Liberals vs. Romantics: Challenges of an Emerging Corporate International Criminal Law

21 Pages Posted: 2 Mar 2018  

Carsten Stahn

Leiden University - Grotius Centre for International Legal Studies

Date Written: February 21, 2018

Abstract

Holding bystanders and corporate agents accountable for international crimes is often at the periphery of international criminal justice. Based on its liberal foundations, international criminal law has traditionally been strongly centered on individual agency. In the industrialist cases after World War II, individual criminal responsibility was used to demonstrate and sanction corporate involvement in crime. Ideas of corporate criminal responsibility have been voiced in the post-war era and in the context of the negotiations of the Statute. In recent years, they have witnessed a renaissance in several contexts: the jurisprudence of the Special Tribunal for Lebanon, the Malabo Protocol of the African Union and the Draft Articles of the International law Commission on Crimes Against Humanity. At the same time new domestic cases test the boundaries of the law (e.g., Jesner v. Arab Bank, Lafarge Cement). This contribution examines the strengths and weaknesses of individualized and collective approaches towards corporate wrongdoing. It argues that the way forward requires less ‘romanticism’ and more realism. The appropriate space of corporate criminal responsibility needs to be defined better. The concept is still most developed in domestic jurisdictions. Its role at the international level is likely to remain modest. The main challenge is to develop the interplay between individual and collective responsibility, and to assess more carefully in what areas and in what forums collective responsibility may be pursued best.

Keywords: Business and human rights, corporate criminal responsibility, corporate complicity, superior responsibility, Malabo Protocol, International Criminal Court

JEL Classification: K33, K42, K14, K22, N40

Suggested Citation

Stahn, Carsten, Liberals vs. Romantics: Challenges of an Emerging Corporate International Criminal Law (February 21, 2018). Available at SSRN: https://ssrn.com/abstract=3127843 or http://dx.doi.org/10.2139/ssrn.3127843

Carsten Stahn (Contact Author)

Leiden University - Grotius Centre for International Legal Studies ( email )

Leiden University Law Faculty
P.O. Box 9520
Leiden, 2300 RA
Netherlands

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