The tide is turning towards holding corporations accountable for atrocities. This is true with regard to domestic criminal codes, international treaties, and the jurisprudence of international criminal tribunals.[1]
This might not have been expected back in 2010, when the Second Circuit rejected corporate liability under the U.S. Alien Tort Statute on the ground that “customary international law has steadfastly rejected the notion of corporate liability for international crimes, and no international [criminal] tribunal has ever held a corporation liable for a violation of the law of nations.”[2] However, this view has not been subsequently endorsed by other circuits and the Supreme Court declined to review corporate liability as such in its Kiobel judgment.[3] In 2014, the Special Tribunal for Lebanon (STL)—for the first time in the history of international and hybrid criminal tribunals—dealt with a case involving a corporate accused.[4] The legal landscape of corporate accountability standards for atrocity crimes is increasing dynamically both at the domestic and international level. What, however, should be the plausible, appropriate, and effective criminal penalties to be imposed on corporations as legal persons?
The issue is not merely academic, but also of timely practical interest considering the recent STL holding in favor of corporate liability; the case involved charges of contempt and interference with the administration of justice against a broadcasting company that aired the identities of confidential witnesses and failed to remove this information from its website and another third-party web platform, thus violating a STL pre-trial order.[5] On March 8, 2016, the STL Appeals Panel issued its decision on the Contempt Judge’s effort to extract any guidance from international law for corporate criminal liability. While the Appeals Judges reaffirmed the existence of corporate criminal liability under international law, they held that the corporate officer in charge could not be found guilty on the evidence, which avoided the result of finding any corporate liability. Despite this internal power struggle at the STL, the general trend towards corporate liability for international crimes has been clearly signaled by the Appeals Panel and is expected to continue informing that tribunal’s jurisprudence.
In cases of corporate wrongdoing, there is always the option to hold the individual officer responsible within the existing jurisdictional reach of criminal tribunals, including most prominently, the ICC. We have seen this in the Media Case where the International Criminal Tribunal for Rwanda found media executives guilty of direct and public incitement to commit genocide.[6] David Scheffer’s essay in this symposium describes the prospects of holding individual corporate officers liable for corporate misconduct among other options.[7] While this is an important starting point, attributing liability merely to the individual managers would not be an accurate reflection of blameworthiness when dealing with crimes committed through collective corporate action.[8] Moreover, mere individual criminal prosecution would not lead to the organizational change necessary at the firm level to reform corporate policies and structures that have facilitated the commitment of the crimes in the first place.[9] The literature on organizational behavior has established that optimal deterrence and retribution can be achieved by targeting both the responsible individual and the firm for criminal liability.[10] Imposing criminal penalties on the corporate entity itself achieves retribution for the collective action and provides incentives for structural change at the firm level.
Lord Chancellor of England Lord Edward First Baron Thurlow (1731-1806) famously stated that corporations as legal fictions under the law have “no body to be kicked.”[11] This limits the spectrum of available forms of criminal penalties as not all will be equally applicable to legal persons, such as imprisonment, or some might require adjustments because they were originally designed to punish natural persons.
In that vein, a significant number of legal systems in Europe have taken a hybrid civil/criminal approach to remedies that allows victims to attach civil tort claims for monetary damages to the underlying criminal proceedings.[12] This so-called ‘partie civile’ procedure could offer a valid remedy option when dealing with corporate perpetrators.[13] However, the underlying core issue of penalties to be imposed on a legal person would remain unresolved since, despite being consolidated with a civil action, the criminal proceedings remain the principal vehicle upon which the civil action merely piggy-backs.[14] Moreover, as stipulated by their founding documents, international tribunals and the ICC are criminal courts for atrocity crimes. Letting these bodies decide on the merits of a civil action for damages, which remains an independent action adhering to substantive tort law, would thus overextend these bodies’ mandate. This approach would require an amendment or protocol to the Rome Statute or even the establishment of a new tribunal, any of which would be politically difficult. We have to fundamentally rethink and restructure the penalties catalogue at the domestic as well as international level to accommodate corporations as legal persons in the realm of international and hybrid criminal tribunals.
At first glance, criminal fines seem to be the most feasible penalty to impose on convicted legal persons since corporations, as creatures of business, are profit-driven and thus would be expected to respond to monetary incentives through fines. However, fines are not substantially different from compensatory/monetary damages, which can be considered a ‘mis-fit’ to right international crimes of vast carnage and magnitude.[15] From a behavioral perspective, monetary incentives (such as fines) run the risk of commoditizing moral values and social norms and thus transforming the underlying relationship of law and morality into a mere market exchange.[16] Justice for victims as well as deterrence of future corporate misconduct seems to be best achieved if criminal fines are paired with other non-monetary remedies as primary penalties, recognizing that imprisonment is not applicable to legal persons. But it would be short-sighted to conceive criminal fines as a legitimate stand-alone penalty in cases involving atrocity crimes.
It will require creative thinking that should be informed by lessons from organizational behavior to ensure that justice is rendered for the victims while corporate behavior is stirred towards compliance with human rights principles. France’s experience and experimentation with criminal sanctions for corporations as legal entities provides important insights in that regard. France was the first civil law jurisdiction in Europe to adopt corporate criminal liability, in 1994,[17] and to elaborate a comprehensive catalogue of sanctions tailored specifically to when a legal person is the criminal perpetrator.[18] French law considers nine different deprivations of corporate rights as suitable penalties: dissolution of the corporation, ‘judicial surveillance,’ public display and distribution of the sentence, general or special confiscation of assets, exclusion from public procurement, and (permanent or temporary) closure of one or more of the firm’s establishments that were used to commit the crimes.[19] Considering the magnitude and severity of atrocity crimes, the closure of involved company establishments, general confiscation of all assets of the company (as opposed to a mere special confiscation of assets that were the object or result of the criminal offense)[20] and, in the most severe cases, the dissolution of the company seem to be most appropriate as primary penalties in these cases.
Lawmakers must specify the precise requirements for some of these penalties, especially with regard to the dissolution of the corporation, also commonly referred to as the “corporate death penalty,”[21] as it is the most severe criminal punishment imposed on a legal entity. France[22] and Belgium[23] allow for a winding-up of the legal person if it was established in order to commit the crimes or if the corporation was deliberately diverted from its original purpose to pursue the criminal conduct.
When prosecuting legal persons, it is important to design penalty structures that induce compliant behavior in a broader range of corporate operations. A non-monetary sanction that has proven particularly promising in the enforcement of the Foreign Corrupt Practices Act (FCPA) is the imposition of an independent compliance monitor on the company.[24] A monitorship is a powerful remedy that has yet not been utilized in international criminal law, but can be very effective as it is extremely punitive from a corporate perspective and can set the stage for organic change within the company. Unlike the criminal penalty of “judicial surveillance,” which is available against legal persons under French law, monitorships offer distinct advantages since they can also be imposed on public corporations (unlike judicial surveillance). Also, while independent monitors take on the role of auditors and advisors (possibly also investigators) to serve as stewards for a culture and system of compliance, they would not take control of all corporate activities related to the criminal offense as is the case with judicial surveillance. Under this design, monitorships would be particularly suited to facilitate change from within the corporation whereas judicial surveillance seems to serve a primarily punitive function.
