Recent Posts

Guest Post: Gabor Rona on Obama’s Executive Action on Immigration

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

Over at Lawfare Jack Goldsmith provides a somewhat more nuanced analysis of President Obama’s executive action on immigration than the inflammatory rhetoric flowing from some quarters, see here, here, and here. Jack nowhere uses the words “impeachment” (except to say that it appears to be off the table) or “emperor” in reference to the president. When Jack notes “President Obama’s transformation, in less than three weeks, from an irrelevant lame duck to an overbearing threat to our constitutional order,” I assume it’s a derisive reaction to both hyperbolic extremes. In fact he says that Obama’s move is likely constitutional, but possibly violates “sub-constitutional norms,” according to which congress and the president are supposed to work together to solve big, tough domestic issues.

Here’s why I think Jack’s comparatively mild criticism is still off base.

First, let’s acknowledge the important difference between thwarting the expressed will of congress and merely circumventing a dysfunctional congress. The studied tantrums of a few legislators should not be confused with congressional consensus. The constitution quite clearly provides the president with the power to dismiss congressional will – it’s called the veto power. (Of the last ten presidents, the five Republicans have hit the veto button twice as often as the five Democrats, says Wikipedia.) And since the founders thought it prudent to empower the president to tell congress to shove it, isn’t it a bit of an overreaction to even ask if the sky is falling because the president has used constitutional authority to fill a vacuum where congress has been absent?

Perhaps you’re thinking “What does he mean ‘congress has been absent?’” After all, the president is proposing to waive the application of existing law for certain classes of non-citizens. But if the president’s constitutional obligation to “take care that the laws be faithfully executed” means he must enforce every violation of every law congress passes, we’d all be in jail! (Check this out, just for fun).

The Heritage Guide to the Constitution says this about the “take care” clause:

To be sure, the extent of the faithful-execution duty is rather unclear. Plainly, the President need not enforce every law to its fullest extent. Common sense suggests that the President may enjoy some discretion in order to gauge the costs and benefits of investigation, apprehension, and prosecution.

There are at least a couple of reasons the institution of prosecutorial discretion is well established in U.S. jurisprudence. One is that the law can be a blunt instrument, so we’ve always accepted the role of human discretion in the delivery of justice. (Yes, that same prosecutorial discretion has been applied discriminatorily, but that’s a flaw that law has rightly attempted to deal with discretely, rather than through a baby-out-with-bathwater approach).

Secondly, I don’t recall a groundswell of angst about the “sub-constitutional” order when Presidents Reagan and Bush, and for that matter, every U.S. president in the last half century granted limited relief from enforcement of immigration law to one or more groups by executive action.

Finally, let’s turn the spotlight back on congress. A responsible legislative branch recognizes that laws don’t enforce themselves. Then why is there such a huge gap between the inventory of laws and the infrastructure/resources required to enforce them? Perhaps because lawmakers expect the exercise of executive discretion. And perhaps because a lot of lawmaking is really about posturing rather than governing. (My favorite example is the Office of Foreign Assets Control’s enforcement of the Trading with the Enemy Act/Cuba travel embargo, for which alleged violators are entitled to a hearing, except that no one bothered to create a mechanism for hearings. Ask for a hearing and the case is dismissed. Have you seen the outrage at this hypocrisy? Neither have I.) So if congress is serious about deporting every illegal alien, then let it find and appropriate funds for that gargantuan task, as well as for jailing or fining every druggie, fraudster, tax cheat and every trader with the enemy in Havana. Only then should we hear complaints about how congressional will is being thwarted. Until then, the executive not only may, but must find principled ways of deciding what laws to enforce, and against whom.

There’s another element of the drama that Jack fails to address: we’re already in something of a constitutional crisis and it is of congress’s making. Never before had I heard leaders of the opposition party admit that their strategy is to make it impossible for the president to govern. And they’ve been pretty effective at it, albeit due in part to the present White House occupant’s acquiescence. That’s not merely “subverting the sub-constitutional order,” it’s more like a middle finger to the constitution and the national interest, however defined. In isolation, the president’s unilateral action on immigration could be seen as impolite and impolitic. But can we really say that these are not times that try America’s soul?

