ASSESSMENT 3 LONG ESSAY ON THE INTERNATIONAL CRIMINAL COURT’S POWER TO
PROSECUTE INDIVIDUALS FOR CORPORATE CRIMES
Importance of corporate accountability
Corporate accountability is one of the actionable areas that involve investigation of business or corporate entity’s operational activities and business areas and then holding them accountable for any sorts of mistakes that they have committed. It is the overall, the company’s corporate activities, social responsibilities, considers their performances and all of their non-financial areas. The aspect of corporate responsibility also holds the corporate entity not only to their shareholders but as well as their stakeholders such as the employees and the community members[1]. According to the corporate accountability reports, it is the responsibilities of the corporate entities to publish their own corporate accountability report, something that would consider covering the areas/demands that the corporate entity is able to satisfy for their stakeholders and shareholders. The business conducted by the corporate companies are to be held accountable according to the corporate accountability, especially the actions that are coming out as a result of the business activities and its overall impact on the society and as well as the environment. In terms of the investors and the shareholders, the aspect of ethical investing is another relevant area that the corporate accountability takes care of. Public-traded companies in the areas of the non-financial areas, their performance such as the social responsibilities, business sustainability, CSR managements, and also their tax and its overall implications is covered by the corporate accountability[2]. Apart from making profits for the shareholders, the company is to be held accountable for their actions against their employees, their community members and as well as style society and environments. Corporate responsibilities and corporate accountabilities, although often used interchangeably are distinguished certain areas.
Corporate responsibilities generally promote the ideas of the corporate entity’s responsibilities beyond generating profits for their shareholders, and those responsibilities are mainly dedicated for their community members, employees, consumers or service users, societies and the environments[3]. These responsibilities generally involve the duties that would refrain term from any sorts of negative actions that could possibly impact the environment. The corporate entity’s positive duty to protect the society and the environment while protecting individuals and communities, protecting the rights of the workers, or the communities, ensuring there is no sense of manipulation in the actions of tax paying, ethical investments and even bribery[4]. These responsibilities under corporate responsibility indicates the voluntary approaches whereas the corporate accountability refers to the confrontational and strategic impositions exerted by the social and political or even legal actors, such as the ICC (International Criminal Court). In order to enforce social orders, these actors generally adopt a range of strategies to enforce social standards that are not necessarily limited to mobilizing legal mechanics. Based on the industry, therefore and their innate standards, the corporate entities generate corporate accountability reports to showcase their compliance and their ethical business activities. Often times, private organisations also offer services and guidelines to ensure that the companies and their performances are duly tracked and their accountability and business practices are legally judged[5].
Possible crimes made by the corporations
Corporate crimes are generally orchestrated by the an organisation, and it could be conducted by an individuals or a group of individuals who are a part of a corporate entity, something that could possibly lead towards the development of further deterioration of the consumers experiences, impact the society and environments and as well as the overall business standards, on a global level. It is however, quite difficult to prosecute the organization, but prosecuting individuals who are solely responsible on behalf of the organization, is something that is followed as a proceeding for the overall aspect of corporate accountability[6]. Corporate criminology suggests that here are a range of corporate crimes that are to be considered to hold that corporate entity accountable, for instance providing falsified information in their annual financial information, or wrong or misleading ideas for in the organisational financial statements, the stock market manipulations, the action of bribery, or conducting bribery by any sorts of public officials, wrong or any kinds of false claims in terms of the advertisements such as the developments with the corporate accountability. Since the very nature of the crimes, in regards of the corporate crimes is often private unlike any sorts of public or street crime, where high level of comprehensions of the finances, stock market actions, trading behaviours and activities, and other additional areas that FBI or other law professionals do not necessarily comprehend. Therefore, the involvements if the ICC is generally considered to be quite comprehensive and substantial in terms of holding the corporate entities for their actions[7].
