Editorial note: This article is part of a series of blog posts on critical subject-matters for the progressive development and codification of International Criminal Law.
By: Juan Pablo Calderon Meza[1]
It is no longer surprising to find influential corporate actors involved in different human rights violations around the world. Nonetheless, corporate actors rarely face justice for those acts. The international fora in charge of enforcing human rights exclusively have jurisdiction over states, although states may be liable for the acts of non-state agents.[2] Yet, this implies a gap in the possibility to hold corporations directly accountable for human rights violations before an international human rights court. And even when those violations may amount to crimes for which individuals and corporations could be investigated domestically, often times, when it comes to corporations operating transnationally—multinational corporations (“MNCs”)—both the “host” and “home” states may be unwilling and/or unable to investigate them and their affiliated individuals—also known as industrialists. For one, host states may not have the capacity or may actually be involved in the crimes.[3] For the other, home states may not see the need to test the scope of their extraterritorial jurisdiction for the activities of their corporations or nationals abroad.[4] MNCs thus benefit from this gap.
1. Closing the Gap at the ICC: the Chiquita Case
The International Criminal Court (“ICC”” or “Court”), with the mandate to “put an end to impunity” for perpetrators of the most serious crimes,[5] could close the gap by investigating industrialists. Article 25(1) of the Rome Statute restricts the personal jurisdiction of the ICC to natural persons. However, Article 25(1) does not prevent investigation and prosecution of industrialists for their role in directly or accessorily participating, as per Article 25(3), in crimes under ICC jurisdiction. This would be in keeping with the post-Nuremberg precedent of Zyklon B, where the accused were agents of the company that supplied poison gas to the Nazi concentration camps.[6] The accused in that case held different positions in the company—Tesch was the owner and Weinbacher was the second in the chain of command, while Drosihn was merely a technician.[7] The court acquitted Drosihn,[8] and held both Tesch and Weinbacher liable after hearing the Judge Advocate’s reasoning that knowledge of the use given to the gas, together with a position to influence or prevent the transfer of gas, were the main criteria to assess liability.[9] The Judge Advocate highlighted that Tesch and Weinbacher were “both competent business men, were sensitive about admitting that they knew at the relevant time of the size of the deliveries of poison gas to Auschwitz.”[10]
At the ICC, the Office of the Prosecutor (“OTP”) has hinted at possibilities to investigate and prosecute industrialists. In its “Policy Paper on Case Selection and Prioritisation,” the OTP noted that it would prioritize the investigation and selection of cases whose manner of commission and impact may include crimes affecting vulnerable communities, by grabbing their land and/or destroying the environment.[11] Moreover, the OTP has included crimes allegedly committed by, inter alios, industrialists within its preliminary examination in Colombia. In its 2012 report, the OTP noted that the Autodefensas Unidas de Colombia (“AUC”) allegedly committed crimes against humanity in Colombia.[12] In 2017, the OTP received an Article 15(2) communication from the Harvard Law School’s International Human Rights Clinic, reporting that some executives from Chiquita Brands International (“Chiquita”) approved payments that Chiquita’s Colombian branch made to the AUC from 1997 through 2004.[13] It reveals memoranda of Chiquita indicating that an executive believed the payments were, in his own words, the “[c]ost of doing business in Colombia.”[14] The communication further reports that when alerted to the mass crimes to which the payments were contributing, one of the executives said, “Just let them sue us, come after us.”[15] In its 2018 report on preliminary examinations, the OTP noted within its examination of Colombia, the domestic investigation into 13 executives of Chiquita and its subsidiary, Banadex.[16] The OTP also referred to investigations on other industries that supported the AUC, for “contributions of cattle breeders, flour makers, merchants and some businessmen allegedly linked to the sugar industry operating in Colombia.”[17] In its 2019 report, it observed that the indictment against 10 out the 13 Chiquita executives was confirmed.[18] The OTP continued to follow up the Chiquita investigation in its 2020 report.[19]
It is alleged that some of the Chiquita executives who have been left off the investigation, and thus off the hook, are not Colombians but precisely foreigners who had power of decision.[20] The question is thus who of the Chiquita executives, who are under investigation, as well as those who are not under investigation, had both knowledge of the crimes and decision-making power.
