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Star Wars, Indeed: US Navy Will Deploy Its First (Hopefully Legal) Laser Cannons to Persian Gulf

by Julian Ku

It looks like the US Navy is going to go ahead and start deploying its new laser cannons to the Persian Gulf next year, according to this Washington Post report.  The Navy has been developing this weapon for years as a cheaper alternative to missiles for attacking smaller targets, especially drones (My 2005 self is still kind of amazed at my 2014 self for writing this last sentence in all seriousness and not as part of a science fiction fantasy).  But you have to watch this video…

Is there any legal limitation on this new weapon?  Well, the Navy is planning to limit it to self-defense for now, according to this WSJ($) report.

“We have the authorities right now to use it in self-defense,” Adm. Klunder said. “If someone was coming to harm the USS Ponce, we could use this laser system on that threat and we would intend to do so.”

The U.S. is also party to the Protocol on Blinding Laser Weapons, ratified by the U.S. back in 2008.  The Protocol limits the U.S. Navy’s lasers in this way:

Article 1

It is prohibited to employ laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices. The High Contracting Parties shall not transfer such weapons to any State or non-State entity.

The scope of this provision is limited by Article 3, which appears to allow blinding via lasers if it is an incidental or collateral effect.

Article 3

Blinding as an incidental or collateral effect of the legitimate military employment of laser systems, including laser systems used against optical equipment, is not covered by the prohibition of this Protocol.

This would seem to give the US Navy enough room to use its laser cannons, which are not intended just to blind, but to actually destroy targets (take a look at that video one more time).  Still, it is possible that blinding would be one of its effects, since it is intended to be used against small targets, including small boat attacks favored by Iran.  Soldiers in these open boats could be “blinded” by a laser attack, and Article 2 requires the U.S. to take all feasible precautions to avoid the incidence of permanent blindness to unenhanced vision.” Still, I think Article 3 is enough cover for the U.S. Navy to justify its use in combat.  And just in case, the U.S. added a declaration upon accession:

“It is the understanding of the United States of America with respect to Article 2 that any decision by any military commander, military personnel, or any other person responsible for planning, authorizing or executing military action shall only be judged on the basis of that person’s assessment of the information reasonably available to the person at the time the person planned, authorized or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.”

Star Wars is here, and no treaty is going to stop it….

 

 

The ACLU Endorses Blanket Amnesty for Torture

by Kevin Jon Heller

I am very rarely shocked, but that was my response to yesterday’s editorial in the New York Times by Anthony Romero — the Executive Director of the ACLU — arguing that Obama should pre-emptively pardon all of the high-ranking officials responsible for the Bush administration’s systematic torture regime at Guantanamo Bay, Bagram, Abu Ghraib, various Eastern European black sites, etc. Here is a painful snippet:

Mr. Obama could pardon George J. Tenet for authorizing torture at the C.I.A.’s black sites overseas, Donald H. Rumsfeld for authorizing the use of torture at the Guantánamo Bay prison, David S. Addington, John C. Yoo and Jay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all.

[snip]

The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware. Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.

I struggle to discern even the basic logic of this argument. I guess the key is that “[p]ardons would make clear that crimes were committed,” the idea being that you can’t pardon someone for doing something legal. But Romero’s argument has an obvious fatal flaw: “pre-emptive pardons” might make clear that Obama believes Bush administration officials committed torture, but they would say nothing about whether the Bush administration officials themselves believe they did. Romero is not calling for a South-African-style Truth and Reconciliation Commission that would condition amnesty on confession of wrongdoing; he wants to skip the confession part and go right to the amnesty. And the Bush administration’s torturers continue to believe that they did nothing wrong. To the contrary, they still cling to their puerile belief that they were the true patriots, Ubermenschen willing to do what lesser men and women wouldn’t to save the US from the existential threat of terrorism. No amount of evidence will pierce the veil of their self-delusion — and no pardon will have any effect whatsoever on their own perceived righteousness.

That Romero fails to see this is baffling enough. But I’m flabbergasted by his assertion that a blanket amnesty for torture — the correct description of his proposal — is necessary to make clear “that future architects and perpetrators should beware.” Beware what? Not prosecution, unless we are naive enough to believe that there is deterrent value in saying to the Bush administration’s torturers, “okay, we’re giving you a free pass for your international and domestic crimes this time — but next time will be a different story.” I’m sure future Bushes, Cheneys, Rices, Rumsfelds, Yoos, and Bybees will be positively quaking in their boots.

