CICJ researchers prof. Wim Huisman and dr. Marjolein Cupido have written a report on business involvement in international crimes for the upcoming conference of the Association International de Droit Penal (AIDP).
The report discusses the Dutch experience with prosecuting businessmen for international crimes and sets out the possibilities and limitations for establishing individual criminal responsibility for corporate complicity. The report focuses on corporate complicity for ‘core’ international crimes, i.e. war crimes, crimes against humanity, genocide, aggression and torture.
The report shows that Dutch law provides for a variety of modes of perpetration and participation. To establish criminal responsibility in cases of corporate complicity for international crimes, the concepts of functional (co-)perpetration, actually directing, aiding, and superior responsibility seem to be particularly important.
Despite apparently looser standards of criminal responsibility for corporate complicity under Dutch law as compared to international criminal law, it seems that Dutch courts still struggle with holding businessmen accountable as perpetrators of or participants in international crimes. This relates to the fact that corporate officials are often only remotely involved in criminal conduct and make neutral contributions to crimes, as a side-effect of their corporate policies and efforts.
Considering these difficulties, it will often be challenging to hold corporate officials for international crimes. Prosecutors – if bringing charges – may therefore prefer alternative grounds for criminal responsibility, such as the dereliction of duties of care, violation of embargoes, or even corruption. However, while this enables holding corporate officials at least accountable for some crime, the practice can be criticized from the perspective of fair labelling and the expressive function of criminal law.
You can read the full report here.