Cases such as Chiquita pose the question whether the factors leading corporate executives to be involved in mass crimes, putting profit over people’s lives, are rather structural within some corporations. If that is the case, prosecuting an industrialist might have the following effects: (i) if convicted and imprisoned, the executive would be incapacitated, and (ii) this could deter further executives from similarly making wrong decisions. Instead, they would resign and leave the corporation. Yet, the structure will continue and while some might too prefer to resign, another person will eventually be promoted to make the same wrongdoings. In addition to the prosecution of industrialists, either domestically or before the ICC, incapacitation or rehabilitation on a more collective level within the corporation would be an effective intervention to prevent industrialists from engaging in criminal activities again and again. To that end, individual liability could be complemented with corporate liability.
2. Rome Statute Travaux Préparatoires on Corporate Liability
The travaux préparatoires of the Rome Statute show that the original wording of Article 25 would have allowed prosecution of corporations as well as individuals. Article 17(5)–(6) of the Working Group on General Principles of Criminal Law’s draft of April 1, 1998 included personal jurisdiction over legal persons, other than states “when the crimes committed were committed on behalf of such legal persons or by their agencies or representatives.”[21] It added that “criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.”[22] Article 23(5)–(6) of the draft of July 3, 1998 placed the necessary condition for corporations to be tried only if the natural person who controls the legal person is convicted and the Prosecutor included in the charges against that natural person that he/she was in control of the legal person and acted under “consent” of the latter.[23] This would have allowed the prosecution of both industrialists and MNCs.
However, paragraphs (5) and (6) were not included in the final wording of Article 25. Drafters such as Ambassador Scheffer notes that some delegations indicated that their jurisdictions lacked legislation on criminal liability of legal persons, thereby having a barrier to prosecute them domestically as per the complementarity principle.[24] Ambassador Per Saland, who was the Chairman of this discussion during the Rome Conference, noted that “[t]ime was running out” to include corporate liability within the Rome Statute.[25]
3. Momentum to Amend the Rome Statute to Include Corporate Liability
Today, the international community may be prepared to address this proposal. The concerns over lack of domestic legislation on corporate accountability to fulfil the complementary obligations to investigate and prosecute domestically may have been attenuated. Different jurisdictions currently provide for criminal liability of corporations under domestic law.[26] In recent years, corporate liability has been included in various criminal codes[27], and a civil claims to collect damages from corporate actors have also been incorporated in some jurisdictions.[28] As indicated by the International Commission of Jurists, “n the majority of those jurisdictions that already recognize the potential criminal responsibility of companies, companies can be held responsible for […] crimes under international law.”[29] Additionally, civil society and states have shown their interest in regulating corporate accountability in the international level. In 2011, the United Nations adopted the Guiding Principles on Business and Human Rights,[30] and in 2014, the Human Rights Council established a working group to create an international legally binding instrument on business and human rights.[31] With these changes in the international policymaking community, it is time to reconsider corporate accountability at the ICC.
a. Amendments to Incorporate Criminal Liability of Corporations
The Rome Statute could be amended according to the proposals of the Rome Conference. That is, Article 25 could be amended to incorporate paragraphs (5) and (6) of the draft of July 3, 1998.[32]
Alternatively, Ambassador David Scheffer has made the following proposal to amend Article 25 of the Rome Statute:
Amend Article 25(1) to read: ‘The Court shall have jurisdiction over natural and juridical persons pursuant to this Statute.’
Amend the second sentence of Article 1 to read: ‘It shall be a permanent institution and shall have the power to exercise its jurisdiction over natural and juridical persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. Any use of ‘person’ or ‘persons’ or the ‘accused’ in this Statute shall mean a natural or juridical person unless the text connotes an exclusive usage.’
