Chinese Corporations’ Liability for Complicity in Human Rights Abuses in Xinjiang Region

Millan Bederu

Vol. 40 Associate Editor

According to reports from various human rights organizations, the Chinese government is currently propagating human rights abuses against the ethnic Muslim minority in Xinjiang Uygur region of Western China. These abuses include forced indoctrination, restriction of movement, arbitrary detention, and pervasive surveillance.[1] Chinese corporations, Hikvision and Duhua have been implicated in these human rights abuses.[2] The Chinese government implementation of large scale data surveillance has included an unprecedent monitoring of Xinjiang residents via security cameras, video analytics hubs, data analysis centers and police check points.[3] The complicity of Chinese corporations in abuses against the Uyghur people has been highlighted by members of the US Congressional-Executive Committee on China in a letter to the Secretaries of State and the Treasury denouncing the abuses.[4] The letter accused China of creating “a high-tech police state” and stated that the pervasive monitoring is “a gross violation of privacy and international human rights.” The Committee went on to promote restricting both Hikavision and Duhua’s access to US financial systems based on the purported $1.2 million paid to the two companies in connection with the government crackdown in Western China.[5] Since at least the Nuremburg trials, private sector actors have been tried and held liable for human rights abuses.[6] Following the end of the Second World War, the Nuremberg tribunal tried a total of 42 officials of private companies for crimes against humanity, more than half the charges levied against officials of I.G. Farben, the largest conglomerate in the world at the time.[7] Despite this precedent, the jurisprudence of holding corporations and corporate officials liable for human rights violations is underdeveloped. A major hurdle to such development is the lack of viable jurisdiction in existing human rights tribunals. A weak international law foundation has acted as a bar to enforcement and development of substantive law by which to prosecute corporate complicity in human rights violations.[8] Human rights tribunals, domestic courts and legal scholars have all faltered in attempts to map the tangible consequences of corporate human rights violation.[9] Furthermore, while international law has held corporate officials liable for human rights abuses as individuals,[10] the law is more ambiguous as to whether corporate entities can be criminally liable. According to the Rome Statute, the International Criminal Court has jurisdiction over “natural persons.”[11] While the Statute does not bar the Court from hearing cases against legal entities per se, some legal scholars see the language of the statute as an all-out bar on corporate criminal liability in international law.[12] To further complicate the issue, domestic courts have increasingly established corporate liability for violations of international human rights.[13] Considering the Rome statute does establish the domestic law of nations as a source of law for the ICC, domestic progress in the law could propel changes in the international law.[14] Further a ground swell of legal scholars and would-be plaintiffs are on the search for viable legal recourse for corporate complicity.[15] Accordingly various organizations have developed legally non-binding guidelines and policy reports that provide a framework for how corporate liability might work under a comprehensive legal scheme.[16] In this vein, the International Commission of Jurists’ policy report on corporate complicity and legal accountability, envisions a scheme where corporations are liable when they enable, exacerbate or facilitate human rights abuses.[17] Under these definitions, Chinese corporations could be liable for exacerbation of human rights violations as their services for the government have been used broaden the scope of the abuses. Reports claim that as many as one million Uyghur Muslims have been disappeared or interned by the Chinese government, many of whom were tracked and apprehended via digital surveillance techniques.[18] Failing to establish that these corporations’ actions resulted in more detentions or more sever abuses, they may still be liable for facilitation if the company’s contribution made it easier to carry out abuses or changed the nature of the abuses.[19] With rampant confusion as to the liability of corporation under human rights law and the dearth of precedent on the matter, the people of Xinjiang region would chart an uphill battle in any attempts to hold Chinese corporations responsible. Yet, bad corporate actors should not rest easy as the evolution of legal scholarship on the topic of corporate liability foreshadows a shifting legal framework.

