Luis Moreno Ocampo was the founding Chief Prosecutor of the International Criminal Court (2003-12) and is currently an Associate at the Harvard University Carr Center for Human Rights Policy. The interview was conducted on January 14, 2016, at the Harvard Kennedy School of Government by Angel Gabriel Cabrera Silva (Harvard Law School LLM’16). Questions in this edited transcript were prepared by Angel Gabriel Cabrera Silva and Juan Calderón Meza.
HILJ: In cases such as IG Farben, Krupp and Flick of the subsidiary Nuremberg trials, corporate officials that contributed to the Nazi Holocaust or aggressive war were prosecuted and convicted. In your experience, how, if at all, has the Office of the Prosecutor (OTP) contemplated these precedents in order to investigate corporate officials in the situations under examination or investigation?
LMO: From the beginning of my tenure, I had the idea to try to investigate corporate executive responsibility in massive atrocities. In fact, I mention this in my swearing-in speech in June 2003. However, it is not about the theory, it is about the facts. We never had sufficient facts to present a case against someone making financial contributions or a corporate executive helping commit massive atrocities. In my tenure, we never had the facts.
HILJ: Some State Parties of the Rome Statute, especially those using civil law systems, entitle civil parties to file actions seeking damages from juridical persons within criminal proceedings commenced against corporate executives. If a corporate executive is indicted by the OTP, would it be possible, via interpretation of article 75 of the Rome Statute, to vest victims with civil actions before the International Criminal Court against the corporations through which indicted corporate executives contributed to criminal conduct?
LMO: There would not be a direct action for the victims, but the prosecutor and judges could decide whether or not they would compensate the victim using money from the convicted person.
HILJ: Other State parties of the Rome Statute, especially those coming from a common law tradition, recognize criminal liability for corporations. Would it be possible, via interpretation of the Rome Statute from the practice of those State parties, to indict a corporation?
LMO: Personally, when I was the Prosecutor, I tried to be conservative in my interpretation of the law because it was the best way to ensure I was applying the law that the states adopted. And for me, there is no criminal responsibility of corporations under the Rome Statute. The Statute should be amended to prosecute corporations as such.
HILJ: Could the assets of indicted corporate executive’s corporations be frozen and transferred to the Victims’ Trust Fund?
LMO: If corporate executive defendants are convicted, their assets can be used to compensate the victims. However, this becomes more complicated when dealing with corporate assets. If the corporation made a profit, then you can discuss the topic. Regardless, the corporations themselves are not under the jurisdiction of the International Criminal Court.
HILJ: If necessary, do you think that it is feasible that the State Parties amend the Rome Statute to include any or all of those possibilities: (i) civil remedies for victims to seek damages against the corporations of the indicted executives, (ii) corporate criminal liability (iii) and/or freezing assets of those corporations? Which is more or less feasible?
LMO: I do not think this would happen. I do not think the States Parties would amend the Rome Statute to expand investigation to corporations. I think what should be done is to use the current text and see if it is possible to prosecute and investigate members of corporations in accordance with the current International Law standards.
HILJ: How do you perceive the ICC is taking into account the increasing participation of corporations in armed conflict and atrocity crimes (i.e. could the ICC be having a deterrent effect of any kind)?
LMO: I am not sure it is true that there is increasing corporate participation in atrocity crimes. In my experience, I do not see that. I have no evidence to say that it is true.
HILJ: Given that some transnational corporate activities are conducted in several places simultaneously, where would the OTP consider the relevant conduct as being perpetrated for the purpose of assessing complementarity (Would the ICC give preference to any particular state, say the territorial state where crimes were committed or where the financial transactions were approved? Or would it be necessary that all states involved had failed to prosecute the alleged criminaL?)?
LMO: Suppose you have a corporation with offices in different countries and each office is susceptible to have done the crime. Any country conducting an investigation against such a corporation could prevent the ICC from investigating executives of that corporation. The principle of the ICC is that justice has to be done, and preferably, the nation state should do it. The ICC would never compete with a national system to conduct an investigation.
HILJ: Would you look more closely to the state where the criminal conduct happened or where the corporation is based for complementarity purposes?
LMO: The point is that the ICC is content as long as at least one country is conducting the case. Suppose you have a German company committing a crime in the Congo. If the Congo or Germany is conducting proceedings, it is perfect for the ICC, as long as the proceedings are genuine.
HILJ: Following on the previous question, would it be enough for purposes of complementarity that one of the states where the corporation’s activities are being conducted is party to the Rome Statute?
LMO: Any national authority, including non-state parties, should be considered if they are conducting a proper investigation. You cannot prosecute the same person twice for the same case. That is the ne bis in idem principle. For example, if the US, who is a non-state party, investigates both a company and an individual managing the company and subsequently convicts them for participating in massive atrocities, then the ICC should respect that.
HILJ: In your opinion as a professor, if you were to decide which would be the best way to improve accountability of corporate executives after domestic jurisdiction of states involved have failed, would you rather advocate for universal jurisdiction by domestic courts or for international jurisdiction?
LMO: I believe the best way to control corporate misbehavior is to work with corporations and their competitors. We must also ensure that business people understand that their businesses cannot be connected with massive atrocities. Therefore, it is not just about conducting cases, but also about working with business people. What I learned is that we can do much more to avoid conflict through prevention than through conducting cases.
One case. If we had one case, that would be enough. That one case, whether it was national or international, would have to be disseminated well enough to explain to business people the consequences of their conduct. If we had one case, it would be enough. We could use the case to explain to business people the risk in being involved in atrocity crimes. Criminal law is about prevention.
HILJ: As a former ICC prosecutor, what would be your suggestion to lawyers aiming to bring corporate executives before the ICC?
LMO: You need good evidence and a case that satisfies the elements of the crime required by the statute; if you have that, then go for it.
HILJ: Which improvements to the structural framework of International Criminal Law could be made to allow greater criminal accountability of international crimes committed by corporate officials?
LMO: I don’t think this is a legal issue. I think it is a matter of will, and of disseminating the idea that companies cannot be involved in massive atrocities. We do not need new law; we need to enforce what we have. As I said before, one case would be enough to serve as an important deterrent to companies. They should not be involved in this. We do not need many cases; we need to show companies that there is a risk.
HILJ: There is a Truth Commission in Argentina on Business and Human Rights. Do you think that is a good approach for the companies that allegedly supported the atrocities?
LMO: The Truth Commission in Argentina is not intended to provide immunity to the accused. The Truth Commission is a way to collect information and witnesses. It was one of the first truth commissions and was used as a first investigation that allowed the prosecutor’s office to conduct their own investigation. Therefore, the Truth Commission was about collecting evidence, not granting immunity.
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