Either way would provide the necessary provisions to prosecute corporations in addition to industrialists. The political will required to achieve such an overhaul of the Rome Statute would admittedly be considerable but not impossible to obtain.
b. Alternative Amendment to Incorporate Civil Liability of Corporations
The draft of April 1, 1998 indicated that there was a middle ground as to the divergence regarding criminal liability of corporations:[33]
Some delegations hold the view that providing for only the civil or administrative responsibility/liability of legal persons could provide a middle ground. This avenue, however, has not been thoroughly discussed. Some delegations, who favour the inclusion of legal persons, hold the view that this expression should be extended to organizations lacking legal status.[34]
It is the time to explore this possibility. Inspired in the partie civile system,[35] victims could implead corporations in reparations proceedings against convicted industrialists.[36] This would require that Articles 75 and 77 of the Rome Statute be amended.
Article 75(2) could be amended as follows:
2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. If the convicted person is a member of a group of persons as provided for in Article 25(3)(c)-(d) or an organization as provided for in Article 7(3)(a), the victims of the crime may attach civil claims for damages against that organization or group of persons. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79. (New language emphasized)[37]
Additionally, Article 77(2) could be modified to include the corporation’s vicarious liability for civil damages, in addition to fines levied on individuals, as follows:
In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.
(c) In a case where the victims have attached a civil claim for damages against an organization, damages are to be paid by the organization to the victims, directly or through the Trust Fund as provided for in Article 79. (New language emphasized)[38]
4. If No Amendment is Possible, the Victims, the TFV, and Even the Convicted Person Could Try Novel Avenues to Seek Contribution for Reparations from Liable Corporate Actors
Lastly, if none of the alternative amendments seem to have any reception among states, the victims, the TFV, and the convicted person could explore novel possibilities to seek contribution from corporate actors who have acted as co-perpetrators and accessories.
a. Impleading Corporate Actors to Appear in Reparations at the ICC
Although it has never been tried, Rule 94(1) of the Rules of Procedure and Evidence (“Rules”) does not prevent a victim to name accessory corporate actors in their request for reparations, so that the Court, under Rule 94(2), “ask the Registrar to provide notification of the request to the person or persons named in the request or identified in the charges and, to the extent possible, to any interested persons.” Corporate actors could be called as impleaders named in the request. Likewise, in proceedings started under the Court’s motion, the Court could call corporate actors as impleaders, considering that Rule 95(1) provides that the Court “shall ask the Registrar to provide notification of its intention to the person or persons against whom the Court is considering making a determination.”
Certainly, neither rule limits the interpretation of the terms “person or persons named in the request” and “person or persons against whom the Court is considering making a determination” to natural persons, let alone to the convicted person. Either the victims in their request or the Court on its own motion could thus call companies or, at the very least, industrialists to appear as impleaders in the reparations proceedings. This would of course require that their liability as contributors to the harm caused by the crimes can be proved. The victims could do so to secure that the payment of the award against the person convicted be paid by either the convicted person or the corporate actors so impleaded.
b. Seeking Contribution of Corporate Actors at Local Courts
Another possibility that has not yet been tried either is to seek contribution from corporate actors that are jointly liable for the harm caused by the crimes of which the convicted person is liable. It is a common rule in several jurisdictions that a party who is held jointly liable to pay the entirety of the award can seek contributory damages from other liable parties. As Judge Simma found in the ICJ case Oil Platforms case, the principle of joint liability for multiple tortfeasors is a general principle of law.[39] Several jurisdictions furthermore provide that a party who is held jointly liable to pay the entirety of the award can seek contributory damages from other liable parties. On the basis of domestic legislation from 24 jurisdictions, Professor Alford notes, “It is the very general rule that if a tortfeasor’s behaviour is held to be a cause of the victim’s harm, the tortfeasor is liable to pay for all of the harm so caused, notwithstanding that there was a concurrent cause of that harm and that another is responsible for that cause.”[40] According to Professor J. E. Noyes and Professor B. D. Smith, principles preventing unjust enrichment across jurisdictions explain that “the availability of contribution does make a system of joint and several liability more palatable.”[41]
Although the forum to seek contributory damages from tortfeasors would be the domestic courts that have jurisdiction over the other liable parties, either the convicted person or eventually the TFV could seek contribution from corporate actors, corporations, and/or industrialists, that contributed to the harm caused by the crimes. In the case of the convicted person, he or she could seek contribution from other liable individuals or corporations. As for the TFV, in cases where the convicted person lacks funds, the reparations order is made against the convicted person but the TFV disburses money to pay the award.[42] Having done so, the TFV could subrogate and seek contribution from the liable corporate actors that also participated in the harm caused by the crimes.
