35/33 Best practices and how to improve on the effectiveness of cross-border cooperation between States with respect to law enforcement on the issue of business and human rights: Study of the Working Group on the issue of human rights and transnational corporations and other business enterprises - Note by the Secretariat
Document Type: Final Report
Date: 2017 Apr
Session: 35th Regular Session (2017 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.17-06619(E)
Human Rights Council Thirty-fifth session
6-23 June 2017
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Best practices and how to improve on the effectiveness of cross-border cooperation between States with respect to law enforcement on the issue of business and human rights: Study of the Working Group on the issue of human rights and transnational corporations and other business enterprises
Note by the Secretariat
The present report is submitted pursuant to Human Rights Council resolution 32/10.
United Nations A/HRC/35/33
Contents
Page
I. Introduction ................................................................................................................................... 3
II. General practices in cross-border cooperation between law enforcement ..................................... 4
III. International crimes ....................................................................................................................... 6
IV. Cases involving transnational harm and economic actors ............................................................. 8
V. Conclusions and recommendations ............................................................................................... 19
I. Introduction
1. In its resolution 32/10, the Human Rights Council recognized the importance of
dialogue and cooperation among all stakeholders to ensure the effective implementation of
the Guiding Principles on Business and Human Rights, in particular with respect to
improving corporate accountability and access to remedy for victims of business-related
human rights abuses. Against that backdrop, the Council requested the Working Group to
present a study on best practices and how to improve on the effectiveness of cross-border
cooperation between States with respect to law enforcement on the issue of business and
human rights.
2. Owing to the reference to law enforcement, in the present study the Working Group
focuses on cooperation with respect to the investigation and prosecution of criminal and
administrative law offences. Since certain jurisdictions do not recognize the application of
this body of law to business entities, the report includes studies of cases involving
economic actors more generally, which include individual business people. However, given
the seriousness of certain cross-border harms, States are encouraged where appropriate to
investigate and prosecute companies as such, in addition to natural persons. Sometimes it is
not possible to identify key individuals responsible for a crime while it is possible to
identify the company. Moreover, even if certain individuals are punished, the company
could continue its unlawful conduct; thus, the prosecution of companies may create a
needed deterrent beyond that which exists by prosecuting individual actors.
3. Principle 2 of the Guiding Principles encourages States to set out the expectation
that all business enterprises domiciled in their jurisdiction respect human rights throughout
their operations, and recognize that one way of achieving this is through criminal regimes
that allow for prosecutions, no matter where the offence occurs, so long as there is a
recognized jurisdictional basis. 1 Furthermore, Principle 26 calls upon States to protect
against business-related human rights abuse by taking appropriate steps to ensure the
effectiveness of domestic judicial mechanisms when addressing such harm. For cross-
border cases2 of human rights abuse, in which multiple States are involved in some way,
cooperation between these States’ law enforcement is key to ensuring any “effective”
redress.
4. However, to date, there has been little progress in cross-border cooperation that has
led to successful law enforcement action in cases focused on business-related human rights
abuses. Much of the existing research has focused on the challenges and obstacles to
successful prosecution.3 Indeed, civil society organizations have tried without success to
bring claims to national prosecuting authorities. There remains a lack of political will by
States to address business-related human right abuses through the lens of criminal law.
5. In the present report, the Working Group examines how States have cooperated
successfully in areas related to criminal law and human rights. It also provides a road map
of the key tools that could be used in instances where States are presented with cases
relating to cross-border human rights abuse linked to business activity. After a discussion
on cross-border cooperation practices that work across many types of offences, there is a
focus on how States have worked together effectively to deal with international crimes
more broadly. While the examples are few, existing models in this context could be
deployed more proactively when economic actors are involved in international crimes and
1 See A/HRC/17/31, annex.
2 A cross-border case is one where “the relevant facts have taken place in, the relevant actors are
located in or the evidence needed to prove a case is located in more than one State”. See
A/HRC/32/19/Add.1, box 3.
3 See, for example, Commerce, Crime and Human Rights Project, “The Corporate Crimes Principles:
Advancing Investigations and Prosecutions in Human Rights Cases” (2016), available from
www.commercecrimehumanrights.org/wp-content/uploads/2016/10/CCHR-0929-Final.pdf. See also
Amnesty International, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy
(London, 2014).
could also be used when businesses are implicated in general cross-border human rights
abuses.
6. Many more cases of successful cooperation to investigate and prosecute economic
actors exist in other areas closely linked to human rights. Thus, the report contains an
examination of law enforcement practices in the context of other cross-border crimes, such
as trafficking in persons, environmental crimes, transnational bribery and corruption, to
highlight what types of tools could be used in business and human rights cases. Those cases
demonstrate that when States have the political will to act against cross-border harms, they
can work together effectively.
7. In the report, the Working Group shows that States already largely possess the tools
needed to cooperate effectively with respect to cross-border harms relating to business and
human rights. What is needed is a willingness by law enforcement to explore all potential
legal avenues for investigating and prosecuting misconduct by economic actors, be it
through the lens of international crimes, domestic criminal or administrative offences, or
the other types of crimes discussed in the report, where human rights harms occur alongside
additional offences. Once the appropriate avenue is decided, the tools discussed can be
used, directly or by analogy, to ensure effective cross-border cooperation and, ultimately,
greater access to remedy.
II. General practices in cross-border cooperation between law enforcement
8. There are examples of generally applicable best practices involving cross-border
cooperation between law enforcement agencies. Those practices are useful techniques that
may be deployed regardless of the type of offence being pursued or the type of actor being
investigated or prosecuted. The outcome documents of the Accountability and Remedy
Project, conducted by the Office of the High Commissioner for Human Rights, laid the
groundwork for what should be done to ensure accountability and access to remedy in this
regard.4 To the extent possible, States should implement and adapt those practices in all
cases where economic actors are implicated in criminal or administrative offences linked to
human rights abuse. In the Working Group’s calls for input for the current study,5 States,
national human rights institutions, experts, practitioners, civil society organizations and
multilateral institutions provided further information about general practices that should be
adopted to ensure effective cooperation in criminal and administrative cases involving
business and human rights.
9. States should adopt an appropriate and enabling legal framework that not only
prohibits misconduct by economic actors that infringe on human rights but also provides a
basis for cooperation between States’ law enforcement agencies when violations occur in
cross-border cases. Numerous international6 and regional7 instruments, as well as bilateral
agreements, have detailed provisions on mutual legal assistance and other forms of
4 See A/HRC/32/19, paras. 24-28 and annex, and paras. 9.1-10.1 and 17.1-18.2; and
A/HRC/32/19/Add.1, paras. 32-38 and 62-68. See also
www.ohchr.org/EN/Issues/Business/Pages/OHCHRstudyondomesticlawremedies.aspx for a link to
illustrative examples and guidance to improve corporate accountability and access to judicial remedy
for business-related human rights abuse, specifically for objectives 9.1-10.1 and 17.1-18.2.
5 For the present study, the Working Group conducted interviews, held and participated in expert
consultations and sent out surveys to numerous stakeholders.
6 For example, the United Nations Convention against Transnational Organized Crime.
7 For example, the Treaty on Mutual Legal Assistance in Criminal Matters of the Association of
Southeast Asian Nations (2004); the Inter-American Convention on Mutual Assistance in Criminal
Matters (1992); and the Convention on Mutual Assistance in Criminal Matters between the member
States of the European Union (2000).
international cooperation. Regardless of whether a State is party to those treaties, domestic
law should have flexible rules to allow for cooperation in a range of circumstances.8
10. In order to send and receive requests for assistance efficiently, a central authority
should be established to coordinate the process. That authority should provide easy access
to up-to-date contact information for all relevant law enforcement authorities within the
State and elsewhere.9 It should also be adequately funded and staffed with mutual legal
assistance specialists who can advise those seeking assistance about core procedural
requirements. Ideally, staff would be available to handle requests at all times, have the
ability to translate different languages and have the capacity to deal with requests made
under different treaties. In addition, central authorities should have a system in place to
track the status of requests, prioritize urgent appeals and ensure that deadlines are met.
