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International criminal bodies

Published online by Cambridge University Press:  06 July 2009

HARRY D. GOULD
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Abstract

One of the insights of Constructivism is that our world is, in part, made by what we say about it. We make things what they are by saying what they are. One way is through the use of metaphor; by asserting that one thing is another thing. Does our saying that a state is a person make it a person?

A way to intervene in this discussion is by addressing it not in the abstract, but guided by a cognate question: Can states commit crimes, a uniquely human act? If states can commit and be liable for crimes, they must be able to form intents. If they are indeed persons in the relevant sense, this is no problem; if their personality is trope, however, attribution of criminal responsibility becomes tenuous.

To analyse the issue, I trace the development of the trope of speaking of a group as if it were an individual from Roman Law, through to Hobbes, corporate law and IR Theory. Much hinges on Hobbes' elision of ‘body’ and ‘person’. I conclude that it is too much to expect of a metaphor that it act, that it have reasons, beliefs, and desires, and that these sum to intentions.

Type
Research Article
Information
Review of International Studies , Volume 35 , Issue 3 , July 2009 , pp. 701 - 721
Copyright
Copyright © British International Studies Association 2009

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References

1 Nicholas Onuf, World of Our Making (Columbia: University of South Carolina Press, 1989); Onuf, ‘Constructivism: A User's Manual’ in Vendulka Kubálkova, Nicholas Onuf and Paul Kowert (eds), International Relations in a Constructed World (Armonk: M. E. Sharpe, 1998). pp. 58–78.

2 Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), pp. 193–245; ‘Forum on the State as a Person’, Review of International Studies, 30 (2004),pp. 255–316; Peter Lomas, ‘Anthropomorphism, Personification and Ethics: A Reply to Alexander Wendt’, Review of International Studies, 31 (2005), pp. 349–55; Wendt, ‘How Not to Argue Against State Personhood: A Reply to Lomas’, Review of International Studies, 31 (2005), pp. 357–60.

3 David Miller has posed complementary questions regarding the responsibility of nations. David Miller, ‘Holding Nations Responsible’, Ethics, 114 (2004), pp. 240–68. Toni Erskine, however, has explicitly rejected the inclusion of nations as ‘moral agents’. Toni Erskine, ‘Assigning Responsibilities to Institutional Moral Agents: The Case of States and Quasi-States’, Ethics and International Affairs, 15 (2001), p. 72.

4 As Kelsen has stated the issue; ‘The question whether a certain behaviour, particularly whether a certain act, a certain function is an act or function of the state, that is, whether it is the state as a person that performs an act or exercises a function, is not a question directed toward the existence of a fact […] If the question did have this meaning, it could never be answered affirmatively. For in fact it is never the state but always a certain individual who is acting.' Hans Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967 (2005), p. 291.

5 Samuel Pufendorf, De Jure Naturae et Gentium Libro Octo, I.1.13; De Officio Hominis et Civis Libro Duo, II.6.10. The issue is also treated in David Boucher, ‘Resurrecting Pufendorf and Capturingthe Westphalian Moment, Review of International Studies, 27 (2001), pp. 566–7. Jean-Jacques Burlamaqui basically restates the Hobbes – Pufendorf position: The Principles of Natural and Political Law, II.6.iv.

6 G. W. F. Hegel, Philosophy of Right and Law, in Carl J. Friedrich, (ed.), The Philosophy of Hegel, (New York: Random House, 1954), p. 320.

7 ‘Articles on Responsibility of States for Wrongful Acts’, Arts. 4–11; James Crawford, The International Law Commission's Articles on State Responsibility (Cambridge: Cambridge University Press, 2002), pp. 91–123; James Crawford and Simon Olleson, ‘The Nature and Forms of International Responsibility’ in Malcolm Evans (ed.), International Law (Oxford: Oxford University Press, 2006), pp. 454–8; Kelsen, Pure Theory, p. 292; Hans Kelsen, General Theory of Law and State (New Brunswick: Transaction Publishers, 1949 (2006)), p. 106.

8 Nina Jørgensen, The Responsibility of States for International Crimes (Oxford: Oxford University Press, 2000), pp. 79, 279–80.

9 In the ICJ's recent Genocide Case for example the Court clearly stated that even in the case of Genocide, the responsibility of a state would not be criminal in nature. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide para. 167.

