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Comment on the Anniversary Question: “In the Rome Statute’s third decade, what key reforms could make the international criminal justice project stronger, more efficient, and more effective?”

Twenty Years After its Birth, it is Necessary for the International Criminal Court to Effectively Address Transnational Corporations’ Involvement in International Crimes

Introduction

The International Criminal Court will soon be celebrating the twentieth anniversary of the adoption of the Rome Statute on July 17, 1998. The creation of the Court was the result of a longstanding project, born in the aftermath of one of the worst conflicts in human history. Since it started functioning, the Court has rendered verdicts in multiple cases, several others are in trial, and many other investigations have been launched. These proceedings have targeted members of armed groups involved in various atrocities, former political leaders known for their violent repression of opposition movements and many others, and studies suggest that its action is starting to bear fruit.1 Today, twenty years after its birth, the Court asked us to reflect on the challenges it faces, from its methods of work to the strategies it should adopt, in order to improve its efficiency and effectiveness. Nevertheless, in this comment, I will not provide the Court with answers to the challenges it is already facing today. Rather, I want to seize the opportunity provided by this year’s broad question to reflect on the challenges the Court will—and should—face in the next twenty years, as it occurred to me an anniversary was the perfect occasion to do so.

The challenge I want to address is not new, but it is one on which the position and the action of the Court in the next twenty years will be critical, both for pursuing effectively its general goal of ending impunity, and for reinforcing the relevance and legitimacy of the Court itself. The challenge I am referring to is the question of the involvement of private transnational corporations in the commission of international crimes, and how and why the Court should address it as a priority in the next twenty years.

Instable regimes, armed conflicts, or situations of political turmoil have never prevented businesses from doing business. Quite the contrary, it is common knowledge that such circumstances can actually present significant opportunities for corporations and, in particular, for transnational corporations.2 In such situations, however, the line between legitimate business activities and complicity in unlawful acts becomes blurred. In fact, evidence shows that transnational corporations sometimes get involved, in various ways, in the perpetration of human rights violations amounting, in some cases, to international crimes.3 The phenomenon is no novelty, and the question of the participation of corporations in the perpetration of serious crimes famously arose as far back as the Nuremberg trials.4 However, the issue recently returned to the front of the stage as new cases emerged, especially in the context of current turmoil and armed conflicts in the Middle East. More than news of corporations’ involvement, what has been interesting is that some of them are now under investigation by domestic authorities in various countries, and some business leaders and individuals have recently been indicted.5 Bolstered by such reports, there has been growing calls for national authorities and the “international community” to take action.6 The United Nations global compact was launched in 2000 and the last edition of its forum on business and human rights took place recently in Geneva.7 The UN has also appointed a Special Representative on Business and Human Rights.8 Concurrently, the issue has attracted attention in scholarship and has led to a fair amount of literature on the topic.9

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However, in that context, although international criminal law and the ICC have been mentioned, the role of the latter has often remained underestimated, and the Court itself has remained rather passive.10

Against this background, I will argue that it is critical for the ICC to seriously and vigorously address this issue in the coming years. I will show that the ICC has the means—and should strategically use them—to take a leading role in this endeavor. In Part I, I will first identify the circumstances in which the question arises, and briefly describe why the mechanisms already in place are inadequate. I will then discuss the relevant provisions of the Rome Statute and demonstrate that, as a matter of fact, the ICC does have the means to address corporations’ criminal involvement in the current state of law. Finally, I will assess the potential obstacles and difficulties the ICC is likely to face, while stressing that, in spite of those circumstances, it is the responsibility of the Court to act.

I. Relevance of the Question and Types of Criminal Involvement of Corporations

As I mentioned in the Introduction, it is no secret that businesses have always operated in areas in turmoil, armed conflicts, or under the rule of oppressive regimes. However, globalisation and the recent economic development of entire regions have increased the phenomenon. Being present in such areas, the likelihood that transnational corporations would be involved—directly or indirectly—in the commission of gross human rights violations and international crimes drastically increases.11 But exactly what kind of involvement are we talking about?

