Written by Carter Schwalls

Introduction

Multinational Corporations (“MNCs”) operating in conflict zones often act with impunity, leveraging opaque supply chains and weak enforcement mechanisms to insulate themselves from liability.¹See generally Rep. of the Hum. Rts. Council, U.N. Doc. A/HRC/44/43 (2020). Whether it is a cement company allegedly financing ISIS to protect its infrastructure, or a tech firm enabling surveillance by authoritarian regimes, corporate conduct has increasingly collided with the norms of international criminal law.²Lafarge in Syria: Accusations of Complicity in Grave Human Rights Violations, Eur. Ctr. for Const. & Hum. Rts., https://www.ecchr.eu/fileadmin/Fallbeschreibungen/Case_Report_Lafarge_Syria_ECCHR.pdf (last visited June 1, 2025) [hereinafter ECCHR] (discussing the ongoing criminal prosecution in France of a French cement company and four executives for aiding and abetting crimes against humanity in Syria). See generally Surveillance Giants: How the Business Model of Google and Facebook Threatens Human Rights, Amnesty Int’l (2019), https://www.amnesty.org/en/documents/pol30/1404/2019/en/  (showing various examples of Google and Facebook allowing and enabling invasions of personal privacy and targeted political messaging by government entities and political figures). Article 25 of the Rome Statute of the International Criminal Court (“ICC”) permits the prosecution of natural persons, but despite growing scrutiny, it does not extend the same penalties to corporations, allowing them to benefit from a higher level of immunity not afforded to individuals.³See Rome Statute of the International Criminal Court art. 25, July 17, 1998, 2187 U.N.T.S. 3. This piece argues that international criminal law must evolve to recognize the growing geopolitical influence of corporations by increasing their liability, particularly under the Rome Statute, to reflect the modern role of MNCs in global conflict and atrocity.

The ICC & Its Limitations  

The ICC was established in 2002 with the aim of prosecuting individuals for the most serious crimes of international concern.⁴See id. art. 3. The exclusion of corporate criminal liability from the Rome Statute, the treaty that established the ICC, was a deliberate choice rooted in concerns of legal complexity and enforcement.⁵See Andrew Clapham, The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court, in 7 Liab. Multinational Corps. Under Int’l L., 147–48 (Menno T. Kamminga & Saman Zia-Zarifi eds., 2000), (explanation from the legal advisor to the Government of Solomon Islands during the establishment of the ICC). However, as corporations increasingly act with sovereign-like power—and, at times, contribute to atrocity crimes⁶See ECCHR, supra note 2.—the omission reflects a fundamental misalignment between the goals of international criminal law and the realities of modern conflict-driven economic systems. Beyond formal judicial mechanisms, “soft law” instruments like the U.N. Guiding Principles on Business and Human Rights (“UNGPs”) and the Organization for Economic Co-Operation and Development (“OECD”) Guidelines for Multinational Enterprises provide non-binding frameworks for corporate responsibility.⁷U.N. Human Rights Council, Guiding Principles on Business and Human Rights, U.N. Doc. A/HRC/17/31 (2011), https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf; OECD, Guidelines for Multinational Enterprises, chs. II, IV (2023), https://www.oecd.org/en/topics/policy-issues/responsible-business-conduct.html. These instruments encourage due diligence and responsible business conduct, particularly in high-risk regions; however, their lack of enforcement power limits their deterrent effect.⁸State of Remedy 2024, OECD Watch 3, 13, 21 (2024). Without the threat of meaningful consequences, voluntary compliance remains the exception rather than the rule.

Limitations on corporate liability have not gone unchallenged. Domestic legal systems and hybrid judicial models have begun to act, offering partial remedies. France’s ongoing prosecution of Lafarge, a cement company, for complicity in crimes against humanity exemplifies this shift.⁹See ECCHR, supra note 2. The case centers on the company’s alleged financial support of ISIS in Syria—a strategic decision aimed at protecting corporate infrastructure.¹⁰See id. (providing a general overview of the case and its global significance). Similarly, the U.S. Alien Tort Statute (“ATS”) has been used, albeit with diminishing success, to bring civil suits against U.S.-based companies for human rights violations abroad.¹¹See Nestlé USA, Inc. v. Doe I, 593 U.S. 628, 634 (2021) (holding that U.S. corporations could not be held liable under the ATS for aiding and abetting child slavery on foreign soil where the alleged conduct occurred entirely abroad because of insufficient domestic conduct). While these domestic mechanisms lack the international jurisdiction and symbolic power held by the ICC, they illustrate a growing willingness to treat corporations as potentially culpable actors under international norms.