So what course of executive action is more harmful to the constitution and the republic? That which is legal but impolite and perhaps sets an uncomfortable “sub-constitutional” precedent? Or doing nothing while congress allows Rome to burn for political profit?

Stewart Mini-Symposium: A Response to Beth Stephens

by James G. Stewart

[James G. Stewart is an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia. His new article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, can be found here.]

Professor Beth Stephens was a pioneer in thinking about corporate accountability under the Alien Tort Statute (ATS), and a guiding light for all those emerging into a scholarly field that seemed strangely tolerant of a world without accountability in the corporate realm. When economists and political scientists problematized accountability as too costly or controversial, hers was the authoritative voice reminding us that a world without accountability is perverse. Thus, it is a great honor for me that she agreed to criticize my recent contribution to our common attempt at promoting accountability where there is usually (almost) none.

To begin, I fear that Stephens may have misunderstood my central claim, for which I should take some responsibility. At different points, I get the impression that my article registered with her as a full-throated attack on the ATS and all those who worked so hard to develop it, as if I believed that the entire history of the Statute amounts to little more than a misguided blunder next to the flawless system of corporate criminal accountability for international crimes that was always waiting in plain sight to be deployed. This is far from my position, so I begin by clarifying this misunderstanding in case it has tainted her view of my argument, before addressing some of her more substantive concerns.

I am very much for the ATS, before and after Kiobel. My project is purely comparative. At the beginning of my article, I confirm as much by stating “I prefer to isolate the upsides of corporate criminal liability for international crimes relative to ATS litigation, in the hope of identifying a form of accountability that will operate in a more cohesive and principled fashion with the ATS and other mechanisms moving forward. This, in other words, is a comparison not critique of the ATS, which I view as hugely important.” Although I gesture at this position once or twice later, I suspect that I needed to weave the point into much more of my argument to avoid being misunderstood by my kin.

If my piece gives the impression that I view my ATS friends and colleagues as “short-sighted” in a pejorative sense, this is an unwelcome outcome I attempted to guard against in my drafting. In writing the paper, I was careful to insist that ATS scholars and practitioners “understandably” left out ideas that emanate from the criminal law. My recurrent use of the word “understandably” was intended to recognize that there was never any obvious reason that even the most brilliant experts in ATS would also be familiar with the intricacies of, say, the German theory of aiding and abetting. How could they know? If these issues bubble to the surface of these discussions now, it’s only because German theory has permeated ICL in ways that are largely unthinkable for American civil litigation. No one can see around corners.

There is a deeper insight in this history that is so crucial for questions about corporate responsibility moving forward. David Kennedy is right that we all unavoidably have our intellectual blindspots. To deal with my own, I have tried hard within the article to call repeatedly for alternative, contradictory, interdisciplinary perspectives as part of my wider campaign for greater scholarly investment in these hugely important global questions. At the same time, I have also actively sought out the frank criticism of the world’s leading scholars (in slightly different fields) who see these things differently, as this series of blogs attests. I don’t believe that any meaningful attempt at regulating something as colossal as global commerce can afford to do otherwise—there’s too much our individual disciplinary biases blind us to.

Next, Stephens argues that the “discovery” metaphor I employ to describe the recent debut of corporate criminal liability for international crimes in practice unjustifiably leaves out the valuable work of organizations like the International Commission of Jurists and the International Corporate Accountability Roundtable on these questions, but I very much see them as part of the discovery not separate from it. (more…)

Stewart Mini-Symposium: Two Cheers for Stewart

by Beth Stephens

[Beth Stephens is a Professor at Rutgers Law.]

