Corporations and the International Criminal Court: The complementarity objection stripped bare

Criminal Law Forum

Volumn 19, Issue 1, 2008, Pages 115-151

  Kyriakakis, Joanna ^a  

^a MONASH UNIVERSITY   (Australia)

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EID: 41149180938     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1007/s10609-007-9052-7     Document Type: Conference Paper

References (193)

1. The term initially used during the Rome Conference debates and in draft provisions to denote artificial, as opposed to natural, persons was 'legal person' but this was later substituted by the term 'juridical person' in order to indicate the term might cover illegal, as well as legal, organisations and to avoid any inference regarding the legitimacy of the organisation: Andrew Clapham, The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lesson's from the Rome Conference on an International Criminal Court,in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW 139, 152 (Menno T. Kamminga & Saman Zia-Zarifi eds., 2000). The term legal persons is used through this article to denote different types of collective entities deemed by national law to have legal personality distinct to that of the natural persons of which they are comprised.
2. In the final draft, juridical person was 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 (3 July 1998) (footnote omitted).
3. Explaining the omission, the Chairman of a working group convened to consider and develop the proposal reported that "on the criminal responsibility of juridical persons, all delegations had recognized the great merits of the relevant proposal, but some had felt that it would perhaps be premature to introduce that notion": Summary Records of the Meetings of the Committee as a Whole, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 26th mtg, at 10, UN Doc. A/CONF. 183/C. 1/SR.26 (8 July 1998).
4. Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9 (1998), art. 25 (the ICC Statute).
5. On this issue, Clapham has pointed out that Article 25(3)(a) of the ICC Statute, which provides for the criminal liability of an individual on the basis of having committed a crime "through another person, regardless of whether that person is criminally responsible", may indirectly implicate corporations as it may provide for individual criminal responsibility for committing a crime through the instrumentality of a corporation: Andrew Clapham, The Complexity of International Criminal Law: Looking Beyond Individual Responsibility to the Responsibility of Organizations, Corporations and States, in FROM SOVEREIGN IMPUNITY TO INTERNATIONAL ACCOUNTABILITY 233, 239 (R. Thakur & P. Malcontent eds., 2004).
6. It is interesting to note that comments by the ICC Chief Prosecutor suggest that individual, actors in the business sphere are being considered in ICC investigations: See e.g., William. A. Schabas, War Economies, Economic Actors and International Criminal Law, in PROFITING FROM PEACE: MANAGING THE RESOURCE DIMENSIONS OF CIVIL WAR 425, 425-6 (Karen Ballentine & Heiko Nitzschke eds., 2005).
7. See e.g., Clapham, supra note 1, at 191 (pointing out that a number of objections concerned how to resolve procedural complexities, such as how to serve indictments and upon whom, who would represent the legal person in procedures and how to access corporate assets without infringing third party rights, while none challenged the conceptual premise that legal persons are bound by international criminal law).
8. ICC Statute, supra note 4.
9. ICC Statute, supra note 4, para. 10 of the Preamble and art. 1.
10. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th sess, Supp No 22, at p. 50, UN Doc. A/50/22 (1995) (the Ad Hoc Committee Report) (reporting the suggestion that complementarity "might be regarded not as a principle but as an objective to be achieved").
11. ICC Statute, supra note 4, art. 17.
12. See infra Part I.
13. Developments-International Criminal Law, 114 HARV. L. REV. 1943, 2031 (2004).
14. Christina Chiomenti, Corporations and the International Criminal Court, in TRANSNATIONAL CORPORATIONS AND HUMAN RIGHTS 287, 295 (Olivier De Schutter ed., 2006).
15. Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights 20 BERKELEY J. INTL L. 45, 64 (2002).
16. The procedures for review and amendment of the ICC Statute of a non-institutional nature are set out in Articles 121 and 123 of the ICC Statute, supra note 4.
17. See also, Clapham, supra note 1, at 159-160
18. and Chiomenti, supra note 13, at 291.