Doctrinal Shift Propositions & Opponent Concerns

Some scholars and practitioners advocate for a doctrinal shift that leverages existing legal concepts to reach corporate conduct.¹²See Joanna Kyriakakis, Developments in International Criminal Law and the Case of Business Involvement in International Crimes, 94 Int’l Rev. Red Cross, Autumn 2012, at 981, 990, 991–93; Jennifer Zerk, Corporate Liability for Gross Human Rights Abuses, at 105–13 (2014), https://www.ohchr.org/sites/default/files/Documents/Issues/Business/DomesticLawRemedies/StudyDomesticeLawRemedies.pdf (offering a detailed outlook on desirable changes States can realistically implement to prevent and punish human rights violations by corporations); V.S. Khanna, Article, Corporate Criminal Liability: What Purpose Does it Serve? 109 Harv. L. Rev., 1477, 1489–90 (1996). One promising approach is aiding and abetting liability, where a corporation knowingly provides substantial assistance to the commission of international crimes.¹³See Zerk, supra note 12. A second approach is omission-based liability, which arises when a company fails to exercise due diligence, thereby facilitating human rights abuses.¹⁴See U.N. Human Rights Council, supra note 7. However, these approaches often rely on prosecuting individual executives as proxies for corporate responsibility, which remains rare, politically sensitive, and do not address the structural incentives that allow corporate bodies to profit from crimes of atrocity.¹⁵Larissa van den Herik & Jernej Letnar Černič, Regulating Corporations Under International Law: From Human Rights to International Criminal Law and Back Again, 8 J. Int’l Crim. Just. 725, 740 (2010).

Opponents of corporate criminal liability raise legitimate concerns. Critics argue that extending such liability risks diluting the principle of individual culpability and may impose burdens that undermine legitimate business operations.¹⁶See Zerk, supra note 12. Moreover, assigning mens rea to a corporate entity remains a conceptual and evidentiary hurdle.¹⁷See Khanna, supra note 12. (addressing the complexities of ascribing mens rea to corporate entities and providing solutions to the different issues surrounding it). Enforcement also poses challenges, particularly when corporations exploit complex ownership structures, jurisdictional arbitrage, or dissolution to evade responsibility.¹⁸See Zerk, supra note 12, at 65–66. Yet, none of these concerns are insurmountable. Domestic legal systems in jurisdictions like France and the Netherlands already impose corporate criminal liability, offering models for how such a regime could function at the international level.¹⁹Magda Karagiannakis & Andrea Shemberg, Criminal Law and International Crimes: Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity in International Crimes, 2 Crim. L. & Int’l Crimes 1, 46–59 (2008).

As global commerce increasingly intersects with armed conflict and authoritarianism, the current legal framework is increasingly outdated.²⁰See generally Ling S. Chen & Miles M. Evers, “Wars without Gun Smoke:” Global Supply Chains, Power Transitions, and Economic Statecraft, 48 Int’l Sec. 164, 164 (2023) (arguing that global economic networks are increasingly exploited by states as tools of coercion and control, enabling authoritarian regimes and conflict actors to leverage interdependence for strategic advantage). The Rome Statute’s exclusion of corporate liability reflects a time when the State was the primary unit of power and influence. Today, MNCs wield considerable authority over supply chains, labor markets, and even surveillance infrastructures.²¹See Kyriakakis, supra note 12, at 983–84. The absence of corporate criminal liability in international law reflects a dangerous asymmetry: corporations benefit from globalization, profit from conflict zones, and shape the conditions under which human rights violations occur, all while remaining shielded from meaningful accountability.²²See ECCHR, supra note 2. The actions of MNCs can facilitate or directly contribute to the very crimes the ICC was established to prosecute. Allowing them to operate with impunity undermines the credibility and reach of international criminal law.

Recommendations & Conclusion

To address this gap, three reforms are suggested. First, the Rome Statute should be amended to allow for the prosecution of MNCs and authority figures in clearly defined circumstances.²³See Khanna, supra note 12 (providing specific requirements to impose criminal liability on a corporation). See generally Rome Statue, supra note 3. Second, States should adopt and bolster domestic corporate liability statutes that reflect international norms, such as those that have been implemented in France and the Netherlands.²⁴See ECCHR, supra note 2. Third, given the power MNCs have accumulated in recent decades, hybrid accountability models—such as regional tribunals with international backing—should be developed to fill enforcement gaps.²⁵See Zerk, supra note 12. These mechanisms can help address cases that may be overlooked by the overburdened ICC while broader treaty reform is still in progress.

As corporations continue to shape the political and economic conditions in conflict zones, the law must evolve to ensure that those who profit from atrocity are not shielded by judicial complacency. Expanding international criminal law to include corporate accountability is imperative, as the legitimacy of international criminal liability depends on ensuring that MNCs’ legal responsibilities grow with their global role and influence.