10 The definitive account is to be found in Marina Spinedi, ‘International Crimes of State: The Legislative History’ in Joseph Weiler, Antonio Cassese and Marina Spinedi (eds), International Crimes of State: A Critical Analysis of the ILC's Draft Article 19 on State Responsibility (New York: Walter de Gruyter, 1989), pp. 7–138. Crawford (2002) pp. 16–20 provides detailed discussion of the flaws in Article 19's framing which contributed to its exclusion. See also Jørgensen, The Responsibility of States, pp. XI–XV; 175–84, and the essays by Abi-Saab, Graefrath, Dupuy, Stein, Cassese, Aldrich and Sinclair in Weiler, et al. International Crimes of States. For a contrasting account, see Luis Molina, ‘Can States Commit Crimes? The Limits of Formal International Law’ in Ross, (ed.), Controlling State Crime (New Brunswick: Transaction Publishers, 2000), pp. 349–88.

11 Georges Abi-Saab, ‘The Uses of Article 19’, European Journal of International Law, 10 (1999),pp. 345–6. Wyler, however, asserts, ‘According to many commentators, the distinction introduced in Article 19 […] between ‘crimes’ and ‘delicts’ led to a ‘criminalization’ of responsibility.’ Eric Wyler, ‘From “State Crime” to Responsibility for Serious Breaches of Obligations under Peremptory Norms of General International Law’, European Journal of International Law, 13 (2002), p. 1148.

12 Alain Pellet, ‘Can a State Commit a Crime? Definitely, Yes!’, European Journal of International Law, 10 (1999), p. 432.

13 Giorgio Gaja, ‘Should all References to International Crimes Disappear from the ILC Draft Articles on State Responsibility?’, European Journal of International Law, 10 (1999), p. 365.

14 Crawford, The International Law Commission's Articles, p. 19.

15 Mortimer Sellers, ‘International Legal Theory’, Jus Gentium, 11 (2005), p. 67.

16 On the nature of legal fictions, see: Lon L. Fuller, Legal Fictions (Stanford: Stanford University Press, 1967); Sanford Schane, ‘The Corporation is a Person: The Language of a Legal Fiction’, Tulane Law Review, 61 (1987); Note, ‘What We Talk About When We Talk About Persons: The Language of A Legal Fiction’, Harvard Law Review, 114 (2001), pp. 1750–4.

17 P. W. Duff, Personality in Roman Law (Cambridge: Cambridge University Press, 1938), p. 28.

18 Duff, Personality, pp. 21, 35, 50, 72, 223; Andrew Borkowski and Paul du Plessis, Textbook on Roman Law 3rd edn (Oxford: Oxford University Press, 2005), p. 87; Barry Nicholas, An Introduction to Roman Law (Oxford: Oxford University Press, 1996 (1962)), p. 60. French, however, holds that anything that was allowed to be a party to a legal dispute was referred to as a person, but offers no textual support. Measured against the abundance of textual support Duff provides, French's assertion cannot hold. Peter French, Collective and Corporate Persons (New York: Columbia University Press, 1984), p. 34.

19 Duff, Personality, pp. 21, 26 commenting on Ulpian in D.4.2.9.1.

20 Duff, p. 33. Oakeshott famously also includes societates, associations of ‘individuals each of whom conditions his actions to accord with the terms of a joint agreement.’ These are just as well rendered as collegia. Michael Oakeshott, ‘On the Character of a Modern European State’, in Michael Oakeshott (ed.), On Human Conduct (Oxford: Oxford University Press, 1975), pp. 199–266.

21 Duff, Personality, pp. 33, 50, 62, 70, 172; Hans Julius Wolff, Roman Law, (Norman: University of Oklahoma Press, 1951), p. 235.

22 Duff, Personality, pp. 37, 72.

23 Ibid., pp. 171 and 175.

24 Hale cites similar passages from I Corinthians 12:12–27. David G. Hale, ‘Analogy of the Body Politic’, in Philip Wiener (ed.), Dictionary of the History of Ideas, 1 (New York: Scribner and Sons. 1974), pp. 68–70.

25 Kantorowicz, The King's Two Bodies, pp. 195–6; Anton-Herman Chroust, ‘The Corporate Idea and the Body Politic in the Middle Ages’, The Review of Politics, 9 (1947), p. 431.