19. As Chiomenti points out, any such amendment would only come into effect when accepted by seven-eighths of States parties: Chiomenti, supra note 13, at 219 and 312. It is interesting to note that according to Article 12.1.(6) of the ICC Statute, any state that does not agree to an amendment that becomes effective may withdraw from the Statute with immediate effect. This suggests that broad agreement among state parties for the amendment would be needed, as states opting out of the ICC Statute would be an undesirable outcome.
20. Micaela Frulli, Jurisdiction Ratione Personae, in I THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 527, 532-533 (Antonio Cassese et. al. eds., 2002) (footnotes omitted; emphasis added).
21. NADYA SADAT, THE INTERNATIONAL CRIMINAL COURT AND THE TRANSFORMATION OF INTERNATIONAL LAW: JUSTICE FOR THE NEW MILLENNIUM 194, fn 83 (2002)
22. citing Leila Sadat Wexler, Model Draft Statute for the International Criminal Court Based on the Preparatory Committee's Text to the Diplomatic Conference, Rome, June 15-July 17, 1998 13 NOUVELLE ETUDE PENALES 42.
23. COUNCIL OF EUROPE, "The Implications for Council of Europe Member States of the Ratification of the Rome Statute of the International Criminal Court-Norway: Recommendation S. No. 94 (1999-2000) to the Sorting (Norwegian Parliament), Recommendation from the Standing Committee on the Foreign Affairs Concerning Consent to the Ratification of the Statute of 17 July 1998 of the International Criminal Court ("the Rome Statute"), Proposition to the Sorting No. 24 (1999-2000)" 7 (Strasbourg, 18 October 2001), Consult/ICC (2001) 40 (copy on file with author).
24. Albin Eser, Individual Criminal Responsibility, in I THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 767, 779 (Antonio Cassese et. al. eds, 2002) (footnotes omitted; emphasis added).
25. Kai Ambos, General Principles of Criminal Law in the Rome Statute 10 CRIM L.F. 1, 7 (1999) (emphasis added).
26. See also, K. Ambos, Article 25: Individual Criminal Responsibility, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: OBSERVERS' NOTES: ARTICLE BY ARTICLE 475, 478 (Otto Triffterer ed., 1999) (emphasis added).
27. Ambos' description of the objection has been adopted by KRIANGSAK KITTICHAISAREE in his textbook, I NTERNATIONAL CRIMINAL LAW 234 (2001).
28. William. A. Schabas, General Principles of Criminal Law in the International Criminal Court Statute (Part III) EUR. J. CRIME, CRIM. L. & CRIM. JUST. (1998) 6(4) 84 at 94 (emphasis added).
29. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 299-306 (6th ed. 2003) (setting out the two most established grounds for national exercise of criminal jurisdiction: on the basis of the crime occurring on the state's territory (territorial principle) or on the basis of the nationality of the offender (active personality or nationality principle); and the emerging grounds for the exercise of national criminal jurisdiction: on the basis of the nationality of the victim (passive personality or nationality principle), the protection of vital security interests, territorial integrity or political independence (protective or security principle), or on the basis of the class of crime (universal jurisdiction).
30. Id. at 297. Also featuring in the debate over the proper complementarity balance were the benefits and disadvantages of domestic and international criminal justice systems as a forum for international criminal trials.
31. It should be noted that sometimes the term complementarity as it relates to the ICC Statute has been used in a broad sense, as descriptive of all rules surrounding the relationship between the ICC and national jurisdictions including, for example, those governing the issue of state co-operation with the Court once a matter has been admitted: Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity, 7 MAX PLANCK Y.B. UNITED NATIONS L. 59.1, 592 (2003).