Two cheers for James Stewart and his forthcoming article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. Stewart offers an enthusiastic endorsement of what could be an extremely effective mechanism to hold corporations accountable for egregious human rights abuses: domestic criminal prosecutions in their home states. Stewart’s comparative analysis of the Alien Tort Statute (ATS) is less sure-footed, however, and, for that failing, I withhold my third cheer.

Stewart ranges wide through criminal law theory and practice to defend the viability and desirability of domestic criminal prosecutions for international law crimes. He explains that many states already have the domestic statutes necessary to authorize criminal prosecution of domestic corporations for international law violations such as war crimes and crimes against humanity committed in other states. This statutory foundation, along with the focus on prosecuting domestic corporations, should mitigate concerns about extraterritoriality such as those that have arisen in both civil claims under the Alien Tort Statute and universal jurisdiction prosecutions against natural persons. Criminal prosecutions, he explains, also tap into a rich set of liability standards that are potentially well-suited to the complex interactions of a corporation and its employees.

Stewart correctly identifies some of the weaknesses of ATS litigation and the commentary it triggered. But many of those weaknesses result from applying an idiosyncratic eighteenth century statute to modern human rights abuses. For example, Stewart decries a rather unproductive dispute over the content of the international law standards governing aiding and abetting. He does not acknowledge, however, that the debate was triggered by the sui generis structure of the ATS, which grants jurisdiction over violations of international law, but provides no guidance as to a host of crucial issues, including the appropriate standards of liability. Moreover, commentators and some judges suggested applying a flexible federal common law liability standard to ATS cases, which might have resembled the analysis he favors. Many courts rejected that approach, however, leading to the narrow debate over the meaning of knowledge and purpose in international law. The “vociferous interest in complicity” that Stewart decries [24] was a product of the minimalist structure of the ATS and judicial decisions that further limited the range of possibilities, not lack of interest in or ignorance of alternative liability approaches.

Crucially, similar statutory gaps and judicial bottlenecks are likely to arise in domestic criminal prosecutions, as each legal system applies its particular statutes, procedural rules, and theories of liability. These problems, of course, are consequences of a domestic law response to human rights abuses. But, having failed to recognize the impact of its domestic law origins on the trajectory of the ATS, Stewart also fails to grapple with the likely impact of idiosyncratic domestic law variations on the local criminal prosecutions that he favors. (more…)

ICC/Palestine Event at Doughty Street Chambers

by Kevin Jon Heller

London-area readers interested in the ICC and Palestine might want to attend the following event, which is co-sponsored by Chatham House and Doughty Street Chambers (where I’m an academic member). It should be good, despite my participation:

Milestones in International Criminal Justice: The ICC and Palestine

Date: Tuesday 02 December 2014

Time: 18.00 – 19.30

Location: 54 Doughty Street, London WC1N 2LS

Venue: Doughty Street Chambers

Speakers: Elizabeth Wilmshurst, Professor Kevin Jon Heller, Professor Yaël Ronen, Stephanie Barbour, Head of Amnesty International Centre for International Justice

CPD: 1.5

Fee: Free

Availability: Book a seat

In 2009 Palestine lodged a declaration accepting the jurisdiction of the ICC but only two years later the ICC Prosecutor decided to close its preliminary examination of the situation in Palestine because of uncertainties surrounding Palestine’s statehood.

The meeting will explore the implications of the UN General Assembly’s decision to accord to Palestine the status of non-member observer state in 2012, issues concerning Palestine’s prospective accession to the Rome Statute, and the possibility for Palestine to lodge a retroactive declaration giving the Court jurisdiction over Israeli military operations in Gaza such as ‘Cast Lead’ and ‘Protective Edge’.

Please note this event will be followed by a drinks reception.

This event is held in association with Doughty Street Chambers and is accredited with 1.5 CPD points.

Hope to see (some of) you there!

Stewart Mini-Symposium: A Response to Steven Ratner

by James G. Stewart

[James G. Stewart is an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia. His new article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, can be found here.]

