Is There a Case for Corporate Criminal Liability in International Criminal Law?

(1)

1

Lucille Vidal 11387300

Is There a Case for Corporate Criminal Liability

in International Criminal Law?

Public International Law Track –

Universiteit van Amsterdam

(2)

2

1. Introduction

When Le Monde1_{reported the news that the Syrian subsidiary of the French cement maker}

Lafarge was dealing with ISIS to maintain its activities in Syria, the public was outraged. SHERPA – a Paris-based Non-Governmental Organization fighting to protect and defend victims of economic crimes – did not waste a second, the Ministry of Finance either: they both filed a complaint against the Parent Company based in France before the Prosecutor Office. The latter concerns the violation of a European Union ban on the importation of petroleum products where the former targets the alleged financial transactions and identifies them as terrorism financing and complicity of terrorism. As of today, the corporation as a legal person is under investigation. In this case, prosecuting the company itself was never an issue, nor an impediment since French Criminal Law allows corporate criminal liability. However, if no nexus to a legal system recognising this type of liability had existed, the alleged criminal acts of the case would have certainly been impossible to investigate, to prosecute or to judge and finally would have stayed unpunished. Thus, reflecting a contrario on this case, light is brought to the impunity facilitated by different standards in domestic legal systems on one side and the absence of corporate criminal liability in International Law on the other side.

Indeed, the criminal responsibility of corporations – as legal persons – has not yet been recognised by International Criminal Law although the idea has always existed in this field. As early as 1945, the International Military Tribunal in Nuremberg addressed this possibility indirectly through the concept of criminal organization2_{. Although only natural persons were}

found guilty and convicted, groups and organizations were also recognised – by way of declaration by the Tribunal – as criminal. The idea of a responsibility of legal persons was underlying the investigation as well as the judgment. Later, the United States Military Tribunal followed the line of the International Military Tribunal and even found some defendants guilty of membership in an organization declared criminal by the latter Tribunal3. Yet, the three “Industrialists Trials”, still before the US Military Tribunal, were the first to genuinely approach the issue of corporate criminal liability. The accused were prosecuted and tried as individuals,

1

http://www.lemonde.fr/syrie/article/2016/06/21/syrie-les-troubles-arrangements-de-lafarge-avec-l-etat-islamique_4955023_1618247.html

http://www.lemonde.fr/proche-orient/article/2016/06/21/comment-le-cimentier-lafarge-a-travaille-avec-l-etat-islamique-en-syrie_4955039_3218.html

2_{Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL, p.172}

3_{Case no. 1, Trial of Karl Brandt et al. (‘Medical case’), US Military Tribunal, Nuremberg, 21 Nov. 1946-20 Aug.} 1947, Trial of War Criminals before the Nuremberg Military Tribunals, Vol. II

(4)

4

but it was emphasized, particularly in the IG Farben case, that they were acting through the apparatus of a corporation, capable of violating the laws of war: “Where private individuals,

including juristic persons, proceed to exploit the military occupancy by acquiring provide property against the will and consent of the former owner, such action not being expressly justified by any applicable provision of the Hague Regulations, is in violation of international law”4. However, these developments had not been extended after the Military Tribunals. A

Committee on International Criminal Jurisdiction, established in Geneva in 1951 to discuss a potential Convention on an International Criminal Court, clearly rejected the idea of jurisdiction over legal persons5_{. It took more than four decades for this concept to return to the front stage}

as it reappeared during the travaux préparatoires of the Rome Statute. Here also, proposals for the recognition of criminal responsibility of legal persons were turned down. Thus, pleas in favour of such a liability have always been advocated but never properly heard. Criminal responsibility of legal persons is missing in modern International Criminal Law.

Going back to the participation of the French company Lafarge in the Syrian conflict, no one is fooled in believing that this is an exceptional situation. Modern warfare has shown a systematic participation of companies in armed conflict, either through financial channels, through direct support of parties by way of arms sale or by broadcasting calls for violence on air, etc. Hence, if the fight against impunity really is one of the main purposes of International Criminal Law, as the Preamble of the Rome Statute suggests6, there is an urgent need for the prohibition of corporate criminal conduct on an international level. Effectiveness commands it. This article thus attempts to demonstrate the persistence of a huge regulatory gap in International Criminal Law which could be filled by the recognition of corporate criminal liability. Starting from a de

lege lata perspective, the reasons why corporate criminal liability is needed will be exposed

first. Then, the key legal challenges to such a recognition will be addressed before finally switching to a de lege feranda perspective to assess a potential framework in which corporate criminal liability could be developed.

4

Case no. 57, The I.G. Farben Trial, US Military Tribunal, Nuremberg, 14 August 1947- 29 July 1948, Trials of

War Criminals before the Nuremberg Military Tribunals, Vol. VIII, pp. 1132-1133

5_{Draft Statute for an International Criminal Court, prepared by the Committee on International Criminal} Jurisdiction, Annex, Report of the Committee on International Criminal Jurisdiction on Its Session Held from 1 to 31 August 1951, UN GAOR, 7th Sess., Supp. No. 11, UN Doc. A/2136 (1952), para 88-89. https://documents-dds-ny.un.org/doc/UNDOC/GEN/NL5/202/45/pdf/NL520245.pdf?OpenElement

6_{UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Preamble: “Determined}

to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,”

(5)

5

2. Rationales supporting Corporate Criminal Liability

While a corporation cannot be held responsible for the commission of criminal act in International Law, it can face civil redress or have its company director bear individual criminal responsibility for this same deed. Furthermore, corporate criminal liability is recognised in some domestic legal systems. Yet, most of the time, corporations remain immune from criminal proceedings when engaged in transnational or international criminal activities. Among other reasons, the gravity of the actions committed by companies as well as the need for a more efficient fight against impunity call for the establishment of corporate liability in International Criminal Law.

A. The need for corporate criminal liability

The birth of International Criminal Law coincides with the creation of international individual criminal liability. At the time, the focus was on the responsibility of commanders and high-ranking military officials. A shift quickly appeared to enable the responsibility of any individual, military as well as private7. As of today, many voices remain reluctant to consider another form of criminal liability. They reject a potential extension of criminal liability to legal persons, and thus to companies. At best, they raise civil redress available in domestic legal systems as a satisfactory alternative.

