The Invisible Hand

Abstract

The relationship between crime and commerce remains largely unexamined within the realm of international criminal justice. While corporations continue to be immune from prosecution at the international level for violations of international criminal law, individuals, acting on behalf of corporations, have largely evaded liability as well. In this spirit, the author explores the International Criminal Court’s (ICC) ability to prosecute business leaders that profit from, enable and facilitate the act of forced population transfer, and hones in on the more challenging aspects of conducting such prosecutions. This article begins by examining the legal requirements for establishing guilt based upon the accessorial mode of liability of aiding and abetting. It then considers the extent to which pursuing these kinds of prosecutions will require a rethinking of the concept of who bears the greatest degree of responsibility. The systematic policies of forced population transfer employed by Israel in the occupied Palestinian territory, in which businesses play an important role, will be used as a framework through which to assess the feasibility of such prosecutions. The author concludes that although there is no theoretical barrier to the ICC asserting jurisdiction over such leaders, successful prosecutions of this nature may prove challenging.