Is the inclusion of corporations in the crime of ecocide and consequently in the Rome Statute imperative to prevent accountability gaps in its prosecution?

Abstract

Amidst the discussion if the crime of ecocide should be included in the Rome Statute as the fifth international crime, this research examines the role corporations play in the degradation of the environment and violation of human rights and if sanctioning harmful corporate conduct is provided for in the latest draft for the crime of ecocide by the Independent Expert Panel. It assesses if the Rome Statute, in its current form, contains adequate tools to prosecute corporations for potentially committing ecocide. It explores a possible extension of the jurisdiction of the International Criminal Court to legal entities by looking into the historical evolution of holding legal entities criminally responsible and finds seeds for corporate criminal liability as early as in the Nuremberg Trial. It compares different models for corporate criminal liability and finds that ultimately, criminal corporate conduct is rooted in corporate “culture” which gives ground for holding the legal entity itself liable and not only its individual members. It furthermore explores the transformative potential of reparation orders and concludes that reparations might deter corporations more effectively than sanctions.