32. For example, the Preparatory Committee defined the term as an expression "to reflect the jurisdictional relationship between the international criminal court and national authorities, including national courts", implying a demanding use of the term to encompass any number of aspects of the relationship between the two authorities: the interplay of authorities involved in the criminal justice apparatus, such as investigative bodies, and co-operation in general in criminal matters, such as transfers of prisoners and enforcement: Immi Tallgren, Completing the "International Criminal Order": The Rhetoric of International Repression and the Notion of Complementarity in the Draft Statute for an International Criminal Court 67 NORDIC J. INTL L. 107, 120 (1998),
33. citing the Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol 1 (Proceedings of the Preparatory Committee during March-April and August 1996), UN GAOR, 55th sess, Supp No 22, at p. 36, UN Doc. A/51/22 (1996) (the PrepCom Report). A narrow, and the more common, use of the term limits it to those rules that govern the substantive and procedural aspects of admissibility: that is, when is a matter to come before the adjudicative function of the ICC (Articles 17 and 20(3)), and how and when is this issue challenged and determined (Articles 18 and 19). For the purpose of examining the complementarity objection it is sufficient to adopt the 'narrow' use of the term, as the complementarity objection refers to this stage of the inter-relationship of national institutions and the ICC.
34. See John T. Holmes, The Principle of Complementarity, in THE INTERNATIONAL CRIMINAL COURT. THE MAKING OF THE ROME STATUTE-I SSUES, NEGOTIATIONS, RESULTS 4.1, 43-73 (Roy S. Lee ed., 1999) (outlining the progress of the complementarity provisions, together with commentary and reflection).
35. See also the Ad Hoc Committee Report, supra note 9, at pp. 6-10
36. and the PrepCom Report, supra note 25, at pp. 36-40.
37. Regarding the significance of finding the right balance on the issue of complementarity in the project toward an international criminal court, see Ad Hoc Committee Report, supra note 9, at p. 6;
38. PrepCom Report, supra note 25, at p. 36;
39. Holmes, supra note 26, at 45 and 74;
40. Bartram S. Brown, Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals, 23 YALE J. INT'L L. 383, 386-8 (1998);
41. Mohamed M. El Zeidy, The Principle of Complementarity: A New Machinery to Implement International Criminal Law, 23 MICH. J. INT'L L. 869, 881 (2002).
42. Benzing, supra note 25, at 593 (quoting various sources; footnotes omitted).
43. On this issue, it is interesting to note the duplication of the general principle in both the Preamble and Article 1 of the ICC Statute. See e.g., Holmes, supra note 26, at 56 (reporting that this duplication occurred on the basis that "many members of the Drafting Committee believed that the principle was so fundamental that it should be restated in Article 1 on the establishment of the Court itself).
44. Holmes, supra note 26, at 51.
45. Id. at 51-52.
46. Id. at 74.
47. BRUCE BROOMHALL, INTERNATIONAL JUSTICE AND THE INTERNATIONAL CRIMINAL COURT: BETWEEN SOVEREIGNTY AND THE RULE OF LAW 89 (2003).
48. Benzing, supra note 25, at 601.
49. BROOMHALL, supra note 32, at 91.
50. See also Benzing, supra note 25, at 617;
51. John T Holmes, Complementarity: National Courts versus the ICC, in I THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 667, 673 (Antonio Cassese et. al. eds., 2002) (making a similar suggestion when he writes, "[a] State unwilling to investigate and prosecute or unable to do so because of armed conflict or other circumstances will not have taken any steps which would meet the criteria set out in Article 17. Therefore, there would be no basis for the Court to declare a case inadmissible" (emphasis added)).
52. Morten Bergsmo, The Jurisdictional Regime of the International Criminal Court (Part II, Articles 11-19), EUR. J. CRIME, CRIM. L. & CRIM. JUST. (1998) 6(4) 29 at 43.