11. States should encourage law enforcement to cooperate in cross-border cases and
adequately train authorities on how best to do so. The United Nations Office on Drugs and
Crime (UNODC) has developed many tools to help authorities send and respond to requests
for mutual legal assistance.10
12. Many practitioners identified joint investigation teams as an effective tool to be used
in cross-border cases.11 The European Union has notably supported such teams through
legislative efforts12 and its institutions such as Eurojust. In the absence of such teams,
parallel investigations should be explored in which States coordinate their actions so as to
increase each investigation’s effectiveness and range of targets. Another useful model
concerns the establishment of joint centres of investigation. Under that model, investigators
from different States work together at a facility in a single State on the same issue. Such a
centre has recently been opened in Austria to combat cross-border trafficking in persons.13
13. Although such formal means of cooperating are essential for any cross-border case,
it was emphasized repeatedly during the Working Group’s consultations that informal
cooperation was used much more frequently and often yielded better results. Informal
cooperation was faster, less expensive and more flexible than requests for mutual legal
assistance or letters rogatory for exchange of information. In addition, informal
communication could help build a stronger basis and target a request for formal assistance.
While a formal letter to counterparts should be sent, experts stressed that, in practice, a
personal meeting or telephone conversation was needed to establish some level of trust as a
precursor to a working relationship.
14. Joining networks is also a useful way of building trust with foreign counterparts.
International14 and regional15 associations of investigators and prosecutors often organize
conferences to share best practices and promote cross-border relationships. Those
associations also have other resources, such as training documents and online
communication tools, to foster cooperation. States are highly encouraged to support and
utilize organizations that help with operational matters, such as the International Criminal
Police Organization (INTERPOL), the European Police Office (Europol) and the Chiefs of
Police of the Association of Southeast Asian Nations (ASEAN).
8 For example, the Swiss Mutual Assistance Act of 20 March 1981, governing mutual legal assistance
procedures both when an applicable treaty exists and in the absence of one.
9 The United Nations Office on Drugs and Crime (UNODC) provides an Online Directory of
Competent National Authorities, available from www.unodc.org/cld/en/v3/sherloc/cnadir.html.
10 For example, the UNODC mutual legal assistance request writer tool, available from
www.unodc.org/mla/en/index.html. See also UNODC, Manual on Mutual Legal Assistance and
Extradition (Vienna, 2012), available from www.unodc.org/documents/organized-
crime/Publications/Mutual_Legal_Assistance_Ebook_E.pdf.
11 See www.ohchr.org/EN/Issues/Business/Pages/OHCHRstudyondomesticlawremedies.aspx for a link
to illustrative examples of considerations when developing a joint investigation team agreement.
12 See, for example, Council Framework Decision 2002/465/JHA, available from http://eur-
lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32002F0465.
13 See www.europol.europa.eu/partners-agreements/member-states/austria.
14 For example, the International Association of Prosecutors.
15 For example, the South Eastern European Prosecutors Advisory Group, Ibero-American Association
of Public Prosecutors and Southern African Regional Police Chiefs Cooperation Organization.
15. Such organizations administer a range of online tools that have proved indispensable
for successful cross-border cooperation. For instance, the INTERPOL I-24/7 Network
connects law enforcement through a global, secure communication system and allows them
to share sensitive and urgent information 24 hours a day, every day. The Network is
connected to numerous INTERPOL databases containing millions of records on identifying
characteristics of suspects, stolen travel documents and vehicles, and more. In addition, the
World Customs Organization provides an online communication system, supporting
multiple languages, that allows secure messages to be sent in real time through its Customs
Enforcement Network Communication Platform.
16. Regional tools also exist to facilitate information exchange. For instance, the
Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters
and Extradition provides the Organization of American States with a secure electronic
communication system.
17. Civil society organizations have become increasingly instrumental in investigating
cross-border crimes. In addition to utilizing innovative methods of collecting public
information, they have investigated cases on the ground in different jurisdictions and have
been involved with initiatives aimed at building capacities for greater cooperation. 16
Recognizing the critical role of such organizations in evidence collection, the Office of the
Prosecutor of the International Criminal Court has decided to engage with first responders,
such as civil society organizations, journalists and health professionals, in order to enhance
their ability to collect admissible evidence. 17 During consultations, the Working Group
heard from many such organizations that had given law enforcement evidence of criminal
cases linked to business and human rights abuses.
18. In all cases of cooperation, States must ensure that the rights of every person, both
natural and legal, are respected and protected. Suspects should never be deprived of
essential rights, such as the right against self-incrimination or the right not to be subject to
torture or cruel, inhuman or degrading treatment.18 All fair trial rights should be respected,
notably the prohibition of double jeopardy. States should share exculpatory evidence with
the accused in other jurisdictions even when not legally obliged to do so. Furthermore,
various protections and care should be extended to victims, witnesses and whistle-blowers
to ensure no intimidation or retaliation occurs.
19. These basic cross-border policies and practices are effectively used to cooperate for
a range of offences. The present report proceeds by highlighting how they have been used
to address international crimes and other offences with a nexus to business and human
rights.
III. International crimes
20. Law enforcement agencies will often cooperate to address cross-border human rights
abuses through the lens of international criminal law. International crimes, such as war
crimes, crimes against humanity, genocide, torture, slavery and forced labour, are
universally condemned. States have developed strong mechanisms for pursuing individuals
implicated in international crimes across borders, including by establishing war crimes
units.19 In addition, the Office of the Prosecutor of the International Criminal Court can
help national authorities, upon request, as its official policy is to provide assistance to
States that are investigating and prosecuting crimes within the jurisdiction of the Court, and
16 See, for example, www.ictj.org/news/great-lakes-conference-marks-significant-step-regional-
cooperation-fight-against-impunity-5.
17 See International Criminal Court, Office of the Prosecutor, “Strategic plan: 2016-2018” (2015), paras.
25, 55 and 96.
18 See, for example, International Covenant on Civil and Political Rights, arts. 7, 9-10 and 14-15.
Available from www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.
19 See Human Rights Watch, “The Long Arm of Justice: Lessons from Specialized War Crimes Units in
France, Germany and the Netherlands” (2014). Available from www.hrw.org/report/2014/09/16/long-
arm-justice/lessons-specialized-war-crimes-units-france-germany-and.
with other serious crimes under national law. 20 This could involve referring evidence
derived from field investigations of the Court relating to economic actors involved in
international crimes.
21. However, there have been few active investigations and prosecutions of businesses
or individual economic actors, despite numerous allegations implicating both in
international crimes. To be sure, mounting a successful case for such crimes is a
monumental task, particularly owing to the difficulty in obtaining evidence across borders
that meets some jurisdictions’ stringent admissibility standards. But no reasonable
justification exists for neglecting to address allegations of international crimes committed
by economic actors. As was emphasized in the Working Group’s consultations, such
investigations typically are no more expensive or complicated than cases involving
terrorism or organized crime.
22. It was established as far back as the trials held under Control Council Law No. 10
following World War II that companies were capable of committing international crimes. In
the case of United States v. Krupp, it was shown conclusively that throughout the firm of
Krupp and its subsidiaries, prisoners of war had been employed in armament production, in
violation of the laws and customs of war. Similarly, in the Farben case (United States v.
Krauch), the tribunal noted that where private individuals, including legal persons, exploit
the military occupancy by acquiring private property against the will and consent of the
former owner, such action is in violation of international law.21 While the companies as
such were not prosecuted in the trials, the industrialists in charge of the companies were
found guilty of committing the war crimes of plunder and the use of slave labour.
