November 2020

Monthly News Updates:  Human Rights Mechanisms - November 2020

By: Shaya Javadinia, Junior Research Associate, PILPG-NL 

The following post summarizes and highlights some of the updates on the work of regional and international human rights mechanisms around the world in the month of November.  

EUROPE 

European Court of Human Rights |  Pre-trial detention of journalist Ahmet Şık violated the Convention

In Şık v. Turkey, the applicant is a journalist who was suspected of circulating propaganda in favor of organizations considered to be terrorist organizations by publishing articles in the Turkish daily newspaper Cumhuriyet, and posting on social media .  The Court found a violation of the applicant’s right to liberty and security (Article 5(1) of the European Convention on Human Rights) as his detention for the above-mentioned offences was based on mere suspicion.  Furthermore, the Court found that the interference with the freedom of expression of the applicant (Article 10 European Convention on Human Rights) was not prescribed by law, as the material he published  only instigated a public debate on facts, and did not support nor promote the use of violence or terror.  [November 24, 2020] 

European Court of Human Rights | Insufficient compensation for inhuman conditions of detention

In Barbotin v. France, the Court found a violation of the applicant’s right to an effective remedy (Article 13) and the prohibition of inhuman or degrading treatment (Article 3 of the European Convention on Human rights).  While the applicant had been awarded compensation by the French domestic courts for the inhuman conditions of his detention, he had to pay the fees for the expert investigating the prison conditions himself.  The Court decided that the fact that the applicant had to bear the costs for the expert’s fees hindered the effectiveness of the compensation remedy provided to him and resulted in a violation of his Convention rights.  [November 19, 2020] 

European Court of Human Rights | Right of prisoners to receive meals compatible with the precepts of their religion

In Saran v. Romania, the Court found a violation of the applicant’s (Mr. Saran) right to freedom of religion  (Article 9 of the European Convention on Human Rights) on the basis that he wasdenied meals consistent with the precepts of his religion (Islam) during his time as a prisoner in two of the five Romanian prisons in which he was held.  The Romanian authorities had asked the applicant to provide written proof of his adherence to Islam, in absence of which they refused to provide him with meals in compliance with his religion.  The Court found that the authorities, in refusing to provide the requested meals, had not fairly balanced the interests of the prison, the other prisoners, and the individual interest of Mr. Saran.   [November 10, 2020] 

European Court of Human Rights | Launch of Ukrainian HUDOC case-law database

Pending cases against Ukraine represent approximately 16 percent of the overall caseload of the European Court of Human Rights.  For that reason, the Court has launched a Ukrainian user interface of its case-law database HUDOC, in cooperation with the Ukrainian Ministry of Justice, the Office of the Agent of Ukraine before the Court, and the Council of Europe office in Ukraine.  This interface follows the example of the existing English, French, Georgian, Russian, Spanish, and Turkish versions of HUDOC.  The newly launched database aims to enhance understanding of the Court’s case law amongst the public and legal professionals, which could in turn help to increase the correct application of European standards in domestic courts.  [November 5, 2020] 

AFRICA 

African Commission on Human and People’s Rights | Concern over the current situation of armed conflict unfolding in the Federal Democratic Republic of Ethiopia

The Government of Ethiopia has launched a military offensive against the Tigray People’s Liberation Front (TPLF) in response to the TPLF’s attack on the Northern Command of the Ethiopian National Defense Forces on November 4, 2020.  These armed encounters have resulted in the killing and forced displacement of many civilians, posing a significant risk of violation of their fundamental human rights.  The Commission has called on the Government of Ethiopia to respect its obligations under international human rights law and to abide by international humanitarian law during the armed conflicts.  Furthermore, the Commission has warned all parties involved in the conflict against war crimes, genocide, and crimes against humanity, and has encouraged them to engage in dialogue to settle their dispute peacefully.  [November 26, 2020] 

African Commission on Human and People’s Rights | The Commission calls on Burkina Faso to respect voting rights of its citizens

The Commission has been informed of incidents of disruptions of voter registrations by extremist groups in certain regions of Burkina Faso.  These incidents were followed by the Burkinabé parliament passing a new law that allows for votes to be counted regardless of people’s access to polling stations.  The Commission reminds the Burkinabé authorities of their obligation to ensure the respect of the the right to vote and requests that authorities take measures necessary to ensure their citizens can effectively exercise this right.  [November 11, 2020] 