53. See e.g., Benzing, supra note 25, at 601, fn 50 and. 6.1.7;
54. Paolo Benvenuti, Complementarity of the International Criminal Court to National Criminal Jurisdictions, in ESSAYS ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 21, 45 (Flavia Lattanzi & William A. Schabas eds., 1999);
55. J.D. van der Vyver, Personal and Territorial Jurisdiction of the International Criminal Court, 14 EMORY INT'L L. REV. 1, 95-96 (2000);
56. Federica Gioia, Comments on Chapter 3 of Jann Kleffner, in COMPLEMENTARY VIEWS ON COMPLEMENTARITY: PROCEEDINGS OF THE INTERNATIONAL ROUNDTABLE ON THE COMPLEMENTARY NATURE OF THE INTERNATIONAL CRIMINAL COURT, AMSTERDAM, 25/26 JUNE 2004 105, 106-108 (Jan K. Kleffner & Gerben Kor eds., 2006).
57. See also, El Zeidy, supra note 27, at 903 (suggesting something similar when, in his discussion on inability, he states that "the ICC may assert its jurisdiction only when it identifies a gap in State jurisdictions, a gap created by the lack of repression").
58. ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 352 (2003).
59. Timothy L.H. McCormack & Sue Robertson, Jurisdictional Aspects of the Rome Statute for the New International Criminal Court, 23 MELB. U. L. REV. 635, 645 (1999);
60. Timothy L.H. McCormack & Katherine L. Doherty, " Complementarity" as a Catalyst for Comprehensive Domestic Penal Legislation, 5 U.C. DAVIS J. INT'L L. & POL'Y 147, 152 (1999).
61. McCormack & Robertson, supra note 38, at 645;
62. McCormack & Doherty, supra note 38, at 152.
63. See e.g., Benvenuti, supra note 36, at 45 (arguing that whilst the view that a lack of proper implementing legislation might form the basis of a finding of unwillingness or inability is "consistent with the logic sustaining the ICC", at least Article 17(2) "is not that clear").
64. See also, M. CHERIF BASSIOUNI, I THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT: INTRODUCTION, ANALYSIS AND INTEGRATED TEXT 138 (2005) (who, when describing the inability criterion, equates this only with a situation of total or substantial collapse leading to the relevant inability).
65. See e.g., Holmes, supra note 26, at 47-49 and 53-55
66. and El Zeidy, supra note 27, at 902-904 (outlining debates on the inability criterion).
67. WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 86 (2d ed. 2004).
68. ICC Statute, supra note 4, art. 17(3) (emphasis added).
69. See also Benzing, supra note 25, at 614 (noting that unavailability is a separate requirement from collapse).
70. El Zeidy, supra note 27, at 903.
71. See e.g., Gioia, supra note 36, at 107 (describing unavailability as "a situation in which a legal system is theoretically in place and functioning as a whole but incapable of functioning in respect of a given case, due to legal or factual obstacles"; emphasis added).
72. See also Ruth B. Philips, The International Criminal Court Statute: Jurisdiction and Admissibility, 10 CRIM, L.F. 61, 77 (1999).
73. Working Paper on Article 23, Paragraphs 5 and 6, UN Doc. A/CONF.183/C.1/WGGP/L.5/R.ev.2 (3 July 1998).
74. See generally, Clapham, supra note 1, at 150-154.
75. Per Saland, International Criminal Law Principles, in THE INTERNATIONAL CRIMINAL COURT. THE MAKING OF THE ROME STATUTE-ISSUES, NEGOTIATIONS, RESULTS 189, 199 (Roy S. Lee ed., 1999).
76. This kind of an approach would raise many complications, for example, which state should form the basis of an assessment that the criminal liability of the legal person is not domestically recognised? Would this be whichever state is active in relation to the case? How would this be determined in the case of concurrent claims to jurisdiction by more than one state, where one state does recognise the criminal liability of legal persons but the other does not?
77. See e.g., Gioia, supra note 36, at 107 ("[Regarding obstacles of a legal nature, the issue is closely intertwined with the implementation of the Rome Statute").
78. Alain Pellet, Entry into Force and Amendment of the Statute, in I THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 145, 152-153 (Antonio Cassese et. al. eds., 2002).
79. One exception is the obligation that State parties adapt their domestic laws to be capable of implementing the cooperation obligations set out in Part 9 of the ICC Statute: id. at 152.
