The recent discovery of the turpitude of the leaders of Lehmann and their
auditors, with terrible consequences on the world-wide crisis, and thus on
employment of hundreds of millions of people, shows, if it was still
necessary, that since globalization has done its work, what takes place in a
company can have consequences on the whole planet. Similarly, the way
Goldman Sachs has pushed the Greek Government to aggravate the make-up of
its deficit also had tragic consequences that extend far beyond the Greek
context. However, no international court is competent to judge such crimes.
On one hand because companies are shielded from international justice: the
International Criminal Court, established in 1998, is only competent to
judge individuals, and even if the prosecution of the leader of a company
seems possible in theory, the case has never been considered. In addition,
it cannot pursue a business (and especially a financial institution), even
on the charges of money laundering from a crime of war, or crime against
humanity.
On the other hand because the definition of crime against humanity does not
cover the cases of economic and social crimes: it is characterized as an act
detrimental to the mental and physical integrity of civilians committed in
the context of a widespread or systematic attack against the population, in
peacetime or wartime.
If the G20 really wanted to be effective, it would decide to complete the
ongoing reform of the treaty by expanding its jurisdiction over the
prosecution of companies in connection with individuals prosecuted for war
crimes or crimes against humanity; creating new categories of crimes against
humanity (for very serious violations of social and economic right with
global reach); and organizing actions in civil liability for damage caused
by companies having ignored, no matter where in the world, the rules
established by the Charter of the Human Rights of the United Nations and the
International Labor Organization and the rules, which yet remain to be
defined against financial speculation. We could also, to achieve the same
goal, instead of extending the jurisdiction of the International Criminal
Court, create a new supranational court, an Economic and Financial
International Court, which would build its own jurisprudence for these new
crimes and offences, by taking into account necessities of progressing
towards a globalization of the Rule of law, to balance the globalization of
markets.
Naturally, the main interest of such a court, as the International Criminal
Court, would be to be dissuasive: no Head of State is sheltered today from
his political crimes and it must be the same for the authors of economic and
financial crimes. This would also avoid rejecting all responsibility for the
crimes of a few and transform the whole financial system into a scapegoat
for the crisis.
All this, of course, is the realm of utopia. But it is by utopias that
humanity advances. And it is only by realizing them before the disasters,
that we can hope to avoid them.