Doing Business with a Bad Actor: How to Draw the Line Between Legitimate Commercial Activities and Those that Trigger Corporate Complicity Liability

One of the most complex and highly debated problems in the context of corporate liability for complicity in human ri ghts violations is how to distinguish lawful commercial activities from those that give rise to corporate complicity liability. In many cases in which corporations are accused of aiding and abetting human rights violations, the act of assistance consists of what would usually be regarded as an ordinary and perfectly acceptable business activity, such as providing financing to a government or supplying it with goods or infrastructure. Merely doing business with a bad actor is not sufficient to impose liability on corporations for that actor?s human rights violations, but no clear criteria on what transforms legitimate business transactions into reprehensible acts of complicity exist. This Article approaches the question of determining the relevant liability standards by providing an in-depth analysis of jurisprudence stemming from three different contexts: Alien Tort Statute (ATS) cases on corporate complicity; ad hoc international criminal tribunals on the closely related question of dual-purpose act liability (where the assistance provided could be used for both lawful and unlawful activities); and U.S. criminal cases where the act of assistance consisted of a commercial activity. Jurisprudence stemming from these three different contexts has in common that many courts feel that the generally applicable standards for determining complicity liability need to be adapted and restricted where assistance consists of a commercially motivated or a dual-purpose act. This is largely achieved by requiring either that the assistance reach a certain significance threshold (limitations at the actus reus level of liability), or that the mental state with which it was carried out made the assistance particularly reprehensible (limitations at the mens rea level of liability). In the particular context of corporate complicity liability in human rights violations, academic debate of liability standards largely focuses on whether the relevant mens rea standard should be one of purpose or one of knowledge. While clearly important, this Article goes beyond this question and argues that the mens rea standard cannot be understood and determined in isolation. Without taking a holistic look at all elements of liability and their interaction, it is not possible to sufficiently understand the concerns that triggered adoption of a purpose standard of mens rea, the legitimacy of these concerns, and alternative ways of addressing them. The purpose of this Article is not to present detailed liability criteria that will work equally in all contexts. Rather, it serves the more modest aim of analyzing and drawing conclusions from the implications of different approaches to determining the necessary actus reus and mens rea elements of corporate complicity liability, while recognizing that the details need to be developed with reference to the specific contexts in which the question of corporate complicity liability arises

Responsabilidad corporativa y justicia transicional

Traditionally, transitional justice processes do not address the role of corporations in dictatorships or in armed conflicts that give rise to the need for dealing with grave and systematic human rights violations. However, there is a growing awareness that in many contexts corporations contribute to these violations, often in the form of corporate complicity with the principal violators. An argument can therefore be made that to achieve the aims of transitional justice and establish a holistic narrative of the past as well as obtain justice and reparations for victims requires investigating and addressing the role of corporate actors. This article uses the example of Colombia’s Justice and Peace process to show some of the complexities, opportunities and challenges that arise if transitional justice measures focus primarily on criminal law and create a specific legal framework, outside of the ordinary justice systems, only for a limited group of primary perpetrators, in the Colombian case for members of the armed groups who demobilised. It is argued that the exclusion of corporate actors in contexts where their role is regarded as significant leads to victims seeking alternatives ways to obtain justice and that both victims and corporations would benefit if transitional justice mechanisms addressed the role of corporations.Tradicionalmente, los procesos de justicia transicional no abordan el papel de las corporaciones en las dictaduras o en los conflictos armados que dan lugar a la necesidad de enfrentar las graves y sistemáticas violaciones de los derechos humanos. Sin embargo, hay una creciente conciencia de que en muchos casos corporaciones han contribuido con tales violaciones. Entonces, puede sostenerse que para alcanzar los fines de la justicia transicional y establecer una narrativa holística sobre el pasado así como obtener justicia y reparación para las víctimas, es necesario esclarecer también el papel de las corporaciones. Este artículo utiliza el ejemplo del Proceso de Justicia y Paz en Colombia para evidenciar algunas de las complejidades, oportunidades y desafíos de la justicia transicional cuando privilegia la justicia penal y crea un marco jurídico propio aunque reducido a una parte de los perpetradores que en el caso de Colombia ha sido los miembros desmovilizados de los grupos armados ilegales. Se argumenta que la exclusión de las corporaciones y sus miembros en un contexto donde su papel es considerado decisivo, lleva a las víctimas a buscar otras alternativas para obtener justicia, y que tanto víctimas como corporaciones se beneficiarían si la justicia transicional se ocupa también del papel de las corporaciones

