Why does the UK defend corporations and not their victims?

Perhaps the Cabinet was told that the UK was seeking to demolish a vital human rights safeguard.

Share

The Government announced yesterday that it will seek a place for Britain on the UN’s Human Rights Council.

It has not improved its chances by intervening in the US Supreme Court to protect companies accused of complicity in torture, rape and genocide. It has asked the court, in a case against Shell, to restrict the only law that makes multinationals accountable, allowing actions to be brought in the US by victims who cannot sue their wrongdoers anywhere else.

Through historical oversight, corporations cannot be prosecuted for the international crimes that some commit, often through local subsidiaries, by killing or enslaving native people. Royal Dutch Shell itself was accused of complicity with the Abacha regime in Nigeria which executed Ken Saro-Wiwa and others who protested against pipeline construction; other multinationals (Unocal in Burma, for example) have been accused of paying local militias to persecute and kill tribespeople who stand in the way of their profits. The only redress is to sue in the US under ATCA – the 1789 Alien Tort Claims Act – a unique statute which permits victims from anywhere in the world to sue any company or person for a wrong “committed in violation of the law of the nations”.

This Act has become the only effective legal recourse against multinationals which incite or sponsor torture, genocide, murder or a breach of the Geneva Conventions. But earlier this year, the UK Government filed an “amicus” brief which asked the US Supreme Court to stop the Act being used against corporations based outside the US – which would prevent action not only against Shell, but against most other multinationals (many based in tax havens). It hired four counsel from a small and expensive Washington firm which specialises in anti-trust cases, not in human rights. In return for many thousands of taxpayer pounds, this firm filed a brief on behalf of Britain and the Netherlands, urging that this beneficent law should be confined to US nationals.

The brief begins by asserting the UK Government’s “firm belief that corporations should not be able to act with impunity vis-à-vis human rights issues”, and then proceeds to argue that multinationals should have exactly that – impunity. Civil actions should be brought, it argues, in the country where the wrong occurred – despite the obvious fact that such wrongs are perpetrated in certain countries precisely because they have no effective local law. That is why the greatest deterrent to inhumane conduct by multinationals in many developing countries is the prospect of being sued in the US under ATCA. There are 150 cases of very serious human rights abuses by corporations currently filed in the US, and the UK wants most of them thrown out of court without a hearing.

The UK argues that although all states have power to put on criminal trial any individual torturer or mass murderer, they cannot allow foreigners or corporations to be sued for damages in their local courts because that would be “a breach of international comity”. This is illogical because international law identifies a class of “crimes against humanity” so heinous they are unforgivable: if they can be the subject of criminal action in any state, it follows they must be capable of civil action for damages as well. If companies cannot be prosecuted for international crimes, all the more reason they should be sued for damages. The profits of their illegal conduct should be re-distributed to their victims.

The UK Government never answers this argument. Instead, it complains that it’s too easy for poor people to sue rich corporations in the US, because of contingency fees (which give the poor access to the courts) and broad discovery rules (which enable the poor to discover the truth). It is very expensive, it complains, for defendant multinationals to obtain evidence from far-away places – although that is where they have chosen to do business.

The final argument is the most absurd: “it has been the longstanding view of the UK Government that the most effective way to ensure that there is no impunity for human rights abuses” is “by seeking international consensus and co-operation through treaties rather than by recourse to private civil litigation in distant courts”. New York courts are not “distant” and “international consensus and co-operation” at the UN has brought only “the Global Compact”, a set of well-meaning but worthless words which some multinationals sign for PR purposes. The OECD guidelines are exactly that: guidelines without teeth, other than for gnashing. The UN’s “principles on business and human rights” has no teeth and no gums. The only language that would-be corporate criminals understand is the law – the only deterrent the prospect of being sued for many millions under ATCA.

So the brief filed by the UK in the US Supreme Court profoundly misunderstands the difficulties in human rights enforcement. Who authorised it? Mr Hague, some junior minister or (which would be a serious breach of the ministerial responsibility) no minister at all? Did Shell ask the Government to intervene? Was Cabinet told that the UK was seeking to demolish a vital human rights safeguard? Do the Lib Dems who affect concern for human rights really want impunity for British businesses if they behave with colonial-era brutality in former colonies?

The UK’s submission to the Supreme Court whinges on about ATCA, because it dares to hold multinationals liable for rape and murder. But the US has done the right thing by giving victims an opportunity for redress. Instead of trying to demolish ATCA, the UK should enact its own version of a law that has helped, more than any other, to end corporate impunity for crimes against humanity.