It is true that civil liability of corporations is an efficient weapon to obtain reparation for their criminal conducts. The company can stand before Court for the commission of a tort, amounting to a criminal act, and victims can obtain compensation similarly to how they would through the criminal channel. From the victims’ perspective, these two types of redress seem to overlap. They would fully overlap only if civil redress for corporations was efficient in every domestic system the way it is, as an example, in the American one, where the cash fines system is very

7_{See U.S. v. Friedrich Flick et al., U.S. Military Tribunal IV. 22 December 1947, in Trials of War Criminals}

Before the Nuremberg Military Tribunals under Control Council Law No. 10 (TWC), Vol. VI 1187, at 1192: “It is asserted that international law is a matter wholly outside the work, interest, and knowledge of private individuals. The distinction is unsound. International law, as such, binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the government are criminal also when done by a private individual. The guilt differs only in magnitude, not in quality. The offender in either case is charged with personal wrong and punishment falls on the offender in propria persona. The application of international law to individuals is no novelty. There is no justification for a limitation of responsibility to public officials.”

(6)

6

well developed. Therefore, where corporate civil liability is illusionary or incomplete, corporate criminal liability should be available to take over.

Furthermore, filling the gap left open by the shortcomings of civil redress is not the only advantage provided by a potential recognition of corporate criminal liability. The criminal character of the proceedings offers many benefits. First of all, in criminal proceedings, the investigation is conducted by the State, which also bears the costs and fees of the prosecution. Alongside public participation, criminal proceedings usually offer greater celerity and the guarantee of due process. On the opposite, if a case is brought before a civil Court and eventually results in a conviction, it would have first required the victims to go through endless litigation, with impediments due to potential cross-border aspects of the facts and in the end the need for a decision recognising or enforcing a foreign judgement. A criminal trial also benefits from a bigger audience than a civil one. This is important regarding the consequences of a conviction. Indeed, the decision of a criminal conviction, if known to the public or even only to the professional world, could have a strong and negative effect on the company concerned. It could highly endanger its reputation and consequently affect its profits. Finally, when it comes to international crimes, universal criminal jurisdiction is recognised in most legal systems where universal civil jurisdiction only exists in the United States, via the Alien Tort Statute. Overall, criminal liability clearly provides for a better access to justice and remedies. Last but not least, criminal liability offers a repressive response that civil liability could never propose. A criminal sanction is imposed as an answer to a conduct that cannot be erased by a mere financial or satisfactory reparation. Civil and criminal liability share a restorative aim but not always a punitive one. Indeed, civil redress does not fully grasp the gravity of a criminal conduct while criminal liability acknowledges and blames it by imposing a punishment. If the advantages of corporate criminal liability lie in its criminal character, some would wonder why prosecuting corporate leaders does not suffice. It should then be answered that prosecuting the company as such is particularly necessary when the prosecution of the responsible individual falls short or appears impossible. The structure of a company is sometimes so complex that it creates a “corporate veil” making it impossible for the investigation to establish which individual was in charge of the criminal conduct. This justification for corporate criminal

(7)

7

liability is the most commonly used8. Some scholars have also identified crimes that are collective by nature9. This is particularly accurate for international crimes where criminality depends either on the gravity of the conducts or on their repetition. In these cases, different acts are conducted by different individuals, who are often interchangeable but all act in the name of their group or organization – or corporation? Corporate criminal liability fits well into this theory of collective crimes and would enable courts to circumvent the issue of fungible corporate agents. Alongside this concept, it should be noted that criminal corporate liability does not exhaust the individuals’ one, and conversely. The corporate environment often plays a big part in the commission of crimes by its agents. Hierarchical structures render the commission of a crime easier or less grave in the mind of the agents and enable them to hide it. Corporate agents also do it for the sake of enriching the company, which benefits from the criminal acts. Thus, the crime is collective, committed at the hands of the agents but made for the corporation and rendered possible by it. As of today, individuals are solely held responsible for corporate crimes but dual liability – individual and corporate – should be considered. Why would an individual bear this burden alone? This difference of treatment between legal and natural persons sends an image of injustice and inequality, often felt as inacceptable in the minds of people. Finally, a utilitarian argument appears obvious: corporations have deeper pockets than their agents. This is of great significance pertaining to victims’ reparation. Indeed, reparation remains very theoretical when the convicted person is a natural one. An individual, especially when it comes to international crimes where there is a large number of victims, can hardly offer meaningful financial compensation. Conversely, corporations often have the financial resources to ensure genuine reparation for the victims.

As already argued above, the recognition of a corporate criminal liability does not mean it should substitute individual criminal liability. They should co-exist and find a way to be articulated with no interlinkage. Some domestic legal systems subordinate corporate criminal liability to the prior establishment of an individual criminal liability. This should not be followed. As we described a concrete and genuine participation of corporations in the commission of collective crimes, these two types of responsibilities should not be

8_{See Stewart, James G., ‘A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity’} (October 2012). NYU School of Law, Public Law Research Paper No. 12-54., p. 37. Available at SSRN:

https://ssrn.com/abstract=2152682 or http://dx.doi.org/10.2139/ssrn.2152682 ; See also Kremnitzer, Mordechai, ‘A Possible Case for Imposing Criminal Liability on Corporations in International Criminal Law’ (2010). J Int

Criminal Justice; 8 (3), p. 912. doi: 10.1093/jicj/mqq036

9_{See Fletcher, George P., ‘The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt’} (2002), 111 YALE Law Journal, p. 1514

(8)

8

interdependent. Although corporate criminality can only be accomplished through the hands of individuals, it is not a consequence of individual criminality. Therefore, companies should not be held criminally liable merely when an individual is also. The same stands for civil redress which should exist alongside corporate criminal liability independently too. Stewart equally argues in favour of two different articulations of civil and criminal redress10: one as a pyramid of responsibilities with corporate criminal liability at the top and civil liability available before, and one which distinguishes between the conducts having consequences on human beings – arms selling – and the conducts on which a price tag can be put – exploitation of natural resources. In any case, the co-existence of civil and criminal liability should be promoted. The benefits of the establishment of the latter does not obliterate the advantages of the former which has been useful in many aspects for decades and could still be. To reach this system of efficient co-existence, establishing corporate criminal liability is necessary, and this on an international level. Its recognition in domestic legal systems is not enough.