In an extremely well written piece, Wolfgan Kaleck and Miriam Saage-Maaß offer a fairly comprehensive account of the different scenarios in which corporations may get involved in the perpetration of international crime.12 They propose a typology distinguishing two main forms of involvement: corporations may have collaborated with authoritarian regimes or military forces, or they may have been involved in armed conflicts and civil wars. In the first collaboration hypothesis, they describe three situations:

  1. corporations may “profit from state violence,”13 such as in the Shell case, where the Nigerian army—paid by Shell—violently suppressed protests against one of the company’s projects;14

  2. corporations may facilitate the regime’s human rights abuses by “providing the necessary means,”15 like in the Van Anraat case, where the Dutch businessman supplied the Iraqi governments with key components of mustard gas that was eventually used against Kurdish minorities;16 or

  3. they may in some cases “directly support repression without [finding] any direct economic benefit,”17 this occurred, for instance, when Mercedes-Benz’s Argentinian subsidiary’s managers passed information to security services on political activists working at their factories, leading to the torture and disappearance of some of them.18

In the second hypothesis, in which corporations may have been involved in armed conflicts and civil wars, two types of scenario emerge:

  1. corporations may be “fuelling [the conflicts] through the provision of goods and illicit funds,” like in the Dutch Kouwenhoven case, in which a timber company supplied a party to the conflict with weapons;19 or

  2. companies may actually take an active role in the conflict by “providing military and intelligence services.”20 This last situation refers, of course, primarily to private military firms, with an example being the well-known Saleh v. Titan case where two contractors, working on behalf of the US government in the Abu Ghraib prison as well as other detention facilities, were allegedly involved in acts of torture and other degrading treatments and war crimes.21

Interestingly enough, as one can assume from the court cases I referred to, there are means to litigate and hold corporations accountable for their involvement in human rights violations and international crimes. The most effective to date is probably domestic litigation. Many domestic legal systems indeed allow the investigation and prosecution of either corporations themselves or their executives, and/or allow the filing of civil liability claims.22 Among many others, I have referred here to cases from the Netherlands as well as France for the criminal side.23 On the civil liability side, the most prominent instrument is the US’s Alien Tort Claims Act.24 The Alien Tort Claims Act has been a significant tool in holding corporations accountable for violations of human rights and international criminal law, and evidence suggests the act does have some deterrence effect.25

Other instruments also exist at the international level. For instance, as early as 1976, the OECD adopted guidelines for multinational enterprises to address this question.26 The organisation even provides a dispute settlement procedure accessible to civil society organisations. However, the system is quite limited since the guidelines are non-binding while the dispute settlement procedure offers no possibility of sanctions.27 The International Labour Office’s Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted in 1977, also offers some contribution by providing a reporting system and a commission of inquiry mechanism. Again however, not only do these instrument provide no remedy for the victims, but the implementation again lacks teeth.28 Lastly, the UN Global Compact on Businesses and Human Rights, although it constituted a political milestone, does not offer any form of enforcement mechanisms.29

II. Addressing Corporations’ Actions within the Current Framework of The Rome Statute

In that context, the legitimate question to ask is: what has the establishment of the ICC changed, if anything? How, if at all, is the ICC relevant in this fight for ensuring corporations’ accountability?

A. The Relevance of the ICC

The weaknesses of the pre-ICC mechanisms are quite self-explanatory: a fragmented framework, with a vast range of domestic rules, in both criminal and civil liability law on one side; a diversity of international mechanisms, most of them non-binding, all of them lacking effective implementation and monitoring on the other side. Ultimately, this situation is even detrimental to the transnational corporations themselves, as it becomes difficult to know with sufficient certainty what legal risks their actions entail. Accordingly, confronted by this general legal uncertainty, corporations are more often than not tempted to ignore their obligations. For their part, victims are left facing mechanisms of a Kafkaesque complexity. With a very low probability that they, or even their counsel, know about these instruments, it is very unlikely that victims will have access to an effective remedy. Turning to the practical aspects, while the investigation capacities of the existing international bodies are very weak, those of domestic law enforcement authorities are strictly limited by their jurisdiction and the general difficulty of conducting their investigations on foreign territory.30

