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Corporations before International Criminal Courts: Implications for the International Criminal Justice Project

  • JOANNA KYRIAKAKIS
Abstract

The debate over whether the International Criminal Court should have jurisdiction over corporations has persisted over the years, despite the failure of the legal persons proposals at Rome. For its part, the Special Tribunal for Lebanon determined that it has jurisdiction over corporations for the purpose of crimes against the administration of the Tribunal, albeit not for the substantive crimes over which it adjudicates. Most recently, the African Union has adopted a Protocol that, should it come into operation, would create a new international criminal law section of the African Court of Justice and Human and People's Rights with jurisdiction over corporations committing or complicit in serious crimes impacting Africa. In light of the enduring nature of the proposal that international criminal institutions should directly engage with the problem of commercial corporations implicated in atrocity, this article explores the possible implications for the international criminal justice project were its institutions empowered to address corporate defendants and prosecutors emboldened to pursue cases against them. Drawing on the expressive goals of international criminal justice and concepts of sociological legitimacy, as well as insights from Third World Approaches to International Law, the article suggests that corporate prosecutions, where appropriate, may have a redeeming effect upon the esteem in which some constituent audiences hold international criminal law, as a system of global justice. The article's thesis is then qualified by cautionary thoughts on the redemptive potential of corporate prosecutions.

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1 Working Paper on Article 23, Paragraphs 5 and 6, UN Doc. A/CONF.183/C.1/WGGP/L.5/Rev.2 (3 July 1998).

2 Summary Records of the Meetings of the Committee as a Whole, 26th Meeting, UN Doc. A/CONF.183/C.1/SR.26 (8 July 1998), at 10. For a detailed review of the progress of the corporation proposal at Rome, see Clapham, A., ‘The Question of Jurisdiction under International Criminal Law over Legal Persons: Lessons from the Rome Conference’, in Kamminga, M. and Zia-Zarifi, S. (eds.), Liability of Multinational Corporations under International Law (2000), 139 .

3 Art. 25 of the 1998 Rome Statute of the International Criminal Court, 2187 UNTS 90 (the Rome Statute).

4 van den Herik, L., ‘Corporations as Future Subjects of the International Criminal Court: An Exploration of the Counterarguments and Consequences', in Stahn, C. and van den Herik, L. (eds.), Future Perspectives on International Criminal Justice (2010), 350 .

5 Sundell, J., ‘Ill-Gotten Gains: The Case for International Corporate Criminal Liability’, (2011) 20 Minnesota Journal of International Law 648, at 675–8 (commenting upon these two alternative options).

6 Statute of the African Court of Justice and Human and Peoples’ Rights (Proposed ACJHPR Statute), contained as an Annex to the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, adopted on 27 June 2014 (Malabo Protocol). See in particular Art. 28A (international criminal jurisdiction of the Court) and Art. 46C (corporate criminal liability). The former extends the Court's jurisdiction to the following crimes: genocide, crimes against humanity, war crimes, unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources, and aggression.

7 According to Art. 46E bis, the criminal division of the ACJHPR would exercise jurisdiction over conduct committed on the territory of a state party, where the victim or offender is a national of a state party, or where the conduct in question threatens a vital interest of a state party: Proposed ACJHPR Statute, supra note 6. Practically, however, there are enforcement challenges should the Court attempt to proceed with a case against a corporation without a presence in a state party's territory: see, e.g., J. Gobert and M. Punch, Rethinking Corporate Crime (2003), 146–78 (discussing legal and practical considerations in prosecuting transnational corporate groups).

8 Stewart, J., ‘A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity’, (2013) 16 (2) New Criminal Law Review 261 .

9 See, e.g., van den Herik, L. and Jong, D. Dam-De, ‘Revitalizing the Antique War Crime of Pillage: The Potential and Pitfalls of Using International Criminal Law to Address Illegal Resource Exploitation during Armed Conflict’, (2011) 15 Criminal Law Forum 237 ; Eberechi, I., ‘Armed Conflicts in Africa and Western Complicity: A Disincentive for African Union's Cooperation with the ICC’, (2009) 3 African Journal of Legal Studies 53 .

10 See, e.g., Delas-Marty, M., ‘Ambiguities and Lacunae: The International Criminal Court Ten Years On’, (2013) 11 Journal of International Criminal Justice 553, at 557.

11 A transnational corporation is a corporation that operates in one or more countries other than its place of incorporation: P. Muchlinski, Multinational Enterprises and the Law (2007), 5–8.

