Corporate Accountability for Severe and Systematic Human Rights Violations: The Role of International Criminalization

Favio C. Yepes February, 2025

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Introduction

While mandatory human rights due diligence (“MHRDD”) laws represent a step forward, civil liability alone is insufficient to address severe and systematic human rights abuses committed by corporations,[1] particularly in conflict-affected regions.[2] To ensure accountability, criminal liability should complement civil measures,[3] which lack the moral condemnation needed for atrocities that “shock the conscience of humanity.”[4] To address this, corporate criminal liability should be added to the International Criminal Court (“ICC”) by amending the Rome Statute to include “legal persons” and adopting an organizational fault model.

As I will explain, the ICC’s influence remains strong despite its challenges. Adding corporate liability to the Rome Statute could complement MHRDD laws by evaluating corporate policies and due diligence through an organizational fault model. This would hold corporations accountable for systemic failures and prevent the exploitation of weak jurisdictions. It would also shift human rights from a matter of compliance to a core organizational value, strengthening accountability for severe crimes.

The Current State of Corporate Accountability: From Voluntary Standards to Mandatory Due Diligence

Since their endorsement by the United Nations Human Rights Council in 2011, the United Nations Guiding Principles (“UNGPs”) have gained recognition from governments, international organizations, corporations, and civil society as the leading global framework on corporate human rights responsibilities.[5] The UNGPs helped clarify the State’s duty to protect human rights, the corporate responsibility to respect them, and the need for remedies when violations occur.[6] However, the UNGPs’ effectiveness is undermined by their voluntary nature.[7]

In response to the shortcomings of the UNGPs, States have introduced MHRDD laws. The implementation of MHRDD laws represents a significant step toward addressing corporate human rights violations and elevating the legal importance of human rights. By requiring due diligence, these laws emphasize that respecting human rights is not merely aspirational but a binding legal obligation for corporate conduct.[8] However, States often draft laws like France’s Duty of Vigilance Act[9] and Norway’s Transparency Act[10] with economic competitiveness in mind, resulting in vague language that grants corporations excessive discretion and fails to prioritize strong human rights protections. As a result, the effectiveness of these laws in preventing human rights abuses remains limited.

Integrating the Global Movement to Criminalize Corporations into the ICC: Organizational Fault Theory as a Framework for Human Rights Accountability

The Rome Statute of the ICC, adopted in 1998, does not extend to corporate entities.[11] This omission was not a principled rejection of corporate criminal liability but rather the outcome of practical difficulties encountered during the drafting process.[12] These challenges included time constraints, difficulties in standardizing the attribution of criminal intent to corporations, and the need to reconcile differing national approaches to criminal law.[13] Over the past 25 years since the adoption of the Rome Statute, many of the initial challenges – such as the absence of domestic legal frameworks for corporate criminal liability – have diminished. This evolving landscape is evident in various legal developments, including the draft Business and Human Rights Treaty,[14] the Special Tribunal for Lebanon,[15] and the African Union’s Malabo Protocol.[16]

Assuming there is a movement to criminalize corporate severe and systematic crimes, it should unfold at the international level, particularly through the ICC. Amending the Rome Statute to include “legal persons” in Article 25 would be a necessary step toward enhancing corporate criminal accountability. Building on this idea, the Rome Statute should adopt an organizational fault model rather than a derivative fault model to more effectively determine a corporation’s mens rea. Unlike derivative fault, which ties liability to the actions of specific individuals, an organizational fault model treats the corporation as a distinct entity, focusing on its own policies, procedures, systems, and due diligence efforts.[17] Moreover, this organizational fault model aligns with the proactive and preventative goals of human rights due diligence under frameworks like the UNGPs, which emphasize recognizing and mitigating risks before human rights violations occur.[18] Thus, even if these efforts do not always result in convictions, they would still incentivize corporations to enhance their due diligence practices. Otherwise, a corporation’s failure to meet due diligence standards could serve as evidence of mens rea for the ICC Prosecutor.[19]

Towards Stronger Corporate Accountability: Reasons to Amend the Rome Statute

Critics argue that expanding corporate liability under the Rome Statute would strain the ICC, which already faces resource limitations and relies on State cooperation for enforcement.[20] Critics also argue that the ICC’s creation has inadvertently shifted responsibility from domestic courts, further straining its capacity.[21] The Office of the Prosecutor can currently handle only three investigations at a time due to limited resources from the Assembly of States Parties, making expansion unlikely.[22] Therefore, expanding the ICC’s mandate to include corporations would not solve existing challenges but would likely add to the Court’s burden.