In that context, the International Criminal Court has a decisive role to play—with all the challenges it implies.31 As far as victims are concerned, this is a more easily identifiable institution and potentially more trusted than non-binding international organs, or even foreign courts. As to corporations, the prospect of having to deal with a Court initially designed to handle cases involving genocidal regimes and war criminals, and the consequences it could have on their reputation, is probably intimidating enough to have some deterrent effect or at least draw their attention to the issue. Furthermore, and again without ignoring the many challenges it might face, in addition to having a global reach, the Court also has extremely significant and strong powers compared to existing domestic and international mechanisms.

B. Recourse to the Notion of Complicity

If the action of the Court, and more precisely its prosecutor, is necessary, on what grounds exactly can it act?

One of the core principles of international criminal law is individual criminal responsibility. This was the major contribution and innovation of the Nuremberg trials and a proposal designed to prevent individuals from hiding behind entities such as states or militias. While in practice Article 25 of the Rome Statute, entitled “Individual criminal responsibility,” leaves little room for discussion, there has been and remain debates as to whether corporations as legal persons should be held directly accountable.32 Although I will not be able to address that debate in this comment, I will simply mention that, in my opinion, the door should remain open to corporations’ responsibility. Thus the option of reforming the Rome Statute, unlikely as it may be, should be kept in mind.33 Either way, for the purpose of this comment, I will demonstrate that, as far as the lex lata is concerned, the ICC already has the means to address corporations’ criminal behavior by targeting their executives.

The Rome Statute provides the possibility of holding accountable both the principal perpetrator as well as any potential accomplice.34 Looking back at the typology of corporate involvement in the commission of international crimes teaches us that the direct involvement of transnational corporations as principal agent is rather unlikely—although not totally unimaginable. Rather, it is widely acknowledged that the involvement of corporations is more likely to be through their “contribution” to the perpetration of international crimes.35 Accordingly, much of the literature has focused on the provisions on complicity: Article 25(3)(c) of the Rome Statute, and acts of a group of persons acting with a common purpose: Article 25(3)(d) of the Rome Statute—which are, indeed, the most relevant.

For complicity to be established, Article 25(3)(c) of the Rome Statute requires two cumulative elements: the actus reus, that is to say an act that contributes to the commission of the crime; and the mens rea, the intent to contribute.

Since the Court has never interpreted these provisions, much uncertainty remains and many authors have sought to interpret the Statute’s provisions in light of the international tribunals’ case law. Regarding the actus reus, for instance, drawing on the case law of the ICTY it is interpreted as “practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”36 The notion of “substantial effect” is not precisely defined, and its exact scope remains uncertain. What is certain however is that the “contribution” need not amount to a direct effect,37 it need not be through actions of an inherent criminal nature,38 nor does it need to have been a “condition” for the commission of the crime.39 Nevertheless, there must exist a clear causal nexus between the contribution and the principal’s crime.40

As to the mens rea, here again the exact meaning of the requirement is debated.41 In particular, there seems to be a divergence between the customary law as interpreted by the international tribunals and the text of the Rome Statute, with the latter endorsing a more restrictive requirement than the former.42 However, as highlighted by Clapham, the two approaches are not necessarily contradictory.43 In fact, as a matter of coherence—with the criminal tribunals but also with the Rome Statute’s own provisions, especially Article 25(3)(d) which appears to be much broader—as well as potentially effet utile, I contend that, confronted by this question, the Court should follow the interpretation given by the international tribunals. According to these latter’s practice, the aider or abetter need not share the intent of the principal perpetrator, nor does it need to have the specific intent to contribute to the perpetration of a crime.44 Instead, the ICTY, for instance, adopted the view that mere knowledge was sufficient.45 In other words, the aider or abetter need not know what the exact crime intended is, or what the specific intent is, “as long as he is aware that one of a number of crimes will probably be committed and one of those crimes committed.”46