80. ICC Statute, supra note 4, paras. 6 and 4 of the Preamble.
81. See e.g., Jann K. Kleffner, The Impact of Complementarity on National Implementation of Substantive International Criminal Law 1 J. INTL CRIM, JUST. 86, 88 (2003).
82. See also, THE COALITION FOR THE INTERNATIONAL CRIMINAL COURT, Implementation of the Rome Statute, at http://www.iccnow.org/?mod = romeimplementation (24 April 2007) (providing an overview of the status of national implementation of the ICC Statute crimes).
83. In general, see Saland, supra note 48.
84. Id. at 206-210.
85. See also, Hans-Peter Kaul & Claus Kreb, Jurisdiction and Cooperation in the Statute of the International Criminal Court: Principles and Compromises, 2 Y.B. INT'L HUMANITARIAN L. 143, 143 (1999) (also noting that some of the controversies on penalties arose as a result of differences in national legal cultures).
86. See e.g., Saland, supra note 48, at 198-200 (noting that conspiracy was strongly advocated by some common law countries, but is unknown in some civil law systems and that the provisions on incitement and attempt also raised debate arising from differences in the meaning of terms across languages).
87. Id. at 198.
88. Id. at 190-191.
89. BASSIOUNI, supra note 40, at 188.
90. Gioia, supra note 36, at 107.
91. But see, Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 MIL. L. REV. 20, 70-72 (2001) (criticising potential ICC practice leading to a demand for the strict duplication of the substantive crimes in national laws for the purpose of admissibility determinations).
92. SCHABAS, supra note 42, at 28.
93. He goes on to state: "Nevertheless, while the correspondence with customary international law is close, it is far from, perfect": id. at 28.
94. It should be noted that the ICC Statute stipulates that its provisions are without prejudice to the status of customary international law: ICC Statute, supra note 4, arts. 10 and 22(3).
95. See e.g., BASSIOUNI, supra note 40, at 148.
96. 44 F Supp 2d 289 (SDNY 2003), 308-319. This was a case decided under the US Alien Torts Claims Act 28 USC § 1350, which allows certain US courts jurisdiction to hear actions brought by an alien for torts committed in violation of the law of nations or a treaty of the United States.
97. 28 USC § 1350.
98. SARAH JOSEPH, CORPORATIONS AND TRANSNATIONAL HUMAN RIGHTS LITIGATION 22-25 (2004).
99. Presbyterian Church of Sudan v Talisman Energy 244 F Supp 2d 289 (SDNY 2003), 319 (original emphasis).
100. SCHABAS, supra note 42, 26-66, and in particular 28, 43, 45 and 46-8.
101. See also Antonio Cassese, The Statute of the International Criminal Court: Some Preliminary Reflections, 10 EUR. J. INT'L L.144 (1999).
102. JACKSON NYAMUYA MAOGOTO, STATE SOVEREIGNTY AND INTERNATIONAL CRIMINAL LAW: VERSAILLES TO ROME 1(2003) (noting that, pursuant to its external. authority, a state is entitled to determine the nature of its international obligations).
103. Article 26 states: "The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime": ICC Statute, supra note 4.
104. Saland, supra note 48, at 201.
105. Id.
106. Id. at 202.
107. Id. at 204 (reporting that the general acceptance of this principle occurred "in spite of the repercussions it would have with regard to complementarity").
108. KRISTINA MISKOWIAK, THE INTERNATIONAL CRIMINAL COURT: CONSENT, COMPLEMENTARITY AND COOPERATION 45 (2000) (further noting that the term was used more frequently by states taking a restrictive view of the proper role of the ICC and in doing so being able to avoid declaring the primary bases for their position).
