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against their nationals; and a few rely on “universal jurisdiction” to extend their laws, regardless
of nationality links.22 Again, if they also permit criminal punishment of firms, those
extraterritorial provisions could be extended to corporations.
26.
Apart from national incorporation of international standards, a number of legal
systems are evolving independently towards greater recognition of corporate criminal
liability for violations of domestic law. Most common law countries have such provisions, at
least for economic and some violent crimes. Many European civil law countries have moved
beyond purely administrative regulation to adopt some form of criminal responsibility for
corporations.
27.
In this fluid setting, simple laws of probability alone suggest that corporations will be
subject to increased liability for international crimes in the future. They may face either criminal
or civil liability depending on whether international standards are incorporated into a State’s
criminal code or as a civil cause of action (as under the United States Alien Torts Claims Act, or
ATCA). Furthermore, companies cannot be certain where claims will be brought against them
or what precise standards they may be held to, because no two national jurisdictions have
identical evidentiary and other procedural rules. Finally, civil proceedings may be brought for
related wrongs under domestic law, such as assault or false imprisonment.23 In short, the
risk environment for companies is expanding slowly but steadily, as are remedial options for
victims.
28.
Adding to the uncertainty for corporations, significant national variations remain in
modes of attributing corporate liability. Given the difficulty of establishing a corporate “mind
and will” in criminal cases, a number of jurisdictions have adopted a “corporate culture”
approach. In Australia, where a firm’s culture has been deemed expressly or tacitly to permit the
commission of an offence by an employee, the firm may be held liable.24 In the United States,
federal sentencing guidelines take corporate culture into account in assessing monetary
penalties.25
22
Of the 16 countries in the Fafo survey, 11 provide for a nationality link, 5 rely on universal
jurisdiction, and several do both; 9 of these provide for some form of corporate criminal liability
in their domestic laws.
23
“Note on the work of the ICJ Expert Legal Panel on Corporate Complicity in International
Crimes”, 22 January 2007 (on file with the Special Representative).
24
25
See Australian Criminal Code Act 1995 (Cth), sections 12.3 (2) (c) and (d).
The 2005 Federal Sentencing Guidelines permit judicial consideration of whether a
corporation has an “organizational culture that encourages ethical conduct and a commitment to
compliance with the law” §8B2.1 (a).
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