The importance of human rights due diligence for businesses: International Criminal Court asked to investigate allegations of land grabbing in Cambodia

On 7 October 2014 a communication was filed with the International Criminal Court (“ICC") asking the Prosecutor to investigate the alleged commission of crimes against humanity pursuant to a State policy of systematic and widespread ‘land grabbing’ in Cambodia (the "Communication"). The Communication argues that the alleged policy of land grabbing involved crimes of forcible transfer, murder, illegal imprisonment, other inhumane acts and persecution.

The Communication follows recent complaints brought against companies for alleged involvement in illegal land grabs in Cambodia, including via litigation in the English courts and the National Contact Point mechanism established in connection with the OECD Guidelines for Multinational Enterprises. This trend highlights the importance for businesses to conduct thorough due diligence to identify the risk of being involved in or linked to human rights abuses or national or international crimes when investing in or working with suppliers in emerging markets and high risk countries.

The Communication

The Communication was filed by a London-based human rights lawyer on behalf of Cambodian nationals. The Communication alleges that senior government officials and government-linked business leaders have committed, and/or have been complicit in, land grab practices which involved the commission of crimes within the jurisdiction of the ICC.

The term 'land grabbing' generally refers to forcible, and often large-scale, acquisitions of land. With respect to Cambodia, allegations of systematic and widespread land grabbing are not new. Land ownership has been a controversial and difficult issue in Cambodia because private ownership was abolished by the Khmer Rouge in the late 1970s. As a result many land documents were destroyed or lost.

This has reportedly made it easy for businesses and government officials to claim ownership over large tracts of land and forcibly evict villagers occupying the land who may have difficulties proving ownership. Human rights groups have claimed that evictions have often been achieved through violent means, involving burning of villages and in some cases resulting in the death of villagers.

The Communication alleges that the systematic and widespread nature of land grabbing in Cambodia involved the commission of crimes against humanity and requests that the ICC Prosecutor investigate the matter.

Will the ICC Prosecutor investigate the claims?

As a matter of procedure, the ICC Prosecutor has the ability to investigate a "situation" proprio motu (on her own volition) based on information on crimes within the jurisdiction of the Court. In making this determination, the Prosecutor will consider three things. Firstly, whether the available information provides a ‘reasonable basis’ to believe that a crime within the jurisdiction of the ICC has been or is being committed. Secondly, whether the case would be admissible before the ICC (i.e., whether national courts are unwilling or unable genuinely to investigate or prosecute the alleged crimes, and whether the case is of sufficient ‘gravity’). Thirdly, whether an investigation would be in the ‘interests of justice’. If, after considering all of these factors, the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, she must first obtain authorisation from the ICC Pre-Trial Chamber before commencing.

Despite the seriousness of the allegations in the Communication, it is unclear at this stage whether the Prosecutor will seek Pre-Trial Chamber authorisation to commence an investigation. The Communication, on its face, provides some evidence that crimes within the jurisdiction of the ICC may have been committed. However, it is unclear whether this information is sufficient for the Prosecutor to conclude that there is a ‘reasonable basis’ to believe that such crimes have been committed. Furthermore, determining whether the case would be admissible, or whether an investigation is in the interests of justice, is likely to require further information than that contained in the Communication. Accordingly, the most likely next step is that the Prosecutor will seek additional information from interested States, the United Nations and other intergovernmental and non-governmental organisations before finalising her view on whether to proceed.

Businesses: proceed with caution

Regardless of whether the ICC Prosecutor ultimately chooses to pursue an investigation in this particular case, businesses should take careful note of the issues raised. Companies perceived to be complicit in, or to have benefited from, land grabbing and other human rights abuses not only run the risk of serious reputational damage, they may also face the risk of prosecution or civil claims, both in Cambodia and other jurisdictions.

For example, shortly following the filing of the Communication, a complaint was filed with the Australian Government's National Contact Point for the OECD Guidelines against a major financial institution, alleging breaches of the guidelines in relation to loan agreements with a Cambodian sugar company alleged to have benefited from land grabbing. As noted above, civil claims are also pending in the UK involving allegations that a British company benefited from land grabbing in Cambodia by purchasing sugar grown on land alleged to have been illegally seized from villagers. In a related development, the EU is working with the Cambodian Government to establish a process to investigate land grabbing claims and, potentially, award compensation to affected persons.

These developments highlight the importance of conducting human rights due diligence at the outset of any business venture in an emerging economy to identify the risk of adverse impacts on human rights. This involves understanding relevant international and domestic legal frameworks and also the responsibility of companies under the UN Guiding Principles on Business and Human Rights to avoid causing or contributing to adverse impacts on human rights(for more information on the UN Guiding Principles please see our earlier blog here)

If you would like further information on the issues raised in this blog please contact, Donald Robertson, Partner (Sydney), Gita Satryani, Senior Associate (Singapore), Antony Crockett, Senior Associate (Hong Kong), Christopher Mitchell, Senior Associate (Sydney) or Johanna Hull, Business and Human Rights Lawyer (London).