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Corporate Crimes and the ICC ICC Summer School - Galway 22 June 2012

Corporate Crimes and the ICC ICC Summer School - Galway 22 June 2012. Dr Nadia Bernaz Middlesex University n.bernaz@mdx.ac.uk. Outline. What are “corporate crimes”? History of prosecutions for corporate international crimes Drafting the ICC Statute

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Corporate Crimes and the ICC ICC Summer School - Galway 22 June 2012

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  1. Corporate Crimes and the ICC ICC Summer School - Galway22 June 2012 Dr Nadia Bernaz Middlesex University n.bernaz@mdx.ac.uk

  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: actusreus(action/omission) & mensrea (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

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