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Tracking Down the Missing Financial Link in Transitional Justice

In: International Human Rights Law Review
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This article argues that lenders providing financial assistance to authoritarian regimes should be held responsible for complicity if they knew or should have known that they would facilitate human rights abuses. Discussing the lenders’ role in a transitional justice context leads to a broadening of legal and institutional tools to channel this responsibility. This article starts by critically assessing the micro criteria traditionally used to understand the causal link between finance and human rights abuses, suggesting that a macro (i.e. holistic, interdisciplinary and casuistic) approach considering structures, processes and dynamics of sovereign financing should be applied when interpreting this link. It also explains how that traditional view is being challenged. A rational choice approach is taken to explain the most salient financial features of large-scale campaigns of gross human rights violations in order to understand the real relevance of funds in contexts of criminal regimes. The legal bases of responsibility for complicity are then discussed, separately presenting the arguments applied to private, multilateral and bilateral lenders. It also outlines how the missing financial link could be integrated into the domain of transitional justice, presenting, elaborating and assessing enforceability of concrete mechanisms to channel financial complicity in order to attain transitional goals. Finally, concluding remarks and challenges on the relationship between financial complicity and transitional justice are presented; and policy and economic considerations are made to better understand the real implications that incorporating the financial dimension into the transitional justice universe could have for a country.

Abstract

This article argues that lenders providing financial assistance to authoritarian regimes should be held responsible for complicity if they knew or should have known that they would facilitate human rights abuses. Discussing the lenders’ role in a transitional justice context leads to a broadening of legal and institutional tools to channel this responsibility. This article starts by critically assessing the micro criteria traditionally used to understand the causal link between finance and human rights abuses, suggesting that a macro (i.e. holistic, interdisciplinary and casuistic) approach considering structures, processes and dynamics of sovereign financing should be applied when interpreting this link. It also explains how that traditional view is being challenged. A rational choice approach is taken to explain the most salient financial features of large-scale campaigns of gross human rights violations in order to understand the real relevance of funds in contexts of criminal regimes. The legal bases of responsibility for complicity are then discussed, separately presenting the arguments applied to private, multilateral and bilateral lenders. It also outlines how the missing financial link could be integrated into the domain of transitional justice, presenting, elaborating and assessing enforceability of concrete mechanisms to channel financial complicity in order to attain transitional goals. Finally, concluding remarks and challenges on the relationship between financial complicity and transitional justice are presented; and policy and economic considerations are made to better understand the real implications that incorporating the financial dimension into the transitional justice universe could have for a country.

1. Introduction

Is sovereign financing significant to a regime that carries out gross violations of human rights? How? Are lenders responsible for their complicity? If so, what are the legal implications of this responsibility in a context of transitional justice? Until now, economic, political and legal literature has not focused on the way in which these questions are interconnected.

During the past few years, the debate over the dimensions covered by transitional justice has expanded to incorporate the issue of whether or not economic factors should be included, in interpreting and dealing with the past,1 and/or for including social and economic rights in the transitional agenda.2

Focusing not only on the political and social but also on the economic factors that contributed to past atrocities is crucial for the core primary goals of transitional justice.3 First of all, a fundamental sense of justice indicates that those who have effectively contributed to human rights abuses must be sanctioned. Holding contributors responsible can have a deterrent effect on future similar acts. Moreover, visibility of economic accomplices also helps to create a more complete narrative about past facts, fulfilling the guiding principle of comprehensiveness in the truth-telling of past atrocities.4

Furthermore, economic legacies can constrain the financial ability of transitional States to carry out trials, truth commissions and reparations programmes; and they can also inhibit the potential for transitional justice institutions to contribute to achieving the broader social goals that are often ascribed to them, such as more inclusive democratic societies.5 These two factors also recommend incorporating the economic complicity dimension into the transitional justice universe.

Considered together, these reasons explain why tracking down the financial aspects of gross violations of human rights is relevant. Firstly, in order to understand the causal link between finance and human rights violations; secondly, to render it visible; and finally, to elaborate adequate legal answers in a context of transitional justice.

The actual relevance of financial complicity relies on two facts. As authoritarian regimes are politically vulnerable because of their almost insurmountable problems of legitimation,6 one way to cope with this political deficit can be to justify the regime in terms of economic success. Here the sovereign financial resources can be politically meaningful. At the same time, authoritarian governments accumulate substantially more foreign debts as a share of their national income than governments in democratic political systems.7 This difference8 is mainly due to the fact that authoritarian governments have little political incentive to reduce their consumption expenditure, invest in future growth, minimize distortions from high taxes, or care about the negative impact that high debt has on long term economic performance.9 As these governments usually borrow at a higher rate and invest at a lower rate than democracies, they are more likely to become heavily indebted.10

Most of the legal literature on odious debt focuses on the (unfair) debt burden that the post-dictatorship generation(s) will have to bear.11 Financial complicity concentrates far more on the link between finance and the generation(s) being tortured and assassinated during the dictatorship.

Whilst the economic relevance of other sources of funds12 is not underestimated here – indeed this requires further and holistic research13 – this article focuses on bilateral, multilateral and private loans and grants, as well as bond issues, as facilitators of gross violations of human rights.14 As all these types of financial instruments have been key in financing regimes with a consistent pattern of human rights violations15 their study is here justified.

The structure of the article is as follows. In section 2 traditional micro criteria to understand the causal link between finance and human rights abuses are critically assessed, suggesting that a macro (i.e. holistic, interdisciplinary and casuistic) approach considering structures, processes and dynamics of sovereign financing should be applied when interpreting this link. It also explains how that traditional view is being challenged. A rational choice approach is taken in section 3 to explain the most salient financial features of large-scale campaign of gross human rights violations in order to understand the real relevance of funds in contexts of criminal regimes. In section 4 the legal bases of responsibility for complicity are discussed, separately presenting the arguments applied to private, multilateral and bilateral lenders. Section 5 outlines how the missing financial link could be integrated into the transitional justice universe, presenting, elaborating and assessing enforceability of concrete mechanisms to channel financial complicity in order to attain transitional goals. Finally, in section 6 some concluding remarks and challenges on the relationship between financial complicity and transitional justice are presented; and policy and economic considerations are made to better understand the real implications that incorporating the financial dimension into the transitional justice universe could have for a country.

2. Human Rights and Finance: How to See This Link

The link between finance and human rights is far wider than the cases approached by transitional justice.16 This does not mean that the particular situations addressed by the transitional justice framework17 are not sufficiently unique to justify tailored legal tools in this field. On the contrary, we shall see in this piece that gross and massive violations of human rights provide salient features when we observe how finance can be connected to human rights abuses, and all this explains why particular legal tools are required.

Yet, there is a common denominator in the usual way in which finance and human rights are considered. The point to be highlighted here is that legal theory focuses almost exclusively on human rights as individual legal entitlements with all the requirements and conditions that this implies,18 which usually entails a rigid and narrow view of the causal link between a financial contribution and its consequences (called micro approach in this article).

It is therefore not surprising that certain degrees of lethality of the money have been required to recognise that funds are effectively connected to crimes.19 Nor is it surprising that the causal link has also been associated with a micro connection between funds and human rights abuses, where the link can only rely on the lender agreeing in advance to actively participate in the iter criminis of a specific unlawful act, as happens when a bank knowingly finances the training of soldiers whose purpose is torturing those engaged in a peaceful protest against the government.20 In the same vein the UN Secretary General approved in 2011 a due diligence policy on preventing UN financial support of non-UN security forces engaged in human rights violations.21 The El Salvador22 and Chad23 Truth Commissions used this same approach.

While this causal analysis is important – as the Equator Principles24 and the UN Environment Programme Finance Initiative25 assume –, there are other cases involving massive capital inflows and complex criminal systems that perpetrate gross human rights violations that need more nuanced interpretation. In order to better understanding if and how funds contributed to these massive crimes it is necessary to look at the interaction between structures, processes and dynamics of sovereign financing and human rights violations. Interdisciplinary analyses considering not only micro but also macro economic data of the country and international markets; internal and external political and institutional processes; the social situation; monetary, financial, budgetary and fiscal policies; the human rights situation as well as every other relevant fact should be performed.

This macro analysis is not based on an institutional approach that makes members of certain group responsible for simply participating.26 On the contrary, it seeks to apportion responsibility according to the actual behavior of each agent and its consequences.27 Fungibility of the money28 and the complexity of structures, processes and dynamics of authoritarian regimes require more sophisticated and suitable legal notions to understand the link between finance and massive human rights abuses.

This challenge can be dealt with appropriately within the margins of positive law as will be examined in section 4. The causal criterion of the normal, natural and reasonable foreseeable consequences29 is the technical umbrella for elaborating a macro analysis that unravels the complexities of finance in contexts of criminal regimes. If I finance this particular regime, is it predictable that I will be assisting it to carry out its criminal campaign?

Even from this perspective the causal link can be more or less robust, but the broad range of transitional measures demand varying degrees of causal closeness (see section 5). For example, whilst holding lenders legally liable requires an evident (yet macro) connection between their loans and the crimes, a truth commission could investigate and acknowledge the lenders’ role beyond these causal legal technicalities.

There are several factors that have not encouraged significant developments on financial complicity based on macro analysis, as proposed, here that contribute to understanding better how lending to an authoritarian regime can help it stay in power and carry out a gross campaign of crimes. These include the ongoing controversial status of corporations in international law;30 the lack of clear enforceable regulatory standards and international mechanisms for addressing corporate behavior generally;31 the immunity of states and international financial institutions (IFIs); the insufficient and divergent legal domestic limits;32 and jurisprudence which contradictory on the link between finance and human rights.33

More precisely, neglecting to use a macro approach to interpret the causal link between finance and massive human rights abuses is due to three fundamental reasons. Firstly, the interpretation required by legal theory i.e. that funds play a lethal and/or micro role when contributing to human rights violations.34 Secondly, the incomplete understanding of the relationship between human rights and finance.35 Thirdly, the heavy political weight of the financial sector in modern political processes that inhibits further institutional and legal developments in this field. These three factors are complementary. The use of the traditional notion of causal link does not create incentives for a broader legal interpretation of the links between finance and gross violations of human rights, and the poor understanding of the economic dimension of human rights reinforces the need to maintain this traditional causal link approach. The political weight of the financial sector reinforces this inertia.

However, recent civil lawsuits based on responsibility for financing criminal regimes36 have challenged this trend of giving little practical and legal relevance to the macro dimension of the financing of gross violations of human rights. Victims are demanding to know more about how lending can affect human rights and they propose new perspectives to understand this link.37 This means a broad analysis of not only the economic, financial and budgetary aspects of a particular regime, but also the political and institutional dimensions of these processes of committing mass crimes. The impact of financial assistance on military expenditure is a key and represents the last link in the chain of causality that this approach proposes.

In the particular case of Argentina, victims of the dictatorship (1976-1983) elaborated a macro analysis of the economic, financial, monetary, budgetary, political and institutional situation during the dictatorship in their recent claim against those banks that financed the military junta.38 Within this analysis, they incorporated the role of the massive loans received by the military government and the impact they had on the national economy and more specifically on military bureaucracy, effectively on the efficiency in which human rights violations could be carried out.39 Interestingly, Rafael Videla, one of the last infamous Argentinean dictators, in a recent interview highlighted the macro role of the foreign loans that the regime received at that time,

In the economic realm we have also improved, even when we faced inflation risks that I will not hide nor deny. But we did gain trust from abroad, especially through loans to Argentina in order to renovate the productive apparatus of the country that was being seriously neglected.40

Prof. Antonio Cassese was arguably the precursor of this approach. In 1977 he was appointed as Special Rapporteur of the United Nations Commission on Human Rights with the specific mandate of assessing the link between financial assistance received at that moment by the Pinochet regime and the human rights violations suffered by the Chilean population under this military government. His 260-page report explains in great depth and detail the political, institutional, economic, budgetary, fiscal and concrete financial conditions of Chile, and how this helps to understand how financial assistance contributed to the committing of the crimes.41

The report of the Truth and Reconciliation Commission of South Africa (TRC) –albeit in a limited way-42 tackled the role of banks during apartheid, describing a range of situations (financial contributions) in which they were involved.43 The report did not focus on particular loans but analyzed the global role and impact of the services provided by the banks. The report also highlighted that the banks benefited from being able to charge higher rates since the regime was under international sanctions.

The banks played a central role in marketing South African gold, building infrastructure and helping the government during the financial crisis in the 80s.44 The report did not enter into a casuistic study of individual loans but remained at a global level to understand the link between finance and human rights violations. When in 2002 victims of the apartheid regime sued several corporations in the US courts (among them banks) that had contributed to this regime, they refined this approach linking financial assistance, macroeconomic ratios of the country, and general and military budgets.45

The necessity of employing not only a micro but also a macro approach when analysing finance and gross violations of human rights is a methodological thesis. Knowing more about how lenders’ actions impacted on the structures, systems and processes that produced massive crimes will allow us to understand better how this link works in practice, as section 3 explains. The legal implications of this link, particularly in a context of transitional justice, are elaborated in section 5.

3. Some Salient Financial Features of Large-Scale and Gross Human Rights Violations: Rational Choices

In the context of a regime46 that massively and systematically violate human rights, democratic deliberation is –by definition– denied, repressed, silenced. In a way, there are few certainties in terms of the way in which the regime will behave: it will try to remain in power to secure privileges for the elites and/or the military,47 whether allocating economic benefits (denying them if convenient) or political freedoms (killing if necessary). In authoritarian regimes there is a trade-off between loyalty and repression48 and a broad range of economic, social, cultural, civil and political rights fall victim of these choices.