In fact, judging from the TFV’s submissions, it does not seem to oppose the idea to subrogate for the money it pays to the victims. In support of Victims V01’s appeal in Lubanga, the TFV submitted in Lubanga that it “reiterates its legal opinion that a reparations order has to be directed against the convicted person regardless of his or her financial situation” and that it “plays only an intermediary role to implement the order against the convicted person.”[43] Importantly, the TFV noted that an order against the convicted person “remains liable even if reparations were advanced by the Trust Fund” and did not discard the possibility that, “even at a later stage, the convicted person fulfils this part of the Court’s order,” serving reconciliation purposes.[44] The Appeals Chamber observed:
In cases where the convicted person is unable to immediately comply with an order for reparations for reasons of indigence, the Appeals Chamber agrees with the parties and participants’ submissions that were made before the Trial Chamber, namely that the Trust Fund may advance its ‘other resources’ pursuant to regulation 56 of the Regulations of the Trust Fund, but such intervention does not exonerate the convicted person from liability. The convicted person remains liable and must reimburse the Trust Fund.[45]
In situations where companies are involved in crimes for which the convicted person was held liable for reparations but was declared indigent or has not paid the award, the TFV could pay and thus subrogate to seek payment from co-perpetrators or accessories. This could be feasible through civil litigation in fora with personal jurisdiction over the companies or their assets. The fact that this subrogation action exists or is actually filed might furthermore serve as collateral for the TFV to seek funding, and it might give some security to people who want to invest in the TFV.
5. Conclusion
In an effort to close many of the loopholes that have allowed some corporate actors to escape accountability for their role in atrocity crimes, this blog summarizes proposals that have been the fruit of research conducted by Harvard Law School’s student organization, Advocates for Human Rights. For one, corporate accountability could be implemented through statutory amendments providing for criminal and/or civil liability of corporations. In any event, if the time had not yet come to table such amendments, the Rome Statute and the Rules could be interpreted to allow the victims or the convicted person to implead corporate actors, both natural and juridical persons who have co-perpetrated or contributed to the crimes, to appear as impleaders in the reparations stage at the ICC. Otherwise, with a reparations order issued against the convicted person in such cases, the convicted person himself could seek contribution from jointly corporate actors before local courts. In cases where the TFV pays for the reparations award, it could subrogate on the convicted person’s rights to seek contribution from such jointly liable corporate actors.
In memoriam of Felipe Michelini, former Head of the Board of Directors of the Trust Fund, it is worth recalling the words he told the students who were working on this project when they told him about his novel ideas. As per the student’s notes of their interview with Mr. Michelini, he “mentions that the history of the ICC itself is defined by pushback from States’ but ‘the environment around the Court has changed significantly in recent years.”[46] Regarding corporate accountability, “Michelini reasons that in order to improve corporate accountability, the Court could interpret “organizations” in the category of crimes against humanity as including corporations.”[47] Similarly, Professor Nerlich is of the view that “language of Article 7(2)(a) ICC Statute appears to be sufficiently broad to encompass any type of organization and therefore could also cover business corporations.”[48]
While there may still be some skeptical views regarding corporate liability at the ICC, one thing is true: There is an emerging interest on the matter and a lot to be discussed. This blog and the abovementioned project want to resume that conversation.
[1] The views expressed herein are those of the author alone and do not reflect the views of the International Criminal Court. The author would like to thank the following individuals who, as students at Harvard Law School, contributed to the research supporting the footnotes of this blog: Johanna Lee, Rebecca Tweedie, Celeste Kmiotek, Samantha Lint, Emma Broches, Isha Jain, Stephanie Gullo, Matthew Farrell, and Jung Min (Jasmine) Shin.
[2] See, e.g., UN Human Rights Committee, General Comment No. 31: the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, ¶¶ 8, 10.
