CHAPTER TWELVE
THE PARAMETERS OF VICARIOUS CORPORATE: CRIMINAL LIABILITY FOR GENOCIDE UNDER INTERNATIONAL LAW
Michael J Kelly*
I. Introduction
Should corporations be held criminally liable for complicity in genocide? As legal (or juridical) persons, corporations should be accountable for their criminal conduct just as natural persons are. Genocide is, after all, the crime of crimes.1 The world outlawed genocide via treaty in 1948. That treaty holds ‘persons’ accountable for committing genocide—it does not distinguish between natural or legal persons.2 Indeed, nothing in the travaux préparatoires of the Genocide Convention accords corporations impunity in this regard. But accountability has not been forthcoming. ‘As a practical, if not theo retical matter, corporations have long been immune from prosecution for breaches of international criminal law.’3 While great strides have been taken to imbue legal persons with the same rights as natural persons,4 much less has been done to impose upon them similar obligations. And
* Professor of Law, Associate Dean for Faculty Research & International Programs, Creighton University School of Law. B.A., J.D. Indiana University; LL.M. Georgetown University. Professor Kelly is President of the U.S. National Chapter of L’Association Internationale de Droit Pénal (AIDP). 1 John Hagan, ‘Darfur and the Crime of Genocide’ (2009) 20(1) Researching Law 2
5 Ronald C Slye, ‘Corporations, Veils, and International Criminal Liability’ (2008) 33 Brooklyn Journal of International Law 955. 6 ‘Alien Torts: Trial Trails’, The Economist (London) 9 October 2010, 87. 7 See Kiobel v Royal Dutch Petroleum, 621 F 3d 111 (2nd Cir, 2010) (holding that ‘custom ary international law has steadfastly rejected the notion of corporate liability for interna tional crimes, and no international tribunal has ever held a corporation liable for a violation of the law of nations:’ 8–9). 8 Jonathan Clough, ‘Punishing the Parent: Corporate Criminal Complicity in Human Rights Abuses’ (2008) 33 Brooklyn Journal of International Law 899, 905. 9 In neither case were corporate defendants ever indicted, although in the Iraq case, Frans van Anraat, a Dutch supplier of chemical weapons, was prosecuted for aiding and abetting genocide under applicable Dutch law. See Marten Zwanenburg and Guido den Dekker, ‘International Decisions: Supreme Court of the Netherlands – War Crimes – Lex Certa – Geneva Protocol – Customary International Law’ (2010) 104 American Journal of International Law 86. Van Anraat was found guilty of complicity in multiple war crimes, but not complicity in genocide. 10 Florian Jessberger and Julia Genuess, ‘Introduction: Transnational Business and Criminal Law’ (2010) 8 Journal of International Criminal Justice 695.