The Nuremberg Principles in the Context of Africa: The Theory and Practice of Individual and Corporate Criminal Responsibility

Summary

INTRODUCTION

The Nuremberg principle of individual criminal responsibility has played a foundational role in international criminal law. Post-Second World War treaties on criminal liability have all embodied this principle. Based on this principle, the post-Second World War trials began a trend where individuals have been held accountable through prosecution for violating established norms of international law. The prosecution of individuals responsible for international crimes has also been conducted in domestic courts of the country in which the crimes occurred, in international tribunals or in the domestic courts of other countries through the exercise of universal jurisdiction. Thus, international criminal law has historically been premised on the principle of individual criminal responsibility.

The practice in post-conflict states of Africa has also adopted the principle of individual criminal liability, albeit with different theoretical approaches. The ad hoc tribunals in Rwanda and the hybrid court of Sierra Leone have particularly pursued individual criminal liability for crimes committed in the respective state. There have also been several efforts to enforce the principle of individual criminal responsibility for international crimes in the national courts of some post-conflict states. These have been faced with numerous challenges alongside a few successful instances. Traditional African approaches to justice in some post-conflict states have also embraced individual accountability for past crimes, even though some practices also have elements of collective responsibility. It is the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (hereinafter the Malabo Protocol) that has sought to expand the principle of criminal liability for international crimes to expressly provide for corporate criminal liability for international crimes. The Malabo Protocol is the first international treaty to expressly incorporate the doctrine of corporate criminal liability. This is a significant step towards narrowing down the gap of impunity for international and transnational crimes committed by corporations. This chapter argues that although the principle of individual criminal responsibility is essential in fighting impunity in Africa, expanding it to include corporate criminal liability significantly seals the impunity gap for international crimes committed on the African continent. The study undertaken in this chapter is convinced by the argument that most of the conflicts in Africa are resource-based and that these are fuelled by multinational corporations (MNCs) that commit heinous crimes in the process of extracting and exporting the resources, often with impunity.