Business Leaders and the Modes of Individual Criminal Responsibility under International Law

Abstract

The article tries to provide an overview of possible modes of individual criminal responsibility for business leaders with regard to typical business activities. Particular attention will be paid to aiding and abetting or otherwise assisting in a crime as this is arguably the most important mode of criminal responsibility business leaders may be faced with in future. Contested issues like the subjective requirements of accomplice liability under Article 25(3)(c) ICC Statute (including evidentiary strategies for proving the mental element) and the determination of objective limits for criminal responsibility will be discussed. Contributing to a crime by a group of persons acting with a common purpose according to Article 25(3)(d) ICC Statute provides another important mode of criminal responsibility of which business leaders have to be aware. As that provision is — arguably — simultaneously referring to the rare yet not impossible ‘hard core’ scenario of a business leader being a party to a common purpose joint criminal enterprise, this form will also briefly be discussed. Finally, the discussion on superior responsibility will result in a warning against (further) loosening the effective control test.