The following are the outputs of the captioning taken during an IGF intervention. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid, but should not be treated as an authoritative record.
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>> GAYATRI KHANDHADAI: Hi everyone and welcome to the session update required, fixing the tech sectors.
>> Hi everyone. Welcome to the session update required, fixing the tech sectors. Regarding the role of private.
I have three fantastic experts that are going help guide us through the discussion today. Get prepared. This is going to be quite active. We have mics here on either side of the room. We expect a lot of audience participation. Given all expertise as well out there. And online.
First. Marwa Fatafta from Access Now. She leads on digital rights and Middle East in North Africa and written extensively on the digit occupation in Palestine. And Shantelle Jordis from Article 19. Senior leader officer focusing on platform regulation and freedom of expression in armed conflicts. And Kiran Aziz, head of responsible investments at Norway's largest pension fund KLP. She monitors and maintain responsible business practises.
And my name is Meredith Veit. I'm a tech and human rights researcher at the business and Human Rights Resource Centre. At the resource centre we systematically track human rights harms that are linked to corporate misconduct, including for the tech sector. And these allegations come from journalists, whistleblowers, digital right activists and workers from around the world. And we've logged over 1490 different data points related to tech and conflict over the past 10 years.
Our data shows that technology companies are now deeply embedded in modern conflicts. We've recorded allegations of companies sourcing critical minerals from conflict zones. Some even being accused of financing arms groups. Others have been linked to restrictions of freedom of expression by complying with government‑ordered internet shutdowns. Silences internal dissent amongst employees. Or disproportionately censuring one side of a conflict.
There are also concerns about platforms amplifying calls for violence through algorithms and serious claims some tech companies are continuing to provide tools and critical infrastructure directly to militaries that have been credibly accused of war crimes.
At the resource centre we're also seeing tech companies are less transparent about their operations in conflict‑affected areas, when the opposite should be true. They should be more transparent about how they are managing human rights risks in delicate context in alignment with the UN guiding principles on business and (?)
In 2014 we conduct ad survey with 104 technology companies operating in providing services to the occupied Palestine territories and/or Israel. And only three companies got back us in detail actually responding tot questions of the survey. Making it nearly impossible to actually determine if and how heightened human rights diligence is actually occurring at all in a context long been exposed to conflict related risk. This astonishingly low 4% response rate from companies is unprecedented in resource centres history. And previously we had sent a similar survey to tech companies operating in Russian Ukraine and 26% had responded by comparison. And of course both numbers are abysmally low. 26% and 4%. Which means we need more transparency about what is actually going on.
Over the past couple of months weave also reached out to 7 tech companies concerning credibilities of facilitating war crimes and only two of them have been willing to engage and provide further transparency. At the moment there are more than 110 armed conflicts taking on ‑‑ taking place around the globe and all of our headlines are covered with various conflicts going on at any given moment. Broadly speaking across a number of sectors we're seeing all too often companies are not just profiting from conflicts but they are exacerbating them. Furthering harm. Fueling violence and in some cases fueling war crimes and gross violation of international law.
We only have a handful of instance where we've seen corporate accountability for aiding war crimes and crimes against humanity playing out in courtrooms and cabinet rooms and boardrooms, whether it is convictions or sanctions or investors diverting funds from those that don't uphold their responsible investment principles. And we're going to talk about a few of these things today. Such as governments placing export controls on companies selling dual use tech to maligned actors. There is currently a stakeholder resolution before alphabet requesting the company carry out heightened human rights due diligence regarding human rights in conflict zones. And number after investors some here, that have excluded multiple tech companies for concerns over their misconduct. And relation to conflict in international law.
And while these examples are incredibly important and noteworthy and hopefully we'll surface even more examples during this discussion today, these should not be the exception. Guarantees that tech companies are not involved in breaching international humanitarian law should be the minimum requirement. And for the tech sector we have yet to set a strong enough precedent for accountability for international violations. As of now no major tech companies or executives have been criminally convicted for violating international humanitarian law. Although there is mounting evidence and as we know tech companies are not neutral actors in many conflicts.
