1st Edition

Corporate Liability and International Criminal Law

By Alessandra De Tommaso Copyright 2024

    This book investigates whether corporate criminal liability should be incorporated within the scope of international criminal law. The work provides unique insight into the evolution of the debate on the international criminal liability of corporations to facilitate future discussion on the possibility of including corporations within the scope of international criminal law. It combines a detailed examination of Nuremberg and Rome with the examination of previously overlooked initiatives such as the Draft Code of Offences against Peace and Security of Mankind and the 1951 and 1953 Committees on International Criminal Jurisdiction. This analysis is also complemented by a review of significant post-1998 international and domestic developments around corporate criminal liability. In addition, it offers suggestions for the development of an amendment to hold corporations accountable under the Statute of the International Criminal Court.

    This book contributes to the existing literature on the topic of corporate liability which attracts significant attention from scholars in the fields of Law, Business, and Political Science. It will be useful to professionals in the academic and diplomatic fields, researchers, legal advisors, and business leaders. It will also be of interest to anyone who wants to understand the debate on holding businesses accountable under international criminal law.

    Foreword x

    Acknowledgements xiii

    Introduction 1

    1 Corporate Criminal Liability and the Nuremberg Experience 8

    1.1 Introduction 8

    1.2 Criminal Organisations at Trial: The Nuremberg Experience 10

    1.2.1 The Origin of the Prosecution’s Case against Organisations 12

    1.2.2 The London Charter 14

    1.2.3 The Nuremberg Trial and Judgment 15

    1.2.4 Crimes of Membership v Corporate Criminal Liability 19

    1.3 Post-World War II Trials: The Industrialist Cases 23

    1.3.1 Business Complicity in International Crimes: From the Failure of the Krupp Case at Nuremberg to the US Industrialist Trials 24

    1.3.2 The Preparatory Phase of the U.S. Industrialist Cases: Pomerantz’s Memorandum 27

    1.3.3 The Industrialist Cases 31

    1.4 Extra-Judicial Sanctioning of Farben 39

    1.5 Conclusion 41

    References 43

    2 The Question of Corporations in the Aftermath of the Nuremberg Trials 47

    2.1 Introduction 47

    2.2 The 1948 Convention on the Prevention and Punishment of the Crime of Genocide 48

    2.3 The ILC Draft Code of Offences against Peace and Security of Mankind: An Early Debate on the Criminal Liability of Legal Entities 54

    2.4 The Liability of Legal Persons in the Early Stage of the Debate on an International Criminal Court: The Role of the 1951 and 1953 Committees on International Criminal Jurisdiction 58

    2.4.1 The 1951 Committee on International Criminal Jurisdiction 60

    2.4.2 The 1953 Committee on International Criminal Jurisdiction 63

    2.5 Conclusion 67

    References 68

    3 The Adoption of the Rome Statute: Corporate Criminal Liability’s Swan Song? 72

    3.1 Introduction 72

    3.2 Resuming the Drafting of the Statute of the ICC: The ILC’s Work (1982-1994) 73

    3.3 The Establishment of the Ad Hoc Tribunals for the Former Yugoslavia and Rwanda 78

    3.4 The Negotiation of the Statute of the ICC (1995-1998) 81

    3.4.1 From the 1995 Ad Hoc Committee to the 1996 Preparatory Committee 82

    3.4.2 The French Proposal on Corporate Criminal Liability: Origin and Early Debate 84

    3.5 The 1998 Rome Conference for an International Criminal Court 89

    3.5.1 The Final Working Paper on the Liability of Juridical Persons: The Last Stage of the Debate 94

    3.6 Conclusion 100

    References 101

    4 Corporate Criminal Liability after Rome: International Developments in the Aftermath of the Adoption of the ICC Statute 107

    4.1 Introduction 107

    4.2 The Special Tribunal for Lebanon’s Jurisdiction over Legal Persons: An Analysis of the 2014 Contempt Cases 109

    4.2.1 The First Contempt Decision: Judge Baragwanath’s View on Corporate Criminal Liability 110

    4.2.2 Challenging Corporate Criminal Liability: The Point of View of Judge Lettieri 116

    4.2.3 The Decision of the Appeals Panel in the New TV S.A.L. Case 121

    4.3 Corporate Criminal Liability within the Statute of the (Proposed) African Court of Justice and Human Rights 128

    4.3.1 Article 46C and the Principle of Attribution: An Organisational Approach to Corporate Criminal Liability 131

    4.3.2 Sentencing System 138

    4.4 The ILC’s Draft Articles on Crimes against Humanity 140

    4.4.1 The 2016 Debate on the Liability of Legal Persons 142

    4.4.2 The Drafting Committee’s Draft Paragraph on the Liability of Legal Persons 149

    4.4.3 States’ Comments on the Draft Provision on the Liability of Legal Persons 152

    4.5 Conclusion 157

    References 158

    5 National Developments and the Comparative Law Argument in the Debate on Corporate Criminal Liability 166

    5.1 Introduction 166

    5.2 The Comparative Law Argument 167

    5.2.1 Limitations of the Comparative Law Argument 171

    5.3 A Step Further: Corporate Criminal Liability as a General Principle of Law 178

    5.3.1 General Principles of Law: Practical Implications 179

    5.4 Conclusion 185

    References 186

    6 Translating Corporate Criminal Liability into the International Criminal Justice System: Amending the ICC Statute 191

    6.1 Introduction 191

    6.2 The Applicability of the Rome Statute to Corporations: Some Considerations on the Mode of Attribution 192

    6.3 Corporate Criminal Liability Arising from a Lack of Due Supervision 200

    6.4 Reverse Onus, the Presumption of Innocence and Corporate Defendants 205

    6.5 Corporations and Procedural Guarantees 213

    6.5.1 Representation and the Right to Be Present at Trial: Article 63 ICC St. 215

    6.6 A Sentencing System for Corporate Defendants 221

    6.7 Conclusion 228

    References 229

    Conclusions 235

    Index 243


    Alessandra De Tommaso is Lecturer in Law at Middlesex University, UK. She teaches Business and Human Rights, EU Law, and Evidence. Her research interests are in the areas of International Criminal Law and Business and Human Rights. She is a qualified lawyer in Italy.

    ‘Dr De Tommaso takes us on a meticulously documented journey from Nuremberg to the ILC’s Draft Articles on Crimes against Humanity. Beyond this fascinating historical perspective, she ventures into new territory by looking at what incorporating corporate liability in the Rome Statute would look like, what provisions would need to be amended, and how. This insightful book pushes the boundaries of both business and human rights and international criminal law and invites reflection on the role of judicial institutions in addressing corporate atrocity crimes’.

    Associate Professor Nadia Bernaz, Wageningen University & Research, Wageningen

    ‘An outstanding contribution to scholarship in the field: Corporate Liability and International Criminal Law is impressive in terms of the author’s attention to detail and the depth and range of research conducted. It will serve as an important point of reference for the future development of both law and policy’.

    Dr Anthony Cullen, Associate Professor, Middlesex University, London

    ‘Alessandra De Tommaso has written a must-read analysis for those interested in the lasting challenges that stand in the way of corporate accountability. The rigorous research supporting the book focuses on international criminal law, but it provides invaluable lessons applicable to any legal field’.

    Professor Elvira Domínguez-Redondo, Kingston University, London