Use of accounting loopholes and falsified financial statements, corporate entities are able to hid big amounts of debt from their stakeholders, something that not only put the company in danger but as well as the stakeholders[8]. The indictments of the executives are generally the consequent actions that impacted hat are to be taken in the jurisdictional proceedings by the International Criminal Court, finally onto the sentencing. Environmental corporate crime such as the Exxon corporation’s notorious oil spillage in the Alaskan shoreline, something that had impacted the environments and the wildlife to a great extent, crimes like this are often limited to the private space of the corporate entities, unless the impact is severe, it stays within the private space of the organisational entity[9]. Implementation of antitrust and fraudulent activities, such as the overall developments of covering up falling debts and with that the developments of sending false claims that could potentially put the associated organisations in danger. Illegal exportation is one of the essential crimes that could be a possible action that would put a massive impact on both the company, ethical business standards and outlines and also the violation of the corporate social responsibilities. The action of embezzlement is another aspect that does need considerations, something that is to be held accountable and is a frequent crime committed by the giant corporations, where they misappropriate the funds by withholding the assets with the intention of converting them, by one or more individuals to whom the assets were generally entrusted[10].
Potential impacts of corporate crimes
Economic depression is one of the major aspects that is to be considered when it comes to the aspect of corporate crimes. The involvement of the ICC becomes quite interesting and also relevant since the FBI or legal bodies of states or national or even federal areas are unable to hold the corporate accountable for their crimes of international stature[11]. It is the ICC who could possibly along with the consideration of the human rights are able to hold the corporate entities accountable for their corporate crimes. With the inflicting amount of corporate crimes, the aspect of the economic depression, and financial loss Due to the loopholes in the corporate systems, the loss of economy occurs as a result of corporate crimes[12]. The rise in corporate crimes are also severe and it is one of the most impactful crime that could possibly put the entire national or even global economy in jeopardy. With the delay in justice and the jurisdiction process that occurs when it comes to holding corporate accountable is why the increase in corporate crimes are also on an upsurge. The aspect of competitive economy is one of the many reasons why the corporate crimes have been in the existence since the civilisation, and is therefore is considered to be one of the most relevant aspects of the areas[13]. Corporate entities that wield considerable amount of power are generally the ones that perpetrate such crimes and eventually unlike any organised crimes, the people with autonomy and political and economic potency, commit such white-collar crimes and lead to the economic deterioration and unethical business status within the organisational environments or the entire business environments. In the interests of the enterprise or the corporations, the individuals within the organization practice such unethical and illegal activities and that impacts the overall business standards and practice guidelines of the corporate business entities, something that impacts the stakeholders and the shareholders of that company[14].
International arbitration as a civil jurisdiction proceeding
Arbitration and international arbitration are the act of solving any sorts of international disputes between the corporations on a global level. Commercial contracts signed between the enterprises or the corporations generally have an arbitration clause, where settling the contractual disputes using the arbitrations proceedings instead of the court of law. However, considering the core corporate crimes the aspect of signing the arbitrary agreements in the name of victims of that illegal corporate crimes become a difficult choice and that is where the involvement of the ICC becomes much more relevant [15]. The parties involved in the arbitration proves is often possessing unequal power and the impositions of the conditions by the corporations could very easily be executed. It is also important to note that the contractual agreements or international arbitrations signed between the corporate entities could also contain the immunity from any sorts of criminal proceedings[16]. However, with the involvement of the ICC these criminal proceedings could be conducted as well. But before reaching that point, arbitration agreements allow flexibilities and help design arbitral procedures and also the choice of law and also the acts that are prosecutable. Although, this kind of dispute settlement are often favoured by the corporations and is considered to be a civil way of jurisdiction proceeding, however on failing to do so, the involvement of the ICC becomes much more relevant and extremely crucial for the criminal proceedings[17].
The civil proceedings of the arbitration is often private and therefore is favoured by the giant corporations in terms of the dispute settlements, however with aspect of being unsuccessful to do so, the international criminal court and their involvements would be much more credible for holding corporations accountable for impactful business activities and actions, something that have led to the developments of the negative impacts on the society, environment, the business actions, and the involved stakeholders and shareholders[18]. Where arbitration could be problematic and requires the involvements of the ICC is the full permission of the corporations to continue with their criminal businesses with a complete discretion. Having no sense of arbitrations award, is also why the basic criminal procedure principles are discarded. With that the disposition and the ideology of arbitration and the overall act stand in full contradiction to the principles of corporate accountability and the ideologies behind the international crimes and its criminal proceedings and prosecutions. Therefore, having the allowance on the part of the ICC to prosecute corporate crimes is only relevant[19].
