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Introduction1

1. Historical Background4

2. Notions:Group Entities,Corporations and Universal Jurisdiction7

PART Ⅰ THE ABSENCE OF JURISDICTION OF EXISTING INTERNATIONAL TRIBUNALS FOR THE PROSECUTION OF ACCUSED CORPORATIONS21

Chapter 1:Initial Developments of Collective Criminal Liability and the Origins of International Criminal Law and Jurisprudence23

1. The Military War Crimes Tribunals and Trials Involving Collective Entities after the Second World War23

(a) The Signing of the London Charter by the Allied Countries24

(ⅰ) The Criminal Organizations24

(ⅱ) The Conspiracy Issue29

(b) The Tokyo Tribunal,Groups and Conspiracy Charges30

(c) Trials of the Major Industrialists of the Second World War35

(ⅰ) Discussions of the Allied Countries on Corporate Criminal Liability35

(A) Collective Modes of Liability under the Allied Control Council Law No.1036

(B) Theories of the Prosecution36

(C) The Caseload39

(Ⅰ) The Cases of Bruno Tesch (Zyklon B) and the Roechling Company39

(Ⅱ) The First United States' Military Court Collective Liability Proceedings:The Justice,Medical and Pohl Cases40

(Ⅲ) The First United States' Military Courts' Industrialist Trial:The Flick Case41

(Ⅳ) The United States' Military Court's Prosecution of I.G.Farben Representatives and Corporate Liability43

(Ⅴ) The Anticipated Trial of the Krupp Concern46

(Ⅵ) The Trial of Japanese Industrialist Washio Awochi49

(Ⅶ) New Doctrines of Collective Liability:Common Design and Common Enterprise49

Chapter 2: The Ad Hoc Tribunals Created by the Security Council of the United Nations in Response to the Conflicts of Rwanda and the Former Yugoslavia51

1. State Liability Engaged through Actions of Collective Entities51

(a) The Attribution of State Responsibility for the Acts of its Organs52

(b) Corporations Engaging States' Liability54

2. Individuals as Principals of Collective Crime:Creation of New Doctrines to Attribute Individual Responsibility under the United Nations Ad Hoc Tribunals56

(a) The Imprecise Notion of Complicity and Joint Criminal Enterprise Included in the Ad Hoc Tribunals' Statutes57

(b) Common Purpose Liability63

(c) Criminal Responsibility of Military Commanders and Other Superiors69

3. Foreign Participation in Collective Crimes in Rwanda or in the Former Yugoslavia73

(a) Involvement of Foreign Private Contractors74

(b) The Target:High-Ranking Corporate Officers75

Chapter 3: The International Criminal Court79

1. The Political Debate over the Jurisdiction Ratione Personae of the International Criminal Court79

2. Modes of Attribution of Criminal Liability on Corporations for International Crimes under the Rome Statute83

(a) A New Doctrine of Co-perpetration for Individual Responsibility under Article 25(3)(a) of the Rome Statute83

(ⅰ) Direct Perpetration84

(ⅱ) Perpetration by Means84

(ⅲ) Co-perpetration87

(b) Common Purpose Liability under Article 25(3)(d) of the Rome Statute91

(c) Other Modes of Participation under the Rome Statute91

(ⅰ) Orders,Solicits or Induces under Article 25(3)(b) of the Rome Statute91

(ⅱ) Aiding and Abetting under Article 25(3)(c) of the Rome Statute92

(ⅲ) Direct and Public Incitement to Genocide under Article 25(3)(e) of the Rome Statute92

(ⅳ) Attempt under Article 25(3)(f) of the Rome93

(d) Criminal Responsibility of Military Commanders and Other Superiors under Article 28 of the Rome Statute94

3. Personal Liability of the Alter Ego of a Corporation:Issues of Jurisdiction and the Complementarity Principle96

PART Ⅱ CANADIAN CORPORATIONS AS SUBJECTS OF LIABILITY FOR INTERNATIONAL CRIMES UNDER CANADIAN CRIMINAL LAW99

Chapter 4: Notorious Examples of Alleged Criminal Activities and Potential Violations of International Criminal Law by Canadian Corporations101

