[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. (more…)