A significant factor in the growth of national laws relevant to the global activ- ities of corporations is the increasing number of international and regional agreements relating to transnational crimes17with provision for the liability of legal persons. Examples exist in relation to bribery,18terrorism,19corruption,20 the environment,21trafficking in human beings,22and the sexual exploitation of children.23These instruments require states parties or members to provide for the liability of legal persons within their national legal systems for certain crimes, and additionally they either permit or mandate the establishment of extraterritorial jurisdiction over the relevant corporate behavior.24 Although, in general, these instruments do not mandate the imposition of corporatecrim- inalliability and leave it instead to states to determine the most appropriate type of liability to impose,25 there is at least one example where corporate
17The term “transnational crimes” is used to denote crimes with actual or potential trans-border effects. See Robert Cryer et al.,An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press,2007),3.
18See, for example,OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,opened for signature December17,1997,37ILM1, arts2, 3(2) and4(entered into force February15,1999) (“OECD Bribery Convention”).
19International Convention for the Suppression of the Financing of Terrorism,opened for signa- ture December9,1999,39ILM270, arts5and7(entered into force April10,2002);Council Framework Decision of 13 June 2002 on Combating Terrorism[2002] OJ L164/3, arts7,8, and9.
20United Nations Convention Against Corruption, opened for signature October31,2003, arts26 and42(entered into force December14,2005);Joint Action of 22 December 1998 adopted by the Council on the Basis of Article K.3 of the Treaty on European Union, on Corruption in the Private Sector[1998] OJ L358/2, arts1,5,6, and7;Criminal Law Convention on Corruption, opened for signature January27,1999, CETS no173, arts1(d),17,18, and19(2) (entered into force July1,2002);Inter-American Convention Against Corruption of 19 March 1996,opened for signature March29,1996, art VIII (entered into force June3,1997).
21Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal,opened for signature March22,1989,28ILM649, arts2(14) and9(entered into force May5,1992);Council Framework Decision of 27 January 2003 on Protection of the Environment through Criminal Law[2003] OJ L29/55, arts6,7, and8.
22Council Framework Decision of 19 July 2002 on Trafficking in Human Beings[2002] OJ L203/1, arts4,5, and6.
23Council Framework Decision of 22 December 2003 on Combating the Sexual Exploitation of Children and Child Pornography[2004] OJ L13/44, arts1(d),6,7, and8.
24Olivier De Schutter,Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations,Background Paper (December2006),2–6.
25In this way, although demanding the establishment of national liability regimes, most of these instruments “do not criminalize corporate conduct in the same way that they demand a recognition of the criminal responsibility of the individual.” See Andrew Clapham,Human Rights Obligations of Non-State Actors(Oxford: Oxford University Press,2006),251.
Prosecuting Corporations for International Crimes 113 criminal liability is required if the state party recognizes such a principle domestically.26
Particularly instrumental in addressing international crimes is the recent spate of national laws implementing the Rome Statute. The Rome Statute is one of the most significant achievements in the development of modern international criminal law, as it establishes the first permanent international criminal court for adjudicating violations of codified international crimes.
Despite the reasonable progress of a proposal to include private corporations in the jurisdiction of the ICC,27the proposal was not adopted and the Court is limited to hearing matters against natural persons only.28Also, unlike the instruments referred to earlier in this chapter that require states to take specific steps in their domestic laws, the Rome Statute does not explicitly oblige states parties to introduce domestic law criminalizing the conduct proscribed by the Rome Statute.29 Despite these features, the Rome Statute and the existence of the ICC seem to be having an impact, at least on paper, on the availability of national laws applicable to legal persons in their extraterritorial operations for conduct amounting to the commission of, or complicity in, Rome Statute crimes. In a recent survey of sixteen countries that, among other things, sought to assess the liability status of corporations and other legal persons under national statutes governing international crimes, Fafo reports that Australia, Belgium, Canada, the Netherlands, the United Kingdom, France, Norway, India, Japan, and the United States have all domestically enacted some or all of the international crimes of the Rome Statute as applicable to legal persons and with varying degrees of extraterritorial reach: some on the basis of the
26OECD Bribery Convention,opened for signature December17,1997,37ILM1, arts2and3(2) (entered into force February15,1999).