23. In the 70 years since those cases, the Working Group is unaware of a single
successful prosecution of a company for committing or aiding and abetting an international
crime. Numerous attempts have been made at initiating investigations, usually owing to
pressure from civil society organizations, yet those investigations languished, often without
official explanations for a decision not to prosecute.22
24. There have been a few prosecutions of individual businesspeople for cross-border
international crimes. One notable case concerns Frans van Anraat, a Netherlands
businessman who had supplied chemicals to the regime in Iraq under Saddam Hussein
through a web of companies around the world.23 Those chemicals were subsequently used
in attacks against Kurds, killing tens of thousands of people. Originally arrested in Italy in
1989 at the request of the United States of America, van Anraat fled the country after
posting bail. In 2004, he was arrested in the Netherlands. The specialized Netherlands
International Crimes Unit conducted the case and successfully admitted evidence derived
from multiple jurisdictions, including Belgium and the United States. Van Anraat was
subsequently found guilty by a Netherlands court for being complicit in war crimes and was
ultimately sentenced to 17 years in prison.
25. In addition, a specialized unit in the Norway National Criminal Investigation Service
focusing on international crimes successfully prosecuted a businessman for complicity in
genocide in Rwanda.24 Sadi Bugingo was a businessman in Kibungo and had used his
wealth and status to support the Interahamwe militia, including by handing out supplies to
fighters at his store in the city centre. 25 In investigating the case, Norwegian officials
20 See Office of the Prosecutor of the International Criminal Court, “Policy Paper on Case Selection and
Prioritisation” (2016). Available from www.icc-cpi.int/itemsdocuments/20160915_otp-policy_case-
selection_eng.pdf.
21 See United States v. Krupp and United States v. Krauch (1948). Available from www.loc.gov/rr/
frd/Military_Law/pdf/Law-Reports_Vol-10.pdf.
22 See “Corporate Crimes Principles” (footnote 3 above).
23 See www.haguejusticeportal.net/index.php?id=6332.
24 See https://trialinternational.org/latest-post/sadi-bugingo; and www.internationalcrimesdatabase.org/
Case/919/Bugingo/.
25 See 2013 Oslo District Court Judgment, pp. 16-17. Available in Norwegian only from www.asser.nl/
upload/documents/20130226T095633-Oslo%20District%20Court%20judgment%2014-02-
2013%20Norwegian.pdf.
requested meetings with authorities in Rwanda. After sending a high-level delegation to
Rwanda to discuss the case in person, they were granted full access to conduct their own
investigation in the country and were able to secure around 100 witness testimonies about
the case. These proved indispensable at trial, as other forms of evidence were hard to gather
decades after the events. In 2013, a district court in Oslo convicted Bugingo and sentenced
him to 21 years in prison.
26. Thus, States can successfully prosecute cross-border international crimes involving
economic actors, even when such cases are complex and involve events occurring many
years earlier. Specialized units devoted to international crimes help in that regard, and
networks such as the Genocide Network of the European Union can facilitate cross-border
cooperation. 26 What is needed is a recognition of the role that companies and other
economic actors play in these crimes and a corresponding willingness to pursue these actors
alongside other perpetrators.
IV. Cases involving transnational harm and economic actors
27. While there have been few cases in which economic actors have been charged for
violating core international crimes, successful investigations and prosecutions are more
prevalent for other cross-border harms closely linked to human rights. By detailing the
practices that law enforcement agencies use to cooperate in cases of trafficking in persons,
environmental crimes, transnational bribery and corruption, the Working Group hopes that
States will realize that they already possess a toolkit that can be transposed to the business
and human rights context. Thus, in the following sections, the Working Group discusses the
legal frameworks, tools and networks that facilitate cooperation between States with respect
to each crime and provide cases to illustrate how these work in practice. The cases
demonstrate that, when States decide to act, they are able to effectively work together.
A. Trafficking in persons
28. Trafficking in persons is a ubiquitous phenomenon that has rightly been the focus of
many Governments and law enforcement agencies around the world. The International
Labour Organization (ILO) has estimated that millions of persons are trafficked at any
given point in time and that annual profits from trafficking range in the tens of billions of
dollars.27
29. Trafficking in persons is a serious crime that has been recognized as a serious
human rights issue. Numerous international and regional human rights instruments prohibit
trafficking, and the General Assembly and Human Rights Council have repeatedly affirmed
that trafficking violates and impairs fundamental human rights. Moreover, practices
associated with trafficking, such as debt bondage and forced labour, constitute discrete
human rights violations.
30. Although trafficking in persons can occur within a single jurisdiction, it often has
cross-border elements. Victims are routinely trafficked across borders to be exploited in
different States. Likewise, traffickers move between States to evade detection and
punishment. Since victims, witnesses, defendants, and actions can all be in different States,
there is a growing consensus that the problem cannot be countered by any one country in
isolation.
26 The European network of contact points in respect of persons responsible for genocide, crimes against
humanity and war crimes, otherwise known as the Genocide Network, was established through
Council of the European Union Decision 2002/494/JHA “to ensure a close cooperation between …
national authorities in investigating and prosecuting [international crimes]”. See
www.eurojust.europa.eu/Practitioners/networks-and-fora/Pages/genocide-network.aspx.
27 See ILO, ILO Action Against Trafficking in Human Beings (Geneva, 2008), p. 1. Available from
www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_090356.
pdf.
31. Until the adoption in 2000 of the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime (the Trafficking Protocol), the
international legal framework covering trafficking in persons had been a patchwork of
treaties addressing slavery, 28 prostitution, 29 labour regulation 30 and human rights. 31 The
Trafficking Protocol provided the first comprehensive and internationally agreed-upon
conception of trafficking in persons, defining it as “the recruitment, transportation, transfer,
harbouring or receipt of persons, by [certain improper] means … for the purpose of
exploitation”. States are required to criminalize this conduct and, by virtue of the United
Nations Convention against Transnational Organized Crime, liability must also be
established for legal persons. 32 Furthermore, both the Convention and its Trafficking
Protocol have detailed provisions on many different forms of cross-border cooperation.33
32. At the regional level, the Council of Europe Convention on Action against
Trafficking in Human Beings is a good example of a legally binding instrument covering
trafficking. As with the Trafficking Protocol, it obliges States to criminalize trafficking in
persons, ensure that legal persons be held liable for offences and cooperate with each other
to investigate and prosecute cross-border cases.
33. Many different multilateral organizations have dedicated teams on trafficking in
persons and have created useful resources to facilitate cross-border cooperation. For
instance, UNODC has created multiple guides on trafficking in persons and cooperation,34
maintains an online directory of authorities designated under the Trafficking Protocol,35 has
developed a human trafficking knowledge portal to share legislation and jurisprudence
regarding trafficking in persons36 and implements capacity-building projects with States.37
INTERPOL provides operational support and has specific tools on trafficking in persons in
its I-24/7 network, such as the Human Smuggling and Trafficking message and
MIND/FIND, to share information regarding trafficking and to run instantaneous checks
against INTERPOL databases.38
34. Several European tools provide examples of regional initiatives that help cross-
border cooperation in cases of trafficking in persons. Under the Schengen system, the Visa
Information System and Second Generation Schengen Information System allow
participating States to exchange information regarding the movement of people, including
by issuing and consulting alerts in real time on missing persons and suspected criminals.
35. Europol administers multiple information exchange systems and an operational
project — FP Phoenix — to provide a range of specialist services related to cases of
trafficking in persons. Similarly, Eurojust has a project dedicated to trafficking in persons
and a case management system that helps coordinate operational activities. The
28 For example, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery (1956).
29 For example, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of
the Prostitution of Others (1950).
30 For example, the ILO Forced Labour Convention (1930) (No. 29) and Abolition of Forced Labour
Convention (1957) (No. 105).
31 For example, the Convention on the Elimination of All Forms of Discrimination against Women, art.
6, (1979); Convention on the Rights of the Child, art. 35 (1989); and Optional Protocol to the
Convention on the Rights of the Child on the sale of children, child prostitution and child
pornography, arts. 1-3 (2000).
32 See Trafficking Protocol, arts. 1 and 5; and United Nations Convention against Transnational
Organized Crime, art. 10.
