Bringing about positive social transformation in countries in transition requires disclosing the participation of all actors in abuses, including economic actors. Otherwise, the objectives of revealing truth and repairing harm will not be met, even if full reparations from State violations are provided. But merely adding businesses as subjects that must participate in processes of social transition from contexts of systematic and serious abuses, while necessary, may prove insufficient unless the dynamics of their participation in those contexts is fully understood.
The three books reviewed here draw attention to possibilities and challenges that exist in transitional contexts from a business and human rights (BHR) perspective. Some of those challenges are imports of deficits from the general BHR to the transitional justice-BHR considerations subfield. Others result from the lack of attention paid to the unique challenges of transitional contexts. The three books complement each other in terms of their approaches. Pietropaoli’s book studies in-depth legal developments in international and domestic fora. Bohoslavsky, Fernández and Smart’s edited volume explores Chile, as a case study on the problematic symbiosis between economic actors and dictatorships. Finally, Payne, Pereira and Bernal-Bermúdez’s edited book analyses the influence of local actors in the transformation of the transitional justice-BHR subfield by means of overcoming corporate opposition and triggering authorities to act.
Pinochet’s Economic Accomplices edited by Bohoslavsky, Fernández and Smart covers the interplay between the conduct of economic actors and the abuses of the Chilean dictatorship. The book offers an interesting inter-disciplinary vision (p. 115), which combines law, economic and social studies, and historical analysis, among others. While focused on Chile, the book’s insights are relevant to other contexts as well. For example, Bohoslavsky and Rulli argue that ‘the survival of bureaucratic-authoritarian states depends not only on the strength of the ruling classes and military forces […] but also on the support they receive from […] financial institutions. Without this support, [they] would have been unsuccessful in maintaining political and economic stability’ (p. 110). On the difficult legal question of which acts of lending or other operations amount to complicity in legal terms, which has been posed in different contexts, they propose to ‘observe the foreseeable consequences of the usage of commodities rather than their intrinsic nature’ (p. 385). They also argue that businesses’ contribution to regimes engaged in gross abuses is often essential for the regimes’ continued existence, and to maintain a veneer of legitimacy. Businesses are also essential to launder or hide funds (p. 117). Moreover, they can play a relevant role in grabbing lands of indigenous communities and others; and may create narratives ‘supportive of the state violence’, particularly in the media (p. 197).
The book is not only concerned with legal accountability, but also explores business operations in societies ruled by authoritarian regimes in terms of social and economic impacts (p. 240). It examines how the legacy of legislation and institutions introduced by abusive regimes may endure after their demise due to the actions of businesses benefiting from them (p. 418); and how narratives shaped by authoritarian regimes may have been internalized by the societies they ruled over. These issues, coupled with insufficient domestic reparations compared with those mandated by regional bodies (p. 399), and the impossibility of criminal proceedings against legal persons in some jurisdictions (ibid), show the necessity of enhanced international protection from business abuses.
Transitional Justice and Corporate Accountability from Below, edited by Payne, Pereira and Bernal-Bermúdez, explores the role of local actors in addressing accountability gaps (p. 2) related to the complicity of economic actors in gross human rights abuses (pp. 3–4). They do not limit their study to corporations, but also include individuals and other economic actors. They draw attention to how protection from, and responses to, business abuses can be strengthened through ‘civil society demand and mobilization together with institutional innovators’ (p. 16). They use the term veto to describe resistance from business, when it has sufficient influence. Such resistance power can be active or passive (p. 37). Campaign contributions, media or public relations campaigns, intimidation, lobbying, the invocation of doctrines such as forum non conveniens, and even violence, are examples of such vetoes (ibid; p. 131).
The authors argue that four factors are relevant to fight impunity: ‘strong civil society demand, strong domestic judicial leadership, strong international pressure, and weak veto players’ (p. 17). These factors can interact with each other. For example, international pressure can bring about demands against impunity. They then suggest four types of acts that can amount to complicity: direct assistance; abuses related to labour (e.g., forced or slave labour); financing gross violations; and knowingly procuring or benefiting from violence – which helps to perpetuate it (p. 4).
