Prosecuting Corporations for Genocide

Michael J. Kelly is Associate Dean and Professor of Law at Creighton University. He is president of the U.S. National Section of L'Association International du Droit Pénal (AIDP), a Paris-based society of international criminal law scholars, judges and attorneys founded in 1924 that enjoys consultative status with the United Nations. Professor Kelly is a member of the International Association of Genocide Scholars and directs a summer program on genocide, the Holocaust, and International Criminal Law in Nuremberg, Germany in cooperation with Friedrich-Alexander-Universität Erlangen-Nürnberg. He also serves as Co-Chair of the American Bar Association's Task Force on Internet Governance, and served from 2012-2015 as a member of the President's Advisory Committee on Global Engagement for the American Association of Law Schools (AALS).

Note on Sources

List of Illustrations

Foreword -- by Luis Moreno-Ocampo, Founding Prosecutor of the International Criminal Court

Acknowledgments

1. Introduction

2. The Corporation as an Atrocity Contributor
a. Historical Perspective - British East India / Dutch East India
b. Recent history - IG Farben - WWI, WWII
c. Modern history - Kiobel litigation

3. The Corporation as a Subject of International Law
a. Status as a "Legal Person"
b. Application of the Genocide Convention
c. Recognition by the International Court of Justice
d. International Criminal Tribunal Jurisdiction

4. Modes of Criminal Liability under International Law
a. Proving Genocide
b. Complicity to Genocide
c. Command Responsibility
d. Aiding and Abetting
e. Joint Criminal Enterprise (JCE)

5. Case Studies: Corporate Complicity in Genocide
a. Chinese National Petroleum Corporation & the Darfur Genocide
b. German Chemical Corporations & the Kurdish Genocide

6. Prosecuting Corporations for Genocide: The Domestic versus the International Path
a. Universal Jurisdiction over Jus Cogens conduct
b. Domestic Prosecution
c. International Prosecution

7. Arguments Against Prosecuting Corporations for Genocide
a. Legal Critiques
b. Policy Critiques
c. Economic Critiques

8. Conclusion

Appendix 1: Arrest Warrant for President al-Bashir on Charges of Genocide

Appendix 2: Unclassified List of German Corporations Implicated in Developing Iraq's Chemical Weapons Program

Appendix 3: U.S. Department of Justice Instructions for Prosecution Corporations

Appendix 4: Bill C-45: Amendments to the Criminal Code Affecting the Criminal Liability of Organizations

About the Author

Index