Prosecuting individuals for the crimes of the group: whether the International Criminal Court should expand criminal liability to corporations and organisations

When the Statute of the International Criminal Court was agreed upon it was decided that it would only allow for individual criminal liability. This has had the effect of excluding human rights abuses committed by corporations and non-government organisations from the jurisdiction of the court. That decision was made, in part, on the basis that there was a lack of consistency in the law of national jurisdictions about whether corporations and non-governmental organisations could be tried and a concern that the lack of recognition of the principle could undermine the principle of complementarity. Now, twenty years later, there is a renewed debate about whether corporations and non-governmental organisations should be exposed to prosecution by the Court. The failure to include corporations and non-government organisations is seen as creating an enforcement gap that fundamentally undermines the Court’s oft-stated mission to end impunity. This paper will examine the Communication made to the Court asking it to extend its investigation in Colombia to include a consideration of the actions of employees of Chiquita Brands International, Inc. but where the Court is unable to investigate the involvement of the corporation itself. It will also discuss the recent media reports alleging the existence of an institutional acceptance of sexual harassment and sexual assault at the United Nations and its different constituent agencies. With regard to both situations the paper will discuss if the crimes alleged fall under the jurisdiction of the International Criminal Court. It will also address whether prosecuting the group, in addition to any individual members of the group, would lead to increased accountability. It concludes that it would, and suggests that the greater efforts be made to close the impunity gap at the International Criminal Court.