In the transitional justice context, the objectives of justice cannot be met unless one comes ‘to terms with the legacy of’ all abuses (p. 12). Engaging with all the actors directly or indirectly involved in systematic or widespread abuses before truth commissions and other fora is therefore important (ibid). Insofar as this is in line with the mandates of transitional justice institutions, it cannot be argued that there is a ‘witch hunt’ of businesses (p. 12). I would go even further and argue that there can be no true transition and recognition of abuses and victimization unless all violations are addressed and all victims repaired. The authors do expressly argue that the justification of ‘corporate accountability is achieving the goals of transitional justice’ (p. 13). In turn, for transformation to take place, problematic ‘entrenched’ behaviour is to change, and it naturally not only includes state conduct.
Legal developments to further corporate accountability are not necessarily brought about by means of top-down lawmaking. A significant contribution of the book is showing how this may also happen through bottom-up processes in which ‘unchoreographed pattern[s] of practices [are] externalized as law’ (p. 40). Interestingly, local actors participating in the latter dynamic may lack prior experience or special power as normative entrepreneurs. Yet, they may become ‘innovators’ in this area even though they do not always ‘deliberately aim to transform or promote norms’ (p. 41).
Besides legal interpretations, transitional institutions’ factual findings are important for victims and societies. Thus, such bodies should address non-state conduct, for instance when their mandates do not explicitly exclude it, or when they are not constrained ratione personae (p. 174). It has happened in practice that ‘creative processes are not always planned by civil society actors or commission staff’ but rather take place due to unexpected findings or events, such as testimonies by survivors on violence inflicted by non-state actors (p. 200). But unless findings have visibility and recognition by communities and addressees, their impact and influence will be limited (p. 211). For visibility to be enhanced, findings of non-state participation in violations ought to be clearly indicated, and express reference to the investigation of that involvement ought to be announced and specified (ibid). Participation of communities and victims can render transitional justice processes meaningful as well (p. 212).
The book stresses the need to close gaps so that victims’ rights to truth, justice, reparations and non-repetition are satisfied, by means of transitional or other mechanisms. This dignity-based approach is key.
Finally, Pietropaoli’s Business, Human Rights and Transitional Justice complements the other two books. It provides an overview of the business and human rights field in terms of transitional justice, rather than exploring one particular social context or focusing on the challenges local actors face. That said, she acknowledges their challenges. For instance, she draws attention to the tension between the interests of foreign investors and redistribution or communal land rights’ recognition (p. 216). She also describes the ‘temptation’ to attach greater importance to ‘economic growth’ than to changes required to achieve an appropriate transition, which would imply adopting measures with economic implications (p. 239). The author explores the current legal landscape and its challenges, along with prior developments at the domestic and international levels. She analyses possibilities and practice in the different regional human rights systems, criminal and civil proceedings, truth-seeking institutions, administrative reparation programmes, and measures aimed at the non-repetition of violations. This historical, action/proceeding-based and system-based exploration permits her to comparatively explore the different avenues, their relative strengths and weaknesses, and the challenges of the field. This lends very well to illuminating remarks that complement – and coincide with – those of the other books.
Moreover, this general vision allows the author to point out possible synergies between different mechanisms – e.g., investigating commissions, the evidence they unearth being relevant for trials (p. 175); and to compare past and present developments pertaining to similar concerns. Those include concerns related to the ‘role of media in facilitating international crimes’, as happened both with the Fact-Finding Mission on Myanmar and the International Criminal Tribunal for Rwanda (p. 180). This helps readers identify commonalities and differences in legal-technical terms, and similar problematic business conduct.
Additionally, the exhaustive and comparative examination she conducted allows the author to not only contrast the developments in, and limitations of, different systems and levels of governance, but also those of different mechanisms and remedies that victims can resort to. This leads her to consider, in line with the Human Rights Council, ‘a comprehensive approach to transitional justice’, taking into account how ‘all processes of transitional justice complement each other and are interdependent’. Indeed, they are meant to complement each other to bring full reparations, protect victims, and ensure a holistic transition. She distinguishes between corrective and distributive justice – the former being about ‘redressing past harms’ and the latter about ‘equitably distributing goods and opportunities’ (p. 232). Those two paths arguably form complementary strategies towards achieving a holistic response to past gross and systematic abuses.