Do dictators try to buy loyalties or repress? It is complex to answer. A variety of factors interact at this point. Firstly, it depends on the nature of the regime and its capacity to incorporate social demands and create institutions.49 Secondly, poor economic performance, recession, inflation and currency collapses obviously diminish the bargaining power of dictators, eroding their ability to get public support through the provision of benefits.50 These economic benefits can consist of transfer, subsidies, tariff protections, regulations that guarantee profits, employment and consumption.51 An authoritarian government facing a fiscal retrenchment may try granting certain political and civil liberties in order to secure short-term political support.52 It could instead increase repression to contain growing social protests. Thirdly, both welfare expenditures and political rights seem to be decreasing in response to an increase in the repressive capacity of the regime (generally reflected in military expenditures),53 suggesting that autocratic regimes with larger militaries will rely less on either economic benefits or political openings to secure political support.54 As seen, rational choices of dictators are not limited to personal consumption versus public investment.55

Public finance and military expenditure, as this probably has an effect in terms of human rights violations, should be part of this analysis. The budgetary and bureaucratic apparatus will reflect, to some extent, the regime’s repressive capacity and policy. One of the specific sectors in which this particular function will become evident is military expenditures. The loyalty of the military and its monopoly of force in order to repress opponents represent a dictator’s highest priority56 (the military sector could take action against a non democratic regime in order to create its own dictatorship).57 This is why it is so common to see among the figures that dictators globally increase military budgets and compensate military officers well.58 This budgetary dynamic is exacerbated since violence plays an important role in rent-seeking; therefore the military enjoy a comparative advantage and will dominate political competition for rents and resource allocation.59

It is reasonable to expect that contributing to the regular and efficient functioning of a regime that perpetrates gross human rights violations will help it to reach its main characterising feature: committing certain crimes in line with the political objectives of the organisation. Contrary to generalised understanding that an intrinsic link must exist between funds and the crimes, when the Military Tribunal of Nuremberg judged whether some German industrialists that had donated money to the Schutzstaffel (“SS”) were responsible for this act, and even when there was no direct evidence that this same money had been directly used for criminal activities,60 it found them guilty because:

it remains clear from the evidence that each of them gave to Himmler, the Reich Leader SS, a blank check. His criminal organization was maintained and we have no doubt that some of this money went to its maintenance. It seems to be immaterial whether it was spent on salaries or for lethal gas.61

Even when in another case the Military Tribunal of Nuremberg interpreted that financing the Nazi regime was not an international crime in 1945, it affirmed the notion that loans could indeed have contributed to the committing of crimes.62 The Nazi machinery is a good example, showing how massive campaigns of gross human rights abuses need access to huge financial resources in order to attain their ultimate goals. Without these financial means the German government would probably have been unable to prolong the war until 1945 or develop the infrastructure to efficiently murder millions of people in several countries at the same time.63

The idea behind this fundamental claim consists of financial constraints contributing to reducing the capacity of regimes to systematically perpetrate the crimes and limit opposition movements and democratic transition.64 When the UN Security Council decided in 1992 that no State should make any funds available to the authorities or any commercial, industrial or public utility undertaking in the Federal Republic of Yugoslavia and shall prevent any person within their own territories from making these funds available (except payments exclusively for medical or humanitarian purposes and foodstuffs), it did so in an attempt to stop the massacre taking place at that time.65 The same can be said regarding the decisions taken by several countries of not lending to the Pinochet regime because of its human rights records,66 and the US official decision of not granting financial assistance to the Argentinean, Ethiopian and Uruguayan military governments.67

Of course, there are cases in which foreign (including financial) investments can actually benefit the needy people or promote the virtuous circle of growth and democratisation,68 fostering greater respect of civil and political rights.69 On the other hand, even when the effectiveness of international sanctions is still under heated debate,70 there are many cases in which these sanctions limiting foreign investments contribute to a reduction in repression within the regime.71 Finally, these sanctions could push the ruler to increase spending to benefit their core support groups and/or his level of repression.72 All these typologies encourage rather than dissuade looking at the actual and foreseeable effects of the loans on the human right situation of a certain country.

tab1

Every case has to be separately assessed and every lender should behave respecting the basic rules on due diligence in order to understand the likely consequences of its own behavior.73 When financial assistance would predictable contribute to strengthening the regime74 and perpetrating crimes, lenders should refrain from doing so.75 This would presumably lead the country to lower levels of human rights abuses compared to what the regime could have done with those funds.

If under particular conditions the loan granted to a regime can foreseeably contribute to improving the human rights situation, this should of course be accepted and indeed stimulated (for example, humanitarian grants). However, even in cases in which funds effectively reach the needy people, broader analyses on the impact of this financial assistance are nevertheless necessary.

Firstly, because in the case that a beneficial use of the money could be proved, this could also free up funds that can be spent for harmful purposes.76 Secondly, when funds are effectively spent on social programs or other beneficial expenditures, this can help to contain social and political protest and resistance, thus prolonging the survival of the regime.77 More funds may temporarily provide more fiscal space for dictators so they rely more on buying loyalties and less on repressing. In fact, when dictators take into consideration the preferences of outside groups who have their own financial and budgetary priorities, they will probably win some social and political support which at the same time will help them to reach their primary goal: to survive in power and carry out his plans.78 This is the so-called authoritarian bargain, an implicit arrangement between ruling elites and citizens whereby citizens relinquish political freedom in exchange for public goods.79 The problem here is that more financial assistance usually makes the lives of dictatorships’ longer80 with all the suffering that this entails.

The same could be argued regarding debt reliefs or bailouts granted to countries with poor human rights records. The effect of decreasing the debt or providing fresh funds can consist not only of reducing poverty but also freeing up funds for criminal purposes or helping to prolong the regime. This is why holistic considerations for human rights impacts of debt relief should be incorporated into the ex ante assessments that these creditors should make.81

Econometric studies82 on the effects of economic assistance to a regime usually overlook one fundamental variable. The country can be considered creditworthy by showing some macroeconomic indicators as under control but reached thanks to redistribution of income unfavorable for the vast majority of the population, cheap labor and absence of social unrest. Without suppression of civil and political rights authoritarian governments could barely impose and enforce economic and social policies that deeply and continuously disadvantage the interests and needs of the less privileged strata. Foreign investors can be invited to translate these transgressions of human rights into increased profitability. Economic assistance can contribute to the perpetuation of human rights abuses, and such abuses, in turn, might bring about the necessary conditions to attract and obtain economic assistance.83 Granting financial assistance to such regimes might foster this circle.

The case of cutting loans leading to destabilisation of the regime but increasing its repression is more complex as it requires measuring disadvantages and benefits. This could cause more repression because of opposition due to financial troubles.84 However, at the same time, these financial troubles can- to a certain extent-lead to less repression because of the reduced financial capacity of the state to operate a criminal and military apparatus, they reduce the dictator’s expectations about the medium and long term sustainability of his political project, and they can ultimately shorten the political life of the regime due to its inability to find a sustainable equilibrium between loyalty and repression.85 In sum, the negative or positive impact of refraining from lending to this regime will depend on this calculation.

There is no contradiction between responsibility for complicity and the idea that continuing business relationships could improve the human rights record of the host country (constructive economic engagement):86 it always depends on the concrete scenario, the objective of the loans and the measures taken to ensure that the funds effectively benefit the needy people and not the regime.87 Antonio Cassese explained this point in his report on the financial contribution to the Pinochet regime: financial assistance can have a positive or negative impact in the human rights situation of any given country depending on the concrete circumstances.88 Loans with the precise objective of building houses for the poorest will less likely have negative impacts than loans granted for general spending needs. It is worth noting here the similarities between this approach and the discussion around if and how financial aid promotes economic and social development.89

The amount, type, objective and date of the loans, human rights conditionalities,90 post-disbursement monitoring, the severity and public character of the crimes, the nature of the authoritarian regime,91 as well as the actions taken by international organizations, governments and NGOs will affect the calculation of likelihood of contributing to the perpetration of the crimes through financing.

As mentioned earlier when elaborating on odious debts, fungibility of the money does not mean that loans do not ever contribute to the perpetration of crimes.92 On the contrary, and as it has been recognized in the frame of responsibility for financing terrorism,93 financial support can be critical to the success of large-scale campaigns of human rights abuses.94

Fungibility of the money is not tantamount to neutrality (almost every commodity is fungible – even Zyklon B-95). Money is not neutral and even less always beneficial in the context of a sovereign borrower that massively violates jus cogens norms.96 As it was stated in the context of financial state complicity,

It is also conceivable that the provision of funds pure and simple may constitute aid or assistance. While it is most certainly difficult to establish any form of specific causality between the grating of a certain amount and a specific internationally wrongful act, it would provide states with a very tempting loophole if they could avoid responsibility for complicity simply by resorting to cash flows instead of providing material aid in the traditional sense.97

Whether the money was given and spent on directly financing the crimes (for example, funding death squadrons98 and death camps,99 or transactions to buy weapons to repress the population),100 to add financial resources generally available to the government (contributing to making the regime politically stronger or extending its life),101 to directly benefit needy people, and even when reaching these needy people impairing the overall human rights situation, are all questions which a combined micro and macro analysis of the situation of the borrower country and the lenders’ behavior could help to answer.

4. Responsibility for Financial Complicity

As private corporations, individuals, international financial institutions (IFIs) and States can provide financial assistance to states, legal particularities of each of those lenders will be specially studied in this section.

One of the legal notions that gradually and relentlessly brings the question of how to interpret and deal with the economic dimension of past gross violations of human rights is the so-called corporate responsibility for complicity.102 In order to obtain compensation for damages, victims have been filing civil complaints against corporations (more than forty to date).103 Its origins can be traced back to the jurisprudence of the Nuremberg Military Tribunal.104

The legal foundation of this responsibility is based on a long and robust list of international instruments105 that prohibit complicity without paying much attention to whether the accomplice is a human being or a legal entity, be it private or State. Being clear that the state is the first perpetrator of human rights violations, the accomplice must be someone else (beyond the case of another State’s complicity), dispelling doubts on whether or not human rights conventions cover non-State actors when dealing with complicity.106

When specifically applied to a context of violations of jus cogens norms, the principle that prohibits complicity is also crystallised in customary international law as not only proven by the conventions just mentioned but also by international and national courts and national legislations.107

International jurisprudence has applied the notion of responsibility for complicity to those persons who contributed to the perpetration of the crimes.108 As regards responsibility of corporations as legal entities, it has been recognized that they bear some fundamental international obligations, even when international sanctions have been applied to (individual) managers because international criminal tribunals do not usually have jurisdiction (ratione personae) over those private legal entities.109 This jurisdictional issue does not exempt corporations from the negative international obligation of not contributing to serious human rights violations.110

The fact that corporations are not States neither means that they are not subject to certain international obligations,111 specifically when financially112 connected to activities that violate jus cogens norms.113 The idea that corporations can constitute an effective, profitable and unpunishable means of violating peremptory norms could never be accepted by the international system of human rights protection.114 In the same vein, it is worth recalling that customary international law has been understood to give rise not only to criminal but also civil remedies.115

Acknowledging that corporate responsibility for complicity is secondary (contributory) – unless the accomplice shared state coercive power with the criminal116 – does not dilute nor dissimulate the growing power of private enterprises: according to the law they can be held responsible for complicity.

This can occur if the corporate action had a substantial effect in enabling, facilitating or improving the efficiency of human rights violations. This contribution can consist of any kind of commodity, including transportation, logistics, supplying of goods, technological services and financial aid.117 The criterion used in international law to legally connect cause and effect for compensation purposes merged an objective and a subjective standard.118 On the one hand, the loss has to be the normal and natural consequence of the act (proximate cause); and on the other hand, any reasonable person would or should have foreseen this consequence (reasonable foreseeability).119 The proximity of the corporation and its activity to the perpetrator of the crimes will determine how likely it was to have had a substantial effect on the chain of causality. The type of financing, its volume and duration, and the frequency of the relationship, among other factors, will determine this level of causal proximity.120

As regards the mental state required by this responsibility, there is controversy as to whether the accomplice must have knowledge of the impact of his behavior, or in addition the intent to provoke such effect.121 In general, international statutes and jurisprudence122 accept the knowledge test, the Rome Statute of the International Criminal Court seems to accept the purpose test to a limited extent,123 while the American jurisprudence is contradictory.124 The due diligence obligation to assess the impact of the loans granted by lenders seems to be gaining international support in terms of how to evaluate lenders’ behavior,125 which means that serious negligence could be used as indirect evidence to prove the dolus of the collaborator as he knew or should have known that its conduct was likely to help cause the abuses.126 Due diligence standards help to understand the mental state of lenders in terms of complicity.127

As there is no globally centralized alarm system agreed to date,128 lenders should at least read the fact-finding investigations prepared by UN and regional human rights organisations regarding the concrete human rights records of the potential sovereign borrower. These reports will determine the due diligence process that lenders should follow in order to minimize the possibilities of being held responsible. Lenders should ensure that continuing to finance a repressive government will not impair the human rights situation further.129

When we focus on bondholders instead of banks, the situation seems to be more complex. Bondholders are an extremely heterogeneous group with diverse structures and financial goals. The main differentiation between institutional130 and non-institutional bondholders is necessary. The first enjoy expertise, sophisticated resources to assess risk and huge amounts of capital to invest. On the other hand, non-institutional bondholders are usually laymen with neither the experience nor resources to interpret geopolitical scenarios and (individually) with limited capital to invest in bonds. These features explain why the relationship between the amount of the bond purchased, the technical expertise and the economic size of the investor and its investments is usually proportional. At the same time, these variables determine the due diligence standards that must be followed by bondholders when dealing with criminal regimes. Essentially, institutional bondholders are more in a position to break due diligence duties, present the mental state required by law to be held responsible, and substantially contribute to criminal regimes.

