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The Development of Corporate Criminal Liability Over the Years Possible Extension of the Jurisdiction of the International Criminal Court to Corporations

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The Development of Corporate Criminal Liability Over the Years Possible Extension of the Jurisdiction of the International Criminal Court to Corporations The Development of Corporate Criminal Liability over the Years Possible Extension of the Jurisdiction of the International Criminal Court to Corporations. Name: Sarah Hupkens Supervisor: Mw. Dr. A. van Verseveld Master track: Strafrecht (Publiekrecht) Date of submission: 9 July 2018 Table of Contents Abstract 4 Chapter 1 - Introduction 5 1.1 Motivation for this research question 5 1.2 The International Criminal Court – legal framework 6 1.3 Research question 8 1.4 Research method and structure of the research 8 Chapter 2 - Historical developments 10 2.1 The International Military Tribunal in Nuremberg 1945 10 2.2 Rome Statute negotiations of 1998 11 2.3 Reasons for the exclusion of legal persons from the jurisdiction of the ICC 13 Chapter 3 - The necessity for international criminal liability for corporations 15 3.1 Main objections against corporate criminal liability 15 3.2 Corporations and the growing importance of criminal liability 15 3.3 Examples of corporate involvement in international crimes 18 3.3.1 Nuremberg examples 18 3.3.2 US Alien Tort Claims Act, part of the Judiciary Act of 1789 (ATS) 20 3.4 Necessity of CCL in the light of the existing remedies available 21 3.4.1 Is the liability of natural persons sufficient? 21 3.4.2 Is tort liability sufficient? 24 3.5 Conclusion 24 Chapter 4 - Revisiting the question of corporate liability before the ICC in light of the current developments 25 4.1 Different attribution models 25 4.1.1 Vicarious liability model 25 4.1.2 The identification approach 26 4.1.3 The aggregation model 26 4.1.4 Organizational liability 27 4.2 Conclusion 27 2 Chapter 5 - Legal framework: criminal liability of corporations 28 5.1 Legal framework: criminal liability of corporations 28 5.2 Regulation at the domestic level of corporate criminal liability 28 5.2.1 The common law traditions 28 5.2.2 The civil law traditions 32 5.3 International developments, does the complementarity problem still exist? 34 5.4 Conclusion 36 Chapter 6 - Recommendations and conclusion: Future possibility, extension of the jurisdiction of the ICC to corporations? 37 Bibliography 40 3 Abstract The legal debate over corporate criminal liability (hereinafter: CCL) has been around for a long time and is still of great importance. International criminal law focuses mainly on natural persons. However, due to globalization and privatization the importance and the power of corporations within the international legal framework is increasing. The purpose of this research is to discuss the necessity and possibility of criminal liability for corporations under the legal framework of the ICC. The main research question is: To what extent is it feasible and necessary within the current developments to extend the jurisdiction of the International Criminal Court to corporations? During the development of the Rome Statute, the complementarity principle was one of the main reasons to not extend the jurisdiction of the ICC to corporations. The research therefore also addresses the influences of the complementarity principle as part of the discussion. This research gives a critical analysis of the applicable international and national criminal law for CCL and its implementation in practice. The first part provides a general understanding of the main concept of this research, CCL. Thereafter, the second chapter outlines the historical development of criminal liability for corporations, including the initial attempt to criminalise collectives and the Rome Statute negotiations of 1998. Chapter three lists the main objections against CCL and subsequently focuses on the necessity for CCL due the increasingly important role of corporations in a globalised and privatised international economy over the last couple of years. This is illustrated on the basis of some examples of corporate involvement in international crimes. Chapter four provides a comprehensive overview of the different applicable attribution models to corporations. Thereafter, chapter five further examines these attribution models, by looking at the how different countries apply the (combined) attribution models at the domestic level. To conclude this research, chapter six outlines the findings, points out a number of recommendations and answers the main research question. Based on the findings of this research, it is important to further explore the concept of CCL and the possible extension of the jurisdiction of the ICC to corporations. The challenge is a question of political will. Therefore it is of great importance to look at the increasing development of different forms of CCL within domestic jurisdictions and the growing importance of holding corporations liable for corporate involvement in international crimes. It is not only desirable but also necessary to be able to hold corporations liable, as human rights violations should not be the inevitable consequence of the economic development and increasing economic and political power of corporations. 4 Chapter 1 – Introduction LONDON/LAGOS (Reuters) – Amnesty International has called for a criminal investigation into the alleged role of Royal Dutch Shell in human rights abuses in Nigeria’s oil-rich Ogoniland in the 1990s, accusations the Anglo-Dutch oil company has denied.1 The legal debate over corporate criminal liability (hereinafter: CCL) has been around for a long time and is still of great importance. The issue is whether a corporation can and should be punished for its wrongful, unlawful and harmful actions. This research therefore refers to the possible responsibilities, obligations and liabilities under international criminal law of legal persons, more specifically: corporations. This research will only focus on (multinational) corporations; other legal persons do not fall within the scope of this research. This research will outline the development of CCL over the years and more specifically it will discuss the possible extension of the jurisdiction of the International Criminal Court (hereinafter: ICC or Court) to corporations. The research will address the influence of the complementarity principle as part of the discussion. 1.1 Motivation for this research International criminal law focuses mainly on natural persons, i.e. the individual. The Nuremberg International Military Tribunal (hereinafter: IMT) against German war criminals marks the beginning of the increased focus on individual criminal responsibility, which opposed the common notion at the time that only States were responsible for gross human rights violations.2 In the Tribunals’ famous words: ‘[c] rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’3 This has been one of the legacies of Nuremberg, relevant to the development of international criminal law, a clear model of accountability: individual criminal liability.4 However, due to globalization and privatization there is an increasing importance and power of corporations, which should not be ignored.5 The growing influence of (multinational) corporations in the past decades increased the concerns about the consequences of the lack of corporate accountability for the 1 George 2017. 2 Fauchald and Stigent 2009 at 1035. 3 Trial of the Major War Criminals Before the International Military Tribunal 1946 (1947) Vol I Nuremberg at 223. 4 Stahn and Van den Herik 2010 at 508. 5 Kremnitzer 2010 at 909-910. 5 human rights protection worldwide.6 Companies with activities crossing state borders do often have financial and political powers and can play an important role within states. Although those organizations play an important role in promoting social economic development worldwide, the downside may be that they might be violating human rights. Corporations expand their commercial activities for financial reasons to some of the most unstable regions of the world, even to places of war or places where widespread violence against civilians occur. Some corporations are known to have been directly involved in, inter alia, gross human rights violations such as forced labour, torture, killings and the displacement of some populations.7 Others help sustain the environment that is necessary for the commission of grave human rights violations under international criminal law, by being a source of arms, providing military equipment and money to violent governments or opposition groups.8 Corporations do enjoy rights under international law, including rights under human rights treaties. For example, corporations have rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms9 and they have brought claims that these rights have been violated before the European Court of Human Rights (hereinafter: ECHR).10 Assigning corporations rights under international (human rights) law on the one hand and allowing them to avoid international criminal responsibility under the same body of law for crimes of concern to the international community, such as genocide, war crimes, crimes against humanity and the crime of aggression, is a topic for discussion.11 1.2 The International Criminal Court – legal framework The ICC is the world’s first permanent international criminal court with worldwide jurisdiction over persons. The ICC has jurisdiction over ‘the most serious crimes of concern to the international community as a whole’.12 Those crimes are: genocide, crimes against humanity, war crimes and aggression.13 The Court only has jurisdiction over natural persons,
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