THE AMERICAS 

Inter-American Commission on Human Rights | The Commission adopts precautionary measures in favor of human rights defenders in Cuba

The Commission granted precautionary measures in favor of a family of human rights defenders at risk of irreparable damage to their human rights in Cuba.  The individuals requested the precautionary measures as Cuban state agents and third parties were allegedly subjecting them to threats, harassment, detentions, and acts of violence as a result of their work as human rights defenders.  In the precautionary measures, the Commission requested Cuba to implement the necessary measures to protect the rights to life and personal integrity of these individuals, and to allow them to carry out their work as human rights defenders without being subjected to harassment.  [November 24, 2020]

Inter-American Commission on Human Rights | Creation of Interdisciplinary Group of Independent Experts for Bolivia

The Inter-American Commission on Human Rights has established, by means of an agreement with Bolivia, a new Interdisciplinary Group of Independent Experts for Bolivia (GIEI-Bolivia).  This mechanism aims to assist with the investigation of acts of violence and human rights violations which took place in Bolivia between September 1, and December 31, 2019.  The Commission views GIEI-Bolivia as an impartial mechanism with technical expertise and integrity, which will ensure that those responsible for the violations are identified, and will offer appropriate recommendations on the issue. [November 20, 2020] 

Inter-American Court of Human Rights | Basic course on Human Rights for Non-Lawyers

On November 5, the Court held a basic course on human rights for non-lawyers in Central America that discussed the impact of the Court’s case-law  on human rights situations in the region.  This course was offered as a part of the “Training and awareness-raising on human rights in the midst of the COVID 19 pandemic” Project, and aimed to train the non-legal community of the region on methods of teaching and learning about human rights.  [November 9, 2020] 

UN MECHANISMS 

The Committee on Enforced Disappearances | The Committee urges Iraq to end impunity for enforced disappearances

The Committee on Enforced Disappearances has expressed concerns over the persistent pattern of enforced disappearances in Iraq, and urges Iraq to promptly implement the offence of enforced disappearances into their domestic criminal legislation.  Iraq has taken some positive steps in ending enforced disappearance by setting up fact finding committees and drafting the Bill on the Protection of Persons from Enforced Disappearance.  However, the Committee has expressed concerns over the delayed adoption of the Bill, which hinders the prompt criminalization of the offence and compliance with the International Convention for the Protection of All Persons from Enforced Disappearance.  [November 27, 2020]

The Committee on the Elimination of Racial Discrimination | Publication of recommendations on combating racial profiling

The Committee on the Elimination of Racial Discrimination has published general recommendations on preventing and combating racial profiling by law enforcement officials.  These recommendations aim to guide states in overcoming, among other things, algorithmic bias in their use of Artificial Intelligence (AI) for law enforcement purposes.  Use of AI and other new technology in law enforcement can increase the risk of using discriminatory practices in determining the likelihood of criminal activity, which can lead to serious violations of human rights.  In these guidelines, the Committee encourages states to ensure compliance with international human rights law in their use of algorithmic profiling technology.  [November 26, 2020] 

Human Rights Council (Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment | Wave of mass executions and unfair trials in Iraq are concerning

The United Nations human rights experts have expressed concerns over the number of prisoners facing execution sentences based on terrorism-related convictions in Iraq.  Trials under Anti-Terrorism Law have been depriving the defendants of basic access to a fair trial, and frequently result in execution sentences.  The experts urge Iraq to halt mass executions immediately, to respect its international obligation to refrain from arbitrary deprivation of life, and to offer fair trials to individuals accused of terrorism crimes.  [November 20, 2020] 

Human Rights Council (Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health) | Monopolizing vaccines against COVID 19 is counterproductive 

The United Nations experts have criticized the nationalism surrounding the attempt to secure vaccines for fighting the COVID-19 pandemic, and call on countries to adopt a joint human-rights based approach to ensure mass immunization.  The experts highlight the need for international cooperation in order to ensure that everyone has access to the COVID19 vaccine, especially  vulnerable people living in poverty, and reminds the community that “no one is secure until all of us are secure.”  [November 9, 2020] 