Of course, a casuistic analysis is always necessary. A large non-institutional investor (a typical hedge fund) could present the majority of institutions investors’ features mentioned in the last paragraph. In this case, its responsibility could also be considered. Similarly, as individuals can also be held responsible for contributing to human rights violations131 and in fact buy sovereign bonds, these bondholders can theoretically be responsible for financially contributing to authoritarian regimes providing that requirements on actus reus, causal link and mens rea are duly proved.

As international responsibility is not tantamount to jurisdiction nor mechanisms to implement it;132 domestic laws133 must recognise, incorporate and define the concrete implications of certain principles of public international law.134 The relevant principle here establishes responsibility for contributing to serious violations of human rights.135 Comparative legal analyses are, evidently, of great importance in this area.136 Argentina, Australia, Canada, Chile, France, India, Japan, the United Kingdom and the United States all have norms recognising civil responsibility for complicity.137

Due to the magnetic extraterritorial effects of the US Alien Tort Claims Act (ATCA), American courts are the most active in terms of litigation of cases for corporate complicity.138 Even when heated discussions related to mental state are continuing in American courts,139 there is a broad consensus that corporations should respect some international and/or domestic standards140 to avoid violating or contributing to the violation of fundamental human rights.141

Not only private but also official lenders can (and do indeed) contribute to a criminal regime.142 Regarding IFIs, they are responsible for their wrongful acts attributed to those organisations and constituting a breach of an international obligation.143 While it is true that the World Bank144 and –far less explicitly-the IMF145 are statutorily prevented from making political considerations, it is difficult to argue that violating fundamental human rights can be part of the domestic political affairs of countries (Art. 2(7) UN Charter) and that these rights are only due to individuals but not to the international community.146

Even when this interpretation is rejected and gross violations of human rights violations are considered a core part of the countries’ sovereignty, when deciding whether or not a loan must be approved,147

violation of political rights may…reach such proportions as to become a Bank concern, either due to significant direct economic effects or if it results in international obligations relevant to the Bank, such as those mandated by binding decisions of the UN Security Council.148

However, what are these relevant international obligations that must be considered when granting a multilateral loan? The IMF and the World Bank are specialised agencies of the UN,149 and consequently they are required to act in conformity with the UN Charter;150 but more importantly, as international organisations they are clearly subject to international law,151 and therefore must not violate customary international law.152

IFIs are under obligation not to violate or become complicit in the violation of general rules of human rights law.153 More specifically, IFIs can be held responsible for financing violations of jus cogens norms. This hierarchical application of jus cogens norms avoids entering into endless discussion154 over whether gross violations of human rights have a direct and obvious economic effect, so their consideration would be formally included in the IFIs’ mandates.155

Far from being a purely theoretical discussion, the legal status of the norms applied to IFIs has provoked serious controversies between the World Bank and the UN. In the 1960’s the UN General Assembly fruitlessly requested that the World Bank refrain from lending to South Africa and Portugal because of their poor political human rights records.156

Even when recognising that international agreements should not derogate from peremptory norms, the official argument seems to indicate that a loan agreement to a country which violates human rights does not itself violate any human rights rule. On the contrary, if properly targeted (as explained in section 3) this loan could alleviate the suffering of the population.157

While this is possible, the opposite can also occur: multilateral loans do not help needy people but reinforce the regime, as the Cassese Report demonstrated in the case of Pinochet’s regime.158 In these instances, multilateral banks not only provide direct financial assistance to repressive governments but they also facilitate their access to more sizable amounts of private capital, which help governments to withstand international economic pressures from other countries and public interest concerns, designed precisely to compel them to implement human rights reforms.159

The conclusion is that no general presumptions are valid here. A serious and casuistic assessment of the potential effects of loans has to be made in every case. In particular, the specific objective of the contract and the special measures designed and taken to ensure that the loans will benefit needy people will be crucial when evaluating their likely impact on the borrower’s situation.

When we focus on State responsibility for complicity in international law, as a derivation of the State’s duty to provide reparation to individual victims,160 a State can indeed be held responsible for its assistance to an internationally wrongful act of another State.161 This kind of derivative responsibility is recognised by the ‘Articles on Responsibility of States for Internationally Wrongful Acts’ elaborated by the International Law Commission (ILC) in 2001. States which aid or assist another State in its perpetration of an internationally wrongful act are internationally responsible (Article 16). This rule has also been recognized as customary international law.162

In the commentaries to the ILC Articles, it was explicitly considered that situations of complicity arise where a State voluntarily assists or aids another State in carrying out conduct which violates the international obligations of the latter, for example, by knowingly providing an essential facility or financing the activity in question. This can happen when a State assists another State to circumvent sanctions imposed by the Security Council163 or provides material aid to a State that uses it to commit human rights violations.164 There should be a nexus between the contribution and the wrongful act.165

This same Article 16 requires the state to be aware of the circumstances in which its aid or assistance is intended to be used by the other State, with the view of facilitating the commission of the act.166 However, this cognitive requirement should not allow states to deny their responsibly for complicity in situations where internationally wrongful acts are manifestly being committed.167 In the particular situation of serious breaches of obligations under peremptory norms, Articles 40 and 41 of the ILC Draft are indeed much stricter: a State shall not render aid or assistance in maintaining this wrongful situation without requiring any particular subjective element.168 This limited scope for responsibility for state complicity does not seem to discourage the typically beneficial form of inter-state cooperation.

The US implemented these legal notions when it incorporated within its legal framework for bilateral assistance the prohibition of providing economic aid to governments engaged in a consistent pattern of gross violations of internationally recognized rights, unless such assistance would directly benefit the needy people of the country in question.169 At the regional level, the European Community adopted the so-called ‘Uganda Guidelines’ in 1977, stipulating that development assistance under the Lomé Convention170 should not contribute to the serious and continuing human rights abuses in Uganda.171 These guidelines were the first step toward EC and later EU policy in requiring the infusion of human rights conditionality clauses into external agreements with third states and organizations.172

States are not allowed to deploy IFIs to violate international law when they cannot do so in their capacity as individual States: delegation cannot be used to avoid responsibility.173 Here another American norm is worth highlighting in order to understand this specific responsibility: US congress ordered American representatives in multilateral and development banks to vote against the provision of loans for countries known to be violating fundamental rights of its citizens.174

The macro approach used to understand both the link between finance and human rights and the breach of due diligence duties, when applied to the specific case of the lender’s responsibility in a context of gross and massive atrocities, requires collecting and interpreting information about structures, processes and dynamics of the criminal regime that borrowed the funds.

A number of variables should be assessed, amongst others, the internal and external political context, specifically the political role of the military forces; the seriousness and volume of the human rights abuses; public knowledge about them; denunciations by international organisations, other States and NGOs; features and performance of the national economy; monetary, trade and financial policies adopted by the government, international financial context; volume, date, frequency, goal, post-disbursement monitoring, and other relevant contractual conditions of the loans, nature of the lenders; impact of the loans on the national economy and the bureaucratic apparatus; general evolution of the national budget; and evolution of military expenditures, particularly those related to domestic security.

This exercise has been carried out in the cases of Argentina, Brazil, Chile and Uruguay. The academic usefulness of these four countries lies in the fact that they underwent dictatorships that perpetrated gross violations of human rights compromising ius cogens norms, these dictatorships were publicly and widely denounced, an economically decisive role was played by lenders, these cases offer accessible data on the massive capital inflows received through public debt and on increasing military expenditure, the US and other countries denied those military regimes financial assistance precisely because of their human rights record; and the ongoing criminal trials against the dictators and other transitional justice mechanisms.175

5. Financial Complicity and Transitional Justice Mechanisms

How is this responsibility for financial complicity connected to transitional justice? The general historical feature of human rights law focusing on State accountability and criminal responsibility has been reflected in the transitional justice legal framework that has marginalised the economic dimension of past atrocities.176

For example, truth commissions have occasionally incorporated some economic considerations,177 but with the exception of the cases of El Salvador, Chad and South Africa,178 they have mainly addressed economic crimes as plunder and corruption,179 not as acts that facilitated or fueled human rights violations.

Challenging this approach, we saw in the last section that -specifically for financial contributors- the law seems to offer a fairly simple and straigthforward answer: economic accomplices of gross violations of human rights are to be held responsible.

The transitional justice legal framework is a merge of regimes including domestic criminal law, international criminal law, human rights law and humanitarian law.180 For this reason, turning to the legal reasoning offered by the responsibility for complicity not only contributes to attaining transitional justice goals (see Introduction) but is also technically correct. This reinforces the coherence that different transitional mechanisms must present among them.181

According to the United Nations, one of the guiding principles in the field of transitional justice is to ‘take account of the political context when designing and implementing transitional justice processes and mechanisms’.182 This reflects the permanent concern related to the way in which transitional justice mechanisms might affect peace and stability of the country that is trying to build a new system in which democracy and respect for human rights are its pillars.

The operational way to face this challenge is to recognise that transitional justice requires flexibility in order to find the proper legal solution in each complex political scenario.183 Flexibility means understanding and taking very seriously the strategic role and power of each actor in the country’s political life. While making very clear what cannot be disregarded when negotiating,184 a sense of political realism is critical to succeed.

Flexibility not only offers this space to help to balance justice and peace in a concrete context, but it also contributes to designing the best way to adjust transitional justice measures to the legal, political and economic implications of the actual lenders’ behaviors. More specifically, norms applied to responsibility for complicity should be distinguished from but also interpreted within the transitional justice legal framework when this is the case.

Supposing that the causal link, mens rea or actus reus elements are present in a case of financial complicity in a context of transitional justice, victims could sue those lenders in order to claim compensation according to the legal arguments explained in section 4.

However, there will be cases in which the legal requirements of civil responsibility are not perfectly fulfilled and these cases can still prove relevant within the transitional justice framework (particularly in terms of truth and memory). This assumes, of course, that in particular the causal link required by civil responsibility is different (more evident) from what is required by the transitional justice framework in which moral, political and narrative considerations play a broader role.

Inversely, when a strong legal argument could theoretically be made against lenders, political and economic constraints of a transitional country could recommend using other tools to hold those financial institutions accountable,185 such us those focusing on truth and memory rather than compensation. Even when empirical studies show that this concern is not always well-founded,186 it is important to keep in mind that demanding some kind of accountability from international financial actors could have a certain impact on the country’s ability to secure future financial support. Decisions about the scope of these mechanisms (who is involved and how) and timing will probably affect the political and economic prospects of the country. Flexibility here is key to effectively reach the ultimate goals of transitional justice.

The role of lenders in contributing to crimes should be adequately integrated in the transitional justice framework and channeled through an array of complementary instruments.187 The first tool available is a truth commission thematically investigating188 and officially acknowledging how lenders behaved and the effects of their financial assistance, as did the Cassese Report regarding the financial assistance received by Pinochet’s regime.189 This task of truth commissions indeed helps to attain the procedural principle of comprehensiveness that demands a complete portrait of the abuses.190

Civil claims against financial accomplices in order to know the truth and seek financial reparation could be possible according to the circumstances of each case as explained above. Monetary relief for violations could provide justice on different levels.191 These kinds of multi-party cases can be treated by courts with standardized criterion192 when this is appropriate, and when it facilitates decisions and compensations. This criterion was applied with the compensation funds created in American courts for the victims of the holocaust in the cases against European banks that helped the Nazi regime.193

If economic responsibility does not proceed in courts, or it is simply not desirable from a realpolitik (financial) perspective of the transitional country, a claim whose objective is exclusively to know the details (truth) on how the loans helped the regime could still be a possibility. In criminal trials against the very perpetrators of the crimes, it is also possible to incorporate investigations on the details related to the financial environment that made those crimes possible, as attempted by the prosecutors in the Military Tribunal of Nuremberg.194 As truth commissions’ reports, these judicial decisions can also be authoritative records of complicities.

Reconciling bonds can be offered to accomplices and beneficiaries of the older regime in order to contribute to fostering the country’s development and financial compensations for the victims.195 Lenders can also be asked to contribute symbolically to reparation funds. However, unless these proposals are discussed and implemented during a period of massive social support for reconciliation and reparation, economic and strictly voluntary instruments seem to be toothless, as the South African experience showed, where these same recommendations made by the TRC were blatantly ignored.196

Discussions around the validity of debts contracted during the period in which the criminal regime was in power197 can also contribute to attaining some of the goals of transitional justice. Emphasising the connections between odious debts and past wrongs and injustices through repudiation may provide moral and political redress.198 It could also free up considerable resources that the State in transition might need to strengthen the new democracy.199

In terms of memory, lenders’ role should be properly present in memorials, as the “External Debt Museum” of Argentina200 currently does with its permanent exhibition. Their historical economic role should also be incorporated in educational programs, specifically in history education.201 It is also possible to reform regulatory laws in order to discourage future financial complicit behaviors. For example, incorporating rules on nullity of financial obligations contracted by the state during authoritarian regimes into national civil law, provided certain objective characteristics are present, but without any further evidence regarding the mental State of the lender (strict liability).

Also enacting vetting processes aimed at screening public employees or candidates for public employment to determine whether their participation (as private or State officials) in those transactions warrants their exclusion from public institutions.202 Another possibility would be to preclude financial accomplices from doing business in the transitional State.

