heenan, J., ‗Shrinking the International Labor Code: An Unintended Consequence of the 1998 ILO Declaration on Fundamental Principles and Rights at Work?‘, op.cit., p. 253–256. 296 Langille, B., ‗Core Labour Rights—The True Story (Response to Alston)‘, European Journal of International Law, vol. 16.3, 2005, pp. 409-429; Maupain, F., ‗Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers‘ Rights‘, European Journal of International Law, vol. 16.3, 2005, pp. 439-448. 83 based. 297 Some components of labour regulation provide rights to workers that guarantee processes, such as freedom of association and collective bargaining, while other components might prescribe substantive standards that employers must meet, such as specified levels of health and safety and wages. 298 Langille accuses Alston of conflating these two concepts and argues that the Fundamental Declaration is coherent and desirable because it takes an approach to labour law and labour rights that emphasizes worker agency. 299 All positions considered, what seems to be undeniable is that certain labour rights are compelling, stringent, universal and timeless entitlements, as much as some civil and political rights such as the right to privacy or the prohibition of slavery. The recognition that certain labour rights are human rights does not imply that human rights exhaust labour law as a field of study but that some labour rights are stringent normative entitlements. 300 Indeed, a number of labour rights have been codified in human rights instruments, such as the ICESCR. 301 With regard to the International labour standards, it is worth mentioning that the ILO regularly examines the application of standards in member States and points out areas where they could be better applied. If there are any problems in the application of standards, the ILO seeks to assist countries through social dialogue and technical assistance. The ILO has developed various means of supervising the application of Conventions and Recommendations in law and practice, following their adoption by the International Labour Conference and their ratification by States. On the one hand, there is the regular system of supervision, which includes examination of periodic reports, submitted by member States on the measures they have taken to implement the provisions of the ratified Conventions. 302 On the other hand, there are the special 297 Langille, Ibid. pp. 428-29 298 Ibid. 299 Ibid. p. 431. 300 Mantouvalou, V., 'Are Labour Rights Human Rights?', op.cit., p.27. 301 For instance, the right of everyone to the enjoyment of just and favourable conditions of work (article 7) and the right of everyone to form trade unions and join the trade union, as well as the right to strike (article 8). 302 Examination by two ILO bodies of reports on the application in law and practice sent by member States and on observations in this regard sent by workers‘ organizations and employers‘ organizations. 84 procedures, which are based on the submission of a representation or a complaint. 303 In addition, the Committee of Experts publishes an in-depth annual General Survey on member States‘ national law and practice, on a subject chosen by the Governing Body. These surveys are established mainly on the basis of reports received from member States and information transmitted by employers‘ and workers‘ organisations. They allow the Committee of Experts to examine the impact of conventions and recommendations, to analyse the difficulties indicated by governments as impeding their application, and to identify means of overcoming these obstacles. II.3.B Freedom of association at the workplace: the right to form and join trade unions and the right to collective bargain The right to form and join trade unions belongs to a larger group or category, namely the right to freedom of association. Recognised in the article 20 of the UDHR, this provision reveals that ‗everyone has the right to freedom of peaceful assembly and association‘ and ‗no one may be compelled to belong to an association‘. 304 The right to freedom of association is the right to associate for social, political, religious or industrial reasons. 305 Whether freedom of association is an individual right not to associate, or involves interrelated rights of a more collective nature, has been the subject of fierce debate both on a domestic and international level. 306 At the workplace, freedom of association translates to the right to form and join trade unions and the right to collective bargain. The UDHR also expressly recognises 'The right to join trade unions and the right to collective bargaining‘ in its Article 23.4. A further recognition of this right can be found in the ICESCRs, article 8: 1. The States Parties to the present Covenant undertake to ensure: 303 These are the special procedures for representations on the application of ratified Conventions, the special procedure for complaints over the application of ratified Conventions and the special procedure for complaints regarding freedom of association through the Freedom of Association Committee. 304 This right is also recognised in hard law instruments, such as the ICCPR (article 22), and regional treaties such as the ECHR (article 11). 305 As it is enshrined in international instruments such as the International Covenant on Civil and Political Rights, adopted Dec.19, 1966. 306 For a further debate, see for instance Owens, R., and Riley, J. and Murray, J., The Law of Work, Oxford University Press, 2007. 85 (a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations; (c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; (d) The right to strike provided that it is exercised in conformity with the laws of the particular country. 2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. 3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention. 307 In addition, these rights have been recognized in the preamble to the Constitution of International Labour Organisation in 1919, at the end of World War I. The body‘s mission was based on the principles that labour is not merely a commodity and that social justice is necessary for world peace. A new preamble was adopted after World War II, when the ILO became a United Nations body, and freedom of association was again endorsed as a key method for attaining social justice and universal and lasting 307 ICESCRs, article 8. 86 peace. 308 Indeed, the obligation for member States to protect freedom of association is often regarded as a requirement of ILO membership. 309 Two major conventions related to these rights have emerged out of the ILO system, namely the Freedom of Association and Protection of the Right to Organise Convention (No 87) 310 and the Right to Organise and Collectively Bargain Convention (No 98). 311 These conventions define the scope of those rights in more detail. Convention 87 provides protection to freedom of association in two key ways: firstly, providing protection for the right of workers and employers to form and join organizations, and secondly, it provides protection for the autonomy of these organizations, once established, to further the interests of its members. 312 Convention 98, to a significant extent, complements Convention 87, requiring that workers enjoy adequate protection against anti-union discrimination. 313 A substantive function of Convention 98 is to enable collective bargaining between employers and unions. Indeed, under article 4, State parties must take steps to encourage and promote collective agreement. 314 While neither of these conventions make express reference to the right to strike, supervisory bodies have taken the view that it is an integral aspect of freedom of association. 315 These treaties have also been complemented by later instruments dealing with the specific application of freedom of 308 Hutchinson, Z., ‗The Right to Freedom of Association in the Workplace: Australia's Compliance with International Human Rights Law‘, Pacific Basin Law Journal, vol. 27, no.2, 2010, p.128. 309 Creighton, B., ‗Freedom of Association‘, in Blanpain, R (ed), Comparative labour law and industrial relations in industrialized market economies, Kluwer Law International, 2007, p. 275-276. The International Labour Organization (ILO) is the specialized U.N. body on issues of social justice and labor conditions. It has a distinctive tripartite structure whereby decisions are not only made by States but also by employers‘ and workers‘ representatives. Since its inception in 1919 it has adopted numerous conventions and recommendations dealing with labor rights. The ILO has one of the most highly developed supervisory systems in international human rights law. Under art. 22 of the ILO Constitution member States are required to send reports at regular intervals on their implementation of ILO recommendations, in addition to ILO conventions that they have ratified. 310 Freedom of Association and Protection of the Right to organise Convention, adopted July 9, 1948. 311 Right to Organise and Collective Bargaining Convention, adopted July 1, 1949. 312 Convention 87, articles II-V. 313 Convention 98, article I. 314 Convention 98, article IV. 315 ILO Committee of Experts on the Application of Conventions and Recommendations, Individual Observation concerning freedom of association and protection of the right to Organise Convention, ILO Doc 062009AUS087, 2009. 87 association in particular industries. 316 It is worth mentioning at this point that the ILO conventions and the jurisprudence of the treaty monitoring bodies have mainly been focused on the collective aspects of the right to freedom of association. However, a dichotomized view about the right as either 'individual' or 'collective' is overly simplistic as Hutchinson has pointed out. 317 At the European level, the European Convention on Human Rights specifies trade union membership as an important right essential to democracy: ‗everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests‘ (Article 11). In addition, the right to ‗freedom of association in national or international organisations for the protection of their economic and social interests‘ and ‗the right to bargain collectively‘ are enshrined in the European Social Charter, adopted in 1961. 318 This document was revised in 1996, when the rights of workers‘ representatives in undertakings were included. 319 On the other hand, the Charter of Fundamental Rights of the European Union recognises the right to fair and just working conditions (article 31) protection from unjustified dismissal (article 30) a guarantee of timely information and consultation (article 27) and to the right of collective bargaining and collective action including the right to strike (article 28). The European Court of Human Rights set forth the main principles concerning trade union freedom in its judgment National Union of Belgian Police v. Belgium, 27 October 1975. 320 Therefore, the Court Stated that Article 11 safeguards the right to form 316 Labour relations (Public Service) Convention, Protection of the Right to Organise and Procedures for determining conditions of Employment in the public service, C151, ILO/ CONF.64, (June 27, 1978); Workers' Representative Convention, Protection and Facilities to be afforded to Workers' Representatives in the Undertaking, C135, ILO/CONF.56 (June 23, 1971); Rural workers' organisations Convention, Organisation of rural workers and their role in economic and social development, C141, ILO/CONF.60 (June 23, 1975). 317 The ILO Conventions clearly recognise the right as simultaneously individual and collective in key areas. For instance, provisions prohibiting discrimination on the basis of union membership are directly enjoyed by individuals as well as groups or organisations. 318 Part I, point 5 and 6. 319 Part I, point 21. 320 ECtHR, National Union of Belgian Police v. Belgium, Merits, just satisfaction, App no 4464/70 (A/19), (1979-80). In this case, the applicant trade union complained that the Belgian Government had not recognised it as one of the most representative organisations which the Ministry of the Interior was required by law to consult. The Court held that there had been no violation of Article 11 of the Convention, finding that the applicant trade union had other means of acting vis -à-vis the government, 88 a trade union and to join the trade union of one‘s choice; the right to be heard and ‗freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible‘. Similarly, the Grand Chamber identifies the very essence of this right in its judgement Demir and Baykara v. Turkey, 12 November 2008. 321 The Court held that the restrictions imposed on the three groups mentioned in Article 11, namely members of the armed forces, of the police or of the administration of the State, were to be confined to the ‗exercise‘ of the rights in question. Therefore, such restrictions could not impair the very essence of the right to organise. The Court also noted that the development of its case-law regarding the right of association enshrined in Article 11 was shaped by two guiding principles: firstly, the Court took into consideration the totality of the measures taken by the State concerned in order to secure trade-union freedom, allowing for its margin of appreciation; secondly, the Court did not accept restrictions that affected the essential elements of trade-union freedom, without which that freedom would become devoid of substance. Given that these two principles were correlated, this implied that the State was under an obligation to take account of the elements regarded as essential by the Court‘s case-law. 322 besides consultations with the Ministry of the Interior. The Court further considered that Belgium‘s general policy of restricting the number of organisations to be consulted was not in itself incompatible with trade union freedom and was a matter for the State‘s discretion. 321 ECtHR, Demir and Baykara v. Turkey, Merits and just satisfaction, App no 34503/97, (2009) 48 EHRR 54, IHRL 3281. The case concerned the failure by the Court of Cassation in 1995 to recognise the applicants‘ right, as municipal civil servants, to form trade unions, and the annulment of a collective agreement between their union and the employing authority. The trade union Tüm Bel Sen was founded in 1990 by civil servants from various municipalities. In 1993, the trade union entered into a collective agreement with Gaziantep Municipal Council regulating all aspects of the working conditions of the Council‘s employees, including salaries, benefits and welfare services. Considering that the Council had failed to fulfil certain of its obligations under the agreement, the trade union brought proceedings against it in the Turkish civil courts. It won its case in the Gaziantep District Court, which found in particular that although there were no express statutory provisions recognising a right for trade unions formed by civil servants to enter into collective agreements, this lacuna had to be filled by reference to international treaties such as the conventions of the International Labour Organisation (ILO) which had already been ratified by Turkey and which, by virtue of the Constitution, was directly applicable in domestic law. However, on 6 December 1995 the Court of Cassation ruled that in the absence of specific legislation, the freedom to join a trade union and to bargain collectively could not be exercised. It contended that, at the time the union was founded, the Turkish legislation in force did not permit civil servants to form trade unions. It concluded that Tüm Bel Sen had never enjoyed legal personality, and therefore did not have the capacity to take or defend court proceedings. 322 Ibid., para. 140-170. 89 On the other hand, the American Convention on Human Rights (Pacto de San José, Costa Rica) 323 also contains the right to freedom of association in a general way in its article 16. Further and specific recognition can be found in the Additional Protocol to the American Convention on Human Rights (Protocol of San Salvador) that contains references to ESCRs. Article 8 of this Additional Protocol specifically refers to Trade Unions Rights in the following terms: 1. The States Parties shall ensure: a. The right of workers to organize trade unions and to join the union of their choice for the purpose of protecting and promoting their interests. As an extension of that right, the States Parties shall permit trade unions to establish national federations or confederations, or to affiliate with those that already exist, as well as to form international trade union organizations and to affiliate with that of their choice. The States Parties shall also permit trade unions, federations and confederations to function freely; b. The right to strike. 2. The exercise of the rights set forth above may be subject only to restrictions established by law, provided that such restrictions are characteristic of a democratic society and necessary for safeguarding public order or for protecting public health or morals or the rights and freedoms of others. Members of the armed forces and the police and of other essential public services shall be subject to limitations and restrictions established by law. 3. No one may be compelled to belong to a trade union. The Inter-American Court of Human Rights has recently recognised the elevated status of Trade Unions to access the Inter-American system. 324 By unanimously concluding that legal entities do not have the standing to directly access the Inter- American system in a contentious process as presumptive victims, the Court explicitly 323 American Convention on Human Rights, adopted in November 1969. Full document available at: https://www.oas.org/dil/esp/tratados_b-32_convencion_americana_sobre_derechos_humanos.htm accessed 28 March 2018. 324 Cornell, A.B., 'Inter-American Court Recognizes Elevated Status of Trade Unions, Rejects Standing of Corporations', Cornell University Law School, vol. 3, 2017, pp. 39-44. 96 socioeconomic issues often gets lost, so an accurate understanding of ESCRs and the obligations they impose is needed. 364 ESRCs are just one aspect of the socioeconomic dimension of transitional justice. According to them, these misconceptions about the legal framework led many commentators to conclude that inclusion of ESCRs needs to rethink transitional justice as a whole. 365 They rightly argue that transitional justice is not conceptualized uniformly, and the specific definitions accorded to transitional justice are not understood uniformly. 366 Thus, even within narrow and classic definitions of the field, 367 inclusion of ESCRs is perfectly conceivable, and addressing many violations of ESCRs can be relatively straightforward, particularly those related to States‘ negative obligations. 