corp criminal responsiblity under icc - ainsley

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Corporate Criminal Liability and the ICC StatuteThe Comparative Challenge

Joanna Kyriakis

Faculty of Law, Monash UniversityResearch Paper No 2009/45

This Paper can be downloaded without charge from theSocial Science Research Network electronic library at:http://ssrn.com/abstract=no.1825568

www.law.monash.edu


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333NILR 2009

CORPORATE CRIMINAL LIABILITY AND THE ICC STATUTE:

THE COMPARATIVE LAW CHALLENGE

by Joanna Kyriakakis*

1. Introduction

2. Corporate criminal liability: a comparative review

2.1 The common law traditions: US, UK, Canada and Australia

2.2 The civil law traditions

2.2.1 Germany2.2.2 Italy

2.3 International developments

3. Corporate criminal liability and the ICC Statute

3.1 Avenues for recognition of non-criminal mechanisms under the ICC Statute

3.1.1 Prosecutorial discretion under Article 53

3.1.2 Admissibility determinations under Article 17

3.1.3 The ne bis in idem principle under Article 20(3)

3.1.4 Deferral by the Security Council under Article 16

3.2 Guidelines for the assessment of non-criminal mechanisms

3.3 Ramifications for the proposal to include corporations within ICC jurisdiction

4. The case of corporate defendants: Is a flexible approach best?

5. Conclusion

* LLBLP (Hons), BA (Flinders); SJD (Monash), Research Fellow, Monash University, Aus-

tralia. Thanks to Professor Bernadette McSherry for insightful comments on earlier drafts.


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J. KYRIAKAKIS334 NILR 2009

1. INTRODUCTION

The comparative law problem of diverse national positions in relation to boththe principle and form of corporate criminal liability has been a live issue in the

debates around corporate criminal liability under international law.1 In some

states, for example, the principle ofsocietas delinquere non potest (a corpora-

tion cannot commit a criminal offence) still prevails. In those states that do

recognise the concept of corporate criminal liability, approaches to its imple-

mentation can vary significantly. In relation to the proposal to include legal

persons in the jurisdiction of the International Criminal Court (the ICC), it was

argued that different approaches to corporate criminal liability across states

would pose a problem in light of the ICCs complementarity scheme.2 The

concern was that those States Parties that do not provide for corporate criminal

liability within their domestic laws might be viewed as unable or unwilling to

prosecute corporate defendants in the context of ICC admissibility determina-

tions, or as non-existent, if corporations were included within the jurisdiction

of the ICC. Some delegations held the view that providing for only the civil or

administrative responsibility/liability of legal persons could provide a middle

ground to the deep divergence of views held by states on the advisability of

providing for the criminal responsibility of corporations in theRome Statute of

the International Criminal Court3 (the ICC Statute).4 This article examines the

proposal for a non-criminal corporate liability regime under the ICC Statute andassesses whether such an approach is appropriate in the context of the arbitra-

tion of international crimes.

The debate must be recognised as having new dimensions since the Rome

Conference over 10 years ago. First, the impact of the first 10 years of theICC

Statute is in itself significant. Unlike the ICC Statute, many states do not delin-

eate between natural persons and legal persons for the purpose of criminal law.

By introducing offences similar to those contained within the ICC Statute in

order to implement the Treaty, many states have extended enforceable duties to

comply with international criminal law to corporations, covering both domestic

1. See, e.g., Developments International Criminal Law, 114 Harv. L Rev. (2001) p. 1943

at p. 2031; International Commission of Jurists Expert Legal Panel on Corporate Complicity

in International Crimes, Corporate Complicity and Legal Accountability, Vol. II (Geneva,

International Commission of Jurists 2008) pp. 52-59.

2. See further J. Kyriakakis, Corporations and the International Criminal Court: The Com-

plementarity Objection Stripped Bare, 19 Criminal Law Forum (2008) pp. 115-151.

3. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187UNTS p. 90 (entered into force 1 July 2002).

4. Footnote to draft Art. 23, in Report of the Preparatory Committee on the Establishment of


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CORPORATE LIABILITY AND THE ICC STATUTE 335NILR 2009

and overseas corporate activities.5 Those states have in that sense done domesti-

cally what the Rome Conference could not agree to do with the ICC itself.

Second, while the ICC Statute may have avoided the question of corporate

liability for international crimes by limiting the Courts jurisdiction to natural

persons,6 since 1997 there have been a number of international instruments

introduced that explicitly oblige states to introduce domestic corporate liability

schemes for certain crimes.7 These instruments give us guidance as to how the

comparative law problem has already been addressed at regional and interna-

tional levels. Finally, there is increasing scholarship that corporations have

direct duties under international criminal law, notwithstanding the recent spate

of domestic international crimes laws, even if there have not been forums in

the past in which those duties can be asserted.8

This article speaks to the question of the appropriate form for corporateliability in relation to international crimes should codification within an inter-

national instrument be attempted in the future.9 While it is directed specifically

to the ICC Statute, many of the arguments would apply equally to a distinct

multilateral treaty addressed specifically to corporations. The article is struc-

tured in the following way. Section 2 provides an overview of various national

approaches to corporate criminal liability across the common law and civil

law divide. The examples of Germany and Italy are explored in particular as

examples of hybrid administrative-criminal schemes of corporate liability

developed as a result of those states philosophical and constitutional positionson the concept of corporate criminal liability. Approaches to corporate liability

adopted in recent international and regional instruments are then set out.

Section 3 outlines prevailing views on whether, and in what circumstances,

extra-criminal national mechanisms for responding to international crimes

can constitute a bar to ICC jurisdiction in relation to individual perpetrators

5. See A. Ramasastry and R.C. Thompson, Commerce, Crime and Conflict: Legal Remedies

for Private Sector Liability for Grave Breaches of International Law: A Survey of Sixteen

Countries (Fafo-report no. 536, 2006), available at ;J. Kyriakakis, Prosecuting Corporations for International Crimes: The Role for Domestic

Courts, in L. May and Z. Hoskins, eds., International Criminal Law and Philosophy (Cambridge,

Cambridge University Press 2010).

6. Art. 25 ICC Statute.

7. A. Clapham, Extending International Criminal Law beyond the Individual to Corporations

and Armed Opposition Groups, 6Journal of International Criminal Justice (JICJ) (2008) p. 899

at pp. 915-916; see also the comments of B. Swart, Discussion, 6 JICJ(2008) p. 947 at pp. 948-

950.

8. See, e.g., Clapham, supra n. 7; W.C. Wanless, Corporate Liability for International Crimes

under Canadas Crimes against Humanity and War Crimes Act, 7 JICJ(2009) p. 201 at pp. 217-

219.9. The first Review Conference of the ICC Statute will be taking place in early 2010 in

Kampala, Uganda. While there is no definite agenda at this stage, the issue of corporate persons


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and what this would mean if the Courts jurisdiction were extended to include

corporations. Drafting options are then set out in broad terms. Finally section

4 considers some arguments in favour and against the adoption of a non-criminal liability scheme at an international level in relation to international

crimes. It is argued that ideally corporate actors should be subject to criminal

liability both at an international and domestic level on the basis of the nature

of the crimes and the expressive function of criminal law. However a second

tier option is also set out based on approaches to corporate liability adopted in

recent international instruments. These instruments allow for flexibility as to the

characterisation of the domestic liability scheme provided certain conditions are

met.

2. CORPORATE CRIMINAL LIABILITY: A COMPARATIVE

REVIEW

There is a broad historical divide between common law and civil law juris-

dictions on the principle of corporate criminal liability in modern criminal

law. This section provides a brief overview of the different traditions in the

common law and civil law jurisdictions in relation to the principle, and form,

of corporate criminal liability. It then concludes with a discussion of how these

national differences have been dealt with in recent international instruments thatrequire the adoption of national corporate liability schemes in relation to certain

crimes.

2.1 The common law traditions: US, UK, Canada and Australia

The major common law jurisdictions overcame legislative and judicial reluc-

tance regarding the imposition of criminal liability on corporations much

earlier than civil law jurisdictions, perhaps as a result of their earlier experi-

ences of rapid industrialisation and its attendant effects.10 In the United Statesof America (the US) and England, corporate criminal liability first developed

in the context of non-feasance by quasi-public bodies that resulted in public

nuisances. By the mid 19th century this had been extended to all offences not

requiring evidence of criminal intent.11 The move to crimes requiring proof of a

fault element such as intention or recklessness was first recognised in the US in

10. J.C. Coffee, Corporate Criminal Liability: An Introduction and Comparative Study, inA. Eser, G. Heine and B. Huber, eds., Criminal Responsibility of Legal and Collective Entities

(Freiburg im Breisgau, edition iuscrim 1999) p. 9 at p. 14.


