Amy Bradley - Law

As a third year law student, you have to take EU law and Equity law and then you have a choice for your other three papers. One option is to write a dissertation (which also means you have 4 exams at the end of the year rather than 5). To write a dissertation you have to attend one of the seminar courses and then what you decide to write within that area about is entirely up to you. The seminar this dissertation was written for was called ‘select issues in International Law’ and I chose to write about the criminal liability of companies as it was an area I found interesting in light of the political arguments at the diplomatic conference and the increased globalisation of businesses.

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In law, companies have a ‘legal personality’ that is separate from the individuals who run the company. Currently, within the international criminal law system, a company cannot be held liable for an international crime. In it I argued that if a company commits an international crime then it should be prosecuted for it.

Following a diplomatic conference in 1998, the Rome Statute was created which established the International Criminal Court (ICC) and the crimes which the court is able to prosecute. The international crimes include genocide, crimes against humanity (for example; murder, enslavement, torture, rape and sexual slavery) and war crimes (such as torture or inhuman treatment, including biological experiments, extensive destruction of property and the taking of hostages). This court sits in The Hague in the Netherlands and it is controversial due to how much it costs to run and how few convictions it has made. Currently, only natural persons (individual human beings) and not ‘legal persons’ (companies) can be prosecuted for such crimes. In my dissertation I argued that it is possible for a company to commit an international crime, for example by using slave labour, and so companies should be included within the Rome Statute and thus subject to the ICC.

I looked at the reasons why companies were not included originally. Lots of different countries took part in the negotiations for the Rome Statute and each of them have their own national rules on whether or not companies can be criminally prosecuted. Because some states allowed for companies to be criminally liable and others did not there was a division of opinion and because the negotiations only took place over a limited time period, a compromise could not be reached and so companies had to be left out. 

However, in light of globalisation and the power that big businesses now have in the world, it can be argued that seventeen years later, the ICC should have the power to prosecute companies in order to act as a deterrent to prevent them from committing such atrocious crimes in the first place. The so-called BRIC countries (Brazil, Russia, India and China) are rapidly entering the global business market with huge companies such as Petrobas, Gazprom, Tata and Sinopec along with South Korea and Thailand with Samsung and PTT respectively. The expansion of these companies shows that big business is no longer limited to the western world and therefore, as business becomes more globalised, there needs to be greater legal power to keep such companies in check. These companies operate in many difference countries and so if one state, which does allow for companies to be found guilty of crimes, passes a conviction (for example a fine) it may want to enforce it against the assets of a company that are held in another state (for example it may want to force the company to sell its buildings in that state in order to pay the fine). However, there is a principle of respect between states which means that one state will not enforce the criminal laws of another, and so, a conviction passed at a national level in one country cannot be enforced in another.  One way to get around this problem is by allowing the ICC to have the power to prosecute the companies and therefore they can pass an international criminal conviction that can be enforced in all the states that have signed the Rome Statue. Furthermore, the power of the ICC to convict will deter companies from committing the crimes in the first place.

However, many people argue against the criminal liability of companies, and argue that the civil law should instead be used, for example by just imposing a fine without the added criminal conviction.Therefore, my dissertation went on to weigh up the advantages of civil or criminal liability of companies at an international level. There is currently no international civil system that is equivalent to the regime under the Rome Statute and so any civil liability would take a lot of time and money from states to set up. Furthermore, a civil conviction does not carry the same level of stigma that goes with a criminal one. Therefore, due to the severity of the international crimes, I concluded that criminal liability was preferable because a company that commits such an awful crime should be able to be held as accountable as an individual person and so companies should be included in the Rome Statute. 

Further Exploration

The Guardian Long Read - Corporations suing Countries

BBC Radio 4 - Company vs Country