368 For instance, they argue that while determining the full scope of the State‘s maximum resources available may require a complex analysis, the scope of the obligation to gather disaggregated data on ESRCs enjoyment across society is much clearer. Additionally, there are some ESCRs rights which do not require significant resources, and therefore, they should be implemented immediately, such as the right to form and join trade unions and to collective bargain. Ultimately, Schmid and Nolan note that those who advocate for more attention to ESRCs in transitional justice should acknowledge the limitations of human rights law in bringing about rapid and sustainable social change. 369 This author agrees that it is unrealistic to expect that the inclusion of ESRCs will resolve the full extent of the socioeconomic challenges at stake in a post-conflict or post-authoritarian context, but that does not mean that they have no 364 Ibid. p.3. They summarized the ways that many authors have used ESCR language in four inaccurate dichotomies: discrete versus structural; short term versus long term; simple versus complex; violations/abuses versus background issues. 365 Ibid. p.18. 366 Ibid. p.19 367 Such as the one made by Teitel in the following terms ‗as the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes‘. Teitel, R., ‗Transitional Justice Genealogy,‘ op. cit., p.69. Furthermore, the UN secretary general defines transitional justices as ‗the full range of processes and mechanisms associated with a society‘s attempt to come to terms with a legacy of large-scale past abuses.‘, ‗Guidance Note of the Secretary-General on the United Nations Approach to Transitional Justice‘, March 2010. 368 Schmid, E., and Nolan, A., ―Do No Harm‘? Exploring the Scope of Economic and Social Rights in Transitional Justice‘, op. cit., p.378. 369 About the ability of law to bring about social change, see for instance, Rosenberg, G.N., The Hollow Hope: Can Courts Bring About Social Justice?, University of Chicago Press, 2008. About the ability of the legalization and judicialization of ESRCs to bring about social change, see for instance, Gargarella, R., Domingo, P. and Roux, T. (eds.), Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? Ashgate,2006. 97 contribution to make towards such broader goals. 370 Transitional justice will not be truly effective if violations of ESCRs continue to be omitted or limited to the background of conflict or repression. 371 However, while transitional justice should no longer ignore ESCRs violations, this author agrees that it cannot be assumed that transitional justice would solve by its own means the consequences of those violations. Rather, transitional justice strategies should be designed and implemented together with development programmes in transitional contexts, so they can work together in the area of socioeconomic rights to improve their enjoyment. 372 Be that as it may, this new holistic and inclusive interpretation of transitional justice has been taken up by the United Nations 373 and the European Union 374 at institutional level. Although initiatives in this sense have not completely changed the traditional paradigm of transitional justice, they endorse greater emphasis on ESCRs violations in transition. Indeed, the Office of the UN High Commissioner produced in 2014 a report about how to better address ESCRs through the existing mechanisms in transitional justice processes. 375 Notably, this document called for more sustained and detailed research in the area of transitional justice, root causes of conflict and largescale violations of ESCRs. 376 On the other hand, many truth commissions have begun to examine ESCRs and expanded their scope to broader socioeconomic issues, such as those of Sierra Leone 377 and Timor Leste. 378 Likewise, debates on prospective truth 370 Schmid, E., and Nolan, A., ―Do No Harm‘? Exploring the Scope of Economic and Social Rights in Transitional Justice‘, op. cit., p.379. 371 Cahill-Ripley, A., ‗Foregrounding socio-economic rights in transitional justice: realising justice for violations of economic and social rights‘, op. cit., p. 213. 372 See for instance, De Greiff, P., ‗Articulating the Links between Transitional Justice and Development: Justice and Social Integration‘, in De Greiff, P. and Duthie, R.(eds), Transitional Justice and Development: Making connections. New York, op. cit., p. 63. 373 United Nations, Guidance Note of the Secretary-General on the United Nations Approach to Transitional Justice, March 2010. Document available at https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf accessed 2 April 2018. 374 Council of the European Union, Secretary-General of the European Commission, Joint Staff Working Document: The EU‘s Framework on support to transitional justice, Doc. SWD 158 final, 7 August 2015. 375 OHCHR, ‗Transitional Justice and Economic, Social and Cultural Rights‘, op. cit. 376 Ibid. pp. 58–59. 377 The truth commission in Sierra Leone named several socioeconomic abuses as ‗violations‘ and formulated a range of recommendations relating to many of those identified violations. Sierra Leone Truth and Reconciliation Commission, Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission, vol. 2 (October 2004). 378 The truth commission in Timor-Leste identified several violations of ESCRs and emphasized the need to examine them alongside the relevant legal instruments related to ESRCs and other human rights. 98 exercises to examine ESCRs issues are ongoing in some countries, such as in Argentina. 379 II.5 Addressing ESCRs in transitional justice processes Arguments in favour of including violations of ESCRs in transitional justice processes support the idea that socioeconomic grievances are often an important element of conflict dynamics and part of the root causes of conflict. Similarly, properly addressing ESCRs could contribute to preventing the renewal of violence and human rights violations. 380 An important clarification should be made at this point: it is not the same to investigate economic crimes and to address ESCRs violations, even if the two domains are closely related. ESCRs are entitlements of individuals or groups that create obligations for States -and in a limited way, to non-State actors- 381 so failure to comply with them primarily engages the State‘s international responsibility. On the other hand, economic crimes look at individual –or in some instances, corporations‘- 382 criminal responsibility. However, States may be unable to comply with their international obligations when economic crimes affect the availability of State resources. Furthermore, State agents may be involved in economic crimes or turn a blind eye to them. Such behaviour could engage the international responsibility of the State if, as a result of such conduct, the State fails to comply with its human rights obligations. Ultimately, while both fields are interrelated, this thesis focuses on violations of Commission for Reception, Truth and Reconciliation Timor-Leste, Chega! (October 2005), parts 7 and 2, Annex A (esp. paras. 128–132). 379 In 2015, the Congress adopted a resolution to set a Commission to examine aspects related to ESRCs, particularly economic crimes and corporate participation. However, as we more deeply analyse in our Chapter six, the commission has not been established to date. 380 See for instance, Szoke-Burke, S., ‗Not Only ‗Context‘: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights‘, op. cit., p. 471; See also 381 See for instance Clapham, A., ‗Human Rights Obligations for Non-State-Actors: Where are We Now?‘, op. cit. We further analyse this issue with regard to corporations in chapter three. 382 Ibid. 99 ESCRs, without ignoring the importance of considering economic crimes alongside the examination of violations of ESCRs. 383 Some traditional transitional justice mechanisms have been used when trying to address ESCRs. However, they have been often fairly limited in scope. The OHCHR highlighted the role of truth commissions, judicial and quasi-judicial proceedings, reparations and institutional reform when addressing ESCRs violations in transitional justice, in its latest report on the topic. 384 Waldorf also highlighted that the two mechanisms that have gone furthest in handling economic and social wrongs are truth commissions and reparations. 385 On the other hand, Sriram states that there are four domains in which economic harms 386 and transitional justice may and have been linked, although not to the same degree and in very different ways: through judicial measures, through Truth Commissions, through reparations, and through development programming. 387 This section explores how ESCRs can be effectively addressed by mechanisms of the four main processes of transitional justice analysed in chapter one, namely Truth Commissions, judicial processes, reparations programs and institutional reform. II.4.A Truth Commissions Truth commissions have lately been considered as suitable instruments for addressing the root causes of conflict or repression and violations of ESCRs. Owing to their often limited mandates, most TRCs have focused on violations of CPRs, but they 383 See for instance, De Greiff, P., ‗Articulating the Links between Transitional Justice and Development: Justice and Social Integration‘, in De Greiff, P. and Duthie, R.(eds), Transitional Justice and Development: Making connections. New York, op. cit., p. 41. 384 OHCHR Publication, ‗Transitional Justice and Economic, Social and Cultural Rights‘, op. cit., p. 16. 385 Waldorf, L., ‗Anticipating the Past: Transitional Justice and Socio-Economic Wrongs‘, op. cit., p.175. 386 Sriram, in her own words, takes in her article ‗a broad view of ‗socioeconomic concerns‘ deliberately, so as to be able to draw upon several interwoven literatures dealing with the violation and protection of ESCRs, the economic dimensions of violent conflict, economic justice and redistribution, and development.‘ Lekha Sriram, C., ‗Liberal Peacebuilding and Transitional Justice: What Place for Socioeconomic Concerns?‘, op. cit., p. 27 387 Similarly, Sriram States that in some instances, responses to economic harms have taken place outside of official transitional justice processes, although in situations in which transitional justice processes either exist or might also have been contemplated. Lekha Sriram, C., ‗Liberal Peacebuilding and Transitional Justice: What Place for Socioeconomic Concerns?‘, op. cit., p.40. 100 have given some attention to the root causes of conflict or repression and therefore, considered issues that affect the enjoyment of ESCRs, as has been usually reflected in their conclusions and recommendations. 388 However, they have generally failed to investigate fully the socioeconomic background to the conflict/repression under consideration, to elucidate the structural violence of the past or to fully grapple with the economic aspects of transition. 389 Despite the fact that TRCs are seldom mandated to expressly address violations of ESCRs, they are frequently expected to address the socio-political context underlying the conflict or repression they examine. Indeed, some TRCs have already attempted to address ESCRs violations with different outcomes. Although their reports often analyse socioeconomic elements underpinning conflict, they are unable to mandate significant change. For instance, the South African Truth and Reconciliation Commission narrowly focused on ‗bodily integrity rights‘ rather than on apartheid economic crimes and their impact on ESCRs as this was not in its mandate. 390 The social, economic and political system of apartheid was largely treated as context to instances of egregious bodily harm that became the TRC‘s main focus. The TRC has been indeed strongly criticised for failing to see apartheid as the fundamental crime or to address the wide range of silent beneficiaries of it. 391 Conversely, Timor Leste‘s Commission for Reception, Truth and Reconciliation (known by its Portuguese acronym, CAVR) found that Indonesia‘s ‗authoritarian style of government‘ and its ‗close collaboration with special interests‘ led it to breach its 388 Hayner, P., Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, Routledge, 2011, p. 77. See also the Final Report of South African Truth and Reconciliation Commission, vol.5, conclusions. 389 Miller, Z., ‗Effects of invisibility: In search of the ‗economic‘ in transitional justice‘, op. cit., p.276. 390 As noted by Koska and others, within the scope of its mandate, the TRC in South Africa could have formally investigated allegations of labour violations. See Koska, G., ‗Corporate accountability in times of transition: the role of restorative justice in the South African Truth and Reconciliation Commission, Restorative Justice,‘ Restorative Justice, vol. 4, no.1, 2016, p. 50. See also Spirer, H. and Spirer, L. ‗Accounting for human rights violations by non-State actors‘, in Andreopoulos, G., Kabasakal, Z., and Juviler, P. (Eds.), Non-State actors in the human rights universe, Kumarian Press, 2006, pp. 48. 391 See e.g., Mamdani, M., ‗Reconciliation without Justice‘, Southern African Review of Books, vol. 46, 1996, pp. 25-27. 101 duty to fulfill ESRs. 392 Ultimately, however, it established that victims of these harms should not be considered to be beneficiaries for reparation, based on feasibility concerns and needs-based prioritisation. 393 The report of the Sierra Leonean Commission also devoted a significant place to the underlying causes of conflict, highlighting corruption and poor governance and natural resources, among others. 394 To carry out its mandate, the Commission adopted categories of violations, including ‗economic violations‘, 395 such as destruction of property, looting and extortion. 396 However, the TRC did not use relevant concepts such as minimum core obligations in its analysis of ESCRs. Very little was done likewise to implement its recommendations to address such violations. 397 Similarly, the Truth and Reconciliation Commission‘s report in Liberia emphasized poverty, corruption and inequality as underlying causes of the conflict, but it did not provide any legal analysis of the violations of ESCRs. 398 Other truth commission reports such as from Guatemala and Peru addressed the socioeconomic factors behind the conflicts, including dispossession, inequality, exclusion, and even the colonial legacy. Nonetheless, socioeconomic factors were mostly relegated to the sections on historical background, where they could be more easily ignored. 399 Some scholars have argued that TRCs should do more to remedy socioeconomic wrongs. Mani, for instance, contends that ‗truth commissions should go further than analysis of causes and should propose workable solutions for these (social) 392 Chega! The report of the Commission for reception, Truth, and Reconciliation in Timor-Leste. Executive summary, 2006. Document available at: http://chegareport.net/Chega%20All%20Volumes.pdf accessed 3 April 2018. 393 Ibid. paras 40–41. 394 Sierra Leone Truth and Reconciliation Commission, ‗Witness to Truth: Report of the Sierra Leone Truth and Reconciliation Commission‘, vol. 2. Report Three A, Chapters 1-4, 2004. Available at http://www.sierraleonetrc.org/index.php/view-the-final-report/download-table-of-contents/volume-three- a/item/witness-to-the-truth-volume-three-a-chapters-1-4?category_id=13 accessed 3 April 2018. 395 Ibid. vol. 3 A, chapter. 4, para. 14. 396 Ibid. para. 19. 397 McGonigle Leyh, B., ‗The Socialisation of Transitional Justice: expanding justice theories within the field‘, op. cit., p.93. 398 Republic of Liberia Truth & reconciliation Commission, 2 consolidated final report, 2009, p.16-17. Document available at: http://www.pul.org.lr/doc/trc-of-liberia-final-report-volume-ii.pdf accessed 3 April 2018. See also Schmid, E., ‗Liberia‘s Truth Commission Report: Economic, Social, and Cultural Rights in Transitional Justice‘, PRAXIS: The Fletcher Journal of Human Security XXIV, 2009, p. 5–28. 399 Waldorf, L., ‗Anticipating the Past: Transitional Justice and Socio-Economic Wrongs‘, op.cit., p.176. 102 injustices‘. 400 Alternatively, Szoke-Burke proposes to include both CPRs and ESCRs sets within the mandate of a truth commission, or having a separate but related ‗arm‘ of a commission charged with making recommendations regarding prevention of ESRCs violations. 401 However, TRC recommendations are often ignored, not because they are unworkable, but because those commissions are inherently weak institutions with short lifespans. While TRCs offer greater flexibility to collect information and to compose a fuller picture of violent past through inclusion and dialogue, there is the danger of overburdening the mandates, which usually operate with limited resources. II.4.B Judicial Processes There have been relatively few attempts at litigation on ESCRs violations per se in transitional justice strategies. Instead, most of the transitional processes have focused on abuses committed by States and non-State actors, which involve economic harm but not specifically ESCRs violations, and resulted in violations of certain CPRs. 402 While both criminal and civil justice mechanisms face jurisdictional and other limitations, they can constitute a useful avenue to address violations of ESCRs, as well as the root causes of conflict or repression. Indeed, relevant jurisprudence related to ESCRs in transitional justice contexts can be found in the judgments of the Inter- American Court of Human Rights and the International Criminal Tribunal for the Former Yugoslavia, as is analysed below. It is worth noting likewise that the inclusion of ESCRs in State constitutions provides another means of litigation, namely through domestic constitutional claims. 403 400 Mani, R., ‗Editorial: Dilemmas of expanding transitional justice, or forging the nexus between transitional justice and development‘, op. cit., p. 256. 401 Szoke-Burke, S., ‗Not Only ‗Context‘: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights‘, op. cit., p. 482. 402 Lekha Sriram, C., ‗Liberal Peacebuilding and Transitional Justice: What Place for Socioeconomic Concerns?‘, op. cit., p.40. In this sense, Sriram notes that a significant number of cases have been filed under the Alien Tort Claims Act (ATCA) in the United States. Some of those cases resulted in corporations facing civil charges, and in some cases, agreed to settlements for complicity in serious violations of human rights as part of their commercial activities in countries such as Colombia and Myanmar. 