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190912 and in Britain in 1917.13 Despite a common heritage, the current models

that have developed across common law jurisdictions differ.

At a federal level, US courts have largely adopted a vicarious liability

approach to attributing criminal liability to corporations for all offences,

including those involving intent.14 Under this doctrine, sometimes described

as the agency principle or (in the language of US tort law) the principle of

respondeat superior, a corporation is liable for the wrongful acts of any of its

employees provided that such an employee commits the crime within the scope

of his or her employment and with intent to benefit the company. 15 These last

two conditions have been interpreted very broadly.16 Further, the concept of

aggregate or collective knowledge is used so that it is not necessary to prove

that an individual employee had the requisite intent. Information that is known

in part to multiple actors within the corporation is aggregated and the aggrega-tion of that knowledge can be imputed to the corporation.17 These very broad

conditions of liability are moderated by prosecutorial policies and sentencing

guidelines that recognise and reward certain conduct by the offending corpora-

tion including co-operation, internal monitoring mechanisms and compliance.18

Mitigation in sentencing based on factors such as a companys internal moni-

toring systems19 shift the US approach closer to an organisational model, which

identifies corporate fault within the control systems embodied in a corporations

policies and practices, rather than a purely vicarious liability model.

In England and Wales the prevailing approach for attributing direct criminalliability to corporations for crimes involving a fault element is the identifica-

tion or alter ego doctrine.20 Only conduct by persons who control and direct

the activities of a company can be attributed to the company, on the basis that

they are considered to be the embodiment of the company. Hence, [t]heir

acts and states of mind are the companys acts and states of mind.21 For that

reason, only criminal conduct engaged in by persons considered to embody

12. New York Central & Hudson River Railroad Co. v. United States 212 US 481 (1909).

13. Wells identifies the Kings Bench decision ofMousell Bros v.London and North WesternRailway in 1917 as the first indication in English law that corporate liability might move beyond

strict liability or nuisance, albeit that the implications of this decision did not eventuate until

some time later: C. Wells, Corporations and Criminal Responsibility, 2nd edn. (Oxford, Oxford

University Press 2001) pp. 90-93. For a description of the development of corporate criminal

liability in England and Wales: ibid., ch. 5.

14. Ibid., p. 130. This approach is also endorsed in South Africa: ibid., p. 130. For a discus-

sion of US state criminal law: ibid., pp. 131-132.

15. Ibid., pp. 130 and 134.

16. Ibid., p. 135.

17. Ibid., p. 134.

18. Ibid., pp. 135-136.19. United States Sentencing Commission, Guidelines Manual, 3E1.1 (November 2008)

ch 8.


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the companys directing mind and will can form the basis of the companys

criminal liability.22 The significant question is therefore which persons are in

sufficient control within the corporate management structure to satisfy this test?

While the test would include senior management and other superior officers,

such as the board of directors, managing directors and the CEO, further down a

chain of delegation it becomes less clear.23 This approach has been criticised as

unduly restrictive and unrepresentative of the often horizontal or de-centralised

decision making structures of many of todays modern complex corporations.24

Although Canada, New Zealand and Australia have inherited the English

identification approach, in each of these jurisdictions the scope of direct corpo-

rate criminal liability has been expanded. In Canada it has been held that

corporations may have more than one directing mind, across geographical

locations and management structures.25 This reflects an acknowledgement thatmodern corporations can be highly de-centralised. The Courts have therefore

taken a more pragmatic approach, focusing less on whether a person occupies

a particular position in form and more on whether, in reality, he or she exer-

cises autonomous control over a given area of the companys activities.26 Since

reform following the Westray mining disaster in 1992, Canadian law also

provides for a form of due diligence argument to support corporate criminal

liability, where a senior officer can be shown to have failed to take all reason-

able measures to stop a representative of the company from becoming a party to

an offence.27

In New Zealand it has also been held that a flexible approach can be taken

to determining the person or persons whose actions can be attributed to the

company.28 However, the method of reaching that determination is quite

different from that underscoring the identification doctrine. To determine which

employees are acting as the company depends on a range of factors, beginning

from the purpose of the law in question and, as a matter of statutory interpreta-

tion, whose conduct should be taken to be the companys for the purpose of that

law.29

22. J. Clough and C. Mulhern, The Prosecution of Corporations (South Melbourne, Oxford

University Press 2002) p. 89.

23. Ibid.

24. See, e.g., S. Field and N. Jorg, Corporate Manslaughter and Liability: Should we be

going Dutch?, Criminal L Rev. (1991) p. 156 at pp. 158-162.

25. See, e.g., the statements of the Supreme Court of Canada in Canadian Dredge & Dockv.

R [1985] 1 SCR 662 (Can.) at p. 693.

26. Clough and Mulhern, supra n. 22, pp. 92-93; see also Wells, supra n. 13, pp. 130-131.27. Wanless, supra n. 8, pp. 209-210.

28. The principle case is the judgment of the Privy Council in Meridian Global Funds


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Of the common law jurisdictions, Australian federal criminal laws30 relating

to corporate criminal liability for offences involving a fault element are particu-

larly progressive. The Australian federal principles provide that the conduct

of any employee [including a servant], agent or officer of [the corporation]

acting within the actual or apparent scope of his or her employment, or within

his or her apparent authority is attributed to the corporation31 provided that the

corporation expressly, tacitly or impliedly authorised or permitted the commis-

sion of the offence.32 The means by which such authority or permission can be

established are:

The conduct was performed or tolerated (authorised or permitted) by the

board of directors;

The conduct was performed or tolerated (authorised or permitted) by a highmanagerial agent, although it is a defence when the body corporate proves

that it exercised due diligence to prevent such conduct, authorisation or per-

mission;

A corporate culture (defined as an attitude, policy, rule, course of conduct or

practice existing within all or the relevant part of the body corporate) existed

that directed, encouraged, tolerated or led to non-compliance; or

The corporation failed to create and maintain a corporate culture that re-

quired compliance.33

The first two grounds for showing that a corporation authorised or permitted the

commission of the offence reflect the identification doctrine, with due diligence

as a defence when the authority emanates from any less than the highest loca-

tions of corporate control. This reflects the view that it is only at the top tiers

of a company that individuals can be equated with the identity of the corpora-

tion. The third and fourth grounds are examples of organisational models of

corporate fault. In such a model, the fault of the corporation does not lie in the

decisions of a single organ or individual within the corporation, but within the

policies, standing orders, regulations and institutionalised practices [of the

corporation that are] authoritative, not because any individual devised them,but because they have emerged from the decision making process recognised as

authoritative within the corporation.34

30. Criminal law is generally a state matter in Australia. However, as Australias international

crimes have been codified under federal criminal law it is the federal rules regarding corporatecriminal liability that are pertinent.

31. S. 12.2 Criminal Code (Cth) (Aus.).


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2.2 The civil law traditions

The civil law jurisdictions have been more reluctant to recognise the possi-bility of corporate criminal liability in modern criminal law. This reluctance

has been based on a number of philosophical objections, including the idea

that groups cannot act, be morally blameworthy or the proper subjects of crim-

inal punishment.35 However, despite what was once considered an intractable

legal culture against corporate criminal liability, there has been a rapid expan-

sion amongst civil law nations introducing corporate criminal liability schemes

since the 1970s.36 For example, France introduced corporate criminal liability

into its new penal code in 1992.37 According to current judicial understanding,

the French corporate criminal liability scheme predicates any finding of the

criminal liability of the corporate entity upon the prior finding of individualcriminal liability.38 This has led to suggestions that the French model is already

outdated by failing to address the problem of diffusion of individual respon-

sibility in modern corporations.39 The same criticism can be levelled against

the final draft provision on corporate criminal liability for the ICC Statute.