Moreover, she stresses that ‘transitional justice cannot be “holistic” if it overlooks the responsibility of companies’ (p. 240). Hence, universal protection of human rights cannot be achieved unless the system protects from all abuses and captures those to whom they can be attributed. Considering this vision, analysts are called upon to identify protection gaps, such as concerning non-repetition or other components. For the author, this is precisely the case with ‘institutional reform and guarantees of non-recurrence [which] are lacking in almost every country undergoing a transitional justice process’ (p. 210). That said, the author underscores how mere juridical or formal changes are insufficient to bring about a social transformation as required by transitional demands. She notes: ‘[t]he enactment of a new constitution, an important guarantee of non-repetition, however, does not constitute a fundamental change unless it is able to transform the ideology that supported the old system’ (p. 215).
In line with her vision, the author points out some of the challenges of the BHR field in transitional contexts. For example, she explores why in post-conflict scenarios authorities could be more interested in attracting investment than in investigating the violations foreign companies may have been involved in (pp. 141, 168). This makes it difficult to overcome impunity and ‘achiev[e] a sustainable transition’, especially when this leads states to ‘choose to limit transitional justice initiatives that impact foreign investors, or to exempt [them] from the impact of those initiatives’ (p. 200). This is an important reason why harmony between the different branches of international law, ensuring that foreign investment law truly takes notice of human rights demands, is urgently needed.
Likewise, the text explores why ‘blanket approaches’ to all profitable activities undertaken under regimes involved in gross abuses are problematic, insofar as they fail to examine businesses’ different levels of involvement, their specificities, and different responsibilities (p. 161). Moreover, it stresses that BHR transitional justice analyses must avoid repeating false narratives about root causes or other factors of conflicts (p. 170); and pay attention to actual drivers of abuses, such as land grabbing (although in some scenarios this phenomenon has been a result rather than a cause of violence, p. 204). Only a thorough examination can help identify appropriate responses and reparations to overcome the situation generated by gross and widespread abuses.
The three books have different objects of study and complement each other in terms of their contributions to the BHR and transitional justice subfield. They also share interesting insights. For example, Pinochet’s Economic Accomplices mentions the role of businesses but also that of ‘other economic actors’ concerning the enjoyment of human rights in Chile (p. 71). This is in line with a central idea in Transitional Justice and Corporate Accountability from Below. This focus on other actors is necessary because in certain societies many for-profit activities are carried out at the behest of actors operating in informal or illicit sectors. The fact that they engage in problematic conduct from a human rights perspective, coupled with their profit objectives, make examining them through a BHR lens an interesting endeavour, even though they are not generally understood to be covered by it.
Another argument that these two books share is how some actions of international institutions are but a response to civil society demands (Payne, Pereira and Bernal-Bermúdez; p. 88). Likewise, it is interesting to note how Transitional Justice and Corporate Accountability from Below argues that domestic and transitional justice institutions can contribute by means of implementing the law – internalizing international law or not – in ways that challenge certain beliefs some have about the law, for instance concerning businesses supposedly not being addressees of human rights obligations (p. 42). Interpretation and practice, promoted at the behest of action initiated by local actors or not, can help overcome barriers erected by beliefs (p. 110). The exploration of the legacy of the Cassese report, which did not have an immediate concrete impact, and was seen by some as ‘undue interference’ (p. 67), in Pinochet’s Economic Accomplices, provides an example of how legal misunderstandings can turn into artificial obstacles to the protection of human beings. Pietropaoli’s Business, Human Rights and Transitional Justice helps by showing how possibilities have changed and which remedies are available at different levels of governance.
Achieving a successful transition in which the dynamics underlying systematic and massive violations are eradicated for good is neither a simple nor a reductionist task, and law is but one of the tools that must complementarily work towards achieving this goal. Better understanding the multiple normative, social, phenomenological (concerning the roles and perspectives different agents have had), economic, and other dimensions that could contribute to or hinder a successful transition is thus necessary for the design of adequate, multidimensional responses.
The publication of the three books reviewed in this piece, which read in conjunction facilitate understanding those dimensions, is thus timely and useful for academics, policymakers, practitioners and activists. Each book focuses on different aspects: an exhaustive comparative analysis of legal remedies and tools available in different systems; how local actors can have an influence on ulterior developments in the field; and better understanding how businesses may have benefited from and perpetuated the legacies of authoritarian regimes in specific historical contexts. Reading them together allows for a thorough understanding of BHR in transition times, a subject that had not received the attention it deserves.