B. The need for corporate criminal liability on an international level

The criminal responsibility of legal persons, and thus of corporations, is nothing new to many domestic legal systems. It is commonly known and used in the United States, the UK, the Netherlands and France. However, multiple reasons are calling for an international corporate criminal liability.

The first one pertains to the specific nature of the crimes in which corporations are involved. If companies commit minor offences, they very often take part in the commission of international crimes. Indeed, the type of assistance that these crimes require can sometimes only be provided by corporations. International crimes are specific and treated as such because they are the gravest. This is due to the level of horror and suffering that they create but also to their widespread and collective features. These latter features demand practical and financial assistance that only corporations can offer. A mere individual can hardly supply arms or chemical weapons for a whole armed group and very few can financially support a government. Conversely, corporations can benefit from the commission of international crimes in a way individuals cannot, inter alia by using enslaved work force or by extracting oil at cheap prices from an armed conflict zone. Yet, companies remain free of criminal proceedings for their

10_{For more detailled insights on the co-existence of corporate criminal and civil liabilities, see Stewart, James G.,} supra. Note 8, pp 26-29.

(9)

9

participation in these crimes. Thus, because these crimes are so grave and because no person – natural or legal – should enjoy impunity for their commission, corporate liability must be established in international criminal law.

Another reason for establishing corporate criminal liability is interlinked to the financial profit objective followed by any corporation. Indeed, most of the crimes committed by companies are money-related. Therefore, when assessing the pros and cons of a potential criminal conduct, common sense will direct multi-national companies towards countries where the legal system does not recognise corporate criminal liability so that no risk is taken. International criminal responsibility of corporations would prevent this logic to apply. Furthermore, the transnational nature of some corporations and its consequences also plead in favour of corporate criminal liability in International Law. In fact, the transnational character of a company often results in crimes of a transnational character too. Consequently, it opens multiple possibilities of forums for plaintiffs but also enables defendants – the corporation – to challenge the one chosen for another one where it cannot be held liable. International obligations would stop this forum shopping trend. It would either enable any court to wholly grasp transnational criminal activities or offer an international forum where such cases could be brought in any event. Through the establishment of such a liability, common human rights standards should find a way to grow as well.

One final reason for a corporate criminal liability on an international level lies in the fact that this form of responsibility does not exist in every domestic legal system. Furthermore, although some States recognise corporate criminal liability, it does not mean they fully and correctly use it. It is possible that a government – exercising influence on its judicial system – would choose the economic activity of a corporation conducting criminal activities over the protection of its citizens. Therefore, an international forum exercising criminal jurisdiction over corporations would allow access to justice for victims who are not in a position to seek redress from corporations in their own countries. International corporate criminal liability would then enable courts to bypass legal vacuums in some domestic systems or State dishonesty. Hence, recognizing corporate criminal responsibility could efficiently fill the current regulatory gap. Some argue that such recognition could have strong influence on market practices.

(10)

10

C. The utility of such a recognition

When a person – natural or legal – is held criminally responsible, punishment or reparation for the victim are the direct consequences. However, some indirect and long-term effects can also be hoped for. Corporate criminal liability could lead to a profound reconsideration of the gains brought by the criminal conduct and thus to a rebalancing of the usual practices.

As a legal person, by definition, a corporation has a greater sense of rationality than an average natural one. Therefore, they are more likely to be sensitive to the effects of criminal liability. They are more likely to respond as expected to the burden of criminal responsibility. Stewart studied whether corporate criminal liability could even be a means of deterrence11 as a criminal conviction could result in significant fines or other types of sanctions. According to him, this would depend on how committed the company is to the criminal conduct. The further it is from the criminal apparatus, the more likely the company will react to the threat of criminal prosecution. It will integrate this risk of criminal punishment in its logic of profit-maximisation. On the opposite, if the company is a key element of the apparatus, there are few chances that the risk of a criminal prosecution and conviction will be a deterrent factor.

Apart from the inclusion of potential criminal sanctions in the corporate strategy, criminal proceedings could also act as a dissuasive mean through the stigmatization they generate. Firstly, criminal proceedings carry a power of stigmatization as soon as they are known to the public, who does not wait for a conviction to point at the one on the bench. The presumption of innocence is rarely preserved in the public’s mind. Then, stigma often sticks with the accused years after the end of a criminal trial. This stigma will thus impose a burden on the company that will require strong efforts and a lot of time to eliminate. The shaming power of a criminal conviction can also influence shareholders as they would not want to be related to a “bad” company. Thus, criminal proceedings could be the starting point of a downward spiral for a corporation. The more the public would despise the company, the more shareholders would want to pull away from it. Spill-over effects could be significant.

Finally, if the media exposure that a criminal case experiences affects the public, it also sends a message to other companies. They would not want to go through the same public humiliation.

11

(11)

11

Criminal stigmatization thus becomes a bearer for moral values in the business community and the possibility of using criminal stigmatization as a force for corporate change, while far-fetched, could be seen as a potential new form of compliance. Positive changes on the global market could undoubtedly come from the establishment of corporate criminal liability in International Criminal Law, but no matter how much good it would bring, this still needs to be legally feasible.

3. Impediments to overcome

Many different types of arguments have been offered to reject the extension of criminal liability to legal persons. Some pertain to criminal law principles that supposedly exclude legal persons from the scope of criminal law. Others are found in the lack of jurisdiction over corporations and the absence of obligations binding on them in international criminal positive law. In the name of efficiency to fight impunity, yet under a legally correct reasoning, these impediments will be overcome.

