Evaluating the Likelihood of an ICC Prosecution for Crimes Committed by Chiquita Banana Employees in Colombia

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It is a pleasure to welcome Dr Caleb Wheeler on Rights as Usual (@CalebHWheeler). Caleb is a lecturer in law at Middlesex University in London whose work focuses on international criminal law and international human rights law. This post is his.

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In May 2017, three non-governmental organisations submitted an Article 15 Communication to the International Criminal Court seeking the expansion of the Office of the Prosecutor’s on-going preliminary investigation in Colombia to include corporate officials of Chiquita Brands International, Inc. (‘Chiquita’). I scrutinised the claims made in the Communication in a recent article published in the Melbourne Journal of International Law in an effort to determine whether this case could serve as an opportunity for the International Criminal Court to pursue corporate officials for their complicity in the commission of atrocity crimes. This could allow the Court to expand the scope of its work beyond the military and political leaders it has pursued thus far, and to provide an international forum in which to try the employees of corporations involved in the commission of atrocity crimes. Unfortunately, the International Criminal Court’s Statute, as written, will make it very difficult for such prosecutions to succeed.

Background

The Article 15 Communication alleges that corporate officials employed by Chiquita made recurring payments to affiliates of the paramilitary group Autodefensas Unidas de Colombia (‘AUC’), despite the fact that those officials were aware that the AUC was committing crimes against humanity. That the AUC was committing human rights abuses is largely beyond dispute. At least six members of the AUC have been convicted of crimes committed within the temporal jurisdiction of the Court, including murder, attempted murder, abduction, forced displacement and child recruitment. Additionally, the Prosecutor of the International Criminal Court has concluded that a reasonable basis exists to believe that guerilla and paramilitary groups, including the AUC, committed crimes against humanity and war crimes during the relevant time periods.

Chiquita made the payments as part of a corporate policy implemented for the purpose of protecting Chiquita holdings in Colombia from harm threatened by the AUC. Chiquita has admitted that it knew no later than 2000 that the AUC was committing atrocity crimes.  Chiquita continued to make payments to the AUC even after it was declared a ‘Foreign Terrorist Organization’ by the government of the United States and despite the fact that Chiquita had been advised that it was acting illegally by continuing to pay the AUC. Chiquita only stopped making payments to the AUC several months before entirely divesting itself of its Colombian operations. It is asserted in the Communication that the money paid by Chiquita represented a significant contribution to the human rights abuses committed by the AUC.

The Meaning of Significant Contribution

The likelihood of an International Criminal Court prosecution being successful in this matter will turn on whether sufficient evidence exists to show that the implicated Chiquita employees made a significant contribution to the crimes committed by the AUC. Whether the accuseds’ actions constitute a significant contribution to the commission of the alleged crimes is determined by considering the accused person’s relevant conduct and the context in which his or her conduct is performed. In this case, it is debatable whether the amount of money paid to the AUC by Chiquita, estimated to be approximately 1.7 million USD over a period of seven years, constituted a significant contribution to the crimes committed by the AUC. Without knowing the full extent of the AUC’s assets during the relevant period, it is believed that by 2002 the AUC controlled 40% of Colombian cocaine trafficking and had an annual income of approximately 100 million USD. The Chiquita payments made up less than one quarter of 1 per cent of the AUC’s annual income suggesting that the money paid by Chiquita did not significantly contribute to the scope of the group’s activities.

Questions about the significance of the contribution are further reinforced by a lack of evidence linking the money Chiquita paid directly to the AUC’s criminal acts. At present, there is no evidence to support a reasonable suspicion that Chiquita’s employees made payments to the AUC for the purpose of furthering the AUC’s criminal activities. The mere supposition that because Chiquita paid money to the AUC, and the AUC in turn committed atrocity crimes means that Chiquita’s money was used to fund the commission of those crimes, is likely insufficient to lead to the conviction of Chiquita employees. In fact, Chiquita insists that the payments were made as a result of duress, although it is dubious whether that claim will hold up under scrutiny. Further, while Chiquita and its employees knew the AUC was committing atrocity crimes, there is no direct link between the money paid by Chiquita and any specific crimes committed by the AUC. Without this evidence it would be very difficult for the International Criminal Court to impose liability.