Turning to Article 25(3)(d) of the Rome Statute,—often referred as the “joint criminal enterprise”—this provision, actually broader than Article 25(3)(c), also offers an effective means of holding corporations accountable. As its text indicates, the situation covered is one in which several people sharing a “common purpose” contribute together to the perpetration or attempted perpetration of a crime. The individuals concerned must then either share the same intent of committing the crime,47 or just have “knowledge of the intention of the group to commit a crime.”48

Finally, it is important to recall that there is no requirement of physical proximity between the actual crime, the perpetrator, co-perpetrator, or accomplice. This principle is the very essence of international criminal law, as the goal is not to reach only those who executed, but also—should I say primarily—the “most guilty,” those who ordered, solicited, induced, facilitated, or effectively contributed to the perpetration of the crimes, insofar as there remain a certain degree of “legal proximity.”49 On a side note, although significant, as Vest points out, as the provision does not require the crime to have been committed, it is also susceptible to cover the “substantial likelihood that a certain crime will be committed.”50

In sum, although some uncertainty remains, it is beyond doubt that these provisions, wisely used, would allow the OTP to target, if not all, many of the unlawful behaviors of transnational corporations.

III. Challenges of Addressing Corporations’ Responsibility

In addition to some of the legal debates mentioned in the previous section, it is clear that it will not be an easy task for the ICC to take a leading role in addressing corporations’ accountability and the Court will encounter multiple obstacles along the way. I will not attempt to draw up an exhaustive list here, but rather point to some of the main challenges the OTP and the Court will likely face.

The first difficulty will be the predictable complexity of investigations. This is not to say that investigating other types of perpetrators is easy, but corporations nonetheless present an inherent complexity. They are often made with elaborate internal organizational structures, where the chain of command will sometimes be difficult to establish, especially in the case of the relationships between several subsidiaries and parent companies operating in different countries.51 In these situations, contrary to governments or militaries, there are neither constitutions nor statutes to clearly identify the prerogatives of various individuals.52 In addition, although I have stressed that the remoteness does not automatically hinder individual criminal responsibility of corporations’ leadership, it will not always be easy to identify the degree of involvement of particular individuals in the decision-making that eventually materialized in a criminal behaviour. For the same reasons, the general collection of evidence will also present serious challenges.53

Nonetheless, it must be noted that the modern means of communication provide significant help in that regard. Indeed, the widespread use of emails within corporations, for instance, is likely to offer valuable insights on internal decision-making processes. And that is without mentioning improved, quicker, and easier judicial cooperation with national authorities.54 Therefore, although complex, the challenge is far from impossible to address.55

In view of the above, such investigations are also likely to generate significant costs. Not mentioning substantial difficulties in the collection of evidence—such as proving that potential products supplied by a corporation were actually used in the commission of the crime—56 there will also be other practical challenges: for instance the sensitivity and secrecy surrounding most of the relevant transactions will result, first, in long and laborious investigations, and second, costly programmes of witness protection when necessary.57 The geographical scope of the investigation—likely to be spread out across different countries—will also drive up the costs. So will personnel expenses, with the foreseeable necessity to recruit new investigators specialized in corporate crime. Therefore, and in line with the requirement of gravity of Article 17(1)(d),58 the OTP will have make an assessment of the significance of the cases and select and focus only on the most serious cases in order to make good use of its limited resources.

Finally, the OTP and the Court will be put in a difficult position as the presence of transnational corporations in conflict zones or countries in turmoil is still critical to the survival of the local economies. This is so especially in periods of reconstruction and political transition for instance. Accordingly, ensuring corporations’ accountability must not lead to discouraging investment.

IV. Conclusion

While the Court will soon be celebrating the twentieth anniversary of the signing of the Rome Statute, I hope to have demonstrated why it is necessary to take the time to reflect not only on the technical and practical ways to improve its functioning and enhance its efficiency—although these are of course critical areas of concern59— but also on the substantial choices the OTP, and incidentally the Court, will have to make in the next few years, in order to ensure that the Court is indeed fulfilling its ambitious mandate.

