Secondary tort liability for international crimes and serious human rights violations

This project within Rethinking SLIC* aims to assess and reimagine the scope of liability for serious human rights violations within civil law, with a specific focus on how tort liability may arise as the result of transactions that have bearing on the commission of grave human rights violations and international crimes. Entities operating cross-border, such as multinational corporations, have grown in power and influence and their ability to impact human rights abroad has significantly increased, thus highlighting the imperative for legal systems to adapt to the modern realities of globalisation. The project focuses on how various domestic tort law systems respond to human rights violations and international crimes, keeping in mind specific characteristics of international business. For example, companies operating internationally typically have complex organisational structures including parent companies and subsidiaries operating in different jurisdictions. Furthermore, international banking and financial services facilitate the movement of money across borders, yet it is difficult to track where the money ends up and whether it ultimately contributes to the commission of serious human rights violations and international crimes. Finally, in the context of extended global supply chains, final producers may have little knowledge or interest in the other players along the supply chain.

The project seeks to provide clarity on the scope of tort liability to both victims and businesses engaging in international transactions through a comparative review of domestic legal systems. Its goal is to enhance the understanding of how domestic tort law can be applied to situations implicating business transactions and human rights, and evaluate whether existing tort law is adequate for confronting modern challenges that arise when powerful actors contribute to or facilitate serious human rights violations.

Secondary criminal liability for international crimes and serious human rights violations

Individuals can assist international crimes in innumerable ways. These acts of assistance may not be criminal per se, rather, their relationship to the primary crime renders them as such. Some contributions to criminality are so remote from or inconsequential to the primary crime that they may only give rise to moral blameworthiness as opposed to criminal liability. Legal systems rely on principles of secondary liability to determine the outer limits of criminal liability for individuals who assist crime.

New technologies and other developments in modern society have complicated this assessment by increasing global-connectivity and opportunities to assist crime across borders. In particular, technology has created new fora in which criminal acts can occur, introduced new tools to carry out criminal acts, and substantially increased the ability of actors to engage in remote criminality. Consequently, traditional models of secondary liability have come under pressure from the effects of these rapid developments. The expansion of criminal assistance by technology raises new questions about where the outer limits of secondary liability should be.

The purpose of this research is to analyse contemporary challenges to traditional models of secondary liability posed by technology and other developments, and to evaluate whether a new theory of secondary liability is needed in light of these challenges. In undertaking this task, the research will examine various domestic and international criminal legal systems.

Secondary State liability for international crimes and serious human rights violations

This project within Rethinking SLIC* focuses on secondary liability of the State. It seeks to establish the outer limits of secondary liability of States through two fields of public international law, namely the law of State responsibility and international human rights law. By developing and executing national policies (direct liability) and by providing aid and assistance in the crimes committed by others (secondary liability), States can play a significant role in the commission of international crimes and serious human rights violations. At the heart of the research lies the question whether the current law and practice on secondary liability of States is adequate in light of the importance to suppress and prevent mass atrocities and bearing in mind the unique and powerful position of the State in the international legal order. To answer the question, the project will analyse the law of State responsibility for aiding and assisting the commission of an internationally wrongful act as incorporated in the ILC’s 2001 Draft articles on Responsibility of States for Internationally Wrongful Acts, with a specific focus on complex structures and (inter-State) relations in the commission of mass atrocities. In addition, secondary liability for States as developed under international human rights law will be part of the analysis, as it represents a more demanding standard for secondary liability in a human rights context.

Although the contemporary theory of liability takes into account the dynamics of an interdependent world, the position of the State therein, and the grave and often irreparable harm caused by mass atrocities, the project seeks to determine whether the existing law on secondary liability is sufficient for confronting current challenges that arise when States aid or assist grave harm. Recommendations will concern either the modernisation of the law, the modernisation of the theory, or both.

Access to information for victims of human rights violations in civil litigation against multinational corporations

This research project, conducted at the Open University of the Netherlands and affiliated to Rethinking SLIC*, focuses on the access to information for victims of human rights violations and international crimes in civil litigation against corporate actors.

With globalization, businesses increasingly operate across multiple jurisdictions, using complicated structures of interconnections between their entities, customers, suppliers, and activities. When these multinational corporations adversely impact human rights, information on business operations and activities is necessary for victims to designate the responsible actors within the corporate structure and to present a case against them in the appropriate court. Also, information is often necessary to remedy the harm itself. Access to information in civil litigation is therefore of vital importance. However, the inequality of the parties and a lack of transparency relating to the complex structures and activities of multinational corporations pose substantial challenges for victims. If relevant information remains inaccessible, victims are at a real risk to be left in a legal vacuum regarding their access to justice.

The research will examine recent developments in the field and will evaluate whether existing civil procedure is adequate to deal with transparency deficiencies and information inequalities by using a comparative approach. The research aims to rethink the current state of access to information in civil litigation against multinational corporations in light of the applicable human rights framework in a globalized world.

Secondary Liability for International Crimes – Case Study of Syria

This research project within Rethinking SLIC* focuses on the Syrian case study. It aims to establish how States and non-State actors, such as multinational corporations, have assisted in the mass atrocities that have been committed in Syria since the outbreak of the armed conflict in 2011. The project will map out representative samples of secondary liability in the Syrian conflict and will analyse the available accountability mechanisms. Accountability possibilities will be addressed for the three major components of the Rethinking SLIC* project: State responsibility, criminal liability, and tort liability. Taking into account both considerations of fairness and efficiency, the project also will focus on filling potential accountability gaps and prioritization among accountability options.

External Researchers

External researchers can apply for participation in the Rethinking SLIC* project, as an external PhD candidate or visiting scholar, in accordance with the conditions and procedures provided by the Amsterdam Center for International Law.