Extending Universal Jurisdiction to Corporate Human Rights Violations
Vol. 42 Associate Editor
Although a number of tools exist to hold individuals criminally accountable for human rights violations under international law, they do not extend to corporations. To address this enforcement gap, this post argues that states should extend the principle of universal jurisdiction to corporations for directly aiding and abetting certain grave human rights violations. I. Corporate Criminal Liability Under International Law The International Military Tribunal at Nuremberg established the norm against prosecuting corporations in 1946, stating that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” International judicial bodies, including the ICC, the ICTY, and the ICTR, adhere to this norm by only conferring jurisdiction over “natural persons.” The current limitations, however, do not imply that customary international law per se exempts corporations from criminal prosecution. Recent trends indicate an emerging norm authorizing corporate criminal liability for human rights violations. This shift has occurred in both the domestic and international planes, suggesting the imminence of far-reaching legal change fully integrating private businesses into the international legal system. The U.N. Guiding Principles on Business and Human Rights  and the UN’s Second Revised Draft of a treaty to regulate corporations and human rights further exemplify this norm shift. II. Problem: Lack of Enforcement Until a more comprehensive, legally binding instrument exists, these emerging norms placing international human rights duties on corporations lack adequate enforcement. This gap results in corporate impunity for aiding and abetting grave human rights violations, and it leaves victims of these crimes with few, if any, judicial bodies with jurisdiction to grant a remedy. An example of this enforcement gap is the Zyklon B Case. In 1946, the British Military Tribunal at Hamburg tried and convicted three employees of the German firm Tesch and Stabenow for war crimes committed during World War II. The prosecution argued that the firm supplied the Zyklon B, a highly dangerous poisonous gas, in “vast quantities to the largest concentration camps in Germany east of the Elbe – the same camps in which the S.S. “systematically extermina[ted] human beings to an estimated total of six million.” Because the Tribunal did not have jurisdiction over the firm itself, the prosecution instead charged the firm’s owner, procurist, and gassing technician for supplying the poison gas with the knowledge that it would be used to kill concentration camp prisoners. That the firm itself could not be held criminally liable for aiding and abetting crimes committed by Nazi Germany in The Zyklon B Case does not mean it lacked culpability. To the contrary, language in the case indicates that one of the “legitimate business activities of the firm” included supplying the poisonous gas for the purpose of killing prisoners in concentration camps. Business reports in the firm’s registry detailed interviews with leading members of the Wehrmacht, in which the firm’s owner learned that “the burial, after shooting, of Jews in increasing numbers was proving more and more unhygienic, and that it was proposed to kill them with prussic acid.” During these official business meetings, the firm’s owner proposed that the Wehrmacht use the same method that his gas company used for exterminating vermin, and the firm trained the S.S. men directly in this new method of killing human beings. III. Universal Jurisdiction: Bridging the Enforcement Gap To bridge the enforcement gap exemplified by the Zyklon B Case, I propose that the principle of universal jurisdiction be applied to corporations for directly aiding and abetting in currently accepted universal jurisdiction crimes. This is not a new concept. Instead, it is the extension of an existing mechanism to which states have turned to address norm-enforcement gaps in the past. Universal jurisdiction grants legal permission over a small, narrowly defined number of international law violations regardless of where, against whom, or by whom the violations were committed. International law generally accepts that universal jurisdiction covers the crimes of genocide, war crimes, piracy, the slave trade, crimes against humanity, and torture. These wrongs are universally cognizable because of their “exceptional moral gravity or heinousness,” which vest “in every state the power to try those who participated in the perpetration of such crimes and to punish them therefor.” The magnitude of these crimes also renders them prone to significant gaps in the typical delegated system of enforcement. Customary international law thus supports filling these gaps through state judicial mechanisms imposing criminal liability against perpetrators. Permitting any state to prosecute these crimes thus renders a willing and able state a “guardian of international law and agents for its enforcement.” The principle is effectively the same if applied to corporations, such as the firm in the Zyklon B Case, which aid and abet in the already-accepted universal jurisdiction crimes. In fact, the rationale may be even stronger given the growing prevalence of multi-national corporations and the jurisdictional hurdles this entails. Although universal jurisdiction poses issues of its own, until a more comprehensive and binding international instrument that provides for corporate criminal liability exists, it has promise as an effective enforcement gap filler.
