Joanna Kyriakakis

Corporate Criminal Liability and the ICC Statute: The Comparative Law Challenge

This article examines the proposal that, in order to overcome the comparative law problem of diverse national positions in relation to corporate criminal liability, a scheme involving administrative or civil liability should be adopted if corporations are to be included in the jurisdiction of the International Criminal Court. It is argued that, despite the obvious practical appeal of such a solution, a criminal liability scheme should be preferred as perpetrators of international crimes – both natural and legal – should be subject to the full expressive and stigmatising capacities of the criminal law. However, recent international developments in corporate liability suggest a possible middle ground that may provide an acceptable solution to a majority of states.

Developments in international criminal law and the case of business involvement in international crimes

In the wake of the mandate of the United Nation’s Special Representative for Business and Human Rights (SRSG), international criminal law looks set to play a role in measures towards the legal accountability of business actors involved in gross human rights and humanitarian law violations. Against the backdrop of the SRSG’s now completed mandate, this article looks at three recent developments in international criminal law to consider the field’s potential relevance to business actors involved in conflict. The first is the newest mode of liability recently adopted by the International Criminal Court, indirect perpetration through an organisation. The second is the aiding and abetting doctrine as applied by the Special Court for Sierra Leone in the Charles Taylor case. The third is the potential uptake of a practice of thematic prosecutions focusing on particular under-regulated issues of concern for the international community.

Corporations before International Criminal Courts: Implications for the International Criminal Justice Project

The debate over whether the International Criminal Court should have jurisdiction over corporations has persisted over the years, despite the failure of the legal persons proposals at Rome. For its part, the Special Tribunal for Lebanon determined that it has jurisdiction over corporations for the purpose of crimes against the administration of the Tribunal, albeit not for the substantive crimes over which it adjudicates. Most recently, the African Union has adopted a Protocol that, should it come into operation, would create a new international criminal law section of the African Court of Justice and Human and Peoples Rights with jurisdiction over corporations committing or complicit in serious crimes impacting Africa. In light of the enduring nature of the proposal that international criminal institutions should directly engage with the problem of commercial corporations implicated in atrocity, this article explores the possible implications for the international criminal justice project were its institutions empowered to address corporate defendants and prosecutors emboldened to pursue cases against them. Drawing on the expressive goals of international criminal justice and concepts of sociological legitimacy, as well as insights from Third World Approaches to International Law, the article suggests that corporate prosecutions, where appropriate, may have a redeeming effect upon the esteem in which some constituent audiences hold international criminal law, as a system of global justice. The articles thesis is then qualified by cautionary thoughts on the redemptive potential of corporate prosecutions.

Prosecuting Corporations for International Crimes: The Role for Domestic Criminal Law

This chapter aims to undertake an introductory exploration of some of the issues that arise from the introduction of domestic international crimes laws as a result of domestic implementation of the Rome Statute of the International Criminal Court and their potential in relation to corporate crime. Section I considers the growing trend toward extrajudicial jurisdiction over legal persons and, in particular, the impact of the domestic implementation of the Rome Statute on avenues for corporate criminal accountability. As the author is most familiar with the Australian jurisdiction, the Australian example is given throughout the chapter as an example of the trend. Section II then considers some resistances to the potential application of the new domestic international crimes laws in relation to corporate activity. This section considers the individualist tradition in criminal law, the demands regarding territoriality and predictability under doctrinal international law, and the possible arguments against extraterritorial criminal prosecutions from the perspective of foreign relations. The chapter concludes with a comment on a way forward in light of these resistances.

The United Nations and Human Rights

In this chapter, we analyse the three elements of the United Nations (UN) role in international human rights law: standard-setting, the main UN human rights institutions, and the vexed question of enforcement.