A comparative examination of corporate criminal liability: Towards the expansion of corporate criminal liability in the international law

Abstract

As an introduction to the thesis, I use the conceptual framework of the corporate moral agent as a device designed to shed light upon a number of difficulties which beset the criminal law in the field of commerce. Whereas corporations can be accused of offences which require a mens rea component, the courts and scholars have endured a protracted struggle to establish the location of a mens rea inside the company structure. I expand upon the collectivist approach to mens rea to illuminate a form of corporate structural recklessness known as corporate mens rea. Insufficient thought has been given, and academic rigour has been devoted to the degree to which excuses may be considered valid in the corporation sphere. I portray the manner in which, in very particular circumstances, a company could legitimately proffer a reason for duress despite the fact that the very concept invokes the idea of the accused being prompted by the emotion of fear. So far, the cross-border courts have not yet ascertained a workable means of reining in multinational corporations (MNCs) and ensuring compliance with trans-international human rights criteria. The matter causes difficulties for nations which are significantly in need of MNC investments to further their economic progress. African countries, for example, are notorious for competing for influxes of funds by reducing the strictness of their laws for the benefit of MNCs. This gives the latter the leeway to pursue breaches of human rights and engage in international offences. This research aims to improve the situation by scrutinising the way in which MNCs can be held criminally liable on a global basis if they run substantially foul of human rights legislation. During the course of the last century, two critical events in international jurisprudence demonstrated the possibility of keeping multinational concerns criminally accountable. These were: the Nuremberg Trials, in the wake of the Second World War, which posited corporate criminal liability, and the consultations prior to the founding of the International Criminal Court (ICC) in the Nineties, during which the addition of criminal liability to the corporate sphere was proposed. Many countries bestow such liability at the state stage. In many cases, this emanates from a determination of criminal liability on the part of an individual company representative. Irrespective of this, the United Kingdom and Australia have effectively delineated how a corporation may be found criminally liable without any requirement to base any such liability on an official. These measures make clear the feasibility of taking MNCs criminally liable by means of either a derivative or non-derivative mechanism. Indeed, the treatise at hand suggests that MNCs can be found criminally liable for aiding and abetting international offences in accordance with Article 25(3)(c) in the ICC Statute. In pursuit of this, the research utilises the concepts of non-derivative criminal liability founded in the United Kingdom and Australia. It cultivates a theory of corporate criminal liability for aiding and abetting cross-border offences that encompass these tenets and proposes how this could work in the international jurisdiction of the ICC. This hypothesis reflects the foundation of an innovative approach by the ICC in what we say now is the determination of corporate criminal liability for aiding and abetting.