ICC and corporate criminal liability as pertinent jurisdiction
Due to the fact that the national legal system has a very specific manner how they address the corporate crimes and therefore the involvement and providing jurisdictions over legal persons were genuinely controversial and complicated to form a decision about[20]. Considering ICC as the last resort of jurisdiction, meaning when the states have already attempted and failed to prosecute the corporate entities despite the involvement of legal bodies, the ICC would take charge of the jurisdiction process and it would take control over the prosecution. On being unable to perform, the state then generally hands over the responsibilities to the International Criminal Court and allow them to proceed with the jurisdiction process to eventually prosecute the corporate bodies. The Rome Statute, however, excludes ay legal persons from their jurisdiction from their final version and it is to be noted that the inclusion of the legal person would be constrained by the principles of complementarity[21]. The decisions to exclude any legal persons were not unanimous in terms of the legal prosecution, in regards of the any legal crimes. The further development of corporate liability was reinforced by the discussion during the negotiations of including any legal persons in the Roman Statute.
The opportunity, however, arose to include any legal persons in the ICC to eventually prosecute on behalf of the corporate crimes, when the investigations were conducted in the corporations for crimes committed in Democratic Republic of Congo. However, it was later informed that the indictment was not been executed for any of the executives and the overall prosecution had considerable discretion over the choice of affairs to investigate[22]. Article 25 within the Roman Statute do suggest that the prosecution and indictments of the corporate executives, the eventual modifications of the Statute post negotiations to include corporations would potentially provide the most credibly opportune solutions or both the involved victims and as well as the system of international justices. Qualifying crimes and pronounce sanctions become a possibility with the help of the ICC and the aspect of having rights to the victims for any other international criminal tribunal to accord them, as in having them participated in the procedures and acquire reparations with the help of trust funds for the involved victims[23].
UK’s relationship with ICC
The states within the UK and the ICC have prevailing tensions, as well as the other states outside of the UK have issues as well with the overall jurisdiction process that ICC conducts. In the recent times, a number of African states have threatened to have withdrawal from the court[24]. The sanctions imposed by the US officials upon the ICC for conducting open investigations committed during the Afghan war. The support of the UK government is however quite supportive and is extremely consistent. The UK government both financially and as well as practically support the ICC while conducting a campaigning for the election of a UK judge to the ICC judiciary system. The requirement of the positive reformation is however indicated by the UK government in the recent years especially for the ICC to completely fulfil its mandates as it is stated under the Rome Statute[25]. The prosecutor of the ICC also has recently initiated an investigation regarding the fact that if the crimes committed by the UK professionals in Iraq during the war is also another aspect of the states and national relations. The overseas operation bill by the UK government, have also sparked some debates regarding the fact that if the ICC is to conduct any investigations against the UK for the time restrictions that proposed legislations have placed upon crimes that does fall under the Court’s jurisdictions[26].
ICC’s jurisdiction for core crimes and their principle organs
The four principal organs of ICC are the most relevant components of the international crime court. These four principles are the Judicial Divisions, the Presidency, the Office of the Prosecutor, and the Registry[27]. The presidency or the President is the most senior judge that are usually chosen by their peers in the Judicial Division of the of the international criminal court. The senior judge or the Presidency hears the chases before the court. The Office of the Prosecutor conducts the investigations, for all the crimes and every criminal proceeding before the Judicial Division of the international criminal court[28]. The registrar manages all the administrative functions that are relevant for the ICC where the units and the detention units, the headquarters and the public defence office are some of the most effective ways of making sure that the administrative functions are properly taken care of[29]. Corporate criminal liability is something that needs to be prosecuted by the ICC although four of the core crimes by the jurisdiction are war crimes, genocides, crime of aggression and crimes committed against the humanity. With the acknowledgement of the notion of corporate criminal liability for international crimes would be affective and would allow the ICC to collaboratively participate in the prosecution process or proceed the prosecutions process, if the states courts fail to do the same[30].