The final model proposed for the ICC Statute would have predicated corporate

liability on a finding of individual criminal liability of a natural person in a

position of control within the company, where that person acted on behalf of

and with the explicit consent of the company.40 The parameters of corporate

35. The principle ofsocietas delinquere non potest is commonly described as encompassing

two (sometimes three) assertions contrary to the principle of corporate criminal liability. First, the

notion that corporations have the capacity to act wilfully or intentionally, as required by criminal

law, is rejected. Second, corporations are not viewed as the proper subjects of criminal punishment

as only human beings are capable of making moral determinations in terms of what is right and

wrong: see, e.g., T. Weigend, Societas Delinquere non Potest? A German Perspective, 6 JICJ

(2008) pp. 927 et seq. I address these kinds of objections to corporate criminal liability elsewhere:

Kyriakakis, supra n. 5.

36. Comparative works on this topic include: H. de Doelder and K. Tiedemann, eds., Criminal

Liability of Corporations (The Hague, Kluwer Law International 1996); A. Eser, G. Heine andB. Huber, eds., Criminal Responsibility of Legal and Collective Entities (Freiburg im Breisgau,

edition iuscrim 1999); S.S. Beale and A.G. Safwat, What Developments in Western Europe

Tell Us About American Critiques of Corporate Criminal Liability, 8(1) Buffalo Criminal

L Rev. (2004) p. 89; G. Heine, New Developments in Corporate Criminal Liability in Europe:

Can Europeans Learn from the American Experience or Vice Versa?, Saint Louis-Warsaw

Transatlantic Law Journal (1998) p. 173; A.A. Robinson, Corporate Culture as a Basis for

the Criminal Liability of Corporations (February 2008), at (last visited 18 October 2009);

Ramasastry and Thompson, supra n. 5.

37. Art. 121-2 Nouveau Code. These provisions came into operation in 1994 and have been

extended by amendments introduced in July 2003: Beale and Safwat, supra n. 36, pp. 115-122.38. Ibid., pp. 117-120.

39. C. De Maglie, Models of Corporate Criminal Liability in Comparative Law, 4 Washing-


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criminal liability under that model are therefore particularly narrow. Elsewhere,

forms of corporate criminal liability have been adopted in Argentina,41 Austria

(2006),42 Belgium (1999),43 China (1997),44 Denmark (1996),45 Finland (1995),46

Iceland (1993),47 Indonesia (since the 1980s),48 Japan (1932),49 the Netherlands

potentiaries on the Establishment of an International Criminal Court, Rome, 15 June-17 July

1998 (UN Doc. A/CONF.183/13), Vol. III, p. 251. For the background and development of the

proposal see A. Clapham, The Question of Jurisdiction under International Criminal Law Over

Legal Persons: Lessons 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) p. 139 at pp. 143-160.

41. Ideal (non-physical) persons can be held criminally responsible in Argentina but only

under exceptional and specialised criminal legislation that has been adopted to address particularcommercial crimes. Despite these laws, in Argentinas Fafo National Survey responses, the

respondents report that Argentina should be characterised as a legal system where legal persons

are not subject to criminal liability: Argentina: Survey Questions and Responses, Fafo National

Surveys (6 September 2006), at

(last visited 18 October 2009).

42. The Law on the Responsibility of Associations (Verbandsverantwortlichkeitsgesetz

(VbVG)) was introduced in 2005 and came into effect on 1 January 2006: G. Stangl, Corporate

Criminal Liability, 24(11)International Financial L Rev. (November 2005) p. 75.

43. Corporate criminal liability was reintroduced after it had been removed in 1934:

Robinson, supra n. 36, p. 48.

44. In 1987, China introduced the first unit crimes designating that various collective

enterprises could be guilty of offences of smuggling. Since then, over 50 kinds of unit crimes

have been enacted in over 20 criminal, civil, economic and administrative regulations. In 1997,

the Criminal Law was amended so that the concept of unit crime is now included in the General

and Special Provisions of Criminal law: Justice L. Jiachen, The Legislation and Judicial Practice

of Punishment of Unit Crime in China, in Eser, et al., eds., supra n. 36, p. 71. See also Robinson,

supra n. 36, pp. 51-53.

45. Denmark first introduced corporate criminal liability for certain offences with the passage

of the Butter Act in 1926. The current scheme of corporate criminal liability was introduced in

1996 and is governed by Chapter 5 of the Danish Criminal Code. In 2002 corporate criminal

liability was extended from specific crimes to all offences within the general Criminal Code by

section 306 of the Danish Criminal Code: Beale and Safwat, supra n. 36, pp. 111-112. See also

G.T. Nielsen, Criminal Liability of Collective Entities The Danish Model, in Eser, et al., eds.,supra n. 36, p. 189; Robinson, supra n. 36, pp. 53-54.

46. Beale and Safwat, supra n. 36, p. 113; Robinson, supra n. 36, pp. 39-43.

47. OECD Working Group on Bribery in International Business Transactions, Corporate

Liability Rules in Civil Law Jurisdictions (2000) (DAFFE/IME/BR(2000)23), at (last visited 18 October 2009)

p. 2; Robinson, supra n. 36, p. 54.

48. The Indonesian Penal Code does not recognise legal entities as a subject of criminal

law. However, despite this continuing conceptual position, legal entities have been made crimi-

nally liable under a number of specific Indonesian statutes directed at particular crimes since the

1980s, including for certain environmental crimes, commercial crimes, corruption and terror-

ism: Ramasastry and Thompson, supra n. 5, p. 13; Indonesia: Survey Questions and Responses,Fafo National Surveys (6 September 2006), at (last visited 18 October 2009).


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(1976),50 Norway (1991),51 Portugal (1983),52 South Africa,53 Spain (2003),54

and Switzerland (2003),55 albeit in some cases as exceptional to a prevailing

general position that legal persons are not subject to criminal liability.

Comparative scholars have identified emerging trends in national approaches

to corporate criminal liability across the civil law world.56 These include: a

general movement toward corporate criminal liability; a shift from liability

based on imputing individual behaviour to the corporation to original liability

based on organisational deficiencies; where it has been introduced, corpo-

rate criminal liability is intended to complement, and not exclude, individual

criminal responsibility; and, the most common sanction remains the traditional

monetary fine, although increasingly broader sanctions are being introduced.

Notwithstanding these trends, there remain countries that do not provide for

corporate criminal liability. These include Brazil, Bulgaria, Luxemburg, theSlovak Republic, Greece, Hungary, Mexico, Sweden and the Ukraine.57 Notable

for the administrative schemes that have been adopted in lieu of criminal

liability are Germany and Italy, which are explored in more detail below.

statutes but it essentially allows a corporation to be fined where a relevant natural person has acted

illegally. This system is translated as two-sided or bilateral punishment and it is ambivalent as

to who, from a theoretical perspective, has committed the crime the enterprise or the individual:

N. Kyoto, Criminal Liability of Corporations Japan, in De Doelder and Tiedemann, eds., supra

n. 36, p.275.

50. Robinson, supra n. 36, pp. 57-58; Beale and Safwat, supra n. 36, pp. 110-111.

51. Robinson, supra n. 36, pp. 59-60.

52. By Art. 11 of the new Penal Code, Portugal has recognised exceptions to the general rule

that only individuals can be criminally liable. In Portuguese criminal law, a distinction is drawn

between core and secondary criminal law. Corporate criminal liability is only recognised in

relation to a limited number of secondary crimes: T. Serra, Establishing a Basis for Criminal

Responsibility of Collective Entities, in Eser, et al., eds., supra n. 36, p. 203.

53. S. 332(1) Criminal Procedure Act (51 of 1977). See further F. van Oosten, Theoretical

Bases for the Criminal Liability of Legal Persons in South Africa, in Eser, et al., eds., supra n. 36,

p. 195; Robinson, supra n. 36, pp. 55-56.

54. To date only very limited corporate criminal liability provisions have been introduced inSpain in relation to specific bribery offences, if they can be properly characterised in this way.

These provisions allow for sanctions to be imposed on a corporation when a relevant individual

has been convicted of an offence and are described by the OECD Working Group on Bribery

as involving criminal liability: Spain: Phase 2. Report on the Application of the Convention on

Combating Bribery of Foreign Public Officials in International Business Transactions and the

1997 Recommendation on Combating Bribery in International Business Transactions, adopted by

the OECD Working Group on Bribery in International Business Transactions, 24 March 2006, at

(last visited 18 October 2009) pp. 38-40, 43-44.

