Extending International Criminal Law beyond the Individual to ...

Extending International Criminal Law 919
develop which details the requisite mental engagement of a company before it
can be said to have committed an international crime. For the moment the field
is likely to develop according to those national jurisdictions which are among
the first to try corporations for international crimes. Several arguments were
raised above in favour of liability developing beyond the traditional need for a
relevant individual perpetrator, so that corporations could be found liable due
to a failure in their systems. Perhaps the overwhelming argument in this vein
is that: ‘Rules of liability should encourage management to have a preventive
system.’ 58
5. Emerging Practice Concerning Rebel Groups,
Paramilitaries and Political Parties
As already mentioned above, the ICC Statute did not, in the end, include jurisdiction
over non-natural persons. The Working Group, that drafted various
proposals, had in mind not only the prospect of prosecutions of corporate
entities but also of political parties or even racist groups. Of course such a
move was in part inspired by the fact that the International Military Tribunal
in Nuremberg in 1946 had declared criminal certain organizations under its
Statute; 59 and the move was partly rejected precisely because the declarations
against the organizations had been used to prosecute individuals for membership
of such groups. 60 According to Bassiouni: ‘To impose international criminal
responsibility merely for passive membership in an organization stretches
the generally accepted principles of criminal responsibility found in most legal
systems. Such a proposition would be tantamount to guilt by association which
most legal systems reject as fundamentally unfair.’ 61 Despite the absence of
58 C. Wells, Corporations and Criminal Responsibility (2nd edn., Oxford: Oxford University Press,
2001), 157.
59 The IMT declared the following organization to be criminal under Art. 9 of its Statute: the
Leadership Corps of the Nazi Party, the Gestapo, SD, and the SS. According the James Owen:
‘The French and Soviets had grave concerns about such corporate and retrospective declarations
of guilt’. Owen refers to ‘an avalanche of affadavits ^ more than 190,000 of them’. J. Owen,
Nuremeberg:EvilonTrial(London: Headline Review, 2006), 13.
60 See Arts 9 and 10 IMT Statute. It is worth noting the following passage from the Judgment:
‘A criminal organisation is analogous to a criminal conspiracy in that the essence of both is
cooperation for criminal purposes. There must be a group bound together and organized for a
common purpose. The group must be formed or used in connection with the commission of
crimes denounced by the Charter. Since the declaration with respect to the organisations and
groups will, as has been pointed out, fix the criminality of its members, that definition should
exclude persons who had no knowledge of the criminal purposes or acts of the organisation
and those who were drafted by the State for membership, unless they were personally implicated
in the commission of acts declared criminal byArticle 6 of the Charter as members of the
organisation. Membership alone is not enough to come within the scope of these declarations.’
61 M.C. Bassiouni (ed.), International Criminal Law. Volume 1: Crimes (2nd edn., Ardsley:
Transnational, 1999), 24. For detail on some of the proposed legislation being developed in
order to criminalize membership of certain terrorist groups listed by the United Nations and
the European Union, see A. Bianchi, ‘Security Council’s Anti-terror Resolutions and their