Agent Provocateur is Global Geneva’s oped section.
The campaigners for the initiative were attempting to end the impunity of Swiss multinational corporations against human rights abuses and environmental violations around the world and bring these issues into the justice system in Switzerland. Some 114 NGOs launched the under the leadership of former Ticino state prosecutor Dick Marty, a leading figure in the Swiss political arena as a member of the Liberal FDP and Parliamentary Assembly of the Council of Europe.
While the initiative had the merit of denouncing violations committed by Swiss companies abroad it did not offer any real protection. Here are five reasons why.
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First, Swiss courts can intervene only once damage has been done.
Second, the experience of victims fighting against multinationals shows how difficult, if not impossible, it is to obtain justice and reparation in Switzerland. Swiss laws do not provide for dissuasive sanctions. Furthermore, while the Swiss like to lend a semblance that they are concerned, the judicial system in effect is strewn with pitfalls, which rich and powerful multinationals are able to manipulate in order to win or delay judgment. These obstacles include exorbitant costs, political influences on the judicial process which in some countries might be regarded as corruption, and the slowness of the system. The plaintive is left helpless. (See Global Geneva article on Whistleblowing: Time for international Switzerland to meet the global standard)
Political conflicts of interest
Third, in Switzerland, as often but not necessarily happens in the United States, judges may be linked to political parties and are promoted by them. This was the case with President Donald Trump’s nominations of Brett Kavanaugh and Amy Coney Barrett to the Supreme Court, both of which were voted in by the Republican Party-dominated Senate. Swiss judges even have to pay the parties proportions of their salary. Their judgements may also influence their re-election. So judicial independence in Switzerland remains questionable.
Four, even the academic world, which is supposed to offer independent advice on public issues, can be influenced by multinationals, whose foundations or corporate bodies often fund university or science projects. For example, in the lawsuit brought against me by Nestlé on human rights issues, the company lawyer is none other than the professor of labour law at the University of Lausanne, who is widely regarded as Switzerland’s eminence grise in this specfic domain. My Nestlé trial has now been going on for 10 years without any sign of light at the end of the tunnel.
If a trial can last so many years, what does justice mean for the victims? Will they still be alive at the end? What reparation could replace the lost years? Wouldn’t it be another disservice to the victims to make them hope, wait and then waste their time and energy on an uncertain outcome? The Paris-based OECD (of which Switzerland is a founding member) claims to monitor such processes. It regularly comes out with anti-corruption reports or statements condemning practices which delay or obfuscate legal remedies, but these seem to have little impact. Conflict of interest is defined by the OECD, Council of Europe, European Union and others as a form of corruption.
The irony of this referendum is that none of the NGOs supporting this initiative has been interested in the fate, experience and information of whistleblowers or victims fighting against multinationals, or other victims whose human rights are not respected in Switzerland. The website of Amnesty Switzerland sorely lacks any information on violations in Switzerland.
Shouldn’t respect for human rights begin at home, notwithstanding, too, that Geneva is considered the world capital of human rights? In a similar vein, many of the corporate members of the 12,000+ United Nations Global Compact Network like to tout their concern for the world’s Sustainable Development Goals (SDGs), which include human rights and whistelblowing, but are reluctant to engage seriously with critical aspects that might affect their own businesses. (See Global Geneva article on corporate engagement with the SDGs)
Adoption of a new law would prove more effective
Certainly, we must act. I will be the last in the world to accept the status quo. Except that I think that the adoption of a law to protect those who denounce violations, the “whistleblowers“, would be a more effective approach. Because such an approach would make it possible to act upstream, before violations take place, or at least to limit the damage. This is also something that the UN should be supporting. (See Global Geneva article on the need for whistleblowing reform within the United Nations)
Employees working in Switzerland are aware of their company’s violations abroad, but reporting these failings can put the workers at risk. Even if they oppose abuses inside the company, a life of torment awaits them. They can be harassed, fired and destroyed socially, professionally and psychologically. In Switzerland there is no real sanction against bullying and moral harassment and in a recent case, the Swiss Federal Court authorized harassment of an employee. (See article on mobbing the Swiss paper Le Temps)
My experience with Nestlé is yet another example. Swiss law also protects Swiss-based abusers, who may be cited abroad in countless legal documents and credible press reports, but may not be ‘outed’ per se in Switzerland if their illegal acts were not committed in this country. (Editorial note: In an article by Brazilian journalist Jamil Chade for Global Geneva, the magazine was required to remove the name of a Swiss banker regarding his money laundering links as cited in the Panama papers as well as numerous Brazilian court documents)
A complementary measure would be to make internal policies tool mandatory. This is already a simple available tool. The CEO and management would be personally responsible for following up on alerts. Any violation of internal warnings would have to be subject to criminal sanctions. A priori it is still not clear how serious the consequences of such violations would be. Such an approach has been proposed by the Treaty Alliance to the UN Human Rights Council. In 2014, the Human Rights Council set up an intergovernmental working group to develop a legally binding treaty to regulate corporate power and to ensure that companies are fully accountable for human rights violations and environmental crimes.
Finally, bringing Swiss multinationals to justice in Switzerland would, for Swiss authorities, represent a conflict of interest. As proof, the Federal Council has just openly declared that the proposed initiative is against Swiss interests and the labour market.
In a context where the careers of judges depend on political parties, their independence of opinion cannot be guaranteed. This is despite their personal ethics and the fact that the impartiality of judges is prescribed by the Constitution.
To have the slightest hope that a judicial approach could force Swiss multinational companies to respect human and environmental rights, they would have to be judged either by third countries where they operate or by an international court, as is the case for leaders of states who commit crimes against humanity. (See our article by Civitas Maxima on the trial of an alleged Liberian war criminal by the Swiss Federal Court in Bellinzona.)
As Switzerland is a member of the UN and a signatory to the treaty that set up the International Criminal Court, it can surely introduce such a law, or a system that could provide the necessary independent institution for investigation and prosecution. Swiss voters supported the proposed initiative and they clearly want to improve the current situation. But acceptance would not have provided an effective answer to humanitarian and environmental abuses by Swiss companies.
3 December 2020: The vote is over, and the masks come off (LINK), French only. infoméduse. Yasmine Motarjemi’s assessment of what took place.
Yasmine Motarjemi is a former senior scientist at World Health Organization. Head hunted by the Management of Nestlé in Vevey Switzerland, in the year 2000 she was appointed as Assistant Vice President, in charge of Food Safety globally. (See Motarjemi’s open letter to Mark Schneider, CEO of Nestle.)