It’s also important to note something that Romero completely fails to address in his editorial — the message blanket amnesty for torture would send to the rest of the world. It’s bad enough that the US portrays itself as a champion of human rights abroad while it simply ignores its obligations under the Torture Convention. But there is a significant difference between lacking the political will to prosecute the Bush administration’s torturers and having the political will to offer them a blanket amnesty. If Obama “pre-emptively pardons” those who committed torture, how could the US ever criticise another government that decides to choose “peace” over justice? Some states in the world can at least plausibly argue that amnestying the previous regime’s crimes is necessary to avoid political destabilisation and future conflict. But the US is not one of them. Republicans and Democrats will not start killing each other if Obama does not pardon the Bush administration’s torturers. Ted Cruz will not lead a convoy of tanks emblazoned with the Texas flag on Washington.

But if Obama does issue Romero’s pardons, you can guarantee that future government officials will turn once again to torture the first time it seems “necessary” to counter a serious threat to the Republic. (Such as ISIS, which will no doubt be exploding Ebola-ridden suicide bombs in downtown Chicago any day now.) That’s the logic of criminality, at least when the crimes are perpetrated by the powerful — impunity simply emboldens them further. Give them an inch, they will take Iraq.

The bottom line is this: you want to make clear that torture is wrong, that torturers are criminals, and that future torturers should beware? You don’t offer blanket amnesty to the Bush administration officials who systematically tortured.

You prosecute them.

So Ukraine May Sue Russia for Violating Anti-Terrorism Financing Convention

by Julian Ku

Things are not going well for Ukraine these days as Russia has managed to solidify its control over Crimea and is continuing support for breakaway regions in Eastern Ukraine. It is very hard to justify the legality of Russia’s actions, so it is not surprising that Ukraine is looking for any and all international fora to sue Russia.

As usual, the great challenge is to find an international court with jurisdiction. Ukraine has added a bunch of new cases to the already crowded Russia docket of the European Court of Human Rights. But I had been wondering how Ukraine planned to bring Russia to other courts like the International Court of Justice since Russia has not accepted the compulsory jurisdiction of that court.

Well, according to this report, it looks like Russia has accepted the compulsory jurisdiction of ICJ for disputes under the International Convention for the Suppression of the Financing of Terrorism.   Article 24(1) of the Convention states:

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration. If, within six months from the date of the request for arbitration, the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court.

Although Russia could have avoided jurisdiction under paragraph 2 (as the United States did), Russia did not do so. So Russia could face an ICJ case, which I imagine it will ignore.  But I am not sure it could brazenly claim the ICJ lacked jurisdiction, so it will be interesting to see whether Russia decides to litigate (and maybe even file counterclaims)?

China Manages to File (and Not File) a Legal Brief in the Philippines Arbitration

by Julian Ku

The UNCLOS arbitral tribunal formed to hear a dispute brought by the Philippines against China has set December 15 as a deadline for China to submit a legal brief or memorial. As most of our readers know, China has steadfastly refused to even participate in the arbitral process. It has not selected any arbitrators and it did not attend the first hearing last spring. I (like most observers) expected China to ignore the December 15 deadline as well.

Although it looks like China will not file a formal legal memorial, it released yesterday a long, tightly argued “position paper” that looks a lot like a formal legal memorial (at least on the question of the tribunal’s jurisdiction).   So China is going to essentially file a jurisdictional objection (since the tribunal will surely read this paper) without having to file a formal legal brief.

It’s the best of both worlds for China, since if the tribunal is influenced by the position paper, then this is good for China. If the tribunal ultimately reject the legal position and asserts jurisdiction, China will be able to say that it never actually participated in the arbitration anyway.