33 See Trafficking Protocol, arts. 9-11 and 13; and United Nations Convention against Transnational
Organized Crime, arts. 7, 13-21 and 26-30.
34 For example, the Toolkit to Combat Trafficking in Persons (2008); and Legislative Guides for the
Implementation of the United Nations Convention against Transnational Organized Crime and the
Protocols thereto (2004).
35 Available from www.unodc.org/cld/en/v3/sherloc/cnadir.html.
36 Available from www.unodc.org/cld/en/v3/htms/index.html.
37 See www.unodc.org/southeastasiaandpacific/en/Projects/2009_04/Transnational_Crime.html.
38 See www.interpol.int/Crime-areas/Trafficking-in-human-beings/INTERPOL-tools.
Organization for Security and Cooperation in Europe also helps ensure efficient cross-
border cooperation to deal with trafficking in persons through its Special Representative
and Coordinator for Combating Trafficking in Human Beings, who assists with capacity-
building and policy guidance.
36. In addition, labour inspectors play a key role in uncovering situations of workplace
exploitation. Networks such as the International Association of Labour Inspection and
organizations such as the ILO, which has a labour administration and inspection
programme, help facilitate cooperation among inspectors, exposing cross-border cases of
trafficking in persons.39
37. Several cross-border operations have successfully disrupted trafficking in persons.
For example, an INTERPOL-led operation in South and Central America with support from
25 countries led to the arrest of over 130 people, the dismantling of several organized
criminal networks and the rescue of over 2,700 victims.40 The operation utilized preparatory
training workshops, INTERPOL databases and coordinated checks at several South
American airports. It led to both the closure of an adoption agency implicated in the
trafficking in children and the arrest of company owners who had instituted slave-like
practices in the Plurinational State of Bolivia.
38. In another operation, conducted in Côte d’Ivoire and Ghana and supported by
INTERPOL and the International Organization for Migration (IOM), 48 children were
rescued and 25 people arrested for exploiting the children in the cocoa and mining sectors.41
Prior to the rescue, IOM and INTERPOL had developed operational plans and conducted
training on how to provide proper assistance to the victims. Specialist officers from the
INTERPOL Human Trafficking and Child Exploitation unit, hundreds of law enforcement
officers and civil society organizations were involved in the operation.
39. The investigation and prosecution of Kronos Sanitärservice GMBH and N.V.
Carastel Motorway Services (now Auto-Grill) in Belgium is a useful example of a cross-
border trafficking investigation that clearly implicated business entities. 42 Kronos, a
German company, had recruited workers in different countries to provide cleaning services
for Carastel in Belgium. Labour inspectors discovered that the workers had been subject to
extremely harsh work conditions, sparking an investigation. After noticing irregularities in
the workers’ German employment forms, the Belgian investigative judge sent a rogatory
commission, made up of Belgian police and a labour inspector, to Germany, where there
was an ongoing investigation into the same issues. Constructive cooperation between the
Belgian and German investigators led to the successful prosecution of both companies and
several individuals for human trafficking.
40. The importance of civil society and the media can be seen in cases involving
trafficking in persons in South-East Asia. Following investigative reports by several
organizations uncovering the use of trafficked workers in the fishing industry, Indonesia
initiated prosecutions against Thai employees of an Indonesian company. 43 The
Government of Thailand cooperated by sending a multidisciplinary delegation to Indonesia
39 See ILO, “Labour Inspection and Undeclared Work in the EU” (2013). Available from
www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---lab_admin/documents/publication/
wcms_220021.pdf.
40 See www.interpol.int/News-and-media/News/2016/N2016-098.
41 See www.interpol.int/News-and-media/News/2015/N2015-085.
42 Decision available in French from www.unodc.org/res/cld/case-law-doc/traffickingpersonscrimetype/
bel/2012/case_no__20123925_html/BEL030-Case_No._2012-3925.pdf. See also “Corporate Crimes
Principles” (footnote 3 above), pp. 5-7.
43 See “Corporate Crimes Principles” (footnote 3 above), pp. 37-38. See also Environmental Justice
Foundation, Sold to the Sea: Human Trafficking in Thailand’s Fishing Industry (London, 2013); and
Kate Hodal et al., “Revealed: Asian slave labour producing prawns for supermarkets in US, UK”,
Guardian, 10 June 2014, Available from www.theguardian.com/global-
development/2014/jun/10/supermarket-prawns-thailand-produced-slave-labour.
to assist in the investigation, which included a civil society organization to provide support
for the victims.44
41. States have effectively investigated cases of trafficking in persons and prosecuted
perpetrators by adopting a strong legal framework for the prohibition of trafficking in
persons and cross-border cooperation, creating and working with specialized networks to
coordinate activities, by collaborating with civil society organizations and by utilizing
traditional cross-border cooperation mechanisms. As trafficking in persons is a crime
involving transnational human rights abuse and economic actors, the tools used to combat it
should be transferable to the business and human rights framework.
B. Environmental crimes
42. The investigation and prosecution of cross-border environmental crimes is another
area where States have established well-defined mechanisms for cooperation that may be
instructive in the area of business and human rights. Cooperation in cases involving the
unlawful movement and disposal of hazardous waste and wildlife and forestry crime shows
that when States have the will to prosecute economic actors, they are successful in doing so.
1. Unlawful movement and disposal of hazardous substances and wastes
43. Broadly speaking, the unlawful transport, trade and disposal of hazardous wastes
covers the illicit transfer of harmful substances, and the purposeful or accidental dumping
of these substances in the environment.
44. The reckless disposal of harmful substances contaminates our air, water and land,
putting human health and food security at risk. Improper waste disposal has led to physical
injury and death, poisoning and increased rates of cancers, birth defects and neurological
disorders. Thus, a range of human rights are implicated when violations take place, most
clearly the rights to health and the enjoyment of a safe, clean, healthy and sustainable
environment.
45. As with most environmental crimes, the unlawful transfer and disposal of wastes
often involves multiple States, typically with waste being sent from more developed
countries to less developed countries. Even if waste is disposed of in the State where it was
generated, it can still produce negative effects in bordering States if disposed of improperly.
Thus, to effectively investigate and prosecute violations, an international response is
needed.
46. Several international conventions regulate waste management and call upon States
to cooperate with each other to prevent violations. For instance, the Basel Convention on
the Control of Transboundary Movements of Hazardous Wastes and their Disposal obliges
States to prevent and punish the illegal traffic of waste and requires a range of cooperative
measures, including the free sharing of information related to the transboundary movement
of wastes. The Stockholm Convention on Persistent Organic Pollutants and the Rotterdam
Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade provide additional regulations for the production, use and
movement of numerous harmful substances. Furthermore, a range of instruments prohibit
pollution of the marine environment and, in some cases, contain provisions on how States
should cooperate to enforce that prohibition.45
47. Various regional measures add more protections against the unlawful movement and
disposal of hazardous wastes. For instance, the Bamako Convention on the Ban of the
Import into Africa and the Control of Transboundary Movement and Management of
Hazardous Wastes within Africa supplements the Basel Convention and prohibits the
import of all hazardous wastes, for any reason, into Africa from non-contracting parties.
44 See “Thailand’s Progress Report on Anti-Human Trafficking Efforts” (2015), p. 6. Available from
www.mfa.go.th/main/contents/files/media-center-20150430-161606-980768.pdf.
45 For example, the United Nations Convention on the Law of the Sea (1982) and the Convention on the
Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972).
Furthermore, the European Union regulations No. 1013/2006 on shipments of waste and
No. 2012/19/EU on waste electrical and electronic equipment ensure further protection
against harmful transfers of waste beyond the requirements of the Basel Convention and
require member States to impose penalties on businesses that fail to comply.