403 Such as happened with the Colombian Constitutional Court, which has decided important cases on ESCRs in the context of the implementation of the Justice and Peace Law. For more information, see OHCHR Publication, ‗Transitional Justice and Economic, Social and Cultural Rights‘, op. cit., p. 29-31. 103 The IACtHR in Ituango Massacres v. Colombia is a representative example of how ESCRs have been litigated in regional courts. In that case, the petitioners alleged that the State had violated the prohibition of slavery and forced labour, given that some victims were coerced to herd livestock under threat of death. 404 The Court interpreted article 6 of the American Convention on Human Rights in the light of ILO Convention No. 29 concerning Forced or Compulsory Labour, ratified by Colombia in 1969. According to this interpretation, forced labour entails three elements: the menace of a penalty, involuntary labour and State participation or acquiescence. The Court held that all three elements were satisfied in this case and consequently found instances of forced labor 405 and violation of the right to property in relation to forcible displacements. 406 Similarly, international criminal tribunals have successfully prosecuted conduct that violated ESRCs. In fact, The Rome Statute includes in its article 7 several underlying offences for crimes against humanity which may incorporate violations of ESCRs. 407 In the case Prosecutor v. Brđanin, 408 for instance, the International Criminal Tribunal for the former Yugoslavia held that ‗proper medical care was deliberately withheld from Bosnian Muslims and Bosnian Croats by the Bosnian Serb authorities for the very reason of their ethnicity.‘ 409 The cumulative effect of this conduct, together with the denial of other fundamental rights, such as the right to employment, freedom of movement and proper judicial process, amounted to persecution as a crime against humanity. 410 The Krajišnik case also illustrates the relevance of violations of ESCRs in 404 IACtHR, Ituango Massacres v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, (ser. C) No. 148 (July 1, 2006). The case relates to the execution of 19 inhabitants by paramilitaries (acting with the support of members of the military) in Aro and Granja, in Ituango. In addition to the executions, many people were forcibly displaced. Furthermore, in Aro, most houses were burned down and cattle and other livestock stolen. For several days, residents of the area were forced to herd cattle without remuneration. Army members imposed a curfew to facilitate the transfer of the stolen livestock without witnesses. 405 Ibid. para. 168 406 Ibid. para. 183 407 Namely enslavement; deportation or forcible transfer of population; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health; and persecution. 408 ICTY, Prosecutor v. Radoslav Brđanin, No. IT-99-36-T, Trial Chamber, Judgement of 1 September 2004. 409 Ibid. para. 1076. 410 Ibid. 104 the conflict of the former Yugoslavia. 411 The Chamber found that there had been unfair dismissal of people from public jobs, forced labour, lack of access on equal grounds to public services, inhumane living conditions in detention places, appropriation and plunder of property and destruction of private property. 412 Furthermore, the Special Court for Sierra Leone has also made findings on crimes against humanity involving infringement of ESCRs, particularly labour rights. Trial Chamber found in Sesay, Kallon and Gbao case, 413 that forced farming, mining and military training constituted the crime against humanity of enslavement. 414 On the other hand, former State leaders have been also tried for corruption, such as Hosni Mubarak in Egypt or Alberto Fujimori in Peru, although these have not generally been articulated as violations of specific economic or social rights. Certainly, these sorts of prosecutions are frequently limited because those who benefited from economic plunder in conflict or under authoritarian rule remain politically powerful or they still are able to retain their spoils. 415 Therefore, while judicial processes can potentially be a useful tool to address and punish ESCRs violations, it might be difficult to prosecute perpetrators when they still maintain power and influence. II.4. C Reparations policies Reparations are the most victim-centred transitional justice mechanism, as they have the potential to respond more directly to victims‘ needs and priorities. 416 In fact, reparations are the field where transitional justice measures might be expected to directly deal with economic issues. However, they are primarily designed in most instances to respond to specific victims who suffered violations of CPRs, or to the needs 411 ICTY, Prosecutor v. Momčilo Krajišnik, No. IT-00-39-T, Trial Chamber, Judgement of 27 September 2006. 412 Ibid. paras. 736, 755–756, 757–761, 765–772 and 773–779. 413 SCSL, Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, No. SCSL-04-15-T, Trial Chamber I, Judgement of 25 February 2009 414 Ibid. paras. 1118–1121, 1215–1217, 1476–1477, 1588–1591, 1414–1443. 415 Lekha Sriram, C., ‗Liberal Peacebuilding and Transitional Justice: What Place for Socioeconomic Concerns?‘, op. cit., p.41. 416 UN, Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,A/RES/60/147. Document available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx accessed 27 March 2018. 105 of affected communities, rather than to address violations of specific economic rights or widespread inequality. 417 The nature of reparations involves the transfer of money, goods or other services which can directly impact on victims‘ socioeconomic position. 418 Reparations are consequently, a very useful option for remedying victims of ESCRs violations. 419 As Miller states, ‗reparations and compensation allow the State to redistribute wealth only in a strikingly narrow manner, frequently compensating only those named by the transitional justice measure‘. 420 The effect leaves some of the structural causes of violence unaddressed, or at most to be the subject of development policy. 421 In fact, successor regimes frequently ignore, evade and delay implementing the reparations programmes recommended by truth commissions or other bodies. 422 Reparation programmes are inherently divisive, pitting individuals and groups against one another over who gets compensated and by how much. Such conflict can inhibit collective political action against the successor regime over economic policies. 423 Despite the above mentioned, reparations awarded by the IACtHR have incorporated the realization of ESCRs in innovative ways. Particularly relevant in this sense is the Plan de Sánchez Massacre v. Guatemala case. 424 The Court considered that the massacre ‗gravely affected the identity and values of the members of the Maya-Achí 417 Roht-Arriaza, N., ‗Reparations and Economic, Social, and Cultural Rights‘, in Sharp, D. (ed.), Justice and Economic Violence in Transition, op. cit., p.110. 418 De Greiff, P., ‗Articulating the Links between Transitional Justice and Development: Justice and Social Integration‘, in De Greiff, P. and Duthie, R., Transitional Justice and Development: Making Connections, op. cit., p.37. 419 Roht-Arriaza, N. and Orlovsky, K., ‗A Complementary Relationship: Reparations and Development‘, in De Greiff, P. and Duthie, R., Transitional Justice and Development: Making Connections, op. cit., p.170. 420 Miller, Z., ‗Effects of invisibility: In search of the ‗economic‘ in transitional justice‘, op. cit., p. 283- 284. 421 LaPlante, L., ‗Transitional Justice and peacebuilding: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework‘, International Journal of Transitional Justice, vol. 2, no.3, 2008, p.334 422 Tellingly, only 14 of the 84 transitions between 1970 and 2004 implemented reparations programmes. Olsen, T.D, Payne, L.A and Reiter, A.G, ‗Transitional Justice in Balance: Comparing Processes, Weighing Efficacy‘, United States Institute of Peace Press, 2010, p.53. 423 Ibid. 424 IACtHR, Plan de Sánchez Massacre v. Guatemala, Judgement of 19 November 2004, Series C, No. 116, in particular paras. 81, 100, 104–105, 107 and 110. The case concerns the massacre in 1982 of more than 268 indigenous people by the Guatemalan military and others. Guatemala recognized its international responsibility in the case. 112 the historical origins of considering the actions of a company as an accomplice for human rights abuses. These cases established that there can be legal consequences for cooperation between economic actors and repressive governments, including prosecution for international crimes. 448 However, the debate is still today open on whether to penalise the corporate actor as entity or individuals in charge -such as the managers and executive directors, as happened in the Nuremberg Trials. While individuals may be prosecuted and removed from a corporation, the corporate entity continues to exist and might continue its misconduct. Prosecuting an individual may not deter the behavior of the corporation as a whole. Conversely, prosecuting a corporation may not deter an individual's criminal conduct. Thus, although a parallel approach to this issue is necessary, this author agrees with Ramasastry that penalising the company itself may provide a greater deterrent for corporations than the isolated prosecutions of individuals. 449 Despite corporations‘ significant role in the international sphere, there are several difficulties in establishing a general regulatory framework for companies‘ activities and their impact on human rights. 450 An important debate has lately been generated about whether non-State actors, and particularly, corporations, have human rights obligations. 451 From the traditional perspective, States are the primary subjects of international public law and therefore, the consideration of companies as subjects of obligations and responsibilities in this field is not exempt from criticism. 452 Regarding 448 Ramasastry, A., ‗Corporate Complicity: From Nuremberg to Rangoon –An examination of force labor cases and their impact on the liability of Multinational Corporations‘, Berkeley Journal of International Law, vol. 20, issue I, 2004, p.98-99. 449 Ibid. p.96 450 Traditionally, companies tended to approach human rights and social issues through their corporate social responsibility (CSR) programmes. CSR is focused on corporate voluntarism and expectations of corporations as social actors, so many of these initiatives are undertaken selectively, based on what the company voluntarily chooses to address. But that proved to be inadequate and insufficient to prevent and mitigate corporate-related human rights abuses. Much more was needed: a real human rights approach that requires companies to respect all human rights. 451 In fact, as corporations are not primary subjects of Public International Law, the proper terminology that should be used is ‗corporate-related human rights violations‘. See for instance Augenstein, D., ‗Access to Justice in the European Union for Corporate-Related Human Rights Violations: Jurisdictional Issues‘, Tilburg Law School Research Paper, no. 7, 2017. 452 For instance, Ford argues that ‗it cannot be said that international human rights law involves direct legal duties for businesses‘, Ford J., Regulating Business for Peace. Cambridge University Press, 2015, p.37. On the other hand, Karavias, M., Corporate obligations under International Law, Oxford University Press, 2013. Clapham held that ultimate contemporary opposition to an extension of human rights law into the non-State actors remains fuelled by two factors. Firstly, he argues, because of the fear 113 corporations specifically, some commentators argue that they do have international human rights obligations. 453 Clapham, for instance, argues that the scope of corporate obligations depends on its capacity, context and commitments. 454 To reinforce these arguments, Clapham points out several recent developments. The first one refers to the adoption in 2014 by the African Union of a new treaty that adds a criminal chamber to the African Court of Justice and Human Rights, stipulating that corporations can be prosecuted for certain international crimes in this new Chamber. 455 The second one focuses on the Special Tribunal for Lebanon. On October 2, 2014, the Appeals Panel determined that a corporation could be prosecuted for contempt before this international criminal court. The Appeals Panel drew two interesting conclusions, the first in relation to human rights law and the second in relation to criminal law. Clapham notes that the Panel concluded that ‗the current international standards on human rights allow for interpreting the term‘ person ‗to include legal entities (...).‘ 456 The evolution at the national level as well as the treaties that refer to the criminal liability of companies, make him conclude that ‗corporate criminal liability is on the verge of attaining, at the very least, the status of a general principle of law applicable under international law.‘ 457 Business and human rights as a field began to be institutionalised on the multilateral agenda in the mid-2000s. Notably, the appointment of Professor John Ruggie as the UN Secretary-General's Special Representative on the issue of business that human rights law will lose its specificity if extended to the acts of others than States; and secondly, because the concern that legal developments could lead to new forms of liability for corporations which would leave them vulnerable to lawsuits beyond the control of their home States. He also concludes by stating that those who resist the extension of human rights obligations at least agree that corporations have human rights responsibilities, understanding a ‗responsibility‘ to be something less than a legal obligation. Clapham, A., ‗Human Rights Obligations for Non-State-Actors: Where are we now?‘ op. cit.., pp.2 and 19. 453 See for instance, Clapham, A., Human Rights Obligations of Non State Actors, Oxford University Press, 2006, p. 58; See also Clapham, A., ‗Non-State Actors‘, in Moeckli, D., Shah, S. and Sivakumaran, S., with Harris, D. (Eds), International Human Rights Law, Oxford University Press, 2017, pp. 531-550; See also Jägers, N., ‗Corporate Human Rights Obligations: In search of accountability‘, Intersentia, 2002; Toebes, B., and Letnar Černič, J., ‗Corporate Human Rights Obligations under Economic, Social and Cultural Rights‘, in Addicott, J.F., Hossain Bhuiyan, M.J., and M.R. Chowdhury, T., Globalization, International Law, and Human Rights, Oxford University Press, 2012. 454 Clapham, A., ‗Human Rights Obligations for Non-State-Actors: Where are we now?‘ op. cit., p. 12. Clapham also states in this sense that this idea has not been so far authoritatively rejected by the United States Supreme Court within the framework of the ATS, where most cases of corporate human rights abuses have been brought. 455 STC/Legal/Min/7 (I) Rev. 1, 15 May 2014. 456 Clapham, ‗Human Rights Obligations for Non-State-Actors: Where are we now?‘, op. cit.., p.15 457 Ibid. 114 and human rights contributed to this end. Since then, business and human rights concerns have witnessed an exponential growth in international debates in recent years, fostered in great measure by the political and institutional process of drafting and adopting the United Nations Guiding Principles on Business and Human Rights (‗Guiding Principles‘ or UNGPs). 458 However, some have criticised the approach followed by Ruggie, arguing that it focuses more narrowly on holding corporations accountable for harm caused rather than on a positive recognition of the role business might play in protecting and promoting human rights. 459 This chapter seeks to examine and assess the notion of corporate accountability for human rights abuses. Given that corporations are not primary subjects of Public International Law, their involvement in such abuses has been often categorised as complicity. 460 Accordingly, section two explores the policy meaning and legal implications of corporate complicity in human rights abuses, as well as the different categories that can be distinguished within the concept. Ultimately, this chapter provides a general assessment of what options offer the existing legal regimes for corporate accountability in human rights abuses, namely domestic and international criminal law, civil law of remedies and IHRL. For the purpose of this thesis, the term ‗accountability‘ refers to the general obligation to ‗answer‘, implying the condition of being responsible for certain actions. 461 Similarly, ‗responsibility‘ is used throughout this chapter according to the meaning given to it in Public international law. While the term has recently been used in the framework of business and human rights standing for 458 Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy Framework’, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises‘, Ruggie, J., A/HRC/17/31, 21 March 2011, endorsed in Res. 17/4 adopted by the Human Rights Council, A/HRC/RES/17/4, (2011) 459 See for instance, Bilchitz, D., ‗The Ruggie Framework: an adequate rubric for corporate human rights obligations?‘, South-African Institute for Advanced Constitutional, Public, Human Rights and International Law, University of Johannesburg‘, 2009, p.5. 460 Indeed, the concept of corporate complicity in human rights abuses has received much consideration by courts in the United States of America under the ATS, as analysed in section II and III of this chapter. 461 See for instance, Nollkaemper, P.A., and Curtin, D., ‗Conceptualizing Accountability in International and European Law‘, Netherlands Yearbook of International Law, vol. 36, no.1, 2005, pp. 3-20; Kool., R.S.B., ‗(Crime) Victims‘ Compensation: The Emergence of Convergence‘, Utrecht Law Review, vol. 10, no. 3, 2014, pp . 14–26. However, as Brunée notes, ‗notwithstanding its increasingly frequent invocation by international lawyers, the concept of ―accountability‖ has not acquired a clearly defined legal meaning‘. Brunnée, J., ‗International legal accountability through the lens of the laws of State responsibility‘, Netherlands Yearbook of International Law, vol. 36, no.1, 2005, p.22. 115 stronger effect, 462 this work understands ‗responsibility‘ as for a wrongful conduct, according to international law on responsibility. Consequently, responsibility refers to secondary norms through which corporations can be held accountable for breaches of the primary norms. 463 Likewise, the term ‗liability‘ is used to refer to cases in which accountability for human rights abuses can be demanded by legal means, and therefore, litigated at the corresponding courts. 