At the international level, if financial investments are indeed protected by bilateral investment treaties,203 these norms should incorporate a clause204 warning lenders that loans strengthening the host regime and facilitating human rights abuses will not be legally protected by these same treaties.205 Soft law instruments regulating financial activities, such as Equator Principles, could also elaborate on specific due diligence procedures and standards when dealing with human rights violations. In a transitional context, such norms could reinforce the idea of prevention and provide clearer standards for assessing financial actors’ accountability.

Regarding possible limitations in terms of enforceability of transitional justice measures when dealing with financial accomplices, private lenders can be sued in the courts of the country in which the contribution took effect. Through extraterritorially invoking the ATCA, victims that have not found responses in their own countries have been suing corporations in American courts.206 Economic and sovereign costs and disrupting effects over the US foreign policy of these litigations207 have frequently been overstated.208

In terms of the investigative scope of truth commissions, there is no limitation within the analysis of the facts related to past abuses included in their mandates, which perfectly, even implicitly, take into account accomplices’ roles. Subpoena powers to testify, and compelling the production of documents or other objects that are relevant are two points that should be included explicitly in the truth commissions’ mandates embracing potential economic accomplices, including corporations.209 It would nevertheless be interesting to see if the ATCA can be invoked in American courts, not to seek reparations but exclusively to reveal the truth surrounding certain corporate behavior and its impact in terms of violations of human rights.

When dealing with the odiousness of sovereign debts contracted during the authoritarian regime, the forum to adjudicate or settle claims on this particularity will vary depending on the concrete context. They might be raised in bilateral or multilateral negotiations on debt relief, or they could be adjudicated in the context of arbitration or domestic litigation.210

Dealing with multilateral financial institutions seems to be more complex because they statutorily enjoy jurisdictional immunity211 regarding activities connected to the official functions of these organisations,212 and lending money is indeed their core function. As immunity is not tantamount to impunity,213 here the availability, reasonableness and effectiveness of alternative means (such as the World Bank Inspection Panel)214 has to be assessed by courts in order to accept the immunity.215 A minimum demand should be to conduct an independent and effective investigation of its behavior and publish the results.

Foreign State immunity is as an exception to the overriding principle of adjudicatory jurisdiction. As this exception is based on State sovereignty, and the commission of (and contribution to) crimes under international law are not considered the internal domain of one State, but the concern and responsibility of the international community as a whole,216 State immunity could not be invoked to deny victims’ rights to access to justice in a context of violations of jus cogens norms.217 For this reason a forum State may exercise its right to adjudicatory jurisdiction in order to curtail any excess state immunity privileges that do not emanate from international law, including protection from fundamental human rights violations.218

In any case, IFI and state immunities are relevant only for those mechanisms that require the intervention of a court. If a truth commission decides to investigate the complicit role of an IFI or another State, immunity would not represent a restriction to this task and these same legal entities should cooperate in the search for truth, a right protected by international law. 219

6. Concluding Remarks

This article has tried to deepen understanding of the causal link between finance and gross human rights abuses and refine the relationship between responsibility for financial complicity and transitional justice mechanisms.

To remain in power and carry out a massive campaign of human rights violations a regime has to be capable of facing economic constraints that secure a minimum political support and/or enable the bureaucratic (military particularly) machinery function efficiently in order to control and repress.220 Financial sources are therefore necessary to support this policy for a certain period. In a context of fiscal deficit and poor performance of the national economy, the options for funding are reduced, which render possible financiers even more critical. Ultimately, the State budget must support an effective repressive apparatus, which usually translates into higher expenditure to benefit the military sector in charge of such a task. From a general perspective, while political institutions shape sovereign borrowing,221 lending to sovereigns also shapes their political institutions, including criminal ones.

As money is not innocuous even in a context of a government perpetrating gross violations of human rights, it has to be assessed whether the funds directly finance those crimes, the functioning of the regime, the needy people and, even when effectively reaching these needy people whether these same monies contribute to causing further damage to the overall situation.222 In order to determine lenders’ responsibilities these questions should be answered according to what they could and should have foreseen at the very moment they were lending the funds. Counter-factual arguments about history can help to understand the complexities of a dictatorship and its finance but they cannot replace the technical notion about substantial effect that is required by the causal link to hold an accomplice responsible.

In every concrete case an empirical, interdisciplinary and holistic evaluation should be made to understand the factual dynamics of these financial and criminal structures and processes. Volume, date, frequency, duration and specific conditions of each loan, human rights conditionalities attached to the contracts, the economic, social and political situation of the country, are all factors that should be assessed in a concrete scenario, as the Cassese Report proposed for the Pinochet’s regime.223 This kind of study is absent from almost every transitional process.

Responsibility for financial complicity can provide the actus reus and mens rea standards in order to examine and grasp the legal technicalities of the implications of lending to criminal regimes. Can the financial assistance provided be considered substantial in its connection to the strengthening of the regimen and its human rights abuses? Was the wrongful effect of this assistance reasonably foreseeable?

When this exercise is conducted in a transitional justice framework those implications are indeed complemented and enriched. It can happen that the substantial effect of the loans or the necessary mental state of the lenders–as required by responsibility for complicity-are not duly proven, but it would nevertheless be relevant for accountability processes. Here the right of the victims to know the truth224 could make a huge difference: victims deserve to know every detail on the conditions surrounding the crimes regardless of whether the causal link between the loans and the crimes was close enough to win a compensation claim in court.

As corporations in particular are increasingly examined today (in and out of courts) for their role in historic repressive contexts to which they were connected through their business activities, it seems there is a moral force propelling this process that exceeds the legal implications of corporate complicity. The acceptance of the moral dimension of historic corporate responsibility (acknowledge), an active examination of the past aiming at a positive outcome now or in the future (reconciliation), a transparency about past activities and how they were related to historic injustices (transparency),225 are all elements that go beyond responsibility for complicity but are comprised by the transitional justice universe.

At that point the virtuous circle of truth can be strengthened. Painting a vivid and more complete picture of financial actors’ involvement in gross human rights violations would make this narrative more compelling. Therefore the scope of transitional justice mechanisms and political power to implement them could become broader.

Transitional justice offers a range of mechanisms to deal with financial complicity that go beyond civil responsibility of the lenders or repudiation of their credits. This helps to create a special deterrent effect among official lenders. As they usually lend for the purpose of having policy influence over the borrower rather than making money, purely economic negative consequences do not fully tackle the fundamental rational of official lending.226 Those mechanisms that represent moral sanctions for official lenders become reputational costs that can lead to higher degrees of compliance of international law rules.227

In addition, a better understanding of the link between funds and gross human rights violations can potentially have political implications in international politics. As international law is becoming more and more centered on protecting human beings,228 it is reasonable to expect responsibility for financial complicity to have a say in the discourse of international politics and finance when dealing with violent conflicts.

From a more consequentialist perspective further research is necessary in order to understand the economic and financial challenges that new democratic governments face when they have to decide if and how transitional justice measures should reach financial actors involved in past atrocities. The passive indulgence of the South African government in reading the chapter on banks’ responsibility of the TRC’s report, and its initial explicit opposition to the lawsuit that victims of the apartheid filed in American courts demonstrate that this point is not merely theoretical.229

What are the real financial implications that a country in transition would face if it decides to deal with financial accomplices? They will mainly depend on the scope of the mechanism eventually implemented and the interests of the lender. Holding funders accountable through the truth telling of commissions and memorials will not necessarily scare private lenders but for official ones can represent tough political costs to be absorbed. On the other hand, if measures with a more concrete financial effect are undertaken against financial accomplices -such as compensation claims and debt repudiation-, even when official lenders will surely not remain silent, private lenders would be more minded to financially react in concert.

In any case, if private and/or official financial reprisals were taken by those affected, it is worth recalling that default costs are significant but short lived: they can almost never be detected beyond a few years.230 In addition, it is not an absolute rule that good payers access capital in better conditions than those more problematic ones.231 In a word, even when financial constraints could derive from applying transitional justice measures to those accomplices, it seems that if the interest rate is sufficiently attractive, investors will soon return to the country.232

Lenders can have a particular interest in promoting or accepting measures that aim for an effective reconciliation between victims, governments, clients and public opinion. This is the case of lenders that keep on operating in markets where political stains from the past can have a corrosive economic effect on their current books. From 1995 and for some years after, those banks that contributed to the Nazi regime suffered an extremely harmful public campaign for their past complicity and for putting up resistance against the claims of the Holocaust’s victims.233 This pressure helped to force those banks to settle billionaire compensations for the victims and commit to making a contribution to memorials.234

A complex assessment and balance –including considerations of economic health and external financial dependency of the country, trade-offs between economic development and justice, together with the vocation of bringing justice as far and deep as possible and the understanding of how transitional measures mutually interact- will shape the concrete transitional mechanisms to be implemented by a new democratic government and determine their best sequence. This includes the possibility of using legal and institutional instruments to make financial accomplices accountable for their past behavior. A good sense of timing for expanding transitional justice to financial actors is thus a great virtue in this context.235 Understanding and publicly acknowledging the causal link between finance and human rights abuses is a factor that indeed pushes forward the clock hand of justice.

*) The author wishes to thank Daniel Bradlow, Christian Courtis, Sebastian Elias, Abel Escribà-Folch, Mitu Gulati, Sebastian Hohmann, Robert Howse, Mary Jones-Dowel, Jernej Letnar Černič, Louise Mallinder, Maria Guadalupe Martinez, Sabine Michalowski, Kunibert Raffer, Mariana Rulli and Michael Waibel for comments on drafts of this article and research material. The views and conclusions reflected in this article are solely those of the author and are in no way intended to reflect the views of any of the institutions with which the author is affiliated. Websites cited in this article were last accessed on 29 April 2012.

1) J Barnard-Naude, ‘For Justice and Reconciliation to Come: The TRC Archive, Big Business and the Demand for Material Repara.tions’, in F du Bois, & A du Bois-Pedain (eds), Justice and Reconciliation in Post-Apartheid South Africa (Cambridge UP, 2008) 172.

2) L Arbour, ‘Economic and Social Justice for Societies in Transition’, (2007-8) 40(1) Journal of International Law and Politics 1; L Laplante, ‘Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework’, (2008) 2(3) International Journal of Transitional Justice 331.

3) P Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (Routledge, 2001) 78.

4) See the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, UN Doc. E/1989/89 (1989), Principle 9 requires investigations to be ‘thorough, prompt and impartial.’

5) See generally P de Greiff & R Duthie, Transitional Justice and Development: Making Connection (Social Science Research Council, 2009).

6) J Linz, ‘Totalitarian and Authoritarian Regimes’, in F Greenstein & N Polsby (eds), Handbook of Political Science (Vol. 3, Addison-Wesley, 1975) 175.

7) T Oatley, ‘Political Institutions and Foreign Debt in the Developing World’ (2010) 54(1), International Studies Quarterly 175. For previous studies discussing this issue see G Anderson, ‘Public Finance in Autocratic Process: An Empirical Note’, (1988) 57 Public Choice 25; and E Balkan, & K Greene, ‘On Democracy and Debt’, (1990) 67 Public Choice 201.

8) This is true even when democracy has some advantages in allowing access to capital markets (greater credit-worthiness), K Schultz, & B Weingast, The Democratic Advantage: The Institutional Sources of State Power in International Competition, (Hoover Institution Press, 1996).

9) See generally M Olson, Power and Prosperity: Outgrowing Communist and Capitalist Dictatorships (Basic Books, 2000).

10) Oatley, supra n. 7, at 175.

11) See T Cheng, ‘Renegotiating the Odious Debt Doctrine’, (2007) 70 Law & Contemporary Problems, 12.

12) On the role of natural resource extraction and foreign direct investment in the context of despotic regimes, see C Ochoa, ‘From Odious Debt to Odious Finance: Avoiding the Externalities of a Functional Odious Debt Doctrine’ (2008) 49(1) Harvard International Law Journal 109; L Omgba, ‘On the Duration of Political Power in Africa: The Role of Oil Rents’, (2009) 42(3) Compara.tive Political Studies 416.

13) See Ochoa, ibid. at 109.

14) For definitions on public debt see UNCTAD, ‘Debt and DMFAS Glossary’, July 2000, available at: http://www.unctad.org/en/docs/pogiddmfasm3r3.en.pdf.

15) A Alesina & D Dollar, Who Gives Foreign Aid to Whom and Why?, (National Bureau of Economic Research (NBER) Working Paper No. 6612, 1998) available at: http://www.nber.org/papers/w6612.pdf; J Hanlon, ‘Illegitimate’ Loans: Lenders, Not Borrowers, Are Responsible’ (2006) 27(2) Third World Quarterly 211; V Marmorstein, ‘World Bank Power to Consider Human Rights Factors in Loan Decisions’, (1978-1979) 13Journal of International Law and Economics 115.

16) The preamble of UNCTAD’s Draft Principles on Responsible Sovereign Lending and Borrowing states: ‘Sovereign lending and borrowing are intrinsically linked to the feasibility of the Millennium Development Goals’, UNCTAD, (May 2011), available at: http://www.unctad.org/en/docs//gdsddf2011misc1_en.pdf. See also the Draft General Guidelines on Foreign Debt and Human Rights elaborated in 2008 for the UN High Commission for Human Rights by Independent Expert Bernards Mudho and more recently (2011) the report elaborated by Independent Expert Cephas Lumina, available at: http://www2.ohchr.org/english/issues/development/debt/index.htm.

