Prosecuting Corporations for Violations of International Criminal Law: Jurisdictional Issues

Abstract

This volume analyses the problems criminal justice systems face in addressing alleged corporate wrongdoing. Corporations, unlike human beings, are established in one state, engage in business in and out of that state, and may have subsidiaries and suppliers in other states. As such, holding them accountable for wrongdoing becomes a complicated transnational issue. A multitude of factors come into play within this topic, including the fact that corporate criminal liability is not yet a generally accepted phenomenon. Liability of corporate groups as entities and accountability for their supply chains as an aggregate are also ambiguous issues that have not been addressed in most criminal justice systems. Further, the applicability of prevailing jurisdictional rules to corporations remains unclear, particularly with respect to new notions of addressing legal persons as modern citizens, for instance when using the active personality principle of jurisdiction.

The special edition of an RIDP issue of 2017 focuses on jurisdictional questions with regard to criminal liability of enterprises. As the UN Guiding Principles on Business and Human Rights of 2011 oblige countries to establish a legal framework ensuring that corporations respect internationally protected legal interests and basic human rights when doing business abroad, it might have consequences for jurisdictional rules in criminal law. States shall provide a remedy for victims of alleged human rights violations by corporate groups, as well as crimes alleged to have occurred in their supply chains if certain conditions are met. Of particular interest is the establishment of the link between substantive law and the application of territorial jurisdiction. Also addressed in this issue is the need for potential enhancement of traditional jurisdictional rules, including the personality principle, to create a more clear and distinct assignment of jurisdiction to minimize the risk of negative conflicts of jurisdiction and provide efficient remedies to victims of alleged human rights abuses.

Country reports add to the general topic of corporate accountability through an analysis of national rules governing the reach of domestic penal power and how they establish liability for crimes committed by corporations along a supply chain. A General Report is based on all Country Reports submitted for the International Colloquium Section IV at the University of Basel on 2-4 June 2017.

This volume also includes the resolution adopted by the participants of the Basel colloquium. It thus offers a detailed synopsis of jurisdictional problems and possible solutions for viable corporate criminal liability along the supply chain. It illustrates the broad challenges raised by targeting corporations for allegedly causing harm in third countries with regard to territory and sovereignty in the age of globalisation.

Keywords: corporate company criminal liability, human rights violations, UN Guiding Principles, transnational jurisdiction, Ruggie Principles, Territoriality and Criminal Justice, Personality Principle, Directive 2014/95/EU, Strategic Litigation, universal jurisdiction, supply chain, multinational corporation