As a legal document, the position paper is very well done and is the best legal analysis of the jurisdictional issues in the Philippines arbitration I have seen coming out of China, and certainly from the Chinese government. Granted, the Philippines have not released their own memorial so I haven’t had the chance to read their side. Essentially, China has three arguments against jurisdiction:

  • The essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention;

  • China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations. By unilaterally initiating the present arbitration, the Philippines has breached its obligation under international law;

  • Even assuming,arguendo, that the subject-matter of the arbitration were concerned with the interpretation or application of the Convention, that subject-matter would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006 in accordance with the Convention, which excludes,inter alia, disputes concerning maritime delimitation from compulsory arbitration and other compulsory dispute settlement procedures;

What is good about the position paper is that offers careful and credible legal analysis and avoids (for the most part) the annoying official propaganda tone that is the bane of every China-analyst.  I haven’t had the time to go through the paper with any great detail, so I will offer more detailed analysis at a future time. I will just say for now that I am most skeptical of China’s second argument: that the “Philippines has breached its obligation under international law” by failing to settle this dispute via negotiations. While China has usefully offered facts to explain how the Philippines has not really fulfilled its obligations to negotiate, I just don’t think the Declaration of Conduct China is relying upon can be interpreted to bar any and all UNCLOS arbitrations indefinitely, as China would seem to have it.

But there is a lot here to chew on.   I will try to share more of my thoughts when I’ve had time think about this paper more carefully. And I’m sure the Philippines will be tempted to release at least the jurisdictional portion of their brief as well. I hope they do, since the public reaction to their legal arguments will be just as important as any ruling the tribunal makes.

Did the Supreme Court Implicitly Reverse Kiobel’s Corporate Liability Holding?

by Julian Ku

Way back in 2010, the U.S. Court of Appeals in the Second Circuit held that corporations cannot be held liable under customary international law in ATS lawsuits.  That decision, which was the original basis for the Supreme Court’s consideration of the Kiobel case, has remained the law of the Second Circuit (New York, Connecticut, Vermont) though no other circuit court in the U.S. has followed it.  The Supreme Court was initially going to review that original Kiobel decision, but then decided Kiobel on other grounds, namely, that the presumption against extraterritoriality applies to claims brought under the Alien Tort Statute.  In recent cases, ATS plaintiffs have raised questions about the viability of the original Kiobel corporate liability holding. Did the Supreme Court leave that question open or had it reversed the lower court’s corporate liability decision sub silentio?

The argument that the Kiobel corporate liability holding no longer stands has two parts.  First, a plain reading of the Supreme Court’s Kiobel decision turns up language suggesting that corporations could be liable under the Alien Tort Statute.  In the majority opinion, Chief Justice Roberts stated that ““[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices [to displace the presumption against extraterritorial application].”  The argument here is that although “mere corporate presence” is not enough, corporations with other, deeper connections might displace the presumption against extraterritoriality. (Since the Court in other places explicitly stated it was not reaching the corporate liability question, I am skeptical of this argument).

Second, and more persuasively, you might argue that because the Supreme Court dismissed the Kiobel case on the grounds that the presumption against extraterritoriality applied to the Alien Tort Statute and that the presumption only applies if the court has reached the merits (e.g. whether the statute applies to the facts at hand).  Because the corporate liability defense was a jurisdictional ruling, this line of reasoning goes, then the Supreme Court must have implicitly found that it had jurisdiction over corporations in order to dismiss the case on the merits.

This second argument has some force to it (it was previewed in our insta-symposium last spring), and it was accepted by Judge Shira Scheindlin in a separate New York district court ATS case even though she ended up dismissing that case on other grounds.   It looks like the plaintiffs in another ATS case, Jesner v. Arab Bank, will get the appeals court to consider the issue as well, according to this NY Law Journal write up of oral argument in that case.

I think it is unlikely that the panel will conclude that the Kiobel corporate liability holding has been implicitly reversed, but I do think there is enough of an argument here to attract review of the full en banc Second Circuit. The tricky part here is that the ATS is itself a “jurisdictional” statute, and as the Supreme Court in Kiobel acknowledged, the presumption against extraterritoriality doesn’t typically apply to jurisdictional statutes.  So the Kiobel presumption is a little different and its application to causes of action that can be brought under the ATS is not exactly the same as when the standard presumption against extraterritoriality is applied to a regular non-jurisdictional statute. But it is unclear whether it is different enough to matter.

I am still coming to my own point of view on this issue. I don’t think the defendants in Jesner really addressed this issue effectively in their brief, but it is a complex issue.  At the very least, I think it will be resolved in the near future by the Second Circuit, either by this panel or by the full court. Corporate liability under the Alien Tort Statute is not quite a dead issue, but ti will take some time to figure out how alive it is.