While individual prosecutions are vital to achieve deterrence—there has been a significant increase in the number of individual corporate officers prosecuted for violating the FCPA’s anti-bribery and accounting provisions in recent years[25]—it is equally important to address systemic problems in the company that have led to a culture of non-compliance. To this end, federal prosecutors have increasingly imposed independent monitors on corporations as a condition for ending investigations under the FCPA. In fact, more than forty percent of all companies that entered into a settlement or plea bargain on FCPA charges from 2004 to 2010 had a monitor appointed.[26]
Monitorships serve a dual purpose: first, they aim to put in place effective compliance structures and second, they aim to promote a corporate culture of integrity. In FCPA enforcement, the appointment of monitors by the prosecution has proven to be a viable vehicle to change corporate cultures of non-compliance and address shortcomings in compliance procedures and systems at the firm level. Leading legal practitioners on compliance monitorships have found that “[fe]w penalties imposed on a corporate criminal offender cause as much consternation as do compliance monitors.”[27] Examples of companies that retained an independent monitor as a condition for settling the charges under the FCPA, include major brand names such as Siemens,[28] Daimler,[29] and Eni.[30] The U.S. Department of Justice (DOJ) has utilized monitorships not merely for FCPA enforcement. In its case against BP,[31] the DOJ imposed two independent monitors—a process safety monitor and an ethics monitor—on the company as part of the settlement on the criminal charges resulting from the Deepwater Horizon oil spill.
While the experiences with FCPA monitorship provide important lessons for the punishment of atrocity crimes against corporate perpetrators, it would be necessary to adjust some of the terms, scope, and structuring of monitorships to apply them to the international criminal justice system. Thus, while FCPA monitorships are strictly a creation of the settlement agreement between the company and the prosecution,[32] it would be hard to imagine such a contracts-based approach for human rights compliance monitorships as part of prosecution proceedings for atrocity crimes. Rather, a statutory approach would be preferable in the realm of atrocities prosecution in order to standardize the requirements and codify the latter in the relevant sentencing guidelines of the court. Allowing corporations charged with committing the most egregious violations of international law subject to a plea bargain would fly in the face of the universal condemnation of these crimes by the international community.
The appointment of monitors can offer an innovative option for non-monetary sanctions in the broader context of corporate crime, including corporate involvement in atrocity crimes, that can be combined with other forms of sanctions as deemed appropriate. Monitors are selected in different ways. Sometimes, the specific monitor is designated by the prosecution. In other cases, the selection of the monitor is made in cooperation with the respective government, usually giving the relevant agencies veto power on the selection of the monitor, and at times even requiring court approval.[33] Their primary role is to build a robust compliance system and issue recommendations to ensure compliance in the future.
However, monitors can also take on an investigative function into specific allegations on behalf of the agencies.[34] The monitor exercises significant control over the company as he/she reports to the government, usually on an annual basis for the appointed terms, which can vary, but has often been three years in the context of FCPA enforcement.[35] The investigative powers of the monitor can be rather extensive and are not confined by its mandate as defined by the prosecution. The company is not shielded by an attorney-client privilege with the monitor in these cases.[36] Monitorships can provide an effective and incentive-compatible remedy that extends the reach of international justice far into the corporate organization and ascertain what facilitated the involvement in egregious violations of international law and human rights in the first place.
Monitorships can be extremely costly for the company in terms of time and resources for fees, staffing, compliance measures, etc.[37] The economic costs and the expansive scope of the monitor’s powers makes this remedy highly punitive and thus effective to stir corporate behavior towards better compliance. The value of an independent human rights compliance monitor as a criminal remedy would include follow-through on the admonition, “Never again.” Modern-day companies are complex creatures, so one must appreciate that it takes the right systems and corporate culture in place to prevent similar violations from happening again in the future. Court-installed monitors could help achieve that goal. A possible drawback to the use of monitorships as a criminal penalty is that it lacks some of the punitive stigma that is associated with other more visible punitive measures, such as massive fines, the ban from public procurement, or the closure of company units. Monitorships are therefore best understood not as a stand-alone penalty, but as an additional measure to facilitate organic change from within the company.
* Caroline Kaeb, PhD, is an Assistant Professor of Business Law and Human Rights at the University of Connecticut School of Business with a joint appointment with the UConn Human Rights Institute. She is also a founding member and co-chair of the Working Group on Business and Human Rights with the U.N. Global Compact’s Principles for Responsible Management Education (PRME). She has held visiting faculty positions at Northwestern University and the University of Chicago.
[1] See Thompson, Ramasastry, and Taylor, Translating Unocal: The Expanding Web of Liability for Business Entities Implicated in International Crimes, 40 Geo. Wash. Int’l L. Rev. 841, 856 (2009); seealso Bert Swart, International Trends Towards Establishing Some Form of Punishment for Corporations, 6 J of Int’l Crim. Just. 949 (2008).
[2]Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010).
[3]Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1663 (2013).
[4]In the Case Against New TV S.A.L. and Karma Mohamed Tahsin al Khayat, STL-14-05/PT/AP/ARI26.1, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, F0012, 2 October 2014; In the Case Against Al-Jadeed [Co.] S.A.L./New T.V. S.A.L. (NT. V.) and Karma Mohamed Tahsin AlKhayat (“Al-Jadeed Case”), STL-14-05/T/CJ, Judgment, F0176, 18 September 2015.
[6] Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-A, Judgment (Int’l Crim. Trib. For Rwanda, 2007).
[7] David Scheffer, Corporate Liability under the Rome Statute, 57 Harv. Int’l L. J. (Online Symposium) 35 (2016).
[8] Sara Sun Beale, A Response to the Critics of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1484 (2009).
[9] Ronald Slye, Corporations, Veils, and International Criminal Liability, 33 Brook. J. of Int’l L. 963 (2008).
[10] John Coffee, Jr., “No Soul to Damn: No Body to Kick”: An Unscandalized Inquiry into the Problem of Corporate Punishment, 79 Mich. L. Rev. 387 (1981).
[12]See Supplemental Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party at 18, Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (No. 10-1491).
[13] Glossary, Cornell University, Comparing French and US Legal Systems, http://legal1.cit.cornell.edu/ court_trials/glossary.htm.
[14]See Jean Larguier, Civil Action for Damages in French Criminal Procedure, 39 Tul. L. Rev. 698 (1965).
[15] See Stephens, Beth, Conceptualizing Violence under International Law: Do Tort Remedies Fit the Crime, 60 Alb. L. Rev. 579 (1997).