Human Rights Council (Special Rapporteur on the Situation of Human Rights in Myanmar) | Call for Myanmar to refrain from limiting democracy in the general election 

The Special Rapporteur has expressed his support for the standards set up by Myanmar to ensure that the upcoming elections are free, fair, and reflect the will of the people, but points out that this cannot happen as long as other national laws continue to undermine democracy.  In Myanmar, freedom of expression is highly limited, and the right to vote is still denied based on race, ethnicity, and religion.  The Special Rapporteur calls on Myanmar to lift censorship of the state media, which is one of the only ways for the candidates to reach out to the voters during the COVID-19 pandemic, and to introduce reforms upholding and enhancing democracy in the country.  [November 2, 2020] 

November 2020

Monthly News Updates: Domestic Prosecution of International Crimes - November 2020

By: Alexandrah Bakker, Junior Research Associate, PILPG-NL 

This month saw significant developments in the domestic prosecution of international crimes.  In the Democratic Republic of the Congo, a military court handed a long-awaited conviction against former rebel leader Sheka.  Meanwhile, Australia and the United Kingdom adopted differing approaches to allegations of war crimes committed by their armed forces overseas.

EUROPE

Germany | Syrian state torture trial continues in Koblenz

The lawyers representing the joint plaintiffs in the al-Khatib trial, which deals with allegations of Syrian state torture, argued that crimes of sexual violence should be charged as crimes against humanity.  At the moment, the charges of rape and sexual assault are being dealt with as ordinary crimes under German criminal law. [November 19, 2020]

Germany | Syrian torture trial: The “Caesar” files in court for first time

 An expert witness in the al-Khatib trial testified that the Caesar files serve as evidence of the systematic torture and killings of detainees in Syria since 2011.  The Caesar files were first published in 2014 and contain 55,000 photographs depicting the torture inflicted upon 11,000 victims. [November 12, 2020]

Germany | German woman charged for crimes against humanity in Syria

German federal prosecutors charged Nurten J. with war crimes for living in a home that was taken by ISIS from its owners.  They also charged her with crimes against humanity for participating in the enslavement of a Yazidi girl. [November 11, 2020]

Bosnia and Herzegovina | Bosnian army officers charged for killings of prisoners

The Bosnian state prosecution charged two former Bosnian Serb army officers, Radomir Nedic and Ratko Djurkovic, with crimes against humanity and war crimes for an attack carried out against Bosniak civilians in July 1992. [November 4, 2020]

France | France seeks trial ofLiberian rebel leader accused of crimes against humanity

French prosecutors requested a trial against Kunti K., a former Liberian rebel leader accused of committing acts of torture in 1993 and 1994 during Liberia’s civil war. [November 4, 2020]

United Kingdom | MPs pass bill to protect UK soldiers from prosecution

The United Kingdom’s House of Commons passed the Overseas Operations Bill, which is intended to protect the United Kingdom Armed Forces from “vexatious” claims over their actions overseas. [November 3, 2020] 

The United Kingdom Parliament’s Human Rights Committee published the results of its legislative probe into the controversial Overseas Operations Bill.  The Committee found that the Bill would make it more difficult for victims to obtain justice for war crimes committed by UK Armed Forces overseas. [October 29, 2020] 

AFRICA

Democratic Republic of the Congo | Sheka and his wingman receive life sentences, victims are finally recognized

A military court in the Democratic Republic of the Congo convicted former militia leader Ntabo Ntaberi Sheka and his ally Séraphin Nzitonda, alias Lionceau, of war crimes.  Both defendants received life sentences for the war crimes of murder, sexual slavery, and the recruitment and use of child soldiers.  The court additionally found Sheka guilty of the war crime of pillage and found Lionceau guilty of the crime against humanity of rape. [November 23, 2020]

Sudan | Sudan declares amnesty except for war crime suspects

Sudan has declared amnesty for “all those who carried arms or took part in military operations or war.”  The amnesty “excludes those with arrest warrants issued by the International Criminal Court or […] those wanted for genocide or crimes against humanity.” [November 13, 2020]

AUSTRALIA

Australia | Report finds evidence of war crimes by Australian special forces in Afghanistan