1. Illustrative Case Studies of Impunity of Corporations despite Publicized Allegations of Violations of International Criminal Law101

(a) The Democratic Republic of the Congo103

(b) Sierra Leone111

(c) Colombia113

(d) Sudan117

Chapter 5: International Crimes in Canadian Criminal Law123

1. The Core Crimes of the Crimes Against Humanity and War Crimes Act123

2. Inchoate Crimes of the Criminal Code and the Crimes Against Humanity and War Crimes Act124

(a) Conspiracy125

(b) Counselling126

(c) Advocating or Promoting Genocide127

(d) Inciting or Promoting Hatred128

(e) Complicity after the Fact129

(f)Attempt130

3. Torture131

4. International Crimes are Mens Rea Crimes under Canadian Law133

Chapter 6: Canadian Corporations as Subjects of Criminal Liability in Canada135

1. Canadian Corporations as Perpetrators of International Crimes136

(a) A Canadian Organization136

(b) A Canadian Multinational Corporation137

(c) Perpetrators under Paragraph 21(1)(a) of the Criminal Code138

(ⅰ) The Direct Author138

(ⅱ) Co-perpetrators139

(ⅲ) The Innocent Agent139

(d) Canadian Corporations as Accomplices in the Commission of International Crimes140

(ⅰ) Complicity by Aiding and Abetting under Paragraphs 21(1)(b) and (c) of the Criminal Code141

(A) The Meaning141

(B) Examples141

(ⅱ) Complicity by Conspiring under Subsection 21(2) of the Criminal Code142

(ⅲ) Complicity by Counselling under Subsection 22(3) of the Criminal Code143

(e) Canadian Corporations as Superiors Accountable for International Crimes144

Chapter 7:The Doctrine of Corporate Criminal Liability in Canada147

1. Historical Evolution of Corporate Criminal Liability in Canada147

(a) Importation of the Identification Theory for Liability of Corporations for Mens Rea Crimes149

(b) The Westray Mining Disaster of 1992150

(c) Legislative Discussions on Corporate Criminal Liability in Canada152

(ⅰ) Criticism of the Identification Doctrine152

(ⅱ) Consideration of the Corporate Culture Approach153

(ⅲ) The Rejection of the Vicarious Liability Doctrine155

2. Adoption and Implementation of Bill C-45 (the Westray Bill)157

Chapter 8: Sentencing a Canadian Corporation and an Alter Ego under Canadian Criminal Law161

1. Fundamental Purposes and Principal Guidelines for Sentencing a Criminal Organization161

2. A First Option:Fines163

3. An Alternative Sentence:The Corporate Probation164

(a) The Doctrinal Point of View165

(b) The Effect of Adverse Publicity as a Probationary Order165

4. Sanctioning the Alter Ego167

Chapter 9: Jurisdiction of Canadian Criminal Courts for the Prosecution of Canadian Corporations' Alleged Overseas Commissions of International Crimes169

1. Crimes with an Extraterritorial Dimension170

(a) Crimes Committed in Canada and Overseas by a Corporation (the Nexus Theory)170

(b) The Issue of Conspiracy:Subsections 465(3) and (4) of the Criminal Code170

2. The Personality Principle under Section 8 of the Crimes Against Humanity and War Crimes Act171

(a) Active Personality Jurisdiction171

(b) Passive Personal Jurisdiction173

3. The Principle of Universality under Section 8 of the Crimes Against Humanity and War Crimes Act173

(a) The Presence of the Corporation in Canada174

(b) The Jurisprudential Recognition of the Principle of Universality before the Enactment of Section 8 of the Crimes Against Humanity and War Crimes Act in the Finta and Mugesera Cases179

4. Torture181

Conclusion183

Bibliography191

Index205