464 While the business and human rights agenda is mainly focused on Multinational or Transnational Companies (MNCs or TNCs) as they operate across national borders, this chapter analyses corporate accountability from a general conception of business enterprises, meaning that, irrespectively from their size or whether they operate at the national or transnational level, or are State or privately owned. 465 III.2 Clarifying the notion of corporate complicity for human rights abuses III.2.A Policy meaning and legal implications When legally defining corporate accountability, some questions arise regarding the role and responsibility of corporations in human rights abuses, such as, what sort of corporate behaviour could trigger corporate accountability for human rights abuses? Could a company be considered legally accountable when operating in a conflictaffected or under-repression country where human rights violations are taking place? What conditions need to be fulfilled to consider that a corporation operating in those contexts is being complicit in human rights abuses? In order to provide answers to those questions, this section examines the notion and the scope of corporate complicity for human rights abuses. 462 Particularly in the UNGPs. 463 By contrast, the term ‗obligation‘ refers to the primary norms by which actors are legally bound. 464 This term will be mainly used at section 3 of this chapter, regarding domestic criminal law and civil law of remedies regimes. 465 According to the general definition, a corporation is a legal entity characterized by legal personality, transferable shares, limited liability, centralized management and investor ownership. See for instance, Armour, J., Hansmann, H., Kraakman, R., ‗The essential elements of corporate law: what is corporate law?‘ Harvard, JM., Olin Center for Law, Economics and Business, Discussion Paper No. 643, 2009. 116 Complicity is a particular way of contributing to wrongdoing which requires that responsibility be attributed to accomplices for their acts of complicity. 466 While the concept of complicity has traditionally had a specific and technical meaning in criminal law -closely linked to the notion of ‗aiding and abetting‘-, it is nowadays being used in a much richer and broader fashion in the field of business and human rights. In 2008, the International Commission of Jurists established the Expert Legal Panel on Corporate Complicity in International Crimes. The panel‘s mandate was to reflect on the situations in which companies and/or their executives could be held legally responsible under criminal and/or civil law when they are ‗complicit‘ with governments, armed groups, or other actors in gross human rights abuses. 467 The panel addressed the legal and policy meaning of complicity as an essential part of the report. According to the report, the word complicity has been frequently used on a daily basis referring to one actor that becomes involved in an undesirable manner in something that someone else is doing, but not strictly in the legal sense of the word. In the field of human rights, such use of the concept has provided a tool to capture in simple terms the fact that companies can become involved in human rights abuses in a way that raises legal responsibility. The report also noted that human rights organisations and activists, international policymakers, government experts and businesses themselves, now continuously use the phrase ‗business complicity in human rights abuses‘ to describe what they view as undesirable business involvement in such abuses. 468 The panel concluded in this sense that whereas the use of the terms is widespread, there continues to be considerable confusion and uncertainty about the boundaries of this concept and in particular when legal liability, both civil and criminal, could arise for such complicity. 469 Similarly, the former Special Representative of the Secretary General on Business and Human Rights, John Ruggie, tried to clarify the concept of complicity in 2008. 470 Ruggie noted that the term ‗complicity‘ in the business and human rights 466 Jackson, M., Complicity in International Law, Oxford University Press, 2015, p.1 467 Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, ‗Corporate Complicity & Legal Accountability‘, Volume I, 2008, p.1 468 Ibid. p.2 469 Ibid. 470 The former Special Representative, John Ruggie, devoted a full report to the clarification of the concept of ‗Sphere of Influence‘ and ‗Corporate Complicity‘. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Clarifying the Concepts of ‘Sphere of Influence’ and ‘Complicity’, A/HRC/8/16 (2008) 117 context refers to the indirect involvement of companies in human rights abuses. 471 Likewise, Ruggie argued that complicity may be alleged in relation to knowingly contributing to any type of human rights abuse, whether of CPRs, or ESCRs. Regarding the legal consequences, Ruggie affirmed ‗it is not possible to specify exacting tests for what constitutes complicity even within the legal sphere‘, noting that ‗the clearest guidance comes from international criminal law and the cases on aiding and abetting‘. 472 Ultimately, the report concludes that while ‗operating in contexts where abuses occur and the appearance of benefiting from such abuses‘ is ‗unlikely, by itself, to lead to legal liability‘, it ‗should serve as red flags for companies to ensure that they exercise due diligence, adapted for the specific context of their operations‘. 473 Human rights violations can take place in different contexts but, certainly, the risks are particularly significant in areas of poor governance, conflict-affected zones or under oppressive regimes. Indeed, companies operating in these kinds of environments are at particular risk of being complicit in human rights abuses committed by other actors. 474 While corporations have been occasionally accused of being primary perpetrators of human rights violations, to date, most of the cases that have been prosecuted or litigated concern allegations of ‗corporate complicity‘ in gross human rights abuses perpetrated by others -generally governments and State authorities or armed groups. 475 Human rights abuses often have an economic dimension and they are frequently driven by financial interest, closely linked to the private sector sphere. Companies have typically been involved in different ways in these human rights violations, but only a few cases have threatened businesses with legal risks or reputational damage for doing business with dictators or warlords. 476 Conditions in those areas make it difficult for victims of corporate wrongdoings to seek justice and hold businesses accountable. Commonly this happens not only because of the weakness in the justice system, but also due to the fact that authorities may be unwilling to do so 471 Ibid. p.9 472 Ibid. p.10 473 Ibid. p. 21 474 UN Guiding Principles. Guiding Principle 23, Commentary. 475 Zerk, J., ‗Corporate liability for gross human rights abuses. Towards a fairer and more effective system of domestic law remedies‘, Report prepared for the Office of the UN High Commissioner for Human Rights, 2013 p. 24. 476 Payne, L. and Pereira, G., ‗Corporate Complicity in Dictatorships‘, Oxford University Working papers, 2014, p.1. 118 because of their own involvement in human rights violations, or because they profit from business activities and seek to create a conducive environment that attracts businesses. According to Kaleck and Saage-Maasz, cases in which corporations cooperate in varying degrees with military regimes and dictatorships can be classified into three sub-categories: (a) cases in which corporations profit from State violence, (b) cases in which the regime‘s human rights abuses are facilitated by providing the necessary means and (c) cases in which corporations directly support repression without direct economic benefit. The accountability mechanisms could vary slightly, depending on the kind of cooperation the corporation provided to the State. 477 It is probably unsurprising that the greatest difficulty in those contexts is to define the blurred lines of legal accountability. In other words, how close the company actions have to be to the violations to be held legally responsible. There are many studies and debates in legal scholarship around this issue due to the need for legal interpretation in the absence of settled international law. 478 In this sense, the ICJ Panel suggests what can be called a negative approach; that means the kind of conduct the company should avoid in order to not cross the threshold of legal risk. 479 According to their report, there are mainly three elements that can guide the inquiry: 1. Causation/Contribution: taking into account whether the company‘s conduct enables, exacerbates or facilitates the human rights abuses. 2. Knowledge & Foreseeability: considering the intentionality component. 3. Proximity: measuring how close the company was to the principal perpetrator. Theories of corporate complicity assume a key role in domestic legal responses to corporate involvement in human rights abuses and the categorization of corporate complicity. However, there are also many differences between different jurisdictions 477 Kaleck, W., and Saage-Maasz, M., ‗Corporate accountability for Human Rights Violations amounting to International Crimes‘, Journal of International Criminal Justice, vol. 8, 2010, p.703. 478 See for instance, Payne, L. and Pereira, G., ‗Corporate Complicity in International Human Rights Violations‘, Annual Review of Law and Social Science, vol. 12, no.20, 2016, pp. 1-22. See also, Olson, D., ‗Corporate complicity in Human Rights violations under international criminal law‘, International Human Rights Law Journal, vol. I, Article 5. 479 The Panel only takes into account two legal regimes: ICL and Tort Law, as it considers them as the only ones which offer some avenues towards ensuring the legal accountability of companies when they are complicit in gross human rights abuses. The report was released in 2008, three years before the adoption and endorsement of the UNGPs. 119 regarding the elements of liability and the extent to which the knowledge and intentions of individuals can be attributed to the corporation itself, as further analysed in section 3. 480 III.2.B Categories of corporate complicity In 1999, the former Secretary General of the United Nations, Kofi Annan, had already proposed for the first time the Global Compact. 481 He then urged companies to support and respect the protection of human rights within their sphere of influence and the duty to ensure they are not accomplices in the violation of human rights. 482 Similarly, Margaret Jungk rightly describes the spectrum of activities that have been linked to the notion of corporate complicity in human rights abuses in her Practical Guide to Address Rights Concerns of Companies Operating Abroad: ―Regrettably, multinational are sometimes guilty of complicity in human rights violations perpetrated by governments. There are many cases where businesses have, for example, promoted the forcible transfer of populations from land which they required for business operations. At other times, by simply ―doing business‖ with the national government, companies have unintentionally aggravated human rights disputed?, for example, in cases where minority group have claimed autonomy over an area. Even where a company‘s operations do not directly impact upon human rights issues, the company may nonetheless be called upon to speak out or act when an oppressive government violates its citizen‘s rights‖. 483 480 This is mainly identified with company managers and executive directors. 481 The Global Compact is a voluntary initiative calling to companies to align their strategies and operations with universal principles on human rights, labour, environment and anti-corruption, and take actions that advance societal goals. More information about this initiative in https://www.unglobalcompact.org/ accessed 13 April 2018. 482 Annan‘s speech at World Economic Forum in Davos, Switzerland, on 31 January 1999. A press release with his words can be found at https://www.un.org/press/en/1999/19990201.sgsm6881.html accessed 13 April 2018. 483 Jungk, M., ‗Practical guide to addressing human rights concerns for companies operating abroad‘, in. Addo, M. (Ed), Human Rights Standards and the Responsibility of Transnational Corporations, Kluwer Law International, 1999, p. 171. 120 The notion of corporate complicity, thus, aims to ascribe a certain level of accountability to corporations but without removing State obligations and responsibility for human rights violations. 484 Based on these insights, a number of scholars agree that corporate complicity can be divided into three categories: direct, indirect and silent complicity. 485 However, it should be highlighted once more that the notion of corporate complicity for human rights abuses has not been yet legally defined at international level, or uniformly at domestic level, so the categorisation presented below is mainly based on academic works. III.2. B. a Direct Corporate Complicity Clapham and Jerbi argue that much of the literature on business and the human rights field avoids setting up clear limits for categories of corporate complicity. However, they continue, a review of international criminal law suggests that complicity requires intentional participation, but not necessarily the intention to harm, only knowledge of foreseeable harmful effects. 486 On the basis of International Tribunals case law, 487 they note that a company that knowingly assists another actor in violating customary international law may be considered directly complicit in such violation. 488 Therefore, cases which involve corporate direct complicity derive from a corporation‘s direct and causal contribution to the specific human rights abuse. It is not required, thus, to have the desire or share the criminal results, but to know the ‗probable effects of their assistance‘. 489 Consequently, a corporation may be considered a direct accomplice to 484 Clapham, A., ‗Corporations and Criminal Complicity‘, in Nystuen, G., Follesdal, A. and Mestad, O. (eds), Human Rights, Corporate Complicity and Disinvestment, Cambridge University Press, 2010, pp. 225-228. 485 See for instance, Clapham, A., and Jerbi, S., ‗Categories of corporate complicity in human rights abuses‘, Hastings International & Comparative Law Review, 2001, pp. 339-349; Ramasastry, A. ‗Corporate Complicity: From Nuremberg to Rangoon –An examination of force labor cases and their impact on the liability of Multinational Corporations‘, Berkeley Journal of International Law, Volume 20, Issue I, 2002, pp.91-159; or Wettstein, F., ‗The duty to Protect: Corporate Complicity, Political Responsibility, and Human Rights advocacy‘, Journal of Business Ethics, vol. 96, 2010, pp.33-47. Wettstein distinguishes four categories as he draws ‗beneficial complicity‘ and ‗silent complicity‘ from the broad category of indirect complicity. 486 Clapham, A., and Jerbi, S., ‗Categories of corporate complicity in human rights abuses‘, Hastings International & Comparative Law Review, 2001, pp. 341-342 487 Such as the Rwanda and the Former Yugoslavia Tribunals. 488 Ibid. p.342 489 Ibid. p.345 121 abuses committed against human rights when it decides to participate or to assist in the commission thereof and whenever such assistance contributes to the abuse itself. However, defining what elements constitute participation is still quite controversial. 490 Ultimately, direct corporate complicity implies that the corporation is not merely facilitating the actions of the primary perpetrator, but directly contributing to the abuses itself. Practical examples of this category can be found in German and Japanese corporations which recruited and subjected workers to forced labor during the Second World War. In many cases, these companies knew the consequences of their actions. 491 Likewise, corporations that made available their facilities to the armed forces for the interrogation and torture of unionists or protesters fall into the category of direct accomplices. 492 As we will further analyse within the framework of our case study in chapters four and five, many corporations in Argentina acted in that way. III.2. B. b Indirect Complicity Also known as ‗beneficial" complicity‘, 493 the company is not itself the direct perpetrator of the abuse within this category, but it benefits from human rights abuses committed by the main perpetrator. According to Clapham and Jerbi, the labels of ‗indirect‘ or ‗beneficial‘ complicity are likely to be applied where companies knowingly benefit from human rights abuses. Therefore, what is relevant is that in contexts in which human rights are clearly violated, it is not necessary that the company itself causes the damage or the violation to be affected by it. The company assumed, consequently, that this would be the risk if operating in such contexts. 494 490 Ramasastry, A., ‗Corporate Complicity: From Nuremberg to Rangoon –An examination of force labor cases and their impact on the liability of Multinational Corporations‘, op. cit., p.102. 491 Ibid. 492 Wettstein, F., ‗The duty to Protect: Corporate Complicity, Political Responsibility, and Human Rights advocacy‘, op. cit., p. 36. 493 Although Wettstein, as mentioned early in this chapter, divides indirect complicity into two subcategories: beneficial complicity and, silent complicity. 494 Clapham, A. and Jerbi, S., ‗Categories of corporate complicity in human rights abuses‘, op. cit., p.347. 128 as international criminal law: the actus reus and the mens rea. The first component refers to the conduct itself or the type of participation. It can be direct (aiding), indirect (providing external support to perpetrator) or silent complicity. The second element is related to the State of mind, the positive intention to commit the crime. Although this element is defined differently across national jurisdictions, it is always required that the defendant has a particular subjective intention. Some jurisdictions have very strict requirements as to knowledge: the alleged accomplice must not only act intentionally but must also intend the crimes that were eventually committed. Some other jurisdictions applied a lesser standard when requiring that the accessory may not have the same intent as the principal perpetrator but knowing that the outcome was the practical certainty of its actions. Instead, in other cases, it is sufficient to know that criminal acts were the likely consequences of their actions. 522 Depending on the domestic regime, it will vary from mere negligence to cases in which proof of criminal intent will be required. 