In this regard, addressing transnational corporations’ involvement in the perpetration of international crimes, along with its financial ramifications, must be a priority. Besides significantly improving the regime of criminal liability of corporations by having one regime and one institution at the international level tackling the issue—therefore making it more transparent and predictable for corporations themselves, in addition to allowing the Court to spread its newly-acquired expertise to its member states in the spirit of complementarity—the move I am suggesting would also be about sending a message. While there has been sort of a double-standard in the past decades regarding the scrutiny over the actions of governments and armed groups on one side, and those of corporations on the other, it is important to strongly reaffirm that international criminal law, and more broadly human rights, must be respected by all.60 While we must salute the steps already adopted by the OTP in the past few years,61 it must seize the occasion of this twentieth anniversary—which will also coincide with Prosecutor Fatou Bensouda entering the last third of her mandate, and the OTP adopting its new prosecutorial strategy for the next three years—and redouble its efforts to avoid previous pledges becoming a dead letter.

Lastly, such an impetus would certainly not be only about ICC prosecution, partly because of the multiple restrictions and challenges the Court faces. Rather, this new focus would also be a strong incentive for States to take action, in coordination with and with the support of the Court. This would also draw further public attention to this issue and hopefully boost the activity of civil society organizations to this regard.

Conceived just twenty years ago, the Court has generated enthusiasm and hopes, especially for its goal to deter the most egregious forms of human rights violations. While it is still a young institution and should therefore not be too harshly judged, it is clear that tackling effectively businesses’ involvement in the commission of international crimes in the coming years is necessary if the Court wants to get closer to matching these expectations.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity?, 70 Int’l Org. 443 (Mar. 7, 2016), available online. ↩

  2. 2.

    Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights, 20 Berkeley J. Int’l L. 45 (2002), available online; Profits in a Time of War, The Economist, Sep. 20, 2014, available online. ↩

  3. 3.

    Florian Jessberger & Julia Geneuss, Introduction, 8 J. Int’l Crim. Just. 695, 695 (Jul. 1, 2010), available online, doi; Joanna Kyriakakis, Developments in International Criminal Law and the Case of Business Involvement in International Crimes, 94 Int’l Rev. Red Cross 981 (Sep. 1, 2012), available online, doi; Human Rights Watch, The Curse of Gold: Democratic Republic of Congo (Apr. 26, 2005), available online. ↩

  4. 4.

    Annika Van Baar & Wim Huisman, The Oven Builders of The Holocaust: A Case Study of Corporate Complicity, 52 BJC 1033 (Nov. 1, 2012), paywall, doi; Florian Jessberger, On the Origins of Individual Criminal Responsibility under International Law for Business Activity: IG Farben on Trial, 8 J. Int’l Crim. Just. 783 (Jul. 8, 2010), paywall, doi; Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said, 109 Colum. L. Rev. 1094 (Jun. 2009), paywall. ↩

  5. 5.

    Liz Alderman, France Investigates Lafarge Executives for Terrorist Financing, N.Y. Times, Dec. 8, 2017, available online; Former LafargeHolcim CEO Charged over Terror Financing Allegations, France 24, Dec. 8, 2017, available online; Volterra Fietta, Dutch Court Convicts Former “Timber Baron” of War Crimes in Liberia, Lexology, Oct. 4, 2017, available online. ↩

  6. 6.

    Amnesty International, Investigate Shell for Complicity in Murder, Rape and Torture (Nov. 28, 2017), available online; Salil Shetty, Corporations have Rights. Now We need a Global Treaty on their Responsibilities, The Guardian, Jan. 21, 2015, available online; John Vidal & Owen Bowcott, ICC Widens Remit to Include Environmental Destruction Cases, The Guardian, Sep. 15, 2016, available online. ↩

  7. 7.

    Andrew Clapham, Human Rights Obligations of Non-State Actors 218–25 (2006), paywall, doi. ↩

  8. 8.

    UN Commission on Human Rights, Human Rights Resolution 2005/69: Human Rights and Transnational Corporations and Other Business Enterprises, E/CN.4/RES/2005/69 (Apr. 20, 2005), available online. ↩

  9. 9.