[3] Martin-Joe Ezeudu, Revisiting Corporate Violations of Human Rights in Nigeria’s Niger Delta Region: Canvassing the Potential Role of the International Criminal Court, 11 Afr. Hum. Rts. L.J. 23, 27 (2011).
[4] Id. at 44.
[5] Rome Statute, UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998); 2187 UNTS 90, Preamble.
[6] Case No. 9, the Zyklon B, Case Trial of Bruno Tesch and Two Others [1946] Gr. Brit. Military 93.
[7] Id. at 102.
[8] In the case of Drosihn, the Judge Advocate questioned “whether there was any evidence that he was in a position either to influence the transfer of gas to Auschwitz or to prevent it.” In the Judge Advocate’s view, “f he were not in such a position, no knowledge of the use to which the gas was being put could make him guilty.” Id. at 102.
[9] Id. at 101–102.
[10] Id. at 102.
[11] See Int’l Crim. Court, The Off. of the Prosecutor, Policy Paper on Case Selection and Prioritisation, ¶¶ 40–41 (2016).
[12] See Int’l Crim. Court, The Off. of the Prosecutor, Situation in Colombia: Interim Report ¶¶ 25, 51 (Nov. 2012).
[13] Harvard Law School’s International Human Rights Clinic et al., The Contribution of Chiquita Corporate Officials to Crimes Against Humanity in Colombia. Article 15 Communication to the International Criminal Court ¶ 1 (May 2017).
[14] Id. ¶¶ 21–43.
[15] In re Chiquita Brands International, Inc., Report of the Special Litigation Committee Chiquita Brands International Inc., February 2009, p. 89, fn. 132. See also In re Chiquita Brands International, Inc., Order Granting In Part & Denying In Part Defendant’s Joint Consolidated Motion to Dismiss (1 June 2016) pp. 11–12 (citing Cyrus Freidheim on the “just let them sue us sentiment”).
[16] Int’l Crim. Court, The Off. of the Prosecutor, Report on Preliminary Examinations Activities, ¶ 151 (Dec. 2018): “During the reporting period, the AGO initiated proceedings against businessmen allegedly involved in financing the operations of paramilitary groups operating in different regions of Colombia since at least 2002. In August 2018, the AGO issued an indictment (‘resolución de acusación’) against 13 executives and employees of the company Chiquita brands (Banadex and Banacol branches), for the alleged agreement (‘concierto para delinquir’) to finance the paramilitary front ‘Arlex Hurtado’ which operated in the regions of Urabá and Santa Marta from 1996 to 2004”. See also Int’l Crim. Court, The Off. of the Prosecutor, Report on Preliminary Examinations Activities, ¶ 98 (Dec. 2019) (the OTP further noted that “former executives and employees of the company Chiquita brands (Banadex and Banacol branches), accused by the AGO in August 2018 for the alleged agreement (‘concierto para delinquir’) to finance the paramilitary front ‘Arlex Hurtado’, requested the annulment of the accusation. The Deputy Attorney General rejected the request and continued to pursue the accusation against 10 former employees after considering that there was sufficient evidence to call them for trial.”).
[17] Int’l Crim. Court, The Off. of the Prosecutor, Report on Preliminary Examinations Activities, ¶ 151 (Dec. 2018).
[18] Int’l Crim. Court, The Off. of the Prosecutor, Report on Preliminary Examinations Activities, ¶ 98 (Dec. 2019).
[19] Int’l Crim. Court, The Off. of the Prosecutor, Report on Preliminary Examinations Activities, ¶ 98 Id. at ¶¶ 114-15 (Dec. 2020).
[20] While the Colombian investigation includes two non-Colombian executives, there are allegations against a total of 37 non-Colombian executives, in civil litigation in the United States, where plaintiffs seek civil rather than criminal liability. See In re Chiquita Brands International, Inc., Order granting in part and denying in part defendant’s joint consolidated motion to dismiss, 1 June 2016, p. 7, fn. 10, pp. 8-15; In re Chiquita Brands International, Inc., Plaintiffs’ notice of information supplementing their opposition to defendants’ motion to dismiss on the basis of forum non conveniens, 9 March 2016, No. 08-MD-019116, pp. 5-12; In Re: Chiquita Brands Int’l, Inc., Declaration of Michael Evans, 9 March, 2016, No. 08-MD-019116, paras 6(b), 7(f).
