Justice Seen to be Done? A Preliminary Assessment of the Private Ad hoc Tribunal for Rape and Sexual Assault at the Porgera Mine in Papua New Guinea

Article based on: Malcolm Rogge, LL.M Thesis Paper, Harvard Law School, May 2013 (edited for publication on SSRN in June 2020)

59 Pages Posted: 10 Apr 2020 Last revised: 14 Sep 2020

See all articles by Malcolm Rogge

Malcolm Rogge

Harvard Law School; University of Exeter - School of Law; Corporate Responsibility Initiative

Date Written: May 30, 2013

Abstract

This paper undertakes a preliminary assessment of a private non-judicial grievance mechanism that was set up by a corporation in response to allegations of egregious human rights abuses. The mechanism was conceived and designed by Barrick Gold Corporation (Barrick), the world’s largest gold producer, to address credible allegations of rape and sexual assault involving company security forces at the Porgera mine in Papua New Guinea. The author argues that the mechanism reflects the mixed motives of its designers and has dueling purposes: on the one hand, it is intended to function as a claims-settlement bureau aimed at diverting civil claims that might be brought against the company; on the other hand, it purports to be an independent adjudicative body, much like an ad hoc tribunal, that is capable of providing procedural “benefits,” “access to justice,” and “just outcomes” for the victims. The author argues that Barrick’s dueling-purpose mechanism spans the contested boundary between legitimate, consensual private dispute resolution and the space reserved for State-based, public adjudicatory processes. As a case study, this paper supports the view that the more robust procedural guarantees and independence of public judicial processes are better suited to delivering justice in claims involving egregious human rights abuses. At the same time, it is recognized that demanding an ideal or perfect route to a just remedy is also not a viable approach in many difficult cases; in this respect, lessons can be learned from the company’s experimental approach to the provision of non-judicial remedies.

Keywords: UNGPs, corporate social responsibility, non-judicial grievance mechanisms, extractive industry, Papua New Guinea, corporate law, public law, private law, human rights, public private distinction, the right to a remedy, business and human rights, sexual assault, sexual violence

Suggested Citation

Rogge, Malcolm and Rogge, Malcolm, Justice Seen to be Done? A Preliminary Assessment of the Private Ad hoc Tribunal for Rape and Sexual Assault at the Porgera Mine in Papua New Guinea (May 30, 2013). Article based on: Malcolm Rogge, LL.M Thesis Paper, Harvard Law School, May 2013 (edited for publication on SSRN in June 2020), Available at SSRN: https://ssrn.com/abstract=3571831. or http://dx.doi.org/10.2139/ssrn.3571831

Malcolm Rogge (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

University of Exeter - School of Law ( email )

Streatham Court
University of Exeter
Exeter, EX4 4QJ
United Kingdom

Corporate Responsibility Initiative ( email )

John F. Kennedy School of Government
79 JFK Street
Cambridge, MA 02138
United States

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