The Turn to Corporate Criminal Liability for International Crimes
James G. Stewart
University of British Columbia (UBC), Faculty of Law
February 19, 2014
In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries, on the basis that the company was responsible for a war crime. The Swiss investigation comes a matter of months since the US Supreme Court decided in Kiobel that allegations such as these could not give rise to civil liability under the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned about impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. After that, the American fiction that corporations are people for the purposes of criminal law took hold, such that the concept is now relatively ubiquitous globally. Even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability. Switzerland is one such case.
In this paper, I argue that scholars and human rights advocates should direct more of their energies towards this earlier precedent, especially its potential coupling with international crimes in national systems as in this new Swiss case. This approach promises to move this field beyond polarized debates about the scope of complicity within ATS litigation, which did not fully capture the nuanced meaning of accomplice liability in the criminal law. In addition, framing these cases in corporate criminal liability bypasses the cumbersome debate about corporate responsibility for international crimes as a matter of international law, which would not arise in criminal trials. Likewise, while trading the private right to sue under the ATS for prosecutorial discretion in a criminal context is certainly a loss, prosecutorial discretion also has its upsides, which we should explore with greater zeal. Finally, reframing ATS cases as corporate responsibility for international crimes provides a missing rationale for the type of corporate accountability that motivates human rights advocates, namely, retribution. As things turn out, corporate criminal liability for international crimes always had certain competitive advantages over the ATS, which we should hold up to the light alongside civil remedies if we are to call guilty corporations to account.
Number of Pages in PDF File: 37working papers series
Date posted: November 16, 2013 ; Last revised: February 19, 2014
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