Compilación de las intervenciones del Transitional Justice Network de la Universidad de Essex (ETJN), el Centro de Estudios de Derecho, Justicia y Sociedad (Dejusticia) y el Essex Armed Conflict and Crisis Hub de la Universidad de Essex ante la Jurisdiccion Especial Para la Paz

1. Consideraciones a propósito de la decisión adoptada por la Sala de Definición de Situaciones Jurídicas de la JEP el 7 de mayo de 2018 ante la solicitud de sometimiento voluntario elevada por David Char Navas (Resolución número 000084) pp. 2-18 2. Concepto de la Red de Justicia Transicional de la Universidad de Essex y el Centro de Estudios de Derecho, Justicia y Sociedad- Dejusticia sobre las cuestiones planteadas en el Auto APTP-SA-ECM 002 de 2018 pp. 19-26 3. Amicus curiae de la Essex Transitional Justice Network (ETJN), el Centro de Estudios de Derecho, Justicia y Sociedad (Dejusticia) y el Essex Armed Conflict and Crisis Hub de la Universidad de Essex pp.27-7

Medical confidentiality in the context of crime prevention and criminal prosecution : a comparative study.

Medical confidentiality is widely recognised as a concept worth protecting. Problems arise, however, when medical confidentiality conflicts with interests that are equally regarded as important, such as the interests of justice; the interest in criminal prosecution; the interest in crime prevention; or defence rights. In order to develop convincing and workable criteria to balance the competing interests in case of a conflict, the different interests at stake must be clearly defined, and their respective importance assessed. Different ethical approaches to the balancing process will be introduced, followed by an analysis of the law of four legal systems, France, Germany, the UK and the u.s. AIl four legal systems protect medical confidentiality by the means of private law, but only Germany and the U.S. protect medical confidentiality as part of the constitutional right to privacy. In France and Germany, a breach of medical confidentiality by a physician amounts to a criminal offence. Regardless of these differences, all systems agree that medical confidentiality serves both the privacy interests of the patient, and the public interest in protecting public health. Fundamental differences materialise with regard to the recognition of medical privilege, which is recognised in France, Germany, and some States in the U.S., but is rejected by other States in the U.S. and by the UK. While in the U.S., defence rights are regarded as more important than medical confidentiality, the same is not true for France and Germany. All systems agree that medical confidentiality can be outweighed by the interest in preventing a crime that might cause serious harm to a third party, but the criteria according to which the competing interests are balanced, differ. Based on a comparison of the different approaches, criteria for a consistent and morally justified resolution of the conflicts between medical confidentiality and the competing interests will be suggested

Achieving CRPD Compliance: Is the Mental Capacity Act of England and Wales compatible with the UN Convention on the Rights of Persons with Disability? If not, what next?

In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together leading experts to discuss and debate the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice

DNACPR Decisions: Aligning Law, Guidance, and Practice

Do not attempt cardiopulmonary resuscitation (DNACPR) decisions are a means to consider in advance the appropriateness of CPR measures if an acute crisis arises. During the COVID-19 pandemic, problems with such decisions, for example the putting in place of DNACPR decisions for all residents of certain care homes, received a lot of attention, prompting a Care Quality Commission (CQC) report with recommendations for improvement. Building on the CQC report, our article addresses a cluster of legal uncertainties surrounding DNACPR decisions, in particular about the grounds for such decisions and the correct procedures for the legally required consultation, including with whom to consult. This article will also analyse commonly used DNACPR forms, as well as the Recommended Summary Plan for Emergency Care and Treatment (ReSPECT) form, which aims to incorporate DNACPR decisions as part of more holistic end-of-life care planning. The analysis shows that all forms exhibit shortcomings in reflecting the legal requirements for DNACPR decisions. We recommend a number of changes to the forms aimed at rendering DNACPR practice compliant with the law and more protective of the person’s human rights