26 Cited in Ernst Kantorowicz, The King's Two Bodies, (Princeton: Princeton University Press, 1997 (1957)), p. 194.

27 Chroust documents similar accounts in Remigio de' Girolami and Augustinus Triumphus of Ancona. Chroust, ‘The Corporate Idea’, pp. 432–3.

28 Kantorowicz, The King's Two Bodies, pp. 200–2.

29 Judgment of the International Military Tribunal for the German Major War Criminals, Cmd. 6964, at 41. Cited in Klabbers, ‘The Concept of Legal Personality’, Jus Gentium, 11 (2005), p. 45.

30 Crawford and Olleson, ‘The Nature and Forms of International Responsibility’, p. 460.

31 Hale, ‘Analogy of the Body Politic’, pp. 68–70.

32 Kantorowicz, The King's Two Bodies, p. 210.

33 Ibid., pp. 212–23.

34 Chroust, ‘The Corporate Idea’, pp. 445, 447.

35 Ibid., p. 441.

36 Hannah Pitkin, ‘Hobbes's Concept of Representation – I’, American Political Science Review, 58 (1964), pp. 328–40; Hannah Pitkin, ‘Hobbes's Concept of Representation – II’, American Political Science Review, 58 (1964), pp. 902–18; Quentin Skinner, ‘Hobbes and the Purely Artificial Person of the State’, in Quentin Skinner, Visions of Politics v. III: Hobbes and Civil Science (Cambridge: Cambridge University Press, 2002), pp. 177–208; Quentin Skinner, ‘Hobbes on Representation’, European Journal of Philosophy, 13 (2005), pp 155–84. See also, inter alia, Runciman, Pluralism,pp. 6–33, David Runciman, ‘Moral Responsibility and the Problem of Representing the State’ in Toni Erskine (ed.), Can Institutions Have Responsibilities? Collective Moral Agency and International Relations (Basingstoke: Palgrave. 2003), pp. 41–8, and David Copp, ‘Hobbes on Artificial Persons and Collective Action’, The Philosophical Review, 89 (1980), pp. 579–606.

37 Thomas Hobbes, Human Nature XIX.7; De Cive V.7; Leviathan, Introduction.

38 Skinner (2002), p. 197.

39 Hobbes, Human Nature XIX.10; the quoted phrase Skinner takes from Cicero's ‘De Officis’ I.XXXIV. Skinner, ‘Hobbes and the Purely Artificial Person’, p. 199.

40 Skinner, ‘Hobbes and the Purely Artificial Person’, pp. 192–3.

41 Hobbes, Leviathan I.XVI.1-3; De Homine XV.1.

42 Hobbes, Leviathan I.XVI.13; De Homine XV.2.

43 Hobbes, Leviathan I.XVI.4.

44 Hobbes, De Corpore Politico XX.2; De Cive V.9; Leviathan I.XVI.14; De Homine XV.2.

45 Ibid., Leviathan, I.XVI.5; De Homine, XV.2.

46 Torbjørn Knutsen, A History of International Relations Theory 2nd edn (Manchester: Manchester University Press, 1997), p. 105.

47 Hobbes, De Cive, V.9; Leviathan, I.XVI.13–4.

48 Hobbes, Leviathan, I.XVI.13.

49 Hobbes, Leviathan, I.XVII.13.

50 Hobbes, De Cive, VI.19.

51 Hobbes, Leviathan, I.XVI.5. Emphasis added.

52 Richard Tuck, The Rights of War and Peace (Cambridge: Cambridge University Press), pp. 158–65.

53 Runciman seems ultimately to disagree with this conclusion. Runciman, ‘Moral Responsibility’,p. 48.

54 Arthur Machen, ‘Corporate Personality’, Harvard Law Review, 24 (1911), p. 263. Emphasis added.

55 Kelsen, Pure Theory, p. 178.

56 Mark M. Hager, ‘Bodies Politic: The Progressive History of Organizational “Real Entity” Theory’, University of Pittsburgh Law Review, 50 (1989), p. 578. John Dewey tried to set aside the debate, andH. L. A. Hart also tried to move jurisprudence beyond the question ‘what is a corporation’. John Dewey, ‘The Historic Background of Corporate Legal Personality’, Yale Law Journal, 35 (1926),p. 655; H. L. A. Hart, ‘Definition and Theory in Jurisprudence’, in H. L. A. Hart, Ethics in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), p. 43.

