The status of corporations in the travaux preparatoires of the Genocide Convention: the search for personhood.

• Author: Kelly, Michael J.

Can corporations be prosecuted for complicity in genocide? While companies do not typically carry out genocides on their own, they often provide the necessary means such as supplying Saddam Hussein with chemical gas components to perpetrate the Kurdish genocide, machetes to the Rwandan government to further the Rwandan genocide, or small arms to Bosnian Serb militias to exterminate Bosniak males at Srebrenica. (1)

Pursuit of this deceptively simple question leads into a complex scholarly inquiry. (2) One aspect of this inquiry, and the subject of this short essay, is whether the drafters of the 1948 Convention on the Prevention and Punishment of Genocide (Genocide Convention) conceived that such might be the case. (3) After all, while corporations like Krupps were implicated at Nuremberg, it was only individual corporate officers, not the companies, that were formally prosecuted for crimes amounting to genocide. (4)

In 2007, the International Court of Justice held that states could commit genocide. (5) So if states can commit genocide, then, logically, why cannot other legal persons, namely corporations?

First, what is genocide? The illegal acts of genocide are defined in the Genocide Convention:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d)Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group. (6)

Second, who can commit genocide? Article 6 of the Genocide Convention covers individual responsibility: "Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals." (7) There is no artificial distinction between natural or legal (juridical) in either the reference to "persons" or "private individuals," whereas such distinction is specifically made in later international criminal treaties. Thus, corporate liability could therein lurk.

An exploration of what the Genocide Convention drafters were thinking does not dampen this prospect. The authoritative interpretive guide to treaties, the Vienna Convention on the Law of Treaties, urges one to first look to the plain meaning of the words in the treaty and, should ambiguity remain, to resort to an examination of the preparatory notes to divine the drafters' intent. (8) During the exact period when the Genocide Convention was being negotiated from 1946-1948, the legal definition of "person" according to Ballentine was:

Persons are divided by law into persons natural and persons artificial, and 'person' prima facie, at common law and apart from any statutory enactment, includes both natural and artificial persons, and therefore as a general rule includes corporations. (9)

Moreover, the criminal versus civil nature of the Genocide Convention was not dispositive as to whether corporations would be included in the term "person," according to the usage of the term well prior to time of the drafting conference:

Corporations are to be deemed and considered as persons when the circumstances in which they are placed are identical with those of natural persons expressly included in a statute; and prima facie the word 'person' in a statute, though penal, which is intended to inhibit an act, means 'person in law;' that is, an artificial, as well as a natural, person, and therefore includes corporations if they are within the spirit and purpose of the statute. (10) References to corporations or legal or juridical persons in the travaux preparatoires is meager. But, as the above commentary makes clear, in conjunction with the discussion of who could commit genocide, it was on the minds of several delegates. Specifically, the Soviet delegate emphasized corporate liability in the context media and press organizations using propaganda to incite to genocide. (11) The delegate was also in favor of blanket application of liability, "stress[ing] the fact that the fundamental idea of article V [liability] of the draft convention was to proclaim that all those committing genocide, no matter who they were, should be punished." (12)

Other delegates made oblique references to legal persons in the context of the debate over the term "constitutionally responsible rulers." (13) Whether such references reflected an intentional application to the corporate body considered in this essay or to...