Indiana Int’l & Comp. Law Review
Volume 29 Number 2 2019

SYMPOSIUM

IT’S COMPLICATED:  THE CHALLENGE OF PROSECUTING

TNCS FOR CRIMINAL ACTIVITY UNDER

INTERNATIONAL LAW

JENA MARTIN*

“Holding multinational corporations accountable for their adverse impact
on the full range of human rights directly under international law seems . . .
intuitive. But it raises practical challenges of its own, quite apart from the
doctrinal debate about corporations as “subjects” of international law.”1

INTRODUCTION

Like it or not, Transnational Corporations (TNCs) are taking an increasingly
active role in larger societal issues and debates.

Whether it’s a social advocacy campaign that seeks to reduce violence and
bullying,2 a decision by a pharmacy company to stop selling tobacco products,3

or a sportswear company’s decisions to take a stand in solidarity with an
advocate’s resistance to police brutality,4 TNCs are becoming increasingly vocal

* Professor of Law, West Virginia University. This article was supported, in part, by a

Hodges’ Fund Faculty Research Grant. Many thanks to Wade Sockman and Emily Cramer for some

much-needed assistance with research. Also, I am grateful for the support and insight of the

following people: Valarie Blake, Amber Brugnoli, Rachel Chambers, Amy Cyphert, Kirsha

Trychta, Elaine Wilson, and Tara Van Ho.  

1. John Ruggie, A UN Business and Human Rights Treaty?, HARVARD KENNEDY SCHOOL

(2014), https://www.business-humanrights.org/sites/default/files/media/documents/ruggie-on-un-

business-human-rights-treaty-jan-2014.pdf [https://perma.cc/X5QG-HU63].

2. Tovia Smith, Backlash Erupts After Gillette Launches a New #MeToo-Inspired Ad

Campaign, NPR (Jan. 17, 2019, 5:00 AM), https://www.npr.org/2019/01/17/685976624/backlash-

erupts-after-gillette-launches-a-new-metoo-inspired-ad-campaign [https://perma.cc/BJF2-ZS2Z].

3. We Quit Tobacco, Here’s What Happened Next, CVS HEALTH, https://cvshealth.com/

thought-leadership/cvs-health-research-institute/we-quit-tobacco-heres-what-happened-next

[https://perma.cc/Q8CG-7QS9]. 

4. Manish Dudharejia, 4 Branding Lessons From Nike’s Colin Kaepernick Ad,

ENTREPRENEUR (Oct. 22, 2018) https://www.entrepreneur.com/article/321130 [

https://perma.cc/SVS6-A8V2]. Since the ad campaign, Nike has furthered their support of

Kaepernick in their new endorsement contract, which features a contribution to his charity ‘Know

Your Rights.’ Hallie Detrick, The Little-Known Charity That Will Benefit From Nike’s New

Contract With Colin Kaepernick, FORTUNE (Sept. 4, 2018), http://fortune.com/2018/09/04/colin-



220 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

regarding their role in larger societal issues.5 But there is a darker side to the
increased intermingling between corporations and the larger societal impact;
namely the potential for a corporation to be involved, or sometimes, at the heart
of, crimes against humanity.6  

As a result of the increased allegations levied against corporations for these
types of violations,7 having corporations criminally prosecuted is a top priority
for many business and human rights’ (BHR) advocates who wish to hold TNCs
accountable.8 The argument certainly engenders sympathy: in order for TNCs to
reach the level of culpability to justify accountability under international criminal

kaepernick-nike-contract-donation-know-your-rights/ [https://perma.cc/T8MK-PJP3].

5. To be clear, the discussion regarding what role corporations can and should have in

society has been discussed and debated for quite some time. Indeed, at least as far back as the early

1970s with Milton Freidman’s now famous article in the New York Times, the debate both for and

(as Friedman’s article suggests) against corporate social responsibility and its closely related

cousin, business and human rights, has occurred in the popular discourse.  However, it is only

within the last decade or so that these issues have taken on such an explicit framework. See Jena

Martin Amerson, The End of the Beginning? 17 FORDHAM J. CORP. & FIN. LAW 871 (2012); Milton

Friedman, The Social Responsibility of Business is to Increase Profits, N.Y. TIMES MAGAZINE 

(Sept. 13, 1970), http://umich.edu/~thecore/doc/Friedman.pdf [https://perma.cc/36FG-2HJQ].

6. Crimes against humanity is defined by the UN as a deliberate act, typically as part of a

systematic campaign, that causes human suffering or death on a large scale. Crimes Against

Humanity, UNITED NATIONS OFFICE ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO

PROTECT , http://www.un.org/en/genocideprevention/crimes-against-humanity.shtml

[https://perma.cc/L6D3-QHKR].  The types of crimes that can fall into this category include:

genocide, systemic rape, deportation of a population by force and; enslavement. Rome Statute of

the International Criminal Court art. 7, July 17, 1998, 2187 U.N.T.S. 90 [Hereinafter Rome

Statute].

7. See generally Emma Broches, Accountability for the Syrian Regime: An Overview,

LAWFARE BLOG, (Mar. 5, 2019, 8:00 AM), https://www.lawfareblog.com/accountability-syrian-

regime-overview [https://perma.cc/9BPV-D34V]; Nick Cumming-Bruce, Oil Companies May Be

Complicit in Atrocities in South Sudan, U.N. Panel Says, N.Y. TIMES, (Feb. 20, 2019),

https://www.nytimes.com/2019/02/20/world/africa/south-sudan-oil-war-crimes.html

[https://perma.cc/L3BG-RBXS]; Caitlin Schroering, Brazil Dam Collapse Is a Human Rights

Disaster and Crime, TRUTHOUT, (Mar. 3, 2019), https://truthout.org/articles/brazil-dam-collapse-is-

a-human-rights-disaster-and-crime/ [https://perma.cc/CPF7-35NZ].

8. For instance, Amnesty International and the International Corporate Accountability

Roundtable developed an extensive report, entitled the Corporate Crimes Principles which aims to

address what they entitle the “impunity gap” for corporations and their executives who commit

crimes in furtherance of their job. THE INDEPENDENT COMMISSION OF EXPERTS, THE CORPORATE

CRIMES PRINCIPLES: ADVANCING INVESTIGATIONS AND PROSECUTIONS IN HUMAN RIGHTS CASES

(Oct. 2016), https://www.commercecrimehumanrights.org/wp-content/uploads/2016/10/CCHR-

0929-Final.pdf [https://perma.cc/NWZ7-H9ZV] [hereinafter THE PRINCIPLES]. Specifically, the

Introduction notes that “when corporate actors, including corporate entities or individuals acting

on behalf of a corporate entity, commit or are complicit in the commission of crimes linked to

human rights abuses, accountability all too rarely follows. Id. at i.



2019] IT’S COMPLICATED 221

law, some horrendous acts must have occurred. Whether in the area of
exploitative labor practices, gross environmental impacts, or even complicity with
genocide, victims of these crimes at the hands of TNCs have an understandable
desire to want to see justice served. 

But is using international criminal law to prosecute the TNC itself really the
best course of action?

On the one hand, holding a corporation liable would align with the conceptual
notion of the corporation as person - a concept that has been adopted in most
contexts9 and, as such, would satisfy those who wish to hold the TNC
accountable. On the other hand, holding a TNC criminally liable under
international law cannot be done without unpacking several layers at the
intersection of corporate law, international human rights law, and criminal
jurisprudence.10  As such, the aim of this essay is not to solve all the issues that
are implicated by TNCs being prosecuted criminally under international law. 
Rather, my objective is to highlight some of the more pernicious issues offered
by the current state of affairs and offer my initial thoughts regarding whether we
should proceed and, if so, what should be considered. Specifically, part one of
this essay will discuss the challenges inherent in the dualistic nature of the TNC -
frequently presenting itself as a unified organization, while at the same time
strategically using its separate legal entities - and the enforcement implications
that arise from that challenge. Part two will move on to the procedural challenges
that arise from prosecuting a TNC (both domestically and internationally) before
turning to part three, which will discuss the challenges under two areas of
substantive law - namely corporate and criminal law. Taking all of the above into
account, part four will then address whether, given all of these challenges, using
international mechanisms to prosecute TNCs is, in fact, wise.  To that end, part
four will discuss some potential costs that could arise from a successful
prosecution before examining some already established principles to see if they

9. One notable exception is found in the U.S. Supreme Court’s decision in Jesner v. Arab

Bank, PLC.  According to the Supreme Court, corporations, at least foreign corporations, are not

considered persons within the ambit of the Alien Tort Statute. Jesner v. Arab Bank, PLC, 138 S.Ct.

1386 (2018); See also Jeffrey Van Detta, Rubin v. Islamic Republic of Iran and Jesner v. Arab

Bank, PLC: SCOTUS Trims to Statutory Boundaries The Recovery in U.S. Courts Against Sponsors

of Terrorism and Human-Rights Violations Under FSIA and ATS, 29 IND. INT’L & COMP. L. REV.

(forthcoming 2019). 

10. I should also note that my primary method of engaging with this topic at this stage is a

theoretical one.  While there are others who have discussed specific cases where business and

human rights intersect (and indeed, in other jurisdictions there are specific business and human

rights related cases where criminal charges have been brought) my aim at this stage is to unpack

the jurisprudence to its bare elements in the hopes of discovering some new, perhaps, previously

overlooked issue or policy concerns.  For more practical discussion of specific cases in other

jurisdictions see See ACCESS TO LEGAL REMEDIES FOR VICTIMS OF CORPORATE HUMAN RIGHTS

ABUSES IN THIRD COUNTRIES, DIRECTORATE-GENERAL FOR EXTERNAL POLICIES 18 (2019),

http://www.europarl.europa.eu/RegData/etudes/STUD/2019/603475/EXPO_STU(2019)603475

_EN.pdf [https://perma.cc/5ABK-3M7D] [hereinafter DROI Report].