12 Joseph, S., ‘Taming the Leviathans: Multinational Enterprises and Human Rights’, (1999) 46 (2) Netherlands International Law Review 171 . Describing the dynamics of this governance gap, see also J. Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc. A/HRC/8/5 (7 April 2008), in particular [11]–[16], [34]–[36], [47]–[49].

13 See, e.g., Ezeudu, M., ‘Revisiting Corporate Violations of Human Rights in Nigeria's Niger Delta Region: Canvassing the Potential Role of the International Criminal Court’, (2011) 11 African Human Rights Law Journal 23 . For an analysis of the intersections between international human rights law and international criminal law on corporate accountability, see van den Herik, L. and Cernic, J. Letnar, ‘Regulating Corporations under International Law: From Human Rights to International Criminal Law and Back Again’, (2010) 8 Journal of International Criminal Justice 725 .

14 Describing the factors that render atrocity crimes peculiarly resistant to state-based justice frameworks, see Cassese, A., ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’, in Romano, C. et al. (eds.), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (2004), 3 at 4–6. Noting similar arguments are relevant to corporate impunity for atrocity, see Ezeudu, supra note 13, at 48–9.

15 See, e.g., A. Clapham, Human Rights Obligations of Non-State Actors (2006), 74–5, 251, 267; Nerlich, V., ‘Core Crimes and Transnational Business Corporations’ (2010) 8 Journal of International Criminal Justice 895, at 896–9.

16 See, e.g., Giannini, T. and Farbstein, S., ‘Corporate Accountability in Conflict Zones: How Kiobel Undermines the Nuremberg Legacy and Modern Human Rights’, (2010) 52 HILJ – Online 119 .

17 For a discussion of the limits of methodological individualism when dealing with crime in complex corporate contexts, see B. Fisse and J. Braithwaite, Corporations, Crime and Accountability (1993), 17–58

18 For an analysis of key counter-arguments to the proposal of ICC competence over corporations, see Van den Herik, supra note 4.

19 deGuzman, M., ‘Choosing to Prosecute: Expressive Selection at the International Criminal Court’, (2012) 33 Michigan Journal of International Law 265, at 268.

20 Fallon, R., ‘Legitimacy and the Constitution’, (2005) 118 Harvard Law Review 1787 .

21 Luban, D., ‘After the Honeymoon: Reflections on the Current State of International Criminal Justice’, (2013) 11 Journal of International Criminal Justice 505, at 505 (quoting symposium organizers).

22 Notably, the ICC Office of the Prosecutor (OTP) has recently acted on events in other parts of the world, including opening a situation into crimes allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008. Preliminary examinations are also underway with respect to Afghanistan, UK conduct in Iraq, Colombia, Palestine and Ukraine.

23 See, e.g., AU, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court, Doc. Assembly/AU/Dec.245(XIII) Rev.1 (3 July 2009).

24 deGuzman, supra note 19, at 271–3; Jalloh, C., ‘Regionalizing International Criminal Law?’, (2009) 9 International Criminal Law Review 445, at 472–3 (noting that criticism has been less pronounced among civil society, much of which continues to support the ICC); Ambos, K., ‘Expanding the Focus of the “African Criminal Court”’, in Schabas, W.A., McDermott, Y. and Hayes, N. (eds.), The Ashgate Research Companion to International Criminal Law (2013), 499 .

25 Jalloh, supra note 24, at 462 (quoting Professor Mamood Mamdani). For excellent analyses of the nuances of African critiques, see ibid., and Jalloh, C., ‘Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction’, (2010) 21 Criminal Law Forum 1 .

26 Jalloh, supra note 24, at 462–5; Jalloh, supra note 25, at 25–6.

27 Mégret, F., ‘Three Dangers for the International Criminal Court: A Critical Look at a Consensual Project’, (2001) XII Finnish Yearbook of International Law 193, at 225.

28 R. Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (2005), 199–221.

29 These include the jurisdictional limits of the Court, the early self-referrals by African states, and the sheer scale of violence plaguing Africa since the creation of the Court. See further Ambos, supra note 24.

30 Mégret, F., ‘International Criminal Justice: A Critical Research Agenda’, in Schwöbel, C. (ed.), Critical Approaches to International Criminal Law: An Introduction (2014), 17 at 34–6.

