By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

The European Court of Human Rights (ECtHR) has given on the 7th July 2011 a judgement (Al-Jedda case) holding the United Kingdom responsible for the acts of its military forces in Iraq in what may be called a significant blow to the ever unchecked multinational military operations under the names of maintaining international peace and security, war on terror, or as recently emerging dubious guise ‘to protect civilians and civilian populated areas under threat of attack.’

The case (Al-Jedda v the United Kingdom, available here) involved an Iraq-born individual who had been interned or detained in Basra for over three years, between 2004 and 2007. Basra internment centre was controlled and run by the British forces in Iraq and he was held for purposes of investigation on his alleged involvement, among others, in recruiting terrorists outside Iraq to commit atrocities in Iraq, for helping an identified terrorist explosives expert travel into Iraq, and conspiring with that explosives expert to conduct attacks with improvised explosive devises against coalition forces near Fallujah and Baghdad. 

After his release (and being denied re-entry into the UK to which he had become a national), Al-Jedda had brought actions, though unsuccessfully, before various national organs until his case was dismissed by the House of Lords which reiterated that because of the UN Security Council’s (UNSC) Resolution, the British government’s responsibility under the European Convention on Human Rights (ECHR) cannot be invoked. The House of Lords reasoned that the mandate the UNSC Resolution 1546 had placed on the UK government brings the UN as the proper organ responsible for the internment measures taken on Al-Jedda which, because of Article 103 of the UN Charter displaced the applicability of Article 5(1) of the ECHR. According to Article 103 of the UN Charter ‘in the event of conflict between the obligations of the members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

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By Robert Grabosch, Attorney at law

The United Nations Human Rights Council has endorsed the Guiding Principles for Business and Human Rights as they were submitted in March 2011 by the Secretary-General’s Special Representative John Ruggie. Since the Guiding Principles claim to not create but restate international law and ask little of the states of the Global North, the endorsement by the Human Rights Council was foreseeable. It is exactly these low demands what has sparked stark criticism.[1] However, SRSG Ruggie resorted to pragmatism and vagueness rather than clarifying current international law.
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By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

The current web of popular uprisings challenging authoritarian rules in North African states (Tunisia, Egypt, Libya to cite but three) and in the wider Arab world revitalises transitional justice mechanisms as tools of addressing past wrongs. While former president of Egypt Hosni Mubarak has already been charged with various crimes, president ben Ali is also due to be brought to justice very soon. And no doubt Colonel Muammar Gaddafi Gadhafi together with his family aides would follow suit.

Transitional justice implies the presence of both transition from authoritarian rule to democracy and the rendition of justice as a sign for renewed future. Thus, it presupposes both ‘political change’ and ‘legal responses to confront the wrongdoings of repressive predecessor regimes (Tietel 2003, p69).

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By Robert Grabosch, Attorney at law

A final proposal for Guiding Principles on business and human rights was recently submitted by SRSG John Ruggie to the Human Rights Council for endorsement in June 2011. Little has changed compared to the draft. Below, I am making some observations and predictions. Read the rest of this entry »

Robert and I had a chance to discuss some parts of the Draft Principles on Corporate Responsibilty recently submitted by John Ruggie (see here and here), but I keep seeing very critical comments somehow undermining the potential of Ruggie’s draft.

Chris Jochnick (Oxfam) however just published avery interesting comment (Making headway on business and human rights, February 11th, 2011) suggesting that although the Draft is not strong enough, it nevertheless represents a major step towards human rights protection.

Jochnick’s major arguments reads as follows (the link to the full article is at this end of this post)

[…] With the Draft Principles in hand, the human rights community, including Oxfam, continues to push for stronger more obligatory language. The Principles allow for too much wiggle room – too many “shoulds” in place of “shalls” – and too little support for the actual rights of individuals and communities. But that shouldn’t take away from what’s on offer.

If approved by the UN council – and approval seems likely – the Principles will provide a first authoritative elaboration of corporate human rights standards. That is a major step and will bring much needed coherence and heft to the dizzying array of corporate codes and voluntary industry standards.

The Framework and Principles aren’t the final word – they are a platform. The critical thing is that they are broad enough to get to all of the key issues, as they do, in particular by ensuring that:

(a) the government “duty to protect” human rights (meaning regulating corporate actors) reaches corporations domestically and abroad, and extends across government policies, trade agreements, multilateral organizations etc., and
(b) the corporate “responsibility to respect” human rights includes a company’s own operations, as well as all significant “relationships and activities” (suppliers, government partners, industry groups etc).

At the end of the day, the Framework and Principles have to be judged on the basis of whether they succeed in driving more energy and more effective attention to real accountability for companies. They will take on more “obligatory” force as they are incorporated into other existing standards, processes, laws and contracts. They’ll become meaningful when companies like Wal-mart insist on human rights “due diligence” in their supplier contracts, when the EU ensures that its trade policies are consistent with the “duty to protect”, when communities use the Principles to demand more substantive remedies from corporate predators.

Full article: Chris Jochnick (Oxfam), Making headway on business and human rights, February 11th, 2011

Having considered the corporate liability and responsibility topics in various posts, it seems interesting to mention that a “Joint Civil Society Statement on the draft Guiding Principles on Business and Human Rights” was recently published (January 2011).

The document, overall, concludes that:

“The current draft of the Guiding Principles does not provide sufficient guidance to States and business to close the governance gaps identified by the SRSG as the root cause of the business and human rights predicament today. The draft Guiding Principles is not a statement of the law. In some areas the draft of the Guiding Principles takes a more regressive approach towards the human rights obligations of States and the responsibilities of non-state actors than authoritative interpretations of international human rights law and current practices. Some of the formulations in the current draft, as indicated below, also appear to be weaker than aspects of the Framework presented in the SRSG’s prior reports. In their current form, the draft Guiding Principles therefore risk undermining efforts to strengthen corporate responsibility and accountability for human rights”

The Joint Statement, in addition, suggests that to provide clear guidance to States and business and to become a useful tool to prevent and redress business-related abuses of human rights, the draft Guiding Principles should, at a minimum:

  1. Provide clear recommendations to States consistent with internationally recognized human rights standards.
  2. Specifically address the governance gaps created by globalization.
  3. Be clearer on the human rights responsibilities of business enterprises.
  4. Provide more robust guidance on protecting and respecting the rights of women, children, Indigenous peoples, and human rights defenders.
  5. Provide more explicit recognition and greater consideration of the human right to an effective remedy of individuals and communities who have suffered business related human rights abuses.
  6. Create Robust Follow-on Mechanisms at the UN

The Joint Civil Society Statement on the draft Guiding Principles on Business and Human Rights is available here.

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