Editors’ note: Maisie Biggs graduated
with a MSc in Global Crime, Justice and Security from the University of
Edinburgh and holds a LLB from University College London. She is currently
working with the Asser Institute in The Hague.
She has worked for International Justice Mission in South Asia and the
Centre for Research on Multinational Corporations (SOMO) in Amsterdam.
Nuremberg Trials were a defining and foundational moment for international
criminal law, and the first instance in which the question of international
legal responsibility of corporate actors, including natural persons and
corporations, was first broached. The Tribunals elected to only prosecute
natural persons, however a brief analysis of the reasoning indicates it was
political rather than legal considerations that led to this distinction. International
law and corporate actors have a storied history that merits drawing the
timeline back earlier than Nuremberg. This is the first in a series of blog posts
exploring the intersection between corporations and international criminal law
As is well known, corporations are not
subjected to the Rome Statute and do not fall under the jurisdiction of the
International Criminal Court (ICC). Yet, as we will show there have been
interesting recent developments at the intersection between ICL and the
activities of corporations. In 2014, the Special Tribunal for Lebanon (Al Jadeed S.A.L. & Ms Khayat (STL-14-05)) acknowledged the development of domestic corporate
accountability, and determined that ICL has likewise progressed. Meanwhile,
cases against individuals (such as the ongoing Lundin case in Sweden) or
corporations (such as the Lafarge case in France) involving the activities of
corporations abroad have been initiated by national prosecutors on the basis of
cases and potential implications will be discussed in more depth in later
posts, however it is interesting that while some academics and judges are
tracking the ostensibly ‘new’ legal movements to subject corporate activities
to greater regulation,
the history of international law itself shows that harmful transnational
commerce has been an issue for a long time, and this is not the first time
international law has been used as a tool against jurisdiction-hopping
The Nuremberg Trials
The Nuremberg Trials were a
mile-stone for individual criminal responsibility under international law,
however the Trials’ architects chose not to prosecute juridical persons or
companies involved in war crimes. The surface reasoning for this decision was
that only individual responsibility was appropriate to attribute criminal
wrongdoing, however it seems it was political considerations and a pivot in
foreign policy, rather than any clear legal basis, that led to this line being
International Military Tribunal (IMT) had a clear intention to reflect the
responsibility of German industry and business for exacerbating and profiting
from the war, the Nazi regime and its atrocities. A
senior representative of the industrialists Gustav Krupp von
Bohlen und Halbach was meant to be indicted in the Trial of the Major
War Criminals however he was found unfit to be tried.
Other industrialists were tried in the subsequent Nuremberg proceedings under
Control Council Law No. 10:
those prosecuted in the Industrialist Trials were identified by the companies
for which they worked: the United States
v. Friedrich Flick (Flick), United
States v. Carl Krauch (Farben), and United
States v. Alfred Krupp (Krupp).
as the Tribunal in Farben made clear: “the corporate defendant, Farben, is not
before the bar of this Tribunal and cannot be subjected to criminal penalties
in these proceedings. We have used the term ‘Farben’
as descriptive of the instrumentality of cohesion in the name of which
the enumerated acts of spoliation were committed… [b]ut corporations act
approach by the subsequent tribunals follows that previously taken by the IMT: “Crimes
against international law are committed by men, not by abstract entities, and
only by punishing individuals who commit such crimes can the provisions of
international law be enforced.” This quote has been used as authority for the idea that then only individuals can be subjects of
international criminal law, however as pointed out by human rights scholar
William Schabas, in its broader context the judgement was saying that
individuals as well as the state
organs are capable of committing crimes: “what they were saying is, ‘we do not
have a problem with the idea that the state has committed these crimes, but the
individual can commit them as well’.”
to individuals under international law was not completely new, the possibility
was part of Article 228 of the Treaty of Versailles
(1919) for example, however the Nuremberg foundation of individual criminal
responsibility under international law was “a dramatic leap”
that pierced the screen of state sovereignty, and would become the
“cornerstone” of international criminal law.
to attribute responsibility among individuals without considering the larger
corporate entity led to fragmented responsibility
and issues of attribution in the Farben case, for example; the division of
authority within the company was equated with a division of responsibility by
the Tribunal. Responsibility could not be attached to each actor who contributed
to an atrocity; wrongdoing was only attributed to those directly engaging with
state actors, or engaging in the commission of the crime itself. This meant that convictions were few, and sentences lenient.
lawyer and academic Jonathan Bush revisited this question, and determined that
the rational for rejecting corporate liability was political, rather than
and associational criminal liability was seriously explored, and was never
rejected as legally unsound [by prosecutors at Nuremberg]. These theories of
liability were not adopted, but not because of any legal determination that it
was impermissible under international law. Instead, their rejection was the
result of the wishes of the occupation governments for handling the
corporations and the coincidence that the first defendants tried were companies
with the structures of Flick, Krupp and Farben.”
liability would have been a major development in international law, but it
would have been in good company: “other features of postwar accountability,
starting with the idea of an international criminal trial, liability for a head
of state, or for crimes against peace, crimes against humanity, or genocide” were all new
sentences that were given against convicted industrialists were light:
sometimes months or five years rather than a life-sentence or execution.