57 Frederic Maitland, ‘Moral Personality and Legal Personality’, Journal of the Society of Comparative Legislation, 6 (New Series) (1905), p. 195. Both Laufer and Horwitz identify this position less with nominalism than methodological individualism. William S. Laufer, Corporate Bodies and Guilty Minds (Chicago: The University of Chicago Press, 2006), p. 11. Morton Horwitz, The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy (Oxford: Oxford University Press, 1992), p. 72.

58 Machen, ‘Corporate Personality’, p. 255. Contrast Schane's account: ‘Legal relations […] take place between one person and another. Now, individuals may enter into an association, but the resulting group has no independent existence […] and unlike a natural person, it has no preexisting rights. Only in contemplation of the law does it become a legal entity – a persona ficta – an artificial, moral or juristic person.’ Schane, ‘The Corporation is a Person’, p. 565.

59 Machen, ‘Corporate Personality’, p. 257. Hager, ‘Bodies Politic’, p. 580.

60 Schane, ‘The Corporation is a Person’, p. 566.

61 Morris Cohen, ‘Communal Ghosts and Other Perils in Social Philosophy’, The Journal of Philosophy, Psychology and Scientific Methods, 16 (1919), p. 678–81; Laufer, Corporate Bodies, p. 47.

62 Harold Laski, ‘The Personality of Associations’, Harvard Law Review, 29 (1916), p. 406.

63 Ernst Freund, The Legal Nature of Corporations (Chicago: University of Chicago Press, 1897), p. 52. Quoted in Borkowski, The Transformation of American Law, p. 102.

64 Laski, ‘The Personality’, p. 406. Emphasis added. Compare Lord Reid's 1972 decision in the Tesco Supermarkets Case, ‘A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these […]’ which illustrates the longevity of this view. Eric Colvin, ‘Corporate Personality and Criminal Liability’, Criminal Law Forum, 6 (1995), p. 5.

65 ‘A corporation exists as an objectively real entity […] the law merely recognizes and gives legal effect to the existence of the entity. To confound legal recognition of existing facts with creation of facts is an error […] A corporation is an entity – not imaginary or fictitious, but real, not artificial, but natural.’ Machen, ‘Corporate Personality’, p. 156; 161–2. Emphasis added. On Gierke generally, see David Runciman, Pluralism and the Personality of the State (Cambridge: Cambridge University Press, 1997), pp. 34–63.

66 Colvin, ‘Corporate Personality’, p. 2.

67 Machen, ‘Corporate Personality’, pp. 161–2.

68 Ann Foerschler, ‘Corporate Criminal Intent: Toward a Better Understanding of Corporate Misconduct’, California Law Review, 78 (1990), p. 1291; Hart, ‘Definition and Theory’, p. 45.

69 Laski, ‘The Personality of Associations’, pp. 413–5.

70 Jørgensen, ‘The Responsibility of State’, p. 75; Lee, ‘Corporate Criminal Responsibility’, p. 9; R.E. Ewin, ‘The Moral Status of the Corporation’, Journal of Business Ethics, 10 (1991), pp. 749–52. This is, of course, the model that international law follows in the Act of State Doctrine.

71 Colvin, ‘Corporate Personality’, p. 2; Radin, p. 663.

72 Colvin, ‘Corporate Personality’, pp. 1–2. Compare Kelsen: ‘It is the action or refrainment from action by an individual that is interpreted as the action or refrainment of the corporation – ‘attributed’ to the corporation. The human being through whom the corporation acts as a juristic person, and whose behaviour is attributed to the corporation, is called the ‘organ’ of the corporation.’ Kelsen, Pure Theory, p. 175, see also p. 177 and p. 181 where Kelsen ultimately concludes, however, that juristic persons are ‘not capable of committing a delict’. Earlier, however, Kelsen was willing to grant juristic persons the capacity to commit both civil and criminal delicts. Kelsen, General Theory, pp. 103–6.

