25 Jul All Roads Lead to Rome: Strengthening Domestic Prosecutions of Businesses through the Inclusion of Corporate Liability in the Rome Statute
[Marie Davoise is an English-qualified lawyer who specialises in business & human rights and international criminal law. Previously in private practice, she is currently working as a Visiting Professional at the International Criminal Court. The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of the ICC or its members.]
Although “business” might not be the first word that springs to mind when thinking of widespread atrocities committed in conflict and post-conflict situations, the involvement of corporate actors in such crimes is nothing new. Combined with competition over resources and unstable environments, corporate greed can be lethal. And yet, with its main focus on individual liability, international criminal law only inadequately reflects the fact that companies can (and do) play a role in international crimes.
Accountability comes in many shapes and forms, through avenues that are often complementary rather than mutually exclusive. The question of whether civil law remedies are better suited to address international crimes committed by companies is outside the scope of this short contribution. Suffice to say that this is far from a settled question, with some arguing that civil processes are better suited to address the role of transnational corporations in atrocity while others favouring the use of transitional justice to bridge the ‘accountability gap’.
This article does not propose an exhaustive list of avenues through which businesses could be held to account for their role in international crimes. Instead, it offers a more modest contribution, by focusing on two ways in which international criminal law could bridge the corporate accountability gap: first, through the recognition of the international criminal liability of corporations by way of amendment of the Rome Statute, and second, through an increased number of domestic prosecutions of corporate entities.
Legal liability of corporations under international law: a controversial issue
There is a well-established history of prosecutions of individual corporate officers before international tribunals for their role in core crimes, from the 1946 Zyklon B case to the ‘Media Case’ before the International Criminal Tribunal for Rwanda.
On the other hand, the existence of criminal liability for legal entities under international law is far more controversial. Doctrinal difficulties arise from the theory of subjectivity under which non-state actors (in this case corporations) do not have legal personality under international law, and no obligations can therefore be imposed on them. In addition, there is “the assertion that, as a matter of law, legal entities cannot be deemed to act independently and hence are not blameworthy” (Garcia 2015).
The debate over the existence of any direct liability imposed by international law on corporations is apparent in 2012 amicus curiae submissions from the United Kingdom and the Netherlands in the Kiobel case before the US Supreme Court, which deny the existence of direct corporate liability (be it civil or criminal) under the law of nations.
Justice Kennedy gave a similar reasoning in his opinion in the 2017 Jesner v Arab Bank decision, in which he found that there was no specific, universal, and obligatory norm of corporate liability under the then prevailing international law.
It is true that corporations were excluded from the jurisdiction of the International Criminal Court (“ICC”) at the Rome Conference in 1998. Several reasons were offered for this non-inclusion. Most notably, it was argued that the proposal to include corporations in the Rome Statute would detract from the focus of the Statute on individual criminal responsibility and that the absence of a recognised standard of corporate responsibility across all states would make the principle of complementarity, the cornerstone of the Rome Statute, unworkable.
Twenty years later, is this still the case? The answer offered by this article is two-fold. From a descriptive point of view, it points to signs of a growing trend towards the recognition of corporate criminal liability at the international level. From a normative point of view, it argues that such recognition should be enshrined in the Rome Statute for the reasons explained below.
In favour of recognising corporate criminal liability at the international level
An increasing number of domestic jurisdictions across different continents and legal traditions have recognised the legal liability of corporations for crimes. In 2016, both a European Parliament resolution and a recommendation of the Committee of Ministers of the Council of Europe called on European member states to establish criminal liability for the commission of offences constituting serious human rights abuses involving business enterprises. The concept of corporate criminal liability, which has long been a feature of the US legal system, has in recent years spread to European jurisdictions, including the United Kingdom, the Netherlands, France, Italy, and Spain (see here).
This budding legal alignment was noted as early as 2008 by the International Commission of Jurists in its report on corporate complicity in international crimes (volume 2), which noted that national criminal laws increasingly included corporate criminal liability, strengthening “the arguments for an expansion of international courts’ jurisdiction over company entities”.