Florian Jessberger is reticent to conclusively draw
a link between this mercy and the changing political winds, however he does
link it to classic
issues of post-conflict justice and the convicted businessmen’s links to
The possible political reasons the Allies had for deciding to
‘go light’ on the industrialists and refraining from pursuing the companies
themselves were the re-prioritisation of reconstruction over retribution and
the anticipation of future conflict with former-allies the Soviets.
“At the same
time, after the start of investigations and before the conclusion of the Farben
trial, American foreign policy was undergoing a turnabout in its attitude to
Germany in general and German industry in particular. Under the influence of US
Treasury Secretary Henry Morgenthau, the original goal was the ‘industrial disarmament’ of
Germany. Later on, in 1945–1946,
the US Administration adopted the Truman Doctrine, which sought to refrain from
severe reprisals against the industrialists. German industry was not to be ‘purged’; it was to be recruited in view of the new communist enemy coming up on
The political dimensions that shaped the Nuremberg prosecutions of
corporate-affiliated actors are not a strong basis on which to determine that
liability is not possible for corporations or legal persons under international
narratives of international law have excluded the fundamental roles
transnational commerce and companies have played as subjects and propellers of
international law. To explore the history of the relationship
between commerce, corporate actors and international criminal law, another
point of international law development will be briefly addressed: the
nineteenth-century anti-slavery international courts.
origin of contemporary international criminal law is commonly traced back to
Nuremberg, during which corporate actors were prosecuted for their involvement
in war crimes for commercial gain, however research by authors like J.S. Martinez has
revealed the nineteenth century origins of subjecting commercial
actors to law in the fascinating history of the slave trade tribunals.
These mixed international tribunals arguably were the origin of modern ICL, as
bilateral and multilateral treaties were enforced in courts in multiple
jurisdictions following the capture of slave ships flying particular flags.
abolition movement in Britain led to British naval power being used to ‘chase
down’ slave trading vessels flying the flags of other combatants throughout the
Following British victory,
virulent protests and petitions of the English populace forced the
clauses in the post-war treaty, not only with the French but
also in treaties with Atlantic maritime powers Spain, Portugal, the
Netherlands, and eventually America. By
the 1840s, international treaties abolishing the trade had been signed by more
than twenty nations. Of
these, some of the bilateral treaties incorporated international enforcement
mechanisms: the Netherlands, Portugal and Spain signed agreements with the
British that involved prospective jurisdiction. As
a result, courts were set up in Freetown, Sierra Leone; Havana, Cuba; Rio de
Janeiro, Brazil; and in Suriname.
They were presided over by mixed panels (British and the other treaty power) of
commissioners or judges, and disagreements between these settled by arbitrators.
This was well before the establishment of the first Permanent Court of
Arbitration in 1899, or the Permanent Court of International Justice in 1921.
was the main point of contention in these cases (a story familiar to those
studying corporate liability today).
The nationality of the ‘ship’ was used to
establish jurisdiction, as
is standard practice for law of the sea, however slave trading vessels were
able to strategically swap flags as necessary, meaning that blanket abolition
by all sea-faring nations was necessary; eventually, there were no flags left
for slavers to hide behind. In
these circumstances, the subjects of international law were the ships
themselves, and the personal liability or nationality of the captain was
immaterial to the proceedings except as it pertained to the nationality of the
ship. Once the ship’s
nationality was determined as falling within the jurisdiction of the tribunal,
this was typically dispositive, and resulted in
condemnation of the ship if it was evident it was engaged in the slave trade.
The slavers themselves were sometimes then sent to their home jurisdiction to
face criminal trial.
are some interesting points here: mainly, that international law and
coordinated legal mechanisms proved a necessary response to a transnational
commercial harm. To draw the line between a physical ship as the bearer of liability
and a company’s corporate form today would be a slight stretch, however the
case does illustrate how international law may capture commercial misconduct
beyond domestic jurisdictional reach. Martinez agreed with this extrapolation,
arguing that the
“centrality of private transnational actors” to this history of
international law “highlights the possibility of making international legal
mechanisms a more central tool for addressing… violations by private actors
By drawing the timeline
backwards to this point, rather than beginning the story at Nuremberg, the
scope and purpose of international law as a mechanism of pursuing transnational
crimes slightly changes. It would now seem a much more natural logical step
that a corporate entity operating outside the territorial reach of the country
whose flag it ‘flies’ may be subject to international criminal law.
Nuremberg is commonly presented as the beginning of subjecting corporate
actions to scrutiny under international law, however the case of the
anti-slavery tribunals demonstrates that this kind of liability existed before,
and reminds that perhaps current issues of corporate power merit
reconsideration of the ICL liability of legal persons. In the next post, the
next chapter will be discussed: the drafting of the Rome Statute to explicitly
exclude non-natural persons (and consequently, subjection under the
International Criminal Court).
 Ibid 569.
 Ibid 556.
 Ibid 577.
 Ibid 579.
 Ibid 587.
 Ibid 583.
 Ibid 609.
 Ibid 590.
 Ibid 591.
 Ibid 633.