Responsibility for Complicity: The Problem of “Neutral” Business Acts

Carrying out professional activities, individuals and companies can – typically without the purpose to – contribute to crimes and human rights violations. Originating in German Criminal Law, the term “neutral acts” emphasizes the normal appearance of such activities, linking it to an alleged normative neutrality ruling out responsibility for complicity. To what extent business-related contributions to crime should enjoy immunity from accountability is a timely issue for domestic and international law, as well as soft law aiming at preventing corporate complicity in human rights violations. Conceptual blind spots remain, though. This essay takes a recent legal case of complicity in National Socialist crimes through “neutral” acts as an opportunity to investigate the current state of debate and contribute to it. It critically analyzes some leading arguments for the normative neutralization of business-related assistance to crime. It focuses on three types of arguments: weighing up interests, alleged lack of subjective liability, and alleged lack of objective liability. In doing this, it explores two related issues: first, the question of a possible duty-to-knowledge acquisition for individuals and companies. Second, it criticizes a specific interpretation of increased risk that may lead to misperceptions of responsibility which, stepping out of the technical legal debates, may affect the corporate, political, and broad social culture.