 United States v. Goring, Trial of The Major War Criminals Before the International Military Tribunal, Judgment, ¶ 223 (Int’l Military Trib. For Nuremberg, Germany, Oct. 1, 1946).  Rome Statute of the International Criminal Court, art. 25(1), Jul. 17, 1998, 2187 U.N.T.S. 3; Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, ¶¶ 6–7 (May 25, 1993; Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, ¶¶ 5–6 (Nov. 8, 1994).  See Brief of International Law Scholars as Amici Curiae in Support of Petitioners, Jesner v. Arab Bank, 2017 WL 2859943, at *21.  Emeka Duruigbo, Corporate Accountability and Liability for International Human Rights Abuses: Recent Changes and Recurring Challenges, 6 Nw. J. Int’l Hum. Rts. 222, 224 (2008).  Id.  See John Gerard Ruggie, The Social Construction of the UN Guiding Principles on Business & Human Rights, in Research Handbook on Business and Human Rights 62, 63 (Surya Deva & David Birchall eds., 2020) (explaining that although the UNGPs “do not by themselves create new legally binding obligations but derive their normative force through their endorsement by states and support from other key stakeholders, including business itself . . . elements of them have already been incorporated into binding regulation and law”).  See OIEGWG Chairmanship, Second Revised Draft of the Binding Treaty, Bus. & Hum. Rts. Res. Ctr. (Aug. 6, 2020), https://www.business-humanrights.org/en/latest-news/second-revised-draft-of-the-binding-treaty/ (“Subject to their legal principles, States Parties shall ensure that their domestic law provides for the criminal or functionally equivalent liability of legal persons for human rights abuses that amount to criminal offences under international human rights law binding on the State Party, customary international law, or their domestic law”).  See Alessandra de Tomasso, Corporate Criminal Liability Under International Law, Law of Nations (Mar. 13, 2018), https://lawofnationsblog.com/2018/03/13/corporate-criminal-liability-international-law/; Duruigbo, supra note 4, at 250.  The Zyklon B Case, Trial of Bruno Tesch and Two Others, 1 Law Reports of Trials of War Criminals 93, 94 (Brit. Mil. Ct., Hamburg, 1946) (United Nations War Crimes Commission ed., London, His Majesty’s Stationary Office, 1947) available at http://www.ess.uwe.ac.uk/WCC/zyklonb.htm.  Id.  Id. at 93.  Id. at 95.  Id.  Id.  Id. at 471.  Jeffrey Dunoff et al., International Law: Norms, Actors, Process: A Problem-Oriented Approach 290 (Wolters Kluwer, 5th ed. 2020); Devika Hovell, The Authority of Universal Jurisdiction, 29 Eur. J. Hum. Rts. 427, 442 (2018).  Attorney-General of the State of Israel v. Adolf Eichmann, 36 I.S.R. 277 (1962), at ¶ 12.  See Jiewuh Song, Pirates and Torturers: Universal Jurisdiction as Enforcement Gap-Filling, 23 J. Pol. Phil. 471, 485 (2015).  See id.; Douglass Cassel, Universal Criminal Jurisdiction, Am. Bar Ass’n (Jan. 1, 2004), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/human_rights_vol31_2004/winter2004/irr_hr_winter04_universal/.  Attorney-General of the State of Israel v. Adolf Eichmann, 36 I.S.R. 277 (1962), at ¶ 12(f).  See Duruigbo, supra note 4, at 246 (discussing problems with extraterritorial jurisdiction and the “double standards that characterize the foreign operations of some MNCs compared to their operations in their home countries”); Ruggie, supra note 6, at 67–68 (observing a “scale mismatch” between the multinational nature of corporations and the state-level presumption against extraterritoriality).  See, e.g., Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, Foreign Affs. (Jul. 1, 2001), https://www.foreignaffairs.com/articles/2001-07-01/pitfalls-universal-jurisdiction (“The danger [of universal jurisdiction] lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts”). The views expressed in this post represent the views of the post’s author only.