While valid, this criticism overlooks the ICC’s normative role. As a court of last resort under complementarity, the ICC aims to encourage, not replace, domestic prosecutions.[23] If the Rome Statute were amended to explicitly include corporate criminal liability for severe systematic crimes – such as crimes against humanity involving human rights violations – States Parties would have to prosecute these offenses themselves or concede jurisdiction to the ICC.

If some States do not ratify the amendment, the ICC’s normative role would still set a global standard, applying moral, political, and reputational pressure on State and Non-State Parties. While some governments may initially resist aligning their domestic laws with the amended Rome Statute, global market interconnectivity and investor focus on ESG issues could gradually drive adherence.[24] In the long run, failure to adopt the amended Rome Statute could leave States increasingly isolated, both diplomatically and economically.[25]

Organizational Fault Theory: Embedding Human Rights as Core Corporate Values

Criminalizing corporate involvement in severe and systemic crimes that lead to human rights violations at the international level can transform human rights from a mere compliance requirement into a core corporate value. Unlike civil liability – which often reduces human rights protections to a cost-benefit calculation – international criminal liability imposes an “expressive cost.”[26] It conveys moral blame and affirms that certain actions are fundamentally unacceptable rather than mere regulatory infractions.[27] Emphasizing moral wrongdoing can drive cultural shifts within corporations, especially when these crimes violate jus cogens norms. This may push corporations to integrate human rights into their core strategies, operations, and decision-making, shifting their focus from merely avoiding penalties to actively promoting and protecting human rights.

A counterargument suggests that corporations may comply only to avoid punishment rather than genuinely embracing human rights values. While both civil and criminal liability can deter abuses, criminal liability carries unique symbolic weight. Civil penalties – even large ones – risk being viewed as the “cost of doing business,” allowing corporations to pass these costs onto consumers and normalize the commodification of human rights violations.[28] Criminal liability, by contrast, represents societal condemnation and moral outrage. The success of the U.S. Foreign Corrupt Practices Act (“FCPA”), which redefined bribery from a tolerated expense into an utterly unacceptable practice, illustrates the transformative potential of criminal law. The FCPA led corporations to adopt anti-corruption as a core value, shifting corporate cultures toward proactive compliance.[29] Similarly, subjecting corporations to international criminal liability for severe and systematic crimes that touch on human rights abuses can lead them to view human rights as non-negotiable principles rather than regulatory burdens.[30]

  1. See EarthRights Int’l, The First Case of Its Kind: Holding a U.S. Company Responsible for Rape, Murder, and Forced Labor in Myanmar, https://earthrights.org/case/doe-v-unocal/ (noting Unocal, a U.S. oil and gas company, partnered with the Burmese military, knowing it would commit human rights abuses); See also Oliver Burkeman, IBM ‘Dealt Directly with Holocaust Organisers’, The Guardian (2002), https://www.theguardian.com/world/2002/mar/29/humanities.highereducation (noting IBM oversaw its German subsidiary, Dehomag, and facilitated the Holocaust by supplying punch card technology used for tracking jews); See also European Ctr. for Constitutional & Human Rights, Lafarge in Syria: Accusations of Complicity in Grave Human Rights Violations, https://www.ecchr.eu/en/case/lafarge-in-syria-accusations-of-complicity-in-grave-human-rights-violations/ (noting Lafarge arranged with criminal armed groups to keep its cement plant operational from 2012 to 2014 in northeastern Syria).↑

  2. John G. Ruggie, Just Business: Multinational Corporations and Human Rights 94 (2013) (“Some of the most egregious human rights abuses . . . occur in such areas [conflict areas]”).↑

  3. See Marie Davoise, All Roads Lead to Rome: Strengthening Domestic Prosecutions of Businesses through the Inclusion of Corporate Liability in the Rome Statute, Opinio Juris (2019).↑

  4. Rome Statute of the International Criminal Court pmbl., 1998 [hereinafter Rome Statute].↑

  5. See generally UN Development Programme, United Nations Guiding Principles on Business and Human Rights, https://www.undp.org/sites/g/files/zskgke326/files/migration/in/UNGP-Brochure.pdf.↑

  6. U.N. Office of the High Commissioner for Human Rights, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Annex to Final Report to the Human Rights Council by John Ruggie, Special Representative of the Secretary-General, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011).↑

  7. See World Benchmarking Alliance, Corporate Human Rights Benchmark 7-8 (2020) (noting that despite widespread adoption, reports continue to document ongoing human rights violations in global supply chains).↑

  8. See Surya Deva, Mandatory Human Rights Due Diligence Laws in Europe: A Mirage for Rightsholders?, 36 Leiden J. Int’l L. 389, 397 (2023).↑

