In 2014, a communication detailing the commission of crimes against humanity in Cambodia was filed before the International Criminal Court. It noted that the State apparatus and other private businesses in Cambodia were complicit in appropriating land belonging to indigenous communities. Resistance by the affected civilian population was met with such repressive measures that it resulted in a request for invoking the jurisdiction of the International Criminal Court. The year 2017 saw another communiqué urging the Office of the Prosecutor to investigate crimes against humanity perpetrated in Australia’s offshore detention facilities. Having entrusted the responsibility of running detention facilities in the Manus and Nauru Islands to private corporations, several incidents of refugees being subject to sexual abuse and inhumane treatment began to surface. Though the increasing involvement of corporations in proscribed acts is a cause of concern, the jurisdiction of the International Criminal Court cannot be extended to legal persons under the existing framework. This article, therefore, is an attempt to understand the possibility of treating corporations as unindicted co-perpetrators while ensuring fidelity to the law.
The concept of unindicted co-perpetrator
A careful analysis of the term ‘unindicted co-perpetrator’ is essential to understand it. Article 25(3)(a) of the Rome Statute imposes criminal responsibility on an individual who commits a crime jointly with another. The International Criminal Court has held that the provision is in fact an embodiment of the concept of co-perpetration. The prefix ‘unindicted’ implies that the guilt of a perpetrator, who jointly committed a crime, is not determined through the judicial process. As distinguished from an accused, such a perpetrator is named in an indictment only for procedural convenience. In other words, the judicial process involves not only admitting evidence concerning the unindicted co-perpetrator but also arriving at factual findings.
In the case of The Prosecutor v Salim Jamil Ayyash, the Special Tribunal for Lebanon referred to the Nuremberg and Tokyo trials to re-iterate the practice of naming individuals as unindicted co-perpetrators. Identifying deceased individuals, alleged to have been involved in crimes, as unindicted co-perpetrators has been recognised as a fundamental principle of international criminal law. Accordingly, the Special Tribunal for Lebanon permitted an amendment to the indictment, thereby naming one of the accused as an unindicted co-perpetrator upon his death.
It is important to note that the practice of identifying unindicted co-perpetrators is neither exclusive to specialised criminal tribunals nor limited to deceased individuals. The International Criminal Court, in the recent case of The Prosecutor v Jean Pierre Bemba Gombo, named one of the individuals who acted in concert with the accused as an unindicted co-perpetrator. Due to inadequate evidence, the Office of the Prosecutor expressed its inability to charge the individual as an accused before the International Criminal Court.
Arguments in favour of treating corporations as unindicted co-perpetrators
The Rome Statute under Article 25(1) expressly states that the International Criminal Court shall exercise its jurisdiction over natural persons. Treating corporations as unindicted co-perpetrators would mean that the International Criminal Court would have to walk a tightrope between discharging its truth telling function and respecting its well-defined jurisdictional mandate.
The specialised tribunal in the Ayyash case confirmed that evidence against the unindicted co-perpetrator is admitted only to be used against the accused. Further, the Bemba case established that inadequate evidence against an unindicted co-perpetrator does not impede the International Criminal Court from admitting it against the accused. While the practice does not entail legal consequences for the unindicted co-perpetrator, it surely tightens the noose around the accused. In the absence of a judicial determination of guilt, the courts cannot be said to exercise jurisdiction over the unindicted co-perpetrator.
In The Prosecutor v Alfred Musema, the director of a tea factory was held liable as a civilian superior under Article 6 of the Statute for the International Criminal Tribunal for Rwanda. Article 28(b) of the Rome Statute is in essence analogous to Article 6 of the Statute. Civilian superior responsibility as mentioned under Article 28(b) of the Rome Statute would leave no latitude for the top brass of a corporation to escape legal consequences of the judicial proceedings. However, it is equally true that the imposition of liability rests on compelling evidence produced before the International Criminal Court. Treating corporations as unindicted co-perpetrators implies that evidence adduced against the corporation could be admitted to inculpate the executive officers of the corporation. Consequently, this would intensify the crackdown on impunity enjoyed by the executive officers of a corporation without exercising jurisdiction over legal persons-corporations in this case. Dismissing the extension of the practice as a futile exercise would render the resolution to punish ‘most serious crimes of concern to the international community’ infirm.
Arguments against treating corporations as unindicted co-perpetrators
At this point, it is important to verify whether treating corporations as unindicted co-perpetrators would amount to transgressing the limits of Article 25(1) of the Rome Statute.
Article 32 of the Vienna Convention on the Law of Treaties states that the preparatory documents of a treaty may be referred to in order to confirm the ordinary meaning of the provision. A reading of the preparatory works reveals that a proposal to include legal persons within the International Criminal Court’s jurisdiction was not taken up. In his commentary on the Rome Statute, Professor Kai Ambos observes that legal persons have been excluded from the ambit of the International Criminal Court’s jurisdiction to prevent issues of complementarity and admissibility of evidence from affecting the progression of judicial proceedings.
The noted legal scholar, Mirjan Damaška opines that absent any recourse to legal remedy, an unindicted co-perpetrator would be unable to further challenge the findings of the judicial body. Furthermore, he states that interests of an unindicted co-perpetrator and the accused need not necessarily coincide. In such judicial proceedings, the unindicted co-perpetrator, who is not guaranteed independent legal representation, would be disempowered from contesting adverse findings. This would compel unindicted co-perpetrators to undergo a de facto trial in part. Arguably, the treatment of corporations as unindicted co-perpetrators could mean that the practice would run contrary to the principle of quando aliquid prohibetur, fieri ex directo prohibetur et per obliquum, which states that when anything is prohibited directly it is also prohibited indirectly. The identification of corporations as unindicted co-perpetrators before the International Criminal Court would result in an overreach at exercising jurisdiction over corporations without being empowered by the Rome Statute to do so.
Treating corporations as unindicted co-perpetrators would result in streamlining efforts towards the introduction of corporate criminal liability under international criminal law. Judicial propriety warrants that the end shall be achieved without diverging from well-established legal principles. Since findings related to the existence of co-perpetration are not equivalent to imposing criminal responsibility, the rights guaranteed to an accused, in particular the right to represent one’s interest and the presumption of innocence, cannot be extended to an unindicted co-perpetrator. The International Criminal Court’s decision to either acquit or convict the executive officers of a corporation would not bind the corporation. As a result, the International Criminal Court cannot be said to exercise jurisdiction over the corporations.
It is of utmost importance that the International Criminal Court abandons its reticence and interprets the concept of unindicted co-perpetrators in detail to lend further clarity. The International Criminal Court understandably is hamstrung by certain limitations and the opportunity to interpret legal provisions hinges on the factual matrix of cases brought before it. The establishment of an international consensus to extend the jurisdiction of the International Criminal Court to include legal persons would solve the conundrum. Article 121 of the Rome Statute states that the text of a proposed amendment submitted by a State Party must be put to vote. However, the lack of political will, absence of provisions embodying corporate criminal liability in certain domestic legislations and fractured voting patterns could thwart the entire process of extending the jurisdiction of the International Criminal Court. Nevertheless, the successful incorporation of the crime of aggression within the Rome Statute serves as reference to allay concerns about the introduction of prospective amendments.