Criminal Liability of Transnational Legal Persons with Emphasis on the Afghanistan Penal Code and the Statute of the International Criminal Court

Abstract

Legal persons do not have a long historical background in the realm of criminal liability and have only entered the discourse of criminal law in recent decades. There is no consensus on the attribution of criminal responsibility to such entities, and legal scholars have expressed differing opinions on the matter. The Afghan legislator, considering various perspectives, has primarily adopted the employer and superior responsibility theories. Accordingly, legal persons can be classified as either domestic or transnational, with international organizations serving as examples of the latter. Given that international organizations wield significant power at the global level, domestic courts are often incapable of prosecuting their offenses effectively. This raises the question of which actions by these entities are subject to legal accountability and whether this issue has been addressed not only in the Afghanistan Penal Code but also in the Rome Statute. The prosecution of crimes committed by transnational legal persons necessitates the involvement of an international tribunal. Within this framework, the present study employs a descriptive-analytical approach and a comparative method, utilizing library-based sources to examine the criminal liability of transnational legal persons. However, the International Criminal Court (ICC) does not recognize the criminal liability of transnational legal persons. Meanwhile, the Afghan legislator, in certain provisions of the Penal Code, has addressed international legal persons but has only defined criminal liability for terrorist organizations; excluding other entities from the scope of criminal responsibility under Afghan law.