Rights as Usual

At the end of October 2014, representatives of Ecuadorian victims sent a formal complaint against “the Chief Executive Officer of Chevron and any other corporate officer” of the company to the Prosecutor of the International Criminal Court (ICC), Ms Fatou Bensouda. As far as I know this is the first time anyone tries to bring a business and human rights case before the International Criminal Court (please leave a comment below if you know of others). After the New TV S.A.L. decision at the Special Tribunal for Lebanon on 2 October, the last few weeks have proved particularly rich when it comes to the international criminal legal aspects of business and human rights.

While the complaint has objectively very little chance to lead to the prosecution of anyone, let alone provide remedies for the hundreds of victims of pollution in Ecuador, it sheds light on an interesting and often overlooked aspect of the current international criminal legal system, namely that business people can be prosecuted before the ICC irrespective of the fact that the ICC has no jurisdiction over corporations.

I. A human tragedy but unsubstantiated charges of crimes against humanity against Chevron executives

Under Article 15(1) of the Rome Statute, the Prosecutor of the ICC “may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court”. In the present case, should the Prosecutor decide upon examining the information received in the complaint that there is “a reasonable basis to proceed with an investigation”, she will “submit to the Pre-Trial Chamber a request for authorization of an investigation” (Article 15(3)). If, however, she decides that there is no such reasonable basis, this will bring the case to an end, unless new evidence is later presented (Article 15(6)).

The latter outcome is the most likely. Despite what is argued in the complaint, Chevron officers’ actions cannot be identified as crimes against humanity. Crimes against humanity are crimes of context. To establish such crimes, one needs to prove that certain acts (e.g.: murder, torture, “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, etc.) were “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” (Article 7, ICC Statute)

The complainants argue that Chevron officers have “deliberately maintained the situation of contamination of the Oriente and the deathly health effects it causes” and that “this course of action could be identified as a crime within the jurisdiction of the International Criminal Court.” [p. 18] At the heart of the complaint is the assertion that by deliberately refusing to comply with the judgement against them Ecuadorian courts have reached, Chevron has committed “an attack against the civilian population of the Oriente.”  Even if the prosecutor was to consider that this indeed constitutes an attack within the meaning of Article 7, which in itself is highly unlikely, establishing the context is not enough. To be held criminally liable, Chevron executives would have to have committed certain acts, within that context. The complaint mentions a few of these acts, such as murder and persecution (pp. 40-46) but without really explaining how the alleged perpetrators named in the complaint are supposed to have committed them.

Another important aspect of the complaint is that because the Court cannot look at events having occurred before 1 July 2002, the complaint focuses only on Chevron’s strategy to avoid complying with the Ecuadorian judgement. The complaint does not focus on what is at the heart of the case, namely the dumping of enormous quantities of toxic waste into Ecuador’s Lago Agrio region and the ongoing human tragedy it led to.

II. Business executives as defendants before the ICC

Some commentators and states consider that corporations are not subjected to international criminal law, a position I strongly disagree with. Indeed, as the Appeals Panel of the Special Tribunal for Lebanon recently noted in the New TV S.A.L. decision,

The omission of legal persons from the Rome Statute should not be interpreted as a concerted exercise that reflected a legal view that legal persons are completely beyond the purview of international criminal law. We thus hold that no definitive legal conclusion can be drawn from the exclusion of legal persons from the jurisdiction ratione personae of the ICC. Instead, it is a reflection of the lack of a political (rather than legal) consensus to provide such jurisdiction in the Rome Statute. [para. 66]

What is beyond dispute, however, is that the current Statute of the ICC (Article 25) unambiguously grants the International Criminal Court jurisdiction over natural persons (i.e. individuals) only, and not over legal persons such as corporations. That said, this does not mean that business and human rights issues are beyond the reach of the ICC. Business executives, as individuals, clearly fall under the ICC’s personal jurisdiction. The present case against Chevron executives may be weak, but they are not the only executives who have been accused of gross human rights violations. One day the ICC could well provide an adequate remedy for victims of corporate abuse.