The Brereton report is the result of a four-year administrative inquiry into alleged war crimes committed by Australian soldiers in Afghanistan between 2005 and 2016.  The report found that the special forces were responsible for the killings of 39 Afghans in 23 separate incidents, and that these killings were deliberately covered up. [November 19, 2020]

Australian Prime Minister Scott Morrison announced that a special investigator will be appointed to conduct a criminal investigation into alleged war crimes committed by Australian armed forces in Afghanistan.  Where appropriate, the special investigator will refer cases to the Commonwealth Director of Public Prosecutions. [November 13, 2020]

THE AMERICAS

Argentina | Argentina dirty war: torture and baby theft trial underway

The trial of the 18 defendants accused of committing crimes against humanity in military detention centers in Argentina between 1976 and 1983 has begun.  The charges relate to acts of torture, killings, and the abduction of babies. [October 28, 2020]

November 2020

Monthly News Updates: Southern Cameroons – November 2020

By: Kristoffer Burck, Junior Research Associate, PILPG-NL

THIS POST COLLECTS UPDATES FROM THE PAST MONTH CONCERNING RELEVANT DEVELOPMENTS IN SOUTHERN CAMEROONS. THE INFORMATION IS DRAWN FROM LOCAL AND INTERNATIONAL ONLINE SOURCES.

VIOLENCE IN ANGLOPHONE REGIONS

Attacks on Schools | Attacks and Abductions at Three Schools

According to government reports, armed attackers assaulted three schools in the anglophone regions of Cameroon in the first week of November. At one of the schools, attackers reportedly abducted six teachers and ten students but released them after a short time. The armed assailants set fire to another school building. In all three cases, the attackers were armed but no casualties or injuries occurred. The government accuses anglophone separatists of being responsible for these attacks. These three instances come after a deadly attack on a school on October 24, killing eight students. [November 05th 2020]

Attacks on Schools | Teacher and Student Injured in Attack

Unidentified attackers severely injured a teacher and a student during an attack on a Primary and Secondary School in the anglophone South-West region. The attackers shot indiscriminately at students and teachers but did not cause deadly casualties. This incident marks yet another attack on schools, which the government attributes to armed anglophone separatist groups. [November 16th 2020]

Clashes with soldiers | Two Soldiers Killed in Ambush

Armed attackers killed two soldiers in an ambush in the anglophone North-West region. Different sources also report the death of a civilian and cite claims that the soldiers were responsible for this act. [November 18th 2020]

Clashes with soldiers | Soldiers Accused of Burning a Civilian House in Anglophone Region

According to eyewitness reports, soldiers burned down a civilian house during a raid of a village in the anglophone North-West region. The eyewitnesses further claim that soldiers looted homes and stores, while the majority of villagers fled into the nearby bushes.

[November 22th 2020]

Abductions | Cardinal and Traditional Ruler Abducted and later Released

Unidentified attackers abducted Cardinal Cristian Tumi and traditional chief Sehm Mbinglo on November 05, 2020, while travelling through the anglophone South-West region. The chief was on his way to return from a three-year-long exile, as he left the region due to security concerns. The abduction of the cleric and the traditional ruler provoked widespread protests. Government sources claim that armed anglophone separatists are responsible for the abduction. The cardinal was released on November 06, 2020, while the traditional ruler of the Nso people was set free on November 10, 2020. [November 10th 2020]

Abductions | Ten Villagers Abducted and Freed by Government Forces

Unidentified attackers abducted ten villagers from the South-West region on November 09, 2020, after the villagers reportedly did not comply with local regulations, imposed by armed separatist groups.  Government forces freed the kidnapped villagers on November 11, 2020. [November 11th 2020]

HUMAN RIGHTS IN CAMEROON

Opposition | Members of Opposition Tried by Military Tribunal

Members of the opposition movement faced a military tribunal in Yaoundé. The prosecution charged 36 individuals for their participation in demonstrations in September. The indictments are based on charges of revolution, rebellion, and the formation of mobs, for which the prosecution demands imprisonment for life. [October 31st 2020]

