1. Corporate Crimes and the ICC ICC Summer School - Galway 22 June 2012
Dr Nadia Bernaz
Middlesex University

2. Outline What are “corporate crimes”?
History of prosecutions for corporate international crimes
Drafting the ICC Statute
The future of corporate liability for international crimes

3. What are corporate crimes? The notion of corporate criminal liability
Criminal offence: actus reus (action/omission) & mens rea (guilty mind)
Problem: How to prove the “guilty mind” of corporations?
Distinction natural/legal person
Recognised in most countries
Risks of recognising corporate criminal liability?

4. International Military Tribunal at Nuremberg
IMT: set up by treaty by the four main allies (France, UK, US, Soviet Union) to bring the major war criminals to trial
Initial intention: put business executives on the list of accused
Why? Key role of business (heavy and chemical industries) and massive use of slave labour across all industries
Gustav Krupp?
Alfried Krupp?
 Trials under Control Council Law No 10

5. Zyklon B Case – British zone
British indicted the owner and 2 employees of “Tesch and Stabenow”

6. Zyklon B Trial cc’ed
Bruno Tesch and Karl Weinbacher were sentenced to death and executed
Joachim Drosihn (technician) was acquitted

7. Roechling case – French zone
Hermann Roechling and 4 other industrialists
Found guilty of plunder and spoliation of factories/machines in occupied France
Participation in the deportation of 200,000 people to work in factories in the East
Appointed President of the Reich Association Iron by Hitler
 sentences from 3 to 10 years in prison (7 for Roechling)

8. Flick case– US Zone
Flick concern: together with Krupp, the 2 main steel producing firms in Germany
Close to Hitler
Charged with slave labour and spoliation of property
Friedrich Flick and 5 other defendants

9. Flick trial – cc’ed Opening statement by the prosecution:
Third Reich was built on the “unholy trinity” of National Socialism, militarism and economic imperialism
Industrialists attracted by Hitler’s vision of a “ ‘stable government’, freedom from labour troubles, and a swift increase in production to support rearmament and the reestablishment of German economic hegemony in Europe and across the seas”
 all sentenced to short prison terms (7 years maximum)

10. I.G. Farben case – US zone Largest chemical firm in the world in 1933
Opening statement by the prosecution:
Farben was “the Reich’s greatest single industrial resource (…). Farben techniques held the key to many of the problems which the Wehrmacht wished to solve (…). No German government could afford to sacrifice its cooperation, least of all a government intent on rebuilding Germany’s military strength.”
Speer once said that the Reich was “entirely dependent upon the work of I.G. Farben for chemical progress”
24 defendants: 13 defendants sentenced to mild prison sentences, the rest were acquitted

11. Krupp case- US zone
Krupp factories produced arms in violation of the Treaty of Versailles even before Hitler came to power!
Gustav and Alfried Krupp: strong supporters of Hitler
12 executives of the firm prosecuted: 11 sentenced to mild sentences

12. Drafting the ICC Statute
Draft statute:
[23(5) The Court shall have jurisdiction over legal persons, with the exception of states, when the crimes committed were committed on behalf of such legal persons or by their agencies or representatives.
23(6) The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.]

13. Why including legal persons?
(1) Moral reasons
(2) Financial reasons
(3) Deterrent effect

14. States’ positions
Most states (not all) agreed with the potential benefits of allowing the prosecution of legal persons by the ICC
Step back in the fight for impunity if not included?
BUT concerns about the absence of precedents
 Some states were ready to compromise by allowing a mechanism for civil liability, not criminal liability
Practical difficulties and issues around the rights of third persons (such as employees)
A minority clearly opposed it 
Complementarity issue