Global Policy Forum

Why the ICC Should Prosecute Legal Persons





By Prince Albert Kumwamba N'Sapu

March 2010

During his first visit to the Democratic Republic of the Congo (DRC) in December 2009, Mr. Sang-Hyun Song, President of the International Criminal Court (ICC), went to Djugu, Ituri district, where Thomas Lubanga is from, to meet with the local population. During a debate with the ICC President, audience members asked the ICC to prosecute the arms suppliers who they claim are responsible for the arrest of Thomas Lubanga.

This request refers to foreign trading companies which allegedly took advantage of the mining resources that are under the control of various armed groups in Ituri. These companies are accused of providing the weapons and munitions that were used to commit crimes in the eastern part of the country in exchange for a guarantee of access to these resources. For the population of Djugu, the arrest of Thomas Lubanga was not enough: trading companies should also be brought before the ICC.

However, the basic question we have to ask is whether this request is likely to be satisfied.

Pursuant to Article 25 of the Rome

Statute of the ICC, the jurisdiction of the Court is limited to "natural persons"; in other words, individuals. The Statute does not provide for the criminal prosecution of public or private legal persons.

It is, however, interesting to note that articles 9 and 10 of the Statute of the Nuremberg International Military Tribunal provided for the notion of belonging to a criminal organization. If it is true that crimes of international law are committed by natural persons and not by entities, it is also true that they are committed by persons linked to organizations.

In fact, one could argue that it would be difficult to imagine that an isolated person, acting independently of any organizational framework and without links to any ideological or political group, could plan and commit crimes falling under the jurisdiction of the ICC. This question of "criminal organizations" is particularly relevant today as national laws and international conventions have been trying for many years to establish the principle of responsibility of legal persons for criminal acts.

Article 121-2 of the French Penal Code, which entered into force on 1 March 1994, provides that "legal persons, with the exception of the State, are criminally liable for the offences committed on their account by their organs or representatives." In the DRC, however, legal persons cannot be held criminally responsible.

It is thus a pity that the Rome Statute of the ICC does not provide for the jurisdiction over legal persons.

The Review Conference of the Rome Statute, which will be held in May 2010 in Kampala, Uganda, is an opportunity to amend Article 25 of the Statute so that the Court can have jurisdiction not only over natural but also legal persons . The significant fines legal persons would have to pay if found guilty could replenish the coffers of the Trust Fund for Victims and enable the Court to allocate larger amounts of money for reparations.

Thus, we call on the Democratic Republic of the Congo to seize the opportunity to propose an amendment to Article 25 to ensure that international crimes committed in the territory are being fairly prosecuted by the ICC.


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