Extending the International Criminal Court's jurisdiction to corporations: overcoming complementarity concerns

Abstract

This article argues that the negative impact that transnational corporations may have on the protection and promotion of international human rights can be improved by extending the International Criminal Court's jurisdiction to corporations.Realising this goal would require that the concerns, including complementarity concerns, expressed by Rome Conference delegates be addressed. This article explores a number of ways to address the complementarity concerns and identifies limitations with those approaches. Given these limitations, if state parties cannot be dissuaded of their complementarity concerns, it is argued that a pragmatic response is to adopt an exception-based approach to including corporations within the ICC's jurisdiction — that is, to extend the ICC's jurisdiction to corporations generally, but specifically exclude corporations registered in state parties that do not recognise corporate criminality for the offences subject of the Rome Statute in their national criminal jurisdictions.While an exception-based approach would have its own difficulties, it would enable the ICC's jurisdiction to be extended to corporations generally — a significant development for the protection of international human rights.