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Is International Law Moving towards Criminalization?
2 Criminalization of Acts of Corporations
Friedman himself referred to the trend of criminalizing offences by legal persons, such as corporations.9 In opposition to the ILC's adoption of the concept of international crimes, many cite the maxim impossibile est quod societas delinquat. However, the increasing departure from this maxim in national laws suggests that opposition to the concept of international crimes stems from state sovereignty rather than from the character of the state as a legal person.
In addition to the individual criminal responsibility of the officers of a corporation,10 in the modern business world a corporation itself may be criminally liable for the actions or omissions of agents acting on the corporation's behalf,11 i.e., in the scope of their employment. The movement towards this form of criminalization began in areas of strict liability, where no mens rea was required, but soon expanded to crimes requiring a certain mental state.12 This was achieved through imputing to the corporation not only the acts, but also the mental state, of its employees.13 Whereas individuals would be punished by imprisonment or even death, corporations have been penalized by fines or punitive damages.
Even though labelled civil rather than criminal, treble damages for anti-trust violations have become a major feature in evaluating the movement of the law towards the imposition of punitive sanctions. The role of parallel developments in many countries, which influence general principles of law and, in many cases, general principles of criminal law, reinforces the impact of such treble damages.
The action for civil treble damages in the United States for violation of the Sherman Act or other anti-trust legislation may be initiated by either the government, private individuals or corporations. This civil action is in addition to governmental enforcement through both criminal and civil action,14 for example, by enjoining an illegal transaction. Governmental criminal action leads to fines on corporations and their officers and, whenever appropriate, imprisonment of the corporation's officers. Allowing private parties to sue to supplement governmental enforcement means that private parties are allowed to act, in effect, as private attorneys general. I emphasize this point to illustrate that significant sanctions can also be carried out through private agents. Thus, the dividing line between civil and criminal action may be becoming blurred in several areas of the law.
10 Ibid, 247-48. See also United States v. Park, 421
U.S. 658 (1574).
11 W.R. LaFave and A.W. Scott, Jr., Criminal Law
(2nd ed. 1986), at 257.
14 First, `General Principles Governing the Criminal Liability of
Corporations, Their Employees and Officers', in O. Obermaier and R. Morvillo
(eds.) White Collar Crime: Business and Regulatory Offenses (1990), ch.
5.
© 1990-2004 European Journal of International Law
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