[16]See Lynn Stout, Cultivating Conscience: How Good Laws Make Good People (2010); seealso Gneezy, Uri & Rustichini, Aldo, A Fine is a Price, 29 The J. of Legal Stud. 1 (2000).
[19] Andrew Kirsch, Criminal Liability for Corporate Bodies in French Law, Eur. Bus. L. Rev. 41 (1998).
[20] The general confiscation of all assets of the company is usually only prescribed in severe cases, such as for crimes against humanity that were committed by a legal person. See Article 213-3 of the French Criminal Code.
[21]See Diane Amann, Capital Punishment: Corporate Criminal Liability for Gross Violations of Human Rights, 24 Hastings Int’l. L. Rev. 327 (2000).
[25]See Jon Jordan, Recent Developments in the Foreign Corrupt Practices Act and the New UK Bribery Act: A Global Trend Towards Greater Accountability in the Prevention of Foreign Bribery, 7 NYU J. of L. and Bus. 845, 853-54 (2011).
[26] Joseph Warin et al., Somebody’s Watching Me: FPCPA Monitorships and How They can Work Better, 13 U. of Pa. J. of Bus. L., 321, 322, 326 (2011).
[28] SEC v. Siemens Aktiengesellschaft, No. 08-CV-02167, at 5 (D.D.C. Dec. 12, 2008).
[29] United States v. Daimler AG, No. 10-CR-00063, at 12 (D.D.C. Mar. 24, 2010) (sentencing memorandum).
[30] United States v. Snamprogetti Netherlands B.V., No. 10-CR-00460, at 12 (D.D.C. Jul. 7, 2010) (deferred prosecution agreement).
[31]BP Statement on Deepwater Horizon Settlement With U.S., The Wall St J.: L. Blog (Nov. 15, 2012), http://blogs.wsj.com/law/2012/11/15/bp-statement-on-deepwater-horizon-settlement-with-u-s/.
[32] Joseph Warin et al., supra note 26, at 345-46.
[33] Cristie Ford & David Hess, Can Corporate Monitorships Improve Corporate Compliance?, 34 J. CORP. L. 679, 711 (2009).
[34]See Rachel Louise Ensign, How Daimler Got a Very Good Report Card, The Wall St. J. (May 29, 2013), http://blogs.wsj.com/riskandcompliance/2013/05/29/how-daimler-got-a-very-good-report-card/.
The U.S. Representative at the International Military Tribunal (IMT), created by the four victorious Allies after World War II, was Robert H. Jackson, our most distinguished jurist on leave from the Supreme Court. I always admired his resolution in using the law as a powerful tool against injustice. On June 6, 1945, Jackson reported to President Harry Truman that the legal position in prosecuting German war criminals would be “based on the common sense of justice.” He noted, particularly, that it should not be “obscured by sterile legalisms developed in the age of imperialism to make war acceptable.”[1] This underlying principle has stayed with me as a major source of inspiration as I progressed through my legal career and later on in my life. The quadripartite trial against German Field Marshal Goering and cohorts had not yet started when I was transferred out of a gun battalion and ordered to report to the headquarters of General George Patton in preparation for military commission trials to be conducted by the U.S. Army. In that capacity, I disinterred the battered bodies of downed Allied flyers beaten to death by enraged German mobs, and I joined liberating forces as the American army uncovered Nazi concentration camps. I peered into Hell. The traumatic effects of digging up bodies with my bare hands, and walking into concentration camps to witness human skeletons lying on the ground, not being able to tell whether people were dead or alive, remain with me nowadays.[2] My reports served as a basis for trials by now forgotten U.S. Military Commissions that tried camp commanders and guards for violations of the laws of war. As the IMT was drawing to a close, a decision was reached in Washington to conduct twelve subsequent trials in Nuremberg. It was hoped that by expanding the net of justice one might better understand how the German public came to embrace the murderous Nazi racial doctrines. Deterring the repetition of such crimes in the future remained indeed the basic objective. General Telford Taylor, a fellow Harvard Law graduate and assistant to Jackson was appointed Chief of Counsel. On the day after Christmas 1945, I returned home to New York, was discharged from the U.S. Army as a sergeant, and awarded five battle stars for not having been killed or wounded in any of the five major battles of the war. Shortly thereafter, I was recruited by Telford Taylor to join his staff in Nuremberg.
As I began preparing as the Chief Prosecutor for the Einsatzgruppen Trial,[3] Justice Jacksons’ words continued to resonate with me. Particularly, what became the I Nuremberg Principle,[4] that crimes are committed by individuals, continues to move me in my 97th year of life, as I write for this special issue of the Harvard International Law Journal on Responsibility for Corporate Atrocity Crimes. Unless individual liability of corporate executives for atrocity crimes can coexist with and is not superseded by corporate liability for such crimes, to speak of “Corporate Atrocities” can be dangerous, as the term might evoke the idea that crimes can be committed by independent non-human actors. Corporate accountability has evolved much since its conception at the subsequent Nuremberg trials.[5] Such creative conceptions, however, should not become a diversion from holding accountable the real, live persons primarily responsible for the harm. In my first year at Harvard, in 1940, I learned in torts that he who does the harm should be held accountable for the injury. The victim is entitled to fair compensation and efforts to remedy the wounds. The same principles of law and equity should apply to corporations and other non-state actors. This was the idea behind some of the subsequent Nuremberg Trials. It was well known that as part of the German war effort thousands of German companies employed concentration camp inmates. The conditions of work included kidnapping, torture, starvation, beatings, and outright murder. Nazi organizers aptly described the forced labor program as “Vernichtung durch Arbeit”—extermination through work. Both the IMT and the subsequent proceedings indicted several corporate executives of I.G. Farben, Krupp, Siemens and other leading firms and accused them of personal responsibility for war crimes and crimes against humanity.
It was common sense that the Nuremberg trials could not be carried out against hundreds of thousands of Germans who participated in the commission of war crimes and crimes against humanity. In order to broaden the scope and sweep of justice, a general charge was added to many of the indictments. If it could be shown that the accused was aware that the Gestapo, the SS or similar Nazi organizations (previously declared ‘criminal organizations’ by the International Military Tribunal) had, as a primary purpose, the elimination of opposition by legal or illegal means, the offender could be charged with a separate crime called “membership in a criminal organization.”[6] Seventy years after those trials, “mere membership in a given criminal organization would not be sufficient to establish individual criminal responsibility.”[7] Yet, members of criminal gangs or non-state actors engaged in terroristic activities may still today be brought to justice on several modes of liability. It is conceivable then that corporations or other legal entities engaged in such activities as international drug smuggling, counterfeiting, prostitution or similar crimes may have their leaders stand personal trial on charges of conspiracy, complicity, command responsibility, indirect perpetration, and co-perpetration under the Rome Statute,[8] as well as being part of a joint criminal enterprise in other tribunals.[9] This is because, as noted by Jackson and many others, the law cannot remain static. It must be interpreted broadly when necessary to meet the changing needs of the society it is designed to protect. Yet, this might not always be easy to do. Even at Nuremberg, the results of three trials specifically against industrialists were disappointing to the Prosecutors. It was difficult to prove that the accused had personal knowledge of atrocities or the intended murderous use of products such as poison gas. Furthermore, the American judges were unaccustomed to seeing prominent and wealthy defendants being charged with complicity in mass murder. Many of the accused were acquitted or given light sentences. A few years later, all convicted war criminals were released. It was purportedly based solely on humanitarian considerations, but surely there was also an element of political pressure.