The OTP’s Afghanistan Investigation: A Response to Vogel

by Kevin Jon Heller

As a number of commentators have recently noted, the latest report on the OTP’s preliminary-examination activities indicates that the OTP is specifically considering whether US forces are responsible for war crimes relating to detainee treatment in Afghanistan — something it only hinted at in its 2013 report. Here are the relevant statements (pp. 22-23):

94. The Office has been assessing available information relating to the alleged abuse of detainees by international forces within the temporal jurisdiction of the Court. In particular, the alleged torture or ill-treatment of conflict-related detainees by US armed forces in Afghanistan in the period 2003-2008 forms another potential case identified by the Office. In accordance with the Presidential Directive of 7 February 2002, Taliban detainees were denied the status of prisoner of war under article 4 of the Third Geneva Convention but were required to be treated humanely. In this context, the information available suggests that between May 2003 and June 2004, members of the US military in Afghanistan used so-called “enhanced interrogation techniques” against conflict-related detainees in an effort to improve the level of actionable intelligence obtained from interrogations. The development and implementation of such techniques is documented inter alia in declassified US Government documents released to the public, including Department of Defense reports as well as the US Senate Armed Services Committee’s inquiry. These reports describe interrogation techniques approved for use as including food deprivation, deprivation of clothing, environmental manipulation, sleep adjustment, use of individual fears, use of stress positions, sensory deprivation (deprivation of light and sound), and sensory overstimulation.

95. Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence.

I highly recommend the posts by David Bosco at Multilateralist and Ryan Goodman at Just Security on the OTP’s report. But I have reservations about Ryan Vogel’s post at Lawfare. Although Vogel makes some good points about the political implications of the OTP’s decision to investigate US actions, his legal criticisms of the OTP are based on a problematic understanding of how gravity and complementarity function in the Rome Statute.

First, there is this claim:

Whatever one’s views regarding U.S. detention policy in Afghanistan from 2003-2008, the alleged U.S. conduct is surely not what the world had in mind when it established the ICC to address “the most serious crimes of concern to the international community as a whole.”  The ICC was designed to end impunity for the most egregious and shocking breaches of the law, and it is hard to see how alleged detainee abuse by U.S. forces meets that standard.

It is not completely clear what Vogel’s objection is, but it’s likely one of two things: (1) he does not believe US actions in Afghanistan qualify as torture; or (2) he does not believe any acts of torture the US did commit are collectively serious enough to justify a formal OTP investigation.The first objection is irrelevant: whether acts qualify as torture is for the ICC to decide, not the US. The second objection is more serious, but is based on a misunderstanding of the difference between situational gravity and case gravity…

Guest Post: Gabor Rona on Obama’s Executive Action on Immigration

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

Over at Lawfare Jack Goldsmith provides a somewhat more nuanced analysis of President Obama’s executive action on immigration than the inflammatory rhetoric flowing from some quarters, see here, here, and here. Jack nowhere uses the words “impeachment” (except to say that it appears to be off the table) or “emperor” in reference to the president. When Jack notes “President Obama’s transformation, in less than three weeks, from an irrelevant lame duck to an overbearing threat to our constitutional order,” I assume it’s a derisive reaction to both hyperbolic extremes. In fact he says that Obama’s move is likely constitutional, but possibly violates “sub-constitutional norms,” according to which congress and the president are supposed to work together to solve big, tough domestic issues.

Here’s why I think Jack’s comparatively mild criticism is still off base.

First, let’s acknowledge the important difference between thwarting the expressed will of congress and merely circumventing a dysfunctional congress. The studied tantrums of a few legislators should not be confused with congressional consensus. The constitution quite clearly provides the president with the power to dismiss congressional will – it’s called the veto power. (Of the last ten presidents, the five Republicans have hit the veto button twice as often as the five Democrats, says Wikipedia.) And since the founders thought it prudent to empower the president to tell congress to shove it, isn’t it a bit of an overreaction to even ask if the sky is falling because the president has used constitutional authority to fill a vacuum where congress has been absent?

