LIBERALS VS. ROMANTICS: CHALLENGES OF AN EMERGING CORPORATE INTERNATIONAL CRIMINAL LAW.

• Author: Stahn, Carsten
• Position: Corporations on Trial: International Criminal and Civil Liability for Corporations for Human Rights Violations

Holding bystanders and corporate agents accountable for international crimes is often at the periphery of international criminal justice. Based on its liberal foundations, international criminal law has traditionally been strongly centered on individual agency. In the industrialist cases after World War II, individual criminal responsibility was used to demonstrate and sanction corporate involvement in crime. Ideas of corporate criminal responsibility have been voiced in the post-war era and in the context of the negotiations of the Statute. In recent years, they have witnessed a renaissance in several contexts: the jurisprudence of the Special Tribunal for Lebanon, the Malabo Protocol of the African Union and the Draft Articles of the International law Commission on Crimes Against Humanity. This contribution examines the strengths and weaknesses of individualized and collective approaches towards corporate wrongdoing. It argues that the way forward requires less 'romanticism' and more realism. The appropriate space of corporate criminal responsibility needs to be defined better. The concept is still most developed in domestic jurisdictions. Its role at the international level is likely to remain modest. The main challenge is to develop the interplay between individual and collective responsibility, and to assess more carefully in what areas and in what forums collective responsibility may be pursued best.

CONTENTS I. INTRODUCTION II, THE PLURALIST LEGAL ARCHITECTURE III. TWO COMPETING SCHOOLS IN INTERNATIONAL CRIMINAL LAW IV. EXTENDING INDIVIDUAL CRIMINAL RESPONSIBILITY OF CORPORATE AGENTS A. The enforcement dilemma B. The scope of liability 1. Perpetration 2. The controversy over aiding and abetting 3. Common purpose liability 4. Superior responsibility C. Critiques V. MERITS AND RISKS OF CORPORATE CRIMINAL RESPONSIBILITY A. The case for corporate criminal responsibility B. Caveats VI CONCLUDING REFLECTIONS I. INTRODUCTION

The legal regime governing criminal liability of corporations is in flux. (1) There is a strong moral case to provide greater attention to the contribution of businesses to conflict and crime. The human rights accountability architecture has developed significantly over past decades. Human rights were traditionally related to violations of states against individuals, but private actors can hold positions of power and control exceeding those of states. As Ronald C. Slye has argued:

"The rise of the corporation is analogous to the rise of the modern nation-state--both unite individuals for a common purpose, and both result in entities with an enormous potential for good or ill." (2)

International companies have played a critical role in extracting or selling natural resources from conflict zones since colonial times. For instance, Belgium ruler King Leopold famously exploited the Congo through the use of concession companies, which used forced labor to extract natural resources. (3) Colonial powers justified such practices by moral and technological supremacy and the promise of access to free trade. During World War II, and in contemporary conflicts, companies have played a major role in supporting and facilitating warfare. In modern times, corporate actors have been involved in violations in several ways: as direct perpetrator of violations, through supply of goods that fuel international crimes, as providers of information or services that facilitate crimes, or through investments in conflict environments. (4)

The rise of the business and human rights movement (5) over past decades, contributed to creating a thicker accountability structure. International law has become hostile to the idea that a collective company structure provides a veil against accountability'. (6) There is a rich compliance web for human rights violations that includes not only hard law, but soft law and voluntary compliance mechanisms. Violations can be subject to wide a range of sanctions, including the revocation of licenses (i.e. the 'corporate death penalty' for legal persons), temporary license suspension, the initiation of investigations and prosecutions, civil or administrative penalties, and warning or persuasion techniques. (7) At least three major liability regimes can hold companies legally accountable: civil liability, human rights accountability, and criminal responsibility. All of them expanded over time, yet the dividing lines are not always clear. There is, in particular, a deeper controversy about the limits of human rights accountability and the feasible reach of criminal responsibility. (8)

II, THE PLURALIST LEGAL ARCHITECTURE

The idea that "companies cannot commit offences" (societas deliriquere non potest) is a relic of the past. (9) Early criminalization started in response to the industrial revolution. Many of the traditional theoretical objections against corporate criminal responsibility, such as the difficulty to ascribe mens rea to a juridical person or to inflict punishment have been addressed. Shifts from a naturalistic to a more sociological vision of crime make it possible to argue that corporations can perpetrate crimes, (10) but the legal regime is highly fragmented.

