Two cases related to war crimes have received quite some attention in the Netherlands over the past few years. These are the cases of Mr. Kouwenhoven and Mr. Poch. They provide an excellent opportunity to offer some thoughts on the fine line between guilt and innocence in the determination of criminal liability for those who have not committed the crimes themselves, but have in some way assisted in their commission.

Three of Damen’s Stan Patrol 1605s, including the Talil 267, are used by the Libyan coastguard. Footage and photos show that machine guns are attached to the vessels’ mountings. The Dutch government permitted these vessels to be transported without a licence, classifying them as non-strategic goods and therefore not subject to export authorisation. Remarkably, Damen was eager to arm the vessels in 2014. In accordance with the EU Common Position and the UN arms embargo, the government denied permission. Now it appears the Dutch vessels are indeed armed and have been used in violent, high-risk operations against vulnerable people at sea.

Over the course of the past several decades, an increasing number of civil cases have been brought before European and North American courts against transnational corporations for their role in the commission of grave human rights violations, the majority occurring in the global south.¹ This trend illustrates the push to hold powerful actors engaged in international business accountable when they play a role in the commission of mass atrocities and serious human rights abuses.

The Forum on Business and Human Rights was held at the end of November 2018 in Geneva. Numerous sessions were organized for around 2500 participants, dealing with many aspects concerning the protection of human rights in the context of business operations. 

The focus of this year’s forum was on due diligence. According to the Guiding Principles on Business and Human Rights, companies must have due diligence in place as stipulated in Principle 15 (b):

Corporate involvement in mass atrocities has rarely been the subject of criminal prosecution. This may partly be due to the often remote involvement by corporations and business leaders and the resulting difficulty to collect sufficient evidence and to apply classical criminal law principles to an internationalised context. However, it may be argued that we are increasingly seeing an emerging practice at the domestic level. In the past year, a number of European justice systems have initiated criminal investigations and indictments of corporations.

On Tuesday 27 November 2018, Ms. Joana Nabuco gave a presentation at the annual United Nations Business and Human Rights Forum entitled ‘New insights? When causation, contribution, and direct link overlap: UNGP implementation in “complex complicity” scenarios’. In order to illustrate such a scenario, Ms. Nabuco took Brazil’s Suape Industrial Portuary Complex (‘Suape Port’) as a case study.

At the 2018 UN Forum on Business and Human Rights, the theme of the conference, “human rights due diligence”, was buzzing. As momentum gathers to push the business and human rights debate from the realm of soft guidelines and recommendations into legally binding standards, recent advances, including a new French law on the corporate duty of vigilance, illustrate how due diligence laws are a promising development.