So we're going spend the rest of our time today, about 50 minutes, discussing this topic together and diving into more about what is needed for greater corporate accountability for the tech sectors largely unchecked and increasingly powerful and pervasive role in conflict. So we can start with our expert interventions and then open up to the floor to talk a bit further together.
So first I'll start off all the way to my left with Marwa. Asking her to kick us off. Can you reflect on different ways tech companies have been involved in conflict? And we have see any meaningful positive change in regard to corporate behaviour in response to civil society or regulatory pressure?
>> MARWA FATAFTA: Thank you very much Meredith. And thanks everyone for attending this session.
Starting with the fact that tech companies are never neutral actors. They exacerbate the dynamics of the conflict and sometimes even drive them or fuel them. Particularly in contexts of asymmetries of power and warring parties. They can facilitate human rights abuses or in some cases contribute to atrocity crimes.
I've been primarily focused on the Gaza the past year and a half so most of my examples will derive in this particular context. Which is in important. Because in some ways it might be a foreshadow to the future of warfare and cyber warfare and the involvement of tech companies. And I'll expand on that in due course.
But I can summarise the ways which tech companies have been involved in three notable patterns.
Firstly, tech companies can be responsible for direct I causing human rights impacts that undermine or violate people's human rights. Right to freedom of expression, right to peaceful association of assembly. Right to bodily security, non discrimination among other rights encoded and enshrined in the international covenant on ‑‑ and economic and cultural rights. And example of that is what you mentioned censorship on so social doctor orb by social media companies and systematic removal of Palestine‑related content online.
Second trend is some companies indeed can contribute to adverse impacts via third party, such as, for example, the Israeli government or could be another military. Companies provide direct technological assistance, product, services and context of Gaza. This includes cloud computing services. AI tools. Such as LLMs, facial recognition technologies, among others. International law. And possibly the crime of genocide pending before the international court of justice.
And here I want to mention maybe just few examples. We know, for instance, that Google ‑‑ so Google and Amazon, they have this $1.2 billion project providing a national cloud service or infrastructure to the Israeli government called Project Nimbus. During the war oar the start of the war, those services have surged in demand. So we know Google has deepened its business relationship with Israel, particularly the ministry of defence in 2024. And landing zone. Even created according to media reports a classified team composed of Israeli nationals with security clearances specifically tasked of information from the Israeli government. And training agencies. And participate in joint drills. And scenarios tailored to specific threats. Amazon web services also had provided according to media reports, provided Israel's media intelligence with server farms that allow for endless storage for mass surveillance data that Israel has gathered on almost everyone in the Gaza strip. And beyond supplying cloud infrastructure according to media investigations they have on occasion directly assisted IGF in verifying targets for air strikes. Other media investigations sew that the use of Microsoft azure, cloud and AI technologies have also surged by 60% in the four months of the war, compared to, for example, September 2023. The same can be said about open AI.
So this is just a demonstrate that the services they provide are substantial in nature. Indicated by the surge in high demand that we've seen across these different companies.
And also another point I would like to mention is that this is not only about providing technological support. But actually providing human resources, trainings, joint exercises.
For example some leaked documents from Microsoft had shown that the Israeli ministry of defence had purchased approximately 19,000 of engineering and consultancy services from Microsoft. And ‑‑ Microsoft teams had provided onsite. So on military bases as well as assistance and remotely to the IDF, including to units called unit A200 and unit 9‑900, which are notorious for surveillance and military surveillance in particular.
A third trend or way in which the companies or tech companies can or are involved in conflict is sometimes the companies can contribute to adverse impacts in parallel with a third party. In this case with the Israeli government or military leading to cumulative impacts. For instance, number of tech companies have married Israel's policy of apartheid and segregation. In the way they provide or prohibit or withdraw their services to the Palestinians. One clear examples of that is, for instance, Google maps. Which if you use in West bank or occupied Palestine territory, it only treats you as if you are on Israeli settler. So you are given roads that connect settlements but not given roads between Palestine towns or villages, putting people at direct safety risk.