Steven Ratner enjoys the unequalled distinction of being one of the world’s leading scholars in both international criminal justice and the theory of corporate responsibility for human rights violations. As such, it is a great privilege to engage with his criticisms of my recent paper. Ratner offers three core criticisms of my article, protesting that corporate criminality is not quite the promising terrain I posit. To my reading, the first of these criticisms amalgamates an array of shorter points that I treat briefly given space constraints, whereas the latter two deal more with retribution as a basis for corporate accountability and the limits of ICL as a vehicle for ensuring accountability in the field of business and human rights. I deal with each of these three sets of thoughtful criticisms in turn.

Ratner’s first category raises a cluster of shorter objections. In the interests of space, I respond to several briefly here in bullet form, without I hope seeming dismissive of important questions that require far greater discussion than I can deliver presently:

  • Ratner suggests that my article is a “response to the demise of the ATS vehicle.” Actually, this research spans eight years and would still hold true if the US Supreme Court had reached the diametrically opposite conclusion in Kiobel. Mostly, it is a reply to the experience of investigating atrocities in Africa, not a response to the demise of the ATS at all.
  • Ratner argues that “ICL is not an alternative to the ATS” and Kiobel does “not call for switching to criminal liability.” I agree. I do not argue for “switching,” but place a great deal of emphasis on thinking of ICL as part of a very wide set of regulatory initiatives and projects. I compare ICL and ATS to dispel the assumption that the two frameworks will have the same problems.
  • Ratner suggests that I think “conceptual problems in the ATS caselaw somehow doom civil liability.” This is not my view. I am careful to insist that “nothing here is an attack on the ATS as such—I view it as an important form of accountability—I merely join others in positing that it frequently needs supplementing with something stronger.”
  • Ratner argues “why assume states will pass criminal statutes (even covering obvious international crimes) covering conduct of their companies abroad”. Mostly, this horse has already bolted. As the paper shows, most states have already passed this legislation. In this sense, corporate criminal liability for international crimes mimics the ATS—both involve the “discovery” of a latent legal framework waiting to be employed;
  • Ratner argues that “it is not clear how switching to the ICL model eliminates… the very problem that Kiobel addressed. i.e., the extraterritorial reach of domestic law.” Although I acknowledge not addressing extraterritoriality in depth in my introduction, I do cite evidence from a comparative survey which concluded that 11 of 16 states surveyed have jurisdiction over international crimes perpetrated by their nationals overseas.
  • Ratner also objects that “if we think… diversity of criminal law accomplice liability standards is suboptimal, then states will need to incorporate not merely the definitions of crimes in international law into their domestic law, but also an international notion of accomplice liability.” I address this question in this paper under the sub-heading Toward a Moral Theory of Accomplice Liability, and within a separate piece recently on pluralism in international criminal law.

In his second set of criticisms, (more…)

Stewart Mini-Symposium: From the ATS to Corporate Criminality under ICL — Mind the Gap

by Steven Ratner

[Steven Ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School.]

James Stewart’s “The Turn to Corporate Criminal Liability for International Crimes” provides an important contribution in the ongoing debates regarding corporate accountability for human rights violations, a debate that has assumed even greater prominence since the publication of the UN’s Guiding Principles and an ongoing process of discussions within the UN on new strategies for businesses to respect human rights. Stewart makes three compelling points with which I think most observers of the topic would agree. First, many human rights advocates and scholars have had far too much faith in the ATS as a vehicle for accountability, leading to undue disappointment in its limited scope after Kiobel. Second, the ATS jurisprudence was marred by doctrinal confusion, the straitjacket of identifying norms as customary international law, and concerns that courts were acting at odds with legislative and executive branch policy. Third, international criminal law (ICL) offers a potentially useful tool for corporate accountability in overcoming some of the difficulties of the ATS. The acceptance of corporate criminality in many states offers a domestic law mechanism for trying corporations.

Despite my agreement with the thrust of the piece and the need to tackle what has remained a marginal method of corporate accountability, I think corporate criminality is not quite the promising terrain for corporate accountability that Stewart’s analysis suggests, for three different reasons.

