International Criminal Law and Corporate Actors - Part 1: From Slave Trade Tribunals to Nuremberg - By Maisie Biggs

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.


The 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 (ICL).

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 ICL.

These 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,[1] 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 corporate crime.


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 drawn.

The 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.[2][3] 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.[4] Other industrialists were tried in the subsequent Nuremberg proceedings under Control Council Law No. 10:[5] 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).

However, 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 through individuals.”[6]

This 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.”[7] 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’.”[8]

Attribution 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”[9] that pierced the screen of state sovereignty, and would become the “cornerstone” of international criminal law.[10]

Attempting to attribute responsibility among individuals without considering the larger corporate entity led to fragmented responsibility[11] 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.[12] 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.[13] This meant that convictions were few, and sentences lenient.

International lawyer and academic Jonathan Bush revisited this question, and determined that the rational for rejecting corporate liability was political, rather than legal:

“[C]orporate 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.”[14]

Corporate 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 developments.[15]

The 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 American industrialists.[16] 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.[17]

“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 horizon.”[18] 

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 criminal law.

State-focussed 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.


Antislavery courts

The 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.[19] These mixed international tribunals arguably were the origin of modern ICL,[20] as bilateral and multilateral treaties were enforced in courts in multiple jurisdictions following the capture of slave ships flying particular flags.

The 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 Napoleonic wars.[21] Following British victory, virulent protests and petitions of the English populace forced the government to incorporate abolition 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.[22] By the 1840s, international treaties abolishing the trade had been signed by more than twenty nations.[23] 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.[24] As a result, courts were set up in Freetown, Sierra Leone; Havana, Cuba; Rio de Janeiro, Brazil; and in Suriname.[25] They were presided over by mixed panels (British and the other treaty power) of commissioners or judges, and disagreements between these settled by arbitrators.[26] This was well before the establishment of the first Permanent Court of Arbitration in 1899, or the Permanent Court of International Justice in 1921. 

Jurisdiction was the main point of contention in these cases (a story familiar to those studying corporate liability today).[27] The nationality of the ‘ship’ was used to establish jurisdiction,[28] 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.[29] 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.[30] The slavers themselves were sometimes then sent to their home jurisdiction to face criminal trial.[31]

There 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 today.”[32]



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).

[1] Caroline Kaeb, ‘The Shifting Sands of Corporate Liability under International Criminal Law’ (2016) 49 The Geo Wash Int L Rev 351, 354.

[2] For an in-depth analysis of business involvement, see Annika van Baar, ‘Corporate involvement in the Holocaust and other Nazi crimes’ in J van Erp, G Vanderwalle and W Huisman (eds), The Routledge Handbook of White-Collar and Corporate Crime in Europe (Routledge 2015) 133.

[3] Doreen Lustig, ‘Three Paradigms of Corporate Responsibility in International Law: The Kiobel Moment’ (2014) 12 Journal of International Criminal Justice 593, 602.

[4] T Taylor, ‘Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials under Control Council Law No. 10’ (Government Printing Office, 1949), 22.

[5] Allied Control Council Law No. 10 of 20 December 1945 - Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity (Amtsblatt of the Control Council in Germany, No. 3, 31 January 1946)

[6] IG Farben, Vol. VIII, at 1153.

[7] IMT, judgment of 1 October 1946, in The Trial of the German Major War Criminals, Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, Pt 22 (1950), 447.

[8]Discussion’ (2008) 6(5) Journal of International Criminal Justice 947, 964.

[9] C. Tomushcat, ‘The Legacy of Nuremberg’ (2006) 4 Journal of International Criminal Justice 830, 833.

[10] Ibid 840.

[11] Doreen Lustig, ‘The Nature of the Nazi State and the Question of International Criminal Responsibility of Corporate Officials at Nuremberg: Franz Neumann’s Behemoth at the Industrialist Trials’, (2011) 43 New York University Journal of International Law and Politics 965, 1036.

[12] Ibid 1035.

[13] Ibid.

[14] Jonathan A Bush, ‘The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said’ (2009) 109 Colum L Rev 1094, 1239.

[15] Ibid.

[16] Florian Jessberger, ‘On the Origins of Individual Criminal Responsibility under International Law for Business Activity: IG Farben on Trial’ (2010) 8(3) Journal of International Criminal Justice 783, 783. 

[17] Lustig (n 3) 602.

[18] Jessberger (n 16) 783.

[19] JS Martinez, ‘Antislavery Courts and the Dawn of International Human Rights Law’, (2008) 117 Yale Law Journal 550, 550.

[20] Florian Jessberger ‘Corporate Involvement in Slavery and Criminal Responsibility under International Law’ (2016) 14(2) Journal of International Criminal Justice, 327, 328

[21] Martinez (n 22) 566.

[22] Ibid 569.

[23] Ibid 556.

[24] Ibid 577.

[25] Ibid 579.

[26] Ibid.

[27] Ibid 587.

[28] Ibid 583.

[29] Ibid 609.

[30] Ibid 590.

[31] Ibid 591.

[32] Ibid 633.

Comments are closed