But, arguing that Spain does not yet recognise corporate criminal liability, see Ramasastry and

Thompson, supra n. 5, p. 13; Spain: Survey Questions and Responses, Fafo National Surveys

(6 September 2006), at (last visited18 October 2009).

55. Robinson, supra n. 36, pp. 34-38; Beale and Safwat, supra n. 36, pp. 113-115.


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2.2.1 Germany

John Coffee suggests that Germany has probably the most sceptical andrestrictive view on corporate criminal liability of the principal European

nations.58 Apart from some distinctive exceptions, German law has never

recognised corporate criminal liability,59 reflecting the view that such a prin-

ciple departs from fundamental tenets of criminal law as understood from

the framework of influential 19th century philosophical traditions.60 Instead,

a system of administrative penalties was established in the German Law on

Infractions (Ordnungswidrigkeiten)61 that empowers administrative agencies to

impose administrative fines on corporations for wrongs committed by certain

corporate officers. Under this system, a corporation may be sanctioned for

wrongful conduct (either a crime or an administrative wrong) committed byeither:

a representative organ of the corporation or a member of such an organ (for

example corporate directors). This can include de facto directors provided

there was a clear, even if implicit, designation by the company of this direc-

torship, or

lower level officers or employees, provided that senior officers within the

above class could have prevented such conduct through adequate surveil-

lance. This lack of surveillance can be based on flaws in the companysorganisation.

In addition, the wrongful conduct must constitute the improper performance

of the corporations obligations, or the corporation must have been unjustly

enriched by the conduct for liability to attach.62

There is debate as to whether it is accurate to compare the German system of

administrative sanctions against corporations with criminal law sanctions. On

the one hand it is reported that within Germany itself the system is perceived

as non-criminal.63 With the origins of the system as a successor to an earlier

decriminalised system for fining primarily petty offences, defendants and the

58. Coffee, supra n. 10, p. 22.

59. Stessens, supra n. 11, p. 503, fn. 45. Cf., G. Fieberg, National Developments in

Germany: An Overview, in Eser, et al., eds., supra n. 36, p. 83.

60. For a background to Germanys current philosophical position see Weigend, supra n. 35,

pp. 930-932.

61. This system was established gradually from 1968-1986: Heine, supra n. 36, p. 174.

62. This description of the conditions of liability have been compiled based on: L.H. Leigh,

The Criminal Liability of Corporations and Other Groups: A Comparative View, 80 MichiganL Rev. (1982) p. 1508 at pp. 1522-1523; Stessens, supra n. 11, pp. 507-508, 513, 514-515, 516;

Coffee, supra n. 10, pp. 22-23.


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general public are said to view the sanctions as non-criminal in kind.64 Further,

German scholars often distinguish the German administrative sanctioning

system from the criminal law because administrative offences are thought to

be morally neutral and without stigma (a factor that was important to German

legislators in opting for this system)65 and because they relate to offences that

cannot be punished by imprisonment if committed by a natural person.66

Leigh, on the other hand, argues that administrative offences cannot be

deemed devoid of moral content simply by virtue of the label that has been

attached by, and to, the governing law. He states:

That fault finds no place in the formal definition of the offence does not imply that

a person who commits such an offence can be assumed to have acted without moral

fault.67

There is substance to Leighs claim. The grounds for ascribing responsibility

under the German corporate liability scheme resemble the English identification

doctrine and organisational models of attributing corporate fault respectively.68

Unlike strict and absolute liability (where negligence or fault is entirely

irrelevant to the commission of the wrong) or vicarious liability (where the

wrongdoing of employees are automatically transferred to the corporation),

the German system appears to require some degree of fault on the part of the

corporation before liability will be imposed.69 This is either because the relevant

conduct is committed by the highest corporate officers, which can therefore

be legitimately implied to the corporation, or because of some failure in the

functioning of the corporate hierarchy. Characteristics such as these, as well as

the appeal rights of corporations to the criminal courts70 and the severity of the

fines that can be imposed,71 have prompted some commentators to describe the

German system of corporate administrative sanctions as quasi-criminal in kind.72

However, if the public message delivered by the imposition of this form of

liability does not denote moral wrongdoing as a result of the established social

meanings around that liability, then a distinctive feature of criminal liability is

lacking. This idea is discussed further in section 4 below.

64. Coffee, supra n. 10, p. 22. Stessens, on the other hand, suggests that this origin is a mark

of the quasi-criminal nature of the system: Stessens, supra n. 11, p. 503.

65. Stessens, supra n. 11, p. 503.

66. Leigh, supra n. 62, p. 1523.

67. Ibid.

68. See, e.g., Coffee, supra n. 10, p. 23. Cf., Stessens, who compares the system to a disguised

form of vicarious liability: Stessens, supra n. 11, p. 508.69. For example, Jescheck has criticised the German system on the basis that the fines are

tainted with notions of guilt that are inappropriate to a legal person: Leigh, supra n. 62, p. 1523.


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2.2.2 Italy

The most significant obstacle to the adoption of corporate criminal liability inItaly is based on the Italian Constitution. Article 27(1) of the Italian Consti-

tution states that la responsabilit penale personale (criminal liability is

personal).73 Article 27(1) has been interpreted by Italys Constitutional Court

to mean that a criminal charge can attach only to an individual human being.74

As a result of this constitutional barrier and a dominant legal tradition in Italy

rejecting forms of corporate criminal responsibility,75 Italy has instead intro-

duced direct administrative liability for corporations with Legislative Decree

231/2001 issued on 8 June 2001.

Italys corporate administrative liability scheme shares features common to

corporate criminal liability schemes. In what might be viewed as analogous tothe physical element of a criminal offence, or its objective element, the statute

imputes legal liability to a corporation for an offence committed in its interest

and for its benefit (Art. 5(2)) by either:

Category 1: a person in a position of authority, management or control (both

de facto and de lege) of the corporation, or of a financially or

functionally autonomous subsidiary (Art. 5(1)(a)), or

Category 2: persons subject to the authority of or control of persons indicated

in category 1, in other words subordinate staff such as employeesor agents (Art. 5(1)(b)).76

73. Art. 27(1) Italian Constitution: English text available online at Italy Constitution,

International Constitutional Law, (last visited 18 October

2009).

74. This interpretation was confirmed with the Constitutional Court sentence no. 364 in

1988: C.E. Paliero, Criminal Liability of Corporations-Italy, in De Doelder and Tiedemann,eds., supra n. 36, p. 251 at pp. 255, 258-259. This view is believed to be confirmed by Art. 27(3)

of the Italian Constitution, which states that punishments may not contradict humanity and

must aim at re-educating the convicted: V. Militello, The Basis for Criminal Responsibility of

Collective Entities in Italy, in Eser, et al., eds., supra n. 36, p. 181 at p. 184. A number of Italian

commentators have proposed an alternative interpretation of Art. 27 that does not preclude, but

would be consistent with, corporate criminal liability: Paliero, at p. 260.

75. For example, Militello reports: The theoretical obstacle to admitting forms of collective

criminal responsibility in the Italian legal system is obdurate. Indeed, this kind of responsibility

has been labelled and recently more than heresy, judicial blasphemy Militello, supra

n. 74, p. 182.

76. J. Gobert and E. Mugnai, Coping with Corporate Criminality Some Lessons fromItaly, Criminal L Rev. (2002) p. 619 at p. 625. See also N. Ferro, Riding the Waves of Reform

in Corporate Law, An Overview of Recent Improvements in Italian Corporate Codes of Conduct,


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Depending on the category of individual whose conduct constitutes the basis of

a corporations liability, different subjective fault elements are required to make

out the liability of the corporation. In either case, to avoid liability the corpora-

tion must show that it has established certain effective systems of control and

supervision over the behaviour of individuals within the corporation. However,

the demands made by the Decree regarding the requisite components of the

control systems are more stringent in the case of offences conducted by heads

of the corporation (category 1)77 and less demanding for subordinates (category

2).78 In addition there is an inverted burden of proof in the case of category 1

offenders, whereby the corporation is required to prove that an efficient and

suitable control system has been put in place,79 reflecting a similar idea to that

originating in English law that top tier corporate officers represent the identity

of the corporation.80 Conversely, in the case of liability based on the conductof a category 2 individual, provided that the corporation can point to an appro-

priate system of control and supervision, the prosecution has the burden of

proving the systems insufficiency.81

It has been suggested that the label of administrative liability given to the

Italian law was adopted to overcome the constitutional obstacle rather than to

accurately reflect the nature of the liability regime established.82 Gobert and

Mugnai point to a number of characteristics of the regime that suggest it is

largely penal in nature: companies will be responsible for criminal offences,

cases are heard by criminal courts and criminal procedures are used.83

On theother hand, De Maglie notes that, like the German model mentioned above,

the labelling of the sanctions as administrative rather than criminal means that

the stigma normally associated with the finding of criminal responsibility is

lacking.84

It is interesting to highlight a few features of the Italian law that might make

it particularly amenable to addressing the types of contexts in which transna-

tional corporations are typically implicated in international crimes, were the

law extended to cover such crimes. First, the law has extraterritorial reach based

on the jurisdictional ground of active nationality. Article 4 of the Italian statute

77. Art. 6 Decree 231/2001. See Gobert and Mugnai, supra n. 76, pp. 626-628; Ferro, supra

n. 76, pp. 9-10.