Ÿ First, the link between the ATS and ICL that dominates the piece (e.g., calling them “brother[s]-in-arms”) — and thus views ICL as a response to the demise of the ATS vehicle – seems somewhat strained. The ATS was and remains a uniquely American statute – there is none other like it in the world – and despite great faith in it by some, my sense is that sophisticated human rights advocates never saw it as the major forum for even judicial accountability of corporations. ICL is not an alternative to the ATS; it is an alternative to other forms of corporate responsibility, including civil responsibility, loss of reputation, and other ways that corporations can be held to account for any human rights violations. The post-Kiobel constraints on the ATS, and the conceptual confusion before Kiobel, thus do not themselves call for switching to criminal liability. Most obviously, civil liability may be viable in other venues, as seen in the other lawsuit against Shell, in the Dutch courts.

Moreover, even if we think the conceptual problems in the ATS caselaw somehow doom civil liability, it is not clear how switching to the ICL model eliminates one serious problem with all efforts by home states to regulate corporations through national law — the very problem that Kiobel addressed, i.e., the extraterritorial reach of domestic law. While international crimes are subject to universal jurisdiction, universal jurisdiction is still only permissive and not mandatory. The duty, if there is one, for states to punish all international crimes (e.g., as suggested in the preamble to the ICC Statute) is a very weak one; the only clear duties are those in specific treaties like the Torture or Disappearances Conventions. So why assume that states will pass criminal statutes (even covering obvious international crimes) covering conduct by their companies abroad, let alone that they will criminalize conduct by foreign companies against foreigners abroad? Though certainly states have interests in regulating much overseas corporate conduct (making the Kiobel majority’s presumption completely antiquated), they still have many reasons not to criminalize extraterritorial human rights abuses, either by individuals and corporations. True, states have shown the political will to criminalize some corporate conduct abroad through the UN Corruption Convention, but that took thirty years of American pressure, dictated by a commercially driven desire to level the playing field.

It is also not clear how the move to ICL eliminates one of the other problems that Stewart thoughtfully identifies regarding the ATS caselaw – the muddied notion of accomplice liability. Although domestic criminal laws define degrees of complicity, they vary significantly throughout the world. That is not a problem if we are content with a corporate criminality regime that tolerates significant diversity across states, but in that case, why not just rely on diverse notions of civil or even administrative liability around the world? If, on the other hand, we think such diversity of criminal law accomplice liability standards is suboptimal, then states will need to incorporate not merely the definitions of crimes in international law into their domestic law, but also an international notion of accomplice liability. (more…)

Let’s Be Real: An International Anti-Corruption Court Would Never Work

by Julian Ku

I only recently learned about an effort by U.S. anti-corruption crusaders to win support for an “International Anti-Corruption Court” modeled on the International Criminal Court. US judge Mark Wolf from Massachusetts is spearheading this idea, especially with this article here, and a briefing was even held recently on Capitol Hill on the idea and the UN Human Rights Commissioner seems interested.  This is troubling since I presume these folks have other things to do and this whole IACC idea seems like a colossal waste of time.

I don’t disagree with Judge Wolf that corruption is a huge problem, and that it needs to be punished.  But I am baffled as to why he thinks creating an international court modeled on the ICC is a useful way to proceed.

Any justification of an International Anti-Corruption Court is almost certainly based on the idea that an IACC could more credibly deter corruption among government officials than national laws could on their own. As a theoretical matter, I suppose that is possible.

But, as the ICC has discovered, acquiring custody of government officials whom national governments are unwilling and unable to punish, but willing to grab and turn over, is really, really, hard.  Because relying on member states to turn over their own people is the primary (even exclusive) way an international court can acquire custody, it has always been puzzling to me that folks believed the ICC would provide much additional deterrence to potential criminal defendants.  Getting other member states to turn over defendants who escape to their jurisdiction is a bit easier, but not much.