27In the final draft of the proposal regarding legal persons, the provision was directed at juridical persons, defined as “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 organization registered, and acting under the national law of a State as a non-profit organization.”Working Paper on Article 23, Paragraphs 5 and 6,UN Doc. A/CONF.183/C.1/WGGP/L.5/Rev.2(July3,1998) (footnote omitted). For a summary of the progress of this proposal, see Andrew Clapham, “The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court,” in Menno T. Kamminga and Saman Zia-Zarifi (eds.),Liability of Multinational Corporations Under International Law(The Hague: Kluwer Law,2000),139, 143–60.
28Article25of the Rome Statute.
29Alain Pellet, “Entry into Force and Amendment of the Statute” in Antonio Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol.1(Oxford: Oxford University Press,2002)145,152–3. One exception is the obligation that States parties adapt their domestic laws to be capable of implementing the cooperation obligations set out in Part9of the Rome Statute: Ibid.152.
114 Joanna Kyriakakis nationality of the offender and/or the victim and some on the principle of universality.30This trend might be attributed to a number of factors.
First, the Statute’s preamble indicates an expectation that national laws and, in turn, national practice will be increasingly applied to address international crimes. It states that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” and that the most serious international crimes “must not go unpunished and . . . their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.”31
Second, and most importantly, the complementarity regime of the Rome Statute sets up a situation in which states may be required to forfeit offenders to the ICC if they are incapable of prosecuting a case under national law. This complementarity scheme has created a powerful incentive for states to ensure their legal competence for international crimes as defined in the Rome Statute.
Briefly, the complementarity regime of the Court operates so that, in cases in which both the ICC and national authorities wish to take action in relation to a particular case, the national jurisdiction shall have precedence to do so, unless the ICC determines that the state is unwilling or unable to proceed genuinely with the case.32There are a number of commentators who argue that the inability criterion for allowing ICC jurisdiction over a given case would encompass situations in which a state is unable to prosecute a matter because of a lack of sufficient national penal legislation covering the crimesor the accused in question.33On the latter, Cassese, for example, argues that an inability to
30Coordinated for Fafo by A. Ramasastry and R. C. Thomas,Commerce, Crime and Conflict.
Legal Remedies for Private Sector Liability for Grave Breaches of International Law. A Survey of Sixteen Countries(2006),15–16,30.
31Preamble of the Rome Statute. 32Article17of the Rome Statute.
33See, for example, Timothy L. H. McCormack and Katherine L. Doherty, “Complementarity as a Catalyst for Comprehensive Domestic Penal Legislation,”5University of California, Davis Journal of International Law and Policy(1999),147,152; and Antonio Cassese,International Criminal Law(Oxford: Oxford University Press,2003),352. But see Michael A. Newton,
“Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court,”167Military Law Review(2001),20,70–2(criticizing potential ICC practice leading to a demand for the strict duplication of the substantive crimes in national laws for the purpose of admissibility determinations). An alternative argument leading to a similar outcome is made by Broomhall, who argues that domestic legislative incompetence over a category of defendant would entitle ICC adjudication of a case as no action would have been taken by the state at all and hence the admissibility question would simply not arise. Bruce Broomhall,International Justice and the International Criminal Court:
Between Sovereignty and the Rule of Law(Oxford: Oxford University Press,2003),89–91. For a discussion of these arguments, see Joanna Kyriakakis, “Corporations and the International Criminal Court: The Complementarity Objection Stripped Bare,”19Criminal Law Forum (2008),115,125–9.
Prosecuting Corporations for International Crimes 115 act includes cases in which the national court is “unable to try a person not because of a collapse or malfunctioning of the judicial system, but on account of legislative impediments, such as an amnesty law, or a statute of limitations, making it impossible for the national judge to commence proceedings against the suspect or the accused.”34State practice since the coming into effect of the Rome Statute has certainly evidenced the view, at least on the part of a number of states, that it will be necessary to enact sufficient domestic legislation to fully avail them of the Court’s complementarity regime.35
Finally, despite the ICC’s lack of jurisdictional competence over corpo- rate defendants, many domestic legal systems, particularly common law states, eschew any distinction on policy grounds between natural and legal persons.
As a result, some states have gone a step further than the Treaty, by includ- ing corporations within the scope of their international crimes laws. Today, even numerous civil law countries, traditionally the most reluctant to recog- nize the possibility of corporate criminal liability, have introduced corporate criminal liability schemes,36 creating the potential for similar extensions of domestic criminal law over international crimes despite forum limitations at the international level.
The Australian Example
Australia is a good example of these influencing factors. In June2002, Australia enacted the offenses of genocide, crimes against humanity, and war crimes
34Cassese, above n33,352.