Jurisdiction process of ICC
In the jurisdiction process of the ICC, in order for a jurisdiction to successfully proceed certain criteria are to be met for the case to proceed. The jurisdictional requirements for the ICC to conduct corporate criminal liability, are subject -matter jurisdictions meaning what kinds of acts constitutes the crimes, and then territorial or personal jurisdiction meaning the areas where the crimes are committed and the individuals who committed the crimes, and finally temporal jurisdictions, suggesting when exactly the crimes were committed. The three possible parties that trigger the prosecution of the ICC are the security council, the state party and the prosecutor[31]. The ex proprio motu[32] of the prosecutor initiate and commence the investigations under the complete requirement of the article 15 of the Rome Statute. On being referred by the State Party, the prosecutor does not require any authorisation of the pre-trial chamber to commence and initiate any sorts of investigations. If there is a reasonable basis to proceed for the prosecutor to initiates the investigations, then they are supposed to be proceeding with the investigations[33]. If the case is admissible or not is mentioned under the Article no 53 under the Rome Statute, as it also further elaborates on the fact that if there is any substantial reasons for the investigations to get proceeded and whether it would potentially serve the interests of justice or not are some of the reasons why the ICC is to be given the power to prosecute the corporate crimes. In the negotiation of the Statute of Rome establishing the ICC, the aspect of holding the corporations accountable for the international corporate crimes have been rejected and only been able to provide individual criminal loyalty[34]. However, with the power of holding corporations accountable by the ICC would elevate the standards of international judiciary system and would potentially reduce the increasing rates of corporate crimes.
Alcadipani, R. and de Oliveira Medeiros, C.R., 2019. When corporations cause harm: A critical view of corporate social irresponsibility and corporate crimes. Journal of Business Ethics, pp.1-13.
Bartels, R., 2018. The Interplay between International Human Rights Law and International Humanitarian Law during International Criminal Trials. Human Rights and International Legal Discourse, 12(1), pp.44-61.
Bernat, I. and Whyte, D., 2019. State‐Corporate Crimes. The Handbook of White‐Collar Crime, pp.127-138.
Betancourt, J.C., 2018. Damages for breach of an international arbitration agreement under English arbitration law. Arbitration International, 34(4), pp.511-532.
Bittle, S. and Hébert, J., 2019. Controlling Corporate Crimes in Times of De‐regulation and Re‐regulation. The Handbook of White‐Collar Crime, pp.484-501.
Campbell, L., 2018. Corporate liability and the criminalisation of failure. Law and Financial Markets Review, 12(2), pp.57-70.
Carboneras, C., Genovesi, P., Vilà, M., Blackburn, T.M., Carrete, M., Clavero, M., D’hondt, B., Orueta, J.F., Gallardo, B., Geraldes, P. and González‐Moreno, P., 2018. A prioritised list of invasive alien species to assist the effective implementation of EU legislation. Journal of Applied Ecology, 55(2), pp.539-547.
Davies, J. and Ollus, N., 2019. Labour exploitation as corporate crime and harm: outsourcing responsibility in food production and cleaning services supply chains. Crime, Law and Social Change, 72(1), pp.87-106.
De Wet, E., 2018. Complicity in violations of human rights and humanitarian law by incumbent governments through direct military assistance on request. International & Comparative Law Quarterly, 67(2), pp.287-313.
Faccia, A., 2020. The needed cooperation between accounting experts and corporate lawyers to challenge tax crimes.
Garrett, B.L., 2018. International corporate prosecutions. Chapter in Comparative Criminal Procedure, Darryl Brown, Jenia Turner, and Bettina Weisse, eds., Oxford U. Press (2018 Forthcoming).
Graham, C. and O’Rourke, B.K., 2019. Cooking a corporation tax controversy: Apple, Ireland and the EU. Critical Discourse Studies, 16(3), pp.298-311.
Hopkins, R., 2018. Catching Wars’ Funders and Profiteers: The Disjointed Web of Corporate Criminal Liability in England and Wales. Available at SSRN 3391320.
King, C. and Lord, N., 2018. Negotiated Justice and corporate crime: the legitimacy of civil recovery orders and deferred prosecution agreements. Springer.
Kyriakakis, J., 2017. Corporations before international criminal courts: Implications for the international criminal justice project. LJIL, 30, p.221.