523 It is also worth mentioning that, as well as in international criminal law, in national criminal jurisdictions the liability of an accomplice is not dependent on the conviction of the principal perpetrator. Consequently, a company could be held criminally liable even if the principal perpetrator goes unpunished. III.3.A.c Enforcement mechanisms and practical obstacles As examined above, at international level, the ICC does not have jurisdiction over legal entities, so it can only bring to justice individuals –in this case, corporate executives or managerswhen considering that they acted on behalf of the corporation. However, since corporate officers often only play a supportive role, it has been argued that they have not been considered a priority to date in the Office of the Prosecutor‘s (OTP‘s) legal strategy. 524 At national level, there is no uniformity regarding regulation 522 Zerk, J., Corporate liability for gross human rights abuses, op. cit., p. 38. 523 In Argentina, for instance, share intent is required, while in the Netherlands, knowledge or foreseeability of harm is enough to establish liability. 524 Kaleck, W., and Saage-Maasz, M., ‗Corporate accountability for Human Rights Violations amounting to International Crimes‘, op. cit.,. p .955. 129 of different domestic criminal systems. Likewise, there are few legal regimes aimed specifically and explicitly at the problem of corporate involvement in human rights abuses. With regard to the general practical obstacles to holding companies accountable under criminal law, it is worth mentioning two in particular: the form of punishment and the so-called ‗corporate veil‘. Concerning the first one, as a legal person, corporations are likely to face financial penalties. 525 This kind of punishment has a number of limitations though, such as that they do not necessarily have proper deterrent value 526 and they rarely offer any prospect of compensation for victims. 527 Likewise, corporations are generally characterized by impenetrable structures and complex supply-chains that mean that responsibilities can be shared between numerous officers. In the same way, since corporations are not required to expose internal documents, access to sensitive information and fact-finding is a challenging task. 528 On the other hand, the prosecution of extraterritorial human rights abuses raises both legal and practical challenges. 529 States enjoy a limited degree of extraterritorial jurisdiction under customary international law related to the principle of universality, 530 which refers to the international law doctrine that provides them the right to assert jurisdiction over perpetrators of certain very serious violations, wherever in the world those crimes have taken place. In practice, however, in most jurisdictions the defendant must be present in the jurisdiction for a prosecution to proceed, in what is commonly 525 Natural persons will face prison sentences instead. 526 They may, for instance, be treated simply as a ‗cost of doing business‘. Zerk, J., Corporate liability for gross human rights abuses, op, cit., p. 39. 527 Although some jurisdictions, such as France, Norway and Germany, permit the joining of civil actions with criminal proceedings through which compensation for victims can be claimed. Ibid. 528 See for instance, Macey, J. and Mitts, J., ‗Finding Order in the Morass: The Three Real Justifications for Piercing the Corporate Veil‘ , Cornell Law Review, vol.100, issue 1, 2014, pp.99-156. 529 See generally on the topic of extraterritoriality, Fernández Sánchez, P.A., ‗La aplicación extraterritorial de los Derechos Humanos por acciones de empresas‘, in Díaz Barrado, C. M., Fernández Liesa, C.R., and Verdiales López, D.M., Objetivos de desarrollo sostenible y Derechos Humanos: paz, justicia e instituciones sólidas / Derechos Humanos y empresas, Universidad Carlos III de Madrid. Instituto de Estudios Internacionales y Europeos Francisco de Vitoria, 2018, pp. 57-60. 530 Den Herik, L., and Letnar Cernic, J., ‗Regulating Corporations under International Law From Human Rights to International Criminal Law and Back Again‘, Journal of International Criminal Justice, vol. 8, 2010, p.740. For further information about extraterritoriality see Vandenhole, W., Challenging Territoriality in Human Rights Law, Building Blocks for a Plural and Diverse Duty-Bearer Regime, Routledge, 2015. 130 known as ‗restricted‘ or ‗territorial‘ universality. This additional requirement raises the interesting issue of when a corporation might be regarded as being present in the jurisdiction for the purpose of a prosecution based on universal jurisdiction. Ultimately, extraterritorial crimes can be extremely difficult to investigate in practice, without practical support from other affected States. 531 Generally, investigations are difficult and cost-intensive. Additionally, in situations of political transition, as well as in ongoing conflicts, impunity is widespread, so often efforts of fact-finding are limited to concentrating on the direct perpetrators and the ‗main‘ atrocities. It is thus paradoxical that, since business actors generally operate in these contexts, their involvement in human rights abuses and crimes is often not at the centre of investigations, neither in national or international prosecutions nor in UN missions or transitional justice mechanisms. 532 III.3. B Civil law of remedies Apart from criminal proceedings, most domestic jurisdictions also provide for the possibility of access to remedy through private law claims for damages for wrongful behaviour. In line with the criterion of the ICJ Panel, we will use the term ‗law of civil remedies‘ to refer to both the law of tort in common law legal systems and the law of non-contractual obligations in civil law jurisdictions. 533 These two bodies of law regulate and provide for civil liability where harm is caused to someone as a result of another actor‘s behaviour and where that actor and the victim are not in a contractual relationship. 531 Zerk, ‗Extraterritorial Jurisdiction: Lessons for the Business and Human Rights Sphere from Six Regulatory Areas‘, Working Paper of the Harvard Corporate Social Responsibility Initiative, no.59, 2012, p. 142. 532 Fortunately, this trend is currently changing and some Truth Commissions, for instance, have started to include corporate involvement in human rights abuses within the framework of their mandates. See for instance Truth Commission of Sierra Leona, Report Volume 3.b. Full document available at http://www.sierraleonetrc.org/index.php/view-the-final-report 533 The terminology used throughout jurisdictions to describe this area of law can vary depending on jurisdiction, from the law of non-contractual, to extra-contractual liability, to civil responsibility for delicts/quasi-delicts. Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, Corporate Complicity & Legal Accountability, Volume III, 2008, p.3. 131 Parallel civil and criminal proceedings are permitted for many jurisdictions arising from the same wrongful corporate behaviour. As there are different standards of proof, it is not unusual that civil law claims succeed despite criminal prosecutions not doing so. 534 It is also worth mentioning at this point that many jurisdictions do not provide for punitive damages in civil law of remedies, on the basis that compensation is intended to be compensatory, not punitive. 535 III.4. B. a Elements of legal liability Despite some terminological differences, one actor can be held liable under the law of civil remedies based either on the intentional conduct or negligence as long as the conduct causes harm to someone else. 536 Given that one of the main purposes of this branch of law is to provide remedies to those who have suffered harm, damage must be real and proved to an interest that the law protects. Some jurisdictions explicitly name the protected interest for which remedies may be available. 537 Many others, however, do not explicitly limit the situations in which a remedy may be available through civil or common law, so the courts will decide in every case in particular. 538 Tort law in common law jurisdictions is more likely to follow this second category. In any case, in all jurisdictions, the law of civil remedies can be invoked to remedy harm to life, liberty, dignity, physical and mental integrity and property. 539 Notwithstanding the above noted, only the United States has developed a civil recovery regime specifically for gross human rights abuses. So, in the other jurisdictions, plaintiffs must bring their claim within the parameters of established bases of liability under domestic law. 540 While in many jurisdictions it is not difficult to frame 534 That will be ‗beyond reasonable doubt‘ in criminal cases and ‗balance of probabilities‘ in civil and tort cases. 535 Zerk, J., Corporate liability for gross human rights abuses, op. cit., p.45. 536 For more information and examples, see International Encyclopaedia of Comparative Law, Brill, 2015, p.5, et seq. 537 See for instance: Article 82, German Civil Code. 538 See for instance Article 1089 Spanish Civil Code; or Article 1382, French Civil Code. 539 Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, Corporate Complicity & Legal Accountability, Volume III, op. cit., p. 11. 540 Zerk, J., Corporate liability for gross human rights abuses, op. cit., p. 45. 132 gross human rights abuses in tort law, 541 there are a number of gross human rights abuses that do not fit easily into categories already established of tort law, such as the crime of apartheid, for instance. Intentional or negligent conduct that causes harm to legally protected interests could give rise to civil liability. Regarding intentional conduct, it is commonly agreed – despite some differences in terminologythat an actor could be considered as acting intentionally when it voluntary undertook a course of conduct knowing that it was more likely to result in harm. 542 Only few jurisdictions require the existence of malicious intention to harm. 543 Likewise, malicious intention is irrelevant to establish negligence in both civil and common law jurisdictions, in which an actor may be considered negligent when the law considers that in the particular circumstances, it should have foreseen the risk. In common law jurisdictions, this issue is expressed as duties and standards of care. 544 Consequently, the claimant must firstly show that there was a duty of care; secondly, that this duty was breached; thirdly, that the breach of duty resulted in damage or loss to the claimant and, finally, the damage suffered was not too remote to justify compensation. 545 Ultimately, a company can be held legally responsible for negligence if it does not take the care required by the law of civil remedies. Bearing in mind that in these cases the defendant is a corporation rather than a natural person, the actions and the intention –or knowledgecan be imputed to the corporate body as it can be done in criminal cases. Consequently, in most jurisdictions, imputation will take into account what was known and done by the company´s executives. 546 541 For instance, the crime of torture could be framed in terms of ‗assault or battery‘, as well as the crime of ‗enslavement‘ that could fall within the tort of ‗false imprisonment‘ 542 Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, Corporate Complicity & Legal Accountability, Volume III, op. cit., p.13. 543 Ibid. 544 Ibid. 545 Zerk, J., Corporate liability for gross human rights abuses, op. cit., p. 44. 546 Zerk denominates ‗directing mind and will‘. Ibid. 133 III.4. B. b. Causation and complicity A causal connection between the conduct and the harm is required to set down civil liability. In establishing this causality, courts take into account whether or not the concerned conduct was a condition without which the harm would not have occurred. 547 Causation often involves looking behind the principal perpetrator and understanding the numerous factors that have made the perpetration of those abuses possible. Therefore, the company‘s participation could vary, for instance, from providing the principal actor with goods or tools used to cause the harm, to direct and active participation in the harm suffered by having business partnerships that incurs on that. Although this sort of conduct is ordinarily regarded a normal part of doing business, they can be considered to be a cause of harm. 548 When establishing the causation link, courts will take into account different factors depending on the specific circumstances. 549 In this respect, the concept of ‗reasonable foreseeability‘ is an objective standard that determines how a prudent person would have acted in these circumstances and consequently, it plays an important role in establishing both negligence and causation. The notion of ‗reasonable foreseeability‘ concerning negligence is about how likely that harm was caused by the actor‘s negligent conduct, whereas in the context of causation, the question is how likely the damage actually suffered would be caused by the negligent conduct. 550 On the other hand, it has been often argued by companies that a causal nexus cannot be established because the abuses would have occurred anyway, even if the company had not been involved. As the ICJ clarifies, the issue at this point is not whether the violations would have occurred without the company‘s participation, but 547 Hoffman, L., ‗Causation‘, Law Quarterly Review, vol.121, 2005, p. 592. 548 Any particular kind of business dealings and transactions, such as selling and providing goods and services, purchasing in a supply chain, financing or entering into a joint venture, can be alleged to be an intrinsic part of a chain of causation leading to the infliction of harm through gross human rights abuses. Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, Corporate Complicity & Legal Accountability, Volume III, op. cit.. p.23. 549 See for instance Article 3:201, Principles of European Tort Law, Available at: www.egtl.org 550 Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, Corporate Complicity & Legal Accountability, Volume III, op. cit., p.24-25. 134 rather whether the specific harm suffered by a specific victim was caused by the company‘s conduct. 551 Notwithstanding the above, the chain of causation between the corporation‘s act and the harm can be broken sometimes. This is commonly known as novus actus interveniens or ‗intervening act‘. In these cases, the causal nexus between the company‘s conduct and the harm may be insufficiently direct because the damage would be too remote from the company‘s conduct or is no longer an inevitable consequence of the defendant‘s act or omission. 552 III.4. B. c. Allocating liability within corporate groups One particular feature of many corporations nowadays is the complexity of modern business structures, usually consisting of a parent company with many subsidiaries, which can have other subsidiary companies at the same time or can even sometimes involve entering into a business agreement with other companies for which a new business entity is made up. Bearing this in mind, there are many reasons why it may be relevant to consider the involvement of a parent company in the conduct of its subsidiary when allegations of complicity in human rights violations arise. Amongst them, we can note for instance, cases in which the parent company tolerated the conduct that produced the wrongdoing or perhaps went beyond it, directing and approving the harm. Nevertheless, according to the doctrine of a separate corporate personality, 553 members of the corporate group are considered as legally autonomous and consequently, they will not automatically be held legally responsible for the acts or omissions of another. The behaviour of each company within the corporate group is individually assessed. This legal separation means that, for 551 Ibid. 552 The Panel indicates that it is however very unlikely that another actor‘s intentional conduct will be considered to constitute an intervening act if that conduct was foreseeable and the company had a special relationship with the actor. 553 On this topic, see for instance James, N., ‗Separate Legal Personality: Legal reality and Metaphor‘, Bond Law Review, vol. 5, issue 2, 1993, pp. 217-228; for a comparative study see also Cheng, T. K., ‗The Corporate Veil Doctrine Revisited: A Comparative Study of the English and the U.S. Corporate Veil Doctrines‘, University of Hong Kong Faculty of Law Research Paper, 2011, pp. 1-83. 135 the purposes of addressing legal responsibility, the conduct of a subsidiary will not be identified with its parent company. 554 Some domestic legal systems do permit ‗piercing of the corporate veil‘ in very limited circumstances, the result being that other companies in a corporate group -generally the parent companycan be held responsible for the acts of subsidiaries. 555 In most jurisdictions there are only two ways to establish parent company liability in parallel to subsidiary company liability: when the courts estimate that the doctrine of separate legal personality is being abused to perpetrate fraud or avoid existing legal obligations; and when the conduct of the parent company itself was, as the subsidiary, also negligent or intentional. 556 There have been attempts to incorporate some different theories such as the ‗enterprise theory‘ or the ‗agent theory‘ into domestic jurisdictions in order to hold parent companies liable, but they have been largely unsuccessful. Enterprise theory basically argues that members of a corporate group should be jointly and separately liable for harm caused by their group activities, as they are actually the same economic enterprise. The agent theory notes that the principal is liable for the acts of its agent acting within the scope of authority. 557 Domestic courts have tended to reject these arguments on the basis that they undermine basic tenets of company law. 558 III.3. B. d. The Alien Tort Statute To date, the main forum for corporate human rights abuses litigation has been the Alien Tort Statute in the United States, which allows non-US citizens (aliens) to file tort-based claims in United States courts for human rights abuses against non-US 554 See for instance Millon, D., ‗Piercing the Corporate Veil, Financial Responsibility, and the Limits of Limited Liability‘, Emory Law Journal, vol. 56, Number 5, 2007. 555 This may be the case where the parent company is particularly involved in the activities of the subsidiary, to an extent greater than what would normally be expected in a parent/subsidiary relationship. 