222 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

may provide a way forward.11 
As recent trends in international law would suggest,12 the cries of support for

holding TNCs accountable for their role in human rights violations seems to be
gaining traction. As such, it seems particularly timely – when the debate for the
appropriate mechanism is still in its nascent stage13  – to have a frank
conversation regarding the challenges and underlying rationale for holding TNCs

11. One major caveat: because there is currently no mechanism to prosecute a corporate

entity under international criminal law, this essay must by definition, be a thought exercise.  The

International Criminal Court (ICC) - the chief body for prosecuting criminal activity under an

international framework – has no mechanism for attaching liability to a corporation and can,

instead, only prosecute corporate executives for their role in criminal activity that falls within the

ICC’s jurisdiction. Rome Statute, supra note 5. Courts such as the International Criminal Tribunal

for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR),

implemented by statute in the wake of massive human rights abuses, are given the ability to focus

legal punishment on perpetrators. See United Nations International Residual Mechanism for

Criminal Tribunals, Mandates and Crimes under ICTY Jurisdiction, UNITED NATIONS

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, http://www.icty.org/

en/about/tribunal/mandate-and-crimes-under-icty-jurisdiction [https://perma.cc/L7AZ-7CB5]; The

ICTR in Brief, UNITED NATIONS INTERNATIONAL RESIDUAL MECHANISM FOR CRIMINAL

TRIBUNALS, http://unictr.irmct.org/en/tribunal [https://perma.cc/4Y9V-7L4A]; Zoe B. Whaley,

Timing Justice, Lessons from the Tribunals in Yugoslavia, Rwanda, Sierra Leone, and Cambodia,

POLITICAL SCIENCE HONORS PROJECT MACALASTER COLLEGE (2009) https://digitalcommons.

macalester.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=10

22&context=poli_honors [https://perma.cc/XC4E-UEQV]. There are but a few specialized courts

that have that power, and hear even fewer cases.. Nonetheless, there is merit to engaging in the

thought exercise of prosecuting a corporate entity. To that end, drawing heavily on U.S.

jurisprudence regarding corporate culpability, I will show that there are significant issues that can

arise with prosecuting a TNC that should be considered within the international criminal law

context. 

12. Legally Binding Instrument to Regulate, in International Human Rights Law, the

Activities of Transnational Corporations and Other Business Entities, U.N. HUMANS RIGHTS

OFFICE OF THE HIGH COMMISSIONER (July 16, 2018), https://www.ohchr.org/documents/

hrbodies/hrcouncil/wgtranscorp/session3/draftlbi.pdf [https://perma.cc/W84H-Y4BU].

13. To be clear, I am not the first scholar to engage in any one of these issues. Infra articles

in part four. Given the development of a business and human rights treaty (see infra note 49) many

scholars, in fact, have specifically stated that issue of corporate criminal liability should be handled

within such a treaty. See Nadia Bernaz, An Analysis of the ICC Office of the Prosecutor’s Policy

Paper on Case Selection and Prioritization of Business and Human Rights, JOURNAL OF

INTERNATIONAL CRIMINAL JUSTICE at 6 (2017). For another comprehensive treatment of legal

remedies for corporate human rights abuses see JENNIFER ZWERK, CORPORATE LIABILITY FOR

GROSS HUMAN RIGHTS ABUSES: TOWARDS A FAIRER AND MORE EFFECTIVE SYSTEM OF DOMESTIC

LAW REMEDIES, OFFICE OF THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS (2013),

https://www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/StudyDomesticeLa

wRemedies.pdf [https://perma.cc/E8U6-MDV5].



2019] IT’S COMPLICATED 223

accountable under international criminal law.14

I. THE DUALITY OF THE TNC AND THE CONUNDRUM OF CULPABILITY

In the world of corporate entities, there is often a consistent gap between the
TNC as a brand and the TNC as a legal person. The duality regarding the
perception and the reality of TNCs is not, perhaps, accidental.  TNCs have spent
a significant amount of revenue attempting to craft a uniform image – a brand of
itself that extends far beyond the specific legal personality of a particular
jurisdiction.15 For instance, part of what McDonald’s hopes attracts consumers to
their stores is the probability that the customer will have the same experience
having a Big Mac in Vevay, Indiana as they will in Geneva, Switzerland,16 even
if the former is operated by a small franchisor and the latter is owned by a
subsidiary of the McDonald’s Corp. in the U.S. To date, these efforts by TNCs
have been successful. Unfortunately, this duality also extends to the perception
consumers and communities have when scandals and criminal acts are reported
that somehow touch on a TNC, even if the specific corporation at issue is not
involved.17 When accusations regarding the use of child labor happen in the
Democratic Republic of Congo, where children as young as seven are allegedly
working in the mines,18 touch on corporations with securities reporting
obligations in the U.S.,19 or a chemical leak happens in Bhopal, India that
implicates the same corporation that has facilities in Institute, West Virginia,20

14. For the purposes of this essay, the domestic lens that will be applied will be a U.S.

oriented one.

15. See generally Claude Serfati, Financial dimensions of transnational corporations, global

value chain and technological innovation, 2 DANS JOURNAL OF  INNOVATION ECON. & MGMT. 35

(2008) https://www.cairn.info/revue-journal-of-innovation-economics-2008-2-page-35.htm#

[https://perma.cc/73AZ-342T].

16. 50 Years of the Big Mac, MCDONALDS NEWSROOM (Aug. 1, 2018), https://news.

mcdonalds.com/stories/our-food-details/big-mac-50-history-infographic [https://perma.cc/2CE4-

LA45] 

17. See Steve Boggan’We Blew It:’ Nike Admits to Mistakes Over Child Labor, COMMON

DREAMS (Oct. 20, 2001), https://www.commondreams.org/headlines01/1020-01.htm [https://perma.

cc/QH39-HHVM];  Stephen Foley, Apple admits it has a human rights problem, INDEPENDENT

(Feb. 14, 2012), https://www.independent.co.uk/news/world/asia/apple-admits-it-has-a-human-

rights-problem-6898617.html [https://perma.cc/LDT4-V7VR].

18. It was these types of concerns in particular that gave rise to language within the Dodd-

Frank act directing the SEC to engage in rulemaking surrounding corporate obligations to report

the use of minerals that have been sourced from the Democratic Republic of Congo. The SEC’s

subsequent rulemaking has been the source of great controversy and ultimate defeat. See Jena

Martin, Hiding in the Light: The Misuse of Disclosure to Advance the Business and Human Rights

Agenda, 56 COL. J. TRAN. L. 530 (2018).

19. Id. 

20. Ben A. Franklin, Toxic Cloud Leaks at Carbide Plant in West Virginia, N.Y. TIMES (Aug.

12, 1985), https://www.nytimes.com/1985/08/12/us/toxic-cloud-leaks-at-carbide-plant-in-west-



224 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

society is pre-conditioned to attach liability ‘in the court of public opinion’ to the
TNC, even if the specific corporate entity itself is not to blame.21 In short, TNCs
have been effective at blurring lines so that we think of them as a giant
monolithic when, in fact, they are linked through wholly owned and partially
owned subsidiaries or, (even more attenuated) through independent vendors
within a supply chain.22 The TNC’s duality  also informs the challenges
prosecutors face, both procedurally and substantively, in holding these
corporations criminally accountable.23  

II. THE CHALLENGES IN PROCEDURAL LAW

Among the hosts of issues that arise in bringing particularly egregious TNC
behavior to justice, the most pernicious one is regarding the process with which
to do so. This idea of process raises a number of issues under international law:
everything from the venue, to the political will needed,24 to the jurisdictional
power, to the seemingly more mundane (but equally compelling) issue for
impacted communities, of logistics.25  This essay will discuss only a small subset

virginia.html [https://perma.cc/N54G-QJPC].

21. See generally Paul Courson, Public perception of BP affected spill response, Allen says,

CNN (Sept. 27, 2010), http://www.cnn.com/2010/US/09/27/gulf.oil.disaster/index.html

[https://perma.cc/78QN-R2CP]; Burhan Wazir, Nike accused of tolerating sweatshops, THE

GUARDIAN (May 19, 2001), https://www.theguardian.com/world/2001/may/20/burhanwazir.

theobserver [https://perma.cc/SH9X-S7MW]. 

22. For instance, Apple has over 200 suppliers that make up 97% of its procurement list.

Supplier List, APPLE (2019), https://www.apple.com/supplier-responsibility/pdf/Apple-Supplier-

List.pdf [https://perma.cc/R6UB-HNTE].

23. There are numerous examples of criminal cases that have been brought against TNCs in

jurisdictions outside of the United States. For instance, a recent study convened by the European

Parliament, identified 35 cases of human rights abuses (both civil and criminal) allegedly

perpetrated by corporations in the European Union alone.  See  DROI Report, supra note 10.  While

a full review of the cases analyzed in the study are outside the scope of this essay, the study’s

findings regarding twelve of the cases chosen for in-depth review demonstrate that, to date, none

have resulted in a corporation being held liable for human rights abuses. Id. at 104 – 106.  In

addition, many of the barriers to justice identified in the study are in line with the issues raised in

this essay, including: “Access to evidence; costs of bringing claims; safety of witnesses; time

barriers; culture and/or language barrier.” Id. at 103.

24. The issue of political will can be tied both to foundational concerns a prosecutor might

have but also the necessary decisions regarding how to prioritize prosecutions, given the limited

resources available to law enforcement. 

