I have spent part of my holiday reading the amicus briefs in the upcoming Kiobel case to be heard by the Supreme Court this term. The case will finally determine whether corporations can be sued under the Alien Tort Statute for aiding and abetting violations of international law.
There’s much to be said on the topic, and I have my own views on the law of corporate responsibility, and the concept of complicity in general. But I want to address a much more basic frustration that I have with the current legal debate about the Kiobel question.
The U.S. Solicitor General’s Office has filed a brief in the case, and the brief correctly points out that there is no evidence that any of the Nuremberg cases (either the international cases or the Telford Taylor cases) conclusively precluded the possibility of criminal responsibility for corporations. The brief cites Jonathan Bush’s excellent Columbia Law Review article for the proposition that:
With respect to Nuremberg in particular, while it is true that no private organization or corporation was criminally charged or convicted, it is equally true that nothing in the history of the Nuremberg proceedings suggests that juridical persons could never be held accountable (through criminal prosecution or otherwise) for violating international law. See Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in Criminal Law: What Nuremberg Really Said, 109 Colum. L. Rev. 1094, 1239 (2009) (noting that corporate liability was “explored, and was never rejected as legally unsound,” and that corporations were not prosecuted at Nuremberg “not because of any legal determination that it was impermissible under international law”)…
While this is certainly true, I wish the brief were more clear about the unique status of criminal norms in international criminal law. In fact, I find that most of the corporate aiding and abetting ATS cases leading up to Kiobel have been deeply confused on this point. Simply put, the history of international criminal law only tells you about which violations of international law yield criminal responsibility. The ATS, by contrast, exists to vindicate violations of the law of nations, regardless of whether they are criminal or not. True, Sosa restricted ATS litigation to a limited subset of norms, but the high requirement of Sosa does not track the distinction between criminal and non-criminal violations of international law. Whatever Sosa (and its reference to Blacktstone) means, I do not think it can stand for the proposition that only violations of international criminal law are subject to ATS litigation.
Let’s assume for the sake of argument that the Nuremberg history could be properly read to stand for the proposition that corporations cannot be prosecuted before an international criminal tribunal. Even if that were the case (which several scholars have suggested is not the case), this would not demonstrate that corporations cannot be liable in tort for violating the law of nations in an ATS action. In fact, the argument proves way too much. Nation-states were also not prosecutable before an international criminal tribunal, which is focused on individual conduct. Does that mean that nation-states cannot violate customary international law? That’s a reductio ad absurdum.
One might respond that the very notions of aiding and abetting or complicity are criminal law notions, so Kiobel and its companion cases are meaningless unless we understand them as criminal law violations. True, complicity is originally a criminal law notion, but it has long since been imported into tort law and there are companion concepts in tort that would apply just as well to the underlying factual allegations in Kiobel (e.g. aiding and abetting tortious conduct).
But even if one concedes this point about complicity being an exclusively criminal law notion (which I don’t think it is), my overall argument still holds. That’s because one can treat the reluctance to prosecute corporations at Nuremberg, the ICTY, ICTR, and the ICC, as purely a matter of jurisdiction. And just because these tribunals don’t have jurisdiction over corporations does not mean that corporations cannot violate international legal norms. And just because the ICC does not have jurisdiction over corporations does not entail that a US court does not have jurisdiction over them either. Each court or tribunal has separate jurisdictional rules. And one has to separate the jurisdictional point from the underlying legal norm.
The Nuremberg Scholars amicus brief comes closest to advocating my position, although personally I am interested in hearing more theory about the relationship between criminal and non-criminal norms within customary international law:
The absence of criminal penalties imposed by an international judicial tribunal against German corporations is more appropriately understood as a choice to sanction such corporations through other international law mechanisms, rather than through a criminal trial – and not as a rejection of the international law authority to hold corporations accountable….
The erroneous analysis of the Kiobel majority concludes that “[n]o corporation has ever been subject to any form of liability (whether civil, criminal, or otherwise) under the customary international law of human rights.” Kiobel, 621 F.3d at 148. In reaching this decision, the majority narrowly focused on the criminal trials and ignored other actions taken under customary international law against corporations and organizations outside the courtroom. The impression left by the majority opinion in Kiobel is an historically inaccurate conclusion that what came out of what we label in shorthand as “Nuremberg-era jurisprudence” is a rule that corporations are immune under international law. We respectfully submit that the Founders of Nuremberg and those working with them would have been dismayed by this conclusion.
Customary international law is not some amorphous mass; it is composed of different types of legal norms that might be vindicated in different fora with different sanctions. Criminal norms are just one of the many flavors available.