On 25 April 2013, the European Center for Constitutional and Human Rights (ECCHR), in co-operation with the British human rights organization Global Witness, filed a criminal complaint with the public prosecutor’s office of Tübingen in southern Germany against a senior employee of the German-Swiss timber trading company Danzer Group. The individual in question, a German citizen, is suspected of breaching his duties by failing to prevent crimes committed by Congolese security forces. There is sufficient initial suspicion that through omission the employee was complicit in rape, inflicting bodily harm, false imprisonment and arson. The public prosecutor’s office of Tübingen is now obliged to further investigate the circumstances of the case and establish whether the Danzer employee is criminally liable.
During the early morning hours of 2 May 2011, a task force of local security forces attacked the village of Bongulu (Équateur province) in the Democratic Republic of the Congo (DR Congo). The forces submitted inhabitants of the village to abuse, rape and arbitrary arrests. During the attack, the task force used vehicles belonging to the company Siforco, a subsidiary of the Danzer group. In addition to providing vehicles and drivers, the company also paid the members of the task force for their involvement in the operation.
This incident follows a dispute between the village inhabitants and Siforco, which is based in the area, resulting from the failure of the company to abide by its contractual obligations to provide for social projects in the region.
This incident provides a typical example of the risk for companies operating in weak governance zones of becoming involved in or encouraging the violent activity of local security forces. Almost every day reports of sexual violence committed by state and non-state actors are carried by the media. Women and girls are raped or sexually abused during the course of most military and police operations. As such, the commission of sexual crimes cannot be seen simply as excessive acts of individual soldiers or police officers, but must be looked at in the broader context of the situation in the DR Congo. The European parent companies of firms operating in such environments must adapt their risk management strategy accordingly and must ensure that they are neither directly nor indirectly involved in human rights violations. In these cases organizational safeguards must be subjected to higher standards, which can be derived from existing international standards.
Since 2000 the due diligence of companies in weak governance zones has been discussed within the framework of the UN Global Compact and other international forums. This resulted initially in the UN Voluntary Principles on Security and Human Rights from the year 2000, which were further developed in the 2006 OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones. In June 2011 the UN Human Rights Council adopted the most important internationally recognized standards for corporate human rights responsibilities, the UN Guiding Principles on Business and Human Rights.
While these standards are not binding they do represent international soft-law and therefore serve as internationally recognized, commonly applied business standards that conscientious business actors and companies must take into account when exercising due diligence.
The Danzer case shows the difficulties in applying the German criminal law to the complex management structure of a transnational enterprise. Traditional German criminal law, with its focus on individuals, is not properly equipped to deal with the conduct of increasingly decentralized globally active companies with sprawling corporate structures. The concept of the liability of company executives (Geschäftsherrenhaftung) developed in German jurisprudence does provide in principle for the liability of leading employees of a company. Yet in cases where the legal responsibility for a company’s internal risk management cannot be neatly attributed to an individual person, there lacks any basis for corporate liability, something which is already provided for by law in other European countries. Inter alia, the Committee on the Elimination of all Forms of Discrimination against Women (CEDAW Committee) in its Recommendation No. 28 highlighted the responsibility of states to adopt any measures necessary for the prevention of violence against women. This relates to state acts as well as activities of non-state actors and explicitly includes the activities of companies that operate extraterritorially. The Committee thus obliges states to take appropriate measures to eliminate discrimination by national enterprises operating extraterritorially.
The introduction of liability for corporations is necessary in order to avoid loopholes in national criminal law.
More information on the criminal complaint and on the background to the case can be found here.