25. This, in turn, raises a host of subsidiary issues that include, how to call witnesses, in what

language to conduct the trial, who speaks for the corporation and how you overcome the

transportation barriers that are often insurmountable for witnesses. See, e.g., Susan Lamb’s lecture

on the issues raised by the Cambodia trial. WVU Law, McDougal Lecture Series - Spring 2019,

YOUTUBE (Jan. 15, 2019), https://www.youtube.com/watch?v=e-RBDA2jBS8&t=9s

[https://perma.cc/7KU7-VGN9].



2019] IT’S COMPLICATED 225

of those issues – namely examining the jurisdictions in which these proceedings
should be held.26 Specifically, the next sections will discuss both the use of U.S.
domestic litigation to tackle extraterritorial behavior and the use (largely
theoretical at this point) of international venues, in particular the International
Criminal Court (the “ICC”).

A. Domestic Courts Using Extraterritoriality Applications

On the domestic level, attempts to hold TNCs accountable (civilly and
criminally) have been met with unfettered corporate resistance. For instance, in
the United States, corporations have levied vigorous defenses against human
rights advocates’ attempts to use the Alien Tort Statute (ATS) as a vehicle to hold
TNCs liable.27 The strategy appears to have been, at least partially, effective.28 In
2018, the U.S. Supreme Court held foreign29 corporations could not be brought
within the ambit of the ATS.30 While there is some movement in other
jurisdictions31 to provide victims of human rights abuses with the ability to hold

26. While, by its nature, raising the procedural issues also implicates the substantive issues

(specifically regarding what law to apply), I will, for the sake of logical structure, leave those issues

to the next section.

27. See, e.g., Doe v. Unocal, 248 F.3d 915 (9th. Cir. 2001) (affirming a lack of minimum

contact necessary to establish personal jurisdiction); Bowoto v. Chevron, 621 F.3d 1116 (9th Cir.

2010) (upholding a district court’s barring of ATS wrongful death and survival claims as preempted

by DOHSA); Kiobel v. Royal Dutch, 621 F.3d 111 (2nd Cir. 2010) (holding corporate defendants

not subject to ATS liability because they were not subject under customary international law);

Jesner v. Arab Bank, PLC, 138 S.Ct. 1386 (2018) (holding that without express intent from

Congress, courts could not extend ATS liability to foreign corporations).

28. Jesner v. Arab Bank, PLC, 138 S. Ct. (2018). Although the door may still be open to hold

domestic corporations liable under the ATS, it is unlikely advocates will bring about such a

challenge with so much negative precedent.

29. For a discussion of Jesner’s impact on future litigation involving domestic corporations,

see William Dodge, Jesner v. Arab Bank: The Supreme Court Preserves the Possibility of Human

Rights Suits Against U.S. Corporations, JUST SECURITY (Apr. 26, 2018), https://www.justsecurity.

org/55404/jesner-v-arab-bank-supreme-court-preserves-possibility-human-rights-suits-u-s-

corporations/ [https://perma.cc/QYB6-TW83].

30. What’s interesting about the ATS is that it marks the departure from the typical strategy

of holding corporations liable for white collar crimes. Specifically, in order for corporations to fall

within the ambit of the ATS there must first be a crime against humanity. Sosa v. Alvarez-Machain,

542 US 692 (2004). The irony, of course, is that a crime against humanity under international law

only translates to a tort under U.S. jurisdiction (through the ATS) – there is no parallel criminal

jurisdictional statute. This also highlights the fact that, under U.S. criminal law, most of the crimes

that TNCs have been found to have violated have been white collar crimes instead of the more

atrocious crimes against humanity. 

31. Australia’s Criminal Code expressly discusses the liability of corporate bodies and

Indonesia has recently pursued criminal prosecution of TNCs in regards to environmental law

violations. ANITA RAMASASTRY & ROBERT C. THOMPSON, COMMERCE, CRIME AND CONFLICT:



226 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

corporations accountable, the significant limitation of the ATS has, practically
speaking, curtailed extraterritorial civil litigation against corporate entities.32 

One way to potentially circumvent the issues of extraterritoriality would be
for prosecutors to find a nexus between the corporation’s activities within its
home state (usually the jurisdiction where the headquarters sits) and the activities
of its subsidiaries within the host state.  So, for instance, if a prosecutor could find
a connection between the decisions of the parent corporation’s board of directors
and the specific actions of its subsidiary to effectuate that decision, then perhaps
a link could be established that would establish jurisdiction for the parent
corporation.  Unfortunately, criminal prosecutions that have been built around
attempting to find such a nexus have been met with limited success.33 

In addition, cross border claims against corporations raise a number of
practical issues. For instance, according to one report developed by human rights
advocates, the particular challenges for prosecuting corporate cross border crimes
include the disparity between the ease with which corporations can operate and
the limitations on state actors.34 Specifically, the report notes that:  

Multinational corporate entities act across borders with ease due to
developments in technology as well as favourable corporate, trade and
investment laws. They exercise significant power and influence. Laws to

LEGAL REMEDIES FOR PRIVATE SECTOR LIABILITY FOR GRAVE BREACHES OF INTERNATIONAL LAW

13-14, https://www.biicl.org/files/4364_536.pdf [https://perma.cc/E7ZS-TX27]. The UK has also

made strides in holding corporate entities liable with a new asset forfeiture law that attaches to

corporate human rights abuses. Fabio Leonardi, William M. Sullivan Jr., & Mattew Oresman,

Retroactive Corporate Liability for Human Rights Abuses, PILLSBURY, (Dec. 7, 2017),

https://www.pillsburylaw.com/en/news-and-insights/retroactive-corporate-liability-for-human-

rights-abuses.html [https://perma.cc/E3ZH-4C4E].

32. Also, the civil nature of these mechanisms means that it is not a tool that is used by

criminal prosecutors. In Kiobel v. Royal Dutch Petroleum Co., the Court explained in dicta that a

plaintiff cannot file an ATS claim unless it “touch[ed] and concern[ed] the territory of the United

States”. Kiobel v. Royal Dutch Petroleum, 569 U.S. 108, 126 (2013). However, the Second Circuit

has held that Kiobel absolutely barred any ATS claim that was based on conduct which happened

abroad. Balintulo v. Daimler AG, 727 F.3d 174, 182 (2d. Cir. 2013). These case are but two that

showcase the split in determining whether an ATS claim would still be viable. See also Eric Engle,

Extraterritorial Corporate Criminal Liability: A Remedy for Human Rights Violations?, 20 ST.

JOHN’S J. LEGAL COMMENT. 287 (2006).

33. See, e.g. AMNESTY INTERNATIONAL, INJUSTICE INCORPORATED 122-31 (2014), 

h t t ps :/ /w w w . a m n e s t y . o r g / d o w n lo a d / Docu m en t s /8 0 0 0 /po l3 0 0 0 1 2 0 1 4 en .pdf

[https://perma.cc/6LKN-S9S6] (discussing the legal barriers to bringing an extraterritorial action).

In the United States, recent Supreme Court jurisprudence around issues of jurisdiction and TNCs

would seem to suggest that criminal prosecutions for extraterritorial conduct would also be met

with limited success. See Daimler AG v. Bauman, 571 U.S. ___ , 134 S. Ct. 746 (2014) (holding

that a plaintiff cannot establish jurisdiction over a parent company based upon the acts of its

subsidiaries that took place outside of the country).

34. THE PRINCIPLES, supra note 8, at 9. 



2019] IT’S COMPLICATED 227

protect human rights and deter companies from committing wrongful
acts have not kept pace with these developments. For example, the issues
of separate legal personality and limited shareholder liability present
significant legal challenges for accountability where the case involves a
parent company based in a home State that operates through a local
subsidiary or joint venture in the host State. This “governance gap” has
created an environment in which corporate actors are able to commit
serious human rights abuses and other corporate crimes with little
accountability for doing so.35

In the end, prosecutors are at once fully aware of the challenges of bringing
a transnational case against multiple corporate entities36 leading many, perhaps,
to be fearful of the public’s reaction if the challenges of prosecuting multiple
entities proves to be insurmountable.37  As such, under the current domestic
framework, at least within the United States, exercising jurisdiction against TNCs
for acts committed abroad seems problematic. 

In theory, then, an international venue would overcome many of the issues
raised by cross border investigations. However, it would also raise several other
concerns. 

B. International Venues

Currently, there are a limited number of venues that could tackle the issue of
holding TNCs liable for international criminal law violations.38 Chief among them

35. Id. This issue is exacerbated when the corporation may not be directly involved in the

specific legal issue, but rather the criminal behavior is done by an actor within its supply chain. See

Martin, supra note 18.

36. THE PRINCIPLES, supra note 8, Principle Five, Commentary (stating that investigators and

prosecutors “recognised that obtaining evidence and assistance in cross-border corporate crimes

cases can be especially challenging.”)

37. To wit, it would seem a perfectly reasonable concern of prosecutors that their failure to

overcome the jurisdictional and personality hurdles posed by the TNC (see infra for details) could

lead to public approbation that TNCs were getting off on a technicality. Cf.  Hot Coffee (2011) (the

documentary that explores the public perception of a litigant who won a multi-million suit against

McDonald’s for burns she sustained after spilling McDonalds’ coffee on herself. As the filmmakers

show, the public’s perception of the plaintiff (including one person who alludes to “jackpot

justice”) is at odds with the factual evidence that was shown (i.e., that she sustained third degree

burns near her genitalia and was in danger of losing her life). See also HOT COFFEE,

http://www.hotcoffeethemovie.com/default.asp?pg=thefilm [https://perma.cc/B9K4-ZRHW];

German Lopez, What a lot of People got Wrong about the Infamous 1994 McDonald’s Hot Coffee

Lawsuit, VOX (Dec. 16, 2016),  https://www.vox.com/policy-and-politics/2016/12/16/13971482/

mcdonalds-coffee-lawsuit-stella-liebeck [https://perma.cc/R8PV-WLVR].

