Ed. Note: This article is the latest in our series on the U.S. Supreme Court case Jesner v. Arab Bank, a case that is slated to resolve the question of whether corporations can be sued under international law for human rights violations and terrorism. Oral arguments were held last week.
An issue that may be relevant to the outcome in Jesner v. Arab Bank is the degree to which contemporary treaty-making envisages the liability of legal persons, a term that can include corporations. Presumably, the more that states accept obligations under international law to impose liability upon legal persons for complicity in international crimes (such as crimes against humanity) or in national crimes that have a transnational component (such as transnational organized crime), the more it might be said that legal persons are capable of transgressing norms defined and accepted by nations.
A fairly recent move by the U.N. International Law Commission – a group of 34 experts elected by the U.N. General Assembly from around the world with a mandate to codify and progressively develop international law – may suggest an increasing willingness to view corporations as capable of committing and being liable for offenses that violate international law.
In 2014, the commission began drafting articles for what might become a new Convention on the Prevention and Punishment of Crimes against Humanity. The overall objective of the project is to build up national criminal laws and national jurisdiction, while also developing cooperative legal relationships between countries (such as on extradition and mutual legal assistance), so-as-to improve the prospects for prosecuting persons who have committed crimes against humanity. On its current timetable, the commission will send its draft articles to the General Assembly in 2019, where they could be transformed into a convention for states to sign and ratify.
One issue that the commission confronted was whether to limit the draft articles to natural persons or to include a provision with respect to legal persons. In 2015, as the commission’s Special Rapporteur for this topic, I proposed in a report to the commission that the draft articles not include such a provision. Yet when the matter was debated in the commission’s plenary, most of the members expressed support for addressing legal persons. That view carried the day, such that draft article 6, paragraph 7, now reads:
Subject to the provisions of its national law, each State shall take measures, where appropriate, to establish the liability of legal persons for the offences referred to in this draft article. Subject to the legal principles of the State, such liability of legal persons may be criminal, civil or administrative.
Why did the Commission include such a provision? In codifying and progressively developing international law, the commission typically scrutinizes whether a particular rule operates as a part of State practice (to include national laws), exists before international courts and tribunals, or may be discerned in multilateral, regional or bilateral treaties. After surveying such practice, the commission concluded that, on balance, a provision on the liability of legal persons was warranted for its draft articles on crimes against humanity.
With respect to national legal systems, criminal liability of legal persons has become a feature of the national laws of many states in recent years, while many others impose alternative forms of liability (civil or administrative) on legal persons for conduct related to crimes. Acts that can lead to such liability are, of course, committed by natural persons acting as officials, directors, officers, or in some other position or agency of the legal person. Such liability is typically imposed when the offence at issue was committed by a natural person on behalf of or for the benefit of the legal person.
With respect to practice before international tribunals, liability of legal persons has not featured significantly to date.
The Nürnberg Charter, in articles 9 and 10, authorized the International Military Tribunal to declare any group or organization as a criminal organization during the trial of an individual, which could lead to the trial of other individuals for membership in the organization. During the Tribunal’s proceedings, as well as subsequent proceedings under Control Council Law No. 10, several organizations were so designated, but only natural persons were tried and punished. The International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda did not have criminal jurisdiction over legal persons, nor does the Special Court for Sierra Leone, the Special Panels for Serious Crimes in East Timor, the Extraordinary Chambers in the Courts of Cambodia, the Supreme Iraqi Criminal Tribunal, or the Extraordinary African Chambers within the Senegalese Judicial System.
The drafters of the 1998 Rome Statute noted that “[t]here is a deep divergence of views as to the advisability of including criminal responsibility of legal persons in the Statute” and, although proposals for inclusion of a provision on such responsibility were made, the 1998 Rome Statute ultimately did not contain such a provision.
At the same time, the 2014 African Union protocol amending the statute of the African Court of Justice and Human Rights, though not yet in force, provides jurisdiction to the reconstituted African Court over legal persons for international crimes, including crimes against humanity. Further, although criminal jurisdiction over legal persons (as well as over crimes against humanity) is not expressly provided for in the statute of the Special Tribunal for Lebanon, the Tribunal’s Appeals Panel concluded in 2014 that the Tribunal had jurisdiction to prosecute a legal person for contempt of court.
With respect to treaties, liability of legal persons also has not been included in many treaties addressing crimes at the national level, including: the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; the 1949 Geneva Conventions; the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft; the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents; the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 1997 International Convention for the Suppression of Terrorist Bombings; and the 2006 International Convention for the Protection of All Persons from Enforced Disappearance. The Commission’s own 1996 draft Code of Crimes only addressed the criminal responsibility of “an individual”.
Yet several treaties do address the liability of legal persons for criminal offences, notably: the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (art. 1(2)); the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (arts. 2(14) & 4(3)); the 1999 International Convention for the Suppression of the Financing of Terrorism (art. 5); the 2000 United Nations Convention against Transnational Organized Crime (art. 10); the 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (art. 3(4)); and the 2003 United Nations Convention against Corruption (art. 26). Such treaties may also found at the regional level, such as the European Criminal Law Convention on Corruption (art. 18), the Inter-American Convention against Corruption (art. 8), and the African Union Convention on Preventing and Combating Corruption (art. 11).
Many of these treaties have secured very high levels of adherence; for example, as of October 2017, 173 states are party to the 2000 Optional Protocol and another 9 States have signed but not yet ratified it.
Whether the International Law Commission’s draft articles ultimately become a new convention remains to be seen. Nevertheless, the decision to include within them a provision on the liability of legal persons, and the (albeit mixed) practice upon which that decision was based, seem quite relevant to the central issue in the Jesner case.
At the time of publication, Sean Murphy was Manatt/Ahn Professor of International Law at George Washington University in Washington, D.C., Member of the U.N. International Law Commission, and Special Rapporteur for Crimes Against Humanity.