Perhaps you’re thinking “What does he mean ‘congress has been absent?’” After all, the president is proposing to waive the application of existing law for certain classes of non-citizens. But if the president’s constitutional obligation to “take care that the laws be faithfully executed” means he must enforce every violation of every law congress passes, we’d all be in jail! (Check this out, just for fun).

The Heritage Guide to the Constitution says this about the “take care” clause:

To be sure, the extent of the faithful-execution duty is rather unclear. Plainly, the President need not enforce every law to its fullest extent. Common sense suggests that the President may enjoy some discretion in order to gauge the costs and benefits of investigation, apprehension, and prosecution.

There are at least a couple of reasons the institution of prosecutorial discretion is well established in U.S. jurisprudence. One is that the law can be a blunt instrument, so we’ve always accepted the role of human discretion in the delivery of justice. (Yes, that same prosecutorial discretion has been applied discriminatorily, but that’s a flaw that law has rightly attempted to deal with discretely, rather than through a baby-out-with-bathwater approach).

Secondly, I don’t recall a groundswell of angst about the “sub-constitutional” order when Presidents Reagan and Bush, and for that matter, every U.S. president in the last half century granted limited relief from enforcement of immigration law to one or more groups by executive action.

Finally, let’s turn the spotlight back on congress. A responsible legislative branch recognizes that laws don’t enforce themselves. Then why is there such a huge gap between the inventory of laws and the infrastructure/resources required to enforce them? Perhaps because lawmakers expect the exercise of executive discretion. And perhaps because a lot of lawmaking is really about posturing rather than governing. (My favorite example is the Office of Foreign Assets Control’s enforcement of the Trading with the Enemy Act/Cuba travel embargo, for which alleged violators are entitled to a hearing, except that no one bothered to create a mechanism for hearings. Ask for a hearing and the case is dismissed. Have you seen the outrage at this hypocrisy? Neither have I.) So if congress is serious about deporting every illegal alien, then let it find and appropriate funds for that gargantuan task, as well as for jailing or fining every druggie, fraudster, tax cheat and every trader with the enemy in Havana. Only then should we hear complaints about how congressional will is being thwarted. Until then, the executive not only may, but must find principled ways of deciding what laws to enforce, and against whom.

There’s another element of the drama that Jack fails to address: we’re already in something of a constitutional crisis and it is of congress’s making. Never before had I heard leaders of the opposition party admit that their strategy is to make it impossible for the president to govern. And they’ve been pretty effective at it, albeit due in part to the present White House occupant’s acquiescence. That’s not merely “subverting the sub-constitutional order,” it’s more like a middle finger to the constitution and the national interest, however defined. In isolation, the president’s unilateral action on immigration could be seen as impolite and impolitic. But can we really say that these are not times that try America’s soul?

So what course of executive action is more harmful to the constitution and the republic? That which is legal but impolite and perhaps sets an uncomfortable “sub-constitutional” precedent? Or doing nothing while congress allows Rome to burn for political profit?

Stewart Mini-Symposium: A Response to Beth Stephens

by James G. Stewart

[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. (more…)

Stewart Mini-Symposium: Two Cheers for Stewart

by Beth Stephens

[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 [24] 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…)

Stewart Mini-Symposium: A Response to Steven Ratner

by James G. Stewart

[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, (more…)

Stewart Mini-Symposium: From the ATS to Corporate Criminality under ICL — Mind the Gap

by Steven Ratner

[Steven Ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School.]

James Stewart’s “The Turn to Corporate Criminal Liability for International Crimes” provides an important contribution in the ongoing debates regarding corporate accountability for human rights violations, a debate that has assumed even greater prominence since the publication of the UN’s Guiding Principles and an ongoing process of discussions within the UN on new strategies for businesses to respect human rights. Stewart makes three compelling points with which I think most observers of the topic would agree. First, many human rights advocates and scholars have had far too much faith in the ATS as a vehicle for accountability, leading to undue disappointment in its limited scope after Kiobel. Second, the ATS jurisprudence was marred by doctrinal confusion, the straitjacket of identifying norms as customary international law, and concerns that courts were acting at odds with legislative and executive branch policy. Third, international criminal law (ICL) offers a potentially useful tool for corporate accountability in overcoming some of the difficulties of the ATS. The acceptance of corporate criminality in many states offers a domestic law mechanism for trying corporations.