109. Id.
110. See also Tallgren, supra note 25.
111. Tallgren, supra note 25, at 120;
112. MISKOWIAK, supra note 74, at 45.
113. It is interesting to note that the term "complementarity" has its origin in atomic physics, as a principle whereby two descriptions of the observed behaviour of an object, although apparently mutually exclusive of one another, are both required in order to form a proper appreciation of the qualities of the object being investigated: Jan K Kleffner, Complementarity as a Catalyst for Compliance, in COMPLEMENTARY VIEWS ON COMPLEMENTARITY: PROCEEDINGS OF THE INTERNATIONAL ROUNDTABLE ON THE COMPLEMENTARY NATURE OF THE INTERNATIONAL CRIMINAL COURT, AMSTERDAM, 25/26 JUNE 2004 79, 79, fn 1 (Jan K. Kleffner & Gerben Kor eds., 2006). This principle of complementarity is attributed to Danish physicist Niels Bohr.
114. See also ANDREW CLAPHAM, HUMAN RIGHTS OBLIGATIONS OF NON-STATE ACTORS 56 and 565 (2006).
115. Tallgren, supra note 25, at 120;
116. MIOSKOWIAK, supra note 74, at 45.
117. MISKOWIAK, supra note 74, at 45.
118. MACQUARIE DICTIONARY (4th ed. 2005).
119. Ad Hoc Committee Report, supra note 9, at pp. 6-7.
120. See e.g., Benzing, supra note 25, at 592.
121. Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 9(2); Statute of the International Criminal Tribunal for Rwanda, art. 8(2); Statute of the Special Court for Sierra Leone, art. 8(2).
122. See supra text accompanying note 27.
123. ICC Statute, supra note 4, art. 19(1).
124. Albin Eser, Towards an International Criminal Court: Genesis and Main Features of the Rome Statute, 20 U. TASMANIA L.R. 1, 18 (2001) (emphasis added).
125. See also, e.g., El Zeidy, supra note 27, at 930.
126. See e.g., El Zeidy, supra note 27
127. and Tallgren, supra note 25.
128. See also, Cassese, supra note 67, at 158.
129. See e.g., El Zeidy, supra note 27
130. and Tallgren, supra note 25.
131. See also, Benzing, supra note 25, at 600 (stating that "the principle of complementarity has been primarily designed to strike a delicate balance between state sovereignty to exercise jurisdiction and the realisation that, for the effective prevention of such crimes and impunity, the international community has to step in to ensure these objectives and retain its credibility in the pursuance of these aims").
132. Tallgren, supra note 25, at 110.
133. El Zeidy, supra note 27, at 879.
134. Id. at 905.
135. Id. at 897-930.
136. See also, Tallgren, supra note 25, at 124-130 (making a similar point via an analogy of master-servant approaches to the functioning of the complementarity regime).
137. El Zeidy, supra note 27, at 957, fn 357.
138. For an interesting discussion regarding the ambivalent nature of the relationship between the ICCs complementarity regime and sovereignty, see Frederic Megret, Why Would States Want to Join the ICC? A Theoretical Exploration Based on the Legal Nature of Complementarity, in COMPLEMENTARY VIEWS ON COMPLEMENTARITY: PROCEEDINGS OF THE INTERNATIONAL ROUNDTABLEON THE COMPLEMENTARY NATURE OF THE INTERNATIONAL CRIMINAL COURT, AMSTERDAM, 25/26 JUNE 2004 1 (Jan K. Kleffner & Gerben Kor eds., 2006).
139. Tallgren, supra note 25, at 110.
140. ICC Statute, supra note 4, at para. 3 of the Preamble.
141. ICC Statute, supra note 4, at para. 4 of the Preamble.
142. ICC Statute, supra note 4, at para. 5 of the Preamble.
143. For a reference of cases of ongoing concern, see the project of the INTERNATIONAL PEACE ACADEMY & FAFO AIS, Business and International Crimes: Assessing the Liability of Business Entities for Grave Violations of International Law (2004) at http://www.fafo.no/liabilities/index.htm (20 April 2007).
144. See also the BUSINESS AND HUMAN RIGHTS RESOURCE CENTRE website, at http://www.bu.siness- humanrights.org/Home (presenting allegations and responses by companies regarding human rights abuses connected with their business operations) (20 April 2007).
