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Towards Corporate Liability in International Criminal Law

Stoitchkova, Desislava
ISBN-10: 9400000243
ISBN-13: 9789400000247

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Description

Table of Contents

Author Bios

The need for more stringent regulation of multinational corporations (MNCs) is discernible in the adverse human rights impact of business activities in conflict-prone regions of the world. Domestic jurisdictions appear reluctant to vigorously pursue mandatory enforcement of human rights standards vis--vis the private sector for violations committed abroad.

The international system, in turn, has not yet put in place any effective compliance mechanism beyond regulatory supervision. The difficulties of prosecution by home and host states, and the propensity of MNCs to exploit the principles of separate legal personality and limited liability, pose certain challenges. Seeking to address the problem of corporate involvement in grave human rights abuse, i.e. genocide, crimes against humanity and war crimes, this study explores the desirability and feasibility of subjecting business enterprises to regulation through international criminal law. It draws upon holistic methods for uncovering or

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List of abbreviations



Introduction



Corporations, conflicts and human rights



The rise of corporate social responsibility



Regulation at the domestic level



Criminal liability



Liability through civil courts



Non-mandatory mechanisms



International regulation



'Soft-law' initiatives



The International Criminal Court



Some post-Rome developments



Central question



Method and structure



Criminal Responsibility and the Corporate Entity



Introduction



The criminology of international corporate crime



Conceptualising corporate crime



Corporate crime in international context



The morality paradigm and corporate liability



Can corporations be regarded as persons?



Moral agency and moral responsibility



Legal personhood and moral responsibility



Guilt and punishment of collectives



The moral guilt contention



Collective legal guilt and the position of the individual



Accountability, culpability and due process



Conclusion



Corporate accountability ï¿½ La Nuremberg



Introduction



The Nuremberg 'collective criminality' model



The doctrine of conspiracy



The concept of criminal organizations



A missed opportunity vis-ï¿½-vis corporate accountability?



The Nuremberg prosecution of industrialists



An overview of domestic military trials



Synthesising the Nuremberg principles of individual criminal responsibility in relation to corporate officials



The implicit denunciation of corporations as accessories to Nazi crimes



The legacy of Nuremberg



Conclusion



Collective criminality and the Rome Statute



Introduction



The 'common purpose' doctrine



Joint criminal enterprise: doctrinal overview



The elements of joint criminal enterprise as a mode of liability



Jurisprudential attempts at counteracting the drawbacks of the JCE doctrine



The customary law origins of JCE



The inherent complexities of extended JCE



Critical appraisal of the ad hoc tribunals' approach to JCE



The 'common purpose' concept in the Rome Statute



The divergent nature of Article 25(3)(d) RS



A redundant provision?



The concept of superior responsibility



Brief historical survey of the development of the doctrine



Superior responsibility under the Rome Statute



The components of superior responsibility as a mode of liability



The existence of a superior - subordinate relationship



The cognitive requirement for superior responsibility



Activities within the effective responsibility and control of superiors



The duty of superiors to act



Conclusion



The criminal liability of corporationswithin the Rome Statute framework



Introduction



The ambit of actus reus and mens rea in the Rome Statute



Acts and omissions



The dolus directus facet of Article 30. RS



Dolus eventualis as a form of volition?



Culpa-type liability under the Rome Statute



Utilising the current Rome Statute provisions



Indirectly implicating MNCs on the basis of individual convictions



The notion of complicity as an avenue for corporate liability



Direct corporate criminal liability sui generis



The criminal responsibility of corporations 'in the draft'



Declarations of criminality



Liability along vicarious lines



Domestic approaches to corporate criminal liability



The principle of aggregation



Proactive and reactive fault



The corporate ethos approach



Constructive corporate fault



The constructive method and international crimes



Setting the subjective threshold of corporate liability



The dolus eventualis standard of corporate misconduct



Culpa as a benchmark for corporate criminal responsibility



A word on dolus specialis



The scope of the objective element



Conclusion



Culpability beyond the confines of the corporate form



Introduction



Direct parent liability



The intrinsic protections of the corporate form



Justifying the attribution of criminal responsibility to parent companies



The criteria for ascribing direct liability to parent corporations



The duty to intervene



Authority



Awareness



The power to intervene



Control



Causality



Direct criminal responsibility and supply chain dynamics



The superior responsibility of corporate officials



Superior - subordinate relationships and the 'effective responsibility and control' test



The cognitive requirement and the corresponding failure to act



Conclusion



Conclusion



Overview



Prospects along the regulatory continuum



The complementarity contention pertaining to 'inaction' and 'inability'



Alternatives to corporate criminal liability and the implications for the principle of complementarity



Non-criminal regulation - a viable option for the ICC?



The pitfalls of collective criminality



The imperative of aligning accountability with due process



Collective punishment: effects on the 'innocent' bystander?



Liability of MNCs in international criminal law: from aspiration to reality



Corporate accountability and the goals of international criminal justice



The 'problem' of plea bargaining



Deterrence, retribution and the expressive function of (international) criminal law


Summary


Samenvatting


Selected legal provisions


Bibliography


Table of cases


Table of UN and other documents


Index


Curriculum vitae

List price:	$96.75
Edition:	2010
Publisher:	Intersentia Uitgevers N.V.
Binding:	Trade Paper
Pages:	252
Size:	6.75" wide x 9.25" long x 0.75" tall
Weight:	0.99 lbs.
Language:	English

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