A. Criminal Law principles and Corporations

The Subjectivity of Corporations under International Criminal Law

To be held responsible, an entity needs to experience legal personhood. Since the ICJ Advisory Opinion in 194912_{, States are no longer the only ones to enjoy international legal personality.}

The World Court held that international legal personhood should be attributed to any organization acting like a legal person. Therefore, an entity enjoying rights and bearing duties of International Law should be recognised as an international legal person. Since then, most modern lawyers consider that corporations are subjects of International Law but some still argue on the exact designation to give them. For some, they cannot be considered as ‘subjects’ of international law because only States are. They qualify corporations as ‘objects’ or ‘participants’ of international law. However, actual law-making processes show a more complex reality, which highlights an outdated dichotomy between ‘subjects’ and ‘objects’. In so many aspects corporations are taking part in the making of International Law. As Alvarez has summarized: “Skepticism about the “personhood” of corporations should not be confused

(12)

12

with doubts about whether international corporations have responsibilities (as well as rights) under international law. Clearly they now have both.”13. Thus, in the name of consistency, if corporations bear obligations in International Law, why would they not in International Criminal Law? The ones defending corporate legal personality explain that imposing criminal liability on corporations is solely the continuation of the legal fiction of their personhood14. However, the rules of subjectivity in International Criminal Law differ from the ones in General International Law as individuals are the sole subjects of the former field. Developed for the first time in the Charter of the International Military Tribunal15_{, International Criminal Law only}

addresses individuals. It has been later formulated in Article 25 of the Rome Statute, entitled ‘Individual Criminal Responsibility’16. As implied by the title, this restricted personal scope of application is the result of the principle of individual criminal responsibility. Some lawyers suggest that corporate criminal liability would go against it and therefore should not be recognised. Yet, if corporate criminal liability was established, it would not be the first-time International Criminal Law would be pulling away from this principle. As presented previously, the IMT declared some corporations as criminal although they were not defendants in the case, and thus not convicted for it. Later, the ICTY also deviated from the individual responsibility

13_{José E. Alvarez, ‘Are Corporations “Subjects” of International Law?’ (2011), 9 Santa Clara Journal of} International Law 1

14_{See Kremnitzer Mordechai; ‘A Possible Case for Imposing Criminal Liability on Corporations in International} Criminal Law’, supra. Note 8, pp. 911-912

15_{United Nations, Charter of the International Military Tribunal - Annex to the Agreement for the prosecution}

and punishment of the major war criminals of the European Axis ("London Agreement"), 8 August 1945, Article

6: “The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the

major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or

a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be

limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other

inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”

16_{UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Article 25(1): “The}

(13)

13

principle when it developed its Joint Criminal Enterprise doctrine. By holding responsible all participants of the same group – even those who did not materially commit the crime – because they share the same criminal intent, the Tribunal came close to recognising a form of collective criminal responsibility17. Many domestic legal systems have fully jumped ahead and recognised corporate criminal liability. They did not see it as a contravention of the principle of individual criminal responsibility that could not be overridden. Hence, it should be difficult today to oppose this principle as an impediment big enough to prevent the establishment of international corporate criminal liability.

Moreover, Clapham – following the reasoning of Brierly18 – invites us to take a step back from the “sanctity of subjectivity”19. He argues that the rule of subjectivity in International Law, and equally in International Criminal Law, is merely a procedural rule, not supported by any substantive principle. According to him, if one adopt a true perception of what legal personality entails, then one cannot affirm that States are the only subjects of International Law or individuals the only subjects of International Criminal Law. Therefore, he affirms that there is no reason which prevents the adjustment of the scope of International Criminal Law so as to include corporations.

The erosion of the “societas delinquere non potest” maxim

To reject corporate criminal liability, the legal maxim under which corporations cannot commit criminal offences is often put forward. According to this argumentation, corporations could not bear criminal responsibility because they cannot materially commit an offence. This line should quickly be dismissed as a legal person will always act through a natural one to take legal actions, whether lawful or unlawful, of a commercial nature or of a criminal nature, etc. Querying this concept would call into question the whole doctrine of legal personhood of corporations. It must be recalled that companies sign contracts and tax declarations – fraudulent or not fraudulent – in their name but through the hand of a natural person.

17_{See Giulia Bigi, ‘Joint Criminal Enterprise in the Jurisprudence of the International Criminal Tribunal for the} Former Yugoslavia and the Prosecution of Senior Political and Military Leaders: The Krajišnik Case’, Max Planck Yearbook of United Nations Law, Volume 14, 2010, p. 54-58 ; See also M.E. Badar, ‘Just Convict Everyone! – Joint Perpetration: From Tadić to Stakić and Back Again’, International Criminal Law Review 6 (2006), 293 et seq.

18_{J.L. Brierly, ‘The Basis of Obligation In International Law’, in H. Lauterpacht and C.H.M Waldock (eds), The}

Basis of Obligation in International Law and Other papers by the Late James Leslie Brierly (Oxford : Clarendon

Press, 1958), pp. 1-67, at 51.

19_{Andrew Clapham, ‘Extending International Criminal Law Beyond the Individual to Corporations and Armed} Opposition Groups’, Journal of International Criminal Justice 2008, Vol. 6, No. 5, pp. 901-902

(14)

14

According to the same maxim, corporations cannot be held liable because they cannot experience guilt since they do not have a mind. On this matter, scholars tend to draw opposite conclusions. Some argue that the corporate guilt is the one of the agent perpetrating the criminal act. However, this assertion should not be followed as it reduces the corporate criminal liability to an accessorial one. The legal person could only be held responsible if a natural person is too. This is too restrictive. Kremnitzer proposes a different explanation whereby guilt would be rooted in human dignity, which corporations do not possess20. Therefore, a lower threshold for corporate criminal liability should be set and there would be no need to establish any kind of guilt. Thus, corporations could be objectified to be held liable. Contrary to this thesis, Stewart holds that corporations are capable of experiencing guilt21_{. Starting from the assumption that}

public beliefs hold corporations guilty, he considers that companies have their own ontology. Thus, they could be blamed for their actions when the conditions which enable the identification of an “ethos” are met. The corporation should have an ability to make significant choices, a judgmental capacity and exercise relevant control over its actions. Guilt would then be located in this “ethos”. The author also supports his theory by pointing at the idea of “corporate culture”. Indeed, beyond the acts of its corporate agents, it is sometimes possible to identify a line of conduct, a pattern which is specific to a company. This particular behaviour is the “corporate culture” and could follow a criminal trend. Hence, the corporation itself acts criminally and experiences guilt.

