Stewart Mini-Symposium: A Response to Beth Stephens

[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.

In the paper (see footnote 25), I offer a series of reasons why I feel comfortable using the “discovery” metaphor despite its obviously grandiose overtones. One of these reasons is that “it was certainly not I who made the initial ‘discovery’ about corporate criminal responsibility for international crimes in national law, so my ability to trumpet the find is nil.” As I go on to say, “to the best of my knowledge, Diane Amann was among the first to discuss this possibility, but without doubt, it was Anita Ramasastry, Robert Thompson and Mark Taylor who’s ground-breaking comparative work revealed the full extent of the opportunity.” As I have acknowledged in the paper and elsewhere, others, especially Ken Hurwitz and my other former partners-in-crime at the Open Society Justice Initiative, have also played a particularly crucial role.

To my mind, the collective nature of this undertaking does not affect whether or not the somewhat awkward term “discovery” is a meaningful descriptor of the process.

At a later point, Stephens imputes to me the view that ATS commentators failed to see the importance of retribution, punishment and moral guilt. In fact, I argue that many actors in this wider business and human rights movement are probably fairly described as “closest retributivists,” who admirably champion accountability for its own sake. I never meant to propose that retributive ideation was absent within the ATS discourse or the business and human rights movement; quite the contrary, I try to show that it is omnipresent but largely intuitive. In the article, I merely propose embracing these retributive aspirations for what they are, especially when they promise to cut through much of the argument leveled against corporate accountability globally.

As I show, retribution has significant implications in the field, which to the best of my knowledge, are not acknowledged in scholarly literature or practice. First, the very common argument, made eloquently by Alan Sykes in the ATS context most recently, that holding companies responsible for human rights violations will not change anything in the world finds a concrete response in retributive theory. Second, and perhaps more poignantly, the notion of guilt that retribution takes seriously purports to override the economic and political barriers to accountability many opponents of the ATS put forward, with which human rights advocates have so gallantly toiled. Consequently, human rights advocates certainly entertained retributive ideas but recognizing their full conceptual important may be of some real assistance in achieving corporate accountability.

Later in her helpful response, Stephens criticizes me for having “seriously overestimated” the likelihood that these types of criminal cases will ever see the light of day. In the paper, I accept that prosecutorial discretion is the major comparative downside of the criminal angle, but I’m not sure that I make any predictions about the likelihood of cases materializing, let alone ones that could be characterized as overly-ambitious. The Article is mostly about how refashioning ATS cases as ICL offers a smoother passage through key legal issues that impeded ATS litigation, without proffering political prognoses about the likelihood of future prosecutions over any time interval. Indeed, in different places, I insist that prosecutors might be politically out-maneuvered in these sorts of cases, that the Argor-Hereaus case may come to nothing substantial, and that the changes I point to might remain entirely academic.

If I am pressed into speculation now, the best I can do is offer reflections on the significant changes I’ve witnessed over the last eight years working on these questions. Initially, when I left the Yugoslav Tribunal to work on corporate responsibility for pillaging natural resources with the Open Society, people would look at me sideways, as if this was the most avant-garde project in legal history. That has since changed. Similarly, at Columbia all those years ago, it was a standing joke among my fellow Associates-in-Law every time I presented an aspect of my research, since audiences would quickly derail the discussion to the ATS even though I had very little to say about it. Incrementally, this too has changed—criminal responsibility of corporations and their representatives has gradually attained a separate identity by emerging out of its noble sibling’s shadow.

By the time the Open Society Justice Initiative and I collaborated in training war crimes prosecutors from twelve different countries at the International Criminal Court on these issues in 2010, there was palpable interest. In this and a subsequent training of European prosecutors organized by the European Union two years later, attitudes were evidently turning—prosecutors from one European country openly stated that they place these cases at the forefront of their prosecutorial strategy because they are likely to have the greatest impact on the trajectory of ongoing atrocities. Other prosecutors were candid about the challenges they face in mounting these cases, but many of these difficulties were entirely surmountable, especially lack of familiarity with applicable doctrine as applied to commercial interests in conflict zones.

In the 1990’s, a famous professor of international criminal law actively chastised attempts at creating a permanent International Criminal Court as hopelessly idealistic and patently futile. Embarrassingly, I myself publicly dismissed the likelihood of the UN Arms Trade Treaty, since politically speaking, it struck me that States ceding their power to control weapons transfers was utterly unthinkable. This too proved wrong. All of this to say, nothing may well come of the turn to corporate criminal liability for international crimes, but various factors suggest that past efforts are not a safe predictor of future politics, especially when the global culture of accountability on these issues is so clearly changing. As we bravely set about this journey, one certainly hopes that the same collaborations between academics, civil society organizations and practitioners that brought about much ATS litigation as well as the new Argor-Hereaus investigation in Switzerland will continue unchecked.

Whatever happens, Professor Stephen’s groundbreaking work will remain a great inspiration for all those who find a world without corporate accountability absurd. My kind thanks again to her for participating in this critical process. It’s a privilege to have exchanged ideas with her.