Introduction

The International Criminal Court ("ICC") intends to prioritise the prosecution of cases involving the destruction of the environment, illegal exploitation of resources and land-grabbing, according to a new Policy Paper on Case Selection and Prioritisation published by the ICC's Office of the Prosecutor ("OTP") in September. A number of NGOs declared the announcement to be a "warning shot" to company executives and investors that they might be tried for their role in these crimes.

The Policy Paper follows a recent trend of calls for international tribunals – including the ICC – to investigate corporate involvement in land-grabbing and environmental destruction committed during peacetime. At the present time, 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.

What does the Policy Paper do?

The Policy Paper does not extend the ICC's jurisdiction to include new crimes. The Court's jurisdiction remains limited to the core international crimes listed above, and the Court can only prosecute natural persons; it has no jurisdiction over companies.

Rather, the Policy Paper clarifies that the OTP aims to "give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land". This would include, for example, a case of land-grabbing that results in the transfer or forcible removal of the civilian population in an area amounting to a crime against humanity under Article 7 of the Rome Statute.

This re-prioritisation is part of a wider trend towards broadening the range of situations which the OTP will investigate. Crimes against humanity are, increasingly, interpreted broadly and international tribunals have been called upon to investigate corporate involvement in such crimes. For example, the OTP was requested to investigate the involvement of individuals (including business leaders linked with the government) in possible crimes against humanity associated with alleged land-grabbing in Cambodia.

How likely is ICC prosecution of corporations or executives?

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.

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.

Reputational risks: any association with an ICC investigation or prosecution could have devastating reputational consequences for a business given the serious gravity of the crimes with which the Court is concerned.

Claims before national courts: More likely than ICC prosecution are civil or criminal claims brought in national courts against corporations or executives. Recent examples include the English High Court litigation against Tate & Lyle relating to alleged land-grabbing in Cambodia and the potential investigation and litigation of claims relating to climate change against companies in the US.

International soft law instruments: Conduct adversely impacting on human rights that falls short of constituting a crime against humanity may have other consequences for companies. For example, many multinationals are increasingly including in their contracts a requirement that suppliers and other contractors comply with corporate human rights policies. A failure to respect human rights can result in a complaint being brought to one of many National Contact Points under the OECD Guidelines for Multinational Enterprises or could lead to civil claims being brought against the company in national courts.

The Policy Paper is yet another reminder that corporate conduct harming human rights is subject to increased scrutiny. It highlights the importance for businesses of adhering to international standards such as the UN Guiding Principles on Business and Human Rights and the OECD Guidelines, including by conducting human rights due diligence to monitor the impact of their operations on human rights on an ongoing basis.

If you would like further information on the issues raised in this post please contact Antony Crockett, International Counsel (Jakarta), Marco de Sousa, Associate (London) or your usual HSF contact.