Geoffrey Robertson QC’s latest book is ‘Mullahs Without Mercy: Human Rights & Nuclear Weapons’

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Recruitment Genius: Business Analyst - 12 Month FTC - Entry Level

£23000 - £27000 per annum: Recruitment Genius: A Business Analyst is required ...

Recruitment Genius: Chefs - All Levels

£16000 - £23000 per annum: Recruitment Genius: To succeed, you will need to ha...

Recruitment Genius: Maintenance Engineer

£8 per hour: Recruitment Genius: This is an opportunity to join an award winni...

Recruitment Genius: Telesales Executive & Customer Service - Call Centre Jobs!

£7 - £9 per hour: Recruitment Genius: Are you outgoing? Do you want to work in...

Day In a Page

Read Next
George Osborne appearing on the BBC's Andrew Marr Show on Sunday, 5 July 2015  

George Osborne says benefits should be capped at £20,000 to meet average earnings – but working families take home £31,500

Ellie Mae O'Hagan
The BBC has agreed to fund the £650m annual cost of providing free television licences for the over-75s  

Osborne’s assault on the BBC is doing Murdoch’s dirty work

James Cusick James Cusick
Isis in Syria: Influential tribal leaders hold secret talks with Western powers and Gulf states over possibility of mobilising against militants

Tribal gathering

Influential clans in Syria have held secret talks with Western powers and Gulf states over the possibility of mobilising against Isis. But they are determined not to be pitted against each other
Gaza, a year on from Operation Protective Edge: A growing population and a compromised and depleted aquifer leaves water in scarce supply for Palestinians

Gaza, a year on from Operation Protective Edge

A growing population and a compromised and depleted aquifer leaves water in scarce supply for Palestinians
Dozens of politicians, bureaucrats and businessmen linked to Indian bribery scandal die mysteriously

Illnesses, car crashes and suicides

Dozens of politicians, bureaucrats and businessmen linked to Indian bribery scandal die mysteriously
Srebrenica 20 years after the genocide: Why the survivors need closure

Bosnia's genocide, 20 years on

No-one is admitting where the bodies are buried - literally and metaphorically
How Comic-Con can make or break a movie: From Batman vs Superman to Star Wars: Episode VII

Power of the geek Gods

Each year at Comic-Con in San Diego, Hollywood bosses nervously present blockbusters to the hallowed crowd. It can make or break a movie
What do strawberries and cream have to do with tennis?

Perfect match

What do strawberries and cream have to do with tennis?
10 best trays

Get carried away with 10 best trays

Serve with ceremony on a tray chic carrier
Wimbledon 2015: Team Murray firing on all cylinders for SW19 title assault

Team Murray firing on all cylinders for title assault

Coaches Amélie Mauresmo and Jonas Bjorkman aiming to make Scot Wimbledon champion again
Wimbledon 2015: Nick Bollettieri - Vasek Pospisil must ignore tiredness and tell himself: I'm in the quarter-final, baby!

Nick Bollettieri's Wimbledon Files

Vasek Pospisil must ignore tiredness and tell himself: I'm in the quarter-final, baby!
Ashes 2015: Angus Fraser's top 10 moments from previous series'

Angus Fraser's top 10 Ashes moments

He played in five series against Australia and covered more as a newspaper correspondent. From Waugh to Warne and Hick to Headley, here are his highlights
Greece debt crisis: EU 'family' needs to forgive rather than punish an impoverished state

EU 'family' needs to forgive rather than punish an impoverished state

An outbreak of malaria in Greece four years ago helps us understand the crisis, says Robert Fisk
Gaza, a year on from Operation Protective Edge: The traumatised kibbutz on Israel's front line, still recovering from last summer's war with Hamas

Gaza, a year on from Operation Protective Edge

The traumatised kibbutz on Israel's front line, still recovering from last summer's war with Hamas
How to survive electrical storms: What are the chances of being hit by lightning?

Heavy weather

What are the chances of being hit by lightning?
World Bodypainting Festival 2015: Bizarre and brilliant photos celebrate 'the body as art'

World Bodypainting Festival 2015

Bizarre and brilliant photos celebrate 'the body as art'
alt-j: A private jet, a Mercury Prize and Latitude headliners

Don't call us nerds

Craig Mclean meets alt-j - the math-folk act who are flying high