17) These situations are the legacy ‘of widespread or systematic human rights abuses as the move from repression or civil war to a more just, democratic or peaceful order,’ F Haldemann, ‘Another Kind of Justice: Transitional Justice as Recognition’, (2008) 41 (2) Cornell International Law Journal 676.

18) M Dowell-Jones & D Kinley, ‘Minding the Gap: Global Finance and Human Rights’, (2011) 25(2) Ethics and International Affairs 187.

19)South African Apartheid Litigation, 617 F. Supp. 2d 228, 269 (S.D.N.Y. 2009), requiring that corporate complicity depends on the inherence of the resources provided to the principal concluding that ‘supplying a violator of the law of nations with funds –even funds that could not have been obtained but for those loans-is not sufficiently connected to the primary violation to fulfill the actus reus requirement of aiding and abetting a violation of the law of nations.’

20) E Reichard, ‘Catching the Money Train: Using the Alien Tort Claims Act to Hold Private Banks Liable for Human Rights Abuses’, (2005) 36(1) Case Western Reserve Journal of International Law 270.

21) Secretariat of the United Nations, Note Verbale of 21 October 2011 on ‘Human Rights Due Diligence Policy on UN Support to Non-UN Security Forces’ (New York, on file with author).

22) This Commission did not address the role of international actors except for describing how the US government ‘tolerated, and apparently paid little official heed to’ a group of Salvadoran exiles in Florida, who ‘directly financed and indirectly helped run certain death squads’ in El Salvador between 1979-1983, see the Commission on the Truth for El Salvador, ‘From Madness to Hope: The 12-Year War in El Salvador: Report of the Commission on the Truth for El Salvador’, (1993) 137, available at: http://www.usip.org/files/file/ElSalvador-Report.pdf.

23) Describing how the Directorate of Documentation and Security (DDS), the political police, was actively provided with financial, material, and technical support from several foreign countries, see ‘Commission of Inquiry on the Crimes and Misappropriations Committed by the ex-President Habré, his Accomplices and/or Accessories, Final Report’, (1992), 64, available at: http://www.usip.org/files/file/resources/collections/commissions/Chad-Report.pdf.

26) See generally on this approach, T Pogge, World Poverty and Human Rights (Polity Press, 2002); M Drumbl, Atrocity, Punishment and International Law (Cambridge UP, 2007).

27) On the apportioning of responsibility among accomplices, and between accomplices and perpetrators, see R Alford, ‘Apportioning Responsibility among Joint Tortfeasors for International Law Violations’, (2011) 38 Pepperdine Law Review 233.

28) R Roca & F Manta, Values Added. The Challenge of Integrating Human Rights into the Financial Sector, (Danish Institute for Human Rights, 2010) 6, available at: www.humanrights business.org/files/1572070141/file/values_added_report__dihr.pdf.

29) B Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge Grotius Publications Limited, 1987) 251.

30) J Pitts III, ‘Corporate Social Responsibility: Current Status and Future Evolution’, (2009) 6 Rutgers Journal of Law & Public Policy 361.

31) P Muchlinski, Multinational Enterprises and the Law, (OUP, 2007) 81.

32) Some national systems do a better job that others in addressing corporate human rights violations, see J Černič, Human Rights Law and Business, (Europa Law Publishing, 2010) 33-9.

33)Almog v Arab Bank, 471F.Supp.2d 257 (E.D.N.Y. 2007); Boim v Holy Land Found for Relief and Development, 549 F.3d 685 (7th Cir. 2008); Mastafa v Australian Wheat Bd., Ltd., (S.D.N.Y. September 11 2007); South African Apartheid Litigation, 617 F. Supp. 2d 228, 257 (S.D.N.Y. 2009); US v Weizsaecker (Ministries case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, No. 14 (1952), 621-622; US v Flick (Flick case), Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, No. 10 (1952), 1.

34) See South African Apartheid Litigation, 617 F. Supp. 2d 228, 257 (S.D.N.Y. 2009).

35)See generally M Dowell-Jones, Contextualizing the International Covenant on Economic, Social and Cultural Rights: Assessing the Economic Deficit (Martinus Nijhoff, 2004).

36)Ibanez Manuel Leandro y otros casos/Diligencia Preliminar, Juzgado Nacional de 1º Instancia en lo Civil 34., Buenos Aires, No. 95.019/2009; Garramone, Andrés c. Citibank NA y otros, 2010, Juzgado Nacional en lo Contencioso Administrativo Federal N° 8, Buenos Aires, No. 47736/10.

37) ‘I want to know who gave the money to the military junta that ruled a bankrupted country but it could pay the salaries to the murders of my parents and buy the machines to torture them’, said one the victims of the Argentinean dictatorship who is suing the banks that financed it, ‘Los prestamistas de la muerte’, Página 12, 21 June 2011, available at: http://www.pagina12.com.ar/diario/elpais/1-121607-2009-03-16.html.

38) Ibid.

39) ‘Los prestamistas de la muerte’, Página 12, 21 June 2011, available at: http://www.pagina12.com.ar/diario/elpais/1-121607-2009-03-16.html; ‘En los laberintos de la justicia’ Página 12, 24 March 2010, available at: http://www.pagina12.com.ar/diario/elpais/subnotas/142578-45899 -2010-03-24.html; ‘Los financistas de la represión’, Página 12, 6 September 2010, available at: http://www.pagina12.com.ar/diario/elpais/1-152665-2010-09-06.html. See also a study on this case in JP Bohoslavsky, & V Opgenhaffen, ‘The Past and Present of Bank Responsibility for Financing the Argentinean Dictatorship’, (2010) 23 Harvard Human Rights Journal 157.

40) See ‘No salimos a cazar pajaritos, sino al terrorismo y a los subversivos’, Cambio 16, 4 March 2012, available at: http://cambio16.es/not/1344/_ldquo_no_salimos_a_cazar_pajaritos___sino _al_terrorismo__y_a_los_subversivos_rdquo__/.

41) A Cassese, ‘Study of the Impact of Foreign Economic Aid and Assistance on Respect for Human Rights in Chile,’ UN Doc. E/CN.4/Sub.2/412, Vols. I-IV, 1978, available at: http:// alumnosmdag.blogspot.com/2010/12/informe-del-prof-antonio-cassese-sobre.html. A synthesis of this report can be read in A Cassese, ‘Foreign Economic Assistance and Respect for Civil and Political Rights: Chile, A Case Study,’ (1979) 14 Texas International Law Journal 251-263.

42) Arguing that this archive failed to match the magnitude of the apartheid business sector and its complicity in the activities of the apartheid regime, see Barnard-Naude, supra n. 1, at 172.

43) See Final Report of the Truth and Reconciliation Commission (2003), at 140, available at: http://www.info.gov.za/otherdocs/2003/trc/rep.pdf.

44) Ibid.

45) Khulumani complaint, 11 November 2002, para. 393 and following, available at: www.khulumani.net/attachments/259_Khulumani%20Complaint.pdf.

46) It is worth noting here that the conduct (for example, borrowing and violation of human rights) of an insurrectional movement which becomes the new government shall be considered an act of that state under international law, International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts’, (2001), UN Doc. A/56/10, Article 10.

47) M Needler, The Problem of Democracy in Latin America (Lexington Books, 1987) 59; G O’Donnell, ‘Reflections on the Patterns of Change in the Bureaucratic-Authoritarian State’, (1978) 13 Latin American Research Review 6.

48) B Bueno de Mesquita et al., The Logic of Political Survival (MIT Press, 2003); R Wintrobe, The Political Economy of Dictatorship (Cambridge UP, 1998).

49) A Escriba Folch & J Wright, ‘Dealing with Tyranny: International Sanctions and the Survival of Authoritarian Rulers’, (2010) 54 International Studies Quarterly 335.

50) See generally S Haggard & R Kaufman, The Political Economy of Democratic Transitions (Princeton UP, 1995) 7.

51) On how the external financial assistance to the Uruguayan dictatorship (1973-1984) allowed this military government to effectively used most of these economic instruments to buy key loyalties from the national corporate elite, see JP Bohoslavsky, ‘Another Brick in the Uruguayan Transition: Financial Complicity’ in S Michalowski (ed.), Corporate Accountability in the Context of Transitional Justice, (Routledge, 2012) (forthcoming).

52) See this argument in detail in G O’Donnell & P Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies (Johns Hopkins UP, 1986) 15. This is what happened in Brazil when (1982-1984) stagnation in world trade, deterioration in the country’s terms of trade, rise in international interest rates and finally a cutoff of voluntary new lending re-accommodated domestic political actors benefiting the democratic transition, see J Frieden, ‘The Brazilian Borrowing Experience: From the Miracle to Debacle and Back’, (1987) 22(1) Latin America Research Review 115.

53) Nonetheless para.military groups and secret services can be used to reduce the leading role of the military forces and make repression less evident, J Quinlivan, ‘Coup-Proofing: Its Practice and Consequences in the Middle East,’ (1999) 24(2) International Security 131. In these cases more subtle budgetary analyses are necessary.

54) R Desai, A Olofsgård & T Yousef, ‘The Logic of Authoritarian Bargains: A Test of a Structural Model’, (2009) 21(1) Economics & Politics 99.

55) Elaborating on this dichotomy, see A Choi & E Posner, ‘Critique of the Odious Debt Doctrine’, (2007) 70 Law & Contemporary Problems 33.

56)See generally Wintrobe, supra n. 48. Indeed, the proximate cause for the exit in many authoritarian governments can be found in splits within the military sector, A Przeworski, Democracy and the Market; Political and Economic Reforms in Eastern Europe and Latin America (Cambridge UP, 1991) 51.

57) D Acemoglu, D Ticchi & A Vindigni, A Theory of Military Dictatorships (Massachusetts Institute of Technology, Department of Economics Working Paper No. 08-10, 30 March 2008).

58) Specifically for the Latin American dictatorships, see T Scheetz, ‘The Evolution of Public Sector Expenditures: Changing Political Priorities in Argentina, Chile, Para.guay and Peru’, (1992) 29(2) Journal of Peace Research 175; T Scheetz, ‘Gastos Militares en América del Sur’, in Centro Regional de las Naciones Unidas para. la Paz, el Desarme y el Desarrollo en América Latina y el Caribe (ed.), Proliferación de Armamentos y Medidas de Fomento de la Confianza y la Seguridad en América Latina, (1994) (on file with author).

59) J Mbaku, ‘Military Expenditures and Bureaucratic Competitions for Rents’, (1991) 71(1-2) Public Choice, 19; M Kimenyi & J Mbaku, ‘Rents, Military Elites, and Political Democracy’, (1996) 11(4) European Journal of Political Economy 699.

60)United States vs. Flick (The Flick Case), Case No. 5, 6 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, 1217-23 (1952) (Nuremberg Military Tribunal, 1947).

61) Ibid. at 1221.

62)US v Weizsaecker (Ministries case), Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, No. 14 (1952), at 621-622. This case has been historically quoted to explain why usual financial business cannot give rise to responsibility for corporate complicity (14 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 308, at 622). However, a deeper and broader reading of this decision suggests that the tribunal indeed did not support the idea that complicity liability for commercial loans is always excluded, see S Michalowski, ‘No complicity liability for funding gross human rights violations?’, (2012) Berkeley Journal of International Law, (on file with author) (forthcoming).

63) On the investigations of the role played by the German banks during the Nazi regime carried out by the Office of Military Government after the II WW, see C Simpson, (ed.), War Crimes of the Deutsche Bank and the Dresdner Bank (Holmes & Meyer, 2002) 1-34.

64) On this issue working in Latin American dictatorships, see Haggard & Kaufman supra n. 50, at 45.

65) UN Security Council, Res. No. 757, 30 May 1992, Article 5.

66) Those countries were the Federal Republic of Germany, Italy, the Netherlands, Norway and the United States, See generally Cassese, supra n. 41, Vol. IV, at 407.

67) Foreign Assistance and Related Programs Appropriations for Fiscal Year 1978: Hearing Before the Subcomm. on Foreign Operations of the S. Comm. on Appropriations, 95th Cong. 9 (1977) (testimony of Cyrus Vance, US Secretary of State).

68) Indeed, democracy does not necessarily become more likely when a country is more developed as measured by per capita income, A Przeworski, ‘Economic Development and Transitions to Democracy’, (2004) Working Paper, New York University, (on file with author).

69) D Richards et al, ‘Money with a Mean Streak? Foreign Economic Penetration and Government Respect for Human Rights in Developing Countries’, (2001) 45 International Studies Quarterly 219.

70) J Gordon, ‘Smart Sanctions Revisited’, (2011) 25 (3) Ethics & International Affairs 315; D Lektzian & M Souva, ‘An Institutional Theory of Sanctions Onset and Success’, (2007) 51(6) Journal of Conflict Resolution 848; W Kaempfer, A Lowenberg & W Mertens, ‘International Economic Sanctions against a Dictator’, (2005) 16(1) Economics and Politics 29; D Peksen, ‘Better or Worse? The Effect of Economic Sanctions on Human Rights’, (2009) 46(1) Journal of Peace Research 59.

71) C Forcese, ‘Globalizing Decency: Responsible Engagement in an Era of Economic Integration’, (2002) 5 Yale Human Rights and Development Law Journal 1; G. Lopez, ‘In Defense of Smart Sanctions: A Response to Joy Gordon’, (2012) 26 (1) Ethics & International Affairs 135.

72) A Escribà-Folch, ‘Authoritarian Responses to Foreign Pressure: Spending, Repression, and Sanctions’, (2011) XX(X) Compara.tive Political Studies 1.

