Stewart Mini-Symposium: Two Cheers for Stewart
[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  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.
Equally problematic, Stewart focuses almost entirely on what are known as “foreign-cubed” ATS cases: those filed by foreign plaintiffs against foreign corporations for events that took place outside the United States. He mostly ignores the long prior history of individual-defendant ATS cases, as well as the many cases filed against domestic U.S. corporations. But foreign-cubed cases would be problematic in his criminal law framework as well, and, indeed, he limits his call for criminal prosecutions to those filed against local corporations. Claims against domestic corporations may survive Kiobel, which left open the possibility that some claims might “touch and concern the United States with sufficient force” to overcome the presumption against extraterritoriality. It is not yet clear what degree of domestic conduct by a U.S. corporation is sufficient to trigger ATS jurisdiction.
Most inexplicably, Stewart ignores the role of the ATS as part of a global accountability movement that views criminal prosecutions as a key option. He criticizes (unnamed) commentators who suggested that atrocities could be addressed in “purely monetary terms,”  expressed “a blanket preference for civil liability,”  saw such liability as “a necessary and sufficient response to atrocity,”  and “overlooked” punishment and retribution as desired goals of a movement to hold perpetrators of human rights abuses accountable. 
Even if such short-sighted advocates of civil claims do exist, a recognition of the limitations of civil liability has long roots in the ATS debate. Stewart himself quotes, in a footnote, from a 1996 article in which I wrote that “[p]rivate litigation, unlike criminal prosecution, does not offer the full force of society’s condemnation of human rights abuses.” [53 n.152] That was neither a lonely nor a particularly perceptive observation at the time, but rather a statement of the obvious. That same year, in a powerful decision awarding damages for genocide in Rwanda, a district court judge wrote: “This Judge has seen no other case in which monetary damages were so inadequate to compensate the plaintiffs for the injuries caused by a defendant. . . . Unfortunately, however, a monetary judgment is all the Court can award these plaintiffs.” [Mushikiwabo v. Barayagwiza.]
ATS litigators, advocates, and scholars have consistently urged multiple responses to mass atrocities, including deporting perpetrators to face prosecution in the states in which they committed their crimes and criminal prosecution in other states. Several scholars have addressed the similarities between civil litigation in the United States and the partie civil process in civil law systems, in which private parties initiate or join criminal prosecutions. Advocates have sought to arrest alleged perpetrators when they traveled abroad. And universal jurisdiction criminal prosecutions have often been spearheaded by human rights organizations such as the Center for Constitutional Rights, Human Rights Watch, and Redress—central figures in the same human rights community that, Stewart posits, failed to see the importance of retribution, punishment, and moral guilt. 
In the United States, efforts to impose criminal penalties for human rights abuses led to the enactment of statutes criminalizing torture and genocide. The meager use of the statutes underscores the difficulties inherent in criminal prosecutions. Despite the best efforts of advocates such as the Center for Justice and Accountability, federal prosecutors have consistently declined to file criminal charges, with the exception of the 2009 prosecution of Charles (Chuckie) Taylor for abuses committed in Sierra Leone. Practical obstacles, inertia, and political pressure have blocked such efforts. Although Stewart acknowledges that the need to convince government prosecutors to file criminal charges is an obstacle, his enthusiasm suggests that he may have seriously overestimated the likelihood that they will do so.
Although these examples concern efforts to prosecute individuals, the corporate accountability movement has also urged criminal prosecutions, albeit with equally limited success. Major studies by the International Corporate Accountability Roundtable (2013), the International Commission of Jurists (2009), and Fafo/International Peace Academy (2004), to name a few, have addressed criminal liability alongside civil remedies for corporate human rights abuses. While Stewart cites two of these reports in footnotes, he nevertheless labels the recent announcement of a Swiss criminal investigation of plunder in the Congo a “discovery” in human rights accountability. It is rare and very exciting that a public prosecutor is investigating criminal charges against a local corporation for war crimes in a foreign state, but it is hardly a novel concept. Not surprisingly, several human rights advocates worked long and hard to trigger that investigation. This time, at least, they have had an initial success.
I’ve long been perplexed by the charge that ATS litigation discouraged or took the place of efforts to bring about more fundamental change. Human rights advocates have consistently urged multi-faceted responses to human rights violations, and have viewed the ATS as one tool among many, as part of a multi-faceted international movement. A civil lawsuit, of course, is no substitute for the kind of long-term organizing that could possibly have a significant impact on future human rights abuses. Neither is a criminal prosecution. Isn’t that obvious? As conceived by the public interest organizations responsible for most ATS litigation, either or both can play an important role in a larger human rights movement, by focusing attention on abuses and the need to hold perpetrators accountable, and by giving a voice to the victims and survivors of those abuses.
So three cheers for the human rights advocates who successfully convinced Swiss prosecutors to investigate a Swiss mining company’s conduct in the Congo, and two cheers for James Stewart’s rousing endorsement of their work and of the exciting possibility of further domestic criminal prosecutions for human rights abuses.