Nuremberg Scholars Amicus Brief in Kiobel

A group of distinguished Nuremberg scholars, including myself (minus the distinguished part), have filed an amicus brief in Kiobel v. Royal Dutch Petroleum on behalf of the petitioners.  The brief argues that although the Nuremberg trials themselves did not involve the prosecution of juridical persons such as corporations, a wide variety of Allied actions outside of judicial fora indicate that the Allies believed that corporations were liable for violations of international law.  Here is the summary of the argument:

An accurate understanding of the Nuremberg-era jurisprudence and Nuremberg trials is critical to the question of whether corporations and organizations may be held liable under international law. At the various trials conducted by the Allies between 1945 and 1948 at the Palace of Justice in Nuremberg and in other courtrooms throughout occupied Germany only German industrialists, and not the German corporations themselves, were criminally prosecuted. However, the Allied Control Council – the international body governing occupied Germany and issuing Control Council Law No. 10 under which the Nuremberg Military Tribunals were held between 1946 and 1949 – deployed a range of remedial measures to hold juristic persons, including corporations, accountable for violations of international law. Such measures included the dissolution of corporations and the seizure of their assets. Indeed, even before the first Nuremberg trial began, the Allied Control Council had already dissolved a number of German corporations, including most prominently the world’s largest chemical corporation Interessengemeinschaft Farbenindustrie Aktiengesellschaft (“I.G. Farben”), and seized their assets. As a result, when the international trial of the Farben defendants took place pursuant to Control Council Law No. 10, I.G. Farben had already suffered corporate death under international law pursuant to Control Council Law No. 9.

The entire point of the trials that took place in Courtroom 600 of the Nuremberg Palace of Justice in the American zone, and in courtrooms of the other zones throughout occupied Germany, pursuant to Control Council Law No. 10 was to put natural persons in the dock. It was to show that Nazi leaders and other perpetrators, including German industrialists, could be held criminally responsible under international law regardless of rank or position. In putting only natural persons in the dock, the Allied prosecutors did not intend to create an international law norm that corporations are immune. In fact, the judicial actors at Nuremberg specifically recognized that international law permitted the punishment of corporations, but chose not to judicially prosecute for political and economic reasons. As a result, punishment of German corporations under international law took place outside of the courtroom. The absence of criminal penalties imposed by an international judicial tribunal against German corporations is more appropriately understood as a choice to sanction such corporations through other international law mechanisms, rather than through a criminal trial – and not as a rejection of the international law authority to hold corporations accountable.

The Control Council operated as a government of occupation, whether under the customary international law principle of debellatio or pursuant to the customary international law of occupation, as reflected in the 1907 Hague Regulations provisions. The norms which the Allies applied were anchored in international law. This was as true of the Allied occupation courts, such as the International Military Tribunal and the Nuremberg Military Tribunals, as it was of the Allied Control Council laws and directives. Whether at the Palace of Justice courthouse in Nuremberg or at the Allied Control Council headquarters in the Kammergericht courthouse in Berlin, the Allied Control Council officials and Allied judges were all applying international law.

The erroneous analysis of the Kiobel majority concludes that “[n]o corporation has ever been subject to any form of liability (whether civil, criminal, or otherwise) under the customary international law of human rights.” Kiobel, 621 F.3d at 148. In reaching this decision, the majority narrowly focused on the criminal trials and ignored other actions taken under customary international law against corporations and organizations outside the courtroom. The impression left by the majority opinion in Kiobel is an historically inaccurate conclusion that what came out of what we label in shorthand as “Nuremberg-era jurisprudence” is a rule that corporations are immune under international law. We respectfully submit that the Founders of Nuremberg and those working with them would have been dismayed by this conclusion.

The brief is signed by Omer Bartov, Michael Bayzler, Donald Bloxham, Lawrence Douglas, Hilary Earl, Hon. Bruce Einhorn, David Fraser, Sam Garkawe, Stanley A. Goldman, Gregory S. Gordon, Michael J. Kelly, Matthew Lippman, Michael Marrus, me, Fionnuala D. Ni Aolain, Kim Priemel, Cristoph Safferling, and Frederick Taylor.