145. Concern regarding the specific risks faced, in the extractive industry has led to the development of a voluntary initiative to help regulate and manage security risks particular to the sector, the Voluntary Principles on Security and Human Rights, at http://www.voluntaryprinciples.org/principles/ index.php (20 April 2007).
146. Summary Records of the Meetings of the Committee as a Whole, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 1st mtg, at 52, UN Doc. A/CONF.183/C1/L.3 (16 June 1998).
147. Clapham, supra note 1, at 148.
148. Id. at 147.
149. Statute of the International Court Must Not Be Retroactive, Say Speakers in the Preparatory Committee, 3, UN Press Release L/2769 (29 March 1996).
150. Stephens, supra note 14, at 54.
151. Id. 60.
152. Sarah Joseph, An Overview of the Human Rights Accountability of Multinational Enterprises, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW 75, 77 (Menno T. Kamminga & Saman Zia-Zarifi eds., 2000);
153. SARAH JOSEPH et. al., THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS AND COMMENTARY 35-38 (2d ed. 2004).
154. See also, General Comment No 31 [80] Nature, of the General Legal Obligation Imposed on State Parties to the Covenant, UN CCPR, HR Comm, 80th sess, at 8, UN Doc. CCPR/C/21/Rev.1/Add.13 (26 May 2004).
155. In some instances this obligation is express: see, e.g., International Covenant on Civil and Political Rights, opened for signature December 16, 1966, arts. 6(1), 17(2) and 20, 999 U.N.T.S. 1.71 (entered into force March 23,1976);
156. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature December 21, 1965, art. 2(d), 660 U.N.T.S. 1.95 (entered into force January 4, 1969);
157. International Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature December 18, 1979, art 2(e), 1249 U.N.T.S. 13 (entered into force September 3, 1981);
158. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, opened for signature December 18, 1.990, art. 16(2) (entered into force July 1, 2003).
159. See e.g., Velasquez-Rodriguez v Honduras, 9 HUM. RTS. L.J. 212, para. 172 (1988) (Inter-Am. C.H.R.);
160. Osman v United Kingdom, Vol. VIII Eur. Ct. H.R. 3125, 3159-3160 (1998);
161. A v United Kingdom, Vol. VI Eur. Ct. H.R. 2692, 2699-2700.
162. See also, Sarah Joseph, Liability of Multinational Corporations: International and Domestic Laws and Procedures, in SOCIAL ECONOMIC RIGHTS JURISPRUDENCE: EMERGING TRENDS IN INTERNATIONAL AND COMPARATIVE LAW Pt. 2 (forthcoming) (discussing international cases where states have been found to have breached their human rights obligations by unduly favouring corporate interests).
163. Joseph, supra note 106, at 78.
164. See e.g., Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443, 461-473 (2001);
165. Olivier De Schutter, The Accountability of Multinationals for Human Rights Violations in European Law, in NON-STATE ACTORS AND HUMAN RIGHTS 227, 230-240 (Philip Alston ed., 2005);
166. Joseph, supra note 106, at 78-80 and 85-87;
167. Sarah Joseph, Taming the Leviathans: Multinational Enterprises and Human Rights, 46(2) NETHERLANDS INTL L.R. 171, 176-181 (1999).
168. For example, Amnesty International UK have reported that a consortium of companies involved in the extraction of oil from the Doba oilfields in southern Chad and its transportation by pipeline to Cameroon's Atlantic coast (crossing substantial territory in both countries) have entered into investment contracts with those states, which include financial penalties on the host states whenever the companies are obstructed or interrupted in their work. There is no caveat in terms of interruptions caused by the legitimate pursuit by the host state of its international human rights obligations or enforcement of its domestic law: AMNESTY.INTERNATIONAL UK, CONTRACTING OUT OF HUMAN RIGHTS: THE CHAD-CAMEROON PIPELINE PROJECT (September 2005).