73) Roca & Manta, supra n. 28.

74) B Bueno de Mesquita & A Smith, ‘Foreign Aid and Policy Concessions’, (2007) 51 Journal of Conflict Resolution 251.

75) A Licht, ‘Coming into Money: The Impact of Foreign Aid on Leader Survival’, (2010) 54(1) Journal of Conflict Resolution 81.

76) E Feilchenfeld, Public Debts and State Succession, (The MacMillan Company, 1931) 707; R Howse, ‘The Concept of Odious Debt in International Law,’ (2007) UNCTAD Discussion Paper No. 185, at 18, available at: http://www.unctad.org/en/docs/osgdp20074_en.pdf.

77) Cassese (1979), supra n. 41, at 261; S Michalowski, Unconstitutional Regimes and the Validity of Sovereign Debt: A Legal Perspective (Ashgate, 2007) 52, at 82.

78) J Gandhi, Political Institutions Under Dictatorship (Cambridge UP, 2008) 73.

79) Desai, Olofsgård & Yousef, supra n. 54 at 93. More broadly on the rationalisation of this dynamic structure of costs and benefits that dictatorship and democracy imply for elites and citizens, see D Acemoglu & J Robinson, Economic Origins of Dictatorship and Democracy (Cambridge UP, 2006).

80) D Kono & G Montinola, ‘Does Foreign Aid Support Autocrats, Democrats, or Both?’, (2009) 71(2) Journal of Politics 704; Licht, supra n. 75 at 58.

81) On the countries benefited from the the Heavily Indebted Poor Countries initiative and the Paris Club agreements see http://www.imf.org/external/NP/hipc/index.aspx and http://www.clubdeparis.org/, respectively.

82) J Browne, The Effect of Economic Sanctions on Political Repression in Targeted States, (New York University, Department of Politics Working Paper, 23 October 2011), available at: https://files.nyu.edu/jab636/public/SanctionsRepression.pdf.

83) Cassese (1979), supra n. 41, at 257.

84) Browne, supra n. 82.

85) On this trade-off model see generally Wintrobe, supra n. 48.

86) L Kntuson, ‘¿Es el Derecho de las Víctimas de apartheid a Reclamar Indemnizaciones de Corporaciones Multinacionales Finalmente Reconocido por los Tribunales de los EE.UU.?’, (2010) 12 (12) Sur - Revista Internacional de Derechos Humanos 193.

87) See J Shafter, ‘The Due Diligence Model: A New Approach to the Problem of Odious Debt’, (2007) 21 Ethics & International Affairs 49.

88) Cassese (1978), supra n. 41, Vol. I, 3, at 18.

89) B Bueno de la Mesquita & A Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics, (PublicAffairs, 2011) 81; W Easterly, The White Man’s Burden: Why the West’s Efforts to Aid the Rest Have Done So Much Ill and So Little Good, (Penguin Press, 2006); D Moyo, Dead Aid: Why Aid Is Not Working and How There Is another Way for Africa, (Allen Lane, 2009).

90) F Palda, ‘Can Repressive Regimes Be Moderated through Foreign Aid?’, (1993) 77 Public Choice 535.

91) Escriba Folch & Wright, supra n. 49, at 335.

92) S Michalowski & JP Bohoslavsky, ‘Ius Cogens, Transitional Justice and other Trends of the Debate on Odious Debts. A Response to the World Bank Discussion Paper on Odious Debts’, (2010) 48 Columbia Journal of Transnational Law 67.

93)Holder v Humanitarian Law Project, US, 130 S.Ct. 2705 (S.C., 2010); Boim v Holy Land Found for Relief and Development, 549 F.3d 685 (7th Cir. 2008); Almog v Arab Bank, 471F.Supp.2d 257 (E.D.N.Y. 2007); Weiss v National Westminster Bank, 453 F.Supp.2d 609 (EDNY 2006); Re Terrorist Attacks on September 11, 2001, 349 F.Supp.2d 765 (S.D.N.Y., 2005); Linde v Arab Bank, 384 F.Supp.2d 571 (EDNY 2005). See also T Biersteker & S Eckert, (eds), Countering the Financing of Global Terrorism, (Routledge, 2007); D Bulloch, ‘Tracking Terrorist Finance: The ‘Swift’ Program and the American Anti-Terorist Finance Regime’, (2011) 3(4) Amsterdam Law Forum 74.

94) See broadly in Michalowski, supra n. 62.

95)South African Apartheid Litigation, 617 F. Supp. 2d 228, 269 (S.D.N.Y. 2009), 258 n. 157.

96) According to Article 53 of the Vienna Convention of the Law of Treaties a treaty between two states is void if it is in conflict with peremptory norms. Given the universal applicability of ius cogens norms, this principle is indeed not limited to treaties but it also applies to contracts between states and privates. See this argument in Michalowski & Bohoslavsky, supra n. 92 at 71.

97) H Aust, Complicity and the Law of State Responsibility (Cambridge UP, 2011) 199.

98) The original funding of the Operation Bandeirante (OBAN), the Brazilian multi-agency military operation in charge of repressing people during the dictatorship in Brazil, mostly came from private business people of the State of Paulo who had given political support to the coup in 1964, supporting institutional and economic reforms promoted by the regime, see T Skidmore, Thomas, The Politics of Military Rule in Brazil, 1964-1985 (Oxford UP, 1988) 127-8; M Weichert, ‘O financiamento de atos de violação de direitos humanos por empresas durante a ditadura brasileira’ (2008) 21 (2) Acervo 186.

99) For example, Deutsche Bank provided loans to construction and chemical (IG Farben for instance) companies with contracts for facilities at Auschwitz, see H James, The Nazi Dictatorship and the Deutsche Bank (Cambridge UP, 2004) 215.

100) On how some banks made vast loans to the security forces of the South African apartheid, see First Amended Complaint, In re South African Apartheid Litigation, 617 F. Supp. 2d 228 (S.D.N.Y. 2009) (Civ. No. 03-cv‐04524), para.s. 160-163, available at: http://www.hausfeldllp.com/content_documents/9/KhulumaniClassActionComplai.pdf.

101) On the crucial internal political role of the massive financial foreign assistance received by the Brazilian dictatorship (1964-1984), and its legal current implications in terms of transitional justice, see JP Bohoslavsky, & M Torelly, ‘Cumplicidade Financeira Durante a Ditadura no Brasil: Implicações Atuais’, (2012) Revista Anistia Política e Justiça de Transição, (forthcoming).

102) Černič, supra n. 32; A Ramasastry, ‘Corporate Complicity: From Nuremberg to Rangoon an Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations’, (2002) 20 Berkeley Journal of International Law 9.

103) See Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, ‘Towards Operationalizing the “Protect, Respect, and Remedy” Framework’, UN Doc. A/HRC/11/13 (22 April 2009).

104) E Borgwardt, ‘Bernath Lecture: Commerce and Complicity: Corporate Responsibility for Human Rights Abuses as a Legacy of Nuremberg’, (2010) 34 Diplomatic History, 627; J Bush, ‘The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said’, (2009) 109 Columbia Law Review 1094.

105) See e.g. Charter of the International Military Tribunal, 82 UNTS 280, Article 6; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/39/51 (1984), Article 4; International Convention on the Suppression and Punishment of the Crime of Apartheid, UN Doc. A/9030 (1974), Article III(b); Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 UNTS 3, Article 6; Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, Article 3e; Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, available at: http://www.oecd.org/dataoecd/4/18/38028044.pdf, Article 1(2); United Nations Convention Against Transnational Organized Crime, UN Doc. A/45/49 (Vol. I) (2001), Article 5(1)(b); International Convention for the Suppression of the Financing of Terrorism, UN Doc. A/54/49 (Vol. I) (1999), Article 2(5)(a); International Convention for the Suppression of Terrorist Bombing, UN Doc. A/52/49 (1998), Article 2(3)(a); Rome statute of the International Criminal Court, 2187 UNTS 90, Article 25(3); and Statutes of the International Criminal Tribunals for Rwanda, 33 ILM 1598, Article 6; and for the former Yugoslavia, UN Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), Article 7.

106) (Arguing that they are not covered) J Knox, ‘The Ruggie Rules: Applying Human Rights Law to Corporations’ in R Mares (ed.), Ruggie’s Mandate, (2012) (forthcoming, on file with author).

107) On the evidences of customary international law, see International Law Commission, ‘Report of the International Law Commission to the General Assembly (Part II): Ways and Means of Making the Evidence of Customary International Law More Readily Available’, (1950) II Yearbook of the International Law Commission 367.

108)Prosecutor v Vasiljevic, Case No. IT-94-32-A, Judgment, para.s. 94-95, 102 (25 February 2004); Prosecutor v Furundzija, Case No. IT-95-17/1-T, Judgment, para.s. 187-90 (10 December 1998); Prosecutor v Akayesu, Case No. ICTR 96-4-T, Judgment, para.s. 471-91 (2 September 1998); Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law, No. 10, Volumes VI (Flick), VII and VIII (IG Farben), IX (Krupp), Nuremberg, October 1946 – October 1949, Washington, DC, US Government Printing Office, 1953.

109) See the cases decided by the Nuremberg Military Tribunals cited in notes 61-63; even when managers were convicted, corporate behaviors were also assessed and judged as violating international law. Extraordinarily death penalty has been applied to corporations. On the dissolution of I.G. Farben decided because of its participation in the serious violation of international law during World War II, see Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, I Enactments and Approved Papers of the Control Council and Coordinating Committee, (December 20 1945), 306, available at: http://www.loc.gov/rr/frd/Military_Law/Enactments/01LAW09.pdf.

110) L van den Herik & J Černič, ‘Regulating Corporations under International Law: From Human Rights to International Criminal Law and Back Again’, (2010) 8(3) Journal of International Criminal Justice 732. This, of course, departs from an integral and horizontal conception of human rights, therefore, they are applied not only between a state and a person but also between persons (including private entities), J Knox, ‘Horizontal Human Rights Law’, (2008) 102 American Journal of International Law 18.

111) See Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, UN Doc. A/HRC/17/31 (21 March 2011). More generally, arguing that there are not conceptual nor intrinsic limitations to consider a non-state actor as subject of international law but a casuistic case-by-case analysis is necessary, M Bexell, ‘Distribution of Responsibility for Human Rights Protection: The Public-Private Distinction’, (2004) 79(1-2) Journal of International Peace and Organization 103.

112) Reichard, supra n. 20, at 260.

113) M Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, UN Doc. A/CN.4/L/682 (13 April 2006), 189; S Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’, (2001)111 Yale Law Journal 443.

114)See C Tomuschat & JM Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Martinus Nijhoff Publishers, 2006).

115)The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815); Thirty Hogsheads of Sugar v Boyle, 13 U.S. (9 Cranch) 191, 198 (1815); Talbot v Seeman, 5 U.S. (1 Cranch) 1, 36 (1801); Republica v De Longchamps, 1 U.S. (1 Dall.) 111, 114 (1784); Talbot v Jansen, 3 U.S. (3 Dall.) 133, 161 (1795). See generally Memorandum of Law Submitted by Plaintiffs in Response to Expert Submissions Filed by Legal Academics Retained by Defendants, In re Holocaust Victim Assets Litig., No. 96 Civ. 4849 (E.D.N.Y. June 17, 1997).

116) On this discussion related to state theory in the industrialist trials at Nuremberg, see D Lustig, ‘The Nature of the Nazi State and the Question of International Criminal Responsibility of Corporate Officials at Nuremberg: Revisiting Franz Neumann's Concept of Behemoth at the Industrialist Trials’, (2011) 43(4) New York University Journal of International Law and Politics 965.

117) International Commission of Jurists, ‘Corporate Complicity & Legal Accountability’, (2008) Vol. I, 10, 27, Vol. III, 27, available at: http://www.icj.org/default.asp?nodeID=349&sessID= &langage=1&myPage=Legal_Documentation&id=22851.

118) Cheng, supra n. 29, at 251.

119) Ibid.

120) International Commission of Jurists, supra n. 117, Vol. I, 24; Vol. III, at 27; Ramasastry, supra n. at 102.

121) On the discussion of the mental state, see K Gallagher, ‘Civil Litigation and Transnational Business: An Alien Tort Statute Primer’, (2010) 8(3) Journal of International Criminal Justice 745; R Lincoln, Ryan, ‘To Proceed with Caution? Aiding and Abetting Liability Under the Alien Tort Statute’, (2010) 28(2) Berkeley Journal of International Law 604.

122)Prosecutor v Furundzija, Caso No. ICFY-95-17/1-T, Trial Chamber, Judgment, 193 n. 217, 10 December 1998, 38 I.L.M. 317, 193 n. 217, 1999; Prosecutor v Akayesu, Case No. ICTR-96-4-T, Judgment, 545, 2 September 1998; Trial of Otto Ohlendorf and Others (Einsatzgruppen), 4 Trials of War Criminals before the Nuremberg Military Tribunals Under Control Council Law, No. 10, William S. Hein & Co., Inc. 1997, 1949; Tesch (The Zyklon B case), 13 Ann. Dig 250 (Brit. Mil. Ct. 1946), 1 United Nations War Crimes Common, Law Reports of Trials of War Criminals, 93, 1947.

123) See Article 25(3) (d). See this discussion in detail in D Cassel, ‘Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts’, (2008) 6 Northwestern University Journal of International Human Rights 315.