Finally, corporate criminal liability is frequently faced with opposition which argues that criminal sanctions are not made for companies. This is a very wrong assumption to make. Imprisonment is not the sacrosanct of criminal punishment and many sanctions could be appropriate for corporations: fines, limitation of freedom of action, community service orders, confiscation of property and even the equivalent of the death penalty, liquidation. As of today, the relevance of the “societas delinquere non potest” maxim is questionable as every argument deriving from it appears to be either obsolete or misguided. Moreover, legal reality from domestic systems where corporate criminal liability is recognised seems to condemn it to disuse. Corporations can commit criminal offences and should bear responsibility for it in International Criminal Law. To achieve this, jurisdiction over them is necessary.

20_{See Mordechai Kremnitzer, ‘A Possible Case for Imposing Criminal Liability on Corporations in International} Criminal Law’, supra. Note 8, pp. 914-915

21_{See Stewart, James G., ‘A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity’} (October 2012). NYU School of Law, Public Law Research Paper No. 12-54., supra. Note 8, pp. 18-20

(15)

15

B. International Criminal Tribunals’ jurisdiction over Corporations An incentive from the Post-World War II Tribunals

The International Military Tribunal set up in Nuremberg marks the beginning of International Criminal Law. Inspired by legal provisions which were not tailored for the job, its Charter left open the possibility for the Tribunal to demonstrate its creative skills. Regarding the liability of legal persons, the IMT then referred to Articles 922 and 1023 of the Charter, associated with Law no. 10 of the Control Council of Germany24 to build a concept of criminal organization. The group or organization, once declared as criminal by the Tribunal, is used as a criminal net to connect individuals to the crime. In its judgement of 1 October 194625_{, the Tribunal developed}

a test which would enable the prosecution and potential conviction of natural persons, based on their membership in a criminal organization. In the decision, the criminality of six groups or organizations was addressed. Four of them were declared to be criminal but no natural persons were convicted because of their membership in an organization declared criminal by the Tribunal. However, this theory of criminal organization exerted a strong influence on how the prosecution was conducted. It started with the investigation of legal persons before turning to their natural officials. As a result, corporations were prosecuted as such, lawyers were representing them, their deeds were investigated and some were declared criminal. The International Military Tribunal was very close to exercising its jurisdiction upon corporations

9: “At the trial of any individual member of any group or organization the Tribunal may declare (in connection

with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.

After receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration, and any member of the organization will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organization. The Tribunal shall have power to allow or reject the application. If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard.”

10: “In cases where a group or organization is declared criminal by the Tribunal, the competent national authority

of any Signatory shall have the right to bring individual to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.”

24_{Control Council of Germany, Law no. 10: “Each of the following acts is recognized as a crime:}

(. . .)

(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.”

(16)

16

but stepped back a short while before the beginning of the Trial26. In the end, only individuals were tried per se and convicted.

Operating in the aftermath of the IMT, the US Military Tribunal later decided on the “Industrialists cases”. It followed the legacy of the former and did not properly exercise its jurisdiction over legal persons. However, these cases were the closest to the concept of corporate criminal liability as they addressed criminal conducts made through the apparatus of a company. In the Farben case, it was always clear that the company as such would not be held responsible. Yet, the Tribunal found that the accused acted “through the instrumentality” of the Farben company: “while the Farben organization, as a corporation, is not charged under

the indictment with committing a crime and is not the subject of prosecution in this case, it is the theory of the prosecution that the defendants individually and collectively used the Farben organization as an instrument by and through which they committed the crimes enumerated in the indictment” 27. In this case, industrialists were not convicted for membership in criminal organizations declared as such by the IMT – which was provided under Count 4 of the indictment. Nevertheless, in the context of Counts 1, 2 and 3 – respectively crimes against peace, war crimes and crimes against humanity through the participation of the plunder of public and private property and war crimes and crimes against humanity through the participation of enslavement and forced labour of the civilian population – the indictment stated that the defendants “were members of organisations or groups, including Farben, which were

connected with the commission of said crimes”28. This reasoning differs from the criminal organization concept developed by the IMT. The industrialists were not members of a criminal organization under Article 9 of the Charter but members of Farben, which was somehow criminal because it was “connected” to the commission of the crimes.

Further on and in accordance with the indictment, the Tribunal held that the actions of Farben constituted violation of the Law of Wars: “Such action [pillage and plunder] on the part of

Farben constituted a violation of rights of private property, protected by the Laws and Customs

26_{For precisions on why some members of the Prosecution Office decided to renounce to organizations criminal} liability, see A. Clapham, ‘The Question of Jurisdiction under International Criminal Law Over Legal Persons: Lesson’s from the Rome Conference on an International Criminal Court’, in M.T. Kamminga and S. Zia-Zarifi, eds., Liability of Multinational Corporations Under International Law (The Hague, Kluwer Law International 2000) pp. 164-165

27_{Case no. 57, The I.G. Farben Trial, US Military Tribunal, Nuremberg, 14 August 1947- 29 July 1948, Trials of}

War Criminals before the Nuremberg Military Tribunals, Vol. VIII, p. 1108

(17)

17

of War, and in the instance involving public property, the permanent acquisition was in violation of the Hague Regulations which limits the occupying power to a mere usufruct of real estate. The Forms of the transactions were varied and intricate, and were reflected in corporate agreements well calculated to create the illusion of legality. But the objective of pillage, plunder, and spoliation stands out, and there can be no uncertainty as to the actual result.”29

This whole reasoning from the indictment to the judgment implies that Farben, as a legal person, committed war crimes too. Nonetheless, it remains that the corporation, as much as the Tribunal acknowledged its involvement in the commission of the crimes, was not a defendant.

In the end, none of the post-World War II Tribunals exercised jurisdiction over legal persons and their main achievement remains the establishment of an individual criminal liability in International Law. Yet, no one can deny that the decisions they rendered were pigmented by the concept of a criminal liability of legal entities. This spirit has influenced the construction of modern International Criminal Law.

