When does a regulator pay costs? The Court of Appeal has spoken
Last week, in a move that attracted international attention, (see here and here also) the International Human Rights Clinic at Stanford Law School and Global Legal Action Network (GLAN) asked the Office of the Prosecutor of the International Criminal Court to commence an investigation into public officials, in particular Australian public officials, and corporate actors from three named companies that it claimed may have committed and be continuing to commit the crimes against humanity of unlawful imprisonment, torture, deportation, persecution and other inhumane acts. The communique alleges both direct corporate perpetration of the crimes and corporate complicity in the planning and carrying out of said crimes in continuance of Australia’s immigration policies by individuals.
The communique outlines how privatized detention camps on Manus Island and on Nauru entail indefinite detention in inhuman conditions, often including physical and sexual abuse of both adults and children. It details the appalling conditions of detention, extensive physical abuse, sexual violence, inadequate access to food, water and medical treatment and the extensive mental suffering of detainees, including children. Highlighting the risks inherent with initiatives between private and public organisations the communique states that “the collaboration between public and private actors is an important area of modern systematic criminality that the Prosecutor should investigate and that, … accentuates the gravity of the situation at hand.”
The GLAN communique is the latest in a number of referrals relating to the complicity of corporations in human rights abuses said to constitute war crimes in recent years. In 2014 there were two high-profile referrals, one against the CEO of Chevron relating to the alleged discharge of billions of gallons of toxic waste into the rainforest in Ecuador and the second against representatives of the Cambodian Government and government-connected businesses for alleged widespread and systematic land grabbing through threats, violence, forcible imprisonment, murder and forcible relocation.
Whilst the ICC only has jurisdiction over “natural persons” and therefore not over corporations themselves, the Court does have jurisdiction over individuals who may be within, or acting on behalf, of corporations. The Court’s jurisdiction over this group of persons is being tested in these referrals. To date there is in fact only one example of a corporate actor being charged and standing trial before the ICC for actions that he took in his corporate role. In 2013 Joseph Arap Sang, stood trial at the ICC for crimes against humanity allegedly committed during the post-election violence in Kenya. It was alleged that as a senior executive and presenter of Kass FM radio, he had placed his show at the disposal of the Orange Democratic Movement to target opposition supporters; fan violence by spreading hate messages; and broadcast fake news to inflame violence. The case was terminated in April 2016 following submissions of no case to answer by the defence.
Despite this fairly inauspicious start for this limb of the ICC’s jurisdiction, corporations would be well advised to pay heed to recent calls from high-profile organisations, amongst them the United Nations and the International Commission of Jurists, to strengthen mechanisms designed to deal with the liability, including the international criminal liability, of corporations for human rights abuses. Given the statement by the ICC prosecutor a few months ago that the Court is looking to actively prioritise cases involving the kind of harm traditionally linked to corporations such as the “destruction of the environment, and illegal exploitation of natural resources or the illegal dispossession of land” it is to be expected that there will only be more referrals relating to corporate behaviour abroad. Indeed, national legislation is increasingly recognising the responsibilities companies have in this regard. Please see here for our blog on the importance of ensuring slavery statements produced under the Modern Slavery Act 2015 are comprehensive in order to avoid adverse publicity and decrease the likelihood of criminal liability arising from an MSA2015 investigation and / or prosecution.
If you would like to read our other Extradition and International Crime blogs, please visit our webpage. Or if you would like further information regarding the work of our Criminal Litigation team, please visit this webpage.
This blog was co-authored by Sophia Kerridge, Paralegal in Criminal Litigation.
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