78. Art. 7 Decree 231/2001. See Gobert and Mugnai, supra n. 76, p. 628.

79. Art. 6(1) Decree 231/2001, quoted in Gobert and Mugnai, supra n. 76, p. 627.

80. Ferro, supra n. 76, pp. 8-9; Gobert and Mugnai, supra n. 76, p. 627.

81. Art. 7 Decree 231/2001. See Gobert and Mugnai, supra n. 76, p. 628.

82. See, e.g., Gobert and Mugnai, supra n. 76, p. 624; Ferro, supra n. 76, pp. 8, 19.

83. Gobert and Mugnai, supra n. 76, p. 624. The resemblance of the scheme to criminal law

may not be entirely novel. Paliero argues that in the Italian legal system, at least since certainchanges in 1981, the structure of administrative torts and the principles underlying them are

closely connected to the modern European criminal model: Paliero, supra n. 74, pp. 265-266. The


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allows for a corporation to be prosecuted in Italy for an offence committed

overseas (for example by an overseas subsidiary) provided that the corpora-

tion is headquartered in Italy and that proceedings have not been initiated in

the foreign jurisdiction thus protecting against double jeopardy.85 Second,

the law appears to create broad powers for looking beyond the corporate veil.

Article 5 provides that a corporation can be liable for offences committed by a

head of an autonomous sub-unit or subsidiary. Such a person would be desig-

nated as a category 1 person and therefore subject to the inverted burden of

proof mentioned above. Third, according to Article 8, although the liability

of a corporation is predicated on proof of an underlying human actor (which

it should be noted is already wider than the English identification model), the

corporations liability can still be established even where the individual perpe-

trator cannot be identified or convicted of an offence,86 thus addressing someof the concerns regarding the diffusion of individual responsibility particularly

characteristic of larger corporations.

These features appear to cut across some of the most challenging aspects

for prosecutions of transnational corporations operating in a global economy:

the traditional territoriality of criminal law; the doctrine of separate legal

personality;87 the problem of parent companies avoiding liability through

a hands off managerial attitude to the conduct of their subsidiaries; and the

difficulty of identifying individual wrongdoers in complex transnational corpo-

rate structures. It is also interesting to note that since 2003 the Italian schemeextends to the offences of placing or holding a person in a condition of slavery

or servitude, trafficking in human beings, and the sale and purchase of slaves.88

It is therefore already directed to conduct of a kind with that addressed in inter-

national criminal law.

The Italian statute was designed to bring Italian law into accord with a

number of European Conventions and Protocols requiring member states

to enact laws that render corporations liable for a variety of offences.89 It

is therefore a prime example of the influence international developments

have on national laws and practices, including how models of corporate

liability are adapted to local circumstances. The following section sets out

85. Gobert and Mugnai, supra n. 76, p. 624; Ferro, supra n. 76, p. 8.

86. Gobert and Mugnai, supra n. 76, pp. 628-629.

87. For an excellent article on difficulties created by the concept of separate legal personality

over achieving the accountability of transnational corporations, see P.I. Blumberg, Accountability

of Multinational Corporations: The Barriers Presented by Concepts of the Corporate Juridical

Entity, 24Hastings International and Comparative L Rev. (2001) p. 297.

88. Inserted into Art. 25 of Decree 231/2003 by Art. 5 of Law no. 228 on Measures against

Trafficking in Persons (2003). English text at (last visited 18 October2009). In the event that the offending corporation or one of its organisational units is exclusively

or mainly run for the purpose of committing one of these crimes, irrevocable disqualification from


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recent international instruments that provide examples of codified corporate

liability under international law.

2.3 International developments

A recent study conducted by Anita Ramasastry and Robert Thompson for Fafo

has shown that increasingly states have law on the books that could be applied

to corporations for their role in international crimes. Based on surveys of 16

countries, which sought to assess the liability status of business entities under

national statutes governing international (and related) crimes, Ramasastry and

Thompson conclude that, despite the exclusion of corporations from the juris-

diction of the ICC, it is already possible to hold business entities liable for the

commission of international crimes.90 As a result of the domestic implementa-tion of ICC Statute offences by states that make provision for the prosecution of

business entities and the introduction of complementary crimes directed at busi-

ness entities, such as crimes of bribery and money laundering, Ramasastry and

Thompson argue that there is an expanding potential web of liability that, if

applied, greatly reduces the ability for business entities to avoid accountability

for international crimes.91

While this trend has important ramifications for the liability and account-

ability of corporations for international crimes, it does not in itself answer the

problem of the comparative law challenge that was initially posed at the RomeConference as an argument against the extension of liability to corporations

under the ICC Statute, nor does it provide any guidance as to the proper form

such liability, if adopted, should take. It is one thing for a state to electto apply

its own criminal law to the problem of corporate involvement in particular

crimes and another for an international instrument to effectively oblige states

to do so. It does however suggest the significant impact international devel-

opments have on the creation of enforceable duties at a domestic level and it

describes the new environment, one in which corporate criminal liability for

international crimes is increasingly accepted at a state level, in which any future

debate on corporations and the ICC must now be situated.

In contrast to the ICC Statute, there are a number of international and

regional instruments that explicitly require States Parties or member states to

provide for the liability of categories of legal persons, including corporations,

within their national legal systems. These instruments are targeted primarily

to crimes with transnational or international dimensions, such as corruption,

90. Ramasastry and Thompson, supra n. 5, pp. 27-28. The survey covered countries across

both the civil and common law divide. These were Argentina, Australia, Belgium, Canada, France,Germany, India, Indonesia, Japan, the Netherlands, Norway, South Africa, Spain, Ukraine, the

United Kingdom and the United States.


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Crime,98and the United Nations Convention against Corruption,99 state that the

type of liability adopted by States Parties for the purpose of establishing the

liability of legal persons may be criminal, civil or administrative.Article 18 of the Council of EuropeCriminal Law Convention on Corrup-

tion100 exemplifies an alternative drafting option, which is to simply omit

reference to the kind of liability that States Parties must establish in relation to

legal persons altogether. By implication states are therefore entitled to deter-

mine the most appropriate form of liability to achieve the objectives of the

Convention be it criminal, civil or administrative, or some hybrid of these.101

Like the OECD Anti-Bribery Convention, most of these conventions require

that the sanctions to which the legal person will be subjected must be effective,

proportionate and dissuasive,102 so as to reflect the seriousness of the offences in

question.Article 18 of the Council of EuropeCriminal Law Convention on Corruption

provides another point of interest. Although the Convention is silent on the type

of liability that States Parties must adopt in order to satisfy their treaty obliga-

tions, it nonetheless sets out a detailed prescription of pre-conditions of liability

that must be adopted. It reads:

1. 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 offence of active bribery,

trading in influence and money laundering established in accordance with this Con-vention, 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:

98. Art. 10 United Nations Convention against Transnational Organized Crime, opened for

signature 15 November 2000, 2225 UNTS p. 275 (entered into force 29 September 2003).

99. Art. 26 United Nations Convention against Corruption, opened for signature 31 October

2003 (entered into force 14 December 2005) (UN Doc. A/58/422).100. Art. 18 Criminal Law Convention on Corruption, opened for signature 27 January 1999,

CETS No. 173 (entered into force 1 July 2002).

101. Art. 18(1) requires States Parties to adopt such legislative and other measures as may

be necessary to ensure that legal persons can be held liable for [specified] criminal offences.

