Dutch Business and Human Rights Litigation Continues: Criminal Complaint against Nike, Patagonia, State of the Art and C&A

After similar cases have been filed in France and Germany, a criminal complaint has now been filed in the Netherlands regarding several companies’ complicity in human rights abuses in China. The European Center for Constitutional Rights, together with Prakken d’Oliveira Human Rights Lawyers, argue that the Nike, Patagonia, State of the Art, and C&A headquarters in the Netherlands may be directly or indirectly complicit in human rights abuses in Xinjiang, China. Certain products made by the companies involved in the complaint were made using Chinese cotton, which is allegedly produced with forced labour.

The Dutch courts will be tasked with investigating whether the companies’ involvement amounts to crimes against humanity. Crimes against humanity are international crimes as defined by the Rome Statute of the ICC. Under Dutch law, the Rome Statute is consolidated into national law by the International Crimes Act, 2003. The Act provides for universal jurisdiction, provided that a suspect is present in the territory of the Netherlands. Importantly, the Act imbues criminal liability on superiors permitting the commission of an offense under the Act, or negligently failing to prevent the commission thereof.

This is the first case of its kind in the Netherlands. However, the Dutch courts have previously shown their willingness to take a more liberal and innovative stance when it comes to human rights and environmental abuses in Milieudefense et al v. Royal Dutch Shell plc. A successful case may have widespread implications, as prior to establishing the companies’ involvement, the court would first have to look at whether there is “a widespread or systematic attack directed against any civilian population” as per the legislation. Given the sensitive and political nature of the issues put to discussion, it will be very interesting to see to what extent Dutch courts are willing to involve themselves.