Stewart Mini-Symposium: A Response to Steven Ratner

[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, Ratner takes issue with my suggestion of retribution as a basis for corporate accountability for international crimes. At least initially, I sense Ratner sees disagreement between us where there is none. Historically speaking, he argues that “human rights law and retribution are not at odds.” Indeed, I consecrated a subsection of the article under the heading Retribution and Human Rights to raise the even stronger argument that there is a direct congruence between human rights and retribution. I wade through various theories of human rights, then posit that those theorists who view moral agency as the basis for protecting human beings may map onto retributive theories of punishment perfectly: both sanctify moral agency as their primary organizing principle. So, I don’t argue that human rights and retribution are at odds. On the contrary, I make a controversial argument that they may overlap precisely to undermine whatever aversion human rights advocates may have to retributive justice, especially in the corporate realm.

I do part ways with Ratner, however, when he objects that retribution “does not offer any obvious advantages.” To my mind, this is not true if one believes that accountability is something to be cherished in the world. For one reason, deontological notions of responsibility tied to retribution offer convincing answers to the very frequent claim that if company X did not help this nefarious regime in South Africa, Sudan or Eritrea commit atrocities, company Y would have anyway. Retribution explains this attempted justification away. More broadly, retribution elevates the need to punish the guilty over and above political and economic counterarguments. Thus, for those human rights advocates who champion accountability, retribution provides them with powerful rhetorical grounds for insisting on accountability. In addition, I am not so ardent as to argue for justice even if the heavens fall, but I do think it important that scholars that come to these issues from backgrounds in international relations or law and economics should pause momentarily to recognize the major moral guilt at issue. To my mind, all these things are “obvious advantages.”

Even on a consequentialist analysis, I also believe corporate criminal liability can have salutary implications under certain conditions. In the paper, I talk about deterrence of atrocity, and the extensive literature suggesting that perpetrators of atrocity cannot be deterred because the passion required to undertake crimes of this barbarity always trumps rational incentives the criminal law might impart. Potentially, however, corporations may be more deterrable than individual perpetrations as a result of their commitment to profit maximization, meaning that ICL has more reason to pursue commercial participants in atrocity than perpetrators, if deterrence is the grand objective. Beyond this potential advantage, the work of Kathryn Sikkink and others suggest a kind of contagion effect between criminal prosecutions for international crimes and regional respect for human rights norms. Why not a similar contagion in the corporate context? In short, this field is simply far too young to quickly conclude that it will not offer obvious advantages anywhere in the world. That claim is too sweeping.

This brings us to Ratner’s third and final criticism, on which we again partially agree. Ratner begins by arguing that corporate responsibility for violations of ICL is no solution for the full scope of the problem, since the types of important human rights norms corporations violate frequently do not rise to the level of international criminality. In particular, he cites pollution, workers conditions, censorship and political repression. I agree. My paper does not imply that corporate responsibility for international crimes is a silver bullet for corporate malfeasance globally—I  spent time at the end of many sections apologising for the limited reach of ICL in these contexts and the possibility that it might not amount to terribly much relative to other initiatives and programs. Does this mean ICL should be dismissed out of hand? Certainly not. At its height, the ATS was also limited to a certain subset of human rights violations, and for those of us who believe in accountability for massive moral transgression for its own sake, some accountability is definitely better than none.

I do not claim that ICL solves the business and human rights problem; I do follow John Ruggie and others in thinking it has real and still poorly explored potential to contribute.

Ratner’s engaging criticism ends with a major insight, but one I suspect should be folded into a new critical scholarship rather than foreclosing further development of these ideas. Observing “the progress made in the last ten years” on issues of business and human rights, Ratner argues that the rise of corporate criminal liability is premature. In particular, “an overly retributivist approach, carried out through ICL, at this relatively early time in the development of corporate responsibility is not the wisest course of action.” I find this idea appealing, but have some concerns. First, while I also sense that the past decade has witnessed positive change, quantifying that shift empirically is something of a challenge, as is identifying the causes of it. Second, if retribution is mistimed presently, the competing danger is that, in certain circumstances at least, CSR becomes a hollow rhetorical smokescreen that is simply intended to ward off meaningful accountability. Third, as I state in the paper, the trade-offs between individual rights to justice and wholesale sociological progress are not so easily brushed aside. Finally, might developing stronger remedies not help pull the mainstream, even if they are not enforced?

I raise these concerns as counterpoints not solutions. I believe that Ratner has touched on an important question, reminiscent of contemporary issues in transitional justice and the compliance literature in human rights, which will hopefully animate further debate in years to come. If nothing else, I hope to have at least contributed something new to these conversations.

My thanks again to Steven Ratner for agreeing to share his expertise in this discussion—I  have gained much from the exchange.