[1] U.N. Comm. on the Elimination of Racial Discrimination, Concluding Observations of UN Human Rights Committee on the Elimination of Racial Discrimination: China, CERD/C/CHN/CO/14-17, at 7, 19 Sept 2018; See generally, Human Rights Watch, “Eradicating Ideological Viruses”: China’s Campaign of Repression Against Xinjiang’s Muslims (2018), https://www.hrw.org/sites/default/files/report_pdf/china0918_web.pdf. [2] Letter from the Congressional-Executive Committee on China, to Mike Pompeo, Secretary of State, and Steven T. Mnuchin, Secretary of the Treasury (August 28, 2018) https://www.cecc.gov/sites/chinacommission.house.gov/files/Pompeo-Mnuchin%20Xinjiang%20letter.pdf; Charles Rollet, In China’s Far West, Companies Cash in on Surveillance Program That Targets Muslims, Foreign Policy, June 13, 2018. [3] Human Rights Watch, China: Big Data Fuels Crackdown in Minority Region (2018), https://www.hrw.org/news/2018/02/26/china-big-data-fuels-crackdown-minority-region. [4] Letter from the Congressional-Executive Committee on China, to Mike Pompeo, Secretary of State, and Steven T. Mnuchin, Secretary of the Treasury (August 28, 2018). [5]  Id. [6] The Faber Case (1947) reprinted in 8 Trials of War Criminals Before the Nuernberg Military Tribunals 1205-09 (1950), https://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-VII.pdf; Jonathan Koleib, Through The Looking-Glass: Nuremberg’s Confusing Legacy On Corporate Accountability Under International Law, 32 Am. U. Int’L L. Rev. 570, 582-84 (2015). [7] The Faber Case (1947) reprinted in 7 Trials of War Criminals Before the Nuernberg Military Tribunals 11-14 (1950), https://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-VII.pdf; Jonathan Koleib, Through The Looking-Glass: Nuremberg’s Confusing Legacy On Corporate Accountability Under International Law, 32 Am. U. Int’L L. Rev. 570, 583 (2015). [8] Jonathan Koleib, Through the Looking-Glass: Nuremberg’s Confusing Legacy on Corporate Accountability Under International Law, 32 Am. U. Int’L L. Rev. 570, 585 (2015). [9] Leora Bilsky, The Holocaust, Corporations and the Law: Unfinished Business 16 (2017). [10]Jonathan Koleib, Through the Looking-Glass: Nuremberg’s Confusing Legacy on Corporate Accountability Under International Law, 32 Am. U. Int’L L. Rev. 570, 582-84 (2015); Doug Cassel, Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts 6 Northwestern J. Int. Human Rights 304, 306 (2008). [11] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, 21, art. 25.1, reprinted in 37 I.L.M. 999 (1998). [12] Koleib, Jonathan (2015) Through the Looking-Glass: Nuremberg’s Confusing Legacy on Corporate Accountability Under International Law, 32 Am. U. Int. L. Rev. 570, 599. [13] Id. [14] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, 21, art. 24, reprinted in 37 I.L.M. 999 (1998). [15] Corporate Accountability Lab, Shell in Nigeria: The Case for New Legal Strategies for Corporate Liability (2018). [16] OECD, Guidelines for Multinational Enterprises 39-40 (2008), http://www.oecd.org/investment/mne/1922428.pdf; 1 Int’l Comm’n of Jurists, Corporate Complicity and Legal Accountability 11 (2008), https://www.icj.org/wp-content/uploads/2009/07/Corporate-complicity-legal-accountability-vol1-publication-2009-eng.pdf. [17] 1 Int’l Comm’n of Jurists, Corporate Complicity and Legal Accountability 11 (2008), https://www.icj.org/wp-content/uploads/2009/07/Corporate-complicity-legal-accountability-vol1-publication-2009-eng.pdf. [18] U.N. Comm. On the Elimination of Racial Discrimination, supra, at note 1, at 7; China Uighurs: One Million Held in Political Camps, UN Told, BBC News, August 10, 2018. [19] Id. at 12. The views expressed in this post represent the views of the post’s author only.