I just don’t see any reason to think an IACC system would work better. Indeed, it would probably deter far less since it will also be overwhelmed with complaints (everyone thinks their local government guy is corrupt).  There is also various tricky questions of sovereign immunity, which seem more plausibly waiveable for serious international crimes than for even high-level corruption.

So my message to Judge Wolf:  The world doesn’t need another high-profile well-intended but largely ineffectual international court. We have plenty of those already, thank you.

So It Turns Out US Ratification of the Convention on the Rights of the Child Would Be Pointless

by Julian Ku

Internationalists critical of U.S. “sovereigntism” almost always point out that the U.S. is one of only three states in the world that has not ratified the U.N. Convention on the Rights of the Child (CRC).  Karen Attiah is the latest to take up this old talking point in the Washington Post.

The United States is part of an elite trio of non-ratifiers, along with Somalia, a country that is virtually in anarchy and consistently appears in the lowest ranks of countries in terms of human development, and South Sudan, the world’s newest country, which dealt with a fair share of civil conflict. Back in 2008, Obama said that it was “embarrassing to find ourselves in the company of Somalia, a lawless land.”

Attiah argues that the rest of world seems to be making lots of progress in improving child welfare, presumably because of the CRC, and the U.S. is falling behind. But this argument buries the lede.  Why?

Because even if the U.S. accedes to the CRC, it is almost certainly going to do so without passing new legislation or enacting new programs to live up to the treaty’s obligations. As it has done with other human rights treaties it has ratified, the U.S. will also declare the CRC non-self-executing, which means it cannot be enforced by US courts absent subsequent legislation by Congress or the States.  It is highly unlikely that US law or policy will be affected dramatically by joining the CRC if these limitations are imposed.

Rather, the argument for joining the CRC is usually not about changing US policy, but simply about the need for the US to be a member in order to credibly promote and support CRC rights and the interest of children around the world.  As an analyst from Human Rights Watch notes in the Economist, “It is awkward when the US tries to promote child rights in other countries—they all remind us that they’ve joined the treaty and we have not.”

If the data Attiah cites is accurate, though, US non-ratification isn’t having much of an impact on whatever benefits the CRC is providing.  Of course, it may be the case that US non-ratification is limiting whatever additional benefits US promotion of the CRC as a member would provide, but this seems unlikely.

Of course, if the CRC is unlikely to change US law or policy, why should anyone oppose it? This is indeed a mystery. The best case I can come up with is that CRC opponents do not trust the Congress, the President, or the courts to honor the non-self-executing pledge that the US has imposed on all other human rights treaties.  This is not totally unreasonable since some leading scholars have questioned the non-self-execution doctrine in this case.   But US courts have not yet shown any interest in forcing human rights treaties into US law against the wishes of the president and Senate, so this fear is somewhat overstated at this stage.

In the end of the day, Attiah’s reporting answers her own headline-question.  The US hasn’t ratified the CRC because doing so would not change the status quo much, if at all.  US policies domestically will be basically the same with or without the treaty, and (as Attiah points out) the rest of the world will do just fine whether or not the US joins.  So US ratification will accomplish pretty much nothing, which is as good a reason as any for why it is not going to happen.

Stewart Mini-Symposium: A Response to Samuel Moyn

by James G. Stewart

[James G. Stewart is an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia. His new article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, can be found here.]

We occupy a curious point in history. Despite an understanding that corporations enabled slavery, were at the vanguard of colonialism, either fuelled or instigated the Second World War, and now provide key inputs to modern atrocities of all stripes, there is very nearly zero accountability for corporate violations of basic human rights norms. What a pleasure, then, to have Samuel Moyn critically reflect on this sorry state of affairs we have inherited and whether corporate criminal liability for international crimes will mark an important departure from everything that came before or merely a new mechanism for distracting our gaze from the obvious structural misalignments that inhibit human dignity most acutely.