A rejection from International Criminal Tribunals

When International Tribunals for Yugoslavia and Rwanda resurrected International Criminal Law in the 90’s, legal persons were clearly excluded from their jurisdiction. Article 6 and Article 5 of their respective Statute provides that the Tribunal “… shall have jurisdiction over

natural persons pursuant to the provisions of the present Statute.”

The Statute of the International Criminal Court is no different and limits its jurisdiction to “natural persons”. Article 25.1 holds that “The Court shall have jurisdiction over natural

persons pursuant to this Statute.” although a potential jurisdiction of the Court over legal

persons had been discussed thoroughly during the travaux préparatoires. As early as 1995, the question of corporate criminal liability was identified by the Ad Hoc Committee on the Establishment of an International Court30. Later, shifting from corporate criminal liability to legal persons’ criminal liability, the Draft Statute for the International Criminal Court provided a provision on the responsibility of legal persons (Draft article 23. 5 and .6). Yet, the footnote under it mentioned “a deep divergence of views as to the advisability of including criminal

29_{Ibid., p. 1140}

30_{See Annex II - Guidelines for consideration of the question of general principles of criminal law, in 1995 Report} of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN Doc. A/50/22

(18)

18

liability of legal persons in the Statute”31. Finally, at the Rome Conference, France proposed a

concept close to the one of criminal organization developed by the IMT32 but the final proposal suggested a different form of liability. It provided a form of accessorial responsibility of legal persons, conditioned by the conviction of a natural person, identified as the directing mind33. In the end, none of these proposals made the final cut. A States’ main concern was that jurisdiction over legal persons would lead to jurisdiction over the State for the commission of a State crime. At the time, the idea of a State criminal liability had already been raised in Article 19 of the ILC Draft Articles of 199634_{. However, it was absent in the 2001 version, just like}

Draft Article 23 on the jurisdiction of the ICC over legal persons is absent from the Rome Statute. It could have been the end point.

31_{Draft Statute for the International Criminal Court, Report of the Preparatory Committee on the Establishment} of an International Criminal Court, Addendum, Part One, UN Doc. A/CONF.183/2/Add.1 (14 April 1998) 32_{Proposal submitted by France, Article 23, A/CONF.183/C.1/L.3 (16 June 1998):}

“5. When the crime was committed by a natural person on behalf or with the assent of a group or organization of every kind, the Court may declare that this group or organization is a criminal organization. 

6. In the cases where a group or organization is declared criminal by the Court, this group or organization shall incur the penalties referred to in article 76, and the relevant provision of articles 73 and 79 are applicable. In any such case, the criminal nature of the group or organization is considered proved and shall not be questioned, and the competent national authorities of any State party shall take the necessary measures to ensure that the judgement of the Court shall have binding force and to implement it.”

33_{Working Paper on Article 23, paragraphs 5 and 6, A/CONF.183/C.1/WGGP/L.5/Rev.2 (3 July 1998):}

“5. Without prejudice to any individual criminal responsibility of natural persons under this Statute, the Court may also have jurisdiction over a juridical person for a crime under this Statute. Charges may be filed by the Prosecutor against a juridical person, and the Court may render a judgement over a juridical person for the crime charged, if:

a. The charges filed by the Prosecutor against the natural person and the juridical person allege the matters referred to in subparagraphs (b) and (c); and  

b. The natural person charged was in a position of control within the juridical person under the national law of the State where the juridical person was registered at the time the crime was committed; and   c. The crime was committed by the natural person acting on behalf of and with the explicit consent of that

juridical person and in the course of its activities; and   d. The natural person has been convicted of the crime charged.  

For the purpose of this Statute, ‘‘juridical person’’ means a corporation whose concrete, real or dominant objective is seeking private profit or benefit, and not a State or other public body in the exercise of State authority, a public international body or an organization registered, and acting under the national law of a State as a nonprofit organization.

6. The proceedings with respect to a juridical person under this article shall be in accordance with this Statute and the relevant Rules of Procedure and Evidence. The Prosecutor may file charges against the natural and juridical persons jointly or separate- ly. The natural person and the juridical person may be jointly tried. If convicted, the juridical person may incur the penalties referred to in article 76. These penalties shall be enforced in accordance with the provisions of article 99.”

34_{Report of the International Law Commission on the work of its forty eighth session 6 May – 26 July 1996 (UN} Doc. No. A/51/10) in Yearbook of the International Law Commission 1996, vol. 2, part II (New York and Geneva: UN, 1996) at 1 (A/CN.4/SER.A/1996/Add.l (Part 2))

(19)

19

An exercise of creativity from the Special Tribunal for Lebanon

The rejection of any kind of jurisdiction over legal persons by the ICC Statute let us think that the debate was closed. The Special Tribunal for Lebanon did not see it that way and found jurisdiction over two corporations in the New TV S.A.L35 and Akhbar Beirut S.A.L36 cases. Two media companies – an online TV channel and a newspaper – and their natural persons in charge of the programs were prosecuted for the publication of witnesses’ names. They were charged for contempt and obstruction of justice under Rule 60bis(A)37 for knowingly and wilfully interfering with the administration of justice. At first, both contempt judges decided the Tribunal did not have jurisdiction over legal persons but both left open the possibility for the prosecutor to challenge the decision on this issue. The Appeals Panel was then called upon to take a decision and found jurisdiction over legal persons.

