From Lexology via Farmlandgrab:
International Criminal Court to prosecute business and human rights
Herbert Smith Freehills LLP
Lexology | 2 November 2016
In what many NGOs are calling a warning shot to company executives and
investors, the International Criminal Court (ICC) has indicated it will
prioritise cases involving the destruction of the environment, illegal
exploitation of resources and land-grabbing.
Following recent calls for
international tribunals – including the ICC – to investigate corporate
involvement in land-grabbing and environmental destruction committed
during peacetime, the ICC's Office of the Prosecutor published a policy paper outlining its intention to prioritise these cases.
Currently the risk of a company or its executives being prosecuted at
the ICC for these crimes seems remote; there are serious practical and
jurisdictional hurdles to any prosecution actually taking place.
Nonetheless, the reputational risks for a company of being associated
with an investigation into any of the crimes that fall within the ICC's
jurisdiction – genocide, war crimes and crimes against humanity – could
be devastating.
While the ICC has no jurisdiction to prosecute companies, individual
company executives can in principle be investigated in connection with
corporate complicity in widespread environmental destruction or
land-grabbing amounting to a crime against humanity. Such an
investigation (and any resulting prosecution) would, however, face a
number of considerable legal hurdles.
Hurdle 1 – individual criminal responsibility: Where
corporate involvement in land-grabbing, widespread environmental
destruction or illegal exploitation of natural resources amounting to an
international crime is alleged, it must be established that the
relevant executive at that company bears individual criminal
responsibility for that crime. This poses considerable practical and
evidential hurdles, particularly where the alleged corporate involvement
is indirect.
Hurdle 2 – Jurisdiction: the ICC has
a limited personal, geographical and temporal jurisdiction. It can only
exercise jurisdiction over crimes committed after 1 July 2002 by an
individual in the territory of a State Party to the Rome Statute or by
nationals of a State Party. Presently, this excludes countries such as
the USA, China, India and most of South East Asia, and a number of
African states have recently signalled their intention to withdraw from
the Court.
Hurdle 3 – Admissibility: The ICC is
a court of last resort. Even if the relevant company executive is a
national of a State Party, the Prosecutor will only declare a case
admissible if the national courts of that State Party are unwilling or
unable to prosecute the crime themselves.
Caution: the indirect risks for companies
Although the chances of direct investigation or prosecution seem
remote at present, there remain a number of risks for companies in this
area....MORE