48. States have a wide range of tools at their disposal to enhance cooperation with each
other with respect to investigating and prosecuting waste-based offences. Several initiatives
at INTERPOL facilitate closer connections between States and provide support for cross-
border operations. For instance, the INTERPOL Pollution Crime Working Group creates a
forum for experts and criminal investigators to work together on projects targeting the
transboundary movement of hazardous wastes, in particular electronic waste and ship
pollution. Project Eden at INTERPOL works with that Working Group and supports States
with the exchange of criminal intelligence and regional operations. The World Customs
Organization also has a dedicated environmental programme that helps customs agencies
around the world tackle the illicit trade in hazardous wastes. Furthermore, the International
Network for Environmental Compliance and Enforcement brings together regulators,
investigators, prosecutors, judges, civil society organizations and business to implement
strategies aimed at improving the enforcement of environmental regulations, including with
respect to the management of chemicals and waste.
49. Numerous regional organizations facilitate cooperation between law enforcement
agencies in dealing with environmental crime, including the Asian Environmental
Compliance and Enforcement Network, Commission on Environmental Cooperation, East
African Network for Environmental Compliance and Enforcement, and South American
Environmental Compliance and Enforcement Network. The Regional Enforcement
Network for Chemicals and Waste connects frontline enforcement officials from 25
countries across North-East, South-East and South Asia to coordinate the control of illegal
transboundary waste traffic. In addition, the European Union Network for the
Implementation and Enforcement of Environmental Law includes a team on the cross-
border shipment of wastes focusing on the implementation of European waste shipment and
waste management rules. Beyond capacity-building activities, the Network facilitates joint
enforcement projects between States’ customs and police authorities.
50. In addition, numerous international and regional information-sharing systems are
available to States for investigation of waste-based offences. The INTERPOL Ecomessage
system allows law enforcement agencies to securely communicate regarding environmental
crime and cross-reference material from other investigations. Similarly, the World Customs
Organization has developed ENVIRONET, a communication tool that facilitates
information exchange on environmental issues in real time. Regionally, the European Data
Interchange for Waste Notification Systems, due to become operational in 2017, will allow
authorities in different States to exchange quickly and securely information related to waste
shipments within, into and out of the European Union.
51. All of these mechanisms are used by States to cooperate with investigating and
prosecuting cases against economic actors, demonstrating that, when States have the
political will and work together, they can successfully thwart corporate misconduct.
52. For instance, in 2012, seven European and African countries worked together
through the INTERPOL Operation Enigma to target the illegal trade of e-waste. 46
Coordinated checks were done at ports considered to be the source and destination of waste
flowing from Europe to Africa, uncovering over 240 tons of illegal e-waste. The operation
led to criminal investigations against 40 companies.
53. The World Customs Organization also coordinated operations leading to massive
seizures of illegal hazardous waste. In Operation Demeter I, customs agencies from 65
countries worked together to stop the shipment of hazardous wastes from Europe to Asia
46 See www.interpol.int/News-and-media/News/2013/N20130225.
and Africa.47 Checks were done at over 300 seaports, with customs administrators notifying
each other of suspicious activities through the Organization’s secure communication tool.
Over 36,000 metric tons of waste were seized during the operation.
54. In 2016, the largest-ever criminal penalty involving deliberate vessel pollution was
reached in a plea deal following a case involving cooperation between authorities in the
United Kingdom of Great Britain and Northern Ireland and the United States.48 An engineer
for a cruise ship of Princess Cruise Lines Ltd. found the company dumping waste into the
ocean and decided to expose the illegality to the British Maritime and Coastguard Agency,
which shared the information and other evidence given by the whistle-blower with the
United States Coast Guard, which in turn inspected the ship upon arrival in New York. This
led to an official investigation by the United States Department of Justice and a $40 million
penalty imposed on the company for deliberately polluting the seas and intentionally trying
to cover it up.
55. These simple acts of notifying a different jurisdiction of the arrival of a criminal
entity and providing evidence given by a whistle-blower led to a massive fine, $1 million of
which was shared with the United Kingdom, the notifying State, for projects benefitting the
marine environment. Established mechanisms, such as legal instruments providing for
cooperation, multilateral networks and online tools to facilitate information exchange
dealing with the transfer and disposal of hazardous wastes, have also yielded successful
prosecutions of economic actors.
2. Wildlife and forestry crime
56. Wildlife and forestry crime consists of the acquisition, possession or trade of wild
fauna and flora contrary to domestic or international law. That includes poaching of
endangered animals such as elephants and rhinoceroses for their body parts, and illegal
logging.
57. Such activities threaten species and ecosystems, leading to a loss of biodiversity and
impacts on the food security and livelihood of communities. Wildlife crime often occurs
together with a range of other crimes, including fraud, corruption, money laundering,
kidnapping, murder and the trafficking of weapons, drugs and people.49 Organized criminal
groups and non-State armed groups derive significant income from the exploitation and
trading of natural resources. Illegal logging itself deprives Governments of billions of
dollars of tax revenue and undercuts legitimate, environmentally-responsible forest
enterprises. Thus, the total effects of wildlife crime have significant negative impacts for
human beings, animals, the environment, business and States themselves.
58. Those impacts are rarely confined to the territory of a single State. Contrary to the
trade in hazardous wastes, the illicit trade in wildlife typically flows from less developed
countries to more developed countries. 50 Therefore, the transnational nature of wildlife
crime calls for a coordinated global response.
59. The most comprehensive international instrument regulating wildlife crime is the
Convention on International Trade in Endangered Species of Wild Fauna and Flora, which
requires States to set up a system whereby permits are required to import or export listed
species. For the most restricted set of animals and plants, trade is prohibited unless
scientific and management authorities in both the exporting and importing States authorize
47 See World Customs Organization, “Operation Demeter: Executive Summary” (Brussels, 2010).
Available from www.wcoomd.org/~/media/wco/public/global/pdf/topics/enforcement-and-
compliance/activities-and-programmes/environmental-crime/ex_sum_demeter_en.pdf?db=web.
48 See www.justice.gov/opa/pr/princess-cruise-lines-pay-largest-ever-criminal-penalty-deliberate-
vessel-pollution.
49 See INTERPOL, “Environmental Crime and its Convergence with other Serious Crimes” (Lyon,
France, 2015).
50 See Daan van Uhm, “Illegal Wildlife Trade to the EU and Harms to the World”, in Environmental
Crime in Transnational Context: Global Issues in Green Enforcement and Criminology (2016), pp.
43-49.
the transfer in accordance with the Convention. All States parties must prohibit trade in
violation of the Convention and penalize the trade or possession of listed species.
60. The European Union implements the Convention through its wildlife trade
regulations and became a party to it in 2015. In addition, it extends even stricter protections
with respect to certain forms of wildlife crime. For instance, as part of its Forest Law
Enforcement, Governance and Trade Action Plan, the European Union Timber Regulation
was adopted, prohibiting illegally harvested timber from entering the European Union
market. Companies must exercise due diligence when placing timber or timber products
into the market unless the wood has a permit under the Convention or the State of export
has licensed it under the above-mentioned Action Plan system. States must adopt effective,
proportionate and dissuasive penalties to ensure compliance.
61. The European Union also provides strong protection regarding illegal, unreported
and unregulated activity, in areas such as fishing.51 For such activity, a State will receive a
“yellow card” warning if it has a problematic fishing industry. If it does not cooperate in
fixing the situation, the State could receive a “red card”, banning all fish caught in the State
from entering the European Union market. Regulations on illegal, unreported and
unregulated activity provide for cooperation mechanisms between the European Union and
third countries to help the latter comply with the rules.52 After receiving a yellow card in
2015, Thailand enacted several measures to reform its fishing industry, including by
strengthening its human trafficking laws and improving law enforcement’s ability to engage
in cross-border cooperation.53
62. Domestic laws are also important to ensure robust legal protection against wildlife
crime. One notable example is the United States Lacey Act. The Act prohibits the trade and
possession of a wide range of plants and animals, including all species protected under the
Convention, in violation of United States law, state law and foreign law. Legal entities,
alongside natural persons, are subject to the law, and the Act has been the basis for several
corporate prosecutions. In Australia, the Illegal Logging Prohibition Act is another example
of good legislation addressing wildlife crime. The law makes it a criminal offence for
businesses to import any illegally-logged timber and requires businesses to exercise due
diligence in this regard.