  9. Loi 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre art. 1 (2017); see also Sénat, Compte Rendu des Débats, Séance du 18 Novembre 2015 (Fr.) (statement of Sen. Philippe) (“The adoption of this text would obviously have serious consequences for our companies, and only for “our” companies . . . . This bill adds to the obvious complexity and costs in the management of our companies. It is therefore an uneconomic text.”); See also Assemblée Nationale, Compte Rendu Intégral des Débats, Séance du 21 Février 2017 (Fr.) (statement of Rep. Hetzel) (“The economic consequences of this bill have been ignored in favor of ideology . . . . You are adding rigidity where flexibility should be allowed . . . . It is unlikely that such legislation . . . would change the legislation in these countries.”), (statement of Rep. Pancher) (“We are very concerned that the new constraints imposed on our companies . . . will lead to litigation and weaken them. It’s a bit risky . . . .”).↑

  10. Act Relating to Enterprises’ Transparency and Work on Fundamental Human Rights and Decent Working Conditions (Transparency Act), No. 99 (2021) (Nor.); see also Norwegian Ministry of Children and Families, Proposition to the Storting: Transparency Act (2021) (noting concerns in Bill Comments on the Purpose and Scope of the Act: “The ministry is concerned about the burdens on the smaller businesses as a result of the proposal” and in Bill Comments on The Duties of the Law: “The Committee notes that the ministry points out that an obligation can be burdensome for the businesses, and that for the sake of Norwegian businesses’ competitiveness, one should be careful about introducing national rules that go further than what follows from the international principles and guidelines.” and “. . . by introducing such an obligation in the Norwegian Transparency Act, Norwegian companies will have to publish their production sites, while their international competitors do not have to do the same. This can be a competitive disadvantage, and an unnecessary burden given that the benefits of the obligation are debated.”).↑

  11. Rome Statute, supra note 4, art. 25(1) (“Court shall have jurisdiction over natural persons”); Alessandra De Tommaso, The Adoption of the Rome Statute, in Corporate Liability and International Criminal Law 99 (2023) (“Time constraints, complementarity concerns, and procedural difficulties were the main reasons which made the project to include corporations within the scope of the Rome Statute derail. Nothing in the preparatory works seems to indicate a complete rejection of the concept as a matter of principle. Indeed, even delegations from countries that – at the time of the Conference – did not incorporate corporate criminal liability in their domestic systems seemed to recognise the value of holding private entities accountable for their involve- ment in international crimes.”)↑

  12. Id. at 100 (noting the omission of legal persons from the Rome Statute “did not rest on theoretical grounds but on practical considerations, linked to the specific historical context in which the negotiations took place. As a result, the decision not to include corporations within the scope of the Statute of the ICC cannot be considered a definitive statement against the recognition of an international corporate criminal liability.”).↑

  13. See Kai Ambos, General Principles of Criminal Law in the Rome Statute, 10 Crim. L.F. 1, 1, 7 (1999) (noting that “there are not yet universally recognized common standards for corporate liability; in fact, it is not even recognized in all major criminal law systems. Consequently, the absence of corporate criminal liability in many States would render the complementary concept unworkable.”).↑

  14. Updated Draft Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises, U.N. Doc. A/HRC/52/41, art. 8.1 (July 31, 2023) (stating in Article 6.1 that “States Parties shall regulate effectively the activities of all business enterprises within their territory, jurisdiction, or otherwise under their control” and providing in Article 8 for “criminal, civil, or administrative” liability for abuses.).↑

  15. Prosecutor v. New TV S.A.L. & Al Khayat, Case No. STL-14-05/PT/AP/AR126.1, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, ¶ 55 (Special Trib. for Lebanon 2014), https://www.legal-tools.org/doc/e8fbb1/pdf (“Many European states have laws that establish genuine corporate criminal liability. These include Austria, Belgium, Croatia, Cyprus, the Czech Republic, Denmark, Finland, France, Hungary, Iceland, Lithuania, the Netherlands, Norway, Portugal, Romania, Spain, Switzerland, and the United Kingdom.”) (noting that some of these countries enacted such laws after the ratification of the Rome Statute).↑

  16. African Union, Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol), art. 46C (2014) (noting under Article 46C that “[f]or the purpose of this Statute, the court shall have jurisdiction over legal persons, with the exception of States”); Press Release, Pan-African Parliament, Ratification of the Malabo Protocol: Côte d’Ivoire Ministry of Foreign Affairs Commits to Empowering the Pan-African Parliament, Press Release (Oct. 19, 2024), https://pap.au.int/en/news/press-releases/2024-10-19/ratification-malabo-protocol (noting that the protocol requires 28 states to sign for ratification, and currently, 15 states have signed the protocol).↑