Opposition/Anglophone Activists | US Deports Cameroonians  

The US Department of Homeland Security continues to deport Cameroonian asylum seekers amidst strong criticism by human rights groups. Reportedly, 36 Cameroonian citizens were returned to Cameroon last week, marking the second such move in the last months. Among those deported are opposition figures and several activists from anglophone regions. Different news outlets report that deportees of the first transport were prosecuted or went missing on arrival in Cameroon. Human rights groups warn that the deportees will face torture, arbitrary imprisonment, and threats to their lives once returned to Cameroon. [November 10th 2020]

Opposition | Police Arrests Fifty Protesting Women 

Police forces arrested approximately fifty women in connection to protests in the capital Yaounde. Some of the women stripped naked during the protests to point out the extreme grief they are suffering. The women protested for the release of the opposition leader Maurice Kamto, who is confined to house arrest. Reports mention police brutality against the protestors. The arrested women currently remain in detention. [November 21st 2020]

PRESIDENT BIYA MARKS 38 YEARS IN OFFICE 

On November 06, 2020, President Paul Biya celebrates his 38 year anniversary as the president of Cameroon. The 87-year-old Biya is the second longest-ruling president on the African continent and the third-longest ruling non-monarchic leader in the world. [November 06th 2020]

The German KiK Case: From Failed Case Towards National Supply Chain Legislation

By: Kristoffer Burck, Junior Research Associate, PILPG-NL

With the advent of globalization, the geographical scope of supply chains has greatly increased. A final product is made up from components that have traveled through various jurisdictions and that have been processed by different legal entities. This creates complicated legal questions, especially in cases of human rights violations along the supply chain. For instance: Who is responsible for these violations – the sub-contractor running the factory, or the retailer who does nothing to ensure compliance with human rights standards? Which jurisdiction is applicable – the jurisdiction of the state where the factory is located or the jurisdiction of the state where the product is sold? And which countries' laws should be applied? A German regional court was faced with these questions for the first time in 2019, when victims of a fire in a textile factory in Pakistan submitted a civil lawsuit against a German clothing company.  

Background of the Case

In September 2012, a fire in a textile factory in Karachi (Pakistan) killed 260 people and left 32 injured. According to an investigation by Forensic Architecture, the majority of these deaths and injuries could have been prevented, had the factory adhered to basic safety standards. A single retailer, namely the German clothing discounter KiK, bought around 70 percent of the products from the factory. As a result, critics alleged that Kik held partial responsibility as it could have effectively demanded adherence to basic safety standards. Following years of negotiations between KiK and victims´ rights organizations, the German retailer agreed to pay  compensation amounting to around six million US dollars to the victims, but refused to admit any wrongdoing. During the negotiation process, KiK pledged to waive its claims to statute of limitations regulations (the time limit of how long after the damage a lawsuit can be brought) in future lawsuits. A number of families found this offer inacceptable and decided to claim damages in a civil case in German courts. In 2016, four victim representatives - German law does not allow class action lawsuits - with the support of  two NGOs, filed a civil lawsuit at the regional court of Dortmund. 

Foreign Law Before Domestic Courts

But why should a German court have jurisdiction in a case of damages occurring in Pakistan? Article 63 (1) of Brussels 1 Regulation, in connection with paragraphs 12 and 17 of the German Code of Civil Procedure, allow for proceedings of international civil cases in the courts of the home state of the defendant.  According to Article 4 (1) of Rome 2 Regulation, the applicable law in these cases shall be the law of the state where the damages occurred. Thus, in this case, the German court applied Pakistani law  to evaluate  KiK´s liability for human rights violations by its Pakistani contractor. 

Statute of Limitations

The applicable Pakistani common law holds that personal injury  cases (called tort cases) involving bodily harm are time barred to two years after the injury occured. The court further concluded that under Pakistani law the parties cannot voluntarily make an exemption to this time limitation (English discussion of this argument here). The court also dismissed the argument that both sides agreed to be partially bound to legal obligations of the law of their choice, following Article 14 (1) (a) of Rome 2 Regulation. Lastly the court rejected the plaintiffs´claims that the Pakistani statute of limitations is incompatible with the ordre public (the fundamental legal principles of a state) of German law. The plaintiffs had argued that pursuant to Article 26 of the Rome 2 Regulation, the Pakistani regulation would negate effective legal protection (a core principle of the German legal system) in complex cases with an international dimension. Ultimately, the court dismissed the case on procedural grounds and thereby did not provide a decision on the merits. 