38. See Alice de Jonge, Transnational corporations and international law: bringing TNCs

out of the accountability vacuum, 7 CRITICAL PERSPECTIVES ON INT’L BUS. 66 (2011); Suyan

Droubi, Transnational Corporations and International Human Rights Law, 6 NOTRE DAME J. INT’L

& COMP. L. 119 (2016).



228 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

would be the ICC.39 The types of crimes within the ambit of BHR advocate
portfolios, including trafficking and forced labor, could theoretically fall under
the jurisdiction of the ICC.  In fact, these types of violations fall squarely within
the ICC’s mission which, it states, is to: “help put an end to impunity for the
perpetrators of the most serious crimes of concern to the international community
as a whole, and thus to contribute to the prevention of such crimes.”40 

In addition, the ICC is a fairly unusual creature of international law; although
it followed the rules of treaty ratification (i.e., with states agreeing to be bound)
it has jurisdiction over individuals instead of state parties.41  As such, individual
actors can be prosecuted if their state is a party to the convening statute. Although
prosecutions that proceed under the ICC’s authority involve crimes against
humanity, genocide, and war crimes,42 the ICC has jurisdictional power over any
individual who is complicit in these acts, including corporate executives.43 

Despite these advantages, the ICC remains a problematic option. Foremost,
the foundational statute does not allow the prosecution of corporations.44  In order
to overcome such a limitation then, all convening state parties would have to
agree to amend the treaty, an arduous process under the best of circumstances but
one that seems particularly problematic in the current environment.45 

39. The ICC, currently in its seventeenth year, was hailed at the time of its inception and

supported by many, getting the requisite 60 signatures easily. However, today some of those

signatory nations have gone so far as to declare they do not agree to be bound, such as the United

States. Jamie Mayersfield, Who Shall be the Judge?: The United States, the International Criminal

Court, and the Global Enforcement of Human Rights, 25 HUMAN RIGHTS Q. 94-95(2003).  In

addition to the ICC, there are other international tribunals which could, in theory, examine

corporate liability, however, with the exception of the Special Tribunal of Lebanon (the STL), none

have actually held a legal person liable.  For an in-depth discussion of the STL decision establishing

corporate liability see Caroline Kaeb, The Shifting Sands of Corporate Liability under International

Criminal Law, 49 GEO. WASH. INT’L L. REV. 351, 364 - 71 (2016).

40. Understanding the International Criminal Court, ICC, 1, https://www.icc-cpi.int/iccdocs/

PIDS/docs/UICCGeneralENG.pdf [https://perma.cc/LL4C-VWFJ]. 

41. In that sense, it differs from the other treaties which are primarily mechanisms for holding

States (or countries) as duty bearers accountable under international law.

42. A person convicted in the ICC is subject to either (1) imprisonment for a specified

number of years, not to exceed 30 or (2) a term of life imprisonment, when justified. Rome Statute,

supra note 5, at art. 77(1). Convicted persons are also subject to additional penalties which may

include (1) a fine or (2) a forfeiture of property derived directly or indirectly from the crime of

which he was convicted. Id. at art. 77(2).  At the conclusion of trial resulting in a guilty verdict, the

convicted person serves their prison sentence in a member-state designated by the Court which have

indicated their willingness to accept convicted persons. Id. at art. 103(1)(a). The conditions of the

convicted person’s imprisonment are then determined by both the Court and the member-state

accepting the sentenced person. Id. at art. 103(1)(b). 

43. Understanding the International Criminal Court, supra note 32.

44. Art. 25(1) of the Rome Statute of International Criminal Court provides jurisdiction over

“natural persons" only.

45. In a report conducted by Amnesty International, concerning four case studies of business



2019] IT’S COMPLICATED 229

One solution perhaps would be to focus on prosecuting individuals at the
head of the TNCs rather than the TNC itself .  To that end, in 2003, the ICC’s
chief prosecutor, Luis Ocampo, stated that he would examine the role of business
leaders as “accomplices in international crimes.”46 However, despite Mr.
Ocampo’s attempts, these efforts have not borne fruit. As one commentator
remarks, “investigations initiated by the Office of the Prosecutor may have shown
that prosecuting business activities is a more demanding task than anticipated or,
in light  ‘of the ICC’s complementary function, may not be of sufficient gravity
to justify further action.’”47 In a 2016 policy paper the ICC has indicated that it
is focusing on investigating corporate executives who engage in land grabbing
(particularly in times of conflict),48 however, to date they have not done so.49 

and human rights abuses, the organization determined that “some of the most significant obstacles

to remedy are due not to legal factors but to the actions of companies, in particular their influence

over governments and regulatory systems.” AMNESTY INTERNATIONAL, INJUSTICE INCORPORATED

173 (2014), https://www.amnesty.org/download/Documents/8000/pol300012014en.pdf [https://

perma.cc/VD7B-HZRQ].

The report goes on to note that the leverage that corporations have over regulatory actors, even

states themselves, are such that corporate influence almost certainly plays a role in the political will

(or lack thereof) for a prosecutor to bring an action against a TNC or a state to amend a treaty to

provide for more robust prosecutions of TNCs.  Indeed, the report goes on to note that corporate

lobbying is a significant method used to influence state actors at both the national and international

level. Id. at 180. See also RACHEL CHAMBERS & ALEX BATESMITH, OPTIONS FOR CRIMINAL

PROSECUTION OF UK COMPANIES FOR HUMAN RIGHTS ABUSES COMMITTED OUTSIDE OF ENGLAND

AND WALES 3 (May 2015)(stating that “the fact that there have been so few prosecutions of

companies for any [corporate human rights abuses] suggest two alternatives: either the English

criminal law is inadequate tp protect overseas victims of human rights abuses committed by UK

companies and their subsidiaries, or that there is a lack of political will to prosecute within the

UK.”) 

46. Hans Vest, Key Issues de lege lata; Definitions of Crimes and Attribution of

Responsibility, 8 J. OF INT’L CRIM. JUST. 851 (2010).  

47. Id. at 852.  Specifically, Vest notes that the banality of corporate activity can still be

liable under international criminal law - if it in some way helps to promote the committing of

atrocities. As Vest writes: “in theory, no business activity, regardless of how ordinary or 'neutral'

it seems to be, can explicitly be left outside the scope of, e.g. accessorial liability to the commission

of an international crime. Scenarios may cover providing raw materials, any kind of semi-finished

products, end-products such as, e.g. weapons, goods and services including personal, technical and

logistical assistance, information, cash, credit and banking facilities.” Id. at 852.  However, the

nature of these activities also makes it more difficult to collect evidence and investigate.

48. OFFICE OF THE PROSECUTOR: POLICY PAPER ON CASE SELECTION AND PRIORITISATION,

INT’L CRIM. CT. (Sept. 15, 2016), https://www.icc-cpi.int/itemsDocuments/20160915_OTP-

Policy_Case-Selection_Eng.pdf [https://perma.cc/EQ4C-7756]. 

49. See Bernaz, supra note 13, at 2-3 (noting that the new policy paper has attracted a range

of responses from the business and human rights field, ranging from the positive (a potential “tool

to achieve justice for victims”) to the dismissive (viewing the paper “as mere talk unlikely to lead

to any real change.”). In other venues, however, there does seem to be more movement towards



230 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

Theoretically, then, while the ICC seems to be a compelling venue for the
prosecutions of corporate related crimes against humanity, it seems as if the
current political will renders this an unlikely alternative.  In addition, even if the
political will were found amongst the relevant decision makers, the
implementation of such a program would lead to a host of logistical issues that
would protract an already extenuated process.50 

In addition, as the next section demonstrates, given the hurdles that have
arisen in the U.S. when corporate and criminal law have intersected, trying to
undergo corporate prosecutions under international law, where many of these
issues can be magnified,51 could lead to a similar exacerbation in the challenges
present.52

III. THE CHALLENGES IN SUBSTANTIVE LAW

The hurdles that abound in applying the substantive law to TNCs are
daunting.  The issues take place in two primary areas of jurisprudence – corporate
and criminal law. 

A. Corporate Law

There are two seemingly incompatible trends taking place in U.S. corporate
law today – increasingly providing corporations with rights, including

using international human rights law to hold TNCs accountable for abuses. For instance, in 2018,

the UN Human Rights Council issued a zero-draft treaty on business and human rights. The purpose

of the treaty is to “strengthen the respect, promotion, protection and fulfilment of human rights in

the context of business activities of transnational character;” LEGALLY BINDING INSTRUMENT TO

REGULATE, IN INTERNATIONAL HUMAN RIGHTS LAW, THE ACTIVITIES OF TRANSNATIONAL

CORPORATIONS AND OTHER BUSINESS ENTERPRISES, OFFICE OF THE UNITED NATIONS HIGH

COMMISSIONER FOR HUMAN RIGHTS, art. 2 (July 16, 2018), https://www.ohchr.org/Documents/

HRBodies/HRCouncil/WGTransCorp/Session3/DraftLBI.pdf [https://perma.cc/JX58-L7FG]. 

Commentators for the treaty have said that the newly released draft needs to focus on protecting

victims and requiring companies to do human rights due diligence. Doug Cassel, Treaty Process

Gets Underway: Whoever Said It Would Be Easy?, BUS. & HUM. RTS. RESOURCE CTR., 

https://www.business-humanrights.org/en/treaty-process-gets-underway-whoever-said-it-would-be-

easy [https://perma.cc/85VL-D8Q3] .  As such, short of a new or amended treaty, there is no room

to hold TNCs liable under current international law.