556 Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, Corporate Complicity & Legal Accountability, Volume III, op. cit., p.47. 557 See for instance Skinner, G., ‗Parent company accountability, Ensuring Justice for Human Rights Violations‘, Report of the International corporate accountability roundtable, 2015, p. 15-17. Document available at https://static1.squarespace.com/static/583f3fca725e25fcd45aa446/t/591c8ebdbf629a23e7e35da0/1495043 779017/PCAP+Report+2015.pdf accessed 15 April 2018. 558 However, as Zerk pointed out, there is some domestic law jurisprudence in support of the idea, arising from cases in the United Kingdom and India. Zerk, J., Corporate liability for gross human rights abuses, op. cit., p. 46. 136 companies, even if the harm took place outside the United States. 559 Although the Statute dates back to the 18th century, it was not until 1980 that it was successfully invoked in a human rights claim in the case Filártiga v. Pela-Irala. 560 Since then, more than 150 complaints have been filed against companies under this statute, many of them following the extraterritorial application of it. However, the US Supreme Court‘s decision in the Kiobel case narrowed the extraterritorial application of the ATS to cases that ‗touch and concern the territory of the United States‘. 561 Notably, the notion of corporate complicity in human rights violations has been given much consideration by US courts under this Statute, although they have not yet defined it clearly and uniformly. 562 In this sense, Maassarani usefully identifies four categories of business behavior considered as illegal conduct under the ATS: (1) joint criminal enterprises; (2) conspiracy to violence; (3) instigation of violence with knowledge of outcome; and (4) procurement, or profiting from sales or services knowing that it contributes to violence but without necessarily having criminal intent. 563 It is relatively rare that a corporation is sued in the US Courts under the Statute as the primary perpetrator, so most of the cases concern situations where corporations are alleged to have contributed, in any of the above-mentioned ways, to State or armed group violations. 564 The US courts have been gradually redefining what violations concern non-State actors, such as companies. Accordingly, genocide, slave trading, slavery, forced labour 559 For an overview of the history of ATS litigation against corporate actors see: McBarnet et al., ‗Corporate Accountability through Creative Enforcement: Human Rights, the Alien Tort Claim Act and the limits of Legal Impunity‘ in MacBarnet et al (Eds), The New Corporate Accountability. Corporate Social Responsibility and the Law, 2007. 560 Two Paraguayan citizens claimed against a former Paraguayan police official for torturing a member of their family in Paraguay. The defendant was based in the United States at the time of the case. 561 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013). For more info about this case, see Stewart, D., and Wuerth, I., ‗Kiobel v. Royal Dutch Petroleum Co.: The Supreme court and the Alien Tort Statute‘. American Journal of International Law, vol. 107, no. 3, 2013, pp. 601-621; Giannini, T., and Farbstein, S., ‗How Kiobel Undermines the Nuremberg Legacy & Modern Human Rights‘, Harvard International Law Journal Online, Vol. 52, 2010. 562 Two relevant cases in this sense are Doe v. Unocal 395 F. 3d 932 (9Cir. 2002) and Presbyterian Church of Sudan v. Talisma Inc, 453 F. Supp. 2d 633 (S.D.N.Y. 2006). See Kuuya, V.,‘ Corporate Complicity In Human Rights Abuses. A Discussion Paper‘, 2008. 563 Maassarani, T.F., ‗Four Counts of Corporate Complicity: Alternative Forms of Accomplice Liability under the Alien Tort Claims Act‘, 2005, New York University Journal of International Law & Politics, vol. 38, pp.39–65. 564 Zerk, J., Corporate liability for gross human rights abuses, op. cit., p.24. 137 and war crimes have been determined as actionable, even in the absence of any connection to State action. 565 In addition, according to the Kadic v. Karadzic judgment, where rape, torture and summary execution are committed in isolation, these crimes ‗are actionable under the Alien Tort Act, without regard to State action, to the extent they were committed in pursuit of genocide or war crimes‘. 566 Thus, regarding the domestic law response to human rights violations, the United States has been exceptional allowing –so farthe option of seeking private law reparations under the ATS. However, following the decision of the Supreme Court in Kiobel, US courts seem to be taking an increasingly restrictive approach to the scope of this Statute. III.3. B. e. Enforcement mechanisms and practical obstacles As well as criminal law, civil law of remedies claims generally faces the problem of the attribution of responsibility, the causality for damages, and the subjective standard of intent or negligence. This is mainly due to the complex nature of the human rights abuses and the corporate structures. Generally speaking, the greatest obstacle for holding corporations accountable is the attribution of the torturous acts to the company‘s headquarters, what is also commonly known as ‗piercing the corporate veil‘. As Taylor, Thompson and Ramasastry have pointed out ‘it is often difficult to identify the particular business entity involved in an alleged violation. Even assuming that one can identify the particular entity, the use of intermediary holding companies, joint ventures, agency arrangements and the like, often protected by confidentiality arrangements, makes it difficult or impossible to establish a connection between the entity and its parent ownership‘. 567 So far, most domestic jurisdictions are cautious and they only seem to be prepared to recognise the possibility of parent company liability in limited circumstances. 568 565 See for instance, Doe v. Unocal, (2002) 395 F.3d 932 566 Kadic v. Karadzic 70 F. 3d 232 at 243–244 (2d Cir. 1995) cited with approval in Doe v. Unocal (2002). 567 Taylor, M.B., Thompson R.T, and Ramasastry, A., ‗Overcoming Obstacles to Justice: Improving Access to Judicial Remedies for Business Involvement in Grave Human Rights Abuses‘, FAFO Report 2010, p.10-11. 568 For instance, in the US, the parent company could possibly be based on direct liability or secondary theories of liability. On the other side, under French jurisdiction, the theory of parent company liability could be developed where there is a high degree of involvement by the parent in the running of the 144 The UNGPs establish that the corporate responsibility to respect ‗is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States‘ abilities and/or willingness to fulfill their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights‘. 597 In order to meet this responsibility, ‗human rights due diligence‘ is required at operational level, which is understood as ‗the steps a company must take to become aware of, prevent and address adverse human rights impacts.‘ 598 According to Principle 17, human rights due diligence comprises the following four main steps: impact assessment, taking ‗appropriate action‘ to deal with the impacts, tracking performance and communicating it publicly. Expected responses for negative impacts include ceasing own harmful activities, ceasing own contributions or trading relationships with irresponsible contractors. 599 In any case, remediation of impacts is only called for when a company caused or contributed to harm, but not when a company merely had a business relationship with the main perpetrator. 600 As noted above, some businesses operating in some specific environments, such as conflict-affected areas, carry greater risks of being involved in human rights violations than others. According to the explanatory Commentary of Principle 23, ‗business enterprises should treat this risk as a legal compliance issue, given the expanding web of potential corporate legal liability arising from extraterritorial civil claims, and from the incorporation of provisions of the Rome Statute of the International Criminal Court in jurisdictions that provide for corporate criminal liability‘. It is important to note that both the UNGPs and the SRSG did not broaden the responsibility to respect and they do not request companies to do more than merely respect human rights. Thus, the corporate responsibility does not expand to include ‗protect‘ or ‗fulfill‘ elements. 597 Guiding Principle 11, Commentary. 598 Guiding Principle 13. This Principle also explains that a company has a responsibility to respect when it causes, it contributes to or is directly linked through its business relationships to an abuse. 599 Guiding Principle 19, Commentary. 600 Guiding Principle 22. 145 Moreover, the distinction between ‗duty‘ and ‗responsibility‘ in the context of UNGPs is also a relevant issue. Since it is the State that consents with its signature and/or ratification to be party to a particular international agreement, it is therefore the State which is duty-bound to observe its provisions. Corporations are not a part of this sort of agreement, so they only have a responsibility to respect them. Thus, ‗duty‘ invokes a primary moral or legal obligation while ‗responsibility‘ involves accountability for praise or blame for possible consequences. 601 ● Pillar III: The right of access to remedy Victims of abuses of international human rights law have the right to seek redress to an effective remedy. This right is recognised in numerous international human rights instruments and as part of States‘ customary obligations. 602 The UN Guiding Principles compile both judicial and non-judicial grievance mechanisms that can be strengthened by both States and businesses. As part of their duty to protect, States must take appropriate steps to ensure that when abuses occur, victims have access to effective judicial and non-judicial State-based grievance mechanisms. On the one hand, judicial processes are made available through a State‘s judicial system and can refer both to private claims for remedies and to domestic criminal law processes. 603 On the other hand, non-judicial processes refer to dispute resolution mechanisms that operate outside the domestic judicial system, such as ombudsmen services and mediation. All non-judicial grievance mechanisms should meet key effectiveness criteria by being legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning, and (in the case of operational-level mechanisms) based on dialogue and engagement. 604 601 Business and human rights: further steps toward the operationalization, Report of the SRSG on the issue of human rights and transnational corporations and other business enterprises, J. Ruggie, 2010, A/HRC/14/27/2010, para. 55. 602 Zerk, J., Corporate liability for gross human rights abuses, op. cit., p.56. 603 Remedies will often include financial compensation but are not necessarily limited to it. According to the words of the UN Guiding Principles, ‗effective judicial mechanisms are at the core of ensuring access to remedy‘. Guiding Principle 26, Commentary. 604 Guiding Principle 27. 146 Furthermore, the UN Guiding Principles distinguish between ‗State-based‘ and ‗non-State-based‘ mechanisms. While the first ones have some official status within the domestic legal system, 605 non-State-based mechanisms are private in nature and should complement State-based mechanisms. They include mechanisms at the company operational level, at the national level, or as part of multistakeholder initiatives or international institutions. Along with the responsibility to ensure access to remedy, States will also have responsibilities to ensure that judicial resources are well deployed. III. 3. C. c Enforcement mechanisms and practical obstacles Despite the open debate around hypothetical human rights obligations of non- State actors, subjectivity in Public International Law is still limited to States, so it is probably unsurprising that there is a lack of enforcement mechanisms for corporate human rights violations at International human rights level. The UNGPs on its side, distinguishes between ‗State-based‘ and ‗non-State-based‘ mechanisms, as noted above, but they do not create or suggest any other new mechanism to ensure the fight against impunity for corporate abuses. There are some alternative International Complaint Mechanisms and standard-settings such as the ones contained in the ILO Conventions or the OECD Guidelines for Multinational Enterprises but as happens with the UNGPs, all these norms are soft law so they do not have a binding character. 606 Some of these standards are accompanied by non-legal complaint mechanisms. For instance, the Tripartite Declaration of Principles concerning Multinational Enterprises can register complaints against member States/corporations for non-fulfillment of obligations but this is limited for victims of International Crimes. 607 605 According to the Commentary to Principle 25 they ‗may be administered by a branch or agency of the State or by an independent body on a statutory or constitutional basis‘. State-based mechanisms include judicial processes but may also refer to other statutory dispute resolution bodies. 606 Although these instruments are technically non-binding, their provisions include re-Statements of existing international law obligations. At the very least, they are evidence of an emerging consensus concerning the steps that States should now be taking, and the areas that need to be prioritised for action, in order to meet their responsibilities towards victims in cases where businesses are implicated or involved in gross human rights abuses. 607 Neither individual victims nor civil society organizations can initiate proceedings or be otherwise involved. Indeed, the ILO member States and representatives of employers and employees are the only entities to be able to do so. Available at: http://www.ilo.org/wcmsp5/groups/public/---ed_emp/--- emp_ent/---multi/documents/publication/wcms_094386.pdf accessed 20April 2018. 147 At the regional level, the IACHR has been increasingly compelled to address corporate human rights violations. In doing so, the Commission has held numerous thematic hearings on the threat of corporate activities on human rights, 608 drafted thematic reports to address the issue, 609 and granted precautionary measures. 610 However, when reviewing the Commission‘s decisions and the Court‘s jurisprudence we find that although cases involving human rights violations by companies have been addressed, they have rarely analysed the role played by either the businesses or their complex interactions with the conduct of States. 611 The ECtHR has clearly identified its position in the judgement of Florin Mihailescu v. Romania where the Court expressed that it has no jurisdiction to consider applications directed against private individuals or businesses. 612 However, the Court has reinforced many times the State obligation to protect in cases such as López Ostra v. Spain, where it held that the State failed to succeed in striking a fair balance between the interest of the town‘s economic well-being in having a waste-treatment plant, and the applicant‘s effective enjoyment of her right to respect for her home and her private and family life. 613 608 For instance, hearing related to Forced Displacement and Development in Colombia, 153 Period of Sessions, (Oct. 27, 2014); Extractive Industries and Human Rights of the Mapuche People in Chile, 154 Period of Sessions; Corporations, Human Rights, and Prior Consultation in the Americas, 154 Period of Sessions; Reports of Destruction of the Biocultural Heritage Due to the Construction of Mega Projects of Development in Mexico, 153 Period of Sessions; Impact of Canadian Mining Activities on Human Rights In Latin America, 153 Period of Sessions; Human Rights Situation of Persons Affected by the Extractive Industries in the Americas, 144 Period of Sessions. 609 See, for instance, Inter-American Commission of Human Rights, Indigenous and Tribal Peoples‘ Rights over their Lands and Natural Resources, OEA/Ser.L/V/II. Doc. 56/09. (Dec. 30, 2009); or on Captive Communities: Situation of the Guaraní Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco, OEA/Ser.L/V/II. Doc. 58. (Dec. 24, 2009). 610 For example, when corporate activities affect the right to health of communities, indigenous sacred zones, or the right to prior consultation of indigenous peoples while implementing large-scale projects. See, e.g., San Mateo de Huanchor community and members, Peru, Precautionary Measures, Case 504/03, Inter-Am. Ct. H.R., Report No. 69/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 (Aug. 17, 2004); 611 A paradigmatic example of this approach can be found in the case of the Santo Domingo Massacre in which neither the IACHR nor the Court addressed the role of Occidental Petroleum Corporation (OXY) in Colombian Air Force bombing of the hamlet of Santo Domingo in the department of Arauca, Colombia. See Santo Domingo Massacre v. Colombia, Preliminary Objections, Merits and Reparations, Inter-Am. Ct. H.R. (ser. C) No. 259 (Nov. 30, 2012). 612 ECtHR, Florin Mihăilescu v. Romania. 26 August 2003, App. No. 47748/99. ECHR 2003-II 613 ECtHR, López Ostra v Spain A 303-C (1994); 277. 148 Besides the particular barriers of some domestic law jurisdictions, there are also many general difficulties in interpreting and applying the UNGPs in practice, especially in relation to abuses taking place outside territorial boundaries. States tend to have different standards when assessing the legitimation of a particular case and whether it is appropriate to take jurisdiction over it, and whether or not there are indeed alternative sources for effective remedy. Some States have much more flexible rules on extraterritorial jurisdiction than others, which inevitably raises the question as to whether those with very restrictive rules are meeting their duty to protect under the Guiding Principles. 614 For many different reasons, victims often lack access to an effective remedy in their national court systems and they have increasingly sought remedies through litigation in foreign States – such as where the company is domiciled, the home States. However, jurisdiction is often denied in such cases, resulting in denials of justice and impunity for perpetrators or those complicit in human rights abuses. 615 Generally speaking, rules on the use of extraterritorial jurisdiction are more flexible in the private law sphere than in the public law sphere. This is mainly due to the fact that extraterritorial criminal law jurisdiction is constrained by rules of public international law designed to ensure respect for territorial sovereignty. Conversely, the private law sphere tends to be ruled by domestic law principles that usually take into account the possible factors that connect the claim and the forum State. 