31 See, e.g., Dugard, J., ‘Palestine and the International Criminal Court: Institutional Failure or Bias?’, (2013) 11 Journal of International Criminal Justice 563 ; Schabas, W., ‘The Banality of International Justice’, (2013) 11 Journal of International Criminal Justice 545 .

32 Eberechi, supra note 9; Mbokani, J., ‘La cour pénale internationale: Une cour contre les africains ou une cour attentive À la souffrance des victimes Africaines?’, (2013) 26 (2) Quebec Journal of International Law 47 .

33 See, e.g., Menon, P., ‘Self-referring to the International Criminal Court: A Continuation of War by Other Means’, (2016) 109 AJIL Unbound 260 ; Nouwen, S. and Werner, W., ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, (2010) 21 (4) EJIL 941 .

34 Menon, supra note 33.

35 See, e.g., Kiyani, A.G., ‘Third World Approaches to International Criminal Law’, (2016) 109 AJIL Unbound 255 ; Kendall, S., ‘Commodifying Global Justice: Economies of Accountability at the International Criminal Court’, (2015) 13 Journal of International Criminal Justice 113 .

36 Mégret, supra note 27, at 227

37 Mutua, M., ‘What is TWAIL?’, (2000) 94 American Society of International Law Proceedings 31, at 31.

38 A. Anghie and B.S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’, (2003) Chinese Journal of International Law 77, at 79. See also at 81 and 83.

39 Ibid., at 78–9 and 84–6.

40 Ibid., at 89.

41 Ibid., at 96–7.

42 For a TWAIL re-reading of the history of international criminal law, see Nielsen, C., ‘From Nuremberg to The Hague: The Civilizing Mission of International Criminal Law’, (2008) 14 Auckland University Law Review 81 .

43 See, e.g., Mégret, F., ‘What Sort of Global Justice is “International Criminal Justice”?’, (2015) 13 Journal of International Criminal Justice 77 .

44 Cryer, supra note 28, at 192; deGuzman, supra note 19, at 276.

45 Cryer, supra note 28, at 198; deGuzman, supra note 19, at 276–8.

46 deGuzman, supra note 19, at 278–81. See also Glasius, M., ‘Do International Criminal Courts Require Democratic Legitimacy’, (2012) 23 (1) EJIL 43, at 56.

47 Cryer, supra note 28, at 198.

48 Ibid., at 195 (drawing on Lon Fuller's definition of rule of law).

49 Ibid.

50 Ibid., at 194–7.

51 deGuzman, supra note 19, at 273 (noting, however, that criticisms from ‘leaders with little personal legitimacy . . . are widely discounted’).

52 Ibid., at 268.

53 Ibid., at 276.

54 Ibid., at 268.

55 Damaska, M., ‘What is the Point of International Criminal Justice?’, (2008) 83 Chicago-Kent Law Review 329 .

56 See, e.g., Damaska, supra note 55; G.J. Bass, Stay the Hands of Vengeance: The Politics of War Crimes Tribunals (2001); M. Drumbl, Atrocity, Punishment and International Law (2007), 173–6; Mégret, F., ‘Practices of Stigmatization’, (2013) 76 Law and Contemporary Problems 287 ; Sloane, R.D., ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’, (2007) 43 Stanford Journal of International Law 39 .

57 Mégret, supra note 56.

58 Policy Paper on Preliminary Examinations, ICC-OTP (November 2013); Policy Paper on Case Selection and Prioritisation, ICC-OTP (15 September 2016).

59 deGuzman, supra note 19, at 281–9; W. Schabas, ‘The Short Arm of International Criminal Law’, in Schabas, McDermott and Hayes, supra note 24, at 387.

60 Mégret, supra note 43, at 94–6; deGuzman, supra note 19, at 312–19.

61 deGuzman, supra note 19, at 316–19.

62 Anghie and Chimni, supra note 38, at 89–90.

63 There is a notable geographical distribution of corporate headquarter states. By and large they are developed states, many being Western European, though this is beginning to change: Roach, B., ‘A Primer on Multinational Corporations’, in Chandler, A.D. Jr and Mazlish, B. (eds.), Leviathans: Multinational Corporations and the New Global History (2005), 19 at 24–8. Simultaneously, it is in states economically dependent upon foreign direct investment where local and global conditions press most powerfully towards lower levels of domestic regulation and enforcement: see, e.g., De Schutter, O., ‘The Accountability of Multinationals for Human Rights Violations in European Law’, in Alston, P. (ed.), Non-State Actors and Human Rights (2005), 227 at 238–9; Spar, D. and Yoffie, D., ‘Multinational Enterprises and the Prospects for Justice’, (1999) 52 (2) Journal of International Affairs 557 .

