Author: 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.

[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,

[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.

[James G. Stewart is an Assistant Professor at the University of British Columbia Law Faculty.  Until recently, he was on the board of the Conflict Awareness Project, but had no role in this investigation.] Something momentus happened in Switzerland last week—national prosecutors opened a criminal investigation into one of the world’s leading gold refineries, for pillaging Congolese natural recourses. Pillage, of...

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.] Last week, Kevin Heller posted an insightful and provocative defense of the “specific direction” standard for aiding and abetting the ICTY has newly announced in the Perišić and Stanišić cases. Although I believe that his arguments fall well short of justifying the conclusion he endorses, his argument intelligently brings together many of the intuitions that seem to have shaped this new definition of complicity. It is also a credit to Kevin that he agreed to post my earlier two-part criticism of this novel definition of complicity here and here despite harboring contrary intuitions, and that he generously welcomed this further response now. All of this out of an obvious commitment to even-handedness and frank debate. But with praise for my friend aside, let me move to criticize aspects of his argument that I believe defend the indefensible.  

At the outset, I am concerned by the structure of Kevin’s reasoning. Kevin (and apparently the ICTY judges he supports) seem to reason inductively, taking the putative innocence of weapons transfers by American and British governments to Syrian rebels as a point of departure. Although I’m sure Kevin just means to use a well-known contemporary example to illustrate his concerns, the optics are bad for him and the ICTY—by backing into this issue with the a priori assumption that American and British practices are necessarily beyond reproach, the reasoning risks substantiating views (so common now among African leaders and TWAIL scholars) that the discipline is structurally biased. To preserve the impartiality and therefore legitimacy of international criminal law, surely we should start with a morally defensible concept of complicity, then let responsibility attach where it may. Otherwise, the new “specifically directed” test speaks to darker problems that infect the entire system.

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

In September 2000, I began work for appellate judges at the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia. Soon after arriving, I quickly came upon a decision the Appeals Chamber had rendered in a case called Barayagwiza.[1] In that case, the Appeals Chamber initially stayed proceedings against Jean-Bosco Barayagwiza, one of the chief architects of the notorious radio station, Radio télévision libre des millies collines (RTLM), because he had spent close to a year in custody without being charged. The stay was a radical response to the prosecutorial (and judicial) error: it effectively ended the trial of one of the Rwandan Genocide’s most outspoken protagonists. Predictably, Rwanda baulked at the decision, and threatened to cut all ties with the ICTR. With this response and other new information, the Appeals Chamber reviewed its earlier decision, lifting the stay and declaring that the violation of Barayagwiza’s basic rights could be addressed through either a sentence reduction or financial compensation in the event of an acquittal. At the time, I felt that politics had trumped principle in Barayagwiza, but I hadn’t then had the benefit of Professor Jenia Iontcheva Turner’s excellent new article. Professor Turner’s piece Policing International Prosecutors eloquently argues against the type of absolutist positions that the Appeals Chamber first adopted in Barayagwiza. Rather, it favors a more nuanced array of sanctions that can be calibrated to specific prosecutorial errors. She argues that the absolutist position does violence to the interests of victims, the desires of the international community and potentially the quest for peace and reconciliation. These values should not be sacrificed to generate greater prosecutorial discipline. Instead of adopting such blunt sanctions, Professor Turner ably argues that international courts and tribunals should consider and deploy a wider variety of sanctions, which can be better married to the intricacies of each particular prosecutorial violation. These sanctions include sentencing reductions, dismissal of select counts of an indictment, declaratory relief, and the type of compensation envisaged for Barayagwiza. A wider panoply of institutions should also have some role in this process.

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law. In my earlier post, I voiced grave concerns with the ICTY’s recent decision on complicity in a case called Prosecutor v Momčilo Perišić (see here). In my earlier posting, I provided background to this seminal case and criticized the new notion of “specific direction” as an actus reus element of complicity. In this second posting, I discuss how the concerns that animated the Appeals Chamber are better considered within the confines of the mental element required for complicity. Some of the judges in Perišić share this intuition—in their Separate Opinion, Judges Agius and Meron indicate that they might be willing to consider “specific direction” as a component of mens rea if they were entitled to rewrite tribunal jurisprudence (Appeal Judgment, Meron and Agius Separate Opinion, para. 3). For myself, I doubt whether the rewrite required would be anywhere as far-reaching as that they have adopted, especially when the extant law governing the mental element of complicity already contemplates these issues. International criminal courts and tribunals apply varying mental elements for complicity, including purpose, knowledge and recklessness (see here, pp. 36-47). In the Perišić case, the Appeals Chamber’s recourse to the “specifically directed” standard as an actus reus appears to be a reaction to the notion of reckless complicity i.e. awareness of a probability that assistance will lead to crimes. As such, its embrace of the “specific direction” standard as part of the actus reus could be read as a pragmatic attempt at restraining the scope of an over-inclusive mental element. Nonetheless, if elevating the mental element through the back door like this is the desired effect, it is arbitrary, unprincipled and unnecessary when more moderate interpretations of existing doctrine better account for the underlying concerns. There are several better routes.