169. In the case of mining company, Freeport-McMoran Copper and Gold Inc., operating in Papua, Indonesia, a 1991 Contract of Work Between Indonesia and the company's local subsidiary explicitly provides for the flexible application of local laws to the subsidiary's operations on the basis that the Government acknowledges the "added burdens and expenses to be borne by the Company and the additional service to be performed by the Company as a result of the location of its activities in a difficult environment": see ABIGAIL ABRASH, DEVELOPMENT AGGRESSION: OBSERVATIONS ON HUMAN RIGHTS CONDITIONS IN THE PT FREEPORT INDONESIA CONTRACT OF WORK AREAS WITH RECOMMENDATIONS 11 (July 2002).
170. See e.g., De Schutter, supra note 109, at 237-239.
171. For an analytic investigation of the dynamic of the "race to the bottom" phenomena, whereby developing states compete against each other for foreign direct investment through the reduction of local regulation, see Debora Spar & David Yoffie, Multinational Enterprises and the Prospects for Justice, 52 J. INTL AFF. 557 (1999).
172. See e.g., Joseph, supra note 109, at 181;
173. De Schutter, supra note 109, at 235-237.
174. For a discussion of policy justifications for holding home states liable for the conduct of multinationals abroad, see Muthucumaraswamy Sornarajah, Linking State Responsibility for Certain Harms Caused by Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States, in TORTURE AS A TORT 491 (Craig Scott ed., 2001).
175. 28 USC § 1350.
176. Joanna Kyriakakis, Freeport in West Papua: Bringing Corporations to Account for International Human Rights Abuses Under Australian Criminal and Tort Law 31 MONASH U. L.R. 95, 104-114 (2005).
177. Australian Commonwealth, Parliamentary Debates, House of Representatives, 25 June 2002, 4326 (A-G Williams, 2nd reading speech).
178. ANITA RAMASASTRY & ROBERT C. THOMAS, COMMERCE, CRIME & CONFLICT. LEGAL REMEDIES FOR PRIVATE SECTOR LIABILITY FOR GRAVE BREACHES OF I NTERNATIONAL LAW. A SURVEY OF SIXTEEN COUNTRIES 15-16 and 30 (2006).
179. Joseph, supra note 109, at 181.
180. Id. at 184.
181. Summary Records of the Meetings of the Committee as a Whole, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 1st mtg, at 57, UN Doc. A/CONF. 183/C.1/L.3 (16 June 1998).
182. BRENT FISSE & JOHN BRAITHWAITE, CORPORATIONS, CRIME AND ACCOUNTABILITY 31 (1993).
183. Id. at 46.
184. Clapham, supra note 1, at 150-154.
185. FISSE & BRAITHWAITE, supra note 120, at 17-58.
186. Id. at 36-41.
187. Jonathan Clough, Not-so-innocents Abroad: Corporate Criminal Liability for Human Rights Abuses, 11 AUSTRALIAN J. HUM. RTS. 1, 10 (2005).
188. There are also good arguments from the perspective of deterrence and retributive theory for the prosecution of individuals within positions of power in corporations, see for example CELIA WELLS, CORPORATIONS AND CRIMINAL RESPONSIBILITY 160-163 (2d ed 2001).
189. Ratner, supra note 109, at 473 (describing the "economic rationale" for corporate responsibility).
190. See e.g., Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon. An Examination of Forced Labor Cases and their Impact on the Liability of Multinational Corporations, 20 BERKELEY J. INTL L. 91, 96-97 (2002).
191. FISSE & BRAITHWAITE, supra note 120, at 25.
192. Louise Arbour, Will the ICC have an Impact on Universal Jurisdiction? 1 J. INTL CRIM, JUST. 585, 585 (2003).
193. On this issue, see for example Celia Wells and Juanita Elias, Catching the Conscience of the King: Corporate Players on the International Stage, in NON-STATE ACTORS AND HUMAN RIGHTS 141 (Philip Alston ed., 2005).