Rethinking corporate liability: developing a holistic model of corporate liability under international criminal law

Corporate complicity in international crimes is not a new phenomenon, with roots tracing back to the involvement of German industries in Nazi atrocities. Yet, despite the growing evidence of corporate wrongdoing, international criminal law still lacks a mechanism to prosecute corporate entities. This article critiques previous efforts to create a model of international corporate criminal liability for relying on derivative approaches that fail to reflect the reality of modern corporate structures. It proposes instead a dual framework for corporate liability under international criminal law that combines a system intentionality model of organisational fault with a failure to prevent offence. The system intentionality model, inspired by Australia’s corporate culture provisions, reconceptualises corporate intent as emerging from organisational systems, policies, and internal mechanisms, allowing direct attribution of liability to corporations without reliance on individual prosecutions. The complementary failure to prevent offence, modelled on the provision on command responsibility, would hold corporations accountable for inadequate compliance and due diligence measures, aligning international criminal law with domestic and regional trends. This article examines how this dual-track framework could be integrated into the Rome Statute, addressing the challenges related to mens rea standards, procedural safeguards, and fair trial rights. Together, these models provide a coherent approach to prosecuting corporations for international crimes, enhancing corporate accountability under international law.

The final publication is available at: dx.doi.org/[].