Guidelines for lawyers: taking victims' concerns into account

From 11 to 13 November 2009 the international seminar on "Transnational Corporations and Human Rights: Processing from the Victims' Perspective", was organized by the legal collective Colectivo de Abogados José Alvear Restrepo, in Suesca near Bogotá, Colombia. The participants included victims' representatives, organizations and lawyers from five indigenous communities, ten Latin-American communities, Europe and North America. Claudia Müller-Hoff from ECCHR also attended. Together, they developed a catalog of practical guidelines for lawyers.

Participants of the conference shared their first-hand experiences with well-known international human rights cases including the case against mining company Río Blanco Copper S.A. in Peru, the case against Chiquita Banana and the Peace Community of San José de Apartadó in Columbia, the case against the pesticide company Nemagón in Nicaragua and other countries, and the case of the murdered Coca-Cola-workers in Columbia, among others.

Common themes that arose included the notorious impunity and the power of corporations often wield in host countries.  Moreover, inappropriate or insufficient legislation often complicates legal proceedings in the home countries of the corporations. The development of an economic "parallel jurisdiction" on an international level was further criticized. This includes the initiatives of institutions like the International Centre for Settlement of Investment Disputes (ICSID), who work on the basis of economic regulations but do not integrate the existing international human rights norms.

The meeting also enabled victims and local and international lawyers to evaluate their cooperation and consult with each other on the specific difficulties that arise due to the geographic distance but also due to language and cultural differences. These highly differentiated discussions led to the drafting of guidelines for lawyers. These guidelines are intended to help duly reflect the interests of clients and victims and facilitate their equitable participation in the proceedings.

Some of the recommendations are:

Cooperation shall primarily be geared to the interests and rights of the victims and characterized by solidarity, trust and mutual respect.

International lawyers shall always look for direct and continuing contact with their clients.

Victims shall be informed about the different procedural options including their respective chances and risks from the beginning, in order to be able to partake in decisions; lawyers shall inform their clients in comprehensible language and include the victims when deciding about the proceeding.

Victims play an important role when establishing the facts and collecting the evidence.

Settlements and similar agreements can be counterproductive when they do not take victims into consideration and sacrifice truth and justice for a timely solution. Juridical and integral solutions shall be found, that do not only aim for financial reparation, but compensation. Purely financial solutions can produce negative consequences in the affected communities.

Proceedings against transnational corporations shall be accompanied by political work in order to mobilize the public. Human rights violations by transnational corporations are no private affairs but belong on the political and social agenda.

Each procedural strategy shall contain an evaluation of its security risk for victims and their families, as well as appropriate protective measures.

ECCHR will put these results to test. It develops together with victims, local lawyers and organizations procedures for exemplary cases of transnational corporations, which are involved in human rights violations. Its first regional focus will be Latin-America. Other world regions will follow.

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