Andrew Clapham's 2010
paper 'Corporations and Criminal Complicity' explores
corporate complicity in international crimes such as war crimes and genocide. It is not suggested that the legal framework is the exclusive framework in this field. In many situations the ethical or moral arguments will be more persuasive for corporate actors. Furthermore an ethical framework may be more beneficial for the victims of abuse; this is due to the fact that the international criminal law framework often builds in important guarantees for defendants in order to ensure that individuals are not deprived of their liberty in unfair or unjust ways. Criminal law, and international criminal law in particular, may not therefore provide the best framework for determining blameworthiness in the context of corporate conduct. On the one hand corporations may wish to prevent and compensate acts which are not strictly speaking illegal under criminal law, on the other hand those strict penal rules are designed to safeguard the liberty of the individual defendant rather than apportion blame to different legal entities. International criminal law should perhaps be seen as part of the story of corporate complicity, rather than the last word.
Despite these obvious differences between the criminal law framework and alternative ethically based approaches there has been, in recent times, a drift, or even a shift, towards framing the corporate responsibility debate in terms of legal liability, corporate accountability, and even corporate criminality. This can be detected in the developing focus of attention in the legal scholarship, but also in the wider context of the reports produced by, inter alios, the United Nations' Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Professor John Ruggie. This trend is not, however, universal. There are situations where careful boundaries are being drawn between what could be considered a violation of international law and what might be described as unethical corporate behaviour.
Clapham concludes that -
• The emergence of concern over corporate complicity can be traced to the combination of factors: the focus by human rights organizations on corporate complicity as a way of bringing corporations within the state-centric legal framework for the protection of international human rights; the inclusion of the injunction to avoid complicity in ethical codes such as the Global Compact; the facts of the early cases under the Alien Tort Statute which focused on the nexus between certain corporations and repressive regimes. At the same time, the term complicity became associated with moral blameworthiness and the need to avoid benefiting from investments that appear to contribute to serious violations of international law in general, and the international law of war crimes and crimes against humanity in particular.
• The focus is currently on the meaning of complicity under international criminal law. While debate rages over the meaning of the Rome Statute, scholars have argued that the customary international standard for complicity is to be found in the case-law of the international tribunals and not in the text of Article 25(3)(c), and that „the universally accepted mens rea requirement for aiding and abetting liability under customary international law is knowledge, not purpose.‟
• Although presence has been interpreted as moral support for international crimes, and thus a material element in complicity, these cases relate to those in a position of authority and to those who were physically present in the vicinity of the abuses. Courts will be careful to limit individual convictions which represent 'guilt by association'. Mere presence would not normally translate into corporate complicity. Presence may, however, be very relevant to finding, both, knowledge of the crimes, and knowledge of the contribution which the company is making to the crimes. There is little legal practice concerning how the international complicity cases concerning the presence of individuals might be translated into a set of parameters which would tell us when corporate presence might lead to legal liability for complicity in violations of international law.
• While the focus may remain on corporate complicity in international crimes due to the corporate and plaintiff interest in the Alien Tort Statute, other jurisdictions will eventually address this issue. Moreover the injunction in the Norwegian Ethical Guidelines is to avoid contributing to serious human rights violations and violations of individual‟s rights in conflict situations. Not every human rights violation represents an international crime. The criminal standards for complicity therefore represent a starting point but not the whole story. The complexity of the criminal law tests need not blind us to the ordinary meaning of the term complicity: knowing assistance to another's wrongdoing.