63. The International Consortium on Combating Wildlife Crime is a collaborative effort
of the secretariat of the Convention, INTERPOL, UNODC, the World Bank and the World
Customs Organization that supports law enforcement in many ways. Beyond providing
tools and guidance documents to teach States how to improve their enforcement efforts, the
Consortium can deploy wildlife incident support teams to offer on-the-ground assistance.
Together with other organizations, the Consortium helps coordinate multi-State operations
to detect and stop cross-border wildlife crime.
64. INTERPOL is another organization that provides operational support and tools to
enhance State capacities in this area. Under its Environmental Compliance and
Enforcement Committee, INTERPOL has working groups on fisheries crime and wildlife
crime, both of which, among other activities, bring together specialists in the area to
network and exchange expertise. INTERPOL also has projects dedicated to specific types
of wildlife crime and supports States by providing intelligence, analysis, and operational
coordination. These include Project LEAF on illegal logging and related crimes, Project
Predator on Asian big cats and other wildlife species and Project Scale on transnational
fisheries crime.
65. Many regional initiatives exist that focus on cross-border law enforcement
cooperation for wildlife and forestry crime. A noteworthy example is the Lusaka
Agreement Task Force, an organization open to all African States. The Task Force is a
permanent law enforcement institution that facilitates cooperation between States parties
51 For example, Council Regulation (EC) No. 1005/2008; and Commission Regulation (EC) No.
1010/2009.
52 See https://ec.europa.eu/fisheries/sites/fisheries/files/docs/body/cooperation_note_en.pdf.
53 See www2.thaiembassy.be/press-release-thailands-progress-in-combating-iuu-fishing/.
with investigating wildlife crime, conducts its own intelligence gathering and undertakes
joint investigations and enforcement operations in the territories of States parties. The Task
Force helped launch — and is an implementing agency for — the independent Wildlife
Enforcement Monitoring System project, which provides a secure, web-based platform for
information sharing on unlawful trade and analyses reported data to detect trading routes.
66. Regional wildlife enforcement networks facilitate cooperation through capacity-
building, ensuring communication between agencies and synchronizing operations.
Examples include the ASEAN network, Central African Forests Commission, Central
American network, Horn of Africa network, North America Wildlife Enforcement Group,
South American network and South Asian network. States are encouraged to join wildlife
enforcement networks in their region or create a regional network if one does not exist.
67. Several of these wildlife enforcement networks, along with the Lusaka Agreement
Task Force, World Customs Organization, INTERPOL and other organizations, have
worked together on a number of massive joint operations to stop wildlife crime. One of
these, named Operation COBRA III, was the biggest ever coordinated international law
enforcement operation targeting the illegal trade in endangered species.54 It involved the
cooperation of 62 countries across Africa, America, Asia and Europe. Utilizing the
communication system of the World Customs Organization to exchange intelligence, the
operation led to hundreds of arrests and the seizure of tens of thousands of illegal wildlife
items.
68. INTERPOL Operation Stingray II is another good example of State cooperation.
The operation focused primarily on the illicit fishing activity in the Southern Ocean of six
vessels that had been believed to be operating in a network to catch high-value fish illegally
and ship them to North American and European markets through a complex chain of
countries. Forty-nine States, as well as civil society organizations, were involved in the
operation, exchanging information to track the ships and coordinating on how to investigate
the owners and operators behind them. With the support of an INTERPOL investigative
support team, prosecutors in Sao Tome and Principe secured the conviction of three crew
members. 55 The operation also led to criminal investigations and prosecutions being
brought against companies and individuals in at least seven other countries. In Spain alone,
nine companies faced a range of sanctions, including fines totalling more than €17
million.56
69. In the area of illegal logging, the INTERPOL-led Operation Amazonas was
successful in targeting criminal groups linked to illegal logging in Peru, involving the
cooperation of Brazil, China, the Dominican Republic, Mexico and Peru. Coordinated
border inspections and intelligence exchange led to the uncovering of violations by
individuals and companies and the seizure of over $20 million worth of wood. The success
of the operation led to a subsequent investigation (Amazonas II) covering Central and
South America, with the cooperation of 12 Latin American countries. That subsequent
operation resulted in hundreds of arrests and the seizure of over $45 million worth of
timber.57
70. The above cases emphasize the importance of utilizing networks to cooperate in
cross-border cases. Highly successful operations have been conducted when international
and regional organizations coordinate with each other and with domestic authorities and
civil society. By using the wide range of tools provided by those networks, including on-
the-ground training and information exchange platforms, many economic actors have been
caught and prosecuted for engaging in cross-border misconduct.
54 See Europol, “Europol Supports Largest Ever Coordinated Operation Against Wildlife Crime” (18
June 2015). Available from www.europol.europa.eu/newsroom/news/europol-supports-largest-ever-
coordinated-operation-against-wildlife-crime.
55 See INTERPOL, “INTERPOL-supported illegal fishing investigations lead to prosecution” (13
October 2015). Available from www.interpol.int/News-and-media/News/2015/N2015-160.
56 See www.fish-i-africa.org/vidal-armadores-banned-fined-and-awaiting-trial/.
57 See www.interpol.int/Crime-areas/Environmental-crime/Operations.
C. Transnational bribery and corruption
71. Transnational bribery and corruption is another area where cross-border cooperation
has been used to successfully investigate and prosecute businesses. States parties to the
United Nations Convention against Corruption have universally recognized the harm that
transnational bribery causes to the public, and the Office of the United Nations High
Commissioner for Human Rights (OHCHR) and Human Rights Council have noted the link
between corruption and human rights, as the payment of bribes or embezzlement of public
funds are often linked to underlying human rights abuses. 58 The investigation and
prosecution of those crimes typically requires the need to detect and track the illegal flows
of money across State lines; thus, States need to cooperate to determine where a bribe has
been paid and where the illicit proceeds subsequently have moved.
72. The existence of key legal frameworks provides an enabling environment for cross-
border cooperation with respect to corruption. In furtherance of treaty commitments, States
have created national offences focused on transnational bribery. In addition, relevant
treaties oblige States to provide for the criminal or administrative liability of legal persons;
hence, there is an explicit recognition that businesses will be the subject of enforcement
actions.
73. The United Nations Convention against Corruption, for instance, requires States to
establish liability for legal persons and to provide penalties for foreign bribery within their
national legislation.59 The convention also explicitly recognizes the need for mutual legal
assistance and cooperation between law enforcement. 60 Article 48 requires States to
cooperate closely with one another, consistent with their respective domestic legal and
administrative systems, to enhance the effectiveness of law enforcement action to combat
the offences covered by the Convention, and article 49 obliges States to consider forming
joint investigative bodies for cross-border cases.
74. The Organization for Economic Cooperation and Development (OECD) Convention
on Combating Bribery of Foreign Public Officials in International Business Transactions is
another instrument that requires States to criminalize the bribing of foreign public officials,
establish liability for legal persons and cooperate with one another to enforce its
provisions.61 It was the first anti-corruption treaty to focus on the supply side of bribery in
that it requires home States of corporations to hold business entities accountable for bribes
paid overseas. It has also been instrumental in making States refine their national laws to
ensure companies can be held liable.62
75. Both the OECD Convention and United Nations Convention against Corruption
contemplate peer learning, as their respective review mechanisms allow States to review
each other’s implementation of the conventions. 63 OECD has established the Working
Group on Bribery, which meets regularly to discuss progress that member States have made
with the implementation of its Convention. The Working Group allows States to share
experiences and good practices in enforcing foreign bribery laws and provides a robust peer
58 See, for example, OHCHR, “The Human Rights Case Against Corruption” (Geneva, 2013), available
from www.ohchr.org/Documents/Issues/Development/GoodGovernance/Corruption/
HRCaseAgainstCorruption.pdf; and Human Rights Council resolution 23/9.
