[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…)