Whereas the strict requirements of criminal law might impose a heavy burden on the system of justice trying to provide remedy for corporate crimes, history teaches us that other ways have been attempted to bring corporations to account. Human rights violations can indeed be deterred by criminal punishment of perpetrators as well as civil liability of the companies responsible. I dealt with the issue of corporate financial responsibility for atrocities long after the Nuremberg trials were over. The Directors of some of Germany’s most respected corporations, including some who had gotten off easily at Nuremberg, were asked to have the company compensate concentration camp survivors for their unpaid, grueling services. At the behest of leading Jewish charities, I headed a team of highly competent German refugee lawyers and tried to reach amicable settlements. The corporate responses were uniformly unreceptive. They argued that they did not employ such laborers. When presented with the contrary evidence, they said they were forced to do so. They maintained that working conditions were fine, and even German workers had to suffer in time of war. Some even noted that giving the inmates employment saved them from going directly to the gas chambers, thereby implying that survivors should be grateful to their saviors.[10] Unfortunately, ethics and morality seem too often to be sacrificed on the altar of chicanery and greed. If a high official of a corporation is accused of such crimes as fraud, misfeasance, malfeasance, or nonfeasance, it is the responsible officer who should be held to personal account. Instead, the current practice allows criminal actions against a large company to be settled by a cash payment penalty coupled with a commitment that there will be no criminal prosecutions. Those who caused or benefitted from the crimes go scot-free and it is the innocent shareholders who have to foot the bill. Those who suffered harm are not precluded from suing the company for money damages based on the theory that the company was negligent in hiring such corrupt or incompetent agents.
Corporations reflect the mores of the society in which they function. A lawless society does not deter crime. It is doubtful whether those who oppose accountability will be receptive to new legal interpretations or institutions that might bring unlawful corporate officers before the bar of justice. It will require patience and determination to bring about the necessary change of hearts and minds. The rewards of relying on law rather than other unbalanced forms of power are immediate and incalculable. It will be some time before new institutions to end corporate misdeeds will become operational, but with patience and determination it can be done. In the meanwhile, we should attempt to use every tool in our legal toolbox to send the strong and unequivocal message that corporate impunity will not be tolerated. My guiding advice to all who seek a more humane world is to Never Give Up: It is up to YOU!
* Benamin B. Ferencz is the former Nuremberg Chief Prosecutor of the Einsatzgruppen trial, in which 22 high-ranking Nazis were convicted of slaughtering over a million innocent men, women and children. In his opening statement to the Court, he declared: “The case we present is a plea of humanity to law.” Original video footage is available online at: http://www.ushmm.org/wlc/en/media_fi.php?ModuleId=10007080& MediaId=184. The author has been an active advocate for the rule of law throughout his life and career. A comprehensive selection of his writings, essays and lectures may be accessed online at www.benferencz.org. With this comment, the author wishes to provoke ideas and stimulate the development of future scholarship. The author wishes to thank Federica D’Alessandra, for her invaluable assistance in the preparation of this essay. For any questions, readers are encouraged to reach her federica_dalessandra@hks.harvard.edu. Special thanks also to Juan Calderon Meza, for his editorial assistance. This Article reflects the views of the author only.
[1] Robert H. Jackson, Report of Robert H. Jackson, U.S. Representative to the Int’l Conf. on Mil. Trials (1945), http://avalon.law.yale.edu/subject_menus/jackson.asp.
[2] You can hear Prosecutor Ferencz’s accounts of his war crimes investigations in his interview by Federica D’Alessandra as part of the International Bar Association’s interview series, Human Rights in the 21st Century (2014) (from minute 0:30’ to 06:07’), http://www.ibanet.org/PPID/Constituent/Human_Rights_Law/ Film.aspx#ferencz.
[3] Officially: Military Tribunal of Nuremberg II, The United States of America vs. Otto Ohlendorf, et al., Control Council Law No. 10, Case No. 9, 1946.
For the purpose of this Statute, the Court shall have jurisdiction over legal persons, with the exception of States.
Corporate intention to commit an offence may be established by proof that it was the policy of the corporation to do the act which constituted the offence.
A policy may be attributed to a corporation where it provides the most reasonable explanation of the conduct of that corporation.
Corporate knowledge of the commission of an offence may be established by proof that the actual or constructive knowledge of the relevant information was possessed within the corporation.
Knowledge may be possessed within a corporation even though the relevant information is divided between corporate personnel.
The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.”
[6] It had been established common international law for centuries that all those who set sail on a pirate ship could be left hanging from the yardarm wherever they were apprehended. The same principle of universal jurisdiction was applied at Nuremberg to convict members of organizations like the SS and Gestapo whose primary purpose was to murder their presumed adversaries. Protocol on Amendments to the Protocol on the Statute of the Africa Court of Justice and Human Rights, art. 22 (June 27, 2014) (inserting art. 46), http://lawyersofafrica.org/wp-content/uploads/sites/84/2014/10/PROTOCOL-ON-AMENDMENTS-TO-THE-PROTOCOL-ON-THE-STATUTE-OF-THE-AFRICAN-COURT-OF-JUSTICE-AND-HUMAN-RIGHTS-EN.pdf.
[7] Prosecutor v. Milutinović, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, ¶ 25 (Int’l Crim. Trib. for the Former Yugoslavia, Appeals Chamber, May 21, 2003). The International Criminal Tribunal for the Former Yugoslavia (“ICTY”) further found that “[c]riminal liability pursuant to joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes, but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter.” Id., ¶ 26. A few years after this decision of the ICTY, the International Criminal Court (“ICC”) departed from the joint criminal enterprise mode of liability on the basis of a different wording contained in the Rome Statute. See, e.g., Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges, ¶ 335 (Pre-Trial Chamber I, Jan. 29, 2007) (“The Chamber considers that this latter concept – which is closely akin to the concept of joint criminal enterprise or the common purpose doctrine adopted by the jurisprudence of the ICTY – would have been the basis of the concept of co-perpetration within the meaning of article 25(3)(a), had the drafters of the Rome Statute opted for subjected approach for distinguishing between principals and accessories.” (emphasis added)). See Antonio Cassese, International Criminal Law 212 (2001) (arguing that the wording “committing jointly” of art. 25(3)(a) of the Rome Statute covers joint criminal enterprise).
