Overview of the proceedings
The victim’s role in initiating proceedings
In the US criminal justice system, victims cannot initiate criminal proceedings. The attorney general alone may initiate proceedings at any time. Victims of a crime are never party to the proceedings, but may serve as witnesses. Outside the criminal process, however, victims may undertake civil action provided that criminal law does not provide for the action. The Attorney General thus enjoys a type of monopoly in initiating criminal proceedings.
Prosecutorial discretion and the role of the Attorney General
The US criminal justice system is grounded in an accusatory process and it is the prosecution’s responsibility to prove the guilt of the accused. To do this, the prosecutor has broad discretion to determine whether it is useful and timely to pursue a particular suspect. 1 This suggests that in many cases, prosecutors may, for political and economic, rather than strictly legal reasons, refuse to bring criminal charges against multinational corporations for human rights violations committed abroad.
An insight into…
Procedural and political hurdles
Strictly procedural hurdles
The Department of Justice faces a number of procedural hurdles, mostly in civil actions brought by victims, such as the statute of limitations, the act of state doctrine and international comity doctrine 2 (for a detailed description, see Part I, Section III which addresses challenges to corporate liability).
The cost of litigation
Because victims are not party to the proceedings, the Department of Justice must incur the costs of investigation and prosecution. Although defendants may choose between using their own attorneys and seeking legal assistance, it appears certain that a multinational corporation will select the first option. It is very likely that the financial resources at the company’s disposal will exceed those of the Department of Justice, creating an imbalance between the parties in criminal proceedings.
Regarding the recognition of US judgments abroad or of foreign judgments in the US, state courts do not generally recognise or enforce foreign criminal judgments. exceptions to this principle include bilateral agreements on extradition or those facilitating the recognition of certain convictions. However, such exceptions do not exist with regards to corporate convictions.