Lord, N., 2019. Regulating corporate bribery in international business: Anti-corruption in the UK and Germany. Routledge.
Lord, N., Wingerde, K.V. and Campbell, L., 2018. Organising the monies of corporate financial crimes via organisational structures: ostensible legitimacy, effective anonymity, and third-party facilitation. Administrative Sciences, 8(2), p.17.
Masake, P.H., 2019. A critical consideration of the exclusion of corporate criminal liability for the atrocity crimes under the Rome Statute of the International Criminal Court (Doctoral dissertation, Stellenbosch: Stellenbosch University).
Pettibone, P.J., 2019. The Prague Rules on the Efficient Conduct of Proceedings in International Arbitration: Are they an Alternative to the IBA Rules on the Taking of Evidence in International Arbitration?. Asian Dispute Review, 21(1).
Pipan, D.Š., 2018. The contribution of the International Court of Justice to the promotion and protection of Human Rights. In The Judicialization of International Law. Oxford University Press.
Rodenhäuser, T., 2018. Organizing Rebellion: Non-state Armed Groups Under International Humanitarian Law, Human Rights Law, and International Criminal Law. Oxford University Press.
Sassòli, M., 2019. International humanitarian law: Rules, controversies, and solutions to problems arising in warfare. Edward Elgar Publishing.
Shashkova, A., 2019. Corporate misconduct in the view of prospective criminalization. Available at SSRN 3505990.
Tombs, S., 2017. Corporate crime. The Wiley‐Blackwell Encyclopedia of Social Theory, pp.1-3.
Zvobgo, K., 2019. Human rights versus national interests: Shifting US public attitudes on the international criminal court. International Studies Quarterly, 63(4), pp.1065-1078.
[1] De Wet, E., 2018. Complicity in violations of human rights and humanitarian law by incumbent governments through direct military assistance on request. International & Comparative Law Quarterly, 67(2), pp.287-313.
[2] Carboneras, C., Genovesi, P., Vilà, M., Blackburn, T.M., Carrete, M., Clavero, M., D’hondt, B., Orueta, J.F., Gallardo, B., Geraldes, P. and González‐Moreno, P., 2018. A prioritised list of invasive alien species to assist the effective implementation of EU legislation. Journal of Applied Ecology, 55(2), pp.539-547.
[3] Garrett, B.L., 2018. International corporate prosecutions. Chapter in Comparative Criminal Procedure, Darryl Brown, Jenia Turner, and Bettina Weisse, eds., Oxford U. Press (2018 Forthcoming).
[4] Rodenhäuser, T., 2018. Organizing Rebellion: Non-state Armed Groups Under International Humanitarian Law, Human Rights Law, and International Criminal Law. Oxford University Press.
[5] Bartels, R., 2018. The Interplay between International Human Rights Law and International Humanitarian Law during International Criminal Trials. Human Rights and International Legal Discourse, 12(1), pp.44-61.
[6] Garrett, B.L., 2018. International corporate prosecutions. Chapter in Comparative Criminal Procedure, Darryl Brown, Jenia Turner, and Bettina Weisse, eds., Oxford U. Press (2018 Forthcoming).
[7] King, C. and Lord, N., 2018. Negotiated Justice and corporate crime: the legitimacy of civil recovery orders and deferred prosecution agreements. Springer.
[8] Campbell, L., 2018. Corporate liability and the criminalisation of failure. Law and Financial Markets Review, 12(2), pp.57-70.
[9] Lord, N., 2019. Regulating corporate bribery in international business: Anti-corruption in the UK and Germany. Routledge.
[10] De Wet, E., 2018. Complicity in violations of human rights and humanitarian law by incumbent governments through direct military assistance on request. International & Comparative Law Quarterly, 67(2), pp.287-313.
[11] Zvobgo, K., 2019. Human rights versus national interests: Shifting US public attitudes on the international criminal court. International Studies Quarterly, 63(4), pp.1065-1078.
[12] Shashkova, A., 2019. Corporate misconduct in the view of prospective criminalization. Available at SSRN 3505990.
Tombs, S., 2017. Corporate crime. The Wiley‐Blackwell Encyclopedia of Social Theory, pp.1-3.