616 On the other hand, international arbitration has increasingly proved to be an obstacle to seek redress for human rights violations. As is often the case, at international arbitration the company‘s rights under an agreement that it negotiated with a host government, or under an investment Treaty tend to prevail, which are pitted against a State‘s duty to protect the human rights of its citizens. In some cases arbitration is used to block judicial decisions. 617 614 Zerk, J., Corporate liability for gross human rights abuses, op. cit., p.59 615 Ibid. 616 According to Zerk, most States appear to consider that they have jurisdiction as of right over cases involving defendants incorporated under their own laws. However, in some common law States -such as the United Statesthe courts may choose not to exercise this jurisdiction if they consider that there exists another more ―convenient‖ forum. This doctrine of forum non conveniens is not recognized in civil law States. Zerk, J., Corporate liability for gross human rights abuses, op. cit., p.68. 617 See for instance where Philip Morris initiated an arbitration Action against Uruguay. For more info: Corporate Legal Accountability, Business & Human Rights Resource Centre, Annual Briefing, June 2012, p.4. Available at https://business-humanrights.org/sites/default/files/media/documents/corporatelegal-accountability-annual-briefing-final-20-jun-2012.pdf accessed 20 April 2018. 149 Despite having great support, there are many critical voices to the UNGPs. The main arguments for this criticism is that the Ruggie framework sets a very low level of human rights obligations, as the achievement of consensus with business was a goal itself. Moreover, although the UNGPs place no limitations on the list of rights applicable to corporations, they do limit the respective corporate duties with respect to the Draft Norms. 618 Following the endorsement of the UNGPs, the Human Rights Council decided to establish a Working Group on the issue of human rights and transnational corporations and other business enterprises 619 which consists of five independent experts, of balanced regional representation, for a period of three years. 620 Likewise, the Council decided to establish a Forum on Business and Human Rights under the guidance of the Working Group on the issue of human rights and transnational corporations and other business enterprises. 621 In 2014, at the 26th session of the UN Human Rights Council in Geneva, a resolution ‗to establish an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights‘ was adopted. 622 The resolution was significantly supported by civil society organizations, and accepted in a highly divided vote. 623 The intergovernmental group met for the first time in Geneva in July 2015. The second session took place in October 2016, and the 618 Deva, S and Bilchitz, D., Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, op. cit., p 51. 619 Human Rights Council Resolution on Human rights and transnational corporations and other business enterprises, A/HRC/RES/17/4, 2011. 620 The Working Group's mandate was renewed in June 2014. Website http://www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.as px accessed 21 April 2018. 621 This Forum is open to all relevant stakeholder groups, including States, the wider United Nations system, intergovernmental and regional organisations, businesses, labour unions, national human rights institutions, non-governmental organizations, and affected stakeholders, among others. 622 Drafted by Ecuador and South Africa, and signed also by Bolivia, Cuba and Venezuela. Resolution A/HRC/26/L.22/Rev.1.Full Document available at https://documents-dds- ny.un.org/doc/UNDOC/LTD/G14/064/48/PDF/G1406448.pdf?OpenElement accessed 22 April 2018. 623 The voting result was the following: 20 States in favour (Algeria, Benin, Burkina Faso, China, Congo, Côte d'Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, Russia, South Africa, Venezuela, Vietnam), 14 States against (Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, South Korea, Romania, Macedonia, UK, USA) and 13 States abstaining (Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone, UAE) (Business and Human Rights Resource Centre, ‗UN Human Rights Council 26th Session‘, Geneva, 10-27 June 2014. 150 third one in October 2017. According to the OEIWG mandate, these sessions were ‗dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument‘. 624 Some of the key points discussed include that a legally binding instrument should address gaps in voluntary initiatives and explore direct obligations on business. 625 Negotiations are currently ongoing and it seems that coming months are crucial for the success of the process. 626 Political confrontation between developed and developing States was evidenced from the first meeting, 627 mainly to the developing countries‘ insistence on focusing exclusively on transnational corporations rather than all business enterprises –excluding then those operating at national level-, 628 as well as the requirement by the EU and other States to include a panel on the implementation of the UNGPs in the programme of work. 629 Moreover, one of the most important substantive issues raised was the hierarchy of international law, particularly focusing on the clash between international human rights regulation and bilateral investment agreements. Indeed, practice has shown how the latter has importantly limited host governments‘ capacities to enact policies to address human rights public concerns. 630 Ultimately, whether a binding treaty on business and human rights is desirable and feasible remains an open question. 631 624 UNHRC, ‗Resolution 26/9 Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights‘, A/HRC/RES/26/9, 14 July 2014, para 2. 625 Report on the third session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (A/HRC/37/67), para. 53. The full report can be found at https://documents-dds- ny.un.org/doc/UNDOC/GEN/G18/017/50/PDF/G1801750.pdf?OpenElement accessed 22 April 2018. 626 See for instance, ‗UN treaty process on business and human rights moving into a new phase‘, European Coalition for Corporate Justice, 2 November 2017, Available at http://corporatejustice.org/news/3607-un-treaty-process-on-business-and-human-rights-moving-into-a- new-phase accessed 22 April 2018. 627 Namely, the EU members and the United States and Canada did not attend the first session. 628 This issue has been called the depth question. See Deva, S., ‗Scope of the Legally Binding Instrument to Address Human Rights Violations Related to Business Activities‘, A Working Paper of the ESCR-Net & FIDH Treaty Initiative, 2017, p. 3. 629 Cantú, H., ‗Negotiating A Treaty On Business And Human Rights: The Early Stages‘, UNSW Law Journal, vol. 40, no. 3, 2017, pp. 1203. 630 The theoretical discussion was eventually confronted by the reality that only State action to reform existing treaties or to include human rights concerns in new bilateral investment agreements could enhance the prospects for human rights protection by States. Ibid., 1204. 631 Cantú notes that civil society organisations and academics, as well as some States, are particularly keen to make the adoption of such a treaty. In contrast, businesses and many developed and developing States are unconvinced of the convenience of such an approach. For a further analysis of the position of Latin American States, as well as of other developing States regarding the treaty process, see Cantú Rivera, ‗Business and Human Rights in the Americas: Defining a Latin American Route to Corporate 151 III.4. Intermediate conclusions This chapter contended that corporate actors possess today unprecedented power and influence, affecting often negatively the human rights enjoyment of the communities where they operate. Therefore, holding companies accountable for such wrongdoings appears to be an urgent task for international lawyers. Given that States are the primary subjects of Public International Law, corporate involvement in human rights abuses is frequently categorised as complicity. This chapter analysed the notion of corporate complicity for human rights violations and the doctrinal categories, concluding that the concept is not legally clearly defined but widely used nowadays when referring to corporate human rights abuses. Finally, this third chapter explored the options to hold corporations accountable for human rights abuses, focusing on requirements and practical obstacles to effectively develop them. It has been argued in this sense that, beyond the soft law initiatives that have proliferated in the last years, there is a lack of enforcement mechanisms at the international level for corporate human rights violations. At the domestic level, on the other hand, there is not uniformity concerning criminal law jurisdictions and private law mechanisms are not working well for victims either. Indeed, the lack of clear domestic standards and mechanisms to address corporate criminal liability can represent a State failure to properly comply with their duty to protect. Besides the procedural obstacles, victims of corporate human rights abuses face significant practical barriers when trying to obtain reparation, such as financial constraints. Responsibility‘ in Carrillo Santarelli, N. and Letnar, J. Černič (eds), The Future of Business and Human Rights – Theoretical and Practical Considerations for a UN Treaty, Intersentia, 2017, pp. 163-184. 152 (Intentionally left in blank) 153 IV. CHAPTER FOUR– Linking corporate accountability and transitional justice. IV.1 Introduction. Corporations often develop their activities in territories affected by conflict or authoritarianism. However, human rights abuses in these contexts in which companies are involved in are not usually conceptualised as part of transitional justice programmes. 632 Instead, transitional justice has been traditionally focused only on Statesponsored violence, which helps to explain this accountability gap. Similarly, ESCRs violations have not historically received the attention of transitional justice strategies, as examined in chapter two. Given that economic actors, such as multinational corporations, gather more power and strength and the division between State and non- State actors under international law is eroded, transitional justice is being forced to address corporate-related human rights violations. 633 Furthermore, recognising the role of all actors and the whole spectrum of human rights violated in such contexts is crucial to properly address the root causes of violence and conflict, as well as to contribute to sustainable and positive peace. The notion of positive peace implies more than the mere absence of violence; it also includes the restoration of relationships, the creation of social systems that cover the needs of the population and the constructive resolution of conflicts. 634 The primary goal for positive peace would be therefore to address deep-rooted causes of conflict, so conditions for violence would be resolved. 635 Similarly, transitional justice aims to 632 Michalowski, S., ‗Introduction‘, in Michalowski, S. (ed.), Corporate Accountability in the Context of Transitional Justice, Routledge, 2013, p.1 633 Ibid. p.2. 634 Galtung differentiates between negative and positive peace, arguing that the first one simply refers to an absence of violence, as something negative/undesirable has stopped. He also states that peace theory is intimately connected not only with conflict theory, but equally with development theory. See Galtung, J., Theories of Peace. A Synthetic Approach to Peace Thinking, International Peace Research Institute, 1967, pp. 12-17; See also for a brief analysis Galtung, J., ‗Violence, Peace, and Peace Research‘, in Journal of Peace Research, vol. 6, no. 3, 1969, pp. 167-191. 635 See for instance, Sandole, D. J. D., ‗Typology‘, in Cheldelin, S., Druckman, D. and Fast, L. (Eds.), Conflict: From Analysis to Intervention, Continuum, 2003, pp.39-45. 256 did not claim for their salaries or improvement of their work conditions. 1148 A criminal case against three managers of the company, Pedro Müller, Guillermo Galarraga, and Héctor Francisco Jesús Sibilla, was built and the public oral trial was set for in 2014, but it was postponed due to procedural issues, but also because of dilatory tactics used by defendants. 1149 In December 2014, the trial court took in advance the testimony of two unionists because of their delicate health, who described how they were kidnapped and tortured inside the Ford factory. 1150 The Ford trial finally started on 19 December, 2017, against Pedro Müller and Héctor Francisco Jesús Sibilla. 1151 The third defendant died in 2016. 1152 Recently, in 2018, The Prosecutor's Office requested the arrest of six businessmen from the Ingenio La Fronterita, accused of forced disappearance and arbitrary detentions during the dictatorship. During the 1970s, military forces installed a base at the factory grounds that functioned as a clandestine detention centre. Based on testimonies and administrative documentation, the prosecutor considered them accomplices of more than 60 kidnappings of sugar trade unionists, workers of the mill, their relatives and close neighbours and the disappearance of a dozen of them materialized by the Army between 1975, in the Operative Independence, and 1979. 1153 Labor law has been also used in an innovative way to address corporate responsibilities in Argentina. 1154 In cases against Techint SA in 2012, 1155 and SIDERCA in 2007, 1156 victims‘ relatives claimed financial compensation from the companies for the disappearance of their loved ones, alleging corporate involvement in the crimes. In 1148 Interview with Tomás Ojea Quintana, Ford victims' lawyer. Buenos Aires, Argentine. August 2017 1149 Ibid. 1150 Basualdo, V., Ojea Quintana, T., and Varsky, C., ‗The Cases of Ford and Mercedes Benz‘, in Verbitsky, H. and Bohoslavsky, JP. The Economic Accomplices to the Argentine Dictatorship. Outstanding debts, op. cit., p. p.173 1151 A Factsheet of the case can be found at https://www.fiscales.gob.ar/lesa-humanidad/juicio-causa-ford- san-martin/ accessed 25 May 2018. 1152 Then President of Ford Motors Argentina, Nicolas Enrique Courard, died in 1989. 1153 See ‗Los empresarios cómplices del terror‘, Página 12, 23 April 2018. Available at https://www.pagina12.com.ar/110065-los-empresarios-complices-del-terror accessed 23 May 2018. 1154 Payne, L.A., and Pereira, ‗Accountability for Corporate Complicity in Human Rights Violations: Argentina‘s Transitional Justice Innovation?, op. cit.,. p. 40. 1155 The case known as ‗Ingegnieros‘, in which María Gimena Ingegnieros, daughter of Enrique Roberto Ingegnieros requested financial compensation for her father‘s disappearance. 1156 A case brought by Ana María Cebrymsky, the wife of Oscar Orlando Bordisso, who disappeared shortly after he left work in 1977. 257 the case of SIDERCA, the widow of a disappeared victim claimed compensation from employers under Argentine labor law, particularly arguing that the country‘s work safety law obliged the company to protect her husband on entering and exiting the work site. 1157 In both cases companies denied the claim and Stated that demands had a twoyear statute of limitations that had long ago run out, but the court denied this argument declaring that statutes of limitation do not apply to compensation claims linked to crimes against humanity. 1158 However, as it has been already mentioned, later Supreme Court jurisprudence in 2017 reversed this conception. While civil responsibility seemed to open an option as a way to judicially address corporate accountability, given that actions can be brought also against accomplices (both for individuals or legal persons), this last jurisprudential line contended that actions for past crimes against humanity are subjected to the previous Civil and Commercial Code disposition which established a limit of two years. 1159 The Papel Prensa case has been another example of addressing corporate accountability but with regard to illegal business transactions. Following the death in 1976 of David Graiver, owner of the Papel Prensa newsprint company, 1160 his brother and wife were allegedly threatened and pressured into selling the company to FAPEL. 1161 Subsequently, the three biggest Argentine newspapers loyal to the regime bought the company. Therefore, La Nación, Clarín, and La Razón secured their monopoly over news production. 1162 Investigations started in 2010 but they were been frozen for a while, until the Supreme Court confirmed the dismissals of the main defendants in December 2017. 1163 While some have argued that this case is an example of the Kirchner administration‘s political misuse of transitional justice instruments to 1157 Payne, L.A., and Pereira, ‗Accountability for Corporate Complicity in Human Rights Violations: Argentina‘s Transitional Justice Innovation?, op. cit., p. 41. 1158 Crimes committed under State repression have been generally framed as crimes against humanity. See supra note 1021. 1159 See supra note 959. 1160 He died in an airplane crash. His death was matter of suspicion as Graiver had alleged links to the left-wing urban guerrilla Montoneros, which was opposed to the regime. 1161 Fábrica Argentina de Papel 1162 Payne, L.A., and Pereira, ‗Accountability for Corporate Complicity in Human Rights Violations: Argentina‘s Transitional Justice Innovation?, op. cit.,. p. 42. 1163 See ‗Papel Prensa: la Corte confirmó los sobreseimientos de Bartolomé Mitre y Héctor Magnetto‘, Clarín, 27 December 2017. Available at https://www.clarin.com/politica/papel-prensa-corte-confirmo- sobreseimientos-bartolome-mitre-hector-magnetto_0_ryVUPMZXM.html accessed 23 May 2018. 258 punish the government‘s political opponents, others have seen it as an important case for addressing corporate wrongs of the dictatorship allies. 1164 In summary, corporate involvement in the transitional justice process in Argentina has been mainly covered by truth and justice processes and mechanisms, as described within this section. They have produced different outcomes but they significantly provided visibility to victims and evidenced corporate involvement in human rights abuses, which has been a step forward in the pursuing of accountability. While truth mechanisms considered the role of corporations as entities in human rights abuses, prosecutions have been only conducted towards corporate managers but not to the company itself, due to the procedural limitations mentioned above. Despite the fact that the Argentinian criminal code has been recently amended to include corporate criminal liability, corporations still only must legally respond in a limited list of offences, which presents important challenges to holding them accountable for human rights abuses. Reparations policy has been exclusively provided by the State, so no private actors contributed either financially or to its implementation. 