The Explanatory Report confirms that by failing to stipulate the kind of liability required, the latter

provision does not impose an obligation to establish that legal persons will be held criminally

liable for the offences mentioned therein: Council of Europe, Criminal Law Convention on

Corruption: Explanatory Report, para. 86. This is further supported by Art. 19(2) that allows the

imposition of criminal or non-criminal sanctions.

102. Art. 5(3) International Convention for the Suppression of the Financing of Terrorism,

opened for signature 9 December 1999, 39 ILM p. 270 (entered into force 10 April 2002);Art. 10(4) United Nations Convention against Transnational Organized Crime, opened for signa-

ture 15 November 2000, 2225 UNTS p. 275 (entered into force 29 September 2003); Art. 26(4)


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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;

as well as for involvement of such a natural person as accessory or instigator in theabove-mentioned offences.

2. Apart from the cases already provided for in paragraph 1, each Party shall take the

necessary measures to ensure that a legal person can be held liable where the lack of

supervision or control by a natural person referred to in paragraph 1 has made possi-

ble the commission of the criminal offences mentioned in paragraph 1 for the benefit

of that legal person by a natural person under its authority.

3. Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal

proceedings against natural persons who are perpetrators, instigators of, or accesso-

ries to, the criminal offences mentioned in paragraph 1.

According to this model, the liability of a corporation can be based either on

the seniority of the individual committing the offence, reflective of an extended

version of the English identification model (para. 1) or on the basis of organi-

sational defects (para. 2). Similar models for the conditions of liability of legal

persons are set out in a number of instruments adopted by branches of the Euro-

pean Union on corruption,103 and a number of Council Framework Decisions on

terrorism,104 trafficking in human beings,105 environmental protection,106 and the

sexual exploitation of children and child pornography.107

There are also some examples of initiatives at an international level thatmove towards national recognition of the criminal responsibility of corpo-

rations. According to Article I(2) of the International Convention on the

Suppression and Punishment of the Crime of Apartheid,108 States Parties,

currently representing over 80 states, declare criminal those organizations,

institutions and individuals committing the crime of apartheid. In another

example, Andrew Clapham has argued that the Global Convention on the

Control of Transboundary Movements of Hazardous Wastes might be inter-

preted as requiring states to criminalise the unauthorised transboundary

103. See, e.g., Arts. 5 and 6 Joint Action of 22 December 1998 adopted by the Council on the

Basis of Art. K.3 of the Treaty on European Union, on Corruption in the Private Sector, Official

Journal (1998), L 358, p. 2.

104. Arts. 7 and 8 Council Framework Decision of 13 June 2002 on Combating Terrorism,

Official Journal (2002), L 164, p. 3.

105. Arts. 4 and 5 Council Framework Decision of 19 July 2002 on Trafficking in Human

Beings, Official Journal (2002), L 203, p. 1.

106. Arts. 6 and 7 Council Framework Decision of 27 January 2003 on Protection of the

Environment through Criminal Law, Official Journal (2003), L 29, p. 55.107. Arts. 6 and 7 Council Framework Decision of 22 December 2003 on Combating the

Sexual Exploitation of Children and Child Pornography, Official Journal (2004), L 13, p. 44.


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movement of hazardous wastes and, by extension, to subject both natural andlegal persons to this criminal jurisdiction.109

In the context of non-binding instruments, the Draft Convention on theEstablishment of an International Penal Tribunal for the Suppression andPunishment of the Crime of Apartheid and Other International Crimes envis-aged the establishment of an International Penal Tribunal with competenceto investigate, prosecute, adjudicate and punish any person or legal entityaccused or guilty of certain categories of crimes.110 The language clearlyimplies that the drafters intended the application of criminal jurisdiction toboth natural and legal persons. Another example is Recommendation No. R(88) 18 of 20 October 1988 of the Committee of Ministers for the Council ofEurope, according to which enterprises should be rendered liable for offences

committed in the exercise of their activities.111

Whether liability should becriminal or non-criminal is to be based on an assessment of certain factors.

Specifically, Recommendation I(3) states:

To render enterprises liable, consideration should be given in particular to:

a. applying criminal liability and sanctions to enterprises, where the nature of the

offence, the degree of fault on the part of the enterprise, the consequences for society

and the need to prevent further offences so require;

b. applying other systems of liability and sanctions, for instance those imposed

by administrative authorities and subject to judicial control, in particular for illicit

behaviour which does not require treating the offender as a criminal.

No reference is made to consideration of local law factors. Although not yetreflected in the binding conventions that have been adopted, the Council ofEurope has therefore in principle called for the adoption of criminal measuresby its member states where certain considerations warrant the imposition ofcriminal, rather than any other form of, liability, despite difficulties that mayarise from national legal traditions. Perhaps unsurprisingly, both the representa-tives of the Federal Republic of Germany and of Greece reserved the right oftheir governments not to comply with the Recommendation.

In 1998, the academic members of a colloquium on the criminal responsi-bility of legal and collective entities held in Berlin favoured the promotion of

criminal or quasi-criminal responsibility of legal and collective entities.112 The

109. Clapham, supra n. 40, pp. 173-174.

110. Contained in Sub-Commission on the Promotion and Protection of Human Rights

(1981), Study on the Ways and Means of Insuring the Implementation of International

Instruments such as the International Convention on the Suppression and Punishment of the

Crime of Apartheid, including the Establishment of the International Jurisdiction Envisaged by the

Convention (E/CN.4/1426).111. Recommendation No. R (88) 18 of the Committee of Ministers to Member States

Concerning Liability of Enterprises Having Legal Personality for Offences Committed in the


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recommended factors to be taken into account in determining whether criminal

or quasi-criminal liability should be required were identified as:

the scope of other systems of liability, the scope of corporate activities, the

nature of offences, the character and degree of fault on the part of the entity, the need

to prevent further offences and to influence entities by direct or indirect means, and

the consequences for society. In any case, clear prerequisites for responsibility are

necessary.113

By extending their recommendations to encompass both criminal and quasi-

criminal responsibility as comparably distinct to other forms of liability, the

colloquium participants seem to recognise legal side systems in national laws

such as regulatory offences [and] administrative penal law114

as legiti-mate alternatives to formal criminal accountability.

The ICC Statute does not specifically demand that states adopt criminal laws

for the purpose of prosecuting perpetrators of international crimes, but it does

have the ability to adjudicate a case in the event that states fail, or are unable, to

do so. The following section looks at how the ICC Statute treats national non-

criminal measures applied to individual perpetrators of international crimes and

what this means for extending ICC jurisdiction to include corporate defendants.

3. CORPORATE CRIMINAL LIABILITY AND THE ICC STATUTE

There is debate regarding the permissibility of national non-criminal mecha-

nisms to address conduct proscribed under the ICC Statute. While the focus

has been primarily on the status of truth commissions, amnesties and pardons,

the question has also been directed to non-criminal sanctions imposed by civil

courts, administrative agencies or other law enforcement authorities outside a

criminal trial.115

In short, the ICC Statute envisages that states will primarily apply their

criminal law to conduct proscribed by the Treaty. This is reflected, amongother things, in the Statute preamble. However, the definitive status of national

non-criminal mechanisms was intentionally left unresolved in the drafting of

the Statute as a result of strongly divergent views on the matter. 116 Robinson

reports that on the one hand most delegations had misgivings about mandating

prosecution as the only acceptable response in all situations.117 In some cases

113. Ibid., p. 369.

114. Ibid., p. 368.115. See, e.g., F. Meyer, Complementing Complementarity, 6International Criminal L Rev.

(2006) p. 549 at p. 552.


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alternative mechanisms may be necessary for achieving peace and security,118

as well as for pragmatic reasons following mass atrocities. On the other hand,

the option of creating blanket exceptions to criminal prosecution was viewed

during negotiations as equally untenable given the severity of the crimes dealt

with by the ICC and its purpose as a prompt to states to overcome the consid-

erations of expedience and realpolitikthat had so often led them to trade away

justice in the past.119

The prevailing view is that, as a result of this ambiguity, the ICC Statute

leaves a few small avenues open to alternative accountability mechanisms,120

although there is debate as to the precise scope afforded by those avenues. Each

avenue is considered briefly below.