[21] Int’l Crim. Court, Text of the Draft Statute for the International Criminal Court, U.N. Doc. A/AC.249/1998/CRP.9 (1998) at 2. See also U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court. Addendum, U.N. Doc. A/CONF-183/2/Add-1 (Apr. 14, 1998) ¶ 49.
[22] Id.
[23] U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Working Group on General Principles of Criminal Law, U.N. Doc. A/CONF.183/C.1/WGGP/L.5/Rev.2 (July 3, 1998).
[24] See David Scheffer and Caroline Kaeb, The Five Levels of CSR Compliance: The Resiliency of Corporate Liability under the Alien Tort Statute and the Case for a Counterattack Strategy in Compliance Theory, 29 Berkeley J. Int’l L. 334, 380 (2011).
[25] Roy S. Lee, The International Criminal Court: The Making of the Rome Statute 199 (1999).
[26] See e.g. Law on the Responsibility of Associations (Verbandsverantwortlichkeitsgesetz) of 2005 (Austria); Belgian Criminal Code, Article 5 (Belgium); Law 20.393 (2009) (Chile); Chinese Criminal Code, Article 30 (China); Act No. 151/03 on the Responsibility of Legal Persons for Criminal Offences (Croatia); Guatemalan Criminal Code, Article 38 (Guatemala); Belgian Criminal Code, Article 5 (Belgium); Chinese Criminal Code, Article 30 (China); Criminal Code of Cyprus, Section 4 (Cyprus); Criminal Procedure Law, Sections 46 (1) (b), 72, 95 (Cyprus); Act No. 418/2011 Coll., on Corporate Criminal Liability, §§ 2-3 (Czech Republic); French Criminal Code, Article 121-2 (France); Guatemalan Criminal Code, Article 38 (Guatemala); Hungarian Criminal Code, Section 70(1)(8), (3) (Hungary); Act CIV of 2001 on Criminal Measures Applicable to Legal Persons (Hungary); General Criminal Code of Iceland, Article 19 a-c (Iceland); Law No. 23 of 1997 (Law Concerning Environmental Management), Articles I (24) and 41-48 (Indonesia); Law 31 of 1999 (Eradication of the Criminal Act of Corruption), Article I (3) (Indonesia); Act Preventing Escape of Capital to Foreign Countries (1932) (Japan); Securities and Exchange Act of 2002, Article 207 (Japan); Corporation Tax Act of 2013, Article 163 (1) (Japan); Unfair Competition Prevention Act 2005, Article 22(I) (Japan); Lebanese Criminal Code, Article 210 (Lebanon); Lithuanian Criminal Code, Art. 20 (Lithuania); Moroccan Criminal Code, Article 127 (Morocco); Dutch Criminal Code, Article 51 (Netherlands); Norwegian Civil Penal Code, Chapter 3 a, Article 48 a-b (Norway); Portuguese Criminal Code, Article 11(2) (Portugal); Act on Preventing Bribery of Foreign Public Officials in International Business Transactions of 1998, Art. 4 (Republic of Korea); Romanian Criminal Code, Article 45 (1) (Romania); Senegalese Penal Code (Senegal), Article 163 bis; Spanish Criminal Code, Article 31 (Spain); Swiss Criminal Code, Article 102 (Switzerland); Syrian Criminal Code (Syria), Article 209 (2); United Arab Emirates Penal Code, Article 65 (United Arab Emirates).
[27] David Scheffer, Is the Presumption of Corporate Impunity Dead, 50 Case W. Res. J. Int’l L. 213, 217 (2018), https://scholarlycommons.law.case.edu/jil/vol50/iss1/12/.
[28] Caroline Kaeb, The Shifting Sands of Corporate Liability Under International Criminal Law, 49 Geo. Wash. Int’l L. Rev. 351, 396 (2016).