Paypal is another interesting example. If you are an Israeli settler living in an illegal settlement. You can access Paypal services but if you are Palestine you are deprived of. Something written about by the World bank and other UN agencies, showing again the degree in which these tech companies by depriving or refusing to provide their services for whatever reason to communities that are going through with situation of military occupation, for instance, can contribute to the cumulative impact of the occupying power or the policies that they have enshrined in that area.
To your question, have we seen any positive shifts? Quick answer, no.
Unfortunately, in particularly in the Palestine context, the survey that you have shared in the beginning is really an experience that we share ourselves.
We have written letters and have tried to meaningfully engage with tech companies to point out first to point and show evidence of the harms that they are directly or indirectly contributing to. But most of those attempts have gone unproductively. We haven't gotten any productive answers from the companies with regards to their conduct. For instance, they were unable to even answer very simple questions such as have you conduct ad heightened human rights due diligence in order to mitigate and identify such harms?
There's zero transparency with regards to that conduct. But also even when they do succumb to pressure, for example, Microsoft had recently issued a statement after a year and a half of public mobilisation, not only from civil society, but particularly from their tech workers. In which they said well we conduct and audit. To see whether our technologies have contributed to harm or targeting of civilians in the Gaza strip.
And while we don't have an insight into how our technologies are used by Israel, especially in air‑gapped military base, we concluded that we have not contributed to any harm. And that contradiction in itself shows you how even UN GPs have ‑‑ you know when companies say we're going to do heightened human rights due diligence, that results in a box‑ticking exercise, where they really don't have any insider ability to control how their technologies are being used.
Finally I do want to end on a note that I think quite the opposite of what where we want to see companies going. There is a surge in increasing militarisation of civilian tech provided by these companies.
For example, both Google and open AI have both dropped commitments this year not to build AI for military use or surveillance purposes. Signalling readiness to deepen ties with the arms industry.
Within a month of ending AI principles, Google sign ad formal policy with Lockheed Martin. One of the biggest defence contractors in the world. Open AI, which maintains non profit status, also announced partnership with defence company called Anduril to employ its technologies in the back field. Aura and Anduril are also partnering to fulfil a range of products for the US military.
And last week there was a very disturbing announcement that senior executives from high‑tech firm, specifically Meta, Open AI and Palantir, are joining the US Army reserve and a new unit called executive innovation corps in the rank of lieutenant colonels to provide tech advice for the US military. So not only tech companies providing military with services but actually possibly even combatants or taking an active role in the military, which has implications...
>> MEREDITH VEIT: This is a perfect segue. Thanks Marwa. Shantelle, you tell us a little more about the blurred lines and commitments and changing what actually is a tech company and what is a defence company and are they one in the same now? What does the law, hard law, actually tell us when we are tuque about international humanitarian law. And what friction exists in applying IHL to companies? And how does this relate to other existing frameworks that should be helping to guide states and companies like international human rights law?
>> Thank you. Thank you Meredith. And thanks everyone for joining. I will try yeah to impact some of these questions little bit. I think there is a few interesting developments Marwa mentioned. One thing I remember, I believe in the Washington post. Headline of the social media company Meta is providing these like virtual reality products for US military.
And I was like well is it then still really a social network. These companies are clearly merging to something so much bigger and that obviously has been going on long time.
And also when we look at this increased integration into the military, legally speak, I think it also raises some quite significant questions around attribution. So where does it sit? And does it become a state obligation if a Meta executive operates within the military? Then again, okay might be combatant but also gives rise to state applications directly.
So I think, yeah, there is a lot of questions that are based on the facts that become more merged and become more complicated ones.
Maybe I'll first talk about the legal options and then about when it comes to enforcement.