    Philip Alston, Ed., Non-State Actors and Human Rights (Sep. 29, 2005); Olivier De Schutter, Ed., Transnational Corporations and Human Rights (Sep. 11, 2006), paywall; Clapham, supra note 7; David Kinley, Ed., Human Rights and Corporations (2009); Alexandra Gatto, Multinational Enterprises and Human Rights: Obligations Under EU Law and International Law (Jan. 1, 2011), paywall; James Graham Stewart, Atrocity, Commerce and Accountability: Corporate Responsibility for International Crimes (2013) (Unpublished JSD Dissertation, Columbia University), available online, doi; Stéfanie Khoury & David Whyte, Corporate Human Rights Violations: Global Prospects for Legal Action (Dec. 20, 2016), paywall; Surya Deva & David Bilchitz, Eds., Building a Treaty on Business and Human Rights: Context and Contours (Oct. 2017), paywall, doi. ↩

  10. 10.

    Kyle Rex Jacobson, Doing Business with the Devil: The Challenges of Prosecuting Corporate Officials Whose Business Transactions Facilitate War Crimes and Crimes against Humanity, 56 A.F. L. Rev. 167 (Jan. 1, 2005), paywall. ↩

  11. 11.

    Danielle Olson, Corporate Complicity in Human Rights Violations Under International Criminal Law, 1 Int’l Hum. Rts. L.J. 1 (2015), available online. ↩

  12. 12.

    Wolfgang Kaleck & Miriam Saage-Maaß, Corporate Accountability for Human Rights Violations Amounting to International Crimes: The Status Quo and its Challenges, 8 J. Int’l Crim. Just. 699 (Jul. 8, 2010), available online; Hans Vest, Business Leaders and the Modes of Individual Criminal Responsibility under International Law, 8 J. Int’l Crim. Just. 851 (Jul. 19, 2010), paywall, doi; Norman Farrell, Attributing Criminal Liability to Corporate Actors: Some Lessons from the International Tribunals, 8 J. Int’l Crim. Just. 873 (Ju1. 1, 2010), paywall, doi. ↩

  13. 13.

    Kaleck & Saage-Maaß, supra note 12, at 703–05. ↩

  14. 14.

    John Vidal, Shell Oil Paid Nigerian Military to Put Down Protests, Court Documents Show, The Guardian, Oct. 2, 2011, available online; Environmental Justice Organizations, Liabilities and Trade, The Shell Case in Nigeria (Aug. 2, 2015), available online; Clapham, supra note 7, at 262. ↩

  15. 15.

    Kaleck & Saage-Maaß, supra note 12, at 705. ↩

  16. 16.

    Santiago Oñate, Brigitta Exterkate, Lisa Tabassi & Erwin van der Borght, Lessons Learned: Chemicals Trader Convicted of War Crimes, 2 HJJ 23 (2007), available online. ↩

  17. 17.

    Kaleck & Saage-Maaß, supra note 12, at 707. ↩

  18. 18.

    Victoria Basualdo, Tomás Ojea Quintana & Carolina Varsky, The Cases of Ford and Mercedes Benz, in The Economic Accomplices to the Argentine Dictatorship 159, 169–73 (Horacio Verbitsky & Juan Pablo Bohoslavsky eds., Oct. 2015), paywall, doi; Larry Rohter, Ford Motor Is Linked to Argentina’s “Dirty War,” N.Y. Times, Nov. 27, 2002, available online. ↩

  19. 19.

    Wim Huisman & Elies van Sliedregt, Rogue Traders: Dutch Businessmen, International Crimes and Corporate Complicity, 8 J. Int’l Crim. Just. 803 (Jul. 8, 2010), paywall, doi. ↩

  20. 20.

    Kaleck & Saage-Maaß, supra note 12, at 709; Clapham, supra note 7, at 299–310. ↩

  21. 21.

    Cedric Ryngaert, Litigating Abuses Committed by Private Military Companies, 19 EJIL 1035 (Nov. 1, 2008), available online, doi. ↩

  22. 22.

