“Corporate complicity” is a phrase which has found its bearing under several different fields of interest, spanning human rights advocacy and general business practices. It has often become apparent that not only do governments have a say in whether human rights are protected, but corporations possess a key role in determining whether international human rights have been duly followed and implemented. Thus, the conversation has turned towards certain moneyed actors, resulting in repeated demands of “accountability” and “transparency”. But, what does it mean for a company to be complicit in human right violations, and is there an international legal framework to remedy this qualm? 

The focus of this question has increasingly been magnified onto the technology industry, with the actions of “Big Tech” and “tech oligarchs”  dividing people more often than ever before. One company that is oftentimes at the centre of this divide is Palantir. Palantir, whilst often compared to traditional defence contractors such as Lockheed Martin, is in actuality, a software and data analysis firm that utilises data farming and artificial intelligence to create defence solutions for American and “allied forces.”  What this essentially means is that large data sets are analysed by Palantir technologies to make predictions, identify patterns and recognise individuals who reflect certain criteria. Palantir has also created the ImmigrationOS technology which Immigration and Custom Enforcement (ICE) forces utilise in the United States of America to track down immigrants and other people profiled as having an “illegal” presence on American soil. 

What is ImmigrationOS?

ImmigrationOS is an operations system that utilises artificial intelligence and data mining to identify, track and deport people suspected of being noncitizens. The three main components of how ImmigrationOS works include:

1. Prioritization of certain “characteristics”: streamlines ICE decisions on who should be removed first, with priority given to those deemed “violent criminals”, and those who have overstayed their visa. Due to a lack of government transparency, the criteria used to determine who is a “violent criminal” is increasingly unclear.

2. Self-deportation tracking: surveills individuals who are voluntarily leaving the U.S

3. End-to-end immigration management, from recognition to forced removal: “optimises” deportation efficiency. 

Some critics believe that due to highly politicised and ideological criteria, such as the priotisation of visa overstayers over other categorisations; the system's own biases and errors remain invisible. One report for example highlighted that ICE criteria includes highly segmented and specific categories, including details like how a person entered the country, legal status, country of origin, and even “hair and eye colour, scars or tattoos, and their license plate reader data”, perhaps allowing for the racialisation of certain categories. Similarly, in 2016, an investigation by ProPublic found that COMPAS, a risk-assessment tool that is designed by the private software firm Northpointe (now Equivant) that is heavily relied upon in the U.S criminal justice system, was nearly twice as likely to inaccurately register Black defendants as high risk for recidivism (repeat offences) than white defendants.

This is compounded by the issue that such specific and bureaucratised immigration efforts potentially ignore the lived experiences and life stories of people suspected of being non citizens. What is additionally beguiling, is the recurrent cases of American citizens being held in ICE detention, most of which are Latino. This presents clear issues of racial discrimination, protected against, amongst others, in Articles 1, 2 and 3 of the Universal Declaration of Human Rights. Furthermore, this rapid data collection without individual consent could signal violations of the right to privacy (art 2, 17 and 26 of the ICCPR), according to international law experts Emily Tucker and Hinako Sugiyama. If so, what role does international human rights law play in these shattering violations of human dignity, and how can it (if it can) prevent or hold corporate actors to account?

‘Corporate Complicity’: a Business and Human Rights approach to holding Big Tech accountable? 

‘Corporate Complicity’ is not a term that has been institutionalised in international human rights treaties, but it certainly is an evocative term tied to the perception of bringing ‘power back to the people’, and demolishing the impunity of those in high places. But do ideas of ‘corporate complicity’ in fact exist in international law? And is there a way to acknowledge the ‘corporate complicity’ of certain actors?

According to Business and Human Rights lawyer Maya Nirula, “corporate complicity can broadly be understood as occurring when companies become involved in the perpetration of gross human rights abuses.”  It draws its etymology from the idea of ‘aiding and abetting’ within criminal law. ‘Aiding and abetting’ involves participation in foreseeable crimes, eliciting criminal liability (Art 25 (3)(c) of the Rome Statute). Other international criminal law (ICL) norms such as the responsibility of superiors (Art.28) could additionally be used to prosecute senior executives and corporate managers for crimes facilitated by their individual employees. One of the major pitfalls of this legal framework however, is that it singularly focuses on the complicity of individuals rather than penalties to the companies as a whole. Nevertheless, ICL has formulated a concise and standard three step test which elucidates complicity. Firstly: causation or contribution must be established, knowledge and foreseeability must be present, and finally proximity or remoteness (e.g: geographically, duration-wise, frequency-wise, or through the intensity of interactions between the accessory and the principle perpetrator of the gross human rights violation).

Building on this, according to a 2006 report by the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, in most cases, there is an explicit enough link between a company’s conduct and the principle perpetrator’s conduct, in the event that the company has “enabled”, "exacerbated" or “facilitated” these abuses. Enabling abuses simply requires that without the company’s conduct the abuses would not have occurred, whereas exacerbation involves conduct that is not necessary for the crime to occur, but includes behaviours that “increased the range of human rights abuses committed by the principal actor, the number of victims, or the severity of the harm suffered by the victims.” Facilitation further involves a situation “where the company’s contribution made it easier to carry out the abuses or changed the way in which the abuses were carried out, even if it did not aggravate or exacerbate the harm.”

One could argue that Palantir’s actions in providing the ImmigrationOS surveillance platform to ICE, at least “exacerbated” human rights violations conducted by ICE. This is because, it is still arguable that American authorities would have been able to commission another software and data analysis firm to program a similar programme. However, one could argue that due to Palantir’s system of data collection, the racial discrimination of peoples happens at a much more comprehensive rate. Without such data provided to capture people with migrant backgrounds, it is arguable that cases of torture, death, etc., at ICE detention facilities would not have happened as frequently. However, in order to establish the most lucid causation between ICE human rights violations and Palantir’s conduct, more extensive 3rd party investigations must be allowed to take place, piercing through information that has largely been classified.

Furthermore, the scope of international criminal law here, is perhaps applicable especially since Peter Thiel, Palantir’s board chairman and perhaps one of rightwing techno-authoritarianism’s most prominent figures, is a German (and American) citizen. Germany has ratified the Rome Statute, and therefore, Thiel is subject to ICC jurisdiction under Art. 12(2)(b) of the Rome Statute. 

However, it is notable to mention that great political will is needed to enact the arrest of those which the ICC prosecutor has issued an arrest warrant for, as the ICC does not possess an enforcement force. Furthermore, U.S President Donald Trump has issued sanctions on the court, further endangering the status of the court in the international legal order. The ICC is additionally quite dependent on member states for funding, and the European Union’s economy is deeply entrenched in bilateral EU-American trade.  These politicised factors will undoubtedly play a factor in the ICC prosecutor’s decisions to pursue arrest warrants for powerful people, especially those from the Global North. 

Conclusion

Corporate complicity is by and far a concept that requires rapid and reevaluated application, if it is to keep up with the violations of human rights that corporations are implicated in. For now, what is more legally certain, and even then this is dependent on the jurisdictional environment of the court, is the invocation of international human rights in national courts against corporate actors. In order for Palantir executives’ actions to reach the International Criminal Court, it is arguable that more than “gross human rights violations” is needed, but rather, a comprehensive turn in how the international legal order functions and addresses human rights violations.