Alumna Geeta Koska (Master in International Law, 2014) tells us about her article “Corporate Accountability in Times of Transition: The Role of Restorative Justice in the South African Truth and Reconciliation Commission”, recently published in the peer-reviewed journal Restorative Justice: An International Journal.

Why did you decide to work on restorative justice in South Africa?

The article came out of the memoir that I wrote for my Master at the Graduate Institute under supervision of Professor Andrew Clapham. I first presented an initial version of the article at the African Studies Association UK conference held at the University of Sussex in September 2014, which I later developed for publication in Restorative Justice: An International Journal.

I wanted to draw together different ideas that I had been thinking about during my master’s studies, such as corporate accountability, transitional justice and theories of punishment. I located the analysis in the context of the South African Truth and Reconciliation Commission (TRC), as the transitional justice process seems to be an important nucleus for thinking about the role of non-state actors and non-judicial mechanisms in promoting corporate accountability.

What is the purpose of your research?

Consensus is building around the need for transitional justice to secure redress for corporate human rights abuses. However, there has been less scrutiny of the transitional justice mechanisms to be deployed in pursuit of corporate accountability. The article therefore questions the extent to which truth commissions and restorative justice theory can serve the aims of corporate accountability in the context of transitional justice. To do this, it examines the Business Hearings held by the South African Truth and Reconciliation Commission, focusing in particular on the interactions between the Congress of South African Unions and Anglo American Corporation.

Tell us about your major findings.

The rhetoric of restorative justice was used as a basis for reintegrating business into post-apartheid South Africa, whilst denying the need for reparations. This is because the TRC’s restorative approach to justice was a product of political and economic circumstances at the end of apartheid, and the transitional justice process itself had little appetite for pursuing corporate accountability.

The article includes key lessons learnt from the TRC in how the theory of restorative justice can serve the aims of corporate accountability in a transitional justice process. First, truth commissions must start from the premise that corporations have human rights obligations under international law. Moreover, they must ensure that they respect international standards that fulfil the state duty to investigate and remedy violations by private actors. If non-judicial mechanisms are relied upon to provide justice for human rights violations committed by corporations, commissions must maintain their authority and confront the individual and collective responsibility for crimes. One way to do this could be to give truth commissions the power to revoke or suspend a license, or implement other administrative measures against the offending company. Ultimately, however, the threat of prosecution remains a critical feature of the success of the restorative justice approach to corporate-related human rights violations.

Finally, the article warns that if the trend is for states to confront past abuse through truth commissions, then the role of business must also be addressed. However, if choosing to engage with a truth commission to address corporate crime means that prosecutions are evaded and reparations are denied, then ultimately restorative justice cannot be relied upon to provide corporate accountability.

What have you been doing since your graduated from the Institute?

I worked with the European Center for Constitutional and Human Rights (ECCHR) in Berlin and with Human Rights Law Network in Delhi on the topic of business and human rights. At the ECCHR I was involved in a project aimed at holding pesticide companies accountable for health and environmental damage caused by the indiscriminate use of their products. In 2016, I returned to London to continue my legal training.

Full citation: Koska, Geeta. “Corporate Accountability in Times of Transition: The Role of Restorative Justice in the South African Truth and Reconciliation Commission”. Restorative Justice: An International Journal, vol. 4, no. 1, 2016, pp. 41–67.

Photograph: Darren Lewis, Dark Cloud and Rainbow, licensed under CC0 1.0 Universal.