Water For Justice

BUSINESS AND ITS COMPLICITY IN HUMAN RIGHTS

VIOLATIONS IN SOUTHERN AFRICA

Organized by the International Commission of Jurists, International Trade Union

Confederation and Friedrich Ebert Stiftung

CONCEPTUAL BACKGROUND

In the recent times, business and its complicity in human rights has emerged as one of the topical issues of our time. Business entities play a central role in the world economy. In Southern Africa particularly, their influence has expanded into several sectors of social life to the extent that their operations have impacted on the enjoyment and exercise of human rights. While business entities have the ability to promote economic development and enhance the enjoyment of human rights, they can - and often do – have the ability to aid and abet serious violations of international law by hosting states. Business entities have been accused of significantly contributing to the ability of host states or non-state actors to carry out systematic abuses of human rights. In a number of SADC countries, business corporations have indeed been accused of supporting oppressive regimes, rebel movements and militia groups. Further, market-based economic activities – both licit and illicit – have sustained and benefited from political instability, armed conflict and human rights violations in Southern Africa . This results in accusations of complicity in the perpetration of human rights violations in host states.

Furthermore, business entities sometimes take advantage of weaknesses of the state apparatus to directly perpetrate human rights violations. The human rights violations often attributed to business entities include violations of the right to life, physical integrity, health and safe environment effects, access to land, cultural rights and labour rights. The regularity and scale with which human rights are violated by business entities are aggravated by the notable absence of effective systems for imposing legal accountability for human rights violations. Even in jurisdictions where provisions are made, victims have been successful obtaining redress against corporations. Claimants face challenging issues of access to justice and barriers to having their claims heard, ruling out thus the likelihood of them obtaining adequate and prompt compensation.

Against this background, the Africa Programme of the International Commission of Jurists (ICJ), in collaboration with FES and ITUC, organized in October 2009 a conference on Business Complicity in Human Rights Violations in Southern Africa . The conference was intended to bring together experts from academia, non-governmental organisations, intergovernmental institutions, governmental officials, business entities and legal practitioners to reflect and discuss on how business entities can effectively be held accountable for their complicity in gross human rights abuse in Southern Africa . In exploring this key issues, the following subsidiary questions shall be answered: What is the current situation regarding business complicity in Southern Africa ? How can business entities and actors be held accountable under international and relevant domestic jurisdictions? How could international criminal law be used to punish and prevent corporate involvement in international crimes? How effective are domestic civil liability regimes across SADC countries in respect of business complicity in gross human rights abuses? What are the obstacles facing access to justice for victims of business gross human rights abuse in Southern Africa , and how can they be overcome?

The main aims of the conference were two-fold:

• to contribute to the development of a suitable policy and legal framework to respond to the growing phenomenon of business complicity in human rights violations in the SADC region.

• The second aim was to build the capacity and raise the awareness of relevant actors such as labour and business organisations, lawyers, NGOs, and academics in order to improve their efforts in addressing the problem of business complicity in human rights violations in the region.

The findings of the conference laid a foundation for an in-depth study on challenges to justice for victims of corporate human rights violations in SADC countries. Using the principles of international law and relevant African and SADC instruments as a reference framework, the study will determine the extent to which access to justice for victims of corporate human rights violations is guaranteed or undermined in SADC jurisdictions. Remedial action was recommended for policy, legislative and administrative action needed in order to address lack of access to justice for victims of human rights abuses as a result of corporate complicity.