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.] The International Criminal Tribunal for the former Yugoslavia (ICTY) is undoubtedly one of the most important institutions in the history of international law, not only for its catalytic effect in generating trials for international crimes before both international and domestic courts but also for breathing new life into both international humanitarian and criminal law. Yet, the ICTY Appeals Chamber recently rendered a judgment on the law of complicity in Prosecutor v Momčilo Perišić (see here), that could undo much of its legacy. In this first of two posts, I will set out the background to this case and consider the problem of “specific direction” as an element of the actus reus, which the Appeals Chamber has newly adopted. In a second post, I will focus on the mental element of complicity, showing how a more traditional approach to mens rea can address the underlying concerns without so seriously disrupting the law of complicity. Two weeks ago, I attended a roundtable dedicated to the law of complicity at the University of San Diego.  Over the course of two days, a dozen of the best criminal theorists in the English-speaking world came together to debate four competing accounts of complicity.  On the flight home, however, I was more than slightly surprised to learn that the ICTY had just announced a new understanding of the doctrine that is without equivalent in any national law, very different from the Tribunal’s earlier jurisprudence and at odds with the views of all experts congregated at the roundtable I had just attended. Indeed, the new understanding of complicity that the ICTY adopts in Perišić appears inconsistent with foundational principles of criminal law in ways that seriously compromise the doctrine.  Below, I explain why this new position is so troublesome, before I go on to suggest a safer path the Appeals Chamber could have followed. Momčilo Perišić was the Chief of the General Staff of the Yugoslav Army (VJ), making him the highest ranking officer in that army. Between August 1993 and November 1995, he provided extensive military and logistical aid to the Army of Republika Srpska (VRS), lead by the infamous Radovan Karadžić and Ratko Mladić. At trial, Perišić was convicted of aiding and abetting international crimes perpetrated by the VRS, most notably for crimes associated with the sniping campaign used to terrorize civilians within Sarajevo and for the terrible bloodletting at Srebrenica. Perišić unquestionably provided the VRS with large quantities of weapons, seconded officers involved in these crimes to the VRS (Mladić included), and supported the VRS in a host of other ways. Was all this support innocuous assistance of a general type or criminal complicity in the international crimes undertaken by the VRS?

[James Stewart is an Assistant Professor at the University of British Columbia, Faculty of Law. He is currently undertaking a Global Hauser Fellowship at New York University School of Law.] This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below. It is a pleasure to be invited to comment on Professor Darryl Robinson’s excellent new article How Command Responsibility Got So Complicated. His meticulous research has, once again, advanced our understanding considerably. Indeed, this particular article is but the most recent manifestation of Professor Robinson’s groundbreaking commitment to marrying criminal theory and international criminal doctrine in ways that shed new light on dilemmas that have plagued scholars and practitioners for too long. In this piece, he focuses on the much-disputed physical contribution of the failure to punish limb of superior responsibility. Some say that a superior can be convicted of genocide, for example, for failing to punish acts of her subordinates who perpetrated the crime, but Professor Robinson joins others who protest that this violates the principle of culpability. How can you be held responsible for a crime to which you did not contribute? Conversely, those who argue that failures to punish can be re-imagined as a separate conduct-type crime stripped of consequences to overcome the participation problem ignore that international law does not support that reading. Instead, Professor Robinson concludes that subsuming superior responsibility within everyday notions of accessorial liability offers a more elegant solution. I feel compelled to start my review of the piece with a confession of sorts. In my former incarnation as an Appeals Counsel at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’), I had a hand in formulating the Prosecution’s position on superior responsibility in a range of the cases that are key to Professor Robinson’s argument (Hadžihasanović, Orić, and Halilović). In part, I admit this in order to disclose a potential impurity in my views on the topic (although, for balance, my own views were different from the position ultimately adopted by the Prosecution in these cases, contrary to the conclusion ultimately reached by the Appeals Chamber that ruled on them, and I may have changed them again since reading Professor Robinson’s provocative article). For present purposes, though, this experience is also germane since it leads me to think that Professor Robinson might be too quick in arguing that the ICTY has not wrestled with these issues; to the contrary, all sides were engaged in a frenzied review of much of the literature Professor Robinson cites in an attempt to deal with precisely these problems, although no one came close to addressing the topic with anything approaching the sophistication Professor Robinson now offers. Sometimes an absence of judicial reasoning just conceals issues too complex to articulate.