50. For instance, any cross-border investigation would, presumably, need the cooperation of

both the host state (where the violations occurred) and the home state (where the TNC’s

headquarters are located).  As such, any difficulties that normally arise with inter-agency

cooperation would only be magnified when each agency works under a different, sovereign, nation.

51. WVU Law, supra note 21.

52. Another specific issue that, while outside the scope of this essay is nonetheless worth

mentioning, is the significant issue of trying to develop a cohesive jurisprudential model for

corporate criminal liability when there are so many distinct legal doctrines (i.e., common law, civil

law, Sharia law) that would need to be addressed. 



2019] IT’S COMPLICATED 231

constitutional rights, while limiting accountability for the entity as a whole.53 
Both of these trends seem to arise from imbuing corporations with legal
personality.  As a result, while the corporate structure is in essence, a legal
fiction, these legal fictions have nonetheless been given certain rights under U.S.
law.54 For instance, a corporation can sue and be sued in its own name.55 It can
also own property, hold accounts in its own name and legally undertake many of
the same actions of an individual human being.56 In addition, the corporation has
grown exponentially in the last century.57 While originally it was designed as a
way of pooling resources and acting within a very limited corporate charter given
by the state, it has now become a ubiquitous business structure.58   This evolution
has also resulted in the TNC.

Despite being imbued with legal personality, TNCs are nonetheless difficult
to hold accountable. By definition, a TNC is a multinational enterprise, with
subsidiaries that cross jurisdictional boundaries.59  Specifically, a TNC arises
when a corporation creates a wholly-owned but legally separate entity (or several
legal entities) known as subsidiaries.60  The purpose of the subsidiary can be
varied, but often it is created specifically to further shield the parent company
from liability.61  Under this structure, the original corporation becomes known as

53. Binyamin Appelbaum, What the Hobby Lobby Ruling Means for America, N. Y. TIMES 

(July 22, 2014), https://www.nytimes.com/2014/07/27/magazine/what-the-hobby-lobby-ruling-

means-for-america.html [https://perma.cc/M5XS-4UUQ] (discussing the Supreme Court ruling that

corporations with religious owners cannot be required to pay for insurance coverage of birth

control). 

54. Some scholars, such as Stephen Bainbridge, have devised alternative theories for

conceptualizing the corporation.  For instance, Bainbridge discusses the corporate structure,

particularly board of directors, as a nexus of contracts around which costs and transactions are

organized. Stephen Bainbridge, The Board of Directors as Nexus of Contracts: A Critique of

Gulati, Klein & Zolt's 'Connected Contracts' Model (UCLA, School of Law Research Paper No.

02-05, Jan. 2000), https://ssrn.com/abstract=299743 [https://perma.cc/677G-A26S].

55. See, e.g., Model Business Corporations Act § 3.02 (2016)(stating “unless its articles of

incorporation provide otherwise . . . every corporation has the same powers as an individual to do

all things necessary . . . including, without limitation power: (a) to sue or be sued.”

56. Id. 

57. See generally What is the history of corporations in America?, INVESTOPEDIA, (Aug. 29

2018), https://www.investopedia.com/ask/answers/041515/what-history-corporations-america.asp

[perma.cc/GHM2-ZSS6]. 

58. See generally id.

59. See GRAZIO IETTO-GILLIES, TRANSNATIONAL CORPORATIONS AND INTERNATIONAL

PRODUCTION: CONCEPTS, THEORIES AND EFFECTS 25 (2012) (stating “Transnational corporations

(TNCs) are incorporated or unincorporated enterprises comprising of parent enterprises and their

foreign affiliates.”)

60. Id.

61. The general rule of corporate law is that parent companies are not liable for the actions

of their subsidiaries. However, there is an exception - when a court finds evidence to warrant

piercing the corporate veil (or establishing enterprise liability). These instances mainly occur when



232 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

the parent company to the subsidiary corporation.62 This is further complicated
when these subsidiary corporations all operate outside the U.S., mostly in
developing countries where the regulatory system is much weaker than in the
home country.63 This situation becomes even more complex when these
subsidiaries have their own subsidiaries and their ownership is spread across
multiple shareholders that include other corporations or state-owned enterprises. 
In short, each of these subsidiaries are corporations with separate legal
personalities and limited liability.  And yet, rarely do prosecutors have the ability
or desire to bring to justice each of the separate legal personalities that may be
involved in a corporate conspiracy sufficient enough to trigger crimes against
humanity.64  

The duality inherent in corporate structures and their specific actors is further
complicated by the numerous legal frameworks in which a corporation operates.
For instance, using the corporate structure to commit illegal acts implicates the
corporate law of the particular state in which the corporation in incorporated. If
the corporation is publicly traded, then U.S. securities law violations may also be
present.   If that publicly traded corporation is, for instance, involved in bribing
government officials in order to achieve their ends, then anti-corruption laws
might also be implicated. All of that may occur in a single national framework.
As noted earlier, these challenges are multiplied when there are different state
actors involved.

In addition, the internal corporate structure and its purported purpose leads
to a number of competing interests that can give rise to reckless behavior. The
seminal case of Dodge v. Ford forms the basis for the enduring concept regarding
the purpose of the corporation in the U.S.65  To wit, the corporation is viewed as
a vehicle “organized and carried on primarily for the profit of the stockholders.”66

This narrative underlies much of the jurisprudence that has been written over the
years and also forms the basis of many of the key legal principles in U.S.
corporate case law.  The shareholder profit narrative also results in an inherent
tension in the structure and purpose of a corporation. If a corporation can only act
through its corporate officers, and the corporate officers are largely shielded from
liability for its decisions, then there is a danger that corporate officers will make
decisions largely for their own self-interest rather than for the best interest of the
corporation’s shareholders.  Taken to an extreme, this could result in corporate
officers acting recklessly and using the corporation as a vehicle to commit

the entities are operating as a single business enterprise, the subsidiary has no assets of its’ own,

or there is a fraudulent transfer of assets in an effort to avoid liability. Kyle Hulten, When is a

Parent Company Liable for the Acts of a Subsidiary?, IVL BLOG, https://www.invigorlaw.

com/when-can-a-subsidiary-create-liability-for-a-parent-entity/ [perma.cc/S6AJ-PSME]. 

62. Id.

63. The Pros and Cons of Setting Up a Foreign Subsidiary, SHIELDGO, https://shieldgeo.com/

the-pros-and-cons-of-setting-up-a-foreign-subsidiary/ [perma.cc/S86M-68PY]. 

64. THE PRINCIPLES, supra note 7. 

65. Dodge v. Ford Motor Co., 170 N.W. 668 (Mich. 1919).

66. Id. at 684.



2019] IT’S COMPLICATED 233

criminal acts.67

At a minimum, there are an overwhelming amount of choices that corporate
executives need to examine when facing questionable business practices. As a
result, it may often be tempting to make an unprincipled decision in haste.68 When
those consequences lead to criminal activity, the challenge for law enforcement
becomes that much more difficult: with agencies having to assess many of the
same actions and decisions that a corporate officer must engage in after the fact,
but now with an eye towards gathering evidence for prosecution. There is also an
additional hurdle of having less embedded cooperation across agencies (since,
despite the corporate legal constructs, managers will often have greater access to
information within a corporation’s subsidiaries and affiliates than outside
investigators) and it is clear that law enforcement faces a herculean task in
assessing criminal activity that takes place in multiple jurisdictions with multiple
legal entities in play.69

There are also other stakeholders that can affect a corporation’s structure and
its governance framework. They may include: employees, suppliers, customers,
creditors, and the communities where the corporation operates.70 While none of
these stakeholders typically have formal representation within corporate law
jurisprudence (i.e., corporate officers and directors are generally not required to
put the interests of these stakeholders above the needs of shareholder
profitability),71 these groups can secure influence and leverage with the

67. Despite the adversarial posture of a criminal investigation, precedent has shown that

corporate cooperation is a crucial factor that government agencies weigh when deciding what

penalties to assess against violators. Sally Quillian Yates, Memorandum for Assistant Attorney

General: Individual Accountability for Corporate Wrongdoing, U.S. DEPT. OF JUST., (Sept. 9,

2015), https://www.justice.gov/archives/dag/file/769036/download [perma.cc/PU7V-XBDJ]. Since

a corporation is a multi-layered entity with multiple actors who could potentially be involved in

violating laws or contributing to human rights abuses, internal audits and corporate self-reporting

are concrete steps that an entity can take to minimize risk.  Even if the investigation originated

outside of the corporation (say from the victim of a human rights abuse), corporations can still

mitigate their negative impact by fully and completely cooperating with law enforcement agencies.

68. John S. Hammond et al., The Hidden Traps in Decision Making, HARV. BUS. REV.,

(Sept.-Oct. 1998), https://hbr.org/1998/09/the-hidden-traps-in-decision-making-2 [perma.cc/DF4S-

5JV].  

69. Phillip I. Blumberg, Asserting Human Rights Against Multinational Corporations Under

United States Law: Conceptual and Procedural Problems, 50 AM. J. COMP. L. 493 (2002).

70. See, e.g., Niklas Egels-Zanden, TNC Motives for Signing International Framework

Agreements: A Continuous Bargaining Model of Stakeholder Pressure, 84 J. OF BUS. ETHICS 529-47

(2009), https://doi.org/10.1007/s10551-008-9722-3 [https://perma.cc/RX2C-2HRZ] (providing

qualitative research that shows that TNCs decision to engage in International Framework

Agreements and other corporate social responsibility initiatives comes, in part, from stakeholder

pressure, particularly from labor unions). 