[8] Rome Statute of the International Criminal Court, art, 25(3), U.N. Doc. A/CONF.183/9, 2187 U.N.T.S. 90 (July 17, 1998) (entered into force July 1, 2002).
[9]See, e.g., Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, ¶¶ 185-234 (ICTY, Appeals Chamber, July 15, 1999); Case 002, Case No. 002/19-09-2007-ECCC-OCIJ (PTC37), Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), D97/17/6, ¶ 100 (Extraordinary Chambers in the courts of Cambodia, Pre-Trial Chamber, May 20, 2010) (restricting its applicability to international crimes); Prosecutor v. Sesay et al., Case No. SCSL-04-15-A, Judgment, ¶ 485 (Special Court for Sierra Leone, Appeals Chamber, Oct. 26 2009).
[10] Details of the efforts to obtain compensation can be found in: Benjamin B. Ferencz, Less Than Slaves (1979); see also Martin Gilbert, Working For Farben: A Review of Less Than Slaves, New York Times, Dec. 1979, http://www.benferencz.org/assets/reviewslaves_gilbert.pdf.
In 2014, the U.N. Human Rights Council (UNHRC) established an open-ended working group to develop “an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”[1] The UNHRC initiated the treaty process in response to a call from Ecuador and other states that were impatient with what they saw as slow and limited international progress on business and human rights.[2]
This proposed treaty is the indirect result of a U.N. initiative that began in 2005 with the appointment of Professor John Ruggie as a Special Representative on “transnational corporations and other business enterprises with regard to human rights.”[3] Professor Ruggie’s work led to the 2008 U.N. Framework on Business and Human Rights, followed by the landmark (and unanimous) adoption of the 2011 U.N. Guiding Principles on Business and Human Rights.[4] These non-binding Principles, known as the “GPs,” were met with widespread support from states, businesses, and civil society.
However, a mere two years after the GPs were adopted, and before much progress could be achieved, Ecuador proposed a new, binding treaty on the same issue.[5] The proposal was adopted in 2014 through a sharply divided vote.[6] The negotiations are, at present, proceeding in tandem with implementation of the GPs. On all sides of the debate, there are many who would like to see both the treaty and the GPs succeed. But while the general goals of the treaty are certainly admirable, serious challenges already plague the process. Left unaddressed, they may derail both initiatives.
First, the direct enforcement of human rights norms against corporations, rather than states, represents a fundamental theoretical departure from traditional human rights practice. The proposed treaty would hold corporations directly liable under international law for violating human rights.[7] International law has historically held states accountable for their own human rights violations and for violations committed by individuals and corporations within their borders. The GPs are an example of this principle as historically applied. They are based on the “protect, respect, remedy” framework: states protect against third-party abuses through legislation and enforcement; corporations are independently responsible for respecting human rights; and states ensure that victims of human rights violations have access to effective remedies.[8]
The treaty proposes to abandon this framework, without offering a clear division of responsibility or an articulable standard to replace it.
Opponents, including human rights activists, have argued that states will use the treaty to excuse their own refusal to protect human rights. They point out that the treaty co-sponsors and many of their state supporters have thus far done “little if anything” to act on the GPs.[9] The treaty co-sponsors have also been criticized for their own less-than-stellar human rights records. For example, in its 2015 World Report, Human Rights Watch criticizes the co-sponsors for a number of serious violations, including, inter alia, their targeting of human rights defenders, protesters and journalists; placing severe limitations on freedom of expression; legalizing of child labor; arbitrary detention; and lack of judicial independence.[10] This and other reports are certainly not dispositive. However, they have led opponents to question whether, having failed or refused to protect human rights themselves, some states may use the treaty to shift the human rights onus (and the blame) onto corporations.
Many treaty opponents accept that some form of corporate responsibility is needed. But it should be clearly delineated, and should only be a supplement to—never a substitute for—the states’ duties to fulfill their human rights obligations.
Second, the lack of a clear treaty objective may prove fatal. The idea of establishing a single international standard of corporate human rights responsibility is admirable—but in practice, the treaty has done nothing of the sort. The treaty fails to answer important questions about the content and limits of the proposed corporate responsibility. Will corporations be liable for ensuring all human rights enumerated in the core international instruments? Is it plausible that states will agree on a single standard for every human right? If not, which rights will the treaty cover, how will they be selected, and who will decide how they are implemented on a case-by-case basis?
For example, the U.N. economic, social and cultural rights, while laudable, are also sweeping in scope. They include rights “to an adequate standard of living for [oneself] and [one’s] family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”[11]; “to the enjoyment of the highest attainable standard of physical and mental health”[12]; and “to enjoy the benefits of scientific progress and its applications.”[13] These and many other rights are incorporated into a vast web of domestic laws, in different ways and to varying degrees, in every state.
Treaty opponents argue that the complex balance of public interests, domestic politics, individual rights and state sovereignty can only be established and maintained by states. States currently decide—often through the democratic process—how to protect human rights within their borders. It is surprising that human rights advocates and states would so readily cede this power to set public policy to transnational corporations.
Third, the exclusion of purely national corporations raises serious questions about the objectives of the treaty. The proposed treaty would only apply to transnational corporations, to the exclusion of purely national companies.[14] This exclusion is in line with the widely-held view that the “governance gaps” disproportionately affect transnational corporations. States have argued that the treaty need not regulate domestic entities, because domestic laws are sufficiently protective.
Opponents fiercely object to this focus on transnational corporations. If the sole objective of the treaty is to hold corporations liable for human rights violations, then there is no place for such a distinction. All corporations should be equally responsible, no matter where they are headquartered or where they operate. To illustrate, if this principle were applied to the horrific Rana Plaza disaster, transnational corporations who purchased clothing made in the factories would be responsible while the local factory owners and employers would not.[15]
Moreover, if domestic laws actually are protective enough, as states argue, then they should be able to regulate the activity of transnational corporations within the state without the need for a new treaty. The exclusion of domestic corporations would create an uneven playing field, giving domestic and state-owned corporations significant advantages over foreign competitors, who would be held to a different and higher standard. Opponents of the treaty prefer the approach of the GPs, which apply to all corporations.[16]
Fourth, the calls to exclude corporate stakeholders from the treaty negotiations will likely backfire. The GPs represented a major change in the tone of the business and human rights debate. In response to the deep historical polarization between opposing groups, the GPs were developed with an open, inclusive, multi-stakeholder approach.[17] This resulted in a greater shared understanding and purpose, and ensured wide multi-stakeholder support.[18]
Some proponents of the new treaty, by contrast, have called for corporations to be excluded from the negotiating process.[19] One-sided negotiations might give supporters short-term “wins” in the form of stronger treaty language. However, an exclusive approach would ultimately limit support for the treaty and reverse the collaborative and cumulative progress of the GPs.
