c orporate c rimes and the icc icc s ummer s chool - g alway 22 j une 2012 dr nadia bernaz middlesex...

CORPORATE CRIMES AND THE ICC

ICC SUMMER SCHOOL - GALWAY

22 JUNE 2012

Dr Nadia BernazMiddlesex Universityn.bernaz@mdx.ac.uk

OUTLINE

What are “corporate crimes”? History of prosecutions for corporate

international crimes Drafting the ICC Statute The future of corporate liability for

international crimes

WHAT ARE CORPORATE CRIMES? THE NOTION OF CORPORATE CRIMINAL LIABILITY

Criminal offence: actus reus (action/omission) & mens rea (guilty mind)

Problem: How to prove the “guilty mind” of corporations?

Distinction natural/legal person Recognised in most countries Risks of recognising corporate criminal

liability?

INTERNATIONAL MILITARY TRIBUNAL AT NUREMBERG

IMT: set up by treaty by the four main allies (France, UK, US, Soviet Union) to bring the major war criminals to trial

Initial intention: put business executives on the list of accused

Why? Key role of business (heavy and chemical industries) and massive use of slave labour across all industries

Gustav Krupp? Alfried Krupp? Trials under Control Council Law No 10

ZYKLON B CASE – BRITISH ZONE

British indicted the owner and 2 employees of “Tesch and Stabenow”

ZYKLON B TRIAL CC’ED

Bruno Tesch and Karl Weinbacher were sentenced to death and executed

Joachim Drosihn (technician) was acquitted

ROECHLING CASE – FRENCH ZONE Hermann Roechling

and 4 other industrialists

Found guilty of plunder and spoliation of factories/machines in occupied France

Participation in the deportation of 200,000 people to work in factories in the East

Appointed President of the Reich Association Iron by Hitler

sentences from 3 to 10 years in prison (7 for Roechling)

FLICK CASE– US ZONE Flick concern:

together with Krupp, the 2 main steel producing firms in Germany

Close to Hitler Charged with slave

labour and spoliation of property

Friedrich Flick and 5 other defendants

FLICK TRIAL – CC’ED Opening statement by the prosecution: Third Reich was built on the “unholy trinity”

of National Socialism, militarism and economic imperialism

Industrialists attracted by Hitler’s vision of a “ ‘stable government’, freedom from labour troubles, and a swift increase in production to support rearmament and the reestablishment of German economic hegemony in Europe and across the seas”

all sentenced to short prison terms (7 years maximum)

I.G. FARBEN CASE – US ZONE

Largest chemical firm in the world in 1933 Opening statement by the prosecution: Farben was “the Reich’s greatest single industrial

resource (…). Farben techniques held the key to many of the problems which the Wehrmacht wished to solve (…). No German government could afford to sacrifice its cooperation, least of all a government intent on rebuilding Germany’s military strength.”

Speer once said that the Reich was “entirely dependent upon the work of I.G. Farben for chemical progress”

24 defendants: 13 defendants sentenced to mild prison sentences, the rest were acquitted

KRUPP CASE- US ZONE

Krupp factories produced arms in violation of the Treaty of Versailles even before Hitler came to power!

Gustav and Alfried Krupp: strong supporters of Hitler

12 executives of the firm prosecuted: 11 sentenced to mild sentences

DRAFTING THE ICC STATUTE

Draft statute: [23(5) The Court shall have jurisdiction over

legal persons, with the exception of states, when the crimes committed were committed on behalf of such legal persons or by their agencies or representatives.

23(6) The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.]

WHY INCLUDING LEGAL PERSONS?

(1) Moral reasons (2) Financial reasons (3) Deterrent effect

STATES’ POSITIONS

Most states (not all) agreed with the potential benefits of allowing the prosecution of legal persons by the ICC

Step back in the fight for impunity if not included? BUT concerns about the absence of precedents Some states were ready to compromise by

allowing a mechanism for civil liability, not criminal liability

Practical difficulties and issues around the rights of third persons (such as employees)

A minority clearly opposed it  Complementarity issue