71. For a fuller discussion of the role of stakeholder influence in a corporate board’s decision

making duties, see Jena Martin, Business and Human Rights: What’s the Board Got to Do With It?

2013 ILL. L. REV. 959, 971 (2013) (discussing the various theories of corporate governance and the



234 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

corporation either through formal contracts (such as collective bargaining
agreements for unionized employees) or through softer, reputational means (such
as advocacy campaigns in communities where corporate policies impact social
issues, like human rights).72 However, where a corporation operates in a “weak
governance zone” in which these stakeholders have only limited leverage, then
the needs of these stakeholders (such as employees or vendors of the corporation)
will take a backseat to the purpose of the corporation.73

In addition, while not all of the stakeholders listed above will have a direct
impact on the legal liability of the corporation, they do have the ability to wield
power and influence at the corporation. However, in assessing how likely a
corporation or its stakeholders will be to cooperate in a criminal investigation, the
purpose of the corporation and how it affects decisions within the corporate
structure should not be ignored.74

B. Criminal Law

Contrary to popular belief,75 there have been a surprising number of
corporations that have been indicted in the United States.76 Most of these
prosecutions have led to settlements and, despite the narrative that arose in the
wake of Arthur Andersen’s indictment and subsequent demise, very few (if any)
have resulted in the liquidation of the corporation. As such, there is some benefit
to analyzing the issues and challenges that arise when attempting to prosecute a
corporation for a crime.

Although the particular elements of a crime might differ, the heart of every
crime has two facets: (1) the actus reus (the behavior or specific criminal action)
and (2) the mens rea (the intent, or state of mind that accompanied those acts or
actions). Each of these are exceedingly more complicated when the “person”
committing the crime is a legal fiction.  How does one assess that for a
corporation?  In the United States, the law has done so with the use of the

role of stakeholders within each paradigm). 

72. See generally id. (discussing the ways that stakeholders can influence corporate

behavior). 

73. See, e.g., Kamil Omoteso & Hakeem Yusuf, Accountability of Transnational

Corporations in the Developing World: The Case for an Enforceable International Mechanism, 13

CRITICAL PERSPECTIVES ON INTERNATIONAL BUSINESS 54, 60 (2017), https://doi.org/10.1108/cpoib-

08-2014-0040 [https://perma.cc/2MHX-F7A6] (using Shell and Chevron’s business focused

interaction with the Nigerian government as a means to discussing the need for an international

enforcement mechanism for TNCs in weak governance zones).

74. See J. Brooke Hamilton et al., Google in China: A Manager-Friendly Model for

Resolving Cross-Cultural Ethical Conflicts, J. BUS. ETHICS (2009), https://www.researchgate.

net/publication/225420561_Google_in_China_A_Manager-Friendly_Heuristic_Model_for_

Resolving_Cross-Cultural_Ethical_Conflicts [perma.cc/ESF9-3NKQ].

75. Gabriel Markoff, Arthur Andersen and the Myth of the Corporate Death Penalty:

Corporate Criminal Convictions in the Twenty-First Century, 15 U. PENN. J. BUS. L. 797 (2013). 

76. Id.



2019] IT’S COMPLICATED 235

respondeat superior doctrine.77  This concept allows courts to hold one person
liable for the acts of its agents so long as the agents were: (1) acting within their
scope of employment and (2) acting for the master’s benefit.78 Once you have
established, for instance, that a corporate executive intentionally used forced
labor in the manufacture of basketball shoes, then you can use that theory to hold
the master – in this case the corporation – liable for the executive’s acts.

Many courts have wrestled with the scope of employment doctrine. As one
commentator has noted, “[d]etermining exactly what constitutes conduct ‘within
the scope of employment’ is a difficult task and the subject of numerous
judicially developed rules and guidelines.”79  The factors that a court will consider
to determine whether an employee was acting within the scope of her
employment include: the employee’s intent when performing the act; the nature,
specific time, and place where the act occurred (i.e., whether at a relevant location
or far away from the site); whether the act relates to the type of work that the
employee was hired to do; whether the act was a reasonable outgrowth of the
work that the employee was hired to do; and whether the employee in general had
a reasonable amount of freedom in executing the acts.80 Courts will also consider
whether the conduct was done with some particular type of intent–whether for the
benefit of the corporation, whether done with specific malice, whether the
corporation (through its agents) were reckless in the behavior and that
recklessness led to injury.81   

There are several issues that complicate a corporate criminal case. Similar to
other criminal investigations, when investigating allegations of corporate
misconduct, it is rare to find direct evidence that points to one culpable executive
who committed the criminal act.82 Rather, it is frequently several executives who
are often working in tandem (or sometimes at cross-purposes) and whose
conduct, as a whole, would fulfill the elements at issue but when examined
compartmentally, may not.   In short, while there may be several pieces of
evidence that show several different executives were somewhat involved in a part
of the act, there is often no one master puppeteer that put it all together.83  

77. Latin for “Let the master answer.”

78. Respondeat Superior, LEGALDICTIONARY, https://legaldictionary.net/respondeat-superior/

[perma.cc/N6HC-FZFP].

79. Hugh A. McCabe, Respondeat Superior, A Look at When Employers May be Held Liable

for Their Employee’s Conduct,

NEIL DYMOTT, http://www.neildymott.com/maecenas-mi-felis-mollis-vitae-mollis-ut-consectetur-

ut-dolor [perma.cc/LR77-UQVX].

80. Id. 

81. Id. 

82. Peter Henning, Why It Is Getting Harder to Prosecute Executives for Corporate

Misconduct, THE CLS BLUE SKY BLOG (June 13, 2017), http://clsbluesky.law.columbia.edu/

2017/06/13/why-it-is-getting-harder-to-prosecute-executives-for-corporate-misconduct/

[perma.cc/K3YE-8ZSA].

83. See generally Michael E. Tigar, It Does the Crime But Note the Time: Corporate

Criminal Liability in Federal Law, 17 AM. J. CRIM. L. 211 (1990).



236 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

This was exactly what the defense argued in the Arthur Andersen case. On
March 7, 2002, a federal grand jury indicted the U.S. accounting firm on one
count of obstruction of justice.84 The firm was the auditor for then-energy giant
Enron.85 During trial, Andersen’s attorneys employed an explicit “Where’s
Waldo?” defense, arguing that the prosecution could not show that there was any
one individual who was responsible for the acts alleged. While the defense’s
strategy was ineffective at trial, it did form a basis for the Supreme Court’s
reversal of the conviction in May 2005,86 although not before Arthur Andersen
declared bankruptcy.87  

In response to the difficulty of using respondeat superior for corporate
criminal law, commentators have set forth alternate theories for holding
corporations criminally liable.  Here, I consider two models: the patchwork
verdict model and the corporate ethos model, to see if they can be applied to any
proposed international criminal law framework.88

For instance, Stacey Neumann Vu, argues for what she calls a patchwork
verdict. Under this theory, a jury could find liability in situations where it knows
that something illegal has occurred but doesn’t know which particular agent is
responsible for the act in question sufficient enough to bring about respondeat
superior liability.89 Vu also makes the point that, in large organizations (such as

84. Edmund Sanders & Jeff Leeds, U.S. Indicts Enron Auditor Over Shredding, LOS

ANGELES TIMES (Mar. 15, 2002), http://articles.latimes.com/2002/mar/15/news/mn-32952

[perma.cc/68UB-ENMC]. 

85. Ironically, Enron, the company that hid billions of dollars in debt from failed projects and

shook Wall Street, did not face criminal liability as an organization, although a number of its

executives were charged with various counts of criminal securities violations.  Id. See also Troy

Segal, Enron Scandal: The Fall of a Wall Street Darling, INVESTOPEDIA (Feb. 9, 2015),

https://www.investopedia.com/updates/enron-scandal-summary/ [perma.cc/K5KR-NLKH]; David

Teather, Enron executives Lay and Skilling ‘breached duty,’ THE GUARDIAN (Nov. 24, 2003),

https://www.theguardian.com/business/2003/nov/25/corporatefraud.enron [perma.cc/UB6Z-

CTMB]. 

86. Arthur Andersen LLP v. United States, 544 US 696 (2005).

87. Unmesh Kher, The End of Arthur Andersen?, TIME (Mar. 11, 2002), http://content.time.

com/time/business/article/0,8599,216386,00.html [perma.cc/6W8L-NFRA].

88. Although outside the scope of this essay, there are other theories that have been

implemented in other jurisdictions as a way of extending criminal liability to corporations. For

instance, in Australia, the legislature has passed provisions in their Criminal Code that extend

criminal liability to corporations. See Chambers &  Batesmith, supra note 45.  Commentators also

note that that “Australia has a somewhat progressive approach to the attribution of criminal

responsibility through the notion of corporate culture.” Id. at 20.  In providing their own

recommendations regarding ways to expand UK law to allow for corporate criminal liability for

actions committed overseas, the authors also noted that one possible tact, under UK law, would be

to extend (or shift the guidance in UK’s Bribery Act) to allow for UK corporations to be criminally

prosecuted if senior management in the corporation’s UK office evidenced a failure in management

that led to human rights abuses. Id. at 28. 