The first decision was rendered in the New TV S.A.L case38 where to establish the jurisdiction of the Tribunal over the company, the Panel read Rule 60bis as prescribed by Rule 3 on interpretation: “(A) The Rules shall be interpreted in a manner consonant with the spirit of the

Statuteand, in order of precedence, (i) the principles of interpretation laid down incustomary international law as codified in Articles 31, 32 and 33 of the Vienna Convention on the Law of

35_{Al Jadeed S.A.L. & Ms Khayat (STL-14-05)} 36_{Akhbar Beirut S.A.L. & Mr Al Amin (STL-14-06)}

37_{Rules of Procedure and Evidence of the Special Tribunal for Lebanon, Rule60bis(A):}

(A) “The Tribunal, in the exercise of its inherent power, may hold in contempt those who knowingly and wilfully interfere with its administration of justice, upon assertion of the Tribunal’s jurisdiction according to the Statute. This includes, but is not limited to, the power to hold in contempt any person who:

(i) being a person who is questioned by or on behalf of a Party in circumstances not covered by Rule 152, knowingly and wilfully makes a statement which the person knows is false and which the person knows may be used as evidence in proceedings before the Tribunal, provided that the statement is accompanied by a formal acknowledgement by the person being questioned that he has been made aware about the potential criminal consequences of making a false statement;

(ii) being a witness before a Judge or Chamber refuses or fails to answer a question without reasonable excuse including the situation described in Rule 150(F);

(iii) discloses information relating to proceedings in knowing violation of an order of a Judge or Chamber;

(iv) without reasonable excuse fails to comply with an order to appear or produce documents before a Judge or Chamber;

(v) threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Judge or Chamber, or a potential witness;

(vi) threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber; or

(vii) threatens, intimidates, engages in serious public defamation of, by statements that are untrue and the publication of which is inconsistent with freedom of expression as laid down in international human rights standards, offers a bribe to, or otherwise seeks to coerce, a Judge or any other officer of the Tribunal.”

38_{Decision on Interlocutory Appeal concerning personal jurisdiction in contempt proceedings, New TV S.A.L.} and AI Khayat (STL-14-05/PT/AP/AR126.1), Appeals Panel, 23 January 2015

(20)

20

Treaties (1969), (ii) international standards on human rights, (iii) the general principles of international criminal law and procedure, and, as appropriate, (iv) the Lebanese Code of Criminal Procedure.” Therefore, the Panel went through the multiple supports provided but

mainly relied on domestic practice and considered that corporations were criminally liable in most States. Various commentators have criticised this approach noting that Rule 3 does not enable a reliance on domestic law other than the Lebanese Code of Criminal Procedure, when deemed appropriate39. The Panel concluded its demonstration by addressing the principles of International Criminal Law. It did not see the absence of an international corporate criminal liability as a bar to its jurisdiction and went on to consider that such liability was “on the verge

of attaining, at the very least, the status of a general principle of law applicable under international law”40. The Appeal Panel followed this ruling in the Akhbar Beirut S.A.L case41. These decisions by the Special Tribunal for Lebanon are the first in International Criminal Law to recognise jurisdiction over legal persons, precisely companies. However, they are no panacea and are flawed in many aspects. First of all, the reasoning of the Panel is not convincing as it establishes a new principle of jurisdiction in International Criminal Law based on domestic law considerations. This justification weakens the decision. The fact that these decisions were rendered in contempt cases also stands as a short-coming. Indeed, the Panel relied on its “inherent power” regarding contempt to exercise its jurisdiction on corporations42. This singular power appears difficult to transpose to other offences. This restricts the scope of the decision and its potential impact as a precedent. Yet, these decisions are not to be entirely disregarded. They constitute a first step for the recognition of corporate criminal liability under international law and should induce other decisions in this direction.

39_{Nadia Bernaz, ‘Corporate Criminal Liability under International Law: The New TV S.A.L. and Akhbar Beirut}

S.A.L. Cases at the Special Tribunal for Lebanon’, J Int Criminal Justice 2015; 13 (2): 313-330. doi:

10.1093/jicj/mqv014; Y. McDermott, ‘Criminal Liability for Legal Persons for Contempt Returns to the STL’ (8 October 2014), available at http://humanrightsdoctorate.blogspot.nl/2014/10/corporate-liability-for-legal-persons.html

40_{New TV S.A.L, Appeal Decision, supra note 38, para 67}

41_{Decision on Interlocutory Appeal concerning personal jurisdiction in contempt proceedings, Akhbar Beirut} S.A.L. and Ibrahim Mohamed Al-Amin (STL-14-06/PT/AP/AR126.1), Appeals Panel, 23 January 2015

(21)

21

C. Obligations under International Criminal Law for Corporations

Although the Special Tribunal for Lebanon showed some audacity, the answer to question of whether international criminal courts have jurisdiction over legal persons, and thus corporations, remains negative. However, this question should be distinguished from the question of whether there are substantive norms of International Criminal Law binding on corporations. Because no international forum is available to claim reparation for the violation of a norm does not mean the norm is non-existent. Furthermore, the existence, before the commission of an offence, of a clear norm binding on corporations is necessary to hold them criminally liable and to punish them. This is the result of the criminal law principle of legality (nullum crimen sine lege, nulla poena sine lege).

Treaty Law Obligations

The Rome Statute does not provide jurisdiction over legal persons, nor obligations binding upon them. However, this instrument should not be seen as the universal and unique treaty setting the basis for modern International Criminal Law. Firstly, and despite the restrictive scope of the Rome Statute, the Office of the Prosecutor of the ICC has clearly developed a strategy vis-à-vis business crimes. It has a will to investigate corporate criminality. This proves the outlines of International Criminal Law are not cast in stone but also that potential obligations binding on corporations exist outside the scope of the ICC Statute43. Indeed, some international conventions have criminalized conducts possibly committed by legal persons44.

43_{Gallmetzer R., ‘Prosecuting Persons Doing Business with Armed Groups in Conflict Areas The Strategy of the} Office of the Prosecutor of the International Criminal Court’ (2010), Journal of International Criminal Law 8(3) 44_{See Andrew Clapham, ‘The Question of Jurisdiction Under International Criminal Law Over Legal Persons:} Lessons from the Rome Conference on an International Criminal Court’, supra. note 26, pp. 172-178

(22)

22

In 1989, the Global Convention on the control of Transboundary Movement of Hazardous Waste has defined the transboundary movement of hazardous wastes without the relevant authorization as illegal traffic45_{and as criminal}46_{. Article 9.5 of the Convention provides that}

“Each Party shall introduce appropriate national/domestic legislation to prevent and punish illegal traffic. The Parties shall cooperate with a view to achieving the objects of this Article.”

