Holding TCOs Accountable: International State Responsibility vs International Criminal Law
The concept of state responsibility
The concepts of state responsibility and criminal responsibility are conceived fundamentally differently by the International Law Commission (ILC), as Math Noortmann argues in Enforcing International Law.52 According to Noortmann, ‘State crimes constitute a specific form of organised crime’ and should be treated accordingly/3 Special Rapporteur James Crawford, however, advised the ILC to reject the concept of ‘international crimes’ as adopted on First Reading and instead to adopt the notion of ‘a serious breach’ of an obligation held by states/4 Underlying that terminological change, according to Crawford, ‘was the fundamental doubt over what it means to say a State has committed a “crime”, especially now that international law has developed that notion of criminal responsibility of individuals to such an extentTh
If we do not know ‘what it means to say a state has committed a crime’, we must admit that we do not know ‘what it means to say an organisation has committed a crime’. And that is precisely where the political problem merges; organisations, to the extent that they are constituted as legal persons according to either national or international law seek to avoid criminal accountability and divert the prosecuting attention to natural persons that represent the organisation. And international tribunals concur as seen from the following:
Crimes against International Law are committed by men not by abstract entities and only by punishing individuals who commit such crimes can the provision of International law be enforced/6       
The trend to prosecute individuals rather than organisations has become the default line in international (criminal) law ever since the post-Second World War military tribunals, up and until the constitution of the ICC.57 It must therefore be seriously questioned whether international law does not inherently ‘draw any categorical distinction between responsibility ex delicto and ex contractu as Crawford claims.58 The categorical distinction between civil and criminal responsibility has traditionally been applied, in such historical cases, against Karl Krauch, Alfred Krupp, and Friedrich Flick who were criminally indicted as CEOs and/or owners of their respective companies: IG Farben, Krupp, and Flick. The corporations, however, were at the most subjected to reparation payments but not legally dissolved as the result of a criminal investigation. A clear distinction is apparently made between organisations involved in activities that have subsequently been labelled as criminal, and organisations that are intentionally criminal. That distinction is of importance for the question whether a state can be held responsible for the actions of TCOs, which must be answered on the basis of the rules of attribution and due diligence.59
-  Filartaga and Filartaga v Pena Irala, US Court of Appeals, Second Cir. (No. 191, Docket 79-6090),Decision 30 June 1980.
-  The recent case under the Alien Tort Statute—Kiobel—suggests a more limited use of this piece oflegislation in the future, after the court interpreted its jurisdiction towards a ‘presumption against extraterritoriality’. See Ingrid Wuerth, ‘Kiobel v Royal Dutch Petroleum Co.: the Supreme Court and the AlienTort Statute’, (2013) 107 AJIL 601; Sarah Cleveland, ‘After Kiobel’, (2014) 12 JICJ, 551.
-  Math Noortmann, Enforcing International Law: From Self-Help to Self-Contained Regimes,Aldershot, Ashgate, 2005.
-  Ibid.
-  Compare Art. 19 of the 1996 draft and Art. 40 of the 2001 draft. ILC Yearbook (1976), Vol. II,pp. 95-122 and Crawford Third Report, A/CN.4/507/Add. 4, para. 412. See also James Crawford, TheInternational Law Commission’s Articles on State Responsibility: Introduction, Text, and Commentaries,Cambridge, CUP, 2005.
-  ILC Yearbook 1976, cited in note 54 above, p. 17 (emphasis added).
-  Quoted from Joanna Kyriakakis, ‘International legal personality, collective entities and internationalcrimes’, in Noemi Gal-Or, Cedric Ryngaert, and Math Noortmann (eds), Responsibilities of the Non-State