Corporate Criminal Liability – Workshop on the Business and Human Rights Treaty at the Universidad Autónoma de Madrid

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From left to right: Nadia Bernaz, Adriana Espinosa and Tara Van Ho

Last week I had the privilege to participate to a workshop on the proposed business and human rights treaty held at the Universidad Autónoma de Madrid in Spain and co-organised by that university and the Graduate School of Government and European Studies (Kranj, Slovenia).

The workshop brought together both supporters and opponents to the treaty from around the world, and perhaps more importantly given that the drafting process is clearly under way at this point, led to interesting discussions with regard to the contents of the future treaty. In my presentation, I chose to talk about the issues related to the possible inclusion of corporate criminal liability for international crimes in the future business and human rights treaty.

I aimed to answer three questions:

(1) Why including corporate criminal liability for international crimes in the future business and human rights treaty?

(2) How to do it?

(3) What are the main remaining questions that would have to be solved before proceeding?

(1) The main reason for including corporate criminal liability for international crimes in the treaty is that arguably it is a less controversial area than that of the existence of corporate obligations for “simple” human rights violations. Therefore it could be a relatively easier way to move the discussions forward and to avoid a possible dead end.

(2) I see three main ways of doing it: (a) Following the model of the UN Convention against Torture, the treaty could provide for a state obligation to prosecute, at the domestic level, corporations suspected of international crimes; (b) Following the model of the 1948 Genocide Convention, the business and human rights treaty could set up a system to refer cases to the ICC (c) A third option is that no business and human rights treaty is created, but the statute of the ICC is amended anyway.

(3) The pressing questions that would have to be solved have to do with the required mental element with regard to complicity liability under international criminal law, an area which has given rise to great uncertainty in recent years in the context of Alien Tort Statute litigation in the United States. Another pressing question would be related to the links between the treaty and the International Criminal Court Statute.