Transitional justice consolidated in the early 2000s into what came to be called ‘mainstream transitional justice paradigm’, amalgamating prosecution, truth, reparations and institutional reform into a toolbox of mechanisms to be deployed in the aftermath of conflict or violence, in different parts of the word, as the most appropriate response to help societies turn the page to past atrocities. That paradigm put the spotlight mostly on state-sponsored atrocities and state-induced human rights abuses, of civil or political nature, during periods of political upheaval or conflict. This standardization of transitional justice came at the expense of a deeper engagement with the dynamics, factors and actors that bred, exacerbated and sustained violence, as well as with the particularities of each setting. Business actors comprise an example of such a prevalent but nevertheless marginalized actor. Their operations, despite widespread knowledge of their involvement in conflict, have remained in the background, and transitional mechanisms have either ignored them or improperly addressed their accountability.

Chapter 8 explores the interaction between truth mechanisms and other transitional measures, highlighting synergies and challenges. While in Argentina (and more limitedly in Brazil), synergies were drawn and different reparation measures (funded by the state) and prosecutions were based on the moral capital of the truth efforts, this was not the case with other truth commissions. Usually, TRCs’ recommendations in relation to corporate accountability rarely evolve to actual reparations or prosecutions. As illustrated by the Liberian and Tunisian examples, the TRCs were strong in providing substantial arguments for the inclusion of corporate actors in the transitional justice mechanism, but weak in procedurally paving the way to enforce that inclusion.

Chapter 1 of Part I lays the foundation for understanding the complex interface between corporate malfeasance and transitional justice and situates it within dominant understandings of transitional theory and praxis. While the presence of corporate malefactors is pervasive in situations of conflict and repression, their inclusion within transitions is – if any – minimal and incommensurate. Critical transitional justice scholarship has marginally engaged with the topic, lacking a consolidated account and legal rationale. From the other side (and to the extent that they differ), business and human rights scholarship does not account for the particularities of providing remedies in the aftermath of conflicts. Chapter 1 concisely retraces the parallel but not intersecting development of theory and praxis in both fields and demonstrates the lack of integration into each other’s normative architecture, vocabularies and institutional practices, substantiated by empirical evidence and a brief tour d’ horizon.

Chapter 7 focuses on truth mechanisms and identifies the legal questions that arise when integrating corporate abuses within their mandate, namely the contours and content of truth, in the aftermath of violations and the extent of a relevant state duty to reveal the truth for corporate violations, as a matter of law. The chapter investigates relevant legal sources and case law of human rights bodies and emphasizes the evolution of ‘a right to truth’ in international law and its unrestricted nature, both of which place an unqualified focus on the importance of revealing the truth in its totality, countervailing other considerations invoked in relation to corporations. It critically assesses those two points against the common disregard of corporate malefactors in TRCs and their override by developmental concerns. The work of the TRCs of Colombia, East Timor and South Africa instantiates that analysis. Furthermore, drawing from the experiences of Mauritius and Sierra Leone, Chapter 7 analyses the collective dimension of the right to truth. The collective dimension is significant for corporate accountability purposes, as it widens the material scope of the truth itself to reach systematic patterns of abuse, and distances it from strict human rights equation requirements.

Chapter 4 examines the application of modes of liability under international law, to corporate entities, and corporate officials, the latter being useful for jurisdictions, where liability of the entity is ascribed through the conduct of its officials. It covers the main modes, namely direct and indirect perpetration, participation in group crimes, superior responsibility and complicity. The examination of these modes is empirically grounded on a rich historiographical and empirical account, from international, regional and domestic cases. The last section examines domestic approaches in relation to corporate accountability through criminal mechanisms, with a focus on Argentina, a pioneering jurisdiction in this domain, and Colombia, a more recent and pertinent example. Both case studies, albeit confined to individual accountability of businesspersons, are noteworthy for pivoting our understanding of the various challenges encountered and for conversing and being influenced from judicial developments in foreign fora. In addition, the Argentinean example instantiates the blending of national and international standards, whereas the Colombian endeavours, especially with regards to ‘civilian third parties’, shed light on the interconnections between transitional and ordinary justice.

