Societas delinquere potest. The criminal responsibility of corporations under international law between theoretical hurdles and practical necessity

Abstract

The fact that international criminal law has so far not been applied to corporate complicity in international crimes creates the widest accountability gap in the field. Traditionally, corporations have been excluded on the basis of the contention that they are not subjects of international law and therefore not bound by it. Moreover, for centuries legal entities were considered to be incapable of committing the same crimes as individuals. In light of the increasing number of obligations that are imposed on companies by treaty and given the large number of cases of international crimes committed with the complicity of corporations, these theoretical objections become less and less relevant. Therefore, the main question now is: what is the best way to hold them accountable for such criminal behaviour? In this thesis, we will explore why criminal responsibility is to be preferred over civil liability, why collective responsibility of the legal entity is to be coupled with personal responsibility of the head executives, and which violations of international law should be encompassed. Then, the actus reus and mens rea of corporate complicity in international crimes will be explored, with a focus on how to hold accountable parent companies in the case of multinational corporations. Finally, it will be suggested that if any meaningful level of justice is to be attained, the mechanism of universal jurisdiction should be employed.