1165 Nevertheless, some of these reparations affected the private sector, such as the Law 23.523, which established reincorporation of bank workers fired for political reasons; or Law 23.278, which affected those who were fired or forced to resign or forced into exile based on political or union activism. 1166 Similarly, some judicial rulings have ordered labour reparations to workers who were victims of State repression, such as the ones related to Astillero Río Santiago, YPF, Propulsora Siderúrgica and Swift. 1167 For instance, the court ordered Astillero Río Santiago to maintain economic remuneration for workers and family members entitled to a pension, until they can effectively access retirement. Likewise, it ordered the correction of the legajos (company‘s archives) ‗to record the true reasons for the termination of the employment relationship‘. 1168 The court also 1164 Payne, L.A., and Pereira, ‗Accountability for Corporate Complicity in Human Rights Violations: Argentina‘s Transitional Justice Innovation?, op. cit.,. p. 42. 1165 Interview with Tomás Ojea Quintana, Ford victims‘ lawyer. Buenos Aires, Argentine. August 2017. See also, Guembe, M.J., ‗Economic Reparations for grave human rights violations: the Argentinian experience‘, op. cit.,, pp. 21-54. 1166 The law established that the period of forced inactivity would be computed for retirement purposes. 1167 Vañek, Antonio y otros s. infracción al art. 144 bis inc. 1. Cause nº 17/2012/TO1, 19 October, 2015. 1168 Ibid. 259 exhorted the companies to allow the building of a memorial within their facilities to remember what happened with the workers of those companies under the dictatorship. 1169 Concerning institutional reform, no specific initiatives have addressed the role and involvement of corporations in State repression under the Argentinian dictatorship. While vetting those who are guilty of human rights violations, including non-State actors, could be an effective means of ensuring non-recurrence and of strengthening the rule of law, these sorts of measures have not been implemented in the transitional justice process in Argentina. As mentioned in chapter three, international concerns about how to deal with corporate-related human rights violations have been raised only recently, at least at institutional level. 1170 This could also serve to explain why corporate accountability for human rights abuses has not been a core issue within transitional justice processes. Given that corporations frequently conduct their operations in countries under conflict or repression, it could has been expected that the institutionalised field of business and human rights dedicate more attention to these issues. However, recent international developments in the field, such as the UNGPs, still hardly consider those delicate situations, 1171 and in any case, they only provide recommendations to business when conducting their operations in such contexts in order to avoid their involvement in human rights abuses. Similarly, little attention has been paid to this issue within the discussions on the content and nature of a future international treaty on business and human rights. 1172 The business and human rights debate therefore has failed so far to consider and discuss all the key issues that arise regarding corporate-related abuses in the transitional justice process, such as those that occurred in Argentina. 1169 CELS Report, Informe de Derechos Humanos en la Argentina, 2016. Siglo XXI Editores, p.45. Available at https://www.cels.org.ar/web/wp-content/uploads/2016/12/IA2016-CELS-1.pdf accessed 23 May 2018. 1170 See Chapter III, Introduction. 1171 Only Principle 7 makes some reference to these high-risk situations. See chapter III, section 3. 1172 See Chapter Chapter III. 3.C and Chapter IV.2 260 VI. 5 Intermediate conclusions This chapter has addressed the different political stages of the Argentinian transitional justice process, as well as examined the mechanisms developed. It has contended that the use of different tools and the manner in which they were implemented responded to the political and social dynamics, being human rights organisations at the head of the accountability claims. Additionally, this chapter contended that the transitional justice process in Argentina has been traditionally focused on disappearances, as the cornerstone of social and judicial demands. Consequently, socioeconomic elements of the conflict, such as violations of ESCRs and corporate involvement, were regarded just as part of the context. Only recently has attention been paid to the role of companies in State repression, but transitional justice initiatives in this sense have produced mixed outcomes so far. Truth mechanisms addressed corporate involvement in repression, but they failed to give them a relevant place or to provide specific recommendations to hold them accountable. Similarly, justice mechanisms had to face procedural limitations, which impeded the holding of corporations liable as entities. While these obstacles hampered accountability claims, it does not mean that there are no other options to hold corporations accountable for past human rights abuses within transitional justice processes. Instead, reparations and institutional reform could have been used for this task; at the same time it would have helped to involve corporations positively in the post-dictatorship situation. 261 CONCLUSIONS Transitional justice is an eminently broad and complex field. Literature on the topic has significantly proliferated in recent years and involves different disciplines, such as law, economy, sociology and political sciences. While there are a number of sociopolitical elements and justice theories which directly influence transitional justice processes, it is widely accepted that confronting impunity, seeking redress and preventing recurrence of human rights abuses are the main goals of transitional justice, as well as facilitating social reconciliation. 1173 To achieve these aims, four main processes are usually implemented, each one with its own mechanisms. While the main mechanism of the truth process is the Truth Commission, the justice process involves domestic and international criminal and civil prosecutions. Similarly, reparations could have an economic and symbolic nature. Institutional reform, on the other hand, is the most under-researched and unexplored area, although it potentially has a great impact on avoiding recurrence. 1174 In this sense, as the UN has repeatedly pointed out, applying holistic and comprehensive approaches to countries experiencing transitional justice processes would present better and integral solutions to problems arising in transitional contexts. 1175 Every single transition is unique. Domestic and international political, historical and sociocultural dynamics of each particular context certainly define the way in which transitional justice processes are designed and implemented. Thus, while past measures and mechanisms could inspire and be applied in future transitional justice processes, they will have to be tailored to the specific case in which they operate. If not tailored to context, the effectiveness of transitional justice mechanisms would be easily undermined by the specific situations which they need to deal with. However, while the specific goals of transitional justice processes would depend on the context, recognition 1173 UN Secretary General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, op. cit., p. 4. 1174 OHCHR Publication, ‗Transitional Justice and Economic, Social and Cultural Rights‘, op. cit., p.56. 1175 See for instance, OHCHR, Rule of Law Tools for Post-Conflict States: Truth Commissions, op. cit., p. 9, or Guidance Note of the Secretary-General United Nations Approach to Transitional Justice, 2010, op. cit., p.2. 262 of the dignity of victims, acknowledgement and redress for abuses and avoiding repetition are constant features, regardless of the specific circumstances of each case. 1176 Whereas indivisibility and interrelatedness of all human rights have been wellproclaimed in IHRL, 1177 transitional justice processes have traditionally focused on the most egregious human rights abuses, which were often limited to bodily integrity violations such as killings, tortures, arbitrary detentions and disappearances. Socioeconomic aspects of conflict and authoritarianism have been thus disregarded, both at scholarship and practice level. However, many commentators have recently engaged in the complex debate as to whether transitional justice should and could incorporate ESCRs abuses and socioeconomic concerns. 1178 Those in favour argue that considering that economic inequality and interest often contributed to the outbreak of conflict or authoritarianism, longer-term and sustainable peace would require addressing these issues. 1179 Others, by contrast, contend that this inclusion would be too complex and deeply problematic as it would undermine the effects of transitional justice with unrealizable expectations. 1180 Similarly, they propose to leave this task to development programmes. Nevertheless, addressing many ESCRs violations can be relatively straightforward, particularly those related to negative State obligations 1181 and those which do not require significant State resources, such as specific labour rights. 1182 Therefore, addressing ESCRs violations would not need to unreasonably expand transitional justice mechanisms, neither would it generate unrealistic expectations. 1176 McGonigle Leyh, B., ‗The Socialisation of Transitional Justice: expanding justice theories within the field‘, op. cit., p. 84. 1177 See for instance ‗Vienna World Conference on Human Rights: Vienna Declaration and Programme of Action,‘ UN Doc. A/CONF.157/23. 12 July 1993. para. 5. Available at http://www.ohchr.org/Documents/ProfessionalInterest/vienna.pdf accessed 26 May 2018. See also Laplante, L.J., ‗On the Indivisibility of Rights: Truth Commissions, Reparations, and the Right to Development‘, op. cit., pp. 141–177. 1178 Also including structural violence, economic crimes, corruption and plunder as issues to be considered. 1179 See for instance, Burke, S., ‗Not Only ‗Context‘: Why Transitional Justice Programs Can No Longer Ignore Violations of Economic and Social Rights‘, op. cit.,. p.493. 1180 See for instance, Waldorf, L., ‗Anticipating the Past: Transitional Justice and Socio-Economic Wrongs‘, op. cit.,. p.171. 1181 As the negative obligation not to forcibly evict persons in violation of their right to adequate housing, for instance. Schmid, E., and Nolan, A., ―Do No Harm‘? Exploring the Scope of Economic and Social Rights in Transitional Justice‘, op. cit., p.17. 1182 As the right to form and join trade unions and collective bargain. See OHCHR, ‗Frequently asked questions on Economic, Social and Cultural Rights‘, op. cit., p.15. 263 This author believes that while including the entire spectrum of ESCRs abuses in the transitional justice process would not be efficient, addressing specific ESCRs violations would be desirable. The selection of which violations should be incorporated in transitional justice mechanisms work would ultimately respond to prioritisation and it would depend on the specific case and capacities. Therefore, attention should be paid to the nature of violations, the contexts in which they were committed and the institutional resource constraints. As has been analysed in chapter four, Truth Commission, prosecutions, reparations programmes and institutional reform can be accommodated to include specific violations of ESCRs. Truth Commissions can identify ESCRs violations through testimonies and data collection; prosecutions can legally condemn those violations and provide redress; reparations programmes can remedy and correct the negative effects of such ESCRs violations; and through institutional reform, individuals and legal entities involved in ESCRs violations could be vetted and excluded from the sphere of the public institutions. Although some of them would need long-term planning and implementation to be addressed, others would be perfectly suitable and remediable to be addressed by transitional justice mechanisms. Similarly, this work has argued that some misconceptions have led to wrong conclusions regarding the incorporation of ESCRs in transitional justice processes. ESCRs are just one element of the socioeconomic dimension of transitional justice. While it would be naïve to expect that the inclusion of ESRCs will resolve the full extent of the socioeconomic challenges at stake in post-conflict or post-authoritarian situations, including them according to their specific contexts could contribute towards such broader goals. As noted by Arbour, integrating ESCRs in transitional processes does not mean that transitional justice mechanisms should investigate and provide remedies for violations of these rights under all circumstances and unconditionally. 1183 Conversely, specific criteria grounded in solid theoretical and legal analysis and empirical research must be established to determine which violations should be addressed and at what priority level in each specific case. To this aim, it would be appropriate to give transitional justice mechanisms broad mandates, so specific priorities and areas of focus can be determined by them at operational level. Once again, limits will depend on the specific case and circumstances. Likewise, designing and 1183 Arbour, L., ‗Economic and social justice for societies in transition‘, op. cit., p. 13. 264 implementing development programmes together with transitional justice strategies so they can work combined could serve to strengthen both fields. Corporate accountability for human rights abuses is a challenging and relatively new field of action. The notion of corporate complicity is nowadays used in a broader sense, not only confined to the specific meaning it possesses in criminal law, but referring to situations in which corporations becomes undesirably involved in something that another actor is doing. Applying it to the field of human rights, such use of the concept has provided a tool to capture in simple terms the fact that companies can become involved in human rights abuses, raising legal responsibility. However, the notion of corporate complicity has been left normatively undetermined at international legal level. Although some guidance notes, such as the one drafted by the former Special Representative of the Secretary General on Business and Human Rights, provide some orientation, legal boundaries of what constitutes corporate complicity are not well-established. 1184 Since the States are the primary subjects of international law, there is a lack of enforcement mechanisms at international level for corporate human rights abuses. The ICC jurisdiction is limited to individuals, so international institutions do not provide any venue to attend to complaints about this issue to date. Likewise, the regional human rights courts neither have jurisdiction over corporate legal entities nor over individual corporate actors. 1185 Progressive developments, however, such as the adoption in 2011 of the UNGPs, are increasingly addressing these concerns. While being a soft law initiative, the UNGPs provided the first authoritative guidance on how companies should meet their human rights responsibilities. Moreover, they recognised that corporations are more likely to be involved in human rights violations in particular high-risks situations, such as under armed conflict or authoritarianism. While the UNGPs do not mention the potential links between the above-mentioned violations and transitional justice processes, it provides the opportunity for linking corporate accountability with transitional justice. These connections can especially be found in Principle 7, which recommends a high standard of corporate care because of the greater 1184 See Chapter III.2. 1185 Kaleck, W and Saage-Maasz, M., Corporate accountability for human rights violations amounting to international crimes, op. cit., p.710. 265 risks of those contexts. However, precisely within such high-risk contexts is the State duty to protect eroded by those special circumstances and other actors‘ involvement, such as corporations. At domestic level, prosecutions of corporate entities are not possible in many national criminal jurisdictions. In other jurisdictions, claimants seeking redress must do so within the existing categories of wrongs that do not often adequately describe the gravity of the allegations or they even do not fit well into existing categories. Furthermore, while private law mechanisms are supposed to be accessory to public ones, they have been the main forum so far –particularly the ATS- to seek corporate accountability and reparation. However, private law mechanisms are not working well for victims either. Victims of human rights abuses face significant obstacles when bringing a civil law claim against corporate entities in virtually every jurisdiction. The high financial costs of litigation, the lack of availability of sufficient legal aid to fund the claim and the difficulties in finding suitably experienced counsel prepared to take conduct of the matter are just some of these obstacles. In this regard, it is worth mentioning that the United States is overwhelmingly dominant in the field of private redress mechanisms. This is mainly due to the flexible rules on jurisdiction and the availability of class actions and contingency fees that may help reduce the financial risks faced by claimants. However, actions brought in the United States under the ATS are already frequently dismissed on jurisdictional and other grounds, and are even more likely to be so in future following the Supreme Court‘s decision in Kiobel v Shell. Additionally, initiatives such as the creation of an International Arbitration Tribunal on Business and Human Rights have been proposed by some civil society organisations in order to fill the accountability gap. 1186 But the main initiative in this respect is unquestionably the proposal for a binding treaty on business and human rights. 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