I have posted before about the provision on the liability of legal persons in the ILC’s Draft articles on Crimes Against Humanity.
The ILC’s work is ongoing and expected to go before the UN General Assembly later this year.
The ILC’s latest draft still includes a provision (now at Article 6(8)) on the liability of legal persons:
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.
On 29 November 2018, the United Kingdom submitted its written comments on the draft articles.
As to the liability of legal persons, the UK commented as follows (at para. 26):
The UK is aware that the Special Rapporteur would appreciate comments on draft Article 6(8) in particular. In the UK’s view, it is unclear what draft Article 6(8) adds to the legal position. Those States that have liability for legal persons as a matter of course will likely allow such liability for crimes against humanity. Those States that do not have such liability are unlikely to change their position because of draft Article 6(8). Thus, draft Article 6(8) risks creating controversy without having any substantive legal effects.
This is a curious comment by the UK.
It suggests that “[t]hose States that have liability of legal persons as a matter of course will likely allow such liability for crimes against humanity.”
On one view, English law recognises corporate criminal liability as “a matter of course”. It is part of general English criminal law, albeit difficult to prove because of restrictive rules of attribution (the identification principle).
However, it is far from clear that UK law includes corporate criminal liability for crimes against humanity.
Further, any attempt to establish civil or administrative liability would have to rely on analogous claims or remedies, rather than liability for crimes against humanity per se.
The UK’s comment misses the point. Draft Article 6(8) would require those States which recognise liability of legal persons to ensure that legal persons can also be held liable where they are involved in crimes against humanity.
Far from risking controversy, the draft article reveals some of the fundamental problems in UK law.
The UK should clarify its comment as soon as possible.