35Implementing legislation has been deemed necessary by a number of states as most did not previously provide for the offenses contained in the Rome Statute in their national laws: M. Cherif Bassiouni, The Legislative History of the International Criminal Court:
Introduction, Analysis and Integrated Text, Vol.1(Ardsley, Transnational Publishers,2005), 188. See also Jann K. Kleffner, “The Impact of Complementarity on National Implemen- tation of Substantive International Criminal Law,”1Journal of International Criminal Jus- tice(2003),86,88. For an overview of the status of implementation of the Rome Statute crimes, see the database of theCoalition for the International Criminal Court,available at http://www.iccnow.org/?mod=romeimplementation (accessed April28,2008).
36There have been numerous comparative works on this topic in recent years. See, e.g., Hans de Doelder and Klaus Tiedemann (eds.),Criminal Liability of Corporations, XIVth International Congress of Comparative Law(The Hague: Kluwer Law International,1996); Albin Eser, Gunter Heine, and Barbara Huber (eds.),Criminal Responsibility of Legal and Collective Entities(Freiburg im Breisgau, Edition luscrim,1999); Gunter Heine, “New Developments in Corporate Criminal Liability in Europe: Can Europeans Learn from the American Experience- or Vice Versa?”St. Louis-Warsaw Transatlantic Law Journal(1998),173–91; Sara Sun Beale and Adam G. Safwat, “What Developments in Western Europe Tell Us About American Critiques of Corporate Criminal Liability,”8Buffalo Criminal Law Review(2004–2005),89, 105–36; Allens Arthur Robinson,Corporate Culture as a Basis for the Criminal Liability of Corporations(February2008).
116 Joanna Kyriakakis into its federal Criminal Code,37offenses it described as equivalent to those within the scope of the ICC’s jurisdiction. The Australian government clearly expressed that the purpose of these new crimes was to create as offenses against Australian criminal law the offenses over which the ICC has jurisdiction, so that Australia will be in a position to take full advantage of the principle of complementarity.38
As a result of the enactment of the international crimes within the con- text of Australia’s federal Criminal Code, criminal responsibility for such offenses prima facie extends to corporations as well as natural persons, because the principle that all Commonwealth offenses should apply equally to both corporate bodies and natural persons is an express presumption within the Code.39 Indeed, that was a founding principle in the development of the Code,40which came about as a result of a national project in the early1990s to codify federal criminal law and to provide a national model to the Australian States and Territories for the future direction of their criminal laws.41 The general principles contained in the Code were therefore a result of expert work and extensive consultation, and were to represent best-practice criminal law provisions.
Furthermore, the jurisdictional scope of the Australian offenses is particu- larly broad: Anyone, anywhere, regardless of citizenship or residence, can be tried by competent Australian courts for conduct amounting to an Australian international crime wherever in the world it is committed and without the availability of a foreign law defense.42The scope of the jurisdiction that attaches to the offenses therefore reflects the universality principle under international law (and also encompasses any claim involving some nexus to Australia).
Despite the enactment of laws such as the Australian international crimes laws that have the potential to address the behavior not only of individuals but also of corporations, there are various factors that weigh against the use of the criminal law over corporations and, in particular, if the conduct has taken
37The offenses were inserted into theCriminal Code 1995(Cth.) (Aus.) by theInternational Criminal Court (Consequential Amendments) Act 2002(Cth.) (Aus.), which was passed by the Senate on June27,2002.
38Commonwealth,Parliamentary Debates,House of Representatives, June25,2002,4326(A-G.
Williams,2nd reading speech).
39Section12.1of theCriminal Code 1995(Cth.)(Aus.).
40The application of the Criminal Code to corporations in the same way as it applies to individuals has been described as the “ . . . most fundamental of the principles governing corporate criminal liability”: Cth. Attorney-General’s Dept. and Aus. Institute of Judicial Administration (AIJA), The Commonwealth Criminal Code: A Guide for Practitioners(2002),297.
41For background to the Criminal Code’s initial development, see M.R. Goode, “Constructing Criminal Law Reform and the Model Criminal Code,”26Criminal Law Journal (2002), 152–66.
42Sections15.4and268.117(1) of theCriminal Code 1995(Cth.) (Aus.).
Prosecuting Corporations for International Crimes 117 place outside of the territory of the prosecuting state. Despite these concerns, there are sound arguments in favor of the increased application of domestic laws in relation to corporate involvement in international crime, primarily stemming from the severity of the conduct that such offenses seek to proscribe and the important normative or declaratory function of criminal law.