3.1 Avenues for recognition of non-criminal mechanisms under theICC Statute

3.1.1 Prosecutorial discretion under Article 53

Under Article 53, the Office of the Prosecutor (OTP) has discretion as to

whether to proceed with an investigation of a given matter and, in turn, whether

to proceed with prosecution following an investigation. There are two relevant

grounds that must be considered by the OTP, which may allow some scope

to defer to national non-prosecutorial responses to international crimes. Theseconsiderations are the likely admissibility of the case under Article 17 and

whether proceeding with an investigation or prosecution would serve the inter-

ests of justice.121The notion of interests of justice is likely to be a relatively

broad concept, entitling considerations beyond those relevant to the interests

of retributive criminal justice.122 It is this aspect of prosecutorial discretion that

is regarded as the most likely point at which deference to alternative national

approaches might occur.123

118. Ibid., p. 495.

119. Ibid., p. 483. On debate during drafting, see also W.A. Schabas, An Introduction to the

International Criminal Court, 2nd edn. (Cambridge, Cambridge University Press 2004) p. 87.

120. Robinson, supra n. 116, p. 483. See also Meyer, supra n. 115, p. 581.

121. See, e.g., Robinson, supra n. 116, pp. 486-487; C. Stahn, Complementarity, Amnesties

and Alternative Forms of Justice: Some Interpretive Guidelines for the International CriminalCourt, 3JICJ(2005) p. 659 at pp. 697-698, 717-718; Meyer, supra n. 115, pp. 552-553; Schabas,

supra n. 119, p. 87, fn. 72.


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3.1.2 Admissibility determinations under Article 17

Under Article 17(1)(b), where a competent and appropriate national authorityhas decided not to prosecute a specific case and decides instead to utilise an

alternative process, the case may be excluded from the ICC through a finding

of inadmissibility. The prevailing view is that to qualify as a bar to ICC adju-

dication under this provision, a national non-criminal measure must have been

preceded by (or involved): first, an investigation into the facts (which does not

necessarily have to be a criminal investigation); second, a genuine contempla-

tion by the appropriate national authority to prosecute; and third, a decision

to deliberately refrain from doing so.124 Further, any such decision must not

constitute unwillingness or inability to genuinely carry out investigation and

prosecution.125Article 17(1)(b) presupposes that prosecution is an available option under

domestic law and that this avenue has been genuinely contemplated in the given

case.126 The requirement that a decision must be made requires that there is

more than one option available to the purported decision maker. Thus, there

must at least be a possibility of prosecution.127 The use of the term prosecute

implies that the domestic options must include the application of criminal

procedure.128 It is therefore generally not seen to cover the blanket use by

national authorities of non-criminal mechanisms in relation to particular catego-

ries of defendants. In the case of corporate defendants, this would mean that forcountries like Germany and Italy, for example, the application of administra-

tive liability to corporations may not satisfy Article 17(1)(b) as the option of

criminal prosecution would not be available. The case specific nature of any

deference to a national non-criminal procedure may be equally true in relation

to prosecutorial decisions not to proceed with a given case. This is because

interests of justice considerations also appear to be designed to refer to a

specific case rather than general policy considerations.129

3.1.3 The ne bis in idem principle under Article 20(3)

The ne bis in idem principle (meaning no one shall be tried twice for the

same offence) contained in Article 20(3) sets out a means for prior completed

national proceedings to bar ICC adjudication of the same matter. Article 20(3)

does not specify the character of the prior national decision maker contemplated

124. Meyer, supra n. 115, p. 566; Robinson, supra n. 116, pp. 499-500; Stahn, supra n. 121,

pp. 701-712.125. Robison, supra n. 116, pp. 500-502; Stahn, supra n. 121, pp. 712-716.

126. Meyer, supra n. 115, p. 566; Robinson, supra n. 116, p. 500; Stahn, supra n. 121, p. 712.


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by the Statute.130 It has therefore been argued that proceedings before decision

makers other than pursuant to a criminal trial might be functionally equivalent

to being tried by another court for the purposes of Article 20(3)131 and might

therefore constitute a bar to ICC adjudication under Article 17(1)(c). Adopting

this view, Meyer argues that trials of a non-criminal nature that attach to an

individual and that express wrongdoing should potentially preclude ICC juris-

diction under the principle ofne bis in idem. In Meyers view, this should only

be the case where principles of double jeopardy as they operate in the state in

question would have precluded a subsequent national criminal prosecution.132

Other commentators take the view that only prior criminal measures could

operate as a bar to a subsequent trial of the same matter by the ICC. In the

broader context of the Statute, the application of criminal justice mechanisms

seems to be implied.133 Bassiouni argues that only a conviction or acquittalcould constitute a bar to prosecution by the ICC.134 Others have argued that

other decisions made in the context of a criminal trial might be sufficient,

for example dismissals during trial. However, these views also presuppose

the application of criminal jurisdiction.135 One of the further difficulties for

extending Article 20(3) to encompass non-criminal trials is that such other

proceedings must not be for the purpose of shielding the person concerned

from criminal responsibility (Art. 20(3)(a)) and must be consistent with

bringing the person to justice (Art. 20(3)(b)).136

3.1.4 Deferral by the Security Council under Article 16

Finally, the Security Council may require the ICC to suspend an investigation

or prosecution on the basis that to go ahead would jeopardise attempts to secure

international peace and security (Art. 16).137 This avenue seems most likely to

arise where the use of alternative mechanisms, such as truth and reconciliation

commissions or amnesties, are viewed as a practical necessity, for example, in

securing the transition from one regime to another.

In light of the statutory framework and a need to balance pragmatism with

the demand for a criminal justice response in relation to international crimes,

commentators have identified a number of considerations that might be

130. Meyer, supra n. 115, p. 555.

131. M.P. Scharf, Amnesty Exception to the Jurisdiction of the International Criminal Court,

32 Cornell ILJ(1999) p. 507 at p. 525.

132. Meyer, supra n. 115, pp. 556-564.

133. Ibid., pp. 555-556.

134. Ibid., p. 555.135. Ibid. See also M.M. El Zeidy, The Principle of Complementarity: A New Machinery to

Implement International Criminal Law, 23Michigan JIL (2002) p. 869 at p. 938.


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appropriately taken into account by the requisite authorities in decision making

under Articles 17 and 53. These indicate thinking around the kinds of charac-

teristics a national measure should display if deference should be contemplated

within the avenues afforded by the ICC Statute and in what circumstances

divergence from the prosecutorial norm might be legitimate in relation to inter-

national crimes. These are considered briefly in the following section.

3.2 Guidelines for the assessment of non-criminal mechanisms

Frank Meyer has advocated a principle of contextual proportionality in rela-

tion to assessments of the adequacy of national non-criminal mechanisms

in relation to international crimes.138 Meyers contextual proportionality

approach determines the sufficiency of national measures initially by referenceto usual state practice, an approach he justifies in part on the basis that local

measures are generally a better means than international measures for gener-

ating pedagogy regarding international crimes. This argument is in turn based

on the view that local systems are more likely to resonate in accordance with

the moral and criminal codes offenders and their communities are familiar with

and hence will have the requisite pedagogical effect.139

However, Meyer also acknowledges that not all national practice is accept-

able at an international level and therefore recommends that a national measure

should identify a specific wrongdoer, constitute an expression of wrongdoingand be administered credibly and fairly according to standard national practice

before operating to bar ICC adjudication.140 In addition, Meyer argues that a

national measure should comply with internationally acceptable minimum stan-

dards, including the requirement that non-criminal mechanisms are unlikely

to be appropriate in relation to core offenders of international crimes, whereas

outer-circle offenders may be legitimate candidates for non-criminal sanc-

tions.141 Core offenders would encompass those most responsible for crimes,

such as military or civilian leaders involved in the orchestration of crimes.

The idea that core perpetrators of international crimes must be subject to

criminal prosecution, while lesser perpetrators may be more legitimately dealt

with through alternative (but still sufficient) means, is echoed by a number of

commentators.142 A similar sentiment is reflected in the practices of the Inter-

national Criminal Tribunals for Rwanda and the former Yugoslavia, and the

138. Meyer, supra n. 115, pp. 549-583.

139. Ibid., pp. 574-575. For a similar argument in relation to international punishment not

calibrated to national expectations and norms, see I. Tallgren, The Sensibility and Sense of

International Criminal Law, 13EJIL (2002) p. 561 at pp. 581-583.140. Meyer, supra n. 115, pp. 552, 576-557.