73 Colvin, ‘Corporate Personality’, pp. 8–9. Emphasis added. This decision actually resembles what Jørgensen (following Andrews) calls the ‘Identification Theory’; in it the ‘basis for liability is that the acts of certain person are actually the acts of the corporation. ‘These people are not seen as the agents of the company, but as its very person, and their guilt is the guilt of the company.”’ Jørgensen, The Responsibility of States, p. 75 quoting J. Andrews, ‘Reform in the Law of Corporate Liability’, Criminal Law Review, 20 (1973), pp. 91–2.

74 May, The Morality of Groups, p. 41.

75 Ibid., p. 91.

76 This is taken from American Medical Association v. US (1942) cited in Foerschler, ‘Corporate Criminal Intent’, p. 1291.

77 Celia Wells, Corporations and Criminal Responsibility 2nd edn (Oxford: Oxford University Press, 2001), p. 71. Wells quotes Brent Fisse and John Braithwaite, ‘The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability’ Sydney Law Review, 11 (1988),p. 483.

78 Erskine, ‘Assigning Responsibilities to Institutional Moral Agents’, pp 70–2.

79 French, Collective and Corporate Responsibility, p. 39.

80 Ibid., p. 42.

81 Foerschler, ‘Corporate Criminal Intent’, pp. 1302–3. Clarkson's approach is similar. C.M.V. Clarkson, ‘Kicking Corporate Bodies and Damning Their Souls’, The Modern Law Review, 59 (1996), pp. 557–72.

82 Colvin, ‘Corporate Personality’, p. 24.

83 Ibid., pp. 33–4.

84 Laufer, Corporate Bodies, pp. 77–83. Emphasis added.

85 Colvin, ‘Corporate Personality’, p. 40.

86 Cohen, ‘Communal Ghosts’, p. 681.

87 Machen, ‘Corporate Personality’, p. 165.

88 Colvin, ‘Corporate Personality’, p. 15. Emphasis added.

89 Radin, ‘The Endless Problem’, p. 661. Emphasis added.

90 French, Collective and Corporate Persons, p. 188; Clarkson, ‘Kicking Corporate Bodies’, p. 563.

91 Lang offers one account of how this might be justified. Anthony Lang, ‘Crime and Punishment: Holding States Accountable’ Ethics and International Affairs, 21 (2007), pp. 239–57.

92 Donald Davidson, ‘Intending’, in Davidson, Essays on Actions and Events (Oxford: Oxford University Press, 1980), pp. 83–102.

93 Malcolm addresses Hobbes' relationship with the Reason of State literature. Noel Malcolm, Reason of State, Propaganda, and the Thirty Years' War (Oxford: Clarendon Press, 2007), pp. 92–123.

94 Maurizio Viroli, From Politics to Reason of State (Cambridge: Cambridge University Press, 1992); Richard Tuck, Philosophy and Government: 1572–1651 (Cambridge: Cambridge University Press, 1993), pp. 31–64; Peter Burke, ‘Tacitism, Scepticism, and Reason of State’, in J. H. Burns and Mark Goldie (eds), The Cambridge History of Political Thought 1450–1700 (Cambridge: Cambridge University Press, 1991), pp. 479–98; Edward Keene, International Political Thought: A Historical Introduction (Cambridge: Polity Press, 2005), pp. 98–118; Jonathan Haslam, No Virtue Like Necessity: Realist Thought in International Relations since Machiavelli (New Haven: Yale University Press, 2002), pp. 17–88.

95 Wendt, ‘The State as a Person’, pp. 306–11.

96 Kelsen, Pure Theory, p. 356; c.f. p. 106. This position represents a complete reversal of his earlier arguments. Writing about the prosecutions after the Second World War he stated, ‘If it is possible to impute physical acts performed by individuals to the State although the State has no body, it must be possible to impute psychic acts to the State although the State has no soul.’ Hans Kelsen, ‘Collective and Individual Responsibility in International Law with Particular Respect to the Punishment of War Criminals’, California Law Review, 31 (1942–1943), pp. 530, 533. Quoted in Jørgensen, The Responsibility of States, p. 281.

97 Maitland, ‘Moral Personality’, p. 200 offers a similar formulation.

98 Jorgensen, The Responsibility of States, pp. 170–1.

99 Hugo Grotius, De Jure Belli ac Pacis, II.21.7.2 quoted in Lang, ‘Crime and Punishment’, p. 15.