[James G. Stewart is Assistant Professor of Law at the University of British Columbia] Jens Ohlin, with George Fletcher and in his own right, has been a pioneer in bringing criminal theory to bear on international criminal justice. His earlier work warned us that our dogmatic insistence on ascertaining international criminal law in pre-existing sources of public international law risked undermining the inherently criminal nature of this adjudicative process and the fundamental notions of criminal law that must apply as a consequence. As is the case with the other critics who have written for this blog, my article is counterfactually dependent on his earlier groundbreaking work. I think it appropriate to start by placing Ohlin’s comments in context. His admirable defense of the differentiated model of blame attribution presently in place in international criminal justice does not take into account that arguably the most prominent theorists even within his own jurisdiction, from Michael Moore to Sandy Kadish and Larry Alexander, all view complicity as conceptually superfluous. This does not respond in any way to Ohlin’s comments, but I do think it important to table the growing body of authoritative academic argument against the differentiated model international courts have unquestioningly absorbed. In many respects, my article is an attempt to do just that. On another preliminary note, I fear that Ohlin’s criticisms might miss the real essence of the paper. Most importantly, he does not address the normative substance of “modes of liability” in international criminal justice. Both the title to his response (“Names, Labels, and Roses”), and the content of his remarks under that heading imply that the issue is just one of nomenclature, as if there were no normative significance to convicting someone of genocide for recklessly assisting the crime. But the major argument in my paper is that in its extremities, complicity violates the same standards that commentators have used to criticize the overreach of other “modes of liability” within the discipline, and that consequently, this mode of liability too is sometimes unjustifiably harsh or simply unprincipled.

[James G. Stewart is Assistant Professor of Law at the University of British Columbia] I start my reaction to Thomas Weigend’s comments by insisting on my great gratitude to him. In his earlier comments on a draft of this article, he offered criticisms that were far more extensive that those he gently revealed in this blog (or that I have ever received for an article before). Although my final piece does not adequately respond to all his misgivings, I confess that I may have learned at least as much from his extensive criticisms as I did from the voluminous literature required to write this. In acknowledging his great intellectual generosity, let me nonetheless offer some response to portions of his criticism. Professor Weigend starts by suggesting that the “way out” offered by a unitary theory of perpetration is intuitively compelling because of its simplicity. What law student, attorney or judge would disagree, he asks, would deny that these differentiated modes of liability are really not easy? Here, I fear that he perhaps inadvertently reduces my argument to a mere distaste for complexity. But my goal is not simplicity for simplicity’s sake—I am also minded to ensure that international modes of liability consistently respect culpability, to halt the fractured development of modes of liability internationally from one fad to another and to suggest a means of unifying standards of blame attribution across the many jurisdictions that can prosecute these crimes.

[James G. Stewart is Assistant Professor of Law at the University of British Columbia] I mean no false praise to Darryl Robinson when I describe his article The Identity Crisis in International Criminal Justice as one of the very best in the discipline. Many years ago, when working as a practitioner of international criminal law, I read Mirjan Damaška’s article The Shadow Side of Superior Responsibility. I had to take the afternoon off work to recover. While I was probably too old and ugly to have a similar experience with Identity Crisis, it registered at a similar level. Both are iconic in the discipline, both deeply shaped the way I think about these issues, and both troubled me. I will be more than glad if this piece has half that effect for others. Darryl and I agree on a great many things. We agree that international modes of liability have veered from the path of culpability, that many ‘modes of liability’ zealously adopted in international criminal justice are illiberal in their peripheries, and that the growth of these modes seems capricious next to defensible theoretical standards. We seem to part ways in the mostly inconsequential realm of speculating how all this came about. In his kind response, Darryl claims I have overstated the position in his and other authors’ criticisms of international modes of liability, who only argue that the international influence is an influence not the only influence. But this cuts two ways. I too only argue that when it comes to “modes of liability”, departures from principle “stem less from international influence and more from the natural infiltration of indefensible domestic doctrine into the international arena.” (p. 218-219) To some extent then we have no real differences on this score, but I do think it necessary to reiterate my suspicion that someone brave enough to wade through the literature of international “modes of liability” will unearth a number of references to the criminal law’s restraining character, acknowledgments that domestic criminal law violates culpability too but tendencies to downplay that reality as compared with international practices, and most importantly, a lingering perception that there is something atypical in international criminal justice’s departures from defensible theoretical standards. Whether intentional or not, this excellent literature has given rise to the perception that international criminal justice is exceptional in its illiberalism.