At last but not least, the Convention explicitly states that the carrier of the hazardous waste – the potential person liable for a violation of the Convention – could be “any person”47, person being previously defined as “any natural or legal person”48. Hence, this treaty does not create direct obligations on corporations but imposes on State Parties to introduce legislation prohibiting such conducts and to provide for sanctions in case of violations. Using domestic implementation, it thus created an obligation of International Criminal Law binding on corporations.

To fight international corruption in the private sector, regional instruments have also developed similar obligations for States Parties to prohibit and punish criminal conducts. The Criminal Convention on Corruption expressly aims at the liability of legal persons: “Each Party shall

adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for the criminal offences of active bribery, trading in influence and money laundering established in accordance with this Convention, committed for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on:

– a power of representation of the legal person; or

– an authority to take decisions on behalf of the legal person; or – an authority to exercise control within the legal person;

45_{Basel Global Convention on the control of Transboundary Movement of Hazardous Waste, 1673 UNTS 57/} [1992] ATS 7/ 28 ILM 657 (1989):

Article 2(21): “Illegal traffic means any transboundary movement of hazardous wastes or other wastes as specified

in Article 9.”;

Article 9(1): “1. For the purpose of this Convention, any transboundary movement of hazardous wastes or other

wastes:

(a) without notification pursuant to the provisions of this Convention to all States concerned; or (b) without the consent pursuant to the provisions of this Convention of a State concerned; or (c) with consent obtained from States concerned through falsification, misrepresentation or fraud; or (d) that does not conform in a material way with the documents; or

(e) that results in deliberate disposal (e.g. dumping) of hazardous wastes or other wastes in contravention of this Convention and of general principles of international law,

shall be deemed to be illegal traffic.”

46_{Ibid., Article 4.3: “The Parties consider that illegal traffic in hazardous wastes or other wastes is criminal.”} 47_{Ibid., Article 2.17}

(23)

23

as well as for involvement of such a natural person as accessory or instigator in the above-mentioned offences.”49

The European Union Joint Action on Corruption also provides similar provisions on the criminal liability of legal persons50 and even adds a very thorough article on specific sanctions51. These articles offer a comprehensive and compulsory framework for State Parties to impose obligations on corporations in their own legal systems. They thus create substantive norms of International Criminal Law, implemented through domestic legal systems.

Customary Law Obligations

However, the number of international Conventions providing obligations for corporations remains small. Therefore, one should turn to international custom as a source of International Criminal Law. Obligations for corporations could exist aside from the ones explicitly provided for by treaties. Hence, V. Nerlich identifies a norm of International Criminal Law as the combination of two sub-norms: the first one in the form of a prohibition of a certain conduct and the second one in the form of a punishment for any contravention of the former norm52. He then observes that this pattern could be easily verified for war crimes. The prohibition would be constituted by a norm of International Humanitarian Law and the punishment would be found in international custom.

It could be argued that norms of the first category – international norms prohibiting a criminal conduct – binding on corporations are not difficult to identify since the following crimes of genocide, war crimes, crimes against humanity, piracy, slavery and torture are all recognised

49_{Criminal Law Convention on Corruption (Council of Europe, 1999), Treaty No. 173, Article 18.1 (emphasis} added)

50_{Joint Action of 22 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European} Union, on corruption in the private sector, Article 5

51_{Ibid., Article 6: “1. Each Member State shall take the necessary measures to ensure that a legal person held}

liable pursuant to Article 5(1) is punishable by effective, proportionate and dissuasive sanctions, which shall include criminal or non-criminal fines and may include other sanctions such as:

(a) exclusion from entitlement to public benefits or aid;

(b) temporary or permanent disqualification from the practice of commercial activities; (c) placing under judicial supervision;

(d) a judicial winding-up order.

2. Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 5(2) is punishable by effective, proportionate and dissuasive sanctions or measures.”

52_{Volker Nerlich, ‘Core Crimes and Transnational Business Corporations’, J Int Criminal Justice 2010; 8 (3): p.} 898. doi: 10.1093/jicj/mqq039

(24)

24

as jus cogens by legal literature53. Their recognition as jus cogens is supported by the jurisprudence of international criminal tribunals which reflects their recognition in international customary law, by the language of the international conventions on the prohibition of these crimes, by the number of ratifications of these treaties and by the recognition of a universal jurisdiction over them in most countries. By reaching such a legal status, these prohibitive norms thus become peremptory and non-derogable. They stand at the highest position in the hierarchy of legal norms. Consequently, erga omnes obligations derive from these norms and put States in a position where they have to prosecute the perpetrators of such crimes. The implication of jus cogens is considered to justify the irrelevance of official capacity in the Rome Statute and even to allow States to override the traditional immunity granted to other States’ leaders in their domestic legal system. However, these norms were not meant to apply to corporations when created and tribunals still not recognise them as applying to corporations – apart from war crimes. Indeed, the IG Farben case supports the idea that corporations are effectively bound by the laws of war. As demonstrated above54, the corporation was not a defendant before the IMT but has still been declared as criminal because of the violation of The Hague Regulations. Nevertheless, it should be noted that no rationale supports the exclusion of legal persons from the scope of application of jus cogens obligations. It is wrong to consider these norms as procedural ones when they are meant to trump any another legal rule. Therefore, not recognising that the prohibition of these international crimes also applies to corporations would amount to a complete disallowance of the universal character of jus cogens. Customary Law should develop towards these norms to find binding obligations of International Criminal Law for corporations.

The punitive norm – which is essential as it represents one of the main features of Criminal Law – appears even more difficult to identify as no international tribunal has ever exercised jurisdiction, and therefore convicted, a corporation for the commission of an international crime55. However, if no corporate sanction has ever been ordered under International Criminal Law, these sanctions exist in domestic systems. Corporations can be the subject of criminal punishment. It has only not yet occurred before an international Court. Indeed, to my knowledge, if corporate actors had been convicted for violations of an obligation of

53_{M. Cherif Bassiouni, ‘International Crimes: Jus Cogens and Obligation Erga Omnes’, 59 Law and Contemporary}

Problems 63-74 (Fall 1996)

54_{See p. 3 and pp. 13-15}

Is There a Case for Corporate Criminal Liability in International Criminal Law?