Last night I attended the launch of the impressive Corporate Crimes Principles by @theICAR and @amnestyonline. Both organisations have done great work to consolidate best practice with a view to advancing criminal investigations and prosecutions in human rights cases. This is especially important as we take stock of the decline in civil claims as a viable remedy for human rights abuses, something I am acutely aware of in my legal practice.
In 2012, I worked on an amicus curiae brief in the Kiobel v Royal Dutch Petroleum case. Although our research was cited in the SCOTUS opinion, the court did not rule as we might have wished, and the precedent it created has precipitated an 80% decline in the number of claims that are able to proceed under the Alien Tort Claims Act. Whereas before Kiobel there was wider scope for claims by victims of corporate abuse abroad, the majority are now thrown out because they don’t meet the somewhat hazy criteria that they “touch and concern” the United States. For example, in September 2014 the District Court for the Northern District of California dismissed claims by Chinese Falun Gong practitioners against the US tech giant Cisco in which they alleged that the company aided and abetted torture by the creation of their “Golden Shield” surveillance system which the Chinese government used to track, imprison, and torture the plaintiffs. Although the torture itself took place in China, the Defendant is a US company and its actions were alleged to have been directed and planned from the US. Nonetheless, the judge dismissed the claim, stating that “creation of the Golden Shield system, even as specifically customized for Chinese authorities and even if directed and planned from San Jose, does not show that human rights abuses perpetrated in China against plaintiffs touch and concern the United States with sufficient force to overcome the ATS’s presumption against extraterritorial application.” The plaintiffs have appealed and the case is ongoing, but it demonstrates the high threshold applied by the lower courts interpreting the Kiobel decision.
In the UK, where I currently work, civil claims are limited by the decimated legal aid system which makes the prospect of litigating against a corporation extremely daunting. Civil legal aid is explicitly not available for the causes of action that victims of corporate human rights abuse are most likely to bring (e.g. personal injury or death; negligence; assault, battery or false imprisonment; trespass to land; damage to property). In principle, exceptional case funding is available for non-excluded claims, but in practice it is rarely granted: between April 2013 and September 2014, a whopping 97% of exceptional funding applications were refused or rejected.
Those select few claims that do manage to obtain legal aid are severely hampered by the limited amount of funding disbursed and the consequent constraints placed on their legal counsel. Hurdles abound at every stage. A victim must first identify a legal services provider that has the correct legal aid franchise to provide them with advice. This provider must undertake a significant amount of unpaid work in order to make the application for legal aid. The application involves making a determination of the merits of the claim at the outset, an impossible task without full review of the papers. Once a claim is issued, legal aid lawyers are constrained in the number of hours that they can dedicate to any given case. Their hourly rate of around £50 is a mere 12% of the government guideline rate for a London-based solicitor with 8 years’ experience, which is significantly below what the corporation’s legal counsel is likely to be charging. These under-resourced legal aid lawyers must then litigate against a team of corporate lawyers whose client has deep pockets and who will attempt to bury them in satellite litigation and correspondence. Years drag on before the merits of the claim are ever assessed by a judge. Those individuals who persist in bringing their claims despite the myriad challenges are to be commended, but is easy to see why other genuine victims might feel discouraged in this restrictive climate.
For those victims who have the means to self-fund, financial barriers abound. The cost of issuing a civil claim can be as high as £10,000. Victims who choose to file a claim as a litigant in person may suffer financial loss due to inability to stay in work while they manage their claim. Victims who seek the assistance of solicitors can face significant bills as cases drag on over years. My experience in working with victims is that the longer the process is drawn out (and the higher the cost), the more faith they lose in the system and its ability to enforce and protect their rights, creating a situation of double victimisation.
In 2005, the UN General Assembly adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. These “Basic Principles” state that part of ensuring access to remedy is ensuring that victims and their representatives have “[a]ccess to relevant information concerning violations and reparation mechanisms”. This includes, according to the UN Guiding Principles on Business and Human Rights, “facilitation” by States of public awareness and understanding of mechanisms, how they can be accessed, and any support (financial or expert) for doing so.”
The current legal landscape in the United Kingdom fails to meet this threshold. In addition to the disastrous legal aid system, the State does very little to facilitate public awareness and understanding of making civil claims, which is clear when I speak to clients at the intake stage. Victims are often unaware how to access the courts to issue a civil claim, and the government’s ponderous online guidance is woefully unhelpful to a layperson.
This lack of facilitation is perhaps most evident in the general public’s unawareness of the effect of limitation periods on their ability to bring claims. This is especially egregious considering that strict limitation periods throw up consequential barriers; for example, claims for personal injury must be brought within three years of the incident or be dismissed. Victims of human rights abuses often struggle to organise their claims within such a strict timeframe, especially when evidence and key witnesses are located abroad. Although there is the exceptional option of disapplying the Limitation Act in certain limited circumstances, it is not clear that judges take a consistent or considered view as to when they deploy their discretion to do so.
In light of these challenges to bringing civil claims against corporations for human rights abuses, the burden on public prosecutors to vigorously pursue corporate crime becomes weightier. This stark reality makes the publication of the Corporate Crimes Principles all the more timely, and Amnesty and ICAR should be congratulated for their leadership in mobilising this discourse.