Mesuji and corporate human rights

Harison Citrawan, Jakarta

It is difficult to deny that an alleged crime against humanity in Mesuji, or the recent upheaval in Mimika, has been closely connected to the presence of business operation around the areas. Despite many allegations of such crimes, it was also pointed out to the authorities that it would be inevitable that business interests also play a great role in the ongoing conflicts.

This phenomenon consequently raises a question on how corporations could, to a certain extent, take responsibility for human rights protection. As we might have seen a rapid growth of both transnational and national business operations around the country, there should be a paradigm shift among business players in terms of human rights protection.

Related to the issue of corporate-human rights relation, the United States Court of Appeals for the Ninth Circuit filed its opinion on Oct. 25, 2011 concerning an Alien Tort Statute case. The case was submitted by Alexis Holyweek Sarei et al as plaintiffs-appeals versus Rio Tinto, PLC and Rio Tinto Limited as defendants-appellants.

In this case, plaintiffs’ claims before the appellate court involve allegations of genocide, crimes against humanity, war crimes and racial discrimination. For a brief introduction, Alien Tort Statue (ATS) provides that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. To be more specific, the law of nations in this context should be regarded as internationally accepted norms that must be “specific, universal and obligatory”.

Take, for instance, the alleged genocide conducted by the defendants, the Court of Appeal (CoA), by quoting Bosnia and Herzegovina v. Serbia, 2007, argued that the International Court of Justice has made it explicitly clear that “a state may be responsible for genocide committed by groups or persons whose actions are attributable to states”. The CoA thus confirmed that such clarity about collective responsibility implies that organizational actors, in this case including corporations, may commit genocide.

It would also be worth noting the flow of argumentation taken by the CoA, which mentioned “[i]t would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law.”

Another legal reasoning that should also be highlighted in this CoA’s opinion is that aiding and abetting crimes against humanity are apparently attributable to business enterprises. Such arguments are arguably derived from international criminal law and practice held in international criminal tribunals around the world.

As we have seen that corporate legal responsibility for human rights violations in order to achieve a comprehensive understanding of the relationship between corporations and human rights, we should then also consider some principles acknowledged in international practice pertaining to such issues. One primary document as a reference is the report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, March 2011 (A/HRC/17/31).

Through careful reading, in my view, it is interesting to note the concept of human rights due diligence that should be fulfilled by business enterprises in order to identify, prevent and mitigate their adverse human rights impacts.

As stated in Principle 17, human rights due diligence: (i) should cover adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships; (ii) will vary in complexity with the size of the business enterprise, the risk of severe human rights impacts and the nature and context of its operations; (iii) should be ongoing, recognizing that the human rights risks may change over time as the business enterprise’s operations and operating context evolve.

Furthermore, Principle 18 also delineates that “business enterprises should identify and assess any actual or potential adverse human rights impacts with which they may be involved. This process should: (a) draw on internal and/or independent external human rights expertise; (b) involve meaningful consultation with potentially affected groups and other relevant stakeholders, as appropriate to the size of the business enterprise and the nature and context of the operation.”

By taking those aforementioned human rights in practices and business-human rights guiding principles into account, we should now therefore be able to discern the close nexus and legal consequences that may occur between business’ operations with other entities linked to it. First, based on the internationally accepted norms, a company is punishable for committing genocide or crimes against humanity. Second, the crime of aiding and abetting is also attributable to any business operations linked to the commission of human rights violations.

Hence, we may conclude that the Mesuji incidents, Freeport disputes and perhaps many other corporate-people quarrels around the country, cannot escape from the absence of human rights based business norms. The guiding principles therefore could actually be significant for us to create a human rights based business system, particularly in many vulnerable and remote areas around the country.

The writer, alumnus of Rijksuniversiteit Groningen, works at the Human Rights Research and Development Agency, Ministry of Law and Human Rights.


(2011-12-21/thejakartapost)