    Guy Stessens, Corporate Criminal Liability: A Comparative Perspective, 43 ICLQ 493 (Jul. 1994), paywall, doi; Geneviève Giudicelli-Delage & Stefano Manacorda eds., La Responsabilité Pénale des Personnes Morales: Perspectives Européennes et Internationales (2013); Diane Bernard & Damien Scalia, Vingt ans de Justice Internationale Pénale: Les Dossiers de la Revue de Droit Pénal et Criminologie (Jun. 1, 2015); International Commission of Jurists, Complicité des Entreprises et Responsabilité Juridique: Vol. 3 Recours Civils (2008), available online. ↩

  23. 23.

    Kaleck & Saage-Maaß, supra note 12, at 703; Huisman & van Sliedregt, supra note 19; Marjolein Cupido, Mark Hornman & Wim Huisman, Individual Liability for Business Involvement in International Crimes, CICJ (2017), available online. ↩

  24. 24.

    Alien’s Action for Tort, 28 U.S.C. § 1350 (Jun. 25, 1948), available online. ↩

  25. 25.

    Katherine Gallagher, Civil Litigation and Transnational Business: An Alien Tort Statute Primer, 8 J. Int’l Crim. Just. 745 (Jul. 1, 2010), paywall, doi; Sarah H. Cleveland, The Alien Tort Statute, Civil Society, and Corporate Responsibility, 56 Rutgers L. Rev. 971 (2004), paywall; Clapham, supra note 7, at 262–450. ↩

  26. 26.

    Organization for Economic Cooperation and Development, OECD Guidelines for Multinational Enterprises 2011 (Sep. 29, 2011), available online, doi; Jernej Letnar Černič, Corporate Responsibility for Human Rights: A Critical Analysis of the OECD Guidelines for Multinational Enterprises, 4 Hanse L.R. 71 (2008), available online. ↩

  27. 27.

    Clapham, supra note 7, at 201–11. ↩

  28. 28.

    Id. at 213–18. ↩

  29. 29.

    Clapham, supra note 7, at 218–25; see Kaleck & Saage-Maaß supra note 12, at 178-182.

    (An enlightening analysis of the reasons behind the lack of strong international mechanisms). ↩

  30. 30.

    Reinhold Gallmetzer, Prosecuting Persons Doing Business with Armed Groups in Conflict Areas: The Strategy of the Office of the Prosecutor of the International Criminal Court, 8 J. Int’l Crim. Just. 947, 949 (Jul. 1, 2010), paywall, doi. ↩

  31. 31.

    Id. at 950. ↩

  32. 32.

    William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute 425–27 (2nd ed. Nov. 22, 2016); Per Saland, International Criminal Law Principles, in The Making of the Rome Statute 189, 199 (Roy S. K. Lee ed., Sep. 6, 1999), paywall. ↩

  33. 33.

    Mordechai Kremnitzer, A Possible Case for Imposing Criminal Liability on Corporations in International Criminal Law, 8 J. Int’l Crim. Just. 909 (Jul. 1, 2010), paywall, doi; Clapham, supra note 7; Michael J. Kelly, Prosecuting Corporations for Genocide under International Law, 6 Harv. L. & Pol’y Rev. 339 (2012), available online. ↩

  34. 34.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 25, available online. ↩

  35. 35.

    Julia Geneuss, Jan Philipp Book, Boris Burghardt & Oliver Schüttpelz, Core Crimes Inc.: Panel Discussion Reports from the Conference on ‘Transnational Business and International Criminal Law,’ held at Humboldt University Berlin, 15–16 May 2009, 8 J. Int’l Crim. Just. 957, 964 (Jul. 1, 2010), paywall, doi;

    (With the notable exception of private military firms. Indeed, the personnel of these firms is often on the front line in areas of conflict. Therefore these individuals and the firms risk being directly involved in the perpetration of international crimes, and therefore fall under Article 25(3)(a), that is to say they can be held responsible as principal perpetrators).

    Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, 5 J. Int’l Crim. Just. 953 (Sep. 1, 2007), paywall, doi. ↩

  36. 36.

    Clapham, supra note 7, at 911. ↩

  37. 37.

    Farrell, supra note 12, at 890. ↩

  38. 38.

    Id. at 893. ↩

  39. 39.

    Id. at 891–92. ↩

  40. 40.

    Id. at 892–93. ↩

  41. 41.

    Mark Hornman & Eelke Sikkema, Corporate Intent: In search for a Theoretical Foundation for Corporate Mens Rea, in Overarching Views of Delinquency and Deviancy: Rethinking the Legacy of the Utrecht School 287 (Ferry de Jong, Miranda Boone, et al. eds., 2015), available online. ↩

  42. 42.

    See Andrea Reggio, Aiding and Abetting in International Criminal Law: The Responsibility of Corporate Agents and Businessmen for “Trading with the Enemy” of Mankind, 5 Int’l Crim. L. Rev. 623, 646 (2005), paywall, doi; Albin Eser, Individual Criminal Responsibility: Mental Elements—Mistake of Fact and Mistake of Law, in The Rome Statute of the International Criminal Court: A Commentary 767, 803 (Antonio Cassese, Paola Gaeta, & John R.W.D. Jones eds., 2002), available online. ↩

  43. 43.

    Clapham, supra note 7, at 908. ↩

  44. 44.

    Farrell, supra note 12, at 882; Vest, supra note 12, at 861; Werle, supra note 35, at 970. ↩

  45. 45.

    Farrell, supra note 12, at 882. ↩

  46. 46.

    Id. at 882. ↩

  47. 47.

    Rome Statute, Art. 25(3)(d)(i). ↩

  48. 48.

    Id. Art. 25(3)(d)(ii). ↩

  49. 49.

    Farrell, supra note 12, at 877; Vest, supra note 12; Eser, supra note 42, at 781. ↩

  50. 50.

    Vest, supra note 12, at 865. ↩

  51. 51.

    Geneuss et al., supra note 35, at 963; Harmen van der Wilt, Corporate Criminal Responsibility for International Crimes: Exploring the Possibilities, 12 Chinese J. Int’l L. 43 (Mar. 1, 2013), paywall, doi. ↩

  52. 52.

    Geneuss et al., supra note 35, at 963; Kaleck & Saage-Maaß, supra note 12, at 722. ↩

  53. 53.

    Kaleck & Saage-Maaß, supra note 12, at 722. ↩

  54. 54.

    Gallmetzer, supra note 30. ↩

  55. 55.

    Geneuss et al., supra note 30, at 963–64. ↩

  56. 56.

    Farrell, supra note 12, at 893. ↩

  57. 57.

    Kaleck & Saage-Maaß, supra note 12, at 722. ↩

  58. 58.

    Margaret M. DeGuzman, How Serious are International Crimes? The Gravity Problem in International Criminal Law, 51 Colum. J. Transnat’l L. 18 (2012), available online. ↩

  59. 59.

    M. Cherif Bassiouni, Challenges to International Criminal Justice and International Criminal Law, in The Cambridge Companion to International Criminal Law 353 (William A. Schabas ed., 2016), paywall, doi; Jacob N. Foster, A Situational Approach to Prosecutorial Strategy at the International Criminal Court, 47 Geo. J. Int’l L. 439 (2016), available online. ↩

  60. 60.

    Kaleck & Saage-Maaß, supra note 12, at 722. ↩

  61. 61.

    Gallmetzer, supra note 30; Patrícia Pinto Soares, Positive Complementarity and the Law Enforcement Network: Drawing Lessons from the Ad Hoc Tribunals’ Completion Strategy, 46 Israel L. Rev. 319 (Nov. 2013), paywall, doi; Nadia Bernaz, An Analysis of the ICC Office of the Prosecutor’s Policy Paper on Case Selection and Prioritization from the Perspective of Business and Human Rights, 15 J. Int’l Crim. Just. 527 (Jul. 1, 2017), paywall, doi. ↩

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