The Potential Role of Criminal Law in a Business and Human Rights Treaty

Abstract

This chapter examines the potential role that criminal law might play in a business and human rights treaty. It takes as its point of departure the criminal law components of existing human rights treaties, rather than international or national criminal law, that may be of relevance in this context. The chapter explores how international human rights law has incorporated criminal law into existing instruments. It then turns to consider the acts that give rise to criminal liability and what might be understood by ‘gross human rights violations’ in international law. The chapter’s third section examines the issue of criminal liability, and considers how a treaty might address both the modes of liability for individual employees, officers or directors of a company, and that of the company itself as a legal person, through the doctrine of corporate criminal liability. The chapter draws on other areas of international law of relevance to this issue, including treaties relating to corruption, terrorism and organised crime. While national legal systems provide numerous examples of the application of criminal law to companies or associated individuals, this chapter consciously focuses on existing international law, particularly human rights law, in order to determine the extent of international agreement regarding the modalities of the application of criminal law to corporate activities that violate human rights. In light of this approach, the concluding section includes a suggested article on criminal liability for legal persons for inclusion in the potential business and human rights treaty.