International Criminal Court to prioritise prosecution of crimes involving destruction of the environment, illegal exploitation of natural resources and land-grabbing

Introduction

The International Criminal Court ("ICC") intends to prioritise the prosecution of cases involving the destruction of the environment, illegal exploitation of resources and land-grabbing, according to a new Policy Paper on Case Selection and Prioritisation published by the ICC's Office of the Prosecutor ("OTP") in September.  A number of NGOs declared the announcement to be a "warning shot" to company executives and investors that they might be tried for their role in these crimes.

The Policy Paper follows a recent trend of calls for international tribunals – including the ICC – to investigate corporate involvement in land-grabbing and environmental destruction committed during peacetime. At the present time, the risk of a company or its executives being prosecuted at the ICC for these crimes seems remote; there are serious practical and jurisdictional hurdles to any prosecution actually taking place.  Nonetheless, the reputational risks for a company of being associated with an investigation into any of the crimes that fall within the ICC's jurisdiction – genocide, war crimes and crimes against humanity – could be devastating.

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The importance of human rights due diligence for businesses: International Criminal Court asked to investigate allegations of land grabbing in Cambodia

On 7 October 2014 a communication was filed with the International Criminal Court (“ICC”) asking the Prosecutor to investigate the alleged commission of crimes against humanity pursuant to a State policy of systematic and widespread ‘land grabbing’ in Cambodia (the “Communication”). The Communication argues that the alleged policy of land grabbing involved crimes of forcible transfer, murder, illegal imprisonment, other inhumane acts and persecution.

The Communication follows recent complaints brought against companies for alleged involvement in illegal land grabs in Cambodia, including via litigation in the English courts and the National Contact Point mechanism established in connection with the OECD Guidelines for Multinational Enterprises. This trend highlights the importance for businesses to conduct thorough due diligence to identify the risk of being involved in or linked to human rights abuses or national or international crimes when investing in or working with suppliers in emerging markets and high risk countries.

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