This analysis leads to the conclusion that the International Criminal Court is likely not the best forum for pursuing corporate actors for human rights violations. Here, we have a situation in which multiple members of the AUC have been convicted of atrocity crimes, Chiquita has admitted that it was aware that those crimes were being carried out and it still continued making payments to the AUC. Despite this undisputed evidence, an International Criminal Court prosecution will almost certainly fail because there is no direct link between the money paid and the crimes committed. If a case with such clear evidence stands little chance of success it is difficult to imagine that the Court will have much enthusiasm for pursuing other cases involving human rights violations committed by business entities.

Recent Developments

There is, however, some cause for hope. On 31 August 2018, the Colombian Attorney General charged 13 former Chiquita executives with crimes against humanity in relation to their funding of the AUC. By charging these 13 former Chiquita executives Colombia has indicated both its willingness and ability to investigate and prosecute the crimes alleged. While these cases are in the very early stages, it is encouraging that they have been brought at all. It further demonstrates that, as it stands, domestic courts are probably the best option for litigating human rights violations committed in the context of corporate operations.

FIFA and the IOC’s Human Rights Reporting Tools – a Flower in the Remedy Bouquet

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It is a pleasure to welcome Daniela Heerdt on Rights as Usual (@DanielaHeerdt). Daniela is a PhD candidate at Tilburg Law School. She also coordinates the Netherlands Network for Business and Human Rights (@NLNBHR). This post is hers.

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As awareness of the adverse human rights impact of mega-sporting events began to spread, international sports organizations stepped up their efforts to protect human rights. In 2017, the Fédération Internationale de Football Association (FIFA) adopted new bidding regulations for the 2026 World Cup, which explicitly refer to the UN Guiding Principles on Business and Human Rights (hereafter the UNGPs). The Host City Contract for the 2024 Olympic Games is the first ever to mention human rights standards, including the UNGPs. This blog post focuses on efforts by FIFA and the International Olympic Committee (IOC) with regard to the UNGPs’ third pillar, access to remedy. It compares FIFA and the IOC’s recently launched reporting tools, and questions whether they constitute effective remedies.

The Meaning of Effective Remedies in the Sports Context

The UNGPs clarify that in order for a mechanism to qualify as a remedy mechanism, its outcome must be able to restore a situation to how it was before the harm occurred, or compensate the harm if restoration is not an option (see commentary to Principle 25). A mechanism is considered effective if it is legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning, and in the case of operational-level mechanisms, based on engagement and dialogue (Principle 31). The question is: to what extent does this set of criteria also apply to assessing remedy mechanisms in the sports context? On the one hand, the commitment of major international sports bodies to the UNGPs hints at a general acceptance of this set of criteria. On the other hand, the particularities of the sports world might require additional, or a more nuanced set of criteria. Often, more than one actor is responsible for a sport-related human rights abuse. This means that ideally multiple parallel procedures should be made available. In addition, due to the temporary nature of mega-sporting events, mechanisms should be capable of addressing and solving cases in a speedy and timely manner.

IOC’s Reporting Tool for Press Freedom Violations

Before the Summer Olympic Games in Rio in 2016, the IOC introduced a reporting tool for journalists and media representatives to file a complaint concerning violations of press freedom. The mechanism is intended for those working on Olympic Games-related coverage. In an online form, complainants can fill in their details and information on what happened and upload evidence if applicable. The IOC conducts a first assessment of whether there are “strong grounds for accepting that a press violation may have occurred in the context of the Games”. If that is the case, relevant stakeholders, such as internal IOC departments or the respective Local Organizing Committee of the Olympic Games, will be consulted as the next step. . No further information is provided on the exact content or outcome of such consultation.