Despite my agreement with the thrust of the piece and the need to tackle what has remained a marginal method of corporate accountability, I think corporate criminality is not quite the promising terrain for corporate accountability that Stewart’s analysis suggests, for three different reasons.

Ÿ First, the link between the ATS and ICL that dominates the piece (e.g., calling them “brother[s]-in-arms”) — and thus views ICL as a response to the demise of the ATS vehicle – seems somewhat strained. The ATS was and remains a uniquely American statute – there is none other like it in the world – and despite great faith in it by some, my sense is that sophisticated human rights advocates never saw it as the major forum for even judicial accountability of corporations. ICL is not an alternative to the ATS; it is an alternative to other forms of corporate responsibility, including civil responsibility, loss of reputation, and other ways that corporations can be held to account for any human rights violations. The post-Kiobel constraints on the ATS, and the conceptual confusion before Kiobel, thus do not themselves call for switching to criminal liability. Most obviously, civil liability may be viable in other venues, as seen in the other lawsuit against Shell, in the Dutch courts.

Moreover, even if we think the conceptual problems in the ATS caselaw somehow doom civil liability, it is not clear how switching to the ICL model eliminates one serious problem with all efforts by home states to regulate corporations through national law — the very problem that Kiobel addressed, i.e., the extraterritorial reach of domestic law. While international crimes are subject to universal jurisdiction, universal jurisdiction is still only permissive and not mandatory. The duty, if there is one, for states to punish all international crimes (e.g., as suggested in the preamble to the ICC Statute) is a very weak one; the only clear duties are those in specific treaties like the Torture or Disappearances Conventions. So why assume that states will pass criminal statutes (even covering obvious international crimes) covering conduct by their companies abroad, let alone that they will criminalize conduct by foreign companies against foreigners abroad? Though certainly states have interests in regulating much overseas corporate conduct (making the Kiobel majority’s presumption completely antiquated), they still have many reasons not to criminalize extraterritorial human rights abuses, either by individuals and corporations. True, states have shown the political will to criminalize some corporate conduct abroad through the UN Corruption Convention, but that took thirty years of American pressure, dictated by a commercially driven desire to level the playing field.

It is also not clear how the move to ICL eliminates one of the other problems that Stewart thoughtfully identifies regarding the ATS caselaw – the muddied notion of accomplice liability. Although domestic criminal laws define degrees of complicity, they vary significantly throughout the world. That is not a problem if we are content with a corporate criminality regime that tolerates significant diversity across states, but in that case, why not just rely on diverse notions of civil or even administrative liability around the world? If, on the other hand, we think such 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. (more…)

Let’s Be Real: An International Anti-Corruption Court Would Never Work

by Julian Ku

I only recently learned about an effort by U.S. anti-corruption crusaders to win support for an “International Anti-Corruption Court” modeled on the International Criminal Court. US judge Mark Wolf from Massachusetts is spearheading this idea, especially with this article here, and a briefing was even held recently on Capitol Hill on the idea and the UN Human Rights Commissioner seems interested.  This is troubling since I presume these folks have other things to do and this whole IACC idea seems like a colossal waste of time.

I don’t disagree with Judge Wolf that corruption is a huge problem, and that it needs to be punished.  But I am baffled as to why he thinks creating an international court modeled on the ICC is a useful way to proceed.

Any justification of an International Anti-Corruption Court is almost certainly based on the idea that an IACC could more credibly deter corruption among government officials than national laws could on their own. As a theoretical matter, I suppose that is possible.

But, as the ICC has discovered, acquiring custody of government officials whom national governments are unwilling and unable to punish, but willing to grab and turn over, is really, really, hard.  Because relying on member states to turn over their own people is the primary (even exclusive) way an international court can acquire custody, it has always been puzzling to me that folks believed the ICC would provide much additional deterrence to potential criminal defendants.  Getting other member states to turn over defendants who escape to their jurisdiction is a bit easier, but not much.

I just don’t see any reason to think an IACC system would work better. Indeed, it would probably deter far less since it will also be overwhelmed with complaints (everyone thinks their local government guy is corrupt).  There is also various tricky questions of sovereign immunity, which seem more plausibly waiveable for serious international crimes than for even high-level corruption.

So my message to Judge Wolf:  The world doesn’t need another high-profile well-intended but largely ineffectual international court. We have plenty of those already, thank you.