[29] Int’l Comm. of Jurists, Corporate Complicity and Legal Accountability Volume 2: Criminal Law and International Crimes 57 (2008). See also Danielle Olson, Corporate Complicity in Human Rights Violations under International Criminal Law, 1 DePaul Int’l Hum. Rts. L.J. 1, 5 (2015). But see Wolfgang Kaleck & Miriam Saage-Maaß. Corporate Accountability for Human Rights Violations Amounting to International Crimes,” 8 J. of Int’l Crim. Just. 699, 701 (2010) (“even though criminal liability of corporations has been introduced in several national jurisdictions, there are no known criminal law cases regarding international crimes against corporations as such”); Int’l Comm. of Jurists, Corporate Complicity and Legal Accountability Volume 1: Facing the Facts and Charting a Legal Path 4, 6 (2008) (“as national legal systems incorporate international criminal law into their domestic legislation, they often include legal entities”). Note that in the United States, certain circuits have ruled that corporations can be sued civilly under international law for human rights violations, causing European human rights organizations to pursue similar avenues. See W. Kaleck & M. Saage-Maaß, Corporate Accountability for Human Rights Violations Amounting to International Crimes, 8 J. Int’l Crim. Just. 699, 701 (2010); A. Walker, The Hidden Flaw in Kiobel: Under the Alien Tort Statute the mens rea standard for corporate aiding and abetting is knowledge, 10 Nw. U. J. Int’l Hum. Rts. 119, 123 (2011); Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010).
[30] Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights, https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf (last visited Apr. 12, 2021).
[31] Office of the High Commissioner for Human Rights, Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, https://www.ohchr.org/en/hrbodies/hrc/wgtranscorp/pages/igwgontnc.aspx (last visited Apr. 12, 2021).
[32] Int’l Crim. Court, Text of the Draft Statute for the International Criminal Court, U.N. Doc. A/AC.249/1998/CRP.9 (1998), p. 2. See also UNDCPICC, Report of the Preparatory Committee on the Establishment of an International Criminal Court. Addendum, 14 April 1998, A/CONF-183/2/Add-1, para. 49.
[33] Int’l Crim. Court, Text of the Draft Statute for the International Criminal Court, U.N. Doc. A/AC.249/1998/CRP.9 (1998) at fn. 3. See also U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court. Addendum, U.N. Doc. A/CONF-183/2/Add-1 (Apr. 14, 1998) ¶ 49.
[34] Id.
[35] Caroline Kaeb, A New Penalty Structure for Corporate Involvement in Atrocity Crimes: about Prosecutors and Monitors, 57 Harv. Int’l J. 20, 21 (2016).
[36]Id. at 21–22.
[37] Rome Statute art. 75, UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998); The reference to “organizations” in Article 7 has been the subject of some scrutiny by international lawyers, as it suggests that Crimes Against Humanity can be committed by non-state actors, which may facilitate jurisdiction over some business practices in international criminal law. See Volker Nerlich, Core Crimes and Transnational Business Corporations, 8 J. Int’l Crim. Just. 895, 904 (2010). Furthermore, Mr Felipe Michelini “reasons that in order to improve corporate accountability, the Court could interpret “organizations” in the category of crimes against humanity as including corporations”. See Interview conducted on January 2019, p. 9 (in file with the author).
[38] See Rome Statute art. 77, UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998).
[39] In the ICJ case Oil Platforms case, Judge Bruno Simma concluded that the principle of joint and several liability “can properly be regarded as a ‘general principle of law’” (ICJ, Oil Platforms (Iran v. U.S.), 6 November 2003, Separate Opinion of Judge Simma, 2003 I.C.J. 161, at 358). To address the issue whether Iran had violated its treaty obligations by laying mines during the Iran-Iraq War, whereas the U.S. could not prove whether Iran or Iraq had laid the mines, Judge Simma found the principle of joint liability in different domestic laws addressing the problem of multiple tortfeasors: “I have engaged in some research in comparative law to see whether anything resembling a ‘general principle of law’ […] can be developed from solutions arrived at in domestic law to come to terms with the problem of multiple tortfeasors. I submit that we find ourselves here in what I would call a textbook situation calling for such an exercise in legal analogy….[R]esearch into various common law jurisdictions as well as French, Swiss and German tort law indicates that the question has been taken up and solved by these legal systems with a consistency that is striking.” (ICJ, Oil Platforms (Iran v. U.S.), 6 November 2003, Separate Opinion of Judge Simma, 2003 I.C.J. 161, at 354).