I find Moyn’s assertion that our ancestors were more ambitious that us an attractive one. In the same breadth, I often muse with students how significant it is that we live during the initial years of a permanent international criminal court, itself an unspeakably ambitious project. In 1872, Gustave Moynier, the Swiss jurist and founder of the International Committee of the Red Cross proposed an international institution of precisely this sort, which was later revisited in the Paris Peace Conference of 1919 and then the Genocide Convention of 1948. So, with respect to our ambitions for international criminal justice, we fare fairly well in a comparison with our ancestors. Moreover, for better or worse, we have definitely outstripped them in terms of execution.

Importantly, the rise of the international criminal justice we have brought about isn’t limited to international institutions; instead, it has seeped into national courts in a remarkable process of transnational acculturation. Quite suddenly, state legislatures found themselves implementing international crimes into their domestic criminal codes, national law enforcement agencies are creating specialist war crimes units with increasing frequency, and cases involving international crimes are arguably as numerous locally as they are internationally. This past summer, I even sat through the Blackwater trial in Washington D.C. (see initial commentary here), partly out of a sense that even the United States was slowly surrendering to the trend.

The question for present purposes is, will the march of international criminal justice halt at the doors of businesses or extend to and engulf the commercial sides of atrocity, too? Will WWII cases against “industrialists” (an archaic term that I think distances these historical precedents from contemporary realities) remain quaint relics of experimentalism in the immediate post war, or will they have some salience to the plain legal parallels with modern warfare, especially in Africa? Whatever the future holds in these respects, there’s no doubt that the past has much to still teach us.

On that score, Moyn’s recitation of the traditional history of corporations in Nazi Germany is disputable. In an outstanding new thesis, Grietje Baars argues that the standard narrative of “industrialists” as auxiliaries to Hitler’s expansionism gets the relationships backwards. “Industrialists,” according to Baars, either enjoyed ascendancy over Hitler or existed in a far more horizontal relationship with leaders of the Nazi Party than historians have let on. As the Nuremberg Judgment itself recounts, “In November 1932 a petition, signed by leading industrialists and financiers, had been presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler.” (Nuremberg Judgment, p. 177). If accurate, this history helps highlight the limitations of focusing on complicity alone within the business and human rights discourse, and brings home the importance of thinking very seriously about our topic.

In his kind response to my article, Moyn rightly recognizes that I see ICL as supplementary to other regulatory strategies, including the Alien Tort Statute (ATS). He writes that “I agree with Stewart that it would be dubious, not to mention counterfactual, to suppose that a focus on atrocity (whether through criminal law or civil liability) somehow rules out bigger regulatory ambition.” Nonetheless, he sees two provisos, which I address now in turn.

(more…)

Stewart Mini-Symposium: The Ambitious Past of Corporate Regulation

by Samuel Moyn

[Samuel Moyn is professor of law and history at Harvard University. He is on Twitter at @peiresc.]

During the absorbing litigation that led to the death of Alien Tort Statute litigation a couple of years ago, one of the most fascinating moments occurred late, and it has not been mentioned since.

In the Second Circuit phase of Kiobel v. Royal Dutch Petroleum, Judge José Cabranes had contended that the International Military Tribunal at Nuremberg proved there was no norm in customary international law of corporate civil liability. If so, he had asked, how could he find for the plaintiffs? In response, a bevy of renowned historians filed an amicus brief on appeal to the United States Supreme Court, contending that the reason Judge Cabranes had failed to find civil liability was because the Allies had been willing to destroy the corporations that participated in Nazi evil. The greater included the lesser: if they could go that far, would they really have rejected civil liability for corporate atrocities? Then another group of historians, including Jonathan Bush, filed an amicus brief not so ardently focused on serving the human rights movement (though not opposing it either). No longer indentured to the instrumental if understandable project of reading the past for present ends, these historians revealed that our ancestors were more ambitious than we are.

