Criminal law and access to remedy for business-related human rights violations: evaluating the role of supply chain due diligence legislation in a transnational context

This article examines the structural, jurisdictional and doctrinal barriers that impede the achievement of effective criminal accountability for corporate involvement in human rights violations occurring across borders. It argues that the prevailing emphasis on civil and administrative enforcement mechanisms leaves significant accountability gaps according to which abuses reach the threshold of criminal conduct, such as forced labour, human trafficking and severe environmental harm.[3] Through the use of doctrinal analysis and a hypothetical case study, this article demonstrates how territorial jurisdiction rules, corporate legal structures and the limited extraterritorial reach of criminal law combine to produce a jurisdictional vacuum that undermines access to remedy under Pillar III of the UNGPs.[4] The article concludes by advocating for the integration of criminal sanctions into supply chain due diligence regimes, the expansion of extraterritorial criminal jurisdiction based on corporate nationality and enhanced international cooperation to ensure meaningful access to remedy for victims of transnational corporate abuse.

Introduction

Access to remedy is a foundational element of effective human rights protection. Victims of wrongdoing must be able to report violations, participate meaningfully in proceedings, seek reparations and recover, as far as possible, from the harm suffered.[5] Yet victims of business-related human rights abuses, particularly those occurring in foreign jurisdictions, face profound obstacles to achieving these aims.

While recent supply chain due diligence legislation has expanded the civil and administrative pathways to redress, criminal law continues to play only a marginal role in the remedial landscape.[6] This marginalisation persists despite the fact that many business-related human rights abuses, such as forced labour, human trafficking and violent repression linked to corporate operations, constitute serious criminal offences under domestic and international law.[7]

This article argues that the absence of effective criminal accountability mechanisms does not merely represent an enforcement gap, but also amounts to a structural denial of access to remedy under Pillar III of the UNGPs. By examining the limits of non-state grievance mechanisms, civil remedies and existing criminal law frameworks, this article highlights the need for a recalibration of the remedial architecture governing transnational corporate conduct.

Non-state grievance mechanisms

Non-state grievance mechanisms play an important supplementary role in providing avenues for redress where access to courts is limited. These mechanisms include company-based compliance systems, industry initiatives and mechanisms linked to international financial institutions. While valuable in principle, their effectiveness is constrained by significant structural shortcomings.

A recurring concern is the lack of independence, particularly in regard to company-operated mechanisms, which undermines trust and raises the possibility of bias. Many such mechanisms lack enforcement powers, meaning that even validated grievances may not result in effective remedies. Accessibility barriers, including language, cost, limited awareness and technological constraints, further restrict their usefulness, especially for marginalised communities.

Power imbalances between complainants and corporate actors, limited transparency and the risk of retaliation in politically sensitive environments further weaken these mechanisms. Their fragmented and issue-specific nature also prevents them from being used to address systemic or large-scale abuses. Consequently, while non-state grievance mechanisms may complement formal legal processes, they cannot be a substitute for robust judicial remedies, particularly when serious criminal conduct is alleged.

Civil remedies and their structural limits

Civil liability regimes emerging from supply chain due diligence legislation represent an important step towards enhancing corporate accountability. These frameworks typically allow for civil claims, sometimes facilitated by non-governmental organisations (NGOs) or trade unions, and may impose prevention and risk management obligations on companies.

Nevertheless, civil remedies remain structurally limited in transnational contexts. Litigation is often prohibitively expensive and procedurally complex, particularly for victims in host countries with limited resources. Jurisdictional hurdles, language barriers and unfamiliar legal systems further compound these difficulties. The determination of the applicable law frequently disadvantages claimants, as courts may apply the law of the place where the harm occurred, which may provide weaker protections or limited avenues for compensation.

Moreover, many due diligence regimes do not confer an explicit statutory right to damages, leaving victims reliant on general tort law that is ill-suited to the complexities of global supply chains. As a result, civil remedies alone are insufficient to address the most serious forms of business-related human rights abuse.

