Through the Looking-Glass: Nuremberg’s Confusing Legacy on Corporate Accountability Under International Law

Abstract

Corporate entities have never been subject to international criminal prosecution for violations of international human rights or humanitarian law. As the judgment of the post-World War II International Military Tribunal (“IMT”) at Nuremberg explains: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” This traditional perspective on corporate accountability under international criminal law (“ICL”) reflects the long-accepted principle of “societas delinquere non potest” – “a legal entity cannot be blameworthy” and has continued to inform the jurisdiction of all subsequent international criminal tribunals. For instance, the Rome Statute states that the International Criminal Court ‘shall have jurisdiction over natural persons pursuant to this Statute’ thereby immunising all non-natural, legal persons, such as corporations, from prosecution. However, that is far from the complete story of corporate accountability under international criminal law, both past and present. For instance, there exists a strong line of judicial precedents for the idea that corporate executives, employees and directors may be held personally and criminally liable for egregious abuses of human rights and humanitarian law, or complicity thereof. Whether international law is directly applicable to corporations, and whether corporations can be held criminally accountable for violations of international human rights and humanitarian law remains matters of dispute amongst jurists and legal scholars. Remarkably, proponents of accountability, as well as those taking the contrary view, both invoke the legal history of the Nuremberg-era and in particular its treatment of major German corporations, to bolster their arguments. Seventy years after the fact, the Nuremberg-era’s legacy towards holding corporations legally accountable for participation in grave violations of international law remains at the centre of the contemporary debate, yet mired in confusion. This article offers an approach to understanding the competing modern-day interpretations of Nuremberg’s legacy, and explores what insights can be drawn from the dispute that may inform the future of corporate accountability for international crimes. Ultimately, I suggest that a narrow, positivist reading of Nuremberg-era jurisprudence dominates contemporary ICL practice - denying corporate liability. However, the discernible trend towards incorporating corporations into the international legal order suggests that a more progressive interpretation of Nuremberg’s legacy may soon be ascendant. This may, in turn, prompt formal recognition of the liability of corporations for serious violations of international law.

Keywords: corporate accountability; international criminal law; business and human rights