Extending International Criminal Law beyond the Individual to ...

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914 JICJ 6 (2008), 899^926 the State and excluding public service delegations.’ 44 French law, however, often requires an explicit provision stating that legal persons may be liable for the offence in question. The memorandum explains: ‘The criminal liability of legal entities is special insofar as specific provision must have been made to attribute the offence to them. This principle was the result of pressure from political parties and associations who feared that they might otherwise incur liability too easily.’ 45 According to the memorandum, new legislation has, 46 however, extended the criminal liability of legal entities ‘to all offences defined in the Penal Code, though paradoxically the express references to the criminal liability of legal entities that previously featured in the Penal Code have not been deleted’. 47 Commentators often wonder how a corporation or a political party can commit offences such as sex crimes, or be accused of international crimes such as torture. But a moment’s reflection makes it clear that organizational complicity in such crimes is not an academic sleight of hand, but rather an obvious way to understand how legal entities have potential liability for any crime on the books. As the memorandum points out, definitions of crimes offences need to be ‘seen in the light of complicity: as accomplices, legal entities are capable of committing all the offences contained in the Penal Code’. 48 Moreover, legal entities may enjoy special obligations of due diligence that make them more easily open to charges of recklessness, negligence or failure to exercise a special duty of care. 49 A further particularity of the criminal liability of legal entities is that particular provisions exist to bind the entity through the actions of its agents and organs. The French memorandum explains: ‘The criminal liability of legal entities remains indirect and personal since it presupposes that the offence has been committed ‘‘on their account by their organs or representatives’’. Consequently, a legal entity may not be held liable if its manager acts on his own behalf or in his own personal interest or if the offence is committed by an employee acting on his own initiative.’ 50 This type of agency test is mirrored in several jurisdictions around the world and was influential in the aborted attempt in the Rome Diplomatic Conference to include legal entities within the jurisdiction of the ICC. 51 The last draft of the 44 ‘Re: Criminal liability of private law legal entities under French law and extra-territoriality of the laws applicable to them: Review of the situation and discussion of issues’, 5 June 2006, Human Rights Coordination Mission, at 1. 45 Ibid., at 2. 46 Act 2004^204 of 9 March 2004, ‘Perben II’, deleting the phrase ‘in the cases provided for by statute and regulation’ from Art. 121-2 of the Penal Code as of 31 December 2005. 47 Memorandum ‘Re: Criminal liability of private law entities’, supra note 44, at 3. 48 Ibid. 49 Art. 121-3 of Penal Code discussed at 2 of the memorandum. 50 Ibid., at 3^4. 51 On the background to this draft provision see A. Clapham, ‘The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’, in M. Kamminga and S. Zia-Zarifi (eds), Liability of Multinational Corporations Under International Law (The Hague: Kluwer, 2000)139^195; Ambos, supra note 33, 475^493; Eser, in Cassese et al. (eds), supra note 33, 767^822, at 779, and the references therein.
Extending International Criminal Law 915 relevant article, which was considered by governments at the Rome Conference, included the following provisions: Charges may be filed by the Prosecutor against a juridical person, and the Court may render a judgement over a juridical person for the crime charged, if: (a) The charges filed by the Prosecutor against the natural person and the juridical person allege the matters referred to in subparagraphs (b) and (c); and (b) The natural person charged was in a position of control within the juridical person under the national law of the State where the juridical person was registered at the time the crime was committed; and (c) The crime was committed by the natural person acting on behalf of and with the explicit consent of that juridical person and in the course of its activities; and (d) The natural person has been convicted of the crime charged. 52 The idea that a relevant natural person must first be convicted is not usually paralleled in national legislation, nor is it found in all international treaties, but the concept of key agents or a ‘directing mind’ can be seen in certain international treaties that seek to encourage the criminalization of acts by legal entities. For example, Article 18 of the Criminal Convention on Corruption adopted in the context of the Council of Europe reads: 1. Each party shall adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for the criminal offences of active bribery, trading in influence and money laundering established in accordance with this Convention, committed for their benefit and by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on: ^ a power of representation of the legal person; or ^ an authority to take decisions on behalf of the legal person; or ^ an authority to exercise control within the legal person; as well as for involvement of such a natural person as accessory or instigator in the above mentioned offences. 2. Apart from the cases already provided for in paragraph 1, each Party shall take the necessary measures to ensure that a legal person can be held liable where the lack of supervision or control by a natural person referred to in paragraph 1 has made possible the commission of the criminal offences mentioned in paragraph 1 for the benefit of that legal person by a natural person under its authority. 3. Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators, instigators of, or accessories to, the criminal offences mentioned in paragraph 1. Article 1(d) of the Convention states ‘‘‘legal person’’ shall mean any entity having such status under the applicable national law, except for States or other public bodies in the exercise of State authority and for public international organizations.’ 52 UN Doc. A/Conf.183/C.1/WGGP/L.5/Rev.2, 3 July 1998 (footnote omitted).
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