Chapter 2 presents a normative understanding of the integration of corporate accountability within TJ, assessed against the aims of TJ, namely accountability of the perpetrators, remedies for the victims and reconciliation. More often than not, the odds are that transitional justice can at least partially deliver those goals, insofar as it also includes corporate perpetrators. Furthermore, the proposed integration responds to persistent victims’ calls for corporate accountability, situates the latter within the long-appraised discourse on ‘root causes of violence’ and inserts the much needed economic aspect in transitional praxis, equipping it better to address the multi-layered complexities of prior injustice, and making it more receptive to domestic predicaments. The chapter then explores how the integration of CA and TJ can be translated in the vernacular of legal doctrine. It puts under the spotlight states and their obligations, based on their leading position as the institutional drivers of transitions and the corresponding rights of victims, whose experiences and demands are paramount for transitional justice. Those sets of rights and obligations are best performed via an amalgamation of different legal regimes in both the international and national levels and a blending of national and international law, as evidenced by different examples.

In the field of reparations, the legal quandary lies on whether transitioning states have any duty to call on corporations to repair, as part of the states’ overall duties during transition; and to include them, as debtors, in the design and delivery of reparations, as opposed to providing reparations themselves or hindering victims’ efforts for adjudication, as was the case in South Africa. Legally, this would require that the overall reparative obligations of the state include an obligation to provide to victims of corporate violations redress avenues against corporate malefactors in domestic law, and particularly so during transitions. Chapter 5 investigates relevant holdings of human rights bodies to extract and synthesize principles and precedents. Having doctrinal elements as a point of departure, the book presents a novel theoretical framework, drawing on the exceptionality of TJ and the dialectical development of positive and remedial state obligations. A separate analysis is devoted to GNRs, where the book identifies their differential traits, in comparison to other reparations forms, that render them prone to including corporate accountability, namely their emphasis on addressing root causes, their preventive nature, their broadened scope and their departure from the strict requirements, typically associated with other reparative measures.

Chapter 6 offers an account of court-ordered and administrative reparations that included corporate actors and tackles the common ‘development’-oriented justifications against such efforts. It empirically analyses court-ordered reparations against corporate malefactors and explores the role of both national and foreign courts as valuable resources in the pursuit of justice. It highlights the different obstacles that have been faced, in cases arising out of transitioning states, with particular emphasis to the arduous challenge posed by the South African state’s opposition to litigation. That opposition was based on developmental and investment concerns, which the book disavows in favour of more transformative approaches that challenge pre-existing structures of exclusion, marginalization and power, and can nest concerns over economic actors that anchor them. Administrative reparations that include corporate malefactors have been scarce, spearheaded again by Colombia. The last segment of Chapter 6 delves into the intricate process of land restitution in Colombia, where – in principal – trailblazing regulation has been poorly implemented.

Chapter 3 on criminal justice mechanisms examines international criminal and international and regional human rights law, to unearth elements of a state duty to prosecute and punish corporate entities. Even if a standalone obligation in relation to corporate entities might not arise, it seems that in cases of corporate abuses, state duties do not end with individual prosecutions, while the absence of a respective international forum emphatically points to the need for the establishment of such an institution. Two innovative ideas emerging from relevant doctrine and practice include, first, the evolution of corporate criminal liability to an emerging principle of international law. This demonstrates that traditional barriers in the field of corporate criminal liability tend to be tempered, particularly so in the context of transitions. Secondly, Teitel’s ‘right to accountability’ in transitional periods can lend support for a new conceptualization of CA within TJ, by highlighting the magnitude of dissonance of corporate impunity during transitions and by indicating the prevalence of holding perpetrators accountable over more technical and thus less important considerations. Considering the unique features of transitional periods, this chapter, also, explores the challenges of pursuing corporate accountability within their evolving dynamics and inherent constraints.