Editor’s
note: Maisie Biggs graduated with a MSc in Global Crime, Justice and Security
from the University of Edinburgh and holds a LLB from University College London.
She is currently working with the Asser Institute in The Hague. She has worked for International Justice
Mission in South Asia and the Centre for Research on Multinational Corporations
(SOMO) in Amsterdam.
The Rome Statute is a
central pillar of international criminal law (ICL), and so any discussion
concerning the subjection of legal persons requires a revisit of the
negotiations surrounding its drafting. However in the time since its
implementation, there appears to have been a shift in ICL regarding corporate
liability. Developing customary international law, treaty law and now most
domestic legal systems have some established mechanisms for prosecuting legal
persons for violations of ICL.
The Rome Statute
A lot has been written on the negotiations surrounding
the drafting of the Rome Statute of the
International Criminal Court (Rome
Statute). This document established the International Criminal Court (ICC), its
rules and jurisdiction, and codified the core crimes of ICL and surrounding
general principles. Article 25(1) of the Rome Statute explicitly restricts the
court’s jurisdiction to natural persons, meaning that corporate wrongdoing may
only be approached by the ICC through individual criminal responsibility or
superior responsibility for corporate actors.[1]
The Statute was a “major achievement”[2] as
the first international law instrument essentially summarising the general
principles of criminal law across national legal systems.[3]
Concerns about ‘complementarity’ arose as the ICC would be expanding the reach
of ICL far beyond the remit of ad hoc Tribunals like those used to try crimes
in Rwanda and Former Yugoslavia. The new Court needed to complement, rather
than undermine national courts and jurisdiction.[4]
During negotiations, individual responsibility of
legal persons, corporations or criminal organisations was described as “a major
political issue on which political guidance from the Committee was needed.”[5]
France had submitted a compromise proposal in the International Criminal Court
Draft Statute of 1998 concerning the inclusion of responsibility of legal
persons. The French representatives surmised that resistance from other states
to its inclusion was because there was no equivalent in some domestic legal
systems, while others held the view that the concept would be misapplied in an
international criminal court.[6]
The French proposal linked the responsibility of the
legal persons with the responsibility of criminal organisations at Nuremberg.
Under this proposal, group responsibility would be linked with the previous
commission of a crime by a natural person (thus in no way concealing individual
responsibility), and adopting in parts Article 10 of the Charter of the
Nuremberg International Military Tribunal,[7]
the Court would make binding determinations on the criminality of an
organisation, which states would need to implement and then penalise by fines
or proceeds of crime confiscation.[8]
The proposed text was as follows:
“[Art 23(5)]: Without
prejudice to any individual criminal responsibility of natural persons under
this Statute, the Court may also have jurisdiction over a juridical person
under this Statute. Charges may be filed by the Prosecutor against a juridical
person, and the Court may render a judgement over a judicial person for the
crime charged, if:
(a) The charges filed
by the Prosecutor against the natural person and the juridical person allege
the matters referred to in subparagraphs (b) and (c); and
(b) The natural person
charged was in a position of control within the juridical person under the
national law of the State where the juridical person was registered at the time
the crime was committed; and
(c) The crime was
committed by the natural person acting on behalf of and with the explicit
consent of that juridical person and in the course of its activities; and
(d) The natural person
has been convicted of the crime charged.
For the purpose of this
Statute, ‘juridical person’ means a corporation whose concrete, real or
dominant objective is seeking private profit or benefit, and not a State or
other public body in the exercise of State authority, a public international
body or an organisation registered, and acting under the national law of a
State as a non-profit organisation.”[9]
This was a compromise
solution from France between liberal and romantic conceptions,[10]
looking not only to convict ultimately the company or organisation, but rather
still use it as a mechanism for attributing responsibility to individuals.[11]
Several countries supported the concept, however prevailing concerns of
enforcement and complementarity remained, especially for countries with no
basis of corporate criminal liability. The matter was referred to the Working
Group following mixed reception from states, however once there, negotiations
met stifling time pressures.[12]
Per Saland, the Chairman of the working group which negotiated issues
surrounding Part 3 of the Rome Statute concerning these general principles of
criminal law (including Article 25 on individual responsibility), has since
revealed that time ran out for the Working Group when it came to discussion of
some more difficult issues, including liability of legal persons.[13]
David Scheffer, who was also involved in the
negotiations, has confirmed that the combination of time pressures and
complementarity concerns prevented the proposal from succeeding, however he has
added that another contributing factor was a more fundamental concern that the
“novelty” of the proposed corporate criminal liability would have “imperilled”
the entire treaty’s ratification by states.[14]
No agreement was reached concerning subjecting legal
persons. Article 25(3)(d) retained a reference to a ‘group of persons acting’,[15] so
the French idea of individual participation in a larger collective was
incorporated to an extent, however all references to legal persons have been
removed in the final article. Perhaps unintentionally, a similar door for
corporate liability remained ajar in article 7(2)(a), through reference to
organisational policy.[16] In
the ICC investigation into the Kenyan situation,[17]
the Court examined this issue:
“Clearly, the 'organization' is
an entity different from a "State" if the legislator was to avoid
redundancy. Thus, it is permissive to conclude that an 'organization' may be a
private entity (a nonstate actor) which is not an organ of a State or acting on
behalf of a State [para 45].”
