The cases referred to in the Red Flags are examples of civil claims and criminal charges drawn from the case law involving companies all over the world (see links to lists of cases below). The principal criteria for selection as an example of a Red Flag risk has been whether the substantive allegations are illustrative of fact patterns which current case law in a number of jurisdictions indicates may give rise to some form of legal action. It is those fact patterns which companies should seek to avoid.
In this sense, a risk of liability is defined here as the potential for litigation. This is not a legal definition, but an operational one intended for use by companies in their risk management.
The Red Flags assume the common principle that everyone is innocent until found otherwise in a court of law. With that in mind, all cases in the Red Flags pamphlet and web site are referred to as examples of liability risk and do not imply any position as to the charges or complaints filed.
The Red Flags assume that the law is evolving. Cases referred to by the Red Flags guide have concluded as convictions, acquittals, and out of court settlements. Several are still ongoing or have yet to move to trial. In practice, these cases are typically very complex substantively and procedurally and include numerous claims and allegations, not all of which may be substantiated. Also, sources of law are complex and will vary across jurisdictions, further complicating the task of drawing lessons from comparisons between jurisdictions.
Where complaints or charges have changed over time, the Red Flags has endeavoured to update the case summary. The following cases are referred to in the Red Flags web site, listed below in chronological order of decision or filing:
The following web sites include lists of additional cases:
The Business and Human Rights Resource Centre is the most comprehensive online tool for business and human rights. The Centre's web site includes updates on cases presently being litigated under the U.S. Alien Tort Claims Act and links to company responses.
The Business and International Crimes web site summarises a project that surveyed the laws in 16 different jurisdictions to find out how international crimes create liabilities for business entities. The website also has summaries of the applicable law, a bibliography, and an Executive Summary by Professor Anita Ramasastry and Robert Thompson (Fafo, 2006).
Some of the advocacy oranisations involved in litigation list documentation from the cases they are involved in, for example;
"A company risks enabling mass atrocities when it
provides resources, goods, services, or other forms
of practical support that help sustain crimes against
humanity or genocide." Human Rights First has released advice to companies on the risks of contributing to the world's worst crimes.
A report out this week from Fafo, Amnesty International, and the Norwegian Peacebuilding Centre identifies obstacles to judicial remedies for business involvement in human rights abuses and sets out a series of reforms. The report argues governments need to take urgent action.
A court in India has convicted Union Carbide's Indian subsidiary and seven of its employees with "death by negligence" in connection with the 1984 leak of toxic gas that killed an estimated 15,000 people in the world's worst industrial disaster. The ruling will be appealed and is being criticized by community activists who claim it is too little too late.
The Dutch Supreme Court has ruled that appeals judges erred when they threw out the case against the former head of the Oriental Timber Company, Guus van Kouwenhoven. The Supreme Court ruled that the appeals court should have allowed the prosecution's request to hear the evidence of two new witnesses in the case which involves arms deals in connection with Charles Taylor's regime in Liberia.
In 2009, Al Jazeera English charted the rapidly growing number of lawsuits being brought against multi-national corporations in a five part series on the network's programme "People & Power". Recently the programme updated their coverage of some of those cases
A Dutch court has ruled that is has the authority to handle a case brought against a unit of Shell for alleged negligence related to oil spills in Nigeria. The case was brought by Friends of the Earth Netherlands and four Nigerians. The court rejected Shell's claim that the court was not competent to hear the case.
Five employees of the US security firm Blackwater have been indicted by U.S. authorities over the 2007 shooting of 17 Iraqis. A sixth man has plead guilty to one killing. The firm says its guards acted in self-defense when they opened fire while defending a convoy of U.S. diplomats. They are charged with 14 counts of manslaughter and weapons charges.
The UN's John Ruggie presented his framework "Protect, Respect and Remedy" to the UN Human Rights Council in June 2008. You can find all the key materials, including the report and responses, at his web page hosted at the Business and Human Rights Resource Centre.
The US Supreme Court upheld the 2007 decision of a lower court that the case should proceed saying it could not intervene over the case because of a potential conflict of interests. Plaintiffs allege that the 23 firms named as defendants violated international law by assisting South Africa's former apartheid government.
