Overcoming corporate-related human rights abuses in transitional justice: Lights and shadows from the case of Argentina

Abstract

This article explores how justice mechanisms could serve to advance corporate accountability in transitional justice. In doing so, Argentina will act as a case study. Therefore, it first explores how corporate accountability for human rights abuses can be addressed in transitional justice, specifically focusing on justice mechanisms and including examples of previous experiences. It also provides relevant insights from the international framework of business and human rights in order to examine how this field has contributed to developing international standards for corporate-related human rights abuses in transition. Based on this background, the article reviews the context of the last Argentinian dictatorship and corporate involvement in human rights abuses perpetrated. Next, it analyses how the transitional justice process in Argentina has dealt with this issue, particularly regarding domestic prosecutions to corporate managers. Finally, the article offers some concluding considerations and suggestions for the way forward.

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The author declares none.

Notes

1 According to the statistics and data collected, 30.2 percent of the disappeared were blue-collar workers and 17.9 percent white-collar workers. In total, CONADEP estimated that 48.1 percent of people who disappeared under the dictatorship were workers (CONADEP, Final Report: Conclusions, 1984).

2 Corporate involvement in human rights abuses was revealed during CONADEP research and in the juntas’ trial. However, no corporate actor was further investigated, as the Truth Commission did not include this issue as part of its mandate.

3 Velásques Rodríguez v. Honduras (1998). These obligations are directly related to the victims’ rights (Joinet, 1997).

4 United States of America v. Carl Krauch et al. (1948), United States of America v. Friedrich Flick et al. (1948), United States of America v. Alfried Krupp et al. (1947).

5 Presbyterian Church of Sudan v. Talisman Energy Inc. (2009).

6 Doe v. Unocal [2002].

7 Romero v. Drummond Company Inc., 430 F.3d 1234, 1243 (2007); Estate of Rodriguez v Drummond Company Inc. 256 F Supp 2d 1250, 1257 (2003).

8 Latest debates have been related to the question of whether US corporations are subject to ATS-based claims at all; see Nestle USA, Inc. v. Doe I and Cargill, Inc. v. Doe I (2020).

9 The TRC report concluded that corporations should contribute to the payment of reparations for victims, recommending different ways in which they could do so: a wealth tax, a one-off levy on corporate and private income, a one-off donation of 1 percent of market capitalization by companies listed in the Johannesburg Stock Exchange, a retrospective surcharge on corporate profits backdated to an agreed time, and responsibility for the payment of the previous government’s debt.

10 As a consequence, in 2002, lawsuits were filed in the United States on behalf of South African victims against several multinational corporations for aiding and abetting or participating in violations committed by the apartheid regime. The South Africa Apartheid Litigation addressed two cases in its 2009 consolidated amendment: the Khulumani v. Barclays case and the Ntsebeza v. Daimler case. See South African Apartheid Litigation, 617 F. Supp. 2d 228 (S.D.N.Y., 2009).

11 The Supreme Court of Chile sentenced Francisco Luzoro Montenegro, a businessman and former president of the Paine trade union of lorry owners, to 20 years in prison for the murders of farmers committed in the Paine commune in 1973, in conjunction with repressive state forces. (Supreme Court of Chile 2017)

12 This initiative met business opposition and it has not been created to date. The approved text is available at http://www.jus.gob.ar/media/1316031/proyecto_en_pdf.pdf [accessed 20 January 2021].

13 This is, in fact, the denomination used by Public Prosecutor Office and CELS when categorizing their work in this area.

14 In 2005, the Argentine Supreme Court held unlawful the application of amnesties, declaring that abuses committed during the dictatorship amount to crimes against humanity.

15 To this end, the principle of “double subsumption” was used, thus applying the international framework to categorized crimes committed under the dictatorship (and therefore upholding the Non-applicability of Statutory Limitations to international crimes) and specific national norms for each action and crime.

16 Causa contra Marcos Levín (28 March 2016), Cause 4076/14.

17 Daimler AG v. Bauman (2014), No. 11-965, IV.B, 23.

18 Vañek, Antonio y otros, infracción al Art. 144 bis inc. 1. Causa nº 17/2012/TO1 (19 October 2015).

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Laura García Martín

Laura García Martín is a postdoctoral researcher and lecturer on international law at the University of Seville in Spain and the University of Antwerp in Belgium. Her research areas include transitional justice, business and human rights, and sustainable development.