The Court delineated various ‘state-like’
characteristics that a non-state actor would have to demonstrate in order to
qualify as an organisation under this article,[18]
however none expressly excluded legal persons like companies from the article’s
ambit.
Andrew Clapham provides an in-depth history of the
Rome Statute negotiations, and how controversial this question of legal persons
became.[19]
This episode has been treated as a definitive rejection of ICL liability for
legal persons,[20]
however the Rome Statute is just one (important) part of the larger ICL
picture.
Post-Rome caselaw developments
Since Rome, customary international law through
Tribunals, treaty law, and domestic law have all developed. Most notably, for
the first time legal persons have been subjected under ICL
by an international criminal tribunal.[21] In the Al Jadeed S.A.L. & Ms
Khayat (New TV S.A.L.)[22] case, an Appeals Panel for the Special Tribunal for
Lebanon (STL) overturned a decision
that the Tribunal lacked jurisdiction over legal persons on 2 October 2014, allowing the case to proceed against the corporate
entity Al Jadeed S.A.L. and natural person Ms Khayat. This was then followed by
another contempt case Akhbar Beirut S.A.L., similarly against a legal and natural person.[23] In New
TV S.A.L., Judge Baragwanath acknowledged
the development of domestic corporate accountability, and so determined that
international criminal law has likewise progressed:
“Corporate
liability for serious harms is a feature of most of the world’s legal systems
and therefore qualifies as a general principle of law. Where States still
differ is whether such liability should be civil or criminal or both. However,
the Appeals Panel considers that… corporate criminal liability is on the verge
of attaining, at the very least, the status of a general principle of law
applicable under international law.”[24]
The decision has been met
with a mixed reception. Filled with “historical references and normative
ambition,”[25]
some commentators have characterised the decision as an encouraging progression
from state practice and foundation stone for future ICL criminal liability.[26]
However the basis of Judge Baragwanath’s decision has been described
by Dov Jacobs as a “molotov cocktail to kill the principle of
legality” as the judge’s reasoning relied only on “the ‘spirit’ of the statute
combined with inherent jurisdiction.” Others have found the later Akhbar
Beirut S.A.L. opinion more convincing due to its more concrete basis in Lebanese law.
The Tribunal very
consciously restricted their consideration and findings to the specific crime
of contempt: looking to precedent, they examined only whether there had been
previous findings on contempt with regards to legal persons in the various
international criminal tribunals, and found there had “simply been no legal
pronouncement on this specific issue.” [27]
The Tribunal drew its power to prosecute for contempt from its inherent
jurisdiction as a judicial institution.[28]
Like the ICTY and ICTR before it, the STL’s primary jurisdiction for ‘core’
international crimes is explicitly over only natural persons, however the
separate framework in the general Rules of Procedure and Evidence allowed the Tribunal to
consider the broader definition of ‘persons’ for contempt. The importance of this distinction for the
case does also support Andrew Clapham’s argument that “at this point, the exclusion of non-natural
persons can be seen as the consequence of a ‘rule of procedure’ rather than the
inevitable result of application of international criminal law.”[29]
There is debate about the
broader applicability of these decisions, because of the STL's ties to Lebanese
law. The STL itself is a partially-domestic forum which reduces the ICL
significance of an ‘international tribunal’ taking this step. The legal basis
for the Tribunal’s decisions is at least partially grounded in Lebanese law
- Article 2 of the formative statute of the STL mandates the use of
Lebanese law (under which corporate criminal liability is possible) - however
it is debatable whether this case is purely an instance of domestic legal
application of international criminal law. Article 2 concerns only the
applicable criminal law, (i.e., the ‘core crimes’ discussed above) and not the
procedural rules on which this decision was based, which are grounded in
international law concerning international tribunals. It would then appear that
the legal basis for this decision was purely international, and the Tribunal in
New TV S.A.L.
