Stewart Mini-Symposium: A Response to Samuel Moyn

[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.]

We occupy a curious point in history. Despite an understanding that corporations enabled slavery, were at the vanguard of colonialism, either fuelled or instigated the Second World War, and now provide key inputs to modern atrocities of all stripes, there is very nearly zero accountability for corporate violations of basic human rights norms. What a pleasure, then, to have Samuel Moyn critically reflect on this sorry state of affairs we have inherited and whether corporate criminal liability for international crimes will mark an important departure from everything that came before or merely a new mechanism for distracting our gaze from the obvious structural misalignments that inhibit human dignity most acutely.

I find Moyn’s assertion that our ancestors were more ambitious that us an attractive one. In the same breath, I often muse with students how significant it is that we live during the initial years of a permanent international criminal court, itself an unspeakably ambitious project. In 1872, Gustave Moynier, the Swiss jurist and founder of the International Committee of the Red Cross proposed an international institution of precisely this sort, which was later revisited in the Paris Peace Conference of 1919 and then the Genocide Convention of 1948. So, with respect to our ambitions for international criminal justice, we fare fairly well in a comparison with our ancestors. Moreover, for better or worse, we have definitely outstripped them in terms of execution.

Importantly, the rise of the international criminal justice we have brought about isn’t limited to international institutions; instead, it has seeped into national courts in a remarkable process of transnational acculturation. Quite suddenly, state legislatures found themselves implementing international crimes into their domestic criminal codes, national law enforcement agencies are creating specialist war crimes units with increasing frequency, and cases involving international crimes are arguably as numerous locally as they are internationally. This past summer, I even sat through the Blackwater trial in Washington D.C. (see initial commentary here), partly out of a sense that even the United States was slowly surrendering to the trend.

The question for present purposes is, will the march of international criminal justice halt at the doors of businesses or extend to and engulf the commercial sides of atrocity, too? Will WWII cases against “industrialists” (an archaic term that I think distances these historical precedents from contemporary realities) remain quaint relics of experimentalism in the immediate post war, or will they have some salience to the plain legal parallels with modern warfare, especially in Africa? Whatever the future holds in these respects, there’s no doubt that the past has much to still teach us.

On that score, Moyn’s recitation of the traditional history of corporations in Nazi Germany is disputable. In an outstanding new thesis, Grietje Baars argues that the standard narrative of “industrialists” as auxiliaries to Hitler’s expansionism gets the relationships backwards. “Industrialists,” according to Baars, either enjoyed ascendancy over Hitler or existed in a far more horizontal relationship with leaders of the Nazi Party than historians have let on. As the Nuremberg Judgment itself recounts, “In November 1932 a petition, signed by leading industrialists and financiers, had been presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler.” (Nuremberg Judgment, p. 177). If accurate, this history helps highlight the limitations of focusing on complicity alone within the business and human rights discourse, and brings home the importance of thinking very seriously about our topic.

In his kind response to my article, Moyn rightly recognizes that I see ICL as supplementary to other regulatory strategies, including the Alien Tort Statute (ATS). He writes that “I agree with Stewart that it would be dubious, not to mention counterfactual, to suppose that a focus on atrocity (whether through criminal law or civil liability) somehow rules out bigger regulatory ambition.” Nonetheless, he sees two provisos, which I address now in turn.

First, Moyn is understandably concerned that particular strategies for accountability might become so all-important “as to disable the imagination and marginalize other approaches.” The ATS is the explicit object of his anxiety, but given the context, one reads in a transposition of it onto the possibility of a rise of corporate criminal liability for international crimes. I have some sympathy with that concern. Whether one thinks it wise that the United Nations spent 13% of its annual budget for the entire world on ad hoc international criminal tribunals for just two countries over the past decades while it simultaneously allocated only about 4% to human rights everywhere, it is certainly true that the moral intensity of atrocity has the propensity to drown out all other agendas. A new and brilliant critical literature is emerging in ICL protesting just this.

But to be honest, I’m unconvinced. If ICL is crowding out other concerns, this is not a feature of the mechanics of the trials themselves or the ideology that underpins them. In all likelihood, it’s the product of an overly-simplistic dogmatism that we academics bear some responsibility for constructing. Put differently, I see a respectfully critical, intellectually curious, and interdisciplinary group of scholars as a large part of the solution to the dangers of paralyzed imaginations that Moyn points to. In simplistic terms, we should simply work harder in more intellectually inclusive ways to ensure that ICL does not eclipse other regulatory possibilities. It’s precisely for this reason that I spent so much ink in the article making space for alternative initiatives, and why I pestered my friends at Opinio Juris to invite responses from scholars who I knew full well would disagree with me.

Moyn continues his helpful response by citing Kierkegaard’s example of a man with so much food in his mouth he’s unable to chew as a caution against adding more tools for the sake of more tools. Sometimes, less is more. To my mind, though, that analogy doesn’t work in the present context. At the risk of disfiguring the metaphor beyond all recognition, I see corporate accountability in the world as presently constituted as a severely malnourished child who has almost nothing in her mouth at all. Whatever panicky enthusiasm the “discovery” of corporate criminal liability for international crimes produces for her, the objective truth remains that she certainly cannot survive on this diet alone. Still, the absence of almost all other nourishment and the fear that she may come to fixate on these meager, nutritionally unbalanced rations is no reason for not feeding them to her.

Second, Moyn laments that all this judicialization, be it under the rubric of ATS or ICL, comes altogether too late in the causal chain. “New Dealers,” he explains, “wanted to intervene as early as possible in the causal chain that might expectably lead to atrocity, not merely after the fact to pick up the pieces, whether criminally or civilly.” At least partially, these concerns actually dovetail with the reasons for turning ICL away from rape, torture, murder and deportation in the wake of atrocity (read transitional justice), to focus more on the prior commercial inputs that provide the means and motivations for ongoing atrocities. Prosecuting atrocities is a difficult psychic experience. Part of the appeal of these sorts of cases lies in giving prosecutors some small agency over the terror they bring into their lives vicariously, instead of asking them to just mop up time and again once the bloodletting has run its terrible course. So, on one level, corporate criminal liability for international crimes is very much about intervening earlier in the causal chain.

This is far from a complete answer to Moyn’s concern, who will no doubt want intervention far earlier, but I hope we have jointly laid something of a platform for further critical research on these questions and issued a heartfelt invitation to all variety of scholars to engage with these massive global problems.

My kind thanks to Samuel Moyn for his critical comments, for which I am very grateful.