Proposed Supply Chain Legislation

Even though the KiK case did not provide a precedent on liability for human rights violations upstream the supply chain, it did provide an illustrative point for proponents of a German domestic supply chain law. These demands are directly linked to the unsatisfying dismissal of the KiK case on procedural grounds and the absence of a decision on the merits. The advocacy seems to fall on fertile ground as the position of key federal ministries seems to have changed from calling for voluntary industry commitments to efforts to pass concrete legislation. While the details remain up to negotiations, civil society campaigns use the KiK case to underline a key demand: the proposed law should make German standards applicable to damage claims from upstream the supply chain by designing the law as a mandatory rule (“Eingriffsnorm”).

Conclusion 

The KiK case, by publicly shining a light on the problems arising from missing legal certainty in “globalized” tort cases, has set the pretext for future national legislation in Germany. By doing so, Germany might follow legislation in France, the UK and the Netherlands (English discussion of the law here), all addressing certain aspects of global supply chains. However, a comparison of these laws indicates a patchwork of different objectives and approaches, maintaining disparity within the EU. Whereas the German law can probably contribute to legal certainty in Germany, EU solutions are necessary to ensure  harmonious protection of human rights within  global supply chains. 

Camellia Lawsuit and the Uncertainty Around the Law on Parent Company Liability for the Acts of Subsidiaries in English Law

By: Isabelle Jefferies, Junior Research Associate, PILPG-NL

If you are someone who likes avocados, who lives in Britain, and who shops at either Tesco, Sainsbury’s, or Lidl, you have probably bought avocados linked to serious allegations of human rights violations.  These allegations have resulted in a civil lawsuit that is currently underway before the British High Court in London.  The defendant in this case is a British agricultural company that imports avocados from a subsidiary in Kenya, and supplies them to leading British supermarkets.  

This blog post will briefly introduce the relationship between these companies, and the allegations made against them, before discussing the legal framework relevant to the lawsuit.   

Kakuzi and Camellia: Supplying British Supermarkets with Avocados

Kakuzi is an agricultural company that cultivates, processes and markets various products, including avocados.  It is the Kenyan subsidiary of Camellia, a British registered company and a global agricultural giant.  Until recently, Kakuzi was a prominent avocado supplier to British supermarkets, namely Tesco, Sainsbury’s, and Lidl.  However, in October 2020, the company faced public outrage following claims of human rights abuses.  As a result, the supermarkets stopped purchasing products from Camellia. 

Seventy-nine Kenyans, including former Kakuzi employees, began legal proceedings in the High Court of London against Camellia in October 2020.  They allege that, between 2009 and 2020, Kakuzi systematically violated their human rights.  In particular, they claim that security guards, employed to protect the plantations, killed one man, and subjected others to rape, violent attacks, and false imprisonment, among other forms of serious mistreatment.

There have been unsuccessful attempts to hold Kakuzi accountable for the alleged human rights violations in Kenya.  Notably, in 2018, the United Nations Working Group on Business and Human Rights visited Kakuzi’s plantations.  In 2019, it submitted a report to the Human Rights Council, in which it encouraged Kakuzi to complement the police investigation into the allegations by conducting its own investigations.  Furthermore, it called on Kakuzi to strengthen the training and oversight mechanisms of its security guards.  In spite of the report, accusations of fresh violations by Kakuzi’s security guards have since been reported.  According to the Kenyan Human Rights Commission, Kakuzi has evaded accountability for too long, due to its economic, political and legal influence in Kenya.  As a result, victims are now seeking redress in British courts.  

English Law on Parent Company Liability for the Acts of its Subsidiaries

As a common law system, there is no statute governing parent company liability for the wrongful acts of its subsidiaries, such as human rights violations, in English law.  

For a parent company to be held responsible for harm caused by its subsidiary, it must be established that it owes a duty of care to the victims.  Generally, English law does not impose a duty to prevent third parties causing damage to another, unless the test found in Caparo v. Dickman (1990) is satisfied.  This test establishes that a duty of care will be imposed on a defendant whenever it can be shown that the harm to the claimant was foreseeable, that there was a relationship of proximity between the claimant and the defendant, and that it is fair, just, and reasonable to impose a duty of care.  