141. Ibid., pp. 576-578.


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International Military Tribunal in Nuremberg, to focus on the most responsible

individuals and to leave lesser offenders to national mechanisms.

In general, the considerations that have been recommended in relation to

assessing the sufficiency of national measures reiterate the case specific nature

of the permissibility of non-prosecutorial avenues for accountability. These

considerations focus upon the quality of, and reasons behind, the alterna-

tive measures adopted. Considerations include the severity of the crime, and

whether the alternative mechanism is compatible with international obligations

to prosecute under treaty or custom,143 the reason for the departure from the

norm of criminal prosecution144 and the sufficiency of the punishment.

3.3 Ramifications for the proposal to include corporations within

ICC jurisdiction

In light of this brief review of the status of national non-criminal mechanisms

for dealing with international crimes under the ICC Statute, if corporations

were included in the jurisdiction of the ICC according to the same conditions

of admissibility applied to cases against natural persons then states could not

be guaranteed that the application of non-criminal accountability mechanisms

would necessarily operate to bar ICC adjudication of the same conduct. Instead,

there is a risk that the ICC may decide to adjudicate the activities of a State

Partys corporate national or to adjudicate corporate aspects of internationalcrimes that have occurred on a State Partys territory, despite a desire by the

host or home state to take jurisdiction of the matter in question. It is reasonable

to suggest that such a risk is reasonably small given that the ICCs OTP must

make decisions as to how to best allocate its scarce resources. Particularly in

states with robust quasi-criminal systems of corporate liability and in cases

where the corporation does not constitute a core offender, the genuine applica-

tion of such a system may persuade the OTP not to proceed in the same matter.

This would be particularly persuasive where the alternative measure involves

a genuine inquiry into the specific corporations involvement in the relevant

international crime, the possibility of proportionate punishment and reflects

the usual practice of the state in relation to such entities. However, state anxi-

eties regarding the status of national non-criminal mechanisms may nonetheless

prevail and lead states to seek statutory assurance of the sufficiency of alterna-

tive local measures in relation to corporate defendants.

Ultimately, there is the option of clarifying the specific status that national

non-criminal corporate liability schemes shall be given in the ICC Statute.

The choices are at least three-fold. First, the ICC Statute could adopt a non-

criminal corporate liability scheme and recognise similar national non-criminal


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liability schemes in relation to corporations. Second, corporations could be

treated in terms equivalent to natural persons under the Statute. This would

mean, as outlined above, that states could not be guaranteed that non-criminal

accountability mechanisms would be deemed sufficient in all circumstances

and so could not be guaranteed of barring ICC jurisdiction if relied upon to the

absolute exclusion of criminal liability. A number of arguments commend this

approach, including limiting interference with the existing statutory framework.

Others are set out below.

Third, the Court could adopt a criminal liability scheme in relation to corpo-

rate defendants adjudicated within the ICC but take a more permissive approach

to national non-criminal corporate accountability mechanisms for the purpose

of admissibility determinations. The approaches outlined earlier that have

been adopted in international instruments relating to corporate liability offerexamples of codification where the local designation of a law may be left open

but preconditions for corporate liability nonetheless made explicit. This option

would require a positive statement of that intent in the ICC Statute to circum-

vent the prevailing presuppositions in favour of the application of criminal

jurisdiction.

The next section considers this question, arguing in favour of equivalency in

terms of the treatment of measures aimed at corporations and natural persons,

based on the nature of the crimes in question and the unique normative capacity

of the criminal law. However, given the need for a very broad base of supportfor the proposal to include corporations in the jurisdiction of the ICC, the third

alternative is recommended as an inferior but still justifiable alternative.

4. THE CASE OF CORPORATE DEFENDANTS: IS A FLEXIBLE

APPROACH BEST?

There are arguments in favour of adopting a more permissive approach to the

use of national non-criminal liability schemes directed at corporations than

that adopted in relation to natural persons in the ICC Statute. The demanding

conditions for introducing amendments to the ICC Statute and the ability for

States Parties to opt out of the Statute if they oppose an amendment 145 means

that proposals for statutory change will require a significant level of support

before they could (or should) be introduced. From a pragmatic perspective,

affording equal status to different national liability schemes would bypass

concerns about the differential impact the ICC Statutes complementarity

regime might have on states that do not provide for corporate criminal liability.

It is also supported by the pedagogical argument, that local laws will best reso-

nate in a community when they accord with local moral and legal norms. Such


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an approach may be more acceptable to a greater number of states. This much

seems implied by the adoption of a pragmatic and deferential approach to the

comparative law problem in existing treaties and the reservations that have been

made by states to more demanding proposals.

A response to this argument might be that the kinds of conduct dealt with

by the existing international instruments that provide for corporate liability

are qualitatively different to those at proscribed by the ICC Statute. If

categories of crimes under international law are conceived as a triangle, the

ICC Statute crimes sit at its pinnacle. Where pragmatic considerations may

have more weight in relation to other categories of crimes, they become less

defensible in relation to international crimes. In addition, certain international

crimes are jus cogens and it has been argued that criminal responsibility

for such crimes already applies to all persons, both natural and legal, undercustomary international law.146 If accepted, there would be an argument that any

international codification processes should not derogate from, or undermine, the

full extent of these duties. Bert Swart has also pointed out that the existence of

criminal liability of corporations may make international cooperation between

states easier and more effective.147

A stronger but related argument for a flexible approach to the characterisa-

tion of local laws stems from the view that the label affixed to a particular

corporate liability scheme is ultimately less important than the achievement

of measurable improvements in corporate accountability. This is particularlyso given that there may be far less difference between criminal and non-crim-

inal approaches adopted by different states than is sometimes implied. Leigh,

for example, argues that systems of full corporate criminal liability, such as in

Australia, and administrative liability schemes, such as those of Germany and

Italy, often arrive in practice at a structure of liability that produces broadly

similar answers to the problems of corporate crime.148 This claim is to some

degree confirmed by the comparative review outlined earlier in the article,

where parallels could be drawn between the conditions of liability set out in the

German and Italian administrative sanctioning schemes and the common law

identification and organisational models of corporate criminal liability. In lightof the similar outcomes that have been achieved through the various national

systems of corporate liability, despite their developing from diametrically

opposed first principles,149 Leigh states:

[C]orporate criminal responsibility is not necessarily the only way to cope with

problems of economic power, or with the problem of proving offences by omission.

146. See, e.g., A. Ramasastry, Corporate Complicity: From Nuremberg to Rangoon.An Examination of Forced Labor Cases and their Impact on the Liability of Multinational

Corporations, 20Berkeley JIL (2002) p. 91 at p. 96.


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Whether the range of sanctions is seen as penal or administrative in nature, the

important point is that the sanctions be available.150

In a similar vein, after reviewing existing treaties that demand states adopt

systems of corporate liability, Andrew Clapham states:

The fact that treaties leave states a choice as to how to sanction a corporation does

not undermine the aim of the international treaty, which is to outlaw the relevant cor-

porate conduct.151

Although Clapham is not advocating either in favour or against criminal ornon-criminal corporate liability schemes, his point highlights that the aim of an

international treaty to address the corporate dimension of certain crimes is notnecessarily undermined by a permissive approach to national measures adoptedto outlaw the relevant conduct.

An argument that both criminal and non-criminal corporate liability may besufficient to achieve the outcomes sought by international criminal justice isfurther supported by work emanating from the field of economics and law ondomestic corporate liability. The law and economics school contends that civilliability regimes are more efficient and effective in terms of deterring unlawfulconduct in the corporate context than criminal regimes, and for this reason it iscivil liability, and not criminal liability, that should be pursued for the purpose

of achieving effective corporate accountability.152A problem with the arguments that criminal and non-criminal corporate

liability are roughly equivalent and the argument that non-criminal liability canbetter achieve the objectives of the criminal law in the corporate context isthat they fail to account for the unique retributive purposes and capacities ofcriminal liability. In his article, In Defence of Corporate Criminal Liability,Lawrence Friedman sets out the expressive theory of the retributive rationalefor criminal liability, in defence of the necessity of corporate criminal liabilityin relation to certain corporate misconduct. Criminal liability, Friedman argues,

corp criminal responsiblity under icc - ainsley

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