The development of domestic corporate accountability was also infamously used as a basis for the 2014 decision of the Appeals Panel of the Special Tribunal for Lebanon (“STL”), in which the Panel allowed a case to proceed against inter alia corporate entity Al Jadeed S.A.L. One should take care not to extrapolate too much from this decision, as it only concerned contempt instead of the substantial crimes for which the Tribunal was established, and the original discussion of various domestic systems was later reigned back in to the (much narrower) Lebanese law. Nevertheless, the growth of corporate criminal liability at the domestic level and the STL decisions suggest that the legal landscape has indeed changed since the 1998 Rome Conference.
Should this recognition be crystallised into an international instrument, and if so, which one?
There have been calls for the (currently under negotiations) UN-backed treaty on Business and Human Rights to establish corporate criminal liability (see for example Dr Nadia Bernaz noting that such inclusion would “solve a persistent ambiguity in the field, [which would be] a positive step in itself”). As it stands, the most recent draft of the treaty, dated 16 July 2019, requires State Parties to establish liability under domestic law for a series of core crimes (without, however, imposing a wider principle of corporate criminal liability).
Others have noted the aforementioned legal alignment, concluding that the main reason for non-inclusion of corporate liability in the Rome Statute no longer stood “due to the changing legal realities in international criminal accountability of corporations”(see Kaeb 2017).
Whether there exists a liability of corporations for human rights abuses under customary international law is still being debated, but answering this question is not a prerequisite to the amendment of the Rome Statute. On the contrary, such amendments could contribute to the development of international criminal law, and, to paraphrase Dapo Akande, could constitute not only criminalisation of corporate activities by treaty, but also a step towards criminalisation of corporate activities under customary international law.
Amending the Rome Statute… and then what?
The impact of an amendment to the Rome Statute wouldn’t come from potential prosecutions of businesses before the ICC, who has been straining under a lack of resources and recently came under fire for its decision not to investigate the Afghanistan situation.
No – instead, the change would come from the Statute’s impact on national legal systems.
Indeed, international criminal law is imported in a range of domestic legal systems by reference to the Rome Statute. An explicit recognition of corporate liability in this instrument would therefore revitalise the application of ICL to corporates at the national level while effectively bypassing the tricky question of whether or not such principle applies as customary international law (see Stewart 2014).
There are a few advantages to domestic prosecution of corporates for international crimes. When domestic courts prosecute their own nationals, for example when the Dutch prosecuted businessman Frank Kouwenhoven for atrocities committed in Africa, it disrupts the ‘victor’s justice’ narrative that still haunts international criminal law. Similarly, when French company Lafarge was charged in June 2018 for its complicity in crimes against humanity in Syria, it sent a strong signal that France was willing to examine the acts of its own nationals and companies. In an era of heightened distrust in international judicial institutions, the beneficial impact of domestic norms benefitting from strong(er) democratic credentials should not be underestimated.
Two more factors could compound the impact of prosecuting international crimes before national courts.
First, an increased use of universal jurisdiction to crimes committed extraterritorially. Although this would revive critiques of imperialism and neo-colonial assertion of jurisdiction (see Bernaz 2013), it could also provide a desperately needed forum for international justice in cases where global institutions are unwilling or unable to act (see e.g. the uptick in universal jurisdiction cases concerning Syria).
This would then be strengthened by practical developments such as the rise of domestic investigations into international crimes, the establishment of specialised national war crimes units across Europe and North America, or the development of Strukturermittlungsverfahren or structural investigation techniques which streamline the investigation process. At the European level, the pooling of resources and further judicial cooperation through mechanisms such as the European Arrest Warrant could also support domestic proceedings.
All signs point towards an ever-increasing scope of liability including corporations, and suggest that national courts might increasingly use universal jurisdiction to hold businesses liable for international crimes as States enact legislation implementing and incorporating the Rome Statute. Although the road to corporate accountability is steep, there nevertheless seems to be a general consensus (see here, here and here) that the main obstacles to effective legal accountability for corporate involvement in atrocities will not be of a doctrinal or conceptual nature, but rather will be linked to practical and political considerations. Whether that is good or bad news for justice, however, is up for debate.