In their treatment of corporations, Bush and his colleagues said, the Allies hadn’t really been interested in atrocities anyway, or merely aimed at the low bar of sanctioning them. Rather, Nuremberg lawyers had been New Dealers; they had thought a lot about corporations, especially in the antitrust context; and it was this thinking that motivated them to break up (not destroy) I.G. Farben and take the other steps they did. More generally, an attitude of politically organizing business properly to avoid aggressive war mostly prevailed, not atrocity consciousness for the sake of victims seeking compensation. It was one of those things that seemed self-evident as soon as the historians said it, even if the insight got lost in the shuffle of the litigation, with its necessarily opportunistic attitude toward the past. Yet the prospect that opened in the midst of the litigation wasn’t merely self-evident, it was exciting. In the old days, corporations were regulated in the name of a theory of the healthy role they could and must play in a democracy. They were not simply unbound — as they have been since the conservative legal movement set the terms of corporate law nationally and internationally — and then at most taxed after the fact when they went awry.

Granted, the corpse of ATS may twitch for a long time and – who knows? – may one day find itself resurrected under different political circumstances. It is to his great credit, however, that James G. Stewart has turned away from searching frantically for signs of life in the fallen statute, in order to explore other fruitful approaches. Anyway, how much good did the ATS do, even before it was cut down? (Full disclosure: I have been flamed on this blog simply for raising this question, as if the burden weren’t on advocates of the ATS strategy to prove how much difference it has made, and to consider it in relation to other possible political and legal strategies.)

I won’t comment much on Stewart’s alternative, corporate criminal liability, in part because his other respondents know a lot more about the details. His reading of the tea leaves of the Argor-Heraeus case seems speculative but impressive, and his assessment of the doctrinal possibilities of criminal liability relative to the ATS strategy is interesting. As Stewart points out, a civil liability strategy merely taxing corporations (especially when the tax is simply passed on to their consumers) looks insufficient if it doesn’t provide the social condemnation law secures through criminal opprobrium. Stewart might even be right that if we have to choose, the criminal strategy is normatively superior. Of course, in an ideal world, it would be better to have both, since a now potentially lost civil liability in theory should exist: victims may need and deserve the monetary compensation too. (more…)

Weekly News Wrap: Monday, November 24, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

  • Britain is facing the biggest terrorism threat in its history and has foiled around 40 major plots since suicide bombers attacked London in 2005, Home Secretary Theresa May said on Monday.
  • Lower oil prices and Western financial sanctions imposed over the Ukraine crisis will cost Russia around $130-140 billion a year – equivalent to around 7 percent of its economy – Finance Minister Anton Siluanov said on Monday.
  • The United States will keep troops in Poland and the Baltic states for at least the next year as tensions with Russia remain, the commander of U.S. land forces in Europe said on Sunday.
  • A week-long operation to clear the wreckage from the crash site of Malaysia Airlines flight MH17 in Ukraine has been completed, according to the Dutch government.
  • The number of Germans fighting alongside Islamic State militants in Syria and Iraq has increased sharply to 550 and around 180 have returned, the head of Germany’s domestic intelligence said in a newspaper interview published on Sunday.

Americas

UN/World

Mini-Symposium: James Stewart’s The Turn to Corporate Criminal Liability for International Crimes–Transcending the Alien Tort Statute

by Jessica Dorsey

This week we will host a mini-symposium on James G. Stewart’s latest article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. James has been an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia, where he as been since 2009. Previously he was an Associate-in-Law at Columbia Law School in New York. He has also been an Appeals Counsel with the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia and has also worked for the Legal Division of the International Committee of the Red Cross and the Office of the Prosecutor of the International Criminal Tribunal for Rwanda. James primarily works on the relationship between atrocity, commerce, and international criminal justice and has published extensively on these subjects.

Between today and Wednesday, Samuel Moyn (Harvard University), Steven Ratner (University of Michigan) and Beth Stephens (Rutgers) will comment on the article article and the author will respond.

It is our pleasure to welcome these scholars to Opinio Juris this week and we look forward to thoughtful comments and questions from our readership as well.