And I think we need to look at (?) law and human rights law because in a sense they are different in application and although they both applied during arm conflicts. But also in that sense there is different opportunities for enforcement and accountability I would say. So, for example when it comes to humanitarian law, of course it starts applying in times of armed conflict, international armed conflict. And actually sort of more sort of used to apply to actors that are also not state. So be it non state armed groups. But also to individuals.
And applying it to company, it wouldn't necessarily directly apply to a company but it does apply to individuals that operate within a company when those business activities have nexus to armed conflict. And as we've heard now. Traditionally speaking you might be thinking more of mining company on the ground or private military security company that is on the battlefield. But with these technologies might have seem further removed but they are increasingly so intertwined with the military that I think there is in most case, many case, obviously always context dependant and so on. But the relatively point to make that there is this nexus to an armed conflict. So that means that the staff in that sense also would have ‑‑ would also be bound by IHL.
And at the same time human rights law is we have, very famous, soft law interest of the UN guiding principles. In terms of hard law, you would be it is more established as long as we don't have business in human rights treaty, international treaty, it is of course more established for state actors. And that also translates in sense into a bit of a difference when it comes to enforcement.
So when you look at enforcement and the accountability in terms of humanitarian law, you will primarily think about international criminal law. Or let's say, I think some people in the humanitarian sector will disagree because they say enforcement is not only litigation enforcement but I speak specifically about a legal obligations and litigations in that sense.
There is well on the international level you might be able under some circumstances to go to the international criminal court. We've been ‑‑ we've seen recently the ICC has is in the moment, is at the moment drafting policy on the office of the prosecutor of the ICC is drafting a policy on how cyber conduct might fall under the Rome statute. And there under the ICC you might have legal persons as such that can be accountable or criminally liable.
But corporate executives in theory under the very, very high thresholds that are under the Rome statute could be liable under international criminal law. So that is on the international level. Probably we still have bit of a way to go until this is an actual realistic prospect that those are the cases actually brought by the prosecutor. Let's see. Let's hope not.
On a domestic level, I think not only with respect to tech companies generally speaking terms of liability for war crimes for corporate executives is not something we have huge amount of case law. There is a oil case where we talk about aiding and abetting war crimes. And also the la barge case, really the company's liability itself at stake. Be these cases are becoming more prominent. But as so often, it really depends on the domestic framework. Do we have something like universal jurisdiction in terms ‑‑ in the domestic criminal code?
Is there again corporate, potential corporate criminal responsibility? Or does it only have to go through individuals? And depending on that you know what evidence you might need to provide. You know what legal grounds you need to prove. And you can start building a case.
Just to finish up also, of course human rights instruments, in some domestic jurisdictions, there can be a domestic legal obligation in a sense to conduct human rights due diligence, might include heightened human rights due diligence. And as well we have seen cases being brought against companies, for example, against parent companies in the UK where some of their operations in Zambia and so on.
And I think that is something we can learn how did they bring these cases again? What sort of evidence did they bring? And how with can translate this into the tech sector that is more opaque, probably more intransparent than other sectors that we might be used to.
>> MEREDITH VEIT: And this is a great setup for how we're going to open to the floor for questions soon. We're going discuss what kind of evidence is needed? And how can we work more collaboratively to get there.
And when it comes to investors, there may be different criteria about what constitutes evidence for investor action.
What kind of information do investors typically need? Or at what point can investors actually act when it comes to portfolio companies being implicated with regards to allegations of potentially violation of international law.
>> KIRAN AZIZ: Thank you very much. I think what I will say is mostly case with lot of the large institutional investors. If you look at most of the institutional investor, they have long‑term perspective because they are investing people's pension and saving money.
And when you take long‑term perspective into account, it is just not about the financial returns, but it is also some material risk which lies in company. And this is where we are trying to embedding respect for human rights into or investment decisions. But most of the investors such as KLP, we are so broadly invested. You can say all risk which will be out there, we will have exposure to that.
