Corporate Liability and International Criminal Law

Alessandra De Tommaso is Lecturer in Law at Middlesex University, UK. She teaches Business and Human Rights, EU Law, and Evidence. Her research interests are in the areas of International Criminal Law and Business and Human Rights. She is a qualified lawyer in Italy.

Foreword x

Acknowledgements xiii

Introduction 1

1 Corporate Criminal Liability and the Nuremberg Experience 8

1.1 Introduction 8

1.2 Criminal Organisations at Trial: The Nuremberg Experience 10

1.2.1 The Origin of the Prosecution’s Case against Organisations 12

1.2.2 The London Charter 14

1.2.3 The Nuremberg Trial and Judgment 15

1.2.4 Crimes of Membership v Corporate Criminal Liability 19

1.3 Post-World War II Trials: The Industrialist Cases 23

1.3.1 Business Complicity in International Crimes: From the Failure of the Krupp Case at Nuremberg to the US Industrialist Trials 24

1.3.2 The Preparatory Phase of the U.S. Industrialist Cases: Pomerantz’s Memorandum 27

1.3.3 The Industrialist Cases 31

1.4 Extra-Judicial Sanctioning of Farben 39

1.5 Conclusion 41

References 43

2 The Question of Corporations in the Aftermath of the Nuremberg Trials 47

2.1 Introduction 47

2.2 The 1948 Convention on the Prevention and Punishment of the Crime of Genocide 48

2.3 The ILC Draft Code of Offences against Peace and Security of Mankind: An Early Debate on the Criminal Liability of Legal Entities 54

2.4 The Liability of Legal Persons in the Early Stage of the Debate on an International Criminal Court: The Role of the 1951 and 1953 Committees on International Criminal Jurisdiction 58

2.4.1 The 1951 Committee on International Criminal Jurisdiction 60

2.4.2 The 1953 Committee on International Criminal Jurisdiction 63

2.5 Conclusion 67

References 68

3 The Adoption of the Rome Statute: Corporate Criminal Liability’s Swan Song? 72

3.1 Introduction 72

3.2 Resuming the Drafting of the Statute of the ICC: The ILC’s Work (1982-1994) 73

3.3 The Establishment of the Ad Hoc Tribunals for the Former Yugoslavia and Rwanda 78

3.4 The Negotiation of the Statute of the ICC (1995-1998) 81

3.4.1 From the 1995 Ad Hoc Committee to the 1996 Preparatory Committee 82

3.4.2 The French Proposal on Corporate Criminal Liability: Origin and Early Debate 84

3.5 The 1998 Rome Conference for an International Criminal Court 89

3.5.1 The Final Working Paper on the Liability of Juridical Persons: The Last Stage of the Debate 94

3.6 Conclusion 100

References 101

4 Corporate Criminal Liability after Rome: International Developments in the Aftermath of the Adoption of the ICC Statute 107

4.1 Introduction 107

4.2 The Special Tribunal for Lebanon’s Jurisdiction over Legal Persons: An Analysis of the 2014 Contempt Cases 109

4.2.1 The First Contempt Decision: Judge Baragwanath’s View on Corporate Criminal Liability 110

4.2.2 Challenging Corporate Criminal Liability: The Point of View of Judge Lettieri 116

4.2.3 The Decision of the Appeals Panel in the New TV S.A.L. Case 121

4.3 Corporate Criminal Liability within the Statute of the (Proposed) African Court of Justice and Human Rights 128

4.3.1 Article 46C and the Principle of Attribution: An Organisational Approach to Corporate Criminal Liability 131

4.3.2 Sentencing System 138

4.4 The ILC’s Draft Articles on Crimes against Humanity 140

4.4.1 The 2016 Debate on the Liability of Legal Persons 142

4.4.2 The Drafting Committee’s Draft Paragraph on the Liability of Legal Persons 149

4.4.3 States’ Comments on the Draft Provision on the Liability of Legal Persons 152

4.5 Conclusion 157

References 158

5 National Developments and the Comparative Law Argument in the Debate on Corporate Criminal Liability 166

5.1 Introduction 166

5.2 The Comparative Law Argument 167

5.2.1 Limitations of the Comparative Law Argument 171

5.3 A Step Further: Corporate Criminal Liability as a General Principle of Law 178

5.3.1 General Principles of Law: Practical Implications 179

5.4 Conclusion 185

References 186

6 Translating Corporate Criminal Liability into the International Criminal Justice System: Amending the ICC Statute 191

6.1 Introduction 191

6.2 The Applicability of the Rome Statute to Corporations: Some Considerations on the Mode of Attribution 192

6.3 Corporate Criminal Liability Arising from a Lack of Due Supervision 200

6.4 Reverse Onus, the Presumption of Innocence and Corporate Defendants 205

6.5 Corporations and Procedural Guarantees 213

6.5.1 Representation and the Right to Be Present at Trial: Article 63 ICC St. 215

6.6 A Sentencing System for Corporate Defendants 221

6.7 Conclusion 228

References 229

Conclusions 235

Index 243