89. Stacy Neumann Vu, Corporate Criminal Liability: Patchwork Verdicts and the Problem



2019] IT’S COMPLICATED 237

TNCs), the idea of holding a corporation liable for the conduct of its agents
becomes even more difficult in such a diverse environment. Alternatively, the
Corporate Ethos Model90 argues that corporations should be held criminally liable
by examining the work of the corporation as whole.91  Specifically, they draw on
the earlier work of Prof. Pamela Bucy92 who argued that you can examine eight
factors to determine whether a corporation should be held liable.93 These eight
factors include:

(1) The Hierarchy,
(2) Corporate Goals,
(3) Educating Corporate Employees About Legal Requirements,
(4) Monitoring Compliance with Legal Requirements,
(5) Investigating the Current Offense,
(6) Corporate Reaction to Past Violations and Violators,
(7) Compensation Incentives for Legally Appropriate Behavior, and
(8) Indemnification.

All of these factors focus on determining the corporation’s ethos that contributed
to the violation.94 As such, it is important when circumstantially determining a
corporation’s liability that the agent or actor was shown to have been encouraged
by the corporation’s ethos which then played a role in manipulating their
actions.95  

While each of these models are a step forward from the current respondeat
superior model, they also have similar limitations. Each model would seemingly
require a more intensive evidence gathering strategy to make connections across
various entities and subsidiaries.  Moreover, as I suggest in the next section, even
if these models were employed; under international criminal law, the
consequences in their successful deployment might lead to larger societal
challenges. 

of Locating a Guilty Agency, 104 COL. L. REV. 459, 460 (2004).

90. Nan Ellis & Steven Dow, Attaching Criminal Liability to Credit Rating Agencies: Use

of the Corporate Ethos Theory of Criminal Liability, 17 U. PA. J. BUS. L. 167, 189 (2014).

91. Id.

92. Pamela Bucy, Corporate Ethos: A Standard for Imposing Corporate Criminal Liability,

75 MINN. L. REV. 1095, 1099 (1991). 

93. Id. Examples include: (1) whether the corporate management is aware of the illegal

activities of their lower-level employees; (2) whether the activities of the employees were routine

and embedded into the corporation; (3) whether the employees were acting under direct instructions

from supervisors. Prosecutors could also consider expert testimony that would show the “time and

expense” of being within the law compared to the actual acts of the corporation. See THE

PRINCIPLES, supra note 7.

94. Id. at 1128.

95. Id. 



238 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

IV. SHOULD A TNC BE HELD LIABLE UNDER INTERNATIONAL LAW?

In contrast to the voluminous discussions by scholars regarding the potential
impediments to the prosecution of a TNC, there has been relatively discussion
regarding the negative consequences of their successful prosecution. Of those that
have discussed this issue, one of the most enduring narratives that persists is that
the prosecution of TNCs may in fact lead to their death.96  While, on the national
level, at least one scholar, Gabriel Markoff, has shown that this is predominantly
a false narrative (in fact U.S. corporations that are criminally prosecuted usually
survive)97 and, as such, adds an important element to the debate on corporate
criminal convictions, it appears that, in the end, it may be inapplicable to the
specific issue regarding prosecuting TNCs  under international criminal law.  The
convictions that Markoff analyzed were almost exclusively based on financial
crimes.98  Given the egregiousness of the types of crimes at issue (in that they are
primarily crimes against humanity), one wonders if the public outcry if a
corporation were to be convicted of these issues would be more significant and
lead to stronger collateral consequences.

However, Markoff’s study does implicate a facet of criminal law that is at the
heart of holding corporations accountable. Specifically, how do you punish the
corporation? You can’t send it to jail.99 You can certainly condemn it to die100 by
erasing its corporate charter and dissolving it.101 But then what impact will that
have on surrounding communities? Like it or not, corporations, particularly
TNCs, are incredibly powerful entities.102 As a result, liquidating the whole TNC
structure, even if it were feasible, would likely lead to debilitating effects on all
those affected by it.103  Dead corporations can hurt shareholders, communities,

96. In an empirical study of U.S. corporations, Prof. Markoff showed that (1) holding

corporations criminally liable happens much more frequently than is commonly believed, and (2)

a corporate criminal conviction almost never means the “death” (i.e., liquidation) of a corporation.

Markoff, supra note 56.

97. Id.

98. Id.

99. Id. at 799.

100. See Tim Worstall, “I’ll Believe Corporations Are People When Texas Executes One”:

What Is This Foolishness from Robert Reich?, FORBES (Nov. 17, 2012), https://www.forbes.com/

sites/timworstall/2012/11/17/ill-believe-corporations-are-people-when-texas-executes-one-what-is-

this-foolishness-from-robert-reich/#7d55f2f533f2 [perma.cc/85BP-47JS]. California has similarly

tried to enact individual criminal punishments on a corporation through a three-strikes bill, where

on the third strike a corporation is required to liquidate. Francie Grace, 3 Strikes And You’re Out -

Of Business, CBS NEWS (May 5, 2003), https://www.cbsnews.com/news/3-strikes-and-youre-out-

of-business/ [perma.cc/H8Y9-43NC].

101. Id. 

102. Michael Ricciardi, Who Runs the World? - Network Analysis Reveals ‘Super Entity’ of

Global Corporate Control, PLANETSAVE, https://planetsave.com/2011/08/28/who-runs-the-world-

network-analysis-reveals-super-entity-of-global-corporate-control/ [perma.cc/B5VK-BYWQ].

103. In truth, there are always collateral consequences for innocent bystanders of criminal



2019] IT’S COMPLICATED 239

employees and millions of other stakeholders.104 Also, would we just dissolve the
parent corporation?  The offending subsidiary?  If so, where would that leave the
rest of the corporate organ? The irony, of course, is that if a corporation is facing
international criminal liability, then it will have probably had to have been
accused of involvement with atrocities.105  If that’s the case then not holding them
accountable is just as problematic.106   Given all the challenges, the persistent
question remains, should a corporation be held liable under international criminal
law?

A. Maybe . . .107

When crimes against humanity involve businesses, there is some very real
damage that TNCs can inflict. As such, impacted communities have a justifiable
desire to see corporations punished through criminal law.108  As Ellis & Dow

convictions. See, e.g., Amy Cyphert, Prisoners of Fate: The Challenges of Creating Change for

Children of Incarcerated Parents, 77 MD. L. REV. 385, 387 (2018) (discussing the collateral

consequences of criminal convictions on the defendant’s “blameless children.”).Perhaps then, the

most significant difference for the conviction of a TNC is the order of magnitude regarding its

impact on the community.  For instance, one TNC could employ hundreds of thousands of people

across the world.  As such, the impact of its demise would cause immediate and potentially

catastrophic damage to the global economy.  It probably would have been better if we had never

let them get that big – see, e.g., Joanne Bauer and Elizabeth Umlas, Has Their Time Come? A Tale

of Two Corporate Responsibility Movements, THE CLS BLUESKY BLOG, http://clsbluesky.law.

columbia.edu/2018/02/02/has-their-time-come-a-tale-of-two-corporate-responsibility-movements/

[https://perma.cc/W8UG-PMRT] (questioning “whether a company . . . can be too big to take

human rights into account”) - but at this point there seems to be no turning back.

104. Just think of the upheaval that would come if Walmart and all of its subsidiaries were to

be dissolved.

105. International criminal courts can only hear violations of human rights. See sources cited

supra notes 5 and 10 and accompanying text.

106. There is a mechanism that the SEC has for stopping truly bad corporate behavior. It is

delisting a corporation – in essence taking away their access to the markets for capital. However,

during my almost five years at the SEC the Commission rarely took this action against a

corporation for its bad acts.   Why? Because we recognized that doing so would, cripple (if not

debilitate) the corporation, theoretically impacting thousands of investors.  

107. But BHR advocates may not be happy anyway.  Infra, part four B.

108. See Nan Ellis & Steven Dow, Attaching Criminal Liability to Credit Rating Agencies:

Use of the Corporate Ethos Theory of Criminal Liability, 17 U. PA. J. BUS. L. 167, 173 (2009)

(providing a summary of the difference between the goals of criminal and civil liability, “[t]he

public policy objectives served by imposition of civil liability differ significantly from those of

criminal law. Civil liability is largely compensatory – the judgments imposed serve to compensate

injured plaintiffs. Criminal law is largely punitive – the fines and other sanctions imposed serve to

punish criminal defendants.  While both criminal and civil liabilities are intended to deter future

misconduct, the similarities end there. Criminal law acts as a vehicle to punish wrongdoers, as a

deterrent against future wrongdoing, and serves a rehabilitative function.”).  



240 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

note, “[i]n the case of corporate crime, retribution – one of the goals of criminal
law – is achieved through assessment of a fine on the corporation” 109

Unfortunately, there is some indication that the use of fines to punish
corporations seems to have failed in its deterrent effect.110 Prof. W. Robert
Thomas takes a different approach to examining corporate criminal liability.
Thomas argues that, instead of looking at corporate punishment primarily through
the lens of criminal law, an examination of corporate jurisprudence is integral to
our understanding of the issues that come into play when doling out features of
corporate punishment under criminal law.111  According to Thomas, this stems
from the fundamentally “diametrically opposed conceptions of what the
corporation is.”112 On the one hand, criminal law treats the corporation as a single
person. On the other hand, corporate law treats the corporation as “systems of
designs” that can be tinkered with and used as needed.113  According to Thomas,

The fine, after all, is the paradigmatic form of corporate punishment; it
is the first, and for decades the only, method by which the criminal law
could hold a corporation criminally responsible for its misconduct.
Today, it continues to be the most prevalent method of punishing
corporations: nearly 90% of organizations convicted between 1999 and
2012 received some form of financial sanction. Moreover, at least at first
glance, there is much to recommend about corporate-criminal fines.
Comparatively speaking, fines are easy to administer; easy to scale in
response to the size of the corporation, the severity of the crime, and a
host of other factors; easy to predict in their consequences to third parties
(including their social benefits); and easy to see as fitting punishment-
what better way to punish an entity designed largely to create wealth than
to seize from it its wealth?114

Nonetheless, Prof. Thomas argues that criminal fines are structurally
incapable of satisfying the “standard goals of punishment.”115  Thomas also
mentions a number of other interventions that have been taken more recently to
punish corporations – namely, dissolution, corporate probation, regulatory
intervention, and suspension.116  However, the structural issues persist. If TNCs
cannot be held liable under international law then it must still rely on the
domestic legal system. As such, any solution that is designed to hold TNCs
accountable would have to work within that reality.   

