In August 2021, the Mexican government sued American manufacturers Smith & Wesson, Ruger, Colt, and others in the US District Court of Massachusetts. Mexico claims that the defendants’ business practices led to a proliferation of guns in Mexico, thereby contributing to gun violence and causing Mexico to incur extraordinary costs for health care, law enforcement and criminal justice administration. Because of the remote connection between the gun manufacturers’ activities and Mexico’s alleged harm, the case raises important questions about scope of liability.

In US tort law, the element of proximate cause controls the scope of liability by requiring some degree of connection between the defendant’s conduct and the plaintiff’s harm. This blog argues that although past similar cases were dismissed because of a failure to adequately plead proximate cause, the legal standard applied in those cases is not appropriate for this context.

Recent attention on how business activities impact human rights has resulted in the emergence of new legal norms, including mandatory human rights due diligence obligations. The most recent example is the Sustainability Directive proposal by the European Commission. Much remains uncertain about the impact of these new laws and regulations, but ultimately, the way that business is done is changing. Please join us for an in-person conversation on how corporations and their advisors are adjusting their practices in anticipation of emerging business and human rights initiatives.

On Thursday 14 April, Principal Investigator of the Rethinking SLIC project Göran Sluiter will present his paper "Police Bystander Liability: A Comparative Approach" at William & Mary Law School. 

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On 24 February 2021, a German court in Koblenz sentenced Eyad Al-Gharib, a Syrian national, to four and a half years in prison for aiding crimes of torture and aggravated deprivation of liberty in Syria. The case was prosecuted in Germany under universal jurisdiction. In convicting Al-Gharib, the Koblenz court relied on definitions of crimes against humanity that reflect those found in the ICC Statute. However, the court relied on a domestic mode of liability to connect Al-Gharib to these crimes. In this blog, we consider whether the use of domestic modes of liability in universal jurisdiction cases is consistent with the principle of legality. 

In response to the Russian Federation’s unprovoked invasion of Ukraine, the Council of the European Union (EU Council) issued an unprecedented Decision (2022/338/CFSP) on Feb. 28, 2022 to finance and supply 450 million euros of lethal military assistance to the Ukrainian Armed Forces, an amount that was doubled in Decision (2022/471/CFSP) on Mar. 23, 2022. But in this rush to war, the EU’s stringent framework for arms control has received little scrutiny. In particular, the EU Council has not publicly articulated how it is accounting for long-term conflict risks in Ukraine, such as the diversion of weapons to Russia and to undesirable non-state armed groups; the post-conflict proliferation of small arms and light weapons and concomitant increases in transnational crime and regional instability; and even the potential for allegations of war crimes on the Ukrainian side against Russian prisoners-of-war, such as those that surfaced on Mar. 29, 2022. Articulating these risks in EU decision-making on Ukraine is essential to avoid sidelining the arms control framework in Europe, and to preserve global norms on arms control.

Tomas Hamilton, post-doctoral researcher with the Rethinking SLIC project, weighs in on the war in Ukraine from an arms control perspective in three recent blog posts:

Despite increasing calls by shareholders to exit Russia after its brutal and unprovoked attack against Ukraine, the French energy company TotalEnergies has opted not to entirely abandon its dealing there. Reacting to TotalEnergies’s decision, NGOs Greenpeace France and Amis de la Terre have alleged that the company’s continued involvement “contributes, at least financially, to Russian aggression in Ukraine”, noted that the company and its managers might face criminal liability for facilitating war crimes and crimes against humanity, and highlighted the company's legal obligation not to contribute to human rights violations. In response, TotalEnergies claimed is acting in a responsible manner and that it will take new steps in light of the worsening conflict. However, it appears that TotalEnergies will continue to do business in Russia, at least for now. This blogpost contemplates whether TotalEnergies’s continued business dealings in Russia contribute to Russia’s ability to wage an illegal war, and if so, whether there are any legal consequences. 

On 23 February 2022, following the earlier recommendation for a directive by the European Parliament, the EU Commission presented its (long overdue) proposal for a Corporate Sustainability Due Diligence Directive that aims to regulate corporate conduct in order to prevent and remedy human rights violations and environmental harm related thereto. Given the numerous legislative initiatives, proposals and debates at the national level, the Commission concludes that the proposal answers to a ‘clear request by Union Citizens (…) to address these and other adverse impacts’. This blogpost highlights some aspects of the proposed rules on civil liability and provides some initial thoughts on whether the proposed Directive will be a leap forward for the further development of civil liability standards or whether it might stifle progress.

Göran Sluiter, principal investigator of the rethinking SLIC project, recently wrote three blog posts on issues concerning the war in Ukraine

At last year’s UvA roundtable discussion with Philippe Sands, and a subsequent Rethinking SLIC Panel Discussion on Ecocide with Kate Mackintosh, we presented our views about the scope of liability for acts of ecocide in response to the Stop Ecocide Foundation Independent Expert Panel’s (IEP) proposal for the legal definition of ecocide. Some reflections from our discussions on ecocide are set out in this blog.

There can be no doubt that the recent Russian aggression towards Ukraine amounts to one of the most important allegations of international crimes since the creation of the International Criminal Court (ICC). For at least three reasons, the role of the ICC in relation to Putin’s and Russia’s commission of core crimes on Ukrainian territory has thus far been disappointing, and sadly appears indicative of the Court’s increasing irrelevance. 

Since at least 2017, Myanmar has come under increased scrutiny for the actions of its military (the Tatmadaw) against ethnic minorities in its northern provinces and in Rakhine. While the Burmese government has argued its actions are in response to threats by militant groups, many have characterised them as international crimes.
It is both realistic and legally possible for the Independent Investigative Mechanism for Myanmar (‘IIMM’) and the ICC to ensure that allegations of corporate complicity feature in the future accountability landscape for Myanmar under international criminal law. The individual complicity of corporate CEOs falls within the terms of reference of the IIMM and the material jurisdiction of the ICC. Customary international law standards of aiding and abetting, and Article 25 of the Rome Statute provide a legal basis for the accomplice liability of such individuals.

Last week, Rethinking SLIC* published Göran Sluiter's blog post on the secondary liability of social media platforms in relation to 'image-based sexual abuse' (I-BSA, also known as 'revenge pornography'). The blog has prompted Dutch Member of Parliament Michiel van Nispen of opposition party SP to submit written questions on the matter to Minister of Justice Grapperhaus. 

Image-based sexual abuse (I-BSA), also known as ‘revenge pornography’, has a grave impact on its victims and can lead to feelings of fear, shame, humiliation, anger, sadness and depression, and in some cases even to suicide. There is thus every reason to have a robust investigative and prosecutorial policy in place to effectively deal with such cases. In the Netherlands, a new provision in the Dutch Penal Code, Article 139h, was inserted quite recently to better encapsulate the conduct of I-BSA, justified by the need for a focused penal provision on I-BSA on the basis of a need for a uniform framework, to do justice to victims and to send a strong signal to potential wrongdoers. Could social media platforms be held liable for aiding and abetting I-BSA?

On 23 November 2021, the District Court of The Hague delivered its summary judgment in the case filed by PAX, Stop Wapenhandel and the Dutch section of the International Commission of Jurists against the Dutch government’s decision to allow the export of military goods and technology to Egypt. The decision exposes certain inconsistencies between the English and the Dutch version of the assessment criteria in the EU Common Position. Could the English wording make a difference on appeal?