Moreover, corporations may be more willing to support the proposed treaty than activists believe. In a recent study, The Economist found that the overwhelming majority of executives (83%) agree that human rights are a matter for business as well as governments.[20] 71% say that their company’s responsibility to respect these rights goes beyond simple obedience to local laws.[21] The study points out that this degree of agreement represents a major break with prior attitudes, even as recently as the 1990s.
Professor Ruggie has cautioned treaty proponents against “… going down a road that would end in largely symbolic gestures, of little practical use to real people in real places, and with a high potential for creating serious backlash against any form of further international legalization in this domain.”[22] Given the lack of support for the treaty among key states and stakeholders, the negotiations seem to be doing just that. Unless these and other problems are addressed, the treaty may be destined to languish in protracted and increasingly bitter negotiations—like so many initiatives before it.
Treaty proponents would do well to take the opportunity to learn from and build on the successes of the GPs—before it’s too late.
* Sara McBrearty is an associate in the Houston office of King & Spalding, LLP, specializing in international investor-state and commercial arbitration.
[1] G.A. Res. 26/9 (July 14, 2014), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/082/52/ PDF/ G1408252.pdf?OpenElement.
[2] Business & Human Rights Resource Centre, Statement on behalf of a Group of Countries at the 24th Session of the Human Rights Council (Sept. 2013), http://business-humanrights.org/sites/default/files/media/ documents/ statement-unhrc-legally-binding.pdf.
[3]See Human Rights Council Res. 2005/69, U.N. Doc. E/CN.4/RES/2005/69 (Apr. 20, 2005), http://ap.ohchr.org/documents/E/CHR/resolutions/E-CN_4-RES-2005-69.doc; Human Rights Council Res. 8/7, U.N. Doc. A/HRC/RES/8/7 (June 18, 2008), http://ap.ohchr.org/documents/E/HRC/ resolutions/A_ HRC_RES_8_7.pdf.
[4] Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011).
[5] The treaty was co-sponsored by South Africa, Bolivia, Cuba, and Venezuela. Business & Human Rights Resource Centre, Statement on behalf of a Group of Countries at the 24th Session of the Human Rights Council (Sept. 2013), http://business-humanrights.org/sites/default/files/media/documents/statement-unhrc-legally-binding.pdf.
[6] Business & Human Rights Resource Centre, UN Human Rights Council sessions, http://business-humanrights.org/en/binding-treaty/un-human-rights-council-sessions#twenty_six_session (there were twenty votes in favor, fourteen against, and thirteen abstentions).
[7] Human Rights Council, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, U.N. Doc. A/HRC/26/L.22/Rev.1 (June 25, 2014).
[9] John G. Ruggie, The Past as Prologue? A Moment of Truth for UN Business and Human Rights Treaty (July 8, 2014), http://www.hks.harvard.edu/m-rcbg/CSRI/Treaty_Final.pdf.
[10] Human Rights Watch, 2015 World Report (2015), https://www.hrw.org/world-report/2015.
[11] International Covenant on Economic, Social and Cultural Rights, art. 11, Dec. 16, 1966, 993 U.N.T.S. 3.
[14] Human Rights Council Res. 26/9, U.N. Doc. A/HRC/RES/26/9 (July 14, 2014), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/082/52/PDF/G1408252.pdf?OpenElement.
[17] Mandate of the Special Representative of the Secretary-General (SRSG) on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, Recommendations on Follow-Up to the Mandate, UN. Doc A/HRC/17/4 (Feb. 11, 2011), www.business-humanrights.org/media/documents/ ruggie/ruggie-special-mandate-follow-up-11-feb-2011.pdf.
[19]See, e.g., Kate Lappin, Haley Pedersen & Tessa Khan, Influence of corporations in treaty process would undermine affected communities’ interests, Business & Human Rights Resource Centre, Mar. 28, 2016, http://business-humanrights.org/en/influence-of-corporations-in-treaty-process-would-undermine-affected-communities%E2%80%99-interests.
[20] The Economist Intelligence Unit, The Road From Principles To Practice 4 (2015), http://www.economistinsights.com/business-strategy/analysis/road-principles-practice/fullreport.
[22] John G. Ruggie, A UN Business and Human Rights Treaty? (Jan. 28, 2014), http://business-humanrights.org/sites/default/files/media/documents/ruggie-on-un-business-human-rights-treaty-jan-2014.pdf.
The possibility of establishing a world court on business and human rights is one of the elements discussed in the current debate over the adoption of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights in the United Nations Human Rights Council. Even though the existence of a world institution could bring important benefits for the development of international law and protect victims of human rights abuses by corporations, it is also necessary to draw up an inventory of different factors that could interfere in the design of an instrument of binding nature.
The world court on business and human rights could be competent to hear cases brought by victims of human rights abuses perpetrated by corporations and to decide the legal liability of such corporations on the basis of an effective international legally binding instrument on business and human rights. Still, the establishment of this court may face issues regarding funding, the role of States in proceedings, and matters of access to the court, including costs and legal representation of victims.
This Article will not deal directly with these issues or argue in favour of or against the establishment of a world court on business and human rights. Instead, it will examine the feasibility of establishing the court by examining previous attempts to recognize the jurisdiction of international tribunals for human rights abuses committed by private entities.
I. Previous Attempts
The international community has taken various efforts to condemn abominable acts against humanity committed by private individuals and other private entities in international law. Particularly during the nineteenth century and the middle of the twentieth century, the international community promoted the establishment of international tribunals for the protection of human rights and human dignity.
The establishment of international courts against slave trade during the early 1800s[1] constituted the first attempts to condemn such acts. Various treaties signed by Great Britain with the Netherlands, Portugal, and Spain created the antislavery courts that had jurisdiction to adjudicate cases of captured slave ships[2] with the particular aim to suppress the slave trade. During the lifespan of the treaty, over 600 cases were heard by the courts and 80,000 slaves were found in captured vessels[3].
As another example, the egregious violations of human rights committed during the Second World War led to discussions on corporate responsibility against the “major war criminals of the European Axis.”[4] However, although the contribution of German businesses during the war ranged from profiting from a slave work force to supplying Zyclon B, the gas used by the SS in Auschwitz to murder more than 1 million people,[5] the tribunals of Nuremberg recognized only individual criminal liability for a number of high-level management officials of different corporations. The tribunals also viewed businesses as an instrument necessary to commit the crime, but not as criminal organizations. Likewise, the idea of prosecuting corporations—legal entities—for similar crimes was included in the draft of the Rome Statute, but it did not find support for various reasons, including the fact that not all state-parties recognised such corporate criminal liability in their jurisdictions.[6]
Important steps have also been taken during the twenty-first century on the issue of business and human rights. The adoption of the UN Global Compact’s governance framework by the U.N. Secretary General in 2005, the U.N. Human Rights Council’s embrace of the Protect, Respect, and Remedy Framework in 2008, and the development of the U.N. Guiding Principles on Business and Human Rights in 2011, to name but a few, are good examples of such efforts.