109. Id. at 173.

110. W. Robert Thomas, The Ability and Responsibility of Corporate Law to Improve Criminal

Fines, 78 OHIO ST. L.J. 601, 603 (2017) (arguing that, under U.S. law, the idea of holding

corporations criminally liable has, in his words “roundly failed.”). 

111. Id. at 604.

112. Id.

113. Id. at 604-05.  

114. Id. at 605 (footnotes omitted).

115. Id. at 603.

116. Id. at 603-04.



2019] IT’S COMPLICATED 241

To that end, there seems to be some acknowledgment that a holistic approach
would be the best way to hold corporations accountable for egregious criminal
behavior.  For instance, in 2016, Amnesty International and the International
Corporate Accountability Roundtable published a report proposing a multifaceted
strategy for addressing the impunity gap between egregious corporate criminal
behavior and the means to combat the criminal activity;  the report (entitled The
Corporate Crimes Principles or the Principles) is based on ten principles that the
organizations urge governments’ to use when pursuing, investigating and
prosecuting corporate crimes.117 The Principles are comprehensive: they provide
a fulsome discussion on the many issues and challenges that are faced in bringing
egregious corporate behavior to justice, while taking steps to discuss solutions.
One key facet of the Principles is its insistence that remedies for the victim be a
part of the overall strategy employed by prosecutors.118  Therefore, it offers a
robust program that is based on the reality that we currently live in - namely that
there is no specific mechanism for holding TNCs liable under international law.119 
As such, the Principles provide a robust counter point to consider in examining
what mechanisms can be used to prosecute TNCs under international criminal
law; lending itself in support of the notion that TNCs should be held liable for
egregious acts.

B. . . . or Maybe Not

Legend has it that, in 281 BC, King Pyrrhus of Epirus battled an advancing
Roman army to ward off invasion and domination by the Romans against the
Greeks.120 In the first two battles Pyrrhus and his army were victorious but the
resulting toll taken on his troops was so heavy that Pyrrhus eventually lost the

117. THE PRINCIPLES, supra note 7, at 1, 9, 19, 28, 34, 42, 47, 53, 58, 64.  Specifically, the ten

principles are: (1) Fight impunity for corporate crimes by investigating and prosecuting offences;

(2)  Fight impunity for cross-border corporate crimes by choosing to assert jurisdiction; (3)

Guarantee accountability and transparency in the justice process when pursuing corporate crimes;

(4) Identify the legal standards and secure the evidence needed to establish liability for corporate

crimes in your jurisdiction; (5) Collaborate widely to ensure accountability for corporate crimes,

particularly in cross-border cases; (6) Pursue charges that reflect the gravity of the corporate crimes

committed; (7) Investigate and prosecute those corporate actors most responsible for the

wrongdoing; (8) Use all available legal tools to collect evidence, build cases and obtain the

cooperation of critical witnesses in corporate crimes cases; (9) Ensure that victims of corporate

crimes are able to obtain effective remedies; and (10) Put in place appropriate measures and

incentives to protect victims, informants, whistle-blowers, witnesses and experts in corporate

crimes cases. Id. 

118. Id. at 58.

119. For additional challenges relating to the use of the ICC to establish corporate liability,

see Kaeb, supra note 40, at 381-91 (discussing issues such as the appropriate penalty to levy against

a corporation)

120. N.S. Gill, Pyrrhic Victory, THOUGHTCO., https://www.thoughtco.com/pyrrhic-victory-

120452 [https://perma.cc/786F-BGBK].



242 INDIANA INT’L & COMP. LAW REVIEW [Vol. 29:219

war.121  Specifically, the Roman army was so much larger than the king’s that
they could more easily absorb the losses of the specific battles, even though
Rome’s overall losses were so much greater than their opponents.122  

One wonders whether the BHR movement might not be subjecting itself to
the same Pyrrhic victory.  The specific challenges are two-fold. First, just like
with Pyrhhus, there is some concern that the movement might be spreading itself
too thin. For instance, the BHR movement has, in many ways, made significant
advancements since the BHR agenda began to take hold on the international
scene. The issues that have mobilized scholars and practitioners have included
everything from data privacy to human trafficking. The U.N.’s mandate for the
Working Group on Business and Human Rights is a prime example of this. The
mandate set forth requests that the Working Group promote good practices, to
conduct country visits, make appropriate recommendations for access to
remedies, develop a dialogue, and more.123 The question remains then whether the
expansive mandate will lead to a diluted focus on the part of people who would
like to advance the cause.124

Second, there is a concern that the cost of winning the war itself might be too
high given the potential devastation that could be left in its wake. For instance,
Walmart is the number one employer in the world.125 Millions of consumers rely
on Walmart due to its relatively low-cost options for everyday household
products and produce.126 What if there was a situation where Walmart was tried
for crimes against humanity and lost? What would be the ripple effects
throughout the economy? Part of the reason why the BHR agenda suffers is
because there is often another battle that happens when corporations go into
developing countries.127 On the one hand there are people in the community who

121. Id.

122. Id. Notice the parallels?  One wonders if the same fate will befall human rights

organizations and NGOs whose resources are traditionally dwarfed by their corporate adversaries. 

123. This echoes the mandate of the Working Group’s predecessor, UN Special Rapporteur

John Ruggie. According to Prof. Ruggie, the scope of the issues was so vast and broad that it turned

his original two-year term into an eight-year affair. Working Group on the issue of human rights

and transnational corporations and other business enterprises, U.N. HUM. RTS.  OFF. OF THE HIGH

COMMISSIONER, https://www.ohchr.org/en/issues/business/pages/wghrandtransnationalcorporations

andotherbusiness.aspx [https://perma.cc/HEC6-268W].

124. One wonders, for instance, if the reason why the ICC has still not brought a corporate

executive to trial is an outgrowth of issues such as this. 

125. Alexander E.M. Hess & Robert Serenbetz, 15 biggest employers in the world, USA

TODAY (Aug. 24, 2014), https://www.usatoday.com/story/money/business/2014/08/24/24-7-wall-st-

biggest-employers/14443001/ [https://perma.cc/WFL8-QQ58].

126. This is particularly true in rural communities where the area Walmart is sometimes the

only source of fresh produce. See Ed Pikington, What happened when Walmart left, THE

GUARDIAN, https://www.theguardian.com/us-news/2017/jul/09/what-happened-when-walmart-left

[https://perma.cc/2ZTA-P7KQ].

127. See, e.g., Ariadna Tovar & Marianne Betrand, Maxima Acuña: the story of how a

business impacted human rights defenders in Dying To be Heard (forthcoming) (discussing the



2019] IT’S COMPLICATED 243

get upset because the company is doing very bad things.  On the other hand, there
are a significant number of people who would oppose the actions of the advocates
because the corporation is bringing in jobs. This is at the heart of the fear of
punishing corporations – because in the end they are legal fictions, they are not
individuals and yet it’s the flesh and blood employees and impacted communities
that are often harmed. As a result, sometimes you can find yourself as an
advocate getting everything you want and still losing.  Why? Because the meta-
person that is the TNC picks up and moves to another location.   

CONCLUSION

As noted previously, TNCs are not in fact one single monolithic, but rather
a series of subsidiaries and other legal entities that are organized under the laws
of many different jurisdictions. The idea of examining the “IT” that makes up the
TNC narrative then grows difficult you realize that the IT is really a series of its. 
On a basic, practical level this makes investigating the corporation a time-
consuming and expensive affair. This is multiplied further when one considers
that each of these subsidiaries is located in a different jurisdiction with a different
set of procedural rules and legal precedents (not to mention limitations on
interjurisdictional cooperation). 

As such, using the Principles to move towards greater TNC accountability
may be the best approach. It allows prosecutors to work within the system that
they have without taking the drastic step of trying to bring a TNC to justice128

under international law. It also allows investigators to work within the current
state-centered model.129 However, we must acknowledge the cost. Specifically,
our current system allows for TNCs to pick up and go anywhere it wants if it is
unhappy with the outcome (something that may be less likely to happen when the
TNC is prosecuted in an international venue). As such, it may be that the best
solution would be better comity within the various state parties to achieve justice
for these people while still allowing corporations to provide much needed
development. Otherwise, a Pyrrhic victory will ensue.

story of Maxima Acuna, a human rights defender, who is vilified by members of her own

community). See also Paul Krugman, Coal Country is a State of Mind, N.Y. TIMES (Mar. 31, 2017),

https://www.nytimes.com/2017/03/31/opinion/coal-country-is-a-state-of-mind.html

[https://perma.cc/H94G-BFTV] (explaining why West Virginia, a state where coal is no longer the

dominant industry, still focuses its interests and loyalties around it).

128. There is an irony to the position being made here: if corporations want the benefit of

other laws, then they should be subject to criminal statutes.

129. Surya Deva, Human Rights Violations by Multinational Corporations and International

Law: Where From Here?, 19 CONN. J. INT’L L. 1 (2003); Larry Cata Backer, The Emerging

Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric

Global Orders, 31 BYU J. PUB. L. 1 (2016).