Corporate Criminal Responsibility for Human Rights Violations: Jurisdiction and Reparations

Abstract

Modern prosecutions at international criminal courts and tribunals have demonstrated that the resources available for reparations and restitution from individuals convicted of core international crimes is grossly insufficient to meet even basic restitutionary needs. Most of the wealth that might exist as a result of international crimes is likely to be in the hands of corporations or other artificial persons who have gained property and income through human rights violations. None of the international criminal courts and tribunals (ICCTs) has adjudicative jurisdiction over artificial persons of any sort, so that any progress on restitution and restorative justice must come through national tribunals. This applies to both core international crimes and the broader category of human rights treaty crimes which are outside the authority of ICCTs. Many obstacles to reparations for human rights violations related to business activities arise from the international and national laws of jurisdiction. Rules of prescriptive, adjudicative, and enforcement jurisdiction combine with substantive rules of criminal law to make adequate reparations for human rights related business crimes difficult to achieve. The Guiding Principles on Business and Human Rights (the “Ruggie Principles”), adopted by the United Nations Human Rights Council, address prevention, monitoring, and remediation of business participation in human rights abuses of all kinds. Application of several of the Principles can help states provide a jurisdictional framework for reparations for business-related human rights violations. There are some signs of progress in recent decades. More states are now willing to exercise criminal jurisdiction over corporations in the past. New human rights treaties require states to hold artificial persons liable for violations, criminally or otherwise. Objective territorial jurisdiction (sometimes called “effects” jurisdiction) is ever more clearly permissible when outside activity directly causes criminal results in states. Finally, the rule against enforcing criminal law judgments across borders is beginning to decline, making the shielding of assets from claims for restitution and restorative justice through criminal proceedings much more difficult. Nonetheless, many obstacles to transnational enforcement of criminal judgments remain. Given trends in the international law of jurisdiction, it may turn out that civil judgments of restitution and reparation will be easier to obtain and enforce than criminal judgments. This is a Report for “Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues,” Section 4 of the XXth Association Internationale de Droit Penal/International Association of Penal Law Congress.