[40] R. Alford, Apportioning Responsibility Among Joint Tortfeasors for International Law Violations, 38 Pepp. L. Rev. 233, 241 (2011) (referring to applicable law in Austria, Belgium, Canada, China, the Czech Republic, Denmark, England, Finland, France, Germany, Ireland, Israel, Italy, Netherlands, New Zealand, Poland, Portugal, Scotland, South Africa, Spain, Sweden, Switzerland, and the United States); see also T. Weir, Complex Liabilities, in 11 International Encyclopedia of Comparative Law §§ 1, 79-104 (André Tunc ed., 2013).
[41] J. E. Noyes & B. D. Smith, State Responsibility and the Principle of Joint and Several Liability, 13 Yale J. Int’l. L. 255, 256 (1988). It is also pointed out that ‘the conditions to its availability vary significantly. For example, in different legal systems, contribution may derive from wide-ranging sources, including subrogation, independent right, or statutory terms. In some systems, contribution may not be available unless a claim has formally been reduced to judgment, or unless all the joint tortfeasors have been named in the complaint or the judgment. In addition, the amount or availability of contribution varies among legal systems when one tortfeasor has settled with the plaintiff.’ J. E. Noyes & B. D. Smith, State Responsibility and the Principle of Joint and Several Liability, 13 Yale J. Int’l. L. 2, 256 (1988) (referring to T. Weir, Complex Liabilities, in 11 International Encyclopedia of Comparative Law §§ 109-140 (André Tunc ed., 2013).
[42] Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06-3129, ¶ 115 (Mar. 3, 2015).
[43] Prosecutor v. Thomas Lubanga Dyilo, Observations of the Trust Fund for Victims on the Appeals Against Trial Chamber I’s “Decision Establishing the Principles and Procedures to be Applied to Reparations,” Case No. ICC-01/04-01/06-3009, ¶ 107 (Apr. 8, 2013) (“The Trust Fund reiterates its legal opinion that a reparations order has to be directed against the convicted person regardless of his or her financial situation. That the Trust Fund plays only an intermediary role to implement the order against the convicted person is very clearly stated in the French version of Article 75 (2), second sentence: ‘Le cas échéant la Cour peut decider que l’indeminité accordée à titre de réparation est versée par l’intermédiaire du Fonds visé à l’article 79’”.). See also id. at ¶ 108 (“If the Trust Fund plays the role of an intermediary, an order for reparations is the prerequisite for the implementation through the Trust Fund and this order must be made against somebody, which necessarily means in the current setting of the Statute, an order against the convicted person.”).
[44] See id. at ¶ 110 (“The Trust Fund observes that the high significance of a Court decision should not be underestimated for both the convicted person and the victim. Civil liability for reparations is of high symbolic value for victims, because this clearly sends the message that the convicted person is obliged to remedy the harm caused. A reparations order by the Court would also mobilise State Parties to give effect to the order. Beside a conviction and a punishment, it is also of high importance to have the burden of a reparations order rest on the shoulders of the convicted person, reminding him or her that the reparations order was issued against him or her, and that he or she remains liable even if reparations were advanced by the Trust Fund. It could also be a measure which aims at future reconciliation if, even at a later stage, the convicted person fulfils this part of the Court’s order.”).
[45] Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeals Against the “Decision Establishing the Principles and Procedures to be Applied to Reparations” of 7 August 2012 with AMENDED Order for Reparations (Annex A) and Public Annexes 1 and 2, Case No. ICC-01/04-01/06-3129, ¶ 115 (Mar. 3, 2015).
[46] Interview conducted on January 2019, p. 3 (in file with the author).
[47] Interviews conducted on January 2019, p. 9 (in file with the author).
[48] See Volker Nerlich, Core Crimes and Transnational Business Corporations, 8 J. Int’l Crim. Just. 895, 904 (2010).
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