Antecedentes Teóricos

4.3.1. Proposals for the prosecution of corporations

Prosecutors from the United States explored the possibility of corporate liability prior to and during the proceedings under Control Council Number 10.63 Specifically, two prosecutors of Chief Prosecutor Telford Taylor’s team in the United States Military Tribunal (USMT) proposed that German businesses should be indicted.64 _{The doctrine of conspiracy was the basis of these proposed} indictments.65

One of the prosecutors, Abraham Pomerantz, suggested that two corporations IG Farbenindustrie AG (IG Farben) and Friedrich Krupp AG (Krupp) could be charged as corporate entities.66 _{He argued that although the Nuremberg Charter did not} permit cases against corporations, Control Council Number 10 did.67 _{According to} Pomerantz, the advantages of charging corporations were ample; it would spare prosecutors the effort of having to gather sufficient evidence to prove the personal involvement of individual directors.68 _{By charging the corporate entity,} Pomerantz’s proposed aim was to charge directors as conspirators alongside their corporations as entities.69 _{There is no record of whether Pomerantz’s proposal was}

62 _{Robert H Jackson Report of United States Representative to the International Conference}

on Military Trials (1945) at v (Preface).

63 _{See Jonathan A Bush ‘The Prehistory of Corporations and Conspiracy in International}

Criminal Law: What Nuremberg Really Said’ (2009) 109 Columbia Law Review 1094 at 1149-1160 (‘Bush’).

64 _{See Bush at 1149-1160.}

65 _{See Article 6 Charter of Nuremberg. Conspiracy, however, was not defined in the}

Charter. Its meaning and application had to be clarified in the IMT trial.

66 _{Bush at 1150; see also Doreen Lustig ‘The Nature of the Nazi State and the Question of}

International Criminal Responsibility of Corporate Officials at Nuremberg: Revisiting Franz Neumann's Concept of Behemoth at the Industrialist Trials’ (2010) 43 New York University Journal of International law and Politics 965 at 989.

67 _{Bush at 1152.} 68 _{Ibid 1150.} 69 _{Ibid 1152.}

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rejected or not. Nevertheless, his proposal indicated that prosecutors did consider charging and prosecuting corporations.70

Another prosecutor in Telford Taylor’s team, Leo Drachsler, proposed an institutional approach to corporate liability.71 _{Through this approach Drachsler} sought to show that German industry constituted a ‘third pillar’ of the German regime in addition to the Nazi government and military.72 _{According to Drachsler,} German businesses, in important ways, formed a ‘single entity’ or ‘single organisation’.73 _{He proposed that they could be charged as contributing to the} criminal conspiracy propagated by Hitler.74 _{However, Telford Taylor rejected} Drachsler’s proposal due to the fact that reliance on declarations of criminality as a technique for corporate criminal liability was of limited utility as the IMT had not declared any corporations as criminal organisations.75

4.3.2. Why these proposals were not applied

Two elements of the decision of the IMT made the adoption of proposals to charge corporations difficult in subsequent proceedings under Control Council Number 10. The first was a statement by the IMT that implied that international law could be effective only if natural persons were convicted. The second element was that the IMT considered conspiracy not as a standalone crime but as a constituent part of crimes against the peace.

The IMT categorically stated that ‘[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.76 _{The IMT made} this statement in obiter within the context of a finding that the law of war applied to individuals. Specifically, the IMT stated that individuals, acting as official

70 _Ibid.

71 _{Ibid 1158; Doreen Lustig ‘The Nature of the Nazi State and the Question of International}

Criminal Responsibility of Corporate Officials at Nuremberg: Revisiting Franz Neumann's Concept of Behemoth at the Industrialist Trials’ at 991.

72 _{Bush at 1158.} 73 _Ibid.

74 _{Ibid 1159.} 75 _{Ibid 1161 fn 228.}

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representatives of the state, were liable to punishment for violations of the law of the war.77 _{The IMT emphasised that individuals, as state officials, could not hide} behind the veil of the state for the purposes of criminal liability.78 _{The emphasis,} therefore, was on introducing the notion of individual criminal liability into international law, as opposed to the historic emphasis on the liability of the state. The notion that the IMT ought to try ‘men’ and not ‘abstract entities’ in order to guarantee the effectiveness of international criminal law could mean that the IMT interpreted the Nuremberg Charter as not applicable to corporations.79 _However, the IMT did not use the word ‘corporations’.80 _{The intention of the IMT was to} show that individuals could not use the state – and by extension, corporations – as a shield against criminal liability. Though not subject to the provisions of the Nuremberg Charter, both states and corporations, were subject to injunctions not to violate international law. Allied Control Council laws dealt with failures to adhere to these injunctions.

A second aspect of the IMT decision that blocked charges against corporations was the clarification of the meaning and scope of the doctrine of conspiracy. The proposals incorporated the common law crime of conspiracy as the basis of indictments against corporations. The IMT had concluded that since ‘the Charter does not define as a separate crime any conspiracy except the one to commit acts of aggressive war’, it would only consider conspiracy to commit the crime of aggression but not war crimes and crimes against humanity.81 _{Therefore, for} reasons that follow, corporations could not be prosecuted for conspiracy.

77 _{I Trial of The Major War Criminals Before The International Military Tribunal at 221-3.} 78 _{I Trial of The Major War Criminals Before The International Military Tribunal at 221-3.} 79 _{This phrase is often used to underline that international criminal law is concerned with}

individual criminal responsibility. See Kai Ambos ‘Article 25: Individual Criminal Responsibility’ in Otto Triffterer (ed) Commentary on The Rome Statute of The International Criminal Court – Observers’ Notes, Article by Article (2008) 743 para 1; William Schabas ‘General Principles of Criminal Law in the International Criminal Court Statute (Part III)’ (1998) 6 European Journal of Criminal Law and Criminal Justice 400 at 409.

80 _{Bush at 1162.}

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The IMT stated that a charge of conspiracy to commit the crime of aggression required that the ‘preparation and planning’ ought not to have been too remote from the crime of aggression; there had to be participation in a concrete plan to wage a war of aggression.82 _{It would be particularly difficult for prosecutors to} prove that corporations participated in a conspiracy to wage aggressive war since they would have to show that the corporation had knowledge of Hitler’s aims to wage aggressive warfare, knowledge that was privy to those within his immediate circle.83 _{This would be difficult to prove in respect of individual corporate} defendants and far more difficult in respect of corporations. Nonetheless, the above proposals evidence that prosecutions of corporations were contemplated and had the IMT not limited conspiracy to the crime of aggression, there are grounds to suggest that corporations could have been charged under Control Council Number 10.