‑‑ (?) started back 25 years and we got ethical guidelines but it was mainly driven by owners. Said of course we wanted to make best return on money but also you want to use that tool in order to make an influence on the companies we are invested. In and those but develop our ethical guidelines. Which involves three important tools we had. First is that we engage with the companies. This is the most important tool. Because in order to express our expectation but also to hold the companies board and management accountable for a company's performance. Both when it comes to financial but also on ESG.
And second tool is to (?) where you ‑‑ second the board. And more and more human rights. More and more solutions in place in these AGNs. Exactly because yaw want to give a signal to the board.
And third is that we exclude companies when there is an unacceptable high risk for breech on international (?) IHL and so on. I would say (?) is the last tool but nevertheless really important tool because it also ha has to do that we as investors, we don't want to be complicit in these breeches.
And even if it started with a journey which was on voluntary basis that we decided on ethical guidelines. But has been (?) which we can be pleased about. These practises are coming into a legal obligation. Such as in Norway we have transparency act which demands investor to perform duty (?) investments.
And how do we know that there is a risk within a company? Well, you know, we as investor, we rely on information which is in the public domain. And this could be information of course from companies reporting. But when it comes to human rights especially in conflict area, you would see that there are, I wouldn't say the company's resources or information or reporting from the companies is a really helpful tool. It is mostly coming from the civil society. And this is where, when we engage with on these topic it is not just about engage with companies but it also really vital to engage with vital stakeholders.
And the (?) human rights such as yours have done really great job in very often conducting reports which tells that companies are present in some conflict areas where they have direct involvement. And this is where it is challenging. Because as you said there are about 110 armed conflicts. And it is necessary that we will have exposure to all of these. There will be few such as war in Gaza, West bank, Myanmar, Yemen. Sudan, to mention some.
Where we see companies play a vital role, compared to other conflicts of war which have been (?).
But again I think our challenge as investor is really much about getting information which can link what is happening of human rights violations up to the contribution companies contribution. And this is where we struggle and really need help from wide stakeholders, not just the companies. That is one thing and of other (?) high due diligence is a really core perspective or the core tool which is we are also trying to implement in our investments.
And when you are passive and let's say you invest in index funds. Normally companies become part of your portfolio and you perform a kind of (?) later on. So much focus on NGP, we have started to screen companies up front. Did that when Saudi Arabia came in as (?) in our portfolio. And conducted companies up from before we decided to invest.
And also because due to Saudi's involvement in the war in Yemen.
And you know we have traditionally been used to work with business models that are quite traditional and expectations which are there, the standards which are there are very much tailored for traditional business. Armed companies and so on. But you see that the tech companies are paying, playing a much more important role. And we are really struggling. We as investors to get and engagement with the companies at all. If there is an engagement. It is very often they would like to (?) policies and not really interested in discussing the concrete matter. That is one thing.
And the other thing is also, but we are seeing that, I would say we as investors, we have some tools but they are limited. Because really depend on the governments that they take the responsibility. And I think this is a development which is sadly in a direction where less and less government bodies are taking their responsibility. And most responsibility is left to the investors and business communities.
And when it comes to conflict areas we try as much as we. Can but I have to say that especially when it comes to tech companies. And I think it is just regardless of KLP, but most of investor engage with, that we are struggling with getting an engagement with the company at all.
And then you sit there, you have information. Conducting from (?) says companies might contribute. And then you are not able to get engagement with the companies.
I would say the proof of burden would be on the company side. Because we have given them a really fair chance to express what their involvement should be seen as contribute human rights violation or not. And if they are not responding to or curious then exclusion would be or first choice. It is not that, you know, we would like do that. But I think this is where it is really important that, when we exclude a company at least for KLP we give a quite thorough exclusion document and this is hold companies accountable. But also help other investors to get insight where we draw the line between what is acceptable and not acceptable.
I think this is also a way to try to put the companies on agenda and their contribution. And we have seen we excluded, you mention in your introduction, we have excluded lot of companies. And I think it is just that we are transparent about the exclusion which had really led that more investor have (?) solutions. And if they improve practises they can be reincluded. I think I would stop there and address.
