Out of curiosity I put the words – ‘Constructive Trust of Profits of Genocide?’ into Google.
To my surprise, the following ‘AI’ answer came up:
‘A constructive trust can be imposed on profits gained from genocide …. when it would be unconscionable for the perpetrator to retain those profits. … [T]he law recognizes a trust, not through formal declaration, but because it’s the fair and just outcome based on the circumstances. …
In cases involving genocide, a constructive trust might be applied to profits derived from activities that enabled or facilitated the genocide.
For example, if a company profited from supplying goods or services that were used in the genocide, a constructive trust could be placed on those profits.
The UN Special Rapporteur on the occupied Palestinian territory has called for an end to trade and financial ties with Israel, including an arms embargo, due to … an “economy of genocide”.
This highlights the idea that certain economic activities can be directly tied to human rights abuses and that those profiting from such activities should not be allowed to retain those profits. …
The core principle is that it would be unconscionable for the individual or entity to keep the profits. …
There must be a clear link between the profits and the genocide. …
In essence, a constructive trust in the context of genocide aims to prevent unjust enrichment by those who have profited from atrocities.’
As I explain in my book, the ‘Contentious Trusts Handbook’ (2020) published by the Law Society:
‘English law provides no clear and all-embracing theory of constructive trusts. The boundaries have been left perhaps deliberately vague so as not to restrict the Court by technicalities in deciding what the justice of a particular case might demand. (Carl Zeiss Stifung v. Herbert Smith & Co [1969] … . There are established categories of circumstances in which it has been held that a constructive trust will arise. The categories are not closed. The categories include constructive trusts arising from:
(a) impugned transactions/payments (without a prior fiduciary relationship);
(b) a prior fiduciary relationship; and
(c) a prior agreement or understanding.
The constructive trust is not a rigid doctrine. Instead it is deliberately built on a flexible, high level principle of good conscience. In Paragon Finance Plc v. DB Thakerar & Co [1999] … at [409], Millett LJ explained that,
“A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another.” …’ (Para 7.7.2 – The Common Intention Constructive Trust).
So, doctrinally, how is it possible that a ‘Constructive Trust of Corporate Profits of Genocide’ could arise under English Law?
Any thoughts?
See also my previous post – ‘Corporate Legal Accountability for Genocide’: https://www.linkedin.com/feed/update/urn:li:activity:7346839255316348929/
I made this enquiry of Google out of sheer curiosity. The thought came to me in an idle moment of contemplation earlier this afternoon, while I was watering plants in the garden. So, I was surprised by the reply. I am not aware of any precedent for the declaration under English Law of the existence of a ‘Constructive Trust of Corporate Profits of Genocide’. Perhaps one exists in another jurisdiction? – although I would doubt it. If you know of any precedent please comment. Even if the legal argument could be made, there would be significant ‘threshold issues’ to overcome at trial, including: ‘locus standii’ of the claimant(s); and ‘jurisdiction.’ However, that does not mean that there insuperable obstacles to a claim being made. If the ‘equitable remedy (which is of course discretionary) is available, then so is ‘tracing.’