124)Kiobel v Royal Dutch Petroleum Co., 2010 WL 3611392 (2nd Circ. NY); The Presbyterian Church of Sudan v Talisman Energy, Inc., 582 F.3d 244, 261 (2d Cir. 2009); South African Apartheid Litig., 617 F. Supp. 2d 228 (S.D.N.Y. 2009); Doe I. v Unocal, 395 F.3d. 932, 947 (9th Cir. 2002). See also A Walker, ‘The Hidden Flaw in Kiobel: Under the Alien Tort Statute the Mens Rea Standard for Corporate Aiding and Abetting is Knowledge’, (2011) 10(2) Northwestern Journal of International Human Rights 119.

125) See UNCTAD’s ‘Principles on Responsible Sovereign Lending and Borrowing’, (May 2011), available at: http://www.unctad.org/en/docs//gdsddf2011misc1_en.pdf, Principles 5, 6, 9 and 12; and UN Doc. A/HRC/17/31, supra n. 111, Principles 17 and 18. See also M Goldmann, ‘Responsible Sovereign Lending and Borrowing: The View from Domestic Jurisdictions’, (2012), UNCTAD working paper, available at: http://www.unctad.info/upload/Debt%20Portal/RSLB _MGoldmann_02-2012.pdf.

126) International Commission of Jurists, supra n. 117, at 20. See also A Clapham & S Jerbi, ‘Categories of Corporate Complicity in Human Rights Abuses’, (2001) 24 Hasting International Law & Compara.tive Law Review 339.

127) On the specific relation between due diligence and complicity see S Michalowski, ‘Due diligence and Complicity – A Relationship in Need of Clarification’, (2012) working paper presented at the international conference on The ‘Protect, Respect and Remedy’ Framework: Charting a Future or Taking the Wrong Turn for Business and Human Rights?, 23-24 January 2012, Johannesburg (on file with author).

128) P Bolton & D Skeel, ‘Odious Debts or Odious Regimes?’, (2007) 71 Law & Contemporary Problems 83; S Jayachandran & M Kremer, ‘Odious Debt’, (2006) 96(1) American Economic Review 82-92.

129) J Shafter, ‘The Due Diligence Model: A New Approach to the Problem of Odious Debt’, (2007) 21 Ethics & International Affairs 49.

130) Pension funds, life insurance companies, mutual funds and investment companies.

131) See supra n. 105.

132) Ratner, supra n. 113, at 481.

133) J Ruggie, ‘Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework’, UN Doc. A/HRC/14/27 (9 April 2010).

134) See UN Doc. A/HRC/17/31, supra. n. 111.

135) See R Bismuth, ‘Mapping a Responsibility of Corporations for Violations of International Humanitarian Law Sailing between International and Domestic Legal Orders’, (2010) 38(2) Denver Journal of International Law and Policy 224.

136) J Alvarez, ‘Are Corporations “Subjects” of International Law?’, (2011) 9 Santa Clara Journal of International Law 1.

137) See for example A Ramasastry, & R Thompson, ‘Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law. A Survey of 16 Countries’, (FAFO Institute of Applied International Studies, 2006).

138) A Mamolea, ‘The Future of Corporate Aiding and Abetting Liability under the Alien Tort Statute: A Roadmap’, (2011) 51, Santa Clara Law Review, 79; M Ramsey, ‘International Law Limits on Investor Liability in Human Rights’, (2009) 50 Harvard International Law Journal 271.

139) See cases cited in n. 124.

140) On the discussion whether the ATCA requires a violation of an international or domestic norm, see J Goodman, ‘The Administrative Law of Nations: A New Perspective on Sosa, The Alien Tort Statute, and Customary International Law’, (2009) 50 Harvard International Law Journal Online 1.

141)Sarei et al v Rio Tinto et al, No. 02-56256, (9th U.S. Circuit Court of Appeals 2011); South African Apartheid Litigation, 617 F. Supp. 2d 228, 257 (S.D.N.Y. 2009); Sinaltrainal v Coca-Cola Co., 578 F.3d 1252, 1263 (11th Cir. 2009); XE Servs. Alien Tort Litig., 665 F. Supp. 2d 569, 588 (E.D. Va. 2009); Abdullahi v Pfizer, Inc., 562 F.3d 163, 187 (2d Cir. 2009); Presbyterian Church of Sudan v Talisman Energy, Inc., 374 F. Supp. 2d 331, 335 (S.D.N.Y. 2005); Bodner v Banque Paribas, 114 F. Supp 2nd. 117 (E.D.N.Y. 2000); Kadic v Karadzic, 70 F.3d 232, 246 (2d Cir. 1995); Paquete Habana, 175 U.S. 677 (1900); Ware v Hylton, 3 U.S. (3 Dall.) 199 (1796). However, limiting the existence of a customary law on responsibility for complicity to the individuals but excluding these legal entities, Kiobel v Royal Dutch Petroleum, 06-4800-cv, 06-4876-cv, 2nd District (2010). See broadly J Ku, ‘The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed System of Judicial Lawmaking’, (2010) 51(2) Virginia Journal of International Law 353.

142) A Gelpern, ‘Odious, Not Debt’, (2007) 70(3) Law & Contemporary Problems 81.

143) International Law Commission, Responsibility of International Organizations, A7CN.4/ L.632, (4 June 2003), Article 3.

144) See IBRD Articles of Agreement, available at: http://siteresources.worldbank.org/EXTABOUTUS/Resources/ibrd-articlesofagreement.pdf, Articles IV (10) and III (5)(b). See also H Cissé, ‘Should the Political Prohibition in Charters of International Financial Institutions be Revisited? The case of the World Bank,’ in H Cissé, D Bradlow & B Kingsbury (eds), International Financial Institutions and Global Legal Governance, (The World Bank Legal Review, Vol. 3, 2012) 59.

145) Articles of Agreement of the IMF, available at: http://www.imf.org/external/pubs/ft/aa/index.htm, Articles I and IV(3)(b).

146) ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South Africa), Notwithstanding Security Council Resolution 276, Advisory Opinion, June 21 1970, ICJ Rep., 1971, 16. See generally J Ciorciari, ‘The Lawful Scope of Human Rights Criteria in World Bank Credit Decisions: An Interpretive Analysis of the IBS and IDA Articles of Agreement’, (2000) 33 Cornell International Law Journal 356.

147) I Shihata, ‘Human Rights, Development, and International Financial Institutions’, (1992) 8(1) American University Journal of International Law and Policy 27.

148) Legal Memorandum of the Vice President and General Counsel of IBRD, Issues of ‘Governance’ in Borrowing Members – The Extent of Their Relevance Under the Bank’s Articles of Agreement (5 February 1991), and Shihata, supra n. 148, at 32. See also the World Bank Senior Vice President and General Counsel, R Dañino, ‘Legal Opinion on Human Rights and the Work of the World Bank’, (27 January 2006), available at: http://www.ifiwatchnet.org/sites/ifiwatchnet.org/files/DaninoLegalOpinion0106.pdf, at 7.

149) See UN – IMF Relationship Agreement, 16 UNTS 328 (1948); Agreement Between UN – IBRD, 16 UNTS 346 (1948); Agreement Between UN – IDA, G.A. Res. 1594, UN GAOR, 15th Sess., Supp. No. 16A.

150) See E Suzuki, ‘Responsibility of International Financial Institutions under International Law’, in D Bradlow & D Hunter (eds), International Financial Institutions and International Law (Kluwer, 2010) 69.

151) ICJ, Interpretation of the agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, (1980) ICJ Rep. 89.

152) Ibid. See also The International Law Commission’s First Report on Responsibility of International Organizations, UN Doc. A/CN.4/532 (March 23 2003), Article 3, and Third Report on Responsibility of International Organizations, UN Doc. A/CN.4/553 (13 May 2005), Article 8; A Clapham, Human Rights Obligations of Non-State Actors (Oxford UP, 2006) 144, at 158.

153) C Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century. General Course on Public International Law’, (1999) 281 Receuil des cours, 138-9.

154) All human rights can be shown to have a direct and obvious economic effects, D Bradlow, ‘The World Bank, the IMF, and Human Rights’, (1996) 6 Journal of Transnational Law and Contemporary Problems 81.

155) I Shihata, The World Bank in a Changing World. Selected Essays and Lectures, (Martinus Nijhoff Publishers, 1995) 555. This view seems to be changing in the Word Bank: [Its Articles of Agreement] ‘permit, and in some cases require the Bank to recognize the human rights dimension of its development policy and activities’, World Bank, Senior Vice President and General Counsel, supra n. 148, at 9.

156) S Bleicher, ‘UN v IBRD: A Dilemma of Functionalism,’ (1970) 24(1) International Organization, 31.

157) Shihata, supra n. 147, at 35.

158) Cassese (1978), supra n. 41. On the specific role of the IMF in Chile see M Elahi, ‘The Impact of Financial Institutions on the Realization of Human Rights: Case Study of the International Monetary Fund in Chile’, (1986) 6(2) Boston College Third World Law Journal 143-160. On the role of multinational private banks in this authoritarian regime, I Letelier & M Moffitt, Michael ‘Supporting Repression: Multinational Banks in Chile’, (1978) 20(2) Race & Class, 111-128.

159) Marmorstein, supra n. 15, at 118.

160)Chorzów Factory case (PCIJ, Jurisdiction, 1927, 21); ‘Basic Principles and Guidelines on the Right to a Remedy and Repara.tion for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, (16 December 2005), UN General Assembly Resolution 60/147, available at: http://www2.ohchr.org/english/law/remedy.htm, Article 15.

161) See G Nolte & H Aust, ‘Equivocal Helpers – Complicit States. Mixed Messages and International Law,’ (2009) 58 International and Compara.tive Law Quarterly 1. See also Aust, supra n. 97, at 192.

162) ICJ, Case Concerning the Application of the Convention of the Prevention and Punishment of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), judgment of 26 February 2007, para. 420.

163) This principle of international law was incorporated into UNCTAD’s ‘Principles on Responsible Sovereign Lending and Borrowing’, supra. n. 125. Principle No. 6 states: ‘All lenders have a duty to comply with United Nations sanctions imposed against a governmental regime.’

164) International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts’, UN Doc A/56/10 (2001), para. 9.

165) C Chinkin, Third Parties in International Law (Clarendon Press, 1993) 197.

166) UN Doc A/56/10 (2001), supra n. 164, para. 3.

167) Suggesting here using an approach based on due diligence obligations, Nolte & Helmut, supra n. 161, at 15.

168) Ibid. at 16.

169) US Congress, International Development and Food Assistance Act, Pub. L No. 94–161, S 310, 89, Stat. 849, 860 (1975); Pub. L. No. 95-88, 91 Stat. 533 (1977). See generally J Walczak, ‘New Directions in U.S. Food Aid: Human Rights and Economic Development’ in V Nanda et al., Global Human Rights: Public Policies, Comparative Measures, and NGO Strategies (Westview Press, 1981) 29-57.

170) It is a trade and aid agreement between the European Community and 71 African, Caribbean, and Pacific (ACP) countries, first signed in February 1975.

171) EC Bulletin, 1977, No. 6, para. 2.2.59.

172) Helmut, supra n. 97, at 146-7.

173) I Brownlie, ‘State Responsibility: The Problem of Delegation’ in K Ginther et al. (eds), Völkerrecht Zwischen Normativem Anspruch und politischer Realität, (Duncker & Humblot, 1994) 300-1; International Law Association, ‘Accountability of International Organizations Final Conference Report’, (ILA, Berlin, 2004), available at: http://www.ila-hq.org/en/committees/index.cfm/cid/9, 18.

174) Act of 31 May 1976, Pub. L. No. 94-302, S 211, 90, Stat. 591, 595; Act of 3 October 1977, Pub. L. No. 95-118, S 701, 91 Stat. 1067, 1069-71. The link between human rights and the role of IFIs was discussed in International Financial Institutions: Hearings on S.871 and S.872 before the Subcomm. on Foreign Assistance of the Senate Comm. on Foreign Relations, 95th Cong., 1st Sess. 37, 9-10 March 1977, 67-9. See S Collins, ‘The Carter Administration – An Appraisal: The Perspective from the Agency for International Development’ in Nanda, supra n. 169, at 26.

175) See generally (on Argentina) Bohoslavsky & Opgenhaffen, supra n. 39; (on Brazil) Bohoslavsky & Torelly, supra n. 101; Cassese, supra n. 41 (on Chile), and JP Bohoslavsky & M Rulli, ‘Corporate Complicity and Finance as a ‘Killing Agent’: The Relevance of the Chilean Case’, (2010) 8(3), Journal of International Criminal Justice, 829; Bohoslavsky, supra n. 51 (on Uruguay).

176) See Introduction (in this article).

177) See Truth and Reconciliation Commission of Liberia, ‘Final Report,’ (2009), available at: http://trcofliberia.org/reports/final-report; Sierra Leone's Truth and Reconciliation Commission, ‘Final Report,’ (2004), available at: http://www.sierra-leone.org/TRCDocuments.html. See also J Cavallaro & S Albuja, ‘The Lost Agenda: Economic Crimes and Truth Commissions in Latin America and Beyond’, in K McEvoy & L McGregor (eds), Transitional Justice from Bellow: Grassroots Activism and the Struggle for Change, (Hart Publishing, 2008) 135.

178) See section 2 (in this article).

179) R Carranza, ‘Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes’, (2008) 2 International Journal of Transitional Justice 310; M Zinaida, ‘Effects of Invisibility: In Search of the “Economic” in Transitional Justice’, (2008) 2 International Journal of Transitional Justice 266.

180) C Bell, On the Law of Peace Peace Agreements and the Lex Pacificatoria (Oxford UP, 2008) 242.