64 Sundell, supra note 5, at 672.

65 Truth and Reconciliation Commission of Liberia, ‘Volume 2: Consolidated Final Report’ (30 June 2009) 426–59 (Annex 2: Draft Statute: Extraordinary Criminal Court, 426–59, Arts. 14(11) and 15(2)). For the Commission's findings on business and economic crimes see, Truth and Reconciliation Commission of Liberia, ‘Volume 3, Title III: Economic Crimes and the Conflict, Exploitation and Abuse’ (2009).

66 Muchlinski, P., ‘The Changing Face of Transnational Business Governance: Private Corporate Law Liability and Accountability of Transnational Groups in a Post Financial Crisis World’, (2011) 18 (2) Indiana Journal of Global Legal Studies 665, at 685–90.

67 Renewed efforts at the UN towards a binding treaty on corporations and human rights were initiated by a resolution, drafted by Ecuador and South Africa and tabled at the 26th Session of the Human Rights Council, strongly in favour of the creation of such a treaty. This resolution prompted a counter-resolution, drafted by Norway, that was equivocal on the value of such an instrument. These processes resulted in a resolution of the HRC creating an open-ended inter-governmental working group to progress the issue, voting on which demonstrates a broad North–South split among state positions: UNHRC, ‘Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights’, UN Doc. A/HRC/RES/26/9 (14 July 2014). For the background to these renewed treaty efforts and access to documents, see ‘Binding Treaty’, Business and Human Rights Resource Centre, at business-humanrights.org/en/binding-treaty (accessed 30 March 2016).

68 Mutua, supra note 37, at 31

69 Anghie and Chimni, supra note 38, at 81. See also Gevers, C., ‘International Criminal Law and Individualism: An African Perspective’, in Schwöbel, C. (ed.), Critical Approaches to International Criminal Law: An Introduction (2014), 220 at 230.

70 Anghie and Chimni, supra note 38, at 92–5

71 See, e.g., Kohl, U., ‘Corporate Human Rights Accountability: The Objections of Western Governments to the Alien Tort Statute’, (2014) 63 International and Comparative Law Quarterly 665 .

72 The relevant decisions are New TV S.A.L, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, Case No STL-14-05/PT/AP/AR126.1, 2 October 2014; Akhbar Beirut S.A.L., Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, Case No STL-14-06/PT/AP/AR126.1, 23 January 2015. For a summary of the cases see Bernaz, N., ‘Corporate Criminal Liability under International law: The New TV S.A.L and Akhbar Beirut S.A.L. Cases at the Special Tribunal for Lebanon’, (2015) 13 Journal of International Criminal Justice 313 . On critiques of the reasoning that led to the finding of corporate duties, see Y. McDermott Rees, ‘Corporate Liability for Contempt at the Special Tribunal for Lebanon: The Saga Continues’ (10 February 2015) at humanrightsdoctorate.blogspot.co.il/2015/02/corporate-liability-for-contempt-at.html; D. Jacobs, ‘A Molotov Cocktail on the Principle of Legality: STL Confirms Contempt Proceedings against Legal Persons’ (6 October 2014) at dovjacobs.com/2014/10/06/a-molotov-cocktail-on-the-principle-of-legality-stl-confirms-contempt-proceedings-against-legal-persons/ (accessed 30 March 2016).

73 See, e.g., Glasius, supra note 46.

74 See, e.g., Ryngaert, C., ‘Imposing International Duties on Non-State Actors and the Legitimacy of International Law’, in Noortmann, M. and Ryngaert, C. (eds.), Non-State Actor Dynamics in International Law: From Law-Takers to Law-Makers (2010), 69 .

75 Kyriakakis, J., ‘International Legal Personality, Collective Entities, and International Crimes’, in Gal-Or, N., Ryngaert, C. and Noortmann, M. (eds.), Responsibilities of the Non-State Actor in Armed Conflict and the Market Place: Theoretical Considerations and Empirical Findings (2015), 79 at 93–4.

76 Ryngaert, supra note 74, at 71–2.

77 Art. 121 of the Rome Statute.

78 Art. 11 of the Malabo Protocol.

79 See, e.g., Engelhart, M., ‘Corporate Criminal Liability from a Comparative Perspective’, in Brodowski, D. et al. (eds.), Regulating Corporate Criminal Liability (2014), 53 at 54–7.

