Business and the death penalty
A business may engage with issues of public concern, including human rights issues, for two kinds of reason: voluntarily, on the basis of conviction or solidarity, in the same way that an individual may campaign for human rights principles or certain reforms; or because it has a duty to do so, because the company’s activities involve it in or connect it to contested or illegal conduct or violations of rights, creating an obligation on the company to change its policies or behaviour.
Both forms of response were discussed in the session. Speakers recognized that it is critical to distinguish between them, because, while companies may choose to support abolition or condemn capital punishment on moral grounds or to improve the company’s reputation, they have no obligation to do so unless there is an operational link between the company’s activities and a violation of international humanitarian law, international human rights law, or national laws. Companies do have a duty to avoid participating in activities that violate human rights, and must exercise due diligence to ensure that their operational activities and commercial relationships do not cause them to be responsible for violations or complicit with violations.
Companies can do a lot voluntarily to support abolition
The distinction is crucial when it comes to engaging with businesses on the question of abolition. Advocates need to adopt clear arguments. They can encourage companies to support abolition voluntarily, on moral or ethical grounds (see the interview with Carleen Pickard of Lush). They can develop self-interest arguments to show why companies might want to disinvest from countries that practise the death penalty (see the quote from Richard Branson below). And in a more limited number of cases, they can argue that companies have a duty to change their business practices or business relationships because they are complicit in cruel or illegal activities or activities that otherwise violate rights.
Companies can do a lot voluntarily to support abolition. Three speakers described the contributions of companies in the United States, France, and Tunisia. Lush, a soap company, ran a campaign called “Death≠Justice” in 2017 in partnership with the National Coalition to Abolish the Death Penalty and the Innocence Project. It chose to do so because it has a tradition of promoting causes, but also because the timing was favourable: death sentences and executions in the US were falling and public support for abolition was high. The campaign called explicitly for abolition and promoted four key messages: the death penalty is unjust, it fails to address the root causes of crime, it does not improve public safety, and it is discriminatory. To support the campaign, Lush produced a video (Exonerated), spread information on its online platforms, and produced an abolition bathbomb. Lush continues to support abolition and groups that campaign for it.
Tout Terrain is a smaller French company that provides materials for events. After its Director became personally committed, Tout Terrain linked up with Together Against the Death Penalty (ECPM), and the company now regularly provides signage and other services to support abolition events and activities. The Director of Zino Mar, thirdly, is a founding member of the Observatory of Moroccan Prisons. After realizing that she could not make a difference on her own, she started to use the resources of her company to print materials for abolitionist organizations and resolve logistical problems. Some of Zino Mar’s customers support abolition while others are hostile and consider abolition to be a Western import, but no clients have refused to work with Zino Mar because of its stance on capital punishment.
As Richard Branson pointed out, investors have reasons to avoid countries that practise capital punishment even if company executives are not personally motivated morally or ethically. Precisely because the death penalty is unjust, and does not address the causes of crime, does not improve public safety, and is discriminatory, countries that continue to practise it are likely to have low respect for the rule of law, less fair justice and social systems, and higher levels of insecurity. These are sound reasons for not investing in such countries and for considering disinvestment.
on why businesses should shun countries that retain the death penalty
I consider the death penalty a barbaric and inhumane practice that deserves no place in modern society… [It] is a deeply flawed and immoral punishment [that] fails to deliver justice or act as a deterrent against crime… Thankfully I see more and more companies waking up to the need to speak out on these issues and I commend companies like Lush that have taken a lead in bringing the fight against the death penalty to a wider audience. My opposition to the death penalty is, at its heart, a moral opposition. But I can also see other compelling reasons why businesses should get involved. From the perspective of an entrepreneur and investor, I think that capital punishment is a strong indicator of a country’s approach to governance, to fairness, and the rule of law. It also tells a lot about misguided priorities and a lack of fiscal responsibility. While the moral argument against the death penalty alone should be strong enough, these are good reasons why business leaders everywhere should become global advocates for universal abolition.
The duty of companies to respect human rights and the law
Sune Skadegård Thorsen outlined the international policy framework that regulates the human rights obligations of private companies. He stressed that an international consensus on this issue was reached so recently that the new standards have had little effect so far on the conduct of small and medium sized organizations.
Companies have an obligation to ensure that their own operations and activities do not violate rights.
States, companies and civil society reached agreement on the human rights responsibilities of private companies in 2008, when the UN Human Rights Council unanimously adopted the UN Guiding Principles on Business and Human Rights, drafted by Professor John Ruggie after several years of careful consultation. It takes a ‘protect, respect and remedy’ approach.
In summary, States are primarily responsible for making sure that human rights are respected but companies have an obligation to ensure that their own operations and activities do not violate rights and also that their relationships do not indirectly involve them in violations; where violations do occur, companies must provide redress. To meet these obligations, companies are required to put in place a management system that monitors for violations of rights, can detect violations when they occur, and can respond by mitigating and preventing their recurrence. Companies must continuously assess the human rights impacts of their operations and activities and must exercise due diligence by taking appropriate steps to foresee and avoid likely violations for which they or their relationships might have direct or indirect responsibility. They are also required to establish effective and transparent grievance and compensation mechanisms to deal with violations, or allegations of violations, for which they have some responsibility.
The framework is founded on principles of human rights accountability but also appeals to business self-interest in that companies that fail to exercise due diligence and consequently commit violations incur major reputational risks as well as potentially crippling costs. As the new rules come to be adopted, both businesses and investors are likely to choose increasingly to work with companies that respect human rights. Although the operations of relatively few companies touch directly on the death penalty and executions, where companies’ activities do relate to capital punishment they have a duty to exercise due diligence and need to show what they are doing to prevent or mitigate any violations of rights that are associated with their operations or relationships.
As noted, the human rights accountability framework regulating companies is new: it is only beginning to be implemented and most companies are not aware of it. Its impact will become apparent in the future. Mr Thorsen encouraged the participants and all those campaigning for abolition to follow the work of UN bodies that monitor business and human rights and to participate in the business consultation on this issue that meets annually in Geneva. Though progress may appear to be slow, better practices are gradually emerging, particularly in the field of gender mainstreaming. However, capital punishment is likely to become an advocacy issue only in the context of business-to-consumer relationships; it will probably not be relevant in business-to-business relationships.
He stressed that few companies are likely to be directly affected by legal human rights norms because relatively few companies are directly engaged in executions or activities associated with them. This said, a number sell equipment that is relevant, and a larger number may be indirectly implicated because they provide services to prisons and justice systems in countries that retain the death penalty.
With regard to these cases, where companies’ operations are linked to capital punishment, Antonio Panzeri MEP praised the EU’s decision to prohibit the use for executions of pharmaceuticals originating in the EU, and the consequent decision of pharmaceutical companies to cease selling certain chemicals to United States prison authorities, while Cecilia Malmström, European Commissioner for International Trade and Trade Agreements, underlined that governments are taking action to end torture and capital punishment. She cited the Alliance for Torture-Free Trade, launched by the EU with Argentina and Mongolia, in which more than 60 countries now participate, and said plans are being developed to regulate trade in items that can be used for torture or the death penalty.
“The private sector must be included in the fight for abolition. Businesses are often complicit in violations of human rights and it is important to hold them accountable – but businesses are also ingenious, skilled at finding solutions, and staffed by persuasive people. They can help advance respect for human rights.”
Chair of the DROI Subcommittee of the European Parliament
UN Guiding Principles on Business and Human Rights.