Re-examining corporate liability at the International Criminal Court through the lens of the article 15 communication against Chiquita Brands International

To date, the International Criminal Court (‘the Court’) has focused its attention on prosecuting governmental and military leaders. This article uses the recent Communication submitted to the Court seeking the extension of the Prosecutor’s Office’s ongoing preliminary investigation in Colombia as a framework to explore whether the Court should expand its focus to include atrocity crimes committed by corporations and their employees. The article specifically addresses the questions raised in the Communication regarding Chiquita Brands International, Inc.’s financial involvement with paramilitary forces in Colombia between 2002 and 2004. The article also examines the current arguments in favour of extending the Court’s criminal liability to include corporations and highlights the shortcomings of those sentiments above and beyond the fact that the Statute explicitly excludes such liability. It also discusses the modes of individual liability contained in Article 25(3)(c) and (d), and analyses whether employees of Chiquita could be exposed to prosecution under either provision. The article concludes that the Court should make greater efforts to investigate and prosecute corporate actors for their involvement in human rights abuses. However, it cautions that the facts as they relate to Chiquita suggest that such efforts should not be concentrated on this case as it is unlikely that an investigation into this case will result in a successful prosecution.

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