>> MEREDITH VEIT: And KLP adopts very important best practise not all investors do which is a public list and explanation as to why clearly citing harms. Which signals to the rest of the market that in order for funds to flow, you have to respect investor principles and policies with regard to heightened due diligence.
So we is have about 20 minutes left. So now with the help of our tech colleagues we'll put a discussion question up on the board and open it up to all of you. We want to dive a little deeper into this aspect of accountability and enforcement, which we've heard various explanations as to from different angles. We have different opportunities, different challenges. So the question for all of you is: "What kind of evidence would lead to stronger enforcement actions against tech companies that facilitate violations of international law in times of conflict?"
And we can consider this from the different angles we've tried to open up discussions about. From different enforcers that have leverage over tech companies are states, primarily. Who need to abide by international law. According to their obligation.
We have investors who also have responsibility to use their leverage. With regard to tech companies within their portfolio, according to the UN guiding principles.
And we have courts. Strategic litigation is going to be very key phrase for the coming 5 plus years perhaps.
In order to push for accountability where we Cant.
So with that. Come up to the microphones on the side of the room. We'd like to hear from your experiences are or ideas or reflections on what we've just heard as to what kind of evidence? What else do we need in order to start pushing for more enforcement for this sector?
Or anyone online as well. I know we have some people tuning in online.
>> My name is Anriette. I work partly with association for progressive communications. Actually we've started a best practise forum, Internet Governance Forum that is actually looking at some of these things.
I think the kind of evidence that is really useful is the impact. The stories of what the results are. I think there are many people in the investment digital justice space who might not be aware that this is not just sort of bad actions or irresponsible behaviour. It actually can affect people's lives.
So I think certainly the stories of what the impact is. And then I think the other kind of evidence which is also important for civil society is what are the relationships? What are the ‑‑ and I know this can be quite difficult to gather this kind of evidence. But in the way that Marwa was revealing partnerships of Lockheed Martin by different companies. I think that's very useful for us as well.
I think it is important to understand how those corporate actors operate. Not just in relation to one particular conflict. But what is the kind of ethical backing or lack of it in how they form partnerships and make decisions about what they do where.
So I think different types of evidence definitely I think could make it easier for us to try to hold them accountable. And please do, maybe Marwa can say a little about when it is as well. People that are interested in this topic, come to the best practise forum meeting which will be later this week on Thursday. I think that is the right time.
>> MARWA FATAFTA: 2:00 p.m. "Yes." 2:00 p.m.
>> My name is Monica Emirate. I'm a rapporteur. I understand it is difficult to engage with the companies. Is there any pathway from? And did you try to engage with any of them to come here?
>> We haven't reached out this particular forum. If you lack at lot of tech companies I think ‑‑ it would be easier to. And we try to use that. If you see Meta, Amazon, all of them, the headquarters are in the US. And I think it is very much linked up to the current administration and how they are perceiving. And I think it is just that international law as such. Everything is being challenged at this time. So I think it is very much I think if you engage with companies. We saw it was at least before this current administration some of them did an effort. But now it is just like, you know, there are no boundaries for them.
And I think it is all to has to do because they know there is lack of accountability from several places. And there aren't anybody to hold them accountable. And even if I think we as investor ‑‑ we exclude these companies. I think the vital part here is that these companies have so much influence. That I think there is even if it is a really, really difficult path. But I think it is really important that we and civil society that we are still there and chasing them. Even if they don't want to engage. Because we have also heard internally from some of the voices which are internally companies that it helps that investors knock on the door.
>> I just want to quickly add that yeah the fact that we're talking about mostly and predominantly US‑based companies the Trump administration is taking an extremely protectionist approach to their tech sector. They see it as a sector that needs to be protected against regulation and accountability. And particularly from the EU. Or in fact any other State that may use its national jurisdiction to oblige companies to take one course of action or the other. You know, for example, it caught my attention couple of weeks ago, an announcement I think from the state department saying they will not grant Visas to foreign officials. Who have mandated quote/unquote censorship. By these companies.
