“No one really wants corporations to be liable", 21 Jun 2021

Joanna Kyriakakis, in your thesis you wrote: “Attention to business actors has been at best marginal in international criminal practice to date, despite repeated statements of intent by prosecutors to prosecute business actors for their part in international crimes.” Why so many international prosecutors have announced that they would go after the money trail and failed so clearly?

I think there could be quite a few different reasons. One is simply the nature of international criminal law principles which makes prosecution of a financial accomplice in atrocities a challenging proposition...Other factors may be simply that they're not the most visible or not considered the most responsible of participants, because their participation is more indirect, which also might make the prospect of explaining those prosecutions less straightforward to a general public...

...[MD:]At the negotiations to set up the Rome statute [that governs the ICC] when there were conversations about corporate criminal liability, as entities themselves, that went nowhere. Everyone was so desperate for a court that everyone said: Well, we’ll just make sure that it’s only individual criminal responsibility for blood and flesh people, not entities with legal personality alone.

We see more and more of out-of-court settlements between corporations and the communities affected by the industry. Do you see this as just buying off disempowered victims or as a valuable justice response, concrete reparations as opposed to a symbolic condemnation?

JK: I wouldn't describe settlements as outside of the law: it is a legitimate way of resolving a grievance in a civil court. From the perspective of victim communities, I can see how having some material settlement is at least something of an outcome that could have material benefits to their community, and that may make it a much better proposition then continuing to fight for decades in order to get a merit hearing that for them may have value but may not be as significant as having some material redress...

From an international community perspective it's a shame, sometimes, because I do wonder if the cases that are settled are ones where companies feel there is some real prospect of a negative or an adverse finding [in court]...