The Shifting Sands of Corporate Liability under International Criminal Law
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THE SHIFTING SANDS OF CORPORATE LIABILITY UNDER
INTERNATIONAL CRIMINAL LAW
CAROLINE KAEB*
INTRODUCTION
The sands of corporate criminal liability for atrocities are shift-
ing. Demands for corporate accountability have risen significantly
over the last decades and have manifested themselves in different
ways, such as litigation under the U.S. Alien Tort Statute (ATS)I
and the adoption of the U.N. Guiding Principles of Business and
Human Rights,2 as well as newly emerging regulatory mandates in
the area of due diligence and reporting requirements on both
sides of the Atlantic.3 A growing number of legal systems around
* Assistant Professor of Business Law and Human Rights, University of Connecticut.
Ph.D. 2012, University of Trento (Italy); LL.M. 2005, The George Washington University
Law School; Dipl.-Jurist Univ. and First State Board Examination 2004, Friedrich-Alexan-
der-University Erlangen-Nuremberg (Germany). The article draws upon certain of the
author's previous works. Portions of this essay are drawn from the author's Ph.D. disserta-
tion, A Story of Law and Incentives: A Comparative Legal Understanding of Corporate
Risk and Incentives in Relation to Human Rights Liability, from her essay A New Penalty
Structure for Corporate Involvement in Atrocity Crimes: About Prosecutors and Monitors
in the 57 Harvard International Law Journal 20-25 (Online Symposium 2016), and other
works of the author. The author is grateful for the support of the Open Society Justice
Initiative and the Center for International Human Rights at Northwestern Pritzker School
of Law.
1. The Alien Tort Statute (ATS) confers on district courts original jurisdiction of
any civil action by an alien for a tort only committed in violation of the law of nations or a
treaty of the United States. 28 U.S.C. § 1350 (2012). Corporate liability cases under the
ATS show clear synergy with atrocity law as violations of the law of nations that are action-
able under the statute, but then have to meet the standard of customary international law
violations. Sosa v. Alvarez-Machain, 542 U.S. 692, 722, 725 (2004). In such cases, atrocity
crimes generally include genocide, crimes against humanity, or serious war crimes. See
DAVID SCHEFFER, ALL THE MISSING SOULs: A PERSONAL HIsTORY OF THE WAR CRIMES TRIBU-
NALS 421-40 (2012).
2. John Ruggie (Special Representative of the Secretary-General), Rep. on the Issue
of Human Rights and Transnational Corporations and Other Business Enterprises: Guid-
ing Principles on Business and Human Rights: Implementing the United Nations Protect,
Respect and Remedy Framework, U.N. Doc A/HRC/17/31 (Mar. 21, 2011) [hereinafter
Ruggie, Report on the Issue of Human Rights and Transnational Corporations].
3. See Council Directive 14/95 2014 O.J. (L 330) 1 (regarding disclosure of non-
financial and diversity information by certain large undertakings and groups); see also
Arnaud Poitevin, Towards Mandatory Corporate Human Rights Due Diligence at the EU Level?,
INsT. Hum. RTs. & Bus. (July 15, 2015), http://www.ihrb.org/commentary/towards-
mandatory-corporate-human-rights-due-diligence.html [https://perma.cc/XNB5-RY4E]
351](ViewImageLocal?handle=hein.journals/gwilr49&div=15&collection=&method=preview&ext=.png&size=3)
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The Shifting Sands of Corporate Liability under International Criminal Law
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