And I think they are mostly referring to the Brazilian judge of the Supreme Court which mandated X to take certain action against accounts that are ‑‑ if I remember correctly.
In such a context yes, what do you do? ‑‑ (?) they will come here rehash the same press lines and leave the room. So we can save you and save ourselves that exercise.
>> MEREDITH VEIT: And something we're seeing with regard to power imbalances at play, you know. At the IGF with so many states here, I think we're also hearing a strong call from all of us in different words that we need states to take tech regulation much more seriously.
At the resource centre we're constantly reaching out to companies about allegations of harm for a number of sectors. And the tech sector consistently has a lower response rate than others.
Like, mining, or oil. Or garments. And we think that's because there is less regulation. So there is less pressure. There's been more of a buildup for different sectors and industries over time with relation to business and human rights and states taking action and for the tech sector. I mean we see it now within the United States, for example, saying that they want to put a ban for the next 10 years on regulating AI and calls to try to deregulate in the EU as well.
So if we want companies to actually give us the transparency that we need for our societies, we need governments to mandate human rights due diligence and transparency. As we've heard.
>> It is also about garment transparency. Lot of times we hear there are direct service contracts procurement which is very much service again provided to a government if you look at freedom of information. Access request. Like national security exemption.
So even starting ‑‑ and often for litigation, for example. What you need is really the hard facts. You need the contracts. You need the exact service provision. What did they say about potential violations of international law? You would even need internal minute. Was the executive aware of certain risks and so on?
So you really need impact ‑‑ of course to prove impact you need public report being a civil society. But you also need information that unfortunately relies often on whistleblowers, on journalists. But again look at the fact that there is many governments that attend IGF, I think government transparency is also very, very good point to start. Of course again questions around defence, national security are prone to find justifications and secrecy to international security concerns. But it is where accountability efforts can start. And where we can also measure whether states are upholding their own international obligations.
>> MEREDITH VEIT: I saw we had someone coming up to the microphone here as well.
Yeah, please.
>> Hi everyone. Audrey Moclay from open mic. Thank you so much for your panel. My question and you kind of just touched on it. Was around to what extent of offensive due diligence for those companies and what extent you would need that kind of evidence of the due diligence being done on the corporate side. And what ‑‑ and how much detail you would need.
Because I think we've seen in our engagements with certain companies they won't even tell us who they hired as a third party to do the assessment. They are very opaque about how the due diligence is being done.
Yeah and so I guess my question for you is. Like, what is the burden of proof there? And how do we place it onto the companies? Is it through the investors? Is it through is it States?
Thank you.
>> Around the burden of proof again, to sound boring, this is always I think generally speaking very much domestic law, what sort of litigation you bring. Is it tort law? Is it a criminal complaint? I think that will depend. Maybe, and also again the burden of proof, the granularity of the information that you have.
I will say in some jurisdictions, notably, UK, US, there is also possibility of making disclosure requests. Where the judge can then order also the company to disclose certain information that is necessary to be able to actually adjudicate the claim properly.
So again, I think one needs to be really quite granular and creative and really think about all the different means you might have to be able to collect what you need for the case. And then again it will depend on the exact legal basis. What exactly the chain of causation that you might have to prove and how you can access that information as much as possible.
But it remains a challenge, which is reality of course.
>> MARWA FATAFTA: I can.
>> I can say from investors perpetrate there is a risk base perspective. We need to assess how high is the risk element. I would say the bar is lower compared if you follow, if you have to have a litigation in the court.
But when that said, I think it is still important that the evidence which is coming or reports which are conducted that there are done by trustworthy actors which we can rely on.
And I think if more actors would emphasise the same risk, then it gets really clear for us that this is something we need to take into account.