II. A World Court on Business and Human Rights?
The negotiations on an international legally binding instrument on business and human rights have fired up long-standing discussions on the design of an international organization in charge of the enforcement of corporate human rights obligations. During the debate that led to the adoption of Resolution A/HRC/RES/26/9[7] and the first negotiation on a binding instrument on business and human rights, held by the Open Ended Intergovernmental Working Group (OEIWG) in July 2015,[8] some stakeholders proposed a world court on business and human rights.
First, it is important to recognise an effective international legal framework on business and human rights as an essential step towards protecting victims’ access to remedies for corporate wrongdoings. An international, legally binding instrument could clarify the obligations of corporations to respect human rights and guarantee the rights of victims from corporate-related human rights abuses to access remedies. In the case of businesses, it could level the playing field for the international operation of corporations because the instrument will establish authoritative means to resolve conflicts arising from the law in different jurisdictions. It would also create a mechanism to respond to corporate abuses in a “concerted fashion,”[9] thus eliminating unfair competitive advantages for corporations around the world.
This “concerted” approach for the access to remedies and legal standards on business and human rights will not undermine states’ obligation to oversee the conduct of corporations, as it would operate under the international principle of subsidiarity, by which international institutions may exercise jurisdiction in cases where national legal systems are unwilling or unable to fulfill their primary obligation to protect human rights and redress human rights violations, and could enhance domestic efforts to protect human rights through international cooperation and legal coherence, as it will impose common international standards on the matter.
Second, the feasibility of creating an international tribunal on business and human rights could be examined in light of previous attempts. The antislavery courts of the nineteenth century are an important precedent for the OEIWG, mostly because they challenged the dominant economic model at that time. The slave trade was believed to be essential for the viability of colonial economies and it was unthinkable at that time to impose restrictions to this profitable enterprise. These courts also introduced an institutional framework based on mixed commissions formed by judges belonging to the state parties to the treaty, who were assisted by a local registrar of the place where the court was seated for the collection of evidence and other administrative tasks. Such a framework could serve as a model for the design of the world court of business and human rights. The establishment of these courts as an enforcement mechanism of international treaties, in cooperation with other domestic legislative efforts, was the cornerstone for the effective suppression of the transatlantic slave trade.[10]
Similarly, even though the Nuremberg Trials limited themselves to judging individuals for the crime of “membership” in a criminal organization with the sole purpose of easing the avenue for the prosecution of a large number of persons through more expeditious trials,[11] this approach was not the only option. Abraham L. Pomerantz, Chief Counsel at the Nuremberg Trials, intended to prosecute business entities on the basis of corporate liability. The approach suggested by Pomerantz could also guide the work of the OEIWG if the feasibility of a world court if such element is argued.
Pomerantz suggested that crimes committed by corporations in the Second World War complied with the common law test of liability because the acts were (1) within the scope of the business, (2) committed or ordered by a superior agent (senior manager or solely owner), and (3) constituted crimes for which the punishments included fines and forfeitures of property.[12] Regrettably, Pomerantz’s position was not followed in the indictments of industrialists in the subsequent Nuremberg trials due to the economic and political interests in reconstructing post-war Europe.[13]
Conclusion
These examples underline the common interest of the international community in addressing a systematic and evolving approach for the provision of more effective mechanisms aimed at the protection of human rights and cope with the always dynamic and flexible domain of the liberalised market and the world of large-scale trans-boundary operations of corporations.
Discussions of the feasibility of a world court on business and human rights should consider different elements that would ensure its efficiency and effectiveness, including legal representation and assistance for victims, the role of states in proceedings, and other administrative and procedural issues, such as recollection of evidence and enforcement of judgments through international cooperation. The lessons learned from the past could guide these discussions with the purpose of advancing towards a fairer and more equal world.
Finally, stakeholders could use these lessons to propose avenues to ensure that the international framework for the protection of human rights is best suited to the task, while not delaying the adoption of an international legally binding instrument on business and human rights.
* Ambassador Luis Gallegos is the Permanent Representative of Ecuador to the United Nations and a member of the U.N. Committee against Torture.
** Daniel Uribe is a Visiting Fellow at the South Centre.
[1]See Jenny S. Martinez, Antislavery Courts and the Dawn of International Human Rights Law, 117 Yale L. J. 550, 641 (2008).
[3]See Leslie Bethell, The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth Century, 7 J. Afr. Hist. 76 (1966), cited in Martinez, supra note 1, at 553 n.1.
[4] United Kingdom of Great Britain and Northern Ireland, United States of America, France, and Union of Soviet Socialist Republics, Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (Aug. 8, 1945) art. 1 [hereinafter London Agreement].
[5]See Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said, 109 Columbia L. Rev. 1015 (2009).
[6] Kathryn Haigh, Extending the International Criminal Court’s Jurisdiction to Corporations: Overcoming Complementarity Concerns, 14(1) Australian J. of Hum. Rts. 202–203 (2008).
[7] Resolution A/HRC/RES/26/9 was adopted during the 26th ordinary session of the United Nations Human Rights Council on June 2014 and provided for the establishment of an Open Ended Intergovernmental Working Group (OEIWG) with the mandate to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. U.N. General Assembly, Human Rights Council, Resolution A/HRC/RES/26/9, Elaboration of an Internationally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights (July 14, 2014).
[8]See United Nations Human Rights Council, Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/IGWGOnTNC .aspx (last visited May 7, 2016).
[9] Kevin T. Jackson, A Cosmopolitan Court for Transnational Corporate Wrongdoing: Why Its Time has Come, 17 J. of Bus. Ethics 759 (1998).
[10]See Jenny S. Martinez, Slave Trade on Trial: Lessons of a Great Human Rights–law Success, Boston Rev. (Sept. 1, 2007), http://www.bostonreview.net/jenny-martinez-slave-trade-on-trial, (accessed Nov. 25, 2015).
[11] International Law Commission, The Charter and Judgment of the Nürnberg Tribunal – History and Analysis (United Nations 1949), Memorandum submitted by the Secretary-General A/CN.4/5, 75.
Luis Moreno Ocampo was the founding Chief Prosecutor of the International Criminal Court (2003-12) and is currently an Associate at the Harvard University Carr Center for Human Rights Policy. The interview was conducted on January 14, 2016, at the Harvard Kennedy School of Government by Angel Gabriel Cabrera Silva (Harvard Law School LLM’16). Questions in this edited transcript were prepared by Angel Gabriel Cabrera Silva and Juan Calderón Meza.
HILJ: In cases such as IG Farben, Krupp and Flick of the subsidiary Nuremberg trials, corporate officials that contributed to the Nazi Holocaust or aggressive war were prosecuted and convicted. In your experience, how, if at all, has the Office of the Prosecutor (OTP) contemplated these precedents in order to investigate corporate officials in the situations under examination or investigation?