80 On these variants of the deterrence claim in international criminal law, see K. Cronin-Furman and A. Taub, ‘Lions and Tigers and Deterrence, Oh My: Evaluating Expectations of International Criminal Justice’, in Schabas, McDermott and Hayes, supra note 24, at 435.

81 Ibid., at 435.

82 See, e.g., Naffine, N., ‘Who are Law's Persons? From Cheshire Cats to Responsible Subjects’, (2003) 66 Modern Law Review 346, at 365.

83 Grear, A., ‘Challenging Corporate “Humanity”: Legal Disembodiment, Embodiment and Human Rights’, (2007) 7 (3) Human Rights Law Review 511, at 524.

84 Cronin-Furman and Taub, supra note 80, at 440.

85 Ibid., at 448–50

86 Ibid., at 450–1. See also Akhavan, P., ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’, (2001) 95 AJIL 7 .

87 See, e.g., Eberechi, I., ‘“Rounding up the Usual Suspects”: Exclusion, Selectivity, and Impunity in the Enforcement of International Criminal Justice and the African Union's Emerging Resistance’, (2011) 4 African Journal of Legal Studies 51 .

88 Schwöbel, C., ‘Introduction’, in Schwöbel, C. (ed.), Critical Approaches to International Criminal Law: An Introduction (2014), 1 at 3–4 (comparing such criticisms to ‘assumption critiques’ that seek to interrogate more fundamentally the assumption, biases and exclusions of international criminal law).

89 Ibid., at 7–8.

90 Gevers, supra note 69, at 230–3. See also, Simpson, G., ‘Linear Law: The History of International Criminal Law’, in Schwöbel, C. (ed), Critical Approaches to International Criminal Law: An Introduction (2014), 159 .

91 Clough, J., ‘Not-so-innocents Abroad: Corporate Criminal Liability for Human Rights Abuses’, (2005) 11 (1) Australian Journal of Human Rights 1, at 9.

92 Separate corporate juridical liability refers to the rule that, ‘a corporation and its shareholders are separate juridical entities and . . . the corporation's rights and liabilities are separate and distinct from the rights and liabilities of its shareholders’: Blumberg, P.I., ‘Accountability of Multinational Corporations: The Barriers Presented by Concepts of the Corporate Juridical Entity’, (2001) 24 Hastings International and Comparative Law Review 297, at 301.

93 The principle of limited liability ‘limits the liability of shareholders, including corporate shareholders, to the unpaid amount of their investment’: Clough, supra note 91, at 9. For a discussion of the development of this principle, see Blumberg, supra note 92.

94 Targeting subsidiary companies may also be of limited value as subsidiaries may be under-capitalized and second- or third-tier companies can be dissolved in order to avoid liability.

95 On the case for an enterprise approach to piercing the corporate veil see Blumberg, supra note 92, at 311–16; Muchlinski, P., ‘Limited Liability and Multinational Enterprises: A Case for Reform’, (2010) 34 Cambridge Journal of Economics 915, at 919–25; Mwaura, K., ‘Internalization of costs to corporate groups: part-whole relationships, human rights norms and the futility of the corporate veil’, (2012) 11 Journal of International Business and Law 85, at 102–5.

96 See, e.g., Priemel, K.C., ‘Tales of Totalitarianism: Conflicting Narratives in the Industrialist Cases at Nuremberg’, in Priemel, K.C. and Stiller, A. (eds.), Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (2012), 161 (demonstrating how the defence and Tribunal constructed such a reductive narrative in the industrialist trials at Nuremberg). See also Baars, G., ‘Capitalism's Victor's Justice? The Hidden Stories behind the Prosecution of Industrialists Post-WWII’, in Heller, K. and Simpson, G. (eds.), The Hidden Histories of War Crimes Trials (2013), 163 .

97 Policy Paper on Case Selection and Prioritisation, ICC-OTP (15 September 2016), para. 45

98 Ibid., paras. 45–6.

99 See, e.g., van der Wilt, H., ‘Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States’, (2011) 9 Journal of International Criminal Justice 1043 .

* Senior Lecturer at the Monash University Faculty of Law and Deputy Director of the Castan Centre for Human Rights Law []. Thanks to Professor Elies van Sliedregt, the independent reviewers and journal editors for their insightful comments on earlier drafts.

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