181) On this legal requirement, see P de Grieff, ‘Algunas Reflexiones Acerca del Desarrollo de la Justicia Transicional’, (2011) 7 Anuario de Derechos Humanos 21.

182) United Nations, ‘Guidance Note of the Secretary-General. United Nations Approach to Transitional Justice’, (March 2010), 2 at 4.

183) R Teitel, Transitional Justice (Oxford UP, 2000) 224.

184) United Nations, “Guidance Note of the Secretary-General. United Nations Approach to Transitional Justice” (March 2010), 4: ‘The UN will neither establish nor provide assistance to any tribunal that allows for capital punishment, nor endorse provisions in peace agreements that include amnesties for genocide, war crimes, crimes against humanity, and gross violations of human rights.’

185) Elaborating on this argument in the context of odious debts and transitional justice, see Howse, supra n. 76, at 22.

186) T Olsen, A Reiter & E Wiebelhaus-Brahm, ‘Taking Stock: Transitional Justice and Market Effects’, (2012) Journal of Human Rights (on file with author).

187) For a detailed description of these instruments, see United Nations supra n. 184, at 2. See also E Lutz, ‘Transitional Justice: Lessons Learned and the Road Ahead’ in N Roht-Arriaza & J Mariezcurrena (eds), Transitional Justice in the Twenty-First Century, Beyond Truth versus Justice, (Cambridge UP, 2006) 325.

188) Office of the High Commissioner for Human Rights, ‘Rule-of-Law Tools for Post-Conflict States: Truth Commissions’, UN Doc HR/PUB/06/1 (United Nations, 2006) 18, available at: http://www.ohchr.org/Documents/Publications/RuleoflawTruthCommissionsen.pdf.

189) Cassese (1978), supra n. 41.

190) M Freeman, Truth Commissions and Procedural Fairness (Cambridge UP, 2006) 151-2.

191) M Drumbl, ‘Collective Responsibility and Postconflict Justice’ in T Isaacs & R Vernon (eds), Accountability for Collective Wrongdoing (Cambridge UP, 2011) 39.

192) See generally J Malamud-Goti & L Grosman, ‘Reparations and Civil Litigation: Compensation for Human Rights Violations in Transitional Democracies’ in P De Grieff (ed), The Handbook of Reparations, (Oxford UP, 2006) 539-559.

193) B Neuborne, ‘Holocaust Repara.tions Litigation: Lessons for the Slavery Reparations Movement’, (2003) 58 New York University Annual Survey of American Law, 615-622.

194) See generally Lustig, supra n. 116; Simpson, supra n. 63.

195) On the experience of the Reconciliation and Development Project (R&D Bonds) in South Arica, see D Bradlow, ‘An Experiment in Creative Financing to Promote Reconciliation and Development in South Africa’ in R Bardouille et al. (eds), Africa’s Finances: The Contribution of Remittances, (Cambridge Scholars Publishing, 2008) 171.

196)See Barnard-Naude, supra n. 1, at 176.

197) Michalowski & Bohoslavsky, supra n. 92, at 95.

198) A Gelpern, ‘Sovereign Debt Restructuring: What Irak and Argentina Might Learn From Each Other’, (2005) 6 Chicago Journal of International Law 407.

199) D Gray, ‘Devilry, Complicity, and Greed: Transitional Justice and Odious Debts’, (2007) 70 Law & Contemporary Problems 164.

200) It is organised and sponsored by the University of Buenos Aires. See details on the museum available at: http://www.museodeladeuda.com/index2.php.

201) E Cole, ‘Transitional Justice and the Reform of History Education’, (2007) 1 International Journal of Transitional Justice 115.

202) See generally A Mayer-Rieckh & P de Greiff, Justice as Prevention: Vetting Public Employees in Transitional Societies (Social Science Research Council, 2007).

203) See Abaclat and others v. Argentine, ICSID Case No. ARB/07/5, 4 August 2011, available at: http://italaw.com/documents/AbaclatDecisiononJurisdiction.pdf (admitting this possibility). See generally M Waibel, ‘Opening Pandora’s Box: Sovereign Bonds in International Arbitration’, (2007) 101 American Journal of International Law 711.

204) Suggesting the incorporation of exception provisions to international investment agreements (IIA) in order to allow states to derogate from their IIA obligations under specified (economic and social) human rights conditions, see B Choudhury, ‘Exception Provisions as a Gateway to Incorporating Human Rights Issues into International Investment Agreements’, (2010-2011) 49 Columbia Journal of Transnational Law 670.

205)Phoenix Action, Ltd. v. The Czech Republic, ICSID ARB/06/5, Award, 15 April 2009, para. 78: ‘… nobody would suggest that ICSID protection should be granted to investments made in violation of the most fundamental rules of protection of human rights, like investments made in pursuance of torture or genocide or in support of slavery or trafficking of human organs.’

206) R Lincoln, ‘To Proceed with Caution? Aiding and Abetting Liability Under the Alien Tort Statute’, (2010) 28(2) Berkeley Journal of International Law 604.

207) A Skyes, ‘Corporate Liability for Extraterritorial Torts under the Alien Tort Statute and Beyond: An Economic Analysis’, Working Paper No. 420, on file with author, (Stanford Law School, 11 January 2012).

208) R Knowles, ‘A realist defense of the Alien Tort Statute’, (2011) 88 Washington University Law Review, 1117-1176.

209) M Freeman, Truth Commissions and Procedural Fairness, (Cambridge UP, 2006) 193.

210) Howse, supra n. 76, at 18.

211) See AfDB (52), ADB (50.1), WB (VII.3) and IMF (IX.3) Articles.

212) M Singer, ‘Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns’, (1995) 36 Virginia Journal of International Law 109-165.

213) S Herz, ‘Rethinking International Financial Institutions Immunity’ in D Bradlow & D Hunter, David (eds), International Financial Institutions and International Law (Kluwer, 2010) 137; M Rutsel, ‘International Financial Institutions and Claims of Private Parties: Immunity Obliges’ in H Cissé, D Bradlow & B Kingsbury (eds), International Financial Institutions and Global Legal Governance (World Bank Legal Review, Vol. 3, 2012) 118.

214) See D Bradlow, ‘Private Complainants and International Organizations: A Comparative Study of the Independent Inspection Mechanisms in International Financial Institutions’, (2005) 36 Georgetown Journal of International Law 403-491. Adopting this ‘equivalent protection’, Richard Waite & Terry Kennedy v Germany, ECHR, Application No. 26083/94, 24 February 1997, para. 68. On granting absolute immunity to IFIs, see Loughran, et al. v United States, 317 F.2d896 (D.C. Circ. 19639).

215) A Reinisch & A Weber, ‘In the Shadow of Waite and Kennedy: The jurisdictional Immunity of International Organizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement’, (2004) 1(1) International Organizations Law Review 59.

216) L McGregor, ‘Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, (2008) 18 (5) European Journal of International Law 918.

217) A Bellal, Immunités et violations graves des droits humains, (Bruylant, 2011) 63; A Belsky, M Merva & N Roht-Arriaza, ‘Implied Waiver Under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law’, (1989) 77 California Law Review 365.

218) L Caplan, ‘State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory’, (2003) 97 American Journal of International Law 741. There is no jurisprudential uniformity on this, see e.g. Cour de cassation, première chambre civile, France, 9 March 2011, numéro de pourvoi: 09-14743; Goiburú and Others v Paraguay (IACtHR Judgment of 22 September 2006), available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_153_ing.pdf; Regier v Islamic Republic of Iran, 281 F. Supp. 2d 87 (D.D.C. 2003); R v Bow Street Magistrate and others, ex parte Pinochet Ugarte [2000] 1 A.C. 147 (H.L. 1999); Prosecutor v Furundija, Case No. IT-95-17/1-T, (Judgment of 10 December 1998); Siderman De Blake v Argentina, 965 F.2d 699 (9th Cir. 1991); ICJ, Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening (3 February 2012); Jones v Saudi Arabia, [2006] UKHL 26; Princz v Federal Republic of Germany, 26 F 3d 1166 (DC Cir 1994); Al-Adsani v United Kingdom, Application No. 35763/97 (ECtHR, Judgment of 21 November 2001), 2002 34 EHRR 273.

219) On the right to the truth see UN Commission on Human Rights, ‘Study on the Right to the Truth Report of the Office of the United Nations High Commissioner for Human Rights’, UN Doc. E/CN.4/2006/91, (8 February 2006); UN General Assembly Res. 60/147, supra. n. 160; UN Subcommission for Prevention of Discrimination and Protection of Minorities, ‘Set of Principles for the Protection and Promotion of Human Rights Intended to Strengthen Action to Combat Impunity’, UN Doc. E/CN.4/Sub.2/1996/18, (29 June 1996), Annex 1.

220) Studying how the Brazilian dictatorship (1964-1985) used at the same time repression and political support derived from the economic performance of the country, and the central role of external financial assistance to carry out this strategy, Frieden, supra n.52, at 95.

221) Oatley, supra n. 7, at 176.

222) Cassese (1979), supra 41, at 261.

223) Supra n. 41.

224)See supra n. 219.

225) J Schrempf & G Palazzo, ‘Historic Corporate Responsibility’, paper presented at the 7th International Critical Management Studies Conference, Naples, Capri, July 2011, available at: http://www.organizzazione.unina.it/cms7/proceedings/proceedings_stream_30/Schrempf _and_Palazzo.pdf.

226) Gelpern, supra n. 142, at 91.

227) A Guzman, ‘Reputation and International Law’, (2006) 34 Georgia Journal of International and Comparative Law 379; M Tomz, Reputation and the Effect of International Law on Preferences and Beliefs, (Working Paper, Stanford University, 2008), available at: http://www.stanford.edu/~tomz/working/Tomz-IntlLaw-2008-02-11a.pdf.

228)See generally, R Teitel, Humanity’s Law (Oxford UP, 2011).

229) Barnard-Naude, supra n. 1, at 194.

230) E Borensztein & U Panizza, ‘The Costs of Sovereign Default’, (2009) 56(4) IMF Staff Papers 683-741. More recently it has been claimed that haircuts higher than 70% indeed have significant effects on subsequent borrowing, but this analysis only takes a few of these extreme haircuts and does not take into consideration the benefits of substantially reducing the debt, see J Cruces & C Trebesch, Sovereign Defaults: The Price of Haircuts (CESifo Working Paper Series, No. 3.604, 2011), available at: www.cepr.org/meets/wkcn/2/2441/papers/CrucesandTrebesch Haircuts.pdf.

231) E Jorgensen & J Sachs, ‘Default and Renegotiation of Latin American Foreign Bonds in the Interwar Period’ in B Eichengreen & P Lindert (eds), The International Debt Crisis in Historical Perspective (MIT Press, 1989) 48.

232) R Buckley, ‘Why Are Developing Nations So Slow to Play the Default Card in Renegotiating their Sovereign Indebtedness?’, (2005) 6 Chicago Journal of International Law 354-9.

233) For a detailed explanation of the public campaign deployed in the US against those European banks and how they feared the negative financial impact of being labeled as ‘accomplices’ in this country, see generally S Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II (Perseus Books Group, 2003).

234) Neuborne, supra n. 193, at 615.

235) T Olsen, L Payne & A Reiter, ‘At What Cost? The Political Economy of Transitional Justice’, (2010) 6 (1) Taiwan Journal of Democracy 182: ‘As the time since the transition increases from five years to thirty-five years, the likelihood that a country will employ a trial increases tenfold, while the likelihood that a country will do nothing actually decreases by half.’

  • 45)

    Khulumani complaint, 11 November 2002, para. 393 and following, available at: www.khulumani.net/attachments/259_Khulumani%20Complaint.pdf.

  • 61)

    Ibid. at 1221.

  • 77)

    Cassese (1979), supra n. 41, at 261; S Michalowski, Unconstitutional Regimes and the Validity of Sovereign Debt: A Legal Perspective (Ashgate, 2007) 52, at 82.

  • 83)

    Cassese (1979), supra n. 41, at 257.

  • 88)

    Cassese (1978), supra n. 41, Vol. I, 3, at 18.

  • 158)

    Cassese (1978), supra n. 41. On the specific role of the IMF in Chile see M Elahi, ‘The Impact of Financial Institutions on the Realization of Human Rights: Case Study of the International Monetary Fund in Chile’, (1986) 6(2) Boston College Third World Law Journal 143-160. On the role of multinational private banks in this authoritarian regime, I Letelier & M Moffitt, Michael ‘Supporting Repression: Multinational Banks in Chile’, (1978) 20(2) Race & Class, 111-128.

  • 166)

    UN Doc A/56/10 (2001), supra n. 164, para. 3.

  • 171)

    EC Bulletin, 1977, No. 6, para. 2.2.59.

  • 174)

    Act of 31 May 1976, Pub. L. No. 94-302, S 211, 90, Stat. 591, 595; Act of 3 October 1977, Pub. L. No. 95-118, S 701, 91 Stat. 1067, 1069-71. The link between human rights and the role of IFIs was discussed in International Financial Institutions: Hearings on S.871 and S.872 before the Subcomm. on Foreign Assistance of the Senate Comm. on Foreign Relations, 95th Cong., 1st Sess. 37, 9-10 March 1977, 67-9. See S Collins, ‘The Carter Administration – An Appraisal: The Perspective from the Agency for International Development’ in Nanda, supra n. 169, at 26.

  • 189)

    Cassese (1978), supra n. 41.

  • 222)

    Cassese (1979), supra 41, at 261.

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