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The Parameters of Vicarious Corporate: Criminal Liability for Genocide Under International Law

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The Parameters of Vicarious Corporate: Criminal Liability for Genocide Under International Law 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 <http://www.americanbarfoundation.org/uploads/cms/documents/abf_rl_win_09_final .pdf>; Patricia M Wald, ‘Genocide and Crimes Against Humanity’ (2007) 6 Washington University Global Studies Law Review 621, 629. 2 Convention on the Prevention and Punishment of the Crime of Genocide, opened for sig­ nature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (‘Genocide Convention’). 3 W Cory Wanless, ‘Corporate Liability for International Crimes under Canada’s Crimes Against Humanity and War Crimes Act’ (2009) 7 Journal of International Criminal Justice 1. 4 The US Supreme Court recently recognized the free political speech rights of cor­ porations as but one example: Citizens United v Federal Election Commission, 558 US 50 (2010). 322 michael j kelly while multinational corporations have been complicit in genocides over many years, none has been prosecuted. ‘[T]he issue of corporate criminal liability for international law violations remains unresolved.’5 The modus operandi for dealing with corporate involvement in geno­ cide since the days of Nuremberg has been individual criminal liability for corporate officers and civil liability for the corporate entity. The civil liabil­ ity prong has been exclusively pursued in domestic courts—best exempli­ fied by tort litigation in the United States under the Alien Tort Statute (‘ATS’), although ‘in some 60 cases so far, the plaintiffs have … won no out­ right victories ….’6 Even so, courts have begun closing off those civil liabil­ ity options.7 The avenue of criminal liability for the corporate entity, though theoretically possible, has remained inchoate. Typical corporate complicity in genocide involves supplying the géno- cidaire with the necessary equipment or support to carry out the atrocity.8 Think of the foreign companies that supplied Rwanda with machetes to kill Tutsis or Saddam’s regime in Iraq with the components of mustard gas to slaughter Kurds.9 To the extent corporations participate in genocide, they invariably assume the role of enablers. ‘Transnational corporations are … more often indirectly involved in massive human rights violations amounting to international crimes.’10 Whether the génocidaire would have been able to carry out the atrocity without corporate complicity goes, most likely, to whether the corpora­ tion should be held criminally liable for its involvement. For war crimes and crimes against humanity, corporations often take on a more active 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..
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