Domestic legal systems diverge in their approaches. Common law jurisdictions generally recognize corporate criminal responsibility. Continental legal traditions are more diverse. Many jurisdictions allow for corporate criminal responsibility, either in general or for specific offences. (11) Other countries (e.g., Italy, Germany, Ukraine) remain more skeptical to the concept and resort to administrative offences or penalties to address wrongdoing. (12) Some systems combine civil and criminal proceedings. (13) This allows victims to link criminal charges against corporate defendants to tort claims. (14) At the international level, there are seventeen multilateral international instruments with provisions on corporate criminal liability, including the UN Convention against Transnational Organized Crime. (15) These instruments recognize the potential responsibility of legal persons. But they leave it largely in the discretion of states to determine the appropriate kind of sanctions. This approach was recently followed by the International Law Commission (ILC) in its work on crimes against humanity. It decided to include a provision on legal persons in its draft articles on Crimes against Humanity in light of the 'the potential involvement of legal persons in acts committed as part of a widespread or systematic attack directed against a civilian population'. (16) It states that

[s]ubject to the provisions of its national law, each State shall take measures, where appropriate, to establish the liability of legal persons for the offences referred to in this draft article. Subject to the legal principles of the State, such liability of legal persons may be criminal, civil or administrative. (17) Criminal responsibility of legal persons cannot be determined in the same way as that of natural persons. The methods differ across criminal traditions. Some theories attribute the conduct of agents to the company as a legal person. (18) Criminal responsibility is thus derived from the criminal acts of agents, i.e. corporate officers and senior managers (attribution model). (19) It is necessary to inquire whether the agent committed the offence, and whether that conduct can be ascribed to the corporation based on a relationship to the agent. The criteria used for attribution differ. The weakness of this model is that it poses causality problems in collective and decentralized networks. Newer theories admit that the conduct of agents is determined by corporate cultures and collective decision-making processes, and take into account the aggregated knowledge of agents. (20) Others hold the company itself accountable for its own wrongful conduct (organizational model). (21) This approach takes into account that collective failures such as poor organization or communication may have caused the wrong. The organizational model thus ties responsibility to organizational failures, such as lack of proper organization or control. A classic example is a corporate culture that facilitates violations. (22) Corporate mens rea is inferred from the aggregated knowledge of agents. This approach forces companies to put in place adequate structures to prevent illegal conduct, in order to escape from criminal responsibility.

3. TWO COMPETING SCHOOLS IN INTERNATIONAL CRIMINAL LAW

   In international criminal law, the idea of corporate criminal responsibility is less developed than at the domestic level. International criminal law has traditionally concerned itself with the responsibility of individuals. (23) Neither the Nuremberg and Tokyo tribunals, nor the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) or the International Criminal Court (ICTR) were formally vested with the authority to try legal persons. (24) In national jurisdictions, courts have found business corporations complicit in gross human rights violations. (25) Company against may be held accountable in several ways: as perpetrators of violations, (for instance use of forced labor or pillaging of resources), as accomplices, or as military or civilian superiors (e.g., private security companies). But it is increasingly questioned whether the individualized approach towards criminal responsibility responds fully to challenges of business involvement in crime. In many instances, it is difficult to tie corporate crime to an individual actor. As Thomas Weigend has noted:

   "It is not a single individual who sells poison gas to a dictator to be used in war crimes, but it is a firm, organized as a legal person that is the provider of the gas. It is not a single individual who buys and re-sells stolen diamonds and thus lends critical financial support to a dictatorial regime, but an enterprise specialized in such lucrative deals." (26)

   The ambition to extend criminal...