FIFA’s Complaints Mechanism for Human Rights Defenders and Media Representatives

FIFA launched a similar tool in May 2018. Under FIFA’s complaint mechanism for human rights defenders and media representatives, those who consider their rights have been violated while performing work related to FIFA’s activities can file a complaint. Just like with the IOC reporting tool, complaints can be submitted through the online form. The complainant first has to categorize, then describe the incident as much as possible. This may include evidence if applicable, and an explanation of how what happened relates to FIFA and its activities. Furthermore, the complainant can indicate whether he or she is in immediate danger and suggest measures FIFA can take to address the situation. After receiving a complaint, FIFA ensures it is being redirected so that appropriate follow-up processes can be applied (para. 14). Such processes can entail direct engagement with third parties involved, such as public authorities. Moreover, FIFA promises to use its leverage, and seek help from relevant organisations and institutions with the mandate to promote and protect human rights defenders during these processes.

Reporting Tools as Effective Remedies?

It is remarkable that both tools appear easily accessible. The online forms are available in multiple languages (English, French, German and Spanish for the FIFA mechanism; English and French for the IOC tool). In addition to the online form, FIFA allows for complaints to be communicated through generic FIFA email addresses, bilateral exchanges with FIFA, or via the media. Other important features are that both provide an option for confidentiality. The IOC claims that the complainant’s identity will not be shared with persons beyond those dealing with the complaint without explicit consent. With regard to the FIFA mechanism, it is even possible to submit complaints anonymously.

However, the scope of these mechanisms is limited, in particular that of the IOC, as it only addresses Olympic Games-related issues. For all non-Games related complaints, the IOC recommends to contact the Committee to Protect Journalists. Moreover, whether any of these mechanisms can lead to an outcome that can be perceived as a remedy is questionable. Both mechanisms merely provide for redirection of the complaint to adequate follow-up processes, but it is not specified what these follow-up processes could be. Therefore, they arguably fail to provide for remedies as understood in the UNGPs. The closest thing to a remedy might be FIFA’s promise to issue a public statement in support of human rights defenders and media representatives and their work (para. 15), which can be a form of satisfaction for the victim. However, actual remedies depend on the steps FIFA takes and the follow-up processes that apply after FIFA redirected the complaint.

A Flower in the ‘Remedy Bouquet’

Apart from the actual website on which these mechanisms are made available, and short statements by FIFA and the IOC on the occasion of their launch, not much information is available on these mechanisms, let alone how they work in practice. Even though FIFA promised to communicate summaries of specific cases, up to this point, little is known about how often and for what kind of cases they have been used, or what the outcome was. Some information can be retrieved from the Update Statement of FIFA’s Human Rights Advisory Board, which summarised FIFA’s efforts in relation to the situation of Mr Simonov, who has been detained following his research on World Cup construction sites. The summary reveals that FIFA raised his situation with the Local Organizing Committee at the highest levels and showed interest in his personal safety by attending his court hearings. However, the general lack of information makes it difficult to assess for what kind of cases they can be effective. For instance, whether or not they could have been used to challenge the recent detention of members of the activist group ‘Pussy Riots’ following their pitch invasion at the 2018 World Cup final, is not clear.

Nevertheless, reporting tools in general can form an essential part of the “bouquet of remedies” promoted by the UN Working Group on the issue of human rights and transnational corporations and other business enterprises. They can help to flag issues in the first place and to provide and uncover valuable information on a certain instance, before adequate and effective remedy mechanisms are activated. For this function to be fulfilled, links need to be created between the various existing mechanisms. Overall, providing avenues for human rights defenders and media representatives to file complaints is a positive development. However, this does not change the fact that these sports organizations choose to allow countries with questionable human rights records and publicly known violations of press freedom to host their events, thus knowingly creating even greater human rights risks.