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    Towards Corporate Liability in International Criminal Law

    ISBN-10: 9400000243
    ISBN-13: 9789400000247
    Author(s): Desislava Stoitchkova
    Description: The need for more stringent regulation of multinational corporations (MNCs) is discernible in the adverse human rights impact of business activities in conflict-prone regions of the world. Domestic jurisdictions appear reluctant to vigorously pursue  More...
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    Publisher: Intersentia Uitgevers N.V.
    Binding: Paperback
    Pages: 252
    Size: 6.75" wide x 9.25" long x 0.75" tall
    Weight: 0.990
    Language: English

    The need for more stringent regulation of multinational corporations (MNCs) is discernible in the adverse human rights impact of business activities in conflict-prone regions of the world. Domestic jurisdictions appear reluctant to vigorously pursue mandatory enforcement of human rights standards vis--vis the private sector for violations committed abroad. The international system, in turn, has not yet put in place any effective compliance mechanism beyond regulatory supervision. The difficulties of prosecution by home and host states, and the propensity of MNCs to exploit the principles of separate legal personality and limited liability, pose certain challenges. Seeking to address the problem of corporate involvement in grave human rights abuse, i.e. genocide, crimes against humanity and war crimes, this study explores the desirability and feasibility of subjecting business enterprises to regulation through international criminal law. It draws upon holistic methods for uncovering or

    List of abbreviations
    Introduction
    Corporations, conflicts and human rights
    The rise of corporate social responsibility
    Regulation at the domestic level
    Criminal liability
    Liability through civil courts
    Non-mandatory mechanisms
    International regulation
    'Soft-law' initiatives
    The International Criminal Court
    Some post-Rome developments
    Central question
    Method and structure
    Criminal Responsibility and the Corporate Entity
    Introduction
    The criminology of international corporate crime
    Conceptualising corporate crime
    Corporate crime in international context
    The morality paradigm and corporate liability
    Can corporations be regarded as persons?
    Moral agency and moral responsibility
    Legal personhood and moral responsibility
    Guilt and punishment of collectives
    The moral guilt contention
    Collective legal guilt and the position of the individual
    Accountability, culpability and due process
    Conclusion
    Corporate accountability � La Nuremberg
    Introduction
    The Nuremberg 'collective criminality' model
    The doctrine of conspiracy
    The concept of criminal organizations
    A missed opportunity vis-�-vis corporate accountability?
    The Nuremberg prosecution of industrialists
    An overview of domestic military trials
    Synthesising the Nuremberg principles of individual criminal responsibility in relation to corporate officials
    The implicit denunciation of corporations as accessories to Nazi crimes
    The legacy of Nuremberg
    Conclusion
    Collective criminality and the Rome Statute
    Introduction
    The 'common purpose' doctrine
    Joint criminal enterprise: doctrinal overview
    The elements of joint criminal enterprise as a mode of liability
    Jurisprudential attempts at counteracting the drawbacks of the JCE doctrine
    The customary law origins of JCE
    The inherent complexities of extended JCE
    Critical appraisal of the ad hoc tribunals' approach to JCE
    The 'common purpose' concept in the Rome Statute
    The divergent nature of Article 25(3)(d) RS
    A redundant provision?
    The concept of superior responsibility
    Brief historical survey of the development of the doctrine
    Superior responsibility under the Rome Statute
    The components of superior responsibility as a mode of liability
    The existence of a superior - subordinate relationship
    The cognitive requirement for superior responsibility
    Activities within the effective responsibility and control of superiors
    The duty of superiors to act
    Conclusion
    The criminal liability of corporationswithin the Rome Statute framework
    Introduction
    The ambit of actus reus and mens rea in the Rome Statute
    Acts and omissions
    The dolus directus facet of Article 30 RS
    Dolus eventualis as a form of volition?
    Culpa-type liability under the Rome Statute
    Utilising the current Rome Statute provisions
    Indirectly implicating MNCs on the basis of individual convictions
    The notion of complicity as an avenue for corporate liability
    Direct corporate criminal liability sui generis
    The criminal responsibility of corporations 'in the draft'
    Declarations of criminality
    Liability along vicarious lines
    Domestic approaches to corporate criminal liability
    The principle of aggregation
    Proactive and reactive fault
    The corporate ethos approach
    Constructive corporate fault
    The constructive method and international crimes
    Setting the subjective threshold of corporate liability
    The dolus eventualis standard of corporate misconduct
    Culpa as a benchmark for corporate criminal responsibility
    A word on dolus specialis
    The scope of the objective element
    Conclusion
    Culpability beyond the confines of the corporate form
    Introduction
    Direct parent liability
    The intrinsic protections of the corporate form
    Justifying the attribution of criminal responsibility to parent companies
    The criteria for ascribing direct liability to parent corporations
    The duty to intervene
    Authority
    Awareness
    The power to intervene
    Control
    Causality
    Direct criminal responsibility and supply chain dynamics
    The superior responsibility of corporate officials
    Superior - subordinate relationships and the 'effective responsibility and control' test
    The cognitive requirement and the corresponding failure to act
    Conclusion
    Conclusion
    Overview
    Prospects along the regulatory continuum
    The complementarity contention pertaining to 'inaction' and 'inability'
    Alternatives to corporate criminal liability and the implications for the principle of complementarity
    Non-criminal regulation - a viable option for the ICC?
    The pitfalls of collective criminality
    The imperative of aligning accountability with due process
    Collective punishment: effects on the 'innocent' bystander?
    Liability of MNCs in international criminal law: from aspiration to reality
    Corporate accountability and the goals of international criminal justice
    The 'problem' of plea bargaining
    Deterrence, retribution and the expressive function of (international) criminal law
    Summary
    Samenvatting
    Selected legal provisions
    Bibliography
    Table of cases
    Table of UN and other documents
    Index
    Curriculum vitae

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