The ILC has flagged corporate liability for crimes against humanity (Credit: United Nations Photo under creative commons)
The UN General Assembly established the International Law Commission (ILC) in 1947 to “initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification” (UN Charter, article 13(1)(a)).
Among the matters that the ILC is working on is a draft Convention on the Prevention and Punishment of Crimes Against Humanity. Whereas war crimes and genocide are codified by the 1949 Geneva Conventions and the 1948 Genocide Convention, the lack of clear international codification in relation to crimes against humanity was felt to be anomalous.
In July and August 2016, the ILC provisionally adopted various draft articles for a future convention on crimes against humanity. Although the 1949 Geneva Conventions and the 1948 Genocide Convention do not explicitly refer to the liability of legal persons, a proposed article 5(7) on crimes against humanity does so. Here is what it says:
5(7) Subject to the provisions of its national law, each State shall take measures, where appropriate, to establish the liability of legal persons for the offences referred to in this draft article. Subject to the legal principles of the State, such liability of legal persons may be criminal, civil or administrative.
The language is worth unpicking. According to the official commentary, article 5(7) imposes a clear obligation (“shall take measures…”) on states to address the liability of legal persons for crimes against humanity.
Yet there are three caveats:
- “Subject to the provisions of its national law”;
- “shall take measures, where appropriate”; and
- [s]ubject to the legal principles of the State….”
The official commentary elaborates that “where appropriate” means that, even if a State’s laws countenance corporate criminal liability, the State remains free to conclude that such a measure is inappropriate in the specific context of crimes against humanity. Moreover, there is no obligation to impose criminal liability if the State prefers civil or administrative liability as alternatives.
The triple caveat in article 5(7) is plainly a compromise between competing views on corporate liability. On one view, the result will be an obligation without teeth.
Although some might be disappointed with this triple caveat to corporate liability, it gives article 5(7) a better chance of being widely accepted. The wording of article 5(7) tracks similar wording in Article 3(4) of the 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (in force since 2002; 173 countries have ratified). An understandable decision appears to have been taken to follow that approach.
On 13 December 2016, the General Assembly adopted a resolution which drew the attention of States to the importance of commenting on the ILC’s draft by 31 January 2017. The ILC’s website does not indicate whether any States weighed in on corporate liability.
The ILC’s work on crimes against humanity will, according to the American Society for International Law, go on until 2018. Under the ILC’s Statute, once its work is complete it might suggest yet further study, propose a revised set of draft articles on second reading, propose a diplomatic conference to negotiate a new treaty, or propose the adoption of the convention by General Assembly Resolution.
There is therefore a considerable way still to go and the outcome remains to be seen. It is, however, significant that the ILC decided to include a provision on the liability of legal persons for crimes against humanity.
 The UK ratified the Optional Protocol in 2009. Article 12 of EU Directive 2011/92 on combating the sexual abuse and sexual exploitation of children and child pornography also provides that EU Member States shall take measures to provide for the liability of legal persons.