Lecture Three: Courts Dr. Eric Engle LL.M.

Courts Courts Courts! Overview: International Courts ICJ Tribunals - Nuremburg, Tokyo, ICTR, ICTY ICC European Courts ECtHR ECJ National Courts

Caveat Lector International instances usually deal with grave crimes against humanity and war crimes. Usually mass crimes against the person committed by state actors.

International Instances: ICJ International Courts are interesting but probably of little use for international corporate crimes. Historically, International Law governed states, only. This changed in 1945: increasingly international law recognizes limited international legal personality of non state actors. Still, ICJ only hears claims between States and only issues a few opinions each year.

International Instances: Tribunals International Tribunals have been the most succesful courts adjudicating claims involving private persons under international law. However, adjudicated cases tend, perhaps exclusively, to address individual liability NOT corporate liability. Famous cases: Kadic Karadzic. Tribunal case law is at least persuasive evidence of international law as an expression of opinio juris International Tribunals: Legitimacy? UN. Victors' Justice? Nuremburg Tribunal, Tokyo Tribunal, ICTR, ICTY (International Criminal Tribunal for Rwanda, Yugoslavia). NOT Saddam Hussein

International Instances: ICC International Criminal Court (ICC) an attempt to “normalize” international tribunals and also to contribute to the formation of the rule of law in the world's underdeveloped countries. U.S. Is a signatory to Rome Statute of the ICC. However, that treaty isn't ratified by the U.S. Senate and has no direct effect before U.S. Courts. Direct effect means one may invoke the constitution/treaty before the domestic court. ICC only adjudicates individuals not corporations. If we have time after this lecture we will go into the ICC in detail

International Instances: WTO WTO Dispute Settlement Body only adjudicates trade disputes: no criminal, antitrust or labor law jurisdiction nor any desire to have such jurisdiction.

European Instances: ECtHR ECtHR, IACtHR – proceed against states, not individuals let alone corporations.

European Instances: ECJ ECJ – Definitely has anti-trust (competition law) competence and does hear cases against corporations. However, the ECJ's criminal competence, if it even exists, is never used in practice. Furthermore ECJ (like ICC) provides referrals to national courts for further action Acronyms: European Court of Human Rights (EctHR) Inter-American Court of Human Rights (IACtHR), European Court of Justice (ECJ)

National Courts National Courts are thus the “default” forum for cases of corporate crime. In international contexts this raises problems:

National Courts, International Problems 1) Languages – DOES or CAN this court know the law? 2) Jurisdiction of the Court – CAN and SHOULD this court take jurisdiction? 3) Conflicts of Laws (private international law)

National Courts, Conflict of Laws (private international law) E.g.: A German commits a crime against Frenchman in the U.S.A. Which countries may take criminal jurisdiction as a matter of customary international law? All of them! Thus extradition treaties to govern the problem. But some countries refuse to extradite entirely (Russia) while others do not joint various international treaties governing extradition. This creates the risk of under-regulation (no one takes jurisdiction) or over-regulation (everyone takes jurisdiction).

Special Tribunal for Lebanon Applies Lebanese criminal law:Statute of the Special Tribunal for Lebanon", Article 2, 2007-05-30, retrieved 2017-02-17 Determined it had jurisdiction to adjudicate the case against a corporate defendant. Exonerated the corporate defendant.

Conclusions While it is unlikely the corporate officer, executive, or employee can interpose the corporate act as its defense (“it wasn't me it was the corporation”) it is also unlikely that one can indict the corporation before international instances. This is not because of corporate immunity or criminal incapacity. Rather it is a vestige of the fact that until 1939 international law governed states, only. Corporations can be liable for violations of international law before national courts.

Thank you for listening! Any questions or comments?