[13] Sassòli, M., 2019. International humanitarian law: Rules, controversies, and solutions to problems arising in warfare. Edward Elgar Publishing.
[14] Rodenhäuser, T., 2018. Organizing Rebellion: Non-state Armed Groups Under International Humanitarian Law, Human Rights Law, and International Criminal Law. Oxford University Press.
[15] Pipan, D.Š., 2018. The contribution of the International Court of Justice to the promotion and protection of Human Rights. In The Judicialization of International Law. Oxford University Press.
[16] Pettibone, P.J., 2019. The Prague Rules on the Efficient Conduct of Proceedings in International Arbitration: Are they an Alternative to the IBA Rules on the Taking of Evidence in International Arbitration?. Asian Dispute Review, 21(1).
[17] Masake, P.H., 2019. A critical consideration of the exclusion of corporate criminal liability for the atrocity crimes under the Rome Statute of the International Criminal Court (Doctoral dissertation, Stellenbosch: Stellenbosch University).
[18] Lord, N., Wingerde, K.V. and Campbell, L., 2018. Organising the monies of corporate financial crimes via organisational structures: ostensible legitimacy, effective anonymity, and third-party facilitation. Administrative Sciences, 8(2), p.17.
[19] Lord, N., 2019. Regulating corporate bribery in international business: Anti-corruption in the UK and Germany. Routledge.
[20] Kyriakakis, J., 2017. Corporations before international criminal courts: Implications for the international criminal justice project. LJIL, 30, p.221.
[21] King, C. and Lord, N., 2018. Negotiated Justice and corporate crime: the legitimacy of civil recovery orders and deferred prosecution agreements. Springer.
[22] Hopkins, R., 2018. Catching Wars’ Funders and Profiteers: The Disjointed Web of Corporate Criminal Liability in England and Wales. Available at SSRN 3391320.
[23] Graham, C. and O’Rourke, B.K., 2019. Cooking a corporation tax controversy: Apple, Ireland and the EU. Critical Discourse Studies, 16(3), pp.298-311.
[24] Garrett, B.L., 2018. International corporate prosecutions. Chapter in Comparative Criminal Procedure, Darryl Brown, Jenia Turner, and Bettina Weisse, eds., Oxford U. Press (2018 Forthcoming).
[25] Faccia, A., 2020. The needed cooperation between accounting experts and corporate lawyers to challenge tax crimes.
[26] De Wet, E., 2018. Complicity in violations of human rights and humanitarian law by incumbent governments through direct military assistance on request. International & Comparative Law Quarterly, 67(2), pp.287-313.
[27] Davies, J. and Ollus, N., 2019. Labour exploitation as corporate crime and harm: outsourcing responsibility in food production and cleaning services supply chains. Crime, Law and Social Change, 72(1), pp.87-106.
[28] Carboneras, C., Genovesi, P., Vilà, M., Blackburn, T.M., Carrete, M., Clavero, M., D’hondt, B., Orueta, J.F., Gallardo, B., Geraldes, P. and González‐Moreno, P., 2018. A prioritised list of invasive alien species to assist the effective implementation of EU legislation. Journal of Applied Ecology, 55(2), pp.539-547.
[29] Campbell, L., 2018. Corporate liability and the criminalisation of failure. Law and Financial Markets Review, 12(2), pp.57-70.
[30] Bittle, S. and Hébert, J., 2019. Controlling Corporate Crimes in Times of De‐regulation and Re‐regulation. The Handbook of White‐Collar Crime, pp.484-501.
[31] Betancourt, J.C., 2018. Damages for breach of an international arbitration agreement under English arbitration law. Arbitration International, 34(4), pp.511-532.
[32] Bernat, I. and Whyte, D., 2019. State‐Corporate Crimes. The Handbook of White‐Collar Crime, pp.127-138.
[33] Bartels, R., 2018. The Interplay between International Human Rights Law and International Humanitarian Law during International Criminal Trials. Human Rights and International Legal Discourse, 12(1), pp.44-61.
[34] Alcadipani, R. and de Oliveira Medeiros, C.R., 2019. When corporations cause harm: A critical view of corporate social irresponsibility and corporate crimes. Journal of Business Ethics, pp.1-13.
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