Prosecuting Corporations for Genocide by Michael J. Kelly (review)

Michael J. Kelly, a legal scholar, has developed an argument to prosecute corporations for genocide. Corporations, he argues, are sometimes “enablers” of genocide, “lurking in the shadows, whispering directions to dictators and rebels” (p. 14). The time has come, Kelly says, for corporations that enjoy rights as legal persons also to have the same obligations as legal persons.

Basing his argument on precedents, especially regarding corporate criminal liability in common law jurisdictions, Kelly maintains that there is sufficient legal reason to justify prosecution of corporations for conspiracy to commit genocide and for joint criminal (genocidal) enterprises, if not for more direct acts of genocide. He argues that the Rome Statute of the International Criminal Court (ICC) should be amended to authorize the Court to prosecute corporations. Such an amendment could take place if the International Court of Justice were to advise that it be made. For this to happen, it would have to be asked for an advisory opinion. Since states would be unlikely to ask for such an opinion, an international organization such as the United Nations General Assembly should do so.

Kelly begins with a discussion of historical cases, including what we now call crimes against humanity committed by the Dutch and British East India Companies. Turning to the post-World War II Nuremberg Trials, he notes the decision not to prosecute I.G. Farben, the company that made the gases used to murder Holocaust victims: only individuals working for I.G. Farben were prosecuted. Kelly explains that I.G. Farben was not prosecuted as a corporation because the U.S. government was trying to rehabilitate German industry as quickly as possible to cope with the new Soviet threat. Kelly also considers the U.S. Alien Tort Statute and explains the constraints that various U.S. courts have put upon prosecution of non-U.S. nationals for crimes against non-U.S. nationals committed outside the U.S. However, he reminds us, other countries have used the principle of universal jurisdiction to prosecute foreigners for genocide; this principle, he argues, could be extended to corporations.

Kelly argues that there is a basis in international law to prosecute corporations. While corporations are rarely if ever the direct perpetrators of genocide, they could be indicted for complicity in genocide or for aiding and abetting genocide. They also could be indicted as partners in joint criminal enterprises—in effect as partners in conspiracy to commit genocide. Drawing on developments in military law and the idea of command responsibility developed at Nuremberg, corporate executives also could be indicted for the actions of their employees. Moreover, corporations already bear criminal liability under several other international treaties, including some against apartheid.

There is also basis in national law to prosecute corporations for genocide, especially in common law countries. Since a 1908 judgment, corporations have born criminal liability in the U.S. They also bear it in several other common law countries and increasingly in civil law countries. This criminal liability can be extended to liability for genocide, as under the Canadian Crimes Against Humanity and War Crimes Act (CAHWCA).

In a refreshing change from numerous books that focus on corporations based in the United States, Kelly’s two major examples are from Germany and China. Notably, Kelly contends that German corporations and others were complicit in Iraqi genocide against the Kurds, especially during the 1988 bombings of the village of Halabjah, where 5,000 people may have been killed and thousands more injured by illegal chemical weapons. Kelly focuses on German corporations in part because of Germany’s history of creating chemical weapons during World War I and use of chemicals to murder Jews and others during World War II. The government of the Federal Republic of Germany, however, did not encourage private corporations to send chemicals and other weapons to Saddam Hussein. On the other hand—again, according to Kelly—it has been less than enthusiastic about prosecuting those corporations allegedly complicit in the...