The Competitive Advantage of Corporate Criminal Responsibility for International Crimes: Atrocity, Commerce, and Accountability after Kiobel

Abstract

In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel v. Royal Dutch Petroleum Co. that allegations like these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned with impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. Since then, the American fiction that corporations are people for the purposes of criminal law has taken hold, such that the concept is now relatively ubiquitous globally. Even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability. Switzerland is one such case.In this paper, I argue that coupling corporate criminal liability with international crimes in national systems, as in this new Swiss case, is the next obvious “discovery” in corporate responsibility. In addition, at least one international court has now adopted corporate criminal liability for international crimes. These moves promise to transcend several of the doctrinal and conceptual problems that plagued the ATS. First, this reframing will move this field beyond polarized debates about the scope of complicity within ATS litigation, which did not fully capture the nuanced meaning of accomplice liability in the criminal law. Second, it will bypass the cumbersome debate about corporate responsibility for international crimes as a matter of international law, which would not arise in criminal trials. Third, while trading the private right to sue under the ATS for prosecutorial discretion in a criminal context is certainly a massive loss, prosecutorial discretion also has its upsides, which we should now explore in greater depth. Finally, reframing ATS cases in international criminal law (principally enforced in national courts) offers corporate guilt and retribution as a justification for accountability, thereby answering many of the criticisms scholars leveled against the ATS process. Corporate criminal liability (in conjunction with individual criminal responsibility of corporate officers for international crimes) always had certain competitive advantages over the ATS, that the Swiss investigation confirms as legally plausible. So, regardless of whether this particular investigation ever results in a trial or conviction, it announces an uncharted set of relationships between commerce, atrocity and international criminal law waiting to be mapped. As I show, by simultaneously mimicking and transcending the ATS, corporate criminal liability for international crimes offers human rights advocates a fresh platform for justice, while also contributing very new perspectives to scholarly debates about the propriety and efficacy of ATS litigation. All in all, the rise of corporate criminal liability for international crimes offers new ideas about the importance of corporate accountability globally, which understandably, never figured within the relatively narrow framing required for the ATS or the business and human rights discourse more broadly.