59 See United Nations Convention against Corruption, arts. 16 and 26.
60 Ibid., arts. 5 (4), 14 (5), 37 (5), 42-51 and 53-62.
61 See Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions, arts. 1-3 and 9-11. Available from www.oecd.org/daf/anti-bribery/
ConvCombatBribery_ENG.pdf.
62 See OECD, The Liability of Legal Persons for Foreign Bribery: A Stocktaking Report (2016), p. 14.
Available from http://www.oecd.org/daf/anti-bribery/Liability-Legal-Persons-Foreign-Bribery-
Stocktaking.pdf.
63 See UNODC, “Mechanism for the Review of Implementation of the United Nations Convention
against Corruption”, available from www.unodc.org/unodc/en/treaties/CAC/IRG.html; and OECD
Working Group on Bribery in International Business Transactions, available from
www.oecd.org/corruption/anti-bribery/anti-briberyconvention/oecdworkinggrouponbribery
ininternationalbusinesstransactions.htm.
review process where States evaluate each other’s implementation of the Convention on an
ongoing basis. Under the OECD process, each State is subject to continuous monitoring,
whereas the United Nations Convention against Corruption process provides a staggered
review where not every State party is assessed regularly.
76. Several networks exist for practitioners to share useful practices and support each
other in operations fighting corruption and recovering assets. For instance, the Camden
Assets Recovery Interagency Network, hosted by Europol, brings together law enforcement
officers and judicial experts from 54 States and 9 international organizations to share
expertise and provide a network whereby members can cooperate to recover assets from
unlawful financial transactions including corruption.64 The effectiveness of the Network
model has led to similar networks being established in the Asia Pacific region, Southern
Africa and West Africa.65 The Corruption Hunters Network is another useful group in the
fight against corruption, which brings together police and prosecutors from nearly 20 States
(and all regions of the world) to exchange experiences regularly and discuss how best to
coordinate efforts. 66 The World Bank similarly brings together experts in the field,
including non-State actors, every two years as part of its International Corruption Hunters
Alliance.
77. A new initiative spearheaded by the United Kingdom, in partnership with Australia,
Canada, Germany, New Zealand, Singapore, Switzerland and the United States, will create
a permanent centre through which States will be able to cooperate in cases of grand
corruption involving international dimensions. The International Anti-Corruption
Coordination Centre will be based in London and will establish and implement an operating
model based on international cooperation through intelligence collection and analysis,
practical actions and case coordination.67
78. International financial institutions can play an important role in terms of sharing
information with national authorities. For instance, the World Bank Integrity Vice
Presidency has helped generate successful domestic prosecutions through its referral
system. The Integrity Vice Presidency conducts investigations of World Bank-financed
projects to determine if any project-related corruption or fraud has occurred. If, in the
course of its investigations, the Bank believes that national laws have been violated, it can
provide information to national law enforcement to initiate criminal investigations and
prosecutions. The Stolen Asset Recovery Initiative, run jointly with the UNODC, works
with States to build capacities and, when requested, assists with specific asset recovery
cases.
79. The above-mentioned Initiative has several online tools that can help States recover
assets that have been unlawfully transferred overseas. For instance, it compiles asset
recovery guides for key jurisdictions around the world.68 It has also created an in-depth
Asset Recovery Handbook that provides guidance on all stages of asset recovery.69 The
OECD Typology on Mutual Legal Assistance in Foreign Bribery Cases also provides
detailed guidance on cooperation in foreign bribery cases.70 In addition, the Group of 20 has
64 See http://carin-network.org/.
65 See http://carin-network.org/other-information.
66 See www.norad.no/en/front/thematic-areas/democracy-and-good-governance/corruption-hunters/.
67 See INTERPOL, “Tackling corruption requires collective response, INTERPOL Chief tells
international summit” (12 May 2016). Available from www.interpol.int/en/News-and-
media/News/2016/N2016-060/; see also www.gov.uk/government/news/pm-announces-new-plan-at-
anti-corruption-summit-to-recover-stolen-assets.
68 See http://star.worldbank.org/star/ArabForum/asset-recovery-guides.
69 See World Bank and UNODC, Asset Recovery Handbook A Guide for Practitioners (Washington,
D.C., 2011). Available from https://star.worldbank.org/star/sites/star/files/asset_recovery_
handbook_0.pdf.
70 See OECD, Typology on Mutual Legal Assistance in Foreign Bribery Cases (Paris, 2012). Available
from http://www.oecd.org/daf/anti-bribery/TypologyMLA2012.pdf.
elaborated a set of High-Level Principles on Mutual Legal Assistance, which detail the
basic practices for cross-border cooperation in foreign bribery cases.71
80. Many information exchange platforms also exist to facilitate cross-border
cooperation. For instance, The INTERPOL Secure Communications for Asset Recovery
system provides an encrypted channel to allow law enforcement officers in its Global Focal
Point Network on Asset Recovery to exchange sensitive data during investigations.72 The
Financial Action Task Force of Latin America has also developed a secure platform to
exchange information as part of its Asset Recovery Network.73
81. These networks and tools have been successfully used by law enforcement in
numerous cross-border cases. For example, connections made through several networks,
including the Corruption Hunters Network, facilitated the trust needed for Brazilian, French
and Swiss authorities to cooperate in investigating and prosecuting the French firm Alstom
for bribing officials in Brazil to win a contract to supply electrical equipment for the São
Paulo power company. 74 Information provided by law enforcement in France and
Switzerland, including evidence of large deposits in Swiss bank accounts related to the
bribery, led to a settlement of R$60 million paid by the firm.
82. Parallel investigations and prosecutions in the Brazil, Switzerland and United States
recently led to what was described as the largest-ever global foreign bribery resolution in
history.75 Through significant cooperation between the three States, investigators uncovered
a massive bribery scheme conducted by Odebrecht S.A. and Braskem S.A. to win contracts
in Latin America and Africa. The two companies pled guilty to the charge of conspiracy to
bribe foreign officials and agreed to pay at least $3.5 billion in penalties, which was shared
among the Governments of the three countries.
83. Through the use of mutual legal assistance, the United States Department of Justice
and Nigerian Economics and Financial Crimes Commission successfully prosecuted
multiple cases against companies trying to bribe officials of the Government of Nigeria. In
2008, Willbros Group Inc. and its subsidiary, Willbros International Inc., agreed to pay $22
million in criminal penalties relating to a bribe paid in Nigeria to secure rights to a pipeline
project.76 In addition, in 2010, the Department of Justice and the Commission conducted
parallel investigations into a consortium of four companies, including Kellogg Brown &
Root LLC, that had allegedly bribed Nigerian officials to win contracts for natural gas
projects in Nigeria.77 Significant cooperation between the two countries, and by authorities
in France, Italy, Switzerland and the United Kingdom, ultimately led to the United States
and Nigeria receiving $1.5 billion and $126 million, respectively, in fines and
disgorgement.78
71 See www.oecd.org/g20/topics/anti-corruption/High-Level-Principles-on-Mutual-Legal-
Assistance.pdf.
72 See www.interpol.int/Crime-areas/Corruption/International-asset-recovery.
73 See www.gafilat.org/content/cooperacion/#1 (Spanish only).
74 See R. Messic, “Furthering Cross-Border Cooperation to Fight Corruption” (2015), available from
https://globalanticorruptionblog.com/2015/12/23/furthering-cross-border-cooperation-to-fight-
corruption/; and A. Fontana, “Transforming Brazil’s anti-corruption record — Interview with Dr.
Sílvio Antonio Marques” (2017), available from www.cmi.no/publications/6155-transforming-
brazils-anti-corruption-record.
75 See United States Department of Justice, “Odebrecht and Braskem Plead Guilty and Agree to Pay at
Least $3.5 Billion in Global Penalties to Resolve Largest Foreign Bribery Case in History”
(21 December 2016). Available from www.justice.gov/opa/pr/odebrecht-and-braskem-plead-guilty-
and-agree-pay-least-35-billion-global-penalties-resolve.
