Towards corporate liability in international criminal law

Abstract

Please note that the electronic publication of this dissertation through Igitur is subject to a 2-year embargo period! Seeking to address the problem of corporate involvement in genocide, crimes against humanity and war crimes, this study explores the desirability and feasibility of subjecting multinational corporations (MNCs) to regulation through international criminal law. It traces the evolution of the ‘collective criminality’ concept from Nuremberg to present day and the inherent challenges in reconciling the impact of the group context with individual culpability. Chapter 1 outlines existing regulatory mechanisms for addressing corporate criminality at the national and international level, and in particular the stumbling blocks before the inclusion of corporations within the jurisdiction of the International Criminal Court. Chapter 2 scrutinises the legal philosophical underpinnings of the debate surrounding the notion of corporate criminal liability. It also explores the appropriateness of domestic criminal law rationales in relation to the ascription of responsibility to collective entities per se, such as business enterprises, in international criminal law. Chapter 3 delineates the contentious Nuremberg attempt to introduce a model of collective criminality at the supranational level and to apply it – for the first time in the history of international prosecutions – to the business domain. Chapter 4 subsequently examines the continued difficulties on the part of the international criminal tribunals with the notion of group liability and the ‘collective criminality’ remnants discernible in the Rome Statute. The remaining chapters of the study centre on the need for, and the practicability of a sui generis model for ascribing direct criminal liability to corporations involved in the commission of international crimes. To this end, Chapter 5 discusses the approaches considered during the drafting of the Rome Statute and the inherent limitations of existing provisions. Drawing upon both theoretical methods and domestic techniques for the attribution of culpability to legal (business) entities, a model of liability is developed which seeks to capture the nature of corporate participation in mass crimes without impinging on the Statute’s overall frame. Chapter 6 explores the extension of direct criminal liability to companies for the criminal transgressions of their suppliers and to parent corporations for harm caused by their subsidiaries. It further discusses the utility of Article 28(b) RS for the prosecution of individual corporate agents for their contribution to organisational delinquency. Finally, Chapter 7 highlights the relevance and limitations of effectuating corporate criminal liability at the international level against the backdrop of persistent collective criminality, organisational deviance, regulatory deficit and the goals of international criminal justice.