accordingly based their decision on
“current international standards,”[30]
however in the
Akhbar Beirut S.A.L. case the Tribunal links back the
foreseeability of this corporate prosecution to Lebanese law: “It would be an
oddity for a Lebanese company to face criminal sanction in Lebanon for
interfering with the administration of justice with respect to cases before
Lebanese courts and at the same time enjoy impunity for similar acts before an
internationalised Tribunal guided by Lebanese law in carrying out its judicial
work.“[31]
The highest profile media
case last before an international tribunal also concerned the responsibility of
legal persons. The International Criminal Tribunal for Rwanda (ICTR) had a special
focus on the media’s role of incitement in the Rwandan genocide.[32]
As the Tribunal in the Akayesu case positively quoted: “it
was impossible that hundreds of thousands of people should commit so many
crimes unless they had been incited to do so.”[33]
The ICTR case of Prosecutor v. Nahimana et al.[34] (also known as the Media
Case) tried three natural persons for their roles in inciting the Rwandan
genocide. Two of these were the controlling figures of media organisations:
RTLM was a radio station and Kangura a publication. The court found a specific
“specific causal connection” between RTLM broadcasts and the killings, which
“engaged in ethnic stereotyping …[which] called explicitly for the
extermination of the Tutsi ethnic group.”[35]
The articles published by Kangura similarly had the impact of “whipping the Hutu
population into a killing frenzy.”[36]
What was distinctive about this case was that the court, before outlining the
individual responsibility of the named accused, went into great detail about
the culpability of the organisations in question. The court named the media
organisations themselves as responsible for inciting genocide: “If the downing
of the [President’s] plane was the trigger, then RTLM, Kangura and CDR were the bullets
in the gun.”[37]
It was not possible under the ICTR’s jurisdictional mandate to subject legal
persons and so the court in the Media case did not broach this issue, however
the structure and substance of the court’s reasoning centred primarily on the
responsibility of the organisations, and only after did the court then address
the roles of the natural persons who were actually on trial.
What may merit further
investigation is how media cases before international tribunals differ from the
prosecution of other international crimes that corporate actors engage in, such
as pillage or complicity. The media acts as the ‘fourth estate’, a fundamental
and (ideally) independent pillar of a functioning system of democratic governance.
Arguably then, media companies are not purely private, non-state actors but
serve a partially civic function, and so are in some ways fundamentally
different actors than other corporate entities.[38]
How the unique role of this specific ‘private’ actor impacts its liability
under ICL warrants further investigation.
International instruments imposing some form of
corporate liability
A growing number of
recent international treaties and conventions are incorporating obligations to
impose sanctions on legal persons.[39]
These include the Optional
Protocol on the Convention on the Rights of the Child (Article 3(4)), Convention
Against Transnational Organised Crime 2000 (Article 10(2)),
and Convention
Against Corruption 2003 (Article 26 (2)). As pointed out by Sabine
Gless and Sarah Wood, these instruments remain
vague about implementation.[40]
Nonetheless, for these crimes states are required in some form to impose
sanctions on legal persons.[41]
The Draft
Articles on Crimes Against Humanity being prepared by the
International Law Commission (ILC) may go the same way as the afore-mentioned
draft of the Rome Statute, but for now Draft article 6, paragraph 8 contains
explicit subjection of legal persons:
“Subject to the
provisions of its national law, each State shall take measures, where
appropriate, to establish the liability of legal persons for the offences
referred to in this draft article. Subject to the legal principles of the
State, such liability of legal persons may be criminal, civil or
administrative.”
This final sentence
allows for flexibility in domestic application, however the offences being
contemplated are international crimes. This convention is being designed to be
a development from the Rome Statute, the “next
generation” of legal tools concerning crimes against humanity.[42] The addendum to the ‘Fourth
report on crimes against humanity’ drafted by Sean D. Murphy,
Special Rapporteur of the ILC, links this article with the previously mentioned
international law instruments which are subjecting legal persons.
Conclusion
The ICC is as yet not
touched by these developments, however there are glimmerings of a shift in
customary ICL. As will be explored in the next post in this series, most
domestic legal systems now have established mechanisms for prosecuting legal
persons for violations of ICL. The Rome Statute negotiations surrounding the
subjection of legal persons were centralised on complementarity; if domestic
law has fundamentally shifted in the interim period it makes sense that this
issue be revisited in international caselaw and international instruments as
well.