Corporate International Criminal Responsibility: Oxymoron or an Effective tool for 21st Century Governance?

Abstract

This paper explores international criminal law as a way to curtail the currently largely unfettered power of multinational corporations. With yearly turnovers that sometimes exceed the gross national product of states and corresponding political influence, such corporations not only theoretically can, but in the past repeatedly have, created detrimental effects for states and individuals in their sphere of operations. On the other hand, viable international solutions to subject multinational corporations to international rules and obligations comparable to those applicable to states are missing, except for voluntary partnerships like the UN Global Compact introduced by former UN Secretary-General Kofi Annan or efforts to make human rights obligations applicable to multinational corporations. The paper addresses the possibilities to extend the applicability of international criminal law to legal persons such as corporations. To that end, it shows how often-mentioned conceptual “stumbling blocks” such as establishing a corporation’s criminal intent (mens rea), corporate complicity, and means of punishment for corporations can be overcome, and highlights the potential international criminal law bears to provide remedies to victims not only to crimes committed by states and individuals but also by multinational corporations. Only in extending the scope of international criminal law to multinational corporations, it is argued, can the former live up to its role not only as a means to punish but also to protect.