  17. See Andrew Clapham, Extending International Criminal Law Beyond the Individual to Corporations and Armed Opposition Groups, 6 J. Int’l Crim. Just. 899, 917–19 (2008); See also Brent Fisse & John Braithwaite, Making the Buck Stop, in Corporations, Crime and Accountability 146 (1993).↑

  18. U.N. Office of the High Comm’r for Human Rights, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, U.N. Doc. HR/PUB/11/04 (2011) (noting that Principle 17 states: “[i]n order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence.”).↑

  19. Douglass Cassel, Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts, 6 Nw. J. Int’l Hum. Rts. 304, 319 (2007) (“In Unocal, Burmese residents were allegedly subjected to forced labor, forced displacement, murder and rape by Burmese military forces providing security for a natural gas pipeline being built by a project in which Unocal participated.”); Vedanta Res. PLC v. Lungowe, [2019] UKSC 20 (noting that Vedanta faced allegations of systemic negligence for failing to implement proper machinery to detect toxic leaks, which resulted in environmental harm and violated the right to a clean, safe, and sustainable environment).↑

  20. David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics 3-5 (2014) (“Negotiators gave the court no enforcement tools of its own. Investigations on national soil require official permission and access. To apprehend suspects, the court leans on state police and military forces. Financially, the court relies on annual dues from members.”).↑

  21. William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice, 49 Harv. Int’l L.J. 53, 62 (2008).↑

  22. Id. at 66.↑

  23. Rome Statute, supra note 4, art. 17.↑

  24. Georg Inderst & Fiona Stewart, Incorporating Environmental, Social and Governance (ESG) Factors into Fixed Income Investment, World Bank Group at 6 (2018) (noting that investors may exclude “securities of specific activities or industries . . . deemed unacceptable. Reasons may be ethical, legal or other norms and standards (e.g. human rights, labor conditions, corruption)”).↑

  25. J.C. Sharman, Part Two: Why Has Anti–Money Laundering Policy Diffused?, in The Money Laundry: Regulating Criminal Finance in the Global Economy 101 (2011) (noting that “the act of blacklisting has damaged the reputation, status, or standing of countries on the list in the eyes of third parties, including both states and private firms.”).↑

  26. Mark A. Drumbl, Extraordinary Crime and Ordinary Punishment: An Overview, in Atrocity, Punishment, and International Law 1–22 (2007) (noting that “[e]xpressivists maintain that punishment affirms the value of law, strengthens social solidarity, and incubates a moral consensus among the public . . . . Trials narrate events – publicly – and then impose punishment on the guilty in a manner that can shame and stigmatize.”).↑

  27. Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 593 (1996) (noting “punishment is not just a way to make offenders suffer; it is a special social convention that signifies moral condemnation.”); See Gregory M. Gilchrist, The Expressive Cost of Corporate Immunity, 64 Hastings L.J. 1, 6, 44-45 (2012).↑

  28. James G. Stewart, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, 47 N.Y.U. J. Int’l L. & Pol. 1, 54 (2014) (“Particularly in commercial contexts, the commodification of accountability risks allowing companies to absorb the cost of responsibility for international crimes, then pass this expense on to consumers. . . . . The inescapable threat, however, is that limiting accountability to civil recovery might allow corporations to purchase massive human rights violations.”).↑

  29. See Andrew Brady Spalding, Corruption, Corporations, and the New Human Right, 91 Wash. U. L. Rev. 1365, 1383, 1408 (2014) (noting that the FCPA established a corporate culture where anti-bribery compliance is embedded into governance structures, evolving from a mere legal obligation to a key component of risk management); See also Samuel B. Richard, To Bribe a Prince: Clarifying the Foreign Corrupt Practices Act Through Comparisons to the United Kingdom’s Bribery Act of 2010, 37 B.C. Int’l & Comp. L. Rev. 419, 422–24, 426–27 (2014) (noting how the FCPA transformed corporate culture by criminalizing foreign bribery, enforcing compliance measures and leveraging the power of law to embed anti-corruption as a core value both domestically and internationally).↑

  30. Margaret M. deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law viii, 5 (2020) (noting that the ICC contributes to the global justice framework by embedding human dignity as a guiding value within international criminal law and hence fostering a global dialogue on values and priorities); Carsten Stahn, A Critical Introduction to International Criminal Law 2 (2019) (noting that “[i]nternational criminal courts . . . have to some extent reshaped contemporary understandings of justice” and in certain cases “international criminal justice may serve as a broader form of ‘social deterrent.’ It creates greater awareness of atrocities, restricts the leverage and reach of political elites involved in crime, or may empower domestic constituencies.”).↑