Furthermore, the jurisprudence of English courts has explicitly recognized the liability of parent companies for the tortious acts of its subsidiaries, under certain circumstances.  Chandler v. Cape (2012), decided on appeal, was a landmark case in this regard.  The Court of Appeal established that a company will have duty of care towards the employees of its subsidiary if certain criteria, reflecting the proximity and reasonableness limbs of the Caparo test, are met.   Namely, the parent company and its subsidiary have similar businesses, the parent company knew, or ought to have known, that the system of work of its subsidiary was unsafe, and lastly, the parent company knew, or ought to have foreseen, that its subsidiary or its employees would rely on this knowledge for the protection of the employees (para. 80). Having said that, the court did stress that parent companies have separate legal personalities from their subsidiaries (para. 67), so unless the previous criteria is met, the parent company will not have a duty of care for the harm caused by its subsidiaries.  

Although the Chandler case represents a step towards holding parent companies accountable for harm caused by its subsidiaries, it is limited in scope.  In fact, it only offers a legal basis for a claim against a parent company for claimants who are employees of the subsidiary. Others who may have suffered harm as a result of the subsidiary do not have any means of redress under this precedent.  In other words, in the Camellia lawsuit, those claimants who are not employees, or former employees of Kakuzi, have no basis for their claims.   

 Yet, in Lungowe v. Vedanta Resources (2017), the Court of Appeal acknowledged that a duty of care could be owed by a parent company for the harm caused to all persons “affected by the operation of a subsidiary.” (para.88)  This approach would enable those claimants in the Camellia lawsuit who are not employees, or former employees of Kakuzi, to argue a case against Camellia nevertheless.  The case reached the Supreme Court in 2019, and it was emphasized that the criteria set out in the Chandler case is not strict.  In fact, the existence of a parent company’s duty of care in relation to the harm caused by its subsidiary depends more generally on the extent to which the parent company took over, intervened in, supervised, or advised the management of the relevant operations of the subsidiary (para. 49).  In essence, the parent company’s duty of care is contingent on the extent to which it exercises control over its subsidiary.  There are many models of management and control used by multinational corporations (para. 51), so this pragmatic approach, that looks at the reality of the relationship between the parent company and its subsidiary, is warranted.  According to the firm representing the Kenyan claimants, there is clear evidence that Camellia tightly supervises and controls Kakuzi, and Camellia’s managers also manage Kakuzi.  As a result, it seems that the claims against Camellia would satisfy the test set out in Lungowe, and that it would be held responsible for the human rights violations committed by Kakuzi’s security guards. 

However, in Okpabi v. Shell (2018), the Court of Appeal did not follow this pragmatic approach.  The majority held that a parent company owes a duty of care for the actions of its subsidiaries only where it controls, or shares control of, the material operations of the company.  This is a stricter approach, whereby the parent company does not owe a duty of care when it merely issues mandatory policies and standards applicable to its subsidiaries in order to ensure conformity with particular standards (para. 89).   In fact, the claimants would need to show that Camellia assumed responsibility for, or controled the day-to-day operations of Kakuzi (para. 205).  On the basis of the evidence that is publicly available, it is hard to determine whether the claimants would meet this standard.  However, it is safe to say that this test sets out a higher standard of control that Camellia must have over Kakuzi, compared to the test set out by the Supreme Court in Lungowe.  As a result, under the former test, the responsibility of Camellia for the harm caused by Kakuzi would be harder to attribute.  Having said that, the case is currently being appealed in the Supreme Court, so this approach may be overruled, and substituted with the more pragmatic approach taken in Lungowe.   

Conclusion

The law surrounding the liability of parent companies in relation to harm caused by their subsidiaries is vital for the vindication of rights of victims of corporate abuses.  However, at the moment, this area of law is filled with many uncertainties, so it is hard to determine whether Camellia will ultimately be held liable for the alleged human rights violations committed by its Kenyan subsidiary, Kakuzi.  The approach adopted by English courts in the upcoming months will have extensive implications for victims from all around the world, whose final attempt to seek redress lies in the hands of the judges of English courts.