Corporate Criminal Liability in International Criminal Law "ex nihilo nihil fit"

Abstract: The Nuremberg Charter introduced corporate criminal liability into international law and the great American Chief Prosecutor Justice Robert Jackson gave a promise that any legal person who commits crimes prescribed by international law shall be prosecuted and punished according to international criminal law. However, during this period of time, a corporation was never prosecuted per se as the sitting judges did not seem to have the will to dwell on the establishment of the elements of crime that needed to be satisfied in order to impute criminal liability on a corporate body. Later, the same promise was reflected upon during the preparatory works of the Rome Statute; there existed a will to prosecute legal entities “with the exception of States, when the crimes were committed on behalf of such legal persons or by their agents or representatives.” Unfortunately, the time restraints of the preparatory works resulted in no inclusion of legal entities as subjects of ICC and international criminal law. Thus, it remained only a notion that has been developed and exercised in domestic practices. As corporate criminal liability developed domestically and as time has changed, the Special Tribunal for Lebanon decided to take up a case concerning corporate criminal liability and prosecute a corporate body, which constitutes a landmark case in which a corporation has been brought before an international tribunal and had international corporate criminal liability imputed on it. Notably, as no guidance could be found in international law, the Court turned to domestic practices in order to seek clarification on how to best asses a case of such notion. The mere act of taking up such a case and turning to domestic practices is a clear indication that international corporate criminal liability is well needed in the international domain of criminal law and that domestic practices are highly influencing it. The Tribunal was very brave in its decision to widen its scope of jurisdiction to include legal entities and, therefore, serves as a source of encouragement to the ICC and other tribunals lacking such power. Markedly, the ICC lacks jurisdiction over legal entities as aforementioned. However, a recent case indicates that change might be at hand; a case in which corporations have been complicit to crimes against humanity lays before the Court. However, as the ruling in the case is not accessible, the assessment of the ICC remains unclear and only speculations may be drawn upon. Likewise, if the ICC decides to widen its scope to include corporate entities as it was aimed to be during the preparatory work, a provision setting out possible sanctions is lacking and not much guidance can be found in the case law of the Special Tribunal for Lebanon as the cases of this Court are not of same gravity. In order to go about these problems in depth, the author will first present how domestic practices have affected international criminal law with regards to currently existing forms of liability, how they are going about the notion of corporate criminal liability and how it influences the international level. After presenting this initial analysis, the author will draw attention to how the ICC may best assess the case before it and proposes an Article with sentencing measures which may be used if a corporate body is found guilty. Because, “if corporations are persons under the law, then they should be more fully so.”