LMO: From the beginning of my tenure, I had the idea to try to investigate corporate executive responsibility in massive atrocities. In fact, I mention this in my swearing-in speech in June 2003. However, it is not about the theory, it is about the facts. We never had sufficient facts to present a case against someone making financial contributions or a corporate executive helping commit massive atrocities. In my tenure, we never had the facts.
HILJ: Some State Parties of the Rome Statute, especially those using civil law systems, entitle civil parties to file actions seeking damages from juridical persons within criminal proceedings commenced against corporate executives. If a corporate executive is indicted by the OTP, would it be possible, via interpretation of article 75 of the Rome Statute, to vest victims with civil actions before the International Criminal Court against the corporations through which indicted corporate executives contributed to criminal conduct?
LMO: There would not be a direct action for the victims, but the prosecutor and judges could decide whether or not they would compensate the victim using money from the convicted person.
HILJ: Other State parties of the Rome Statute, especially those coming from a common law tradition, recognize criminal liability for corporations. Would it be possible, via interpretation of the Rome Statute from the practice of those State parties, to indict a corporation?
LMO: Personally, when I was the Prosecutor, I tried to be conservative in my interpretation of the law because it was the best way to ensure I was applying the law that the states adopted. And for me, there is no criminal responsibility of corporations under the Rome Statute. The Statute should be amended to prosecute corporations as such.
HILJ: Could the assets of indicted corporate executive’s corporations be frozen and transferred to the Victims’ Trust Fund?
LMO: If corporate executive defendants are convicted, their assets can be used to compensate the victims. However, this becomes more complicated when dealing with corporate assets. If the corporation made a profit, then you can discuss the topic. Regardless, the corporations themselves are not under the jurisdiction of the International Criminal Court.
HILJ: If necessary, do you think that it is feasible that the State Parties amend the Rome Statute to include any or all of those possibilities: (i) civil remedies for victims to seek damages against the corporations of the indicted executives, (ii) corporate criminal liability (iii) and/or freezing assets of those corporations? Which is more or less feasible?
LMO: I do not think this would happen. I do not think the States Parties would amend the Rome Statute to expand investigation to corporations. I think what should be done is to use the current text and see if it is possible to prosecute and investigate members of corporations in accordance with the current International Law standards.
HILJ: How do you perceive the ICC is taking into account the increasing participation of corporations in armed conflict and atrocity crimes (i.e. could the ICC be having a deterrent effect of any kind)?
LMO: I am not sure it is true that there is increasing corporate participation in atrocity crimes. In my experience, I do not see that. I have no evidence to say that it is true.
HILJ: Given that some transnational corporate activities are conducted in several places simultaneously, where would the OTP consider the relevant conduct as being perpetrated for the purpose of assessing complementarity (Would the ICC give preference to any particular state, say the territorial state where crimes were committed or where the financial transactions were approved? Or would it be necessary that all states involved had failed to prosecute the alleged criminaL?)?
LMO: Suppose you have a corporation with offices in different countries and each office is susceptible to have done the crime. Any country conducting an investigation against such a corporation could prevent the ICC from investigating executives of that corporation. The principle of the ICC is that justice has to be done, and preferably, the nation state should do it. The ICC would never compete with a national system to conduct an investigation.
HILJ: Would you look more closely to the state where the criminal conduct happened or where the corporation is based for complementarity purposes?
LMO: The point is that the ICC is content as long as at least one country is conducting the case. Suppose you have a German company committing a crime in the Congo. If the Congo or Germany is conducting proceedings, it is perfect for the ICC, as long as the proceedings are genuine.
HILJ: Following on the previous question, would it be enough for purposes of complementarity that one of the states where the corporation’s activities are being conducted is party to the Rome Statute?
LMO: Any national authority, including non-state parties, should be considered if they are conducting a proper investigation. You cannot prosecute the same person twice for the same case. That is the ne bis in idem principle. For example, if the US, who is a non-state party, investigates both a company and an individual managing the company and subsequently convicts them for participating in massive atrocities, then the ICC should respect that.
HILJ: In your opinion as a professor, if you were to decide which would be the best way to improve accountability of corporate executives after domestic jurisdiction of states involved have failed, would you rather advocate for universal jurisdiction by domestic courts or for international jurisdiction?
LMO: I believe the best way to control corporate misbehavior is to work with corporations and their competitors. We must also ensure that business people understand that their businesses cannot be connected with massive atrocities. Therefore, it is not just about conducting cases, but also about working with business people. What I learned is that we can do much more to avoid conflict through prevention than through conducting cases.
One case. If we had one case, that would be enough. That one case, whether it was national or international, would have to be disseminated well enough to explain to business people the consequences of their conduct. If we had one case, it would be enough. We could use the case to explain to business people the risk in being involved in atrocity crimes. Criminal law is about prevention.
HILJ: As a former ICC prosecutor, what would be your suggestion to lawyers aiming to bring corporate executives before the ICC?
LMO: You need good evidence and a case that satisfies the elements of the crime required by the statute; if you have that, then go for it.
HILJ: Which improvements to the structural framework of International Criminal Law could be made to allow greater criminal accountability of international crimes committed by corporate officials?
LMO: I don’t think this is a legal issue. I think it is a matter of will, and of disseminating the idea that companies cannot be involved in massive atrocities. We do not need new law; we need to enforce what we have. As I said before, one case would be enough to serve as an important deterrent to companies. They should not be involved in this. We do not need many cases; we need to show companies that there is a risk.
HILJ: There is a Truth Commission in Argentina on Business and Human Rights. Do you think that is a good approach for the companies that allegedly supported the atrocities?
LMO: The Truth Commission in Argentina is not intended to provide immunity to the accused. The Truth Commission is a way to collect information and witnesses. It was one of the first truth commissions and was used as a first investigation that allowed the prosecutor’s office to conduct their own investigation. Therefore, the Truth Commission was about collecting evidence, not granting immunity.
“Targeted killings are not a new practice – governments have long sought to prevail over their enemies by engaging in premeditated killings of individual suspects. What is new now is the rapid development and proliferation, and increasing deployment, of technologies which permit such killings to be carried out with greater ease and with little immediate risk to one side’s citizens, together with concerted efforts by some to offer general legal justifications for current targeted killings practices, and, in some cases, to attempt to redefine existing legal frameworks to expand the circumstances in which such killings may be carried out ‘lawfully.’
“Current targeted killings practices and the attempts to legally justify those strikes present a challenge to the systematic protection of the right to life under international law. We are now witnessing a significant effort by some states to insulate their “targeted” uses of deadly force from international scrutiny and to redefine international law in order to serve narrow and short-term interests. This presents a serious risk of leaving everyone less secure, particularly if other states around the world, as they acquire the new technology, claim for themselves the same expanded rights to target their enemies without meaningful transparency or accountability.
“The challenge is to ensure that strong protections of the right to life under international law survive the practices of a few states, technological developments, and outlier attempts to redefine core legal standards.”