The role of criminal law in the context of business and human rights

Criminal law performs a distinctive expressive and deterrent function by signalling societal condemnation of conduct that violates fundamental values. International human rights bodies have repeatedly emphasised the importance of the use of criminal sanctions in addressing grave abuses and protecting vulnerable individuals.

Where business activities are linked to forced labour, human trafficking, severe environmental harm or violent repression, criminal law provides a normative response proportionate to the gravity of the harm. Criminal sanctions not only deter future misconduct, but also affirm the rights and dignity of the victims. Despite this, criminal law remains underutilised in the business and human rights context, particularly where abuses occur across borders.

This underutilisation reflects not the absence of criminal norms, but rather the structural and jurisdictional constraints that limit their application to transnational corporate conduct.

Jurisdictional constraints and legal fragmentation

The primary obstacle to criminal accountability in transnational corporate abuse cases lies in the principle of territorial jurisdiction, which generally confines criminal prosecutions to offences committed within a state’s territory. While international law recognises limited bases for extraterritorial jurisdiction, such as active and passive personality or universal jurisdiction, these are rarely applicable to business-related human rights violations.

Most such abuses do not fall within the narrow category of crimes subject to universal jurisdiction, nor do they typically involve direct harm to nationals of the prosecuting state. Although international human rights law does not prohibit states from exercising extraterritorial jurisdiction over corporate conduct, it imposes no general obligation to do so.

Some domestic legal developments, such as corporate offences based on a failure to prevent bribery, demonstrate an emerging acceptance of extraterritorial criminal responsibility grounded in corporate nationality. However, comparable approaches remain rare in the human rights domain, resulting in fragmented and inconsistent enforcement.

Corporate legal structures and accountability gaps

Corporate legal structures further exacerbate jurisdictional limitations. Branches and representative offices generally lack separate legal personality and are treated as extensions of the parent company. As a result, host states are often unable to prosecute them as corporate entities, even when serious harm occurs within their territory.

Subsidiaries, by contrast, possess separate legal personality under the host state’s laws and may be subject to prosecution. Where a company operates abroad solely through a branch or representative office, however, neither the host state nor the home state are able to assert criminal jurisdiction over the corporate entity. This structural reality enables corporations to exploit jurisdictional loopholes and evade accountability.

While individual perpetrators may be prosecuted in the host state, this does not address corporate responsibility or the systemic drivers of abuse. Mechanisms such as extradition or the transfer of proceedings offer limited solutions, as they typically require a jurisdictional nexus that is absent in many transnational corporate abuse cases.

A hypothetical case study: TerraMine Corp

Consider TerraMine Corp, a multinational mining company headquartered in State A, operating in State B through a branch office. Allegations arise of violent repression by company-hired security forces and severe environmental contamination affecting local communities.

State B may prosecute individual perpetrators, but lacks jurisdiction to prosecute the branch due to its lack of legal personality. State A, absent from specific extraterritorial provisions, lacks jurisdiction over the conduct occurring entirely abroad. Civil litigation in State A is hindered by procedural complexity, cost and the absence of explicit statutory rights under the applicable due diligence legislation.

This scenario illustrates the jurisdictional vacuum that characterises many transnational corporate abuse cases and underscores the inadequacy of existing remedial frameworks.

Conclusion

Despite significant advances in supply chain due diligence legislation, access to remedy through criminal law remains severely constrained in regard to cases of transnational business-related human rights violations. Territorial jurisdiction rules, corporate legal structures and the limited extraterritorial reach of criminal law combine to produce persistent accountability gaps.[8]

To address these deficiencies, criminal sanctions for serious human rights abuses should be incorporated into supply chain due diligence regimes.[9] States should expand extraterritorial criminal jurisdiction based on corporate nationality and the active personality principle, while strengthening international cooperation through mutual legal assistance, joint investigations and coordinated prosecutions. Harmonising corporate criminal liability regimes across jurisdictions would further reduce legal fragmentation and prevent the exploitation of jurisdictional loopholes.

Only through the integration of robust criminal accountability mechanisms into the broader business and human rights framework can victims be assured meaningful access to remedy, regardless of where such abuses occur.