Corporations in Line of Fire
Multinational corporations, maligned on a number of fronts, may have something new to worry about: the possibility of prosecutions for war crimes.
That was the message conveyed recently by Luis Moreno Ocampo, chief prosecutor of the International Criminal Court.
Meeting with a select group of reporters in September during the annual meeting of the International Bar Association in San Francisco, Ocampo noted that businesspeople could be involved in many criminal activities that fall under the ICC’s jurisdiction. Corporate officials who participate in those activities may be subject to prosecution by the court, said Ocampo, an Argentinian lawyer who took office in June.
In a speech at the meeting, Ocampo said corporations can play an important role in bringing stability to a region, as well as eliminating conditions that might foster military conflicts giving rise to war crimes and related violations.
But Ocampo also suggested that it is possible for corporations–either directly or indirectly–to facilitate conduct of government troops or insurgent forces that leads to violations of international law over which the ICC has jurisdiction. Such violations include genocide, crimes against humanity and related violations of international human rights laws. For example, Ocampo cited the situation in the Congo, where his office has started a preliminary study into possible atrocities stemming from a long-running civil war. If, for instance, companies that are engaged in trade of natural resources from the Congo feed money into rebel forces or the government that allows them to continue the fighting, then it is possible that officials of those companies could be prosecuted, Ocampo suggested.
He cited recent United Nations reports that companies based in 25 countries, including some from the United States, had connections with illegal exports of natural resources, and thus may have funded groups suspected of committing war crimes.
On the other hand, said Ocampo, corporations could bolster peace efforts in troubled nations. In the Congo, for example, as many as 10,000 children are fighting as soldiers, he said. It is not enough that their leaders be prosecuted and jailed; someone needs to educate those children, rehabilitate them and offer them jobs. Corporations can help fill that role, he said.
“Even if we succeed” in the Congo, Ocampo said, “even if I do my job, it will not be enough.”
Expressions of Skepticism
ICC prosecutions are subject to limits, however. For instance, the court is empowered to try only individuals. As a result, the court might prosecute officials of corporations but not the companies themselves. The court’s jurisdiction also is limited to incidents that occurred after it went into official existence in April 2002.
The court may conduct prosecutions of individuals for crimes that occurred in a country that has ratified the court or were allegedly carried out by nationals of a ratifying country. The U.N. Security Council also may refer cases to the court, and the prosecutor may conduct investigations on the basis of information communicated by states or individuals. The ICC was created under an international statute negotiated in 1998 in Rome. Since then, 92 countries, including most European nations and other U.S. allies, have ratified it. The United States has opposed the ICC, claiming that the court’s jurisdiction is too broad and might extend to members of the U.S. military.
Some participants in the bar meeting were skeptical of Ocampo’s position. Michael Caplan, a London attorney, suggested that imposing liability on corporate officials for war crimes reflects a wider trend. “We live in a blame culture,” observed Caplan at a program on corporate crime. When something bad happens, “We want to blame someone. Preferably, we want to blame a corporation.”