>> MARWA FATAFTA: In the absence of legally mandated human rights due diligence. So if you follow the UN GPs, it is a risk‑based approach as well. When you have heightened risk because of armed conflict or countries contributing to gross human rights abuse or violations of international law. The need becomes heightened. Problem is often companies are left to own devices making their own decision whether they should conduct a heightened rights due diligence or not. And that is often, I think necessitated by either media scandals or pushed from civil society. And one example I can give here is Meta's human rights due diligence into their content moderation of Palestine‑related content in 2021. There was a strong push from civil society and also their oversight board to see whether their actions had resulted in violating human rights.
Which in the beginning of the engagement the company pushed back very strongly against taking that approach and saying we'll internally investigate.
I think that is Company's favourite phrase to say we'll take care of that. So they are not independent. They are not ‑‑ we don't also know who they have talked to. Because some decisions made by companies, for instance, whether to build a data centre in extremely suppressive and authoritarian state like Saudi Arabia where the companies said oh we've done our human rights due diligence. But if the outcome is to say green light the project there are of course huge question marks. What kind of questions have they asked? What risks have they interrogated and scrutinized? And who are the people they are talking to?
Are they talking to the rights holders? Are they talking to impacted communities? Or are they talking to some international NGOs that are not directly linked or really understand the context? It is watering down what UN GPs were supposed to achieve ultimately.
>> MEREDITH VEIT: Given the 4‑minute signal.
Any other inputs?
Yes.
>> Hi. Thank you so much. My name is Satna. We heard about the relevance of international criminal law and IHL as well. But in situations like in Palestine at the moment when genocide is so inextricably linked to armed conflict, I wanted to know whether the genocide convection imposes any additional duty on private actors and companies to act positively to prevent genocide. And whether there are any enforcement lessons from that convection that might also help us understand how corporate accountability might function where genocide happens in the context of an armed conflict.
>> So good question. So I think the genocide convention as you say, of course there can be a risk to genocide happening or genocide might already be happening. But the genocide convections obligations are triggered well before we have established whether genocide is happening in the context of an armed conflict or outside of it.
And there is the State's obligations of course to ensure no one on the restriction will be contributing to genocide or incitement to genocide and so on.
So I'm not sure. I wouldn't say it is a direct legal instrument that you can. Because it is a state treaty. That you can add the international level at least, base yourself on, to hold companies accountable. Of course many of the states have in the domestic legal frameworks also established genocide crimes against humanity, war crimes as crimes. And connected with potential universal jurisdiction clauses.
They might be able to pursue companies under those provisions. As I mentioned. As far as I'm aware, I think its been more war crimes‑based complaints, criminal prosecutions. All for crimes against humanity. I'm not sure I'm aware of a corporate executive or company directly facing genocide charges. Let's say recently, postWorld War II. There was also the tribunal and so on. But of course we talk about again more criminal responsibility.
But still I think learning from the cases brought in other sectors and as you say under crimes against humanity, provisions as well is something we should seek to do to look at strategic litigation also in the tech sector e I would say.
>> MARWA FATAFTA: I think the genocide convention criminalizes complicity in genocide. Which I think in the question e outline what is the modes of liability are.
>> Basically states on domestic level should criminalize ‑‑ exactly. So that's what you ‑‑
>> MEREDITH VEIT: And in looking across different sectors too. Seeing what exactly was it that had the Dutch businessman who was selling chemicals to Saddam Hussain's regime. What exactly was it about the sharing of information of individuals with the Argentine regime with the Ford motor company case. What are pieces we could take from case law and other pieces of jurisprudence and actually apply it to tech? And sharing names and personally identifiable information, this can translate to sharing names and biometric IDs in the modern context.
We are definitely out of time at this point. So I will just thank our fantastic panelists and for everyone who participated in the audience. Hopefully this served at least as a launching point to spark some ideas and get more people involved in thinking about this.
Because as you can see there is a lot of work to be done from all angles. So thank you all so much for your time. And for your interventions today. I appreciate it.