76 See United States Department of Justice, “Willbros Group Inc. Enters Deferred Prosecution
Agreement and Agrees to Pay $22 Million Penalty for FCPA Violations” (14 May 2008). Available
from www.justice.gov/archive/opa/pr/2008/May/08_crm_417.html.
77 See J. Holtmeier, “Cross-Border Corruption Enforcement: A Case for Measured Coordination Among
Multiple Enforcement Authorities”, Fordham Law Review, Vol. 84, Iss. 2 (2015), pp. 493 and 498-99.
Available from http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5143&context=flr.
78 Ibid. See also United States Department of Justice, “Kellogg Brown & Root LLC Pleads Guilty to
Foreign Bribery Charges and Agrees to Pay $402 Million Criminal Fine” (11 February 2009).
84. Successful prosecutions have also resulted from cooperation between the World
Bank Integrity Vice Presidency and national authorities. For instance, in 2011, the
Norwegian National Authority for the Investigation and Prosecution of Economic and
Environmental Crime successfully prosecuted three employees of the Norwegian firm
Norconsult after the Integrity Vice Presidency referred findings from its own investigation
into the company’s bribery to win a contract for a World Bank-financed water supply and
sanitation project in the United Republic of Tanzania.79
85. The above cases show how successful States can be when they cooperate to
investigate and prosecute cross-border offences. Through a mixture of multilateral
networks, parallel investigations and formal and informal cooperation, and by working with
multilateral institutions, States have secured massive penalties from companies for their
overseas bribery.
V. Conclusions and recommendations
A. Conclusions
86. As the present report indicates, when States identify a key harm that implicates
the private sector, they are able to successfully develop processes and legal
frameworks to promote cross-border law enforcement. Upon agreeing that certain
cross-border harms, such as trafficking in persons, toxic dumping, wildlife and
forestry crime, bribery and corruption, are global problems that require a
coordinated global response, States develop and utilize innovative tools to foster
effective cross-border cooperation. Each of those crimes affects human rights, and the
Working Group applauds those efforts by States that have prevented, detected and
punished violations committed by legal or natural persons. Law enforcement still
faces many obstacles in pursuing cross-border cooperation in the areas outlined
above, but our research and consultations revealed that States are working to
continuously refine and improve their methods of cooperation, which demonstrates a
willingness to find solutions.
87. However, despite numerous allegations implicating business in classic human
rights violations and international crimes, investigations and prosecutions against
companies are almost non-existent.
88. Thus, as a key principle, if cross-border, business-related human rights abuses
amount to international crimes, those cases should be prioritized and treated the same
as other international criminal cases and States should use the existing tools at their
disposal, including war crimes units.
89. To the extent that cases involving business-related human rights abuse might
intersect with the types of crimes or regulatory offences outlined in the report,
prosecutors should also pursue these charges. For instance, if a company that is
alleged to have engaged in a human rights offence has also paid a bribe, a prosecutor
might pursue a corruption claim.
90. However, such a patchwork approach will inevitably leave some human rights
harms unaddressed. Law enforcement should explore all potential legal avenues
available when faced with cross-border harms committed by economic actors,
including by framing the harms in terms of domestic criminal or administrative
offences.80 This involves translating what may be labelled a human rights abuse as a
Available from www.justice.gov/opa/pr/kellogg-brown-root-llc-pleads-guilty-foreign-bribery-
charges-and-agrees-pay-402-million.
79 See World Bank, “World Bank Welcomes Norwegian Convictions of Three Former Employees of
Norwegian Company Norconsult in Bribery Case in Tanzania” (22 July 2011). Available from
www.worldbank.org/en/news/press-release/2011/07/22/world-bank-welcomes-norwegian-
convictions-former-employees-morwegian-company-norconsult-bribery-case-tanzania.
80 See “Corporate Crimes Principles” (footnote 3 above), pp. 42-43.
domestic offence — for example, forced labour can also constitute false imprisonment,
and crimes against humanity can involve offences such as murder and assault.
However, in all cases, any charges should reflect the gravity of the offence; thus,
prosecutors should consider any human rights impacts of the crime when deciding the
charges to be brought against an economic actor.
91. States are thus urged to collaboratively investigate and prosecute all cases
where economic actors engage in conduct adversely impacting internationally
recognized human rights to the extent that such harms arise from prohibited conduct
within a national jurisdiction.
92. To investigate and prosecute these charges properly, States should apply the
tools and methods discussed above, either directly or by analogy, to facilitate
cooperation. Such means, as discussed in the guidance from the Accountability and
Remedy Project and elaborated upon in the present report, have proved to generate
effective results in cross-border cases. The recommendations below briefly recount
those practices.
B. Recommendations
93. States should adopt a legal framework that prohibits conduct causing or
contributing to human rights violations and imposes liability on legal entities.
Moreover, States are encouraged to ratify bilateral and multilateral agreements that
provide a basis for cross-border cooperation and to ensure that their domestic law
allows for cooperation to take place.
94. Specialized investigative and prosecutorial units should be created that have
expertise in cross-border human rights cases and business associations. If war crimes
or other types of units already exist, those units should be encouraged to address
business-related human rights cases alongside those involving individual wrongdoers.
95. A central authority should be established to channel all requests for cross-
border assistance made under different treaty regimes and other legal bases. This
authority should be accessible at all times, provide contact information for domestic
and foreign authorities and be staffed by mutual legal assistance specialists who are
knowledgeable about procedural requirements and can work in several languages. A
system should be in place that tracks the status of requests, prioritizes urgent appeals,
and ensures that deadlines are met.
96. States should encourage authorities to cooperate and provide training on
sending and receiving requests for assistance. Requests for mutual legal assistance
should include relevant contact information, details on evidence admissibility
requirements, and any confidentiality and timeline requirements. Before rejecting any
requests, consultations should be had with the requesting State to try to overcome any
issues.
97. Informal cooperation should be used to obtain publicly available information
or other evidence that does not require coercive means by investigators. Such officer-
to-officer communication can help target subsequent requests for mutual legal
assistance or accelerate responses to urgent formal requests.
98. If possible, States should consider conducting investigations in foreign
jurisdictions if consent can be obtained. Law enforcement agencies are particularly
encouraged to establish joint investigation teams using agreements covering all
aspects of investigation, including division of labour and budgetary matters. Parallel
investigations and joint centres of investigation should also be coordinated to
minimize duplication of work and maximize efficiency.
99. States are encouraged to join, support and work with regional and
international networks that promote cooperation and coordinate cross-border actions.
These networks can operate well when they are informal, in that they serve to build
relationships without requiring the creation of a new institution.
100. States are also encouraged to, as appropriate, provide technical assistance and
resources to States that may not have the institutional capacity for cross-border
investigations. The use of networks and organizations such as INTERPOL allow for
effective resource sharing to overcome an individual State’s lack of resources.
101. Law enforcement agents should learn which online tools (in particular,
information sharing networks) are available to them and support their use. These
databases and communication tools have proven to be indispensable in cross-border
cases.
102. States are encouraged to be receptive to and cooperate with civil society
organizations that help investigate cross-border cases. Civil society organizations are
often able to amass detailed dossiers on cases by using innovative methods, conducting
investigations in remote places where law enforcement may be unable to go, and
gaining the trust of certain witnesses. At the same time, those organizations should
take care to meet admissibility standards when collecting evidence and be careful not
to jeopardize official investigations, for instance by publicizing matters prematurely.
When organizations are instrumental in bringing cases, law enforcement should
consider maintaining a relationship with these organizations once official
investigations are under way, as the organizations could be helpful in obtaining
further evidence. States should also consider ways to better train organizations with
identifying crimes and securing evidence.
103. In any investigation or prosecution, all actors must ensure that the rights of
every person are respected and protected. Protections and care should be extended to
victims, witnesses and whistle-blowers to ensure no added harm occurs. Furthermore,
suspects should never be deprived of essential rights, particularly those relating to the
fair administration of justice.