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Tuesday, November 8, 2011

Corporate Aiding and Abetting under the Alien Tort Statute

As the Supreme Court is poised to finally resolve the issue of corporate liability under the Alien Tort Statute for aiding and abetting violations of the law of nations, it is worth reflecting on the deeply contentious international jurisprudence on liability for collective criminality.

Since Nuremberg, international tribunals have struggled to balance individual criminal responsibility with the undeniable fact of collective criminality.  The most controversial Nuremberg precedents in this area included their rejection of conspiracy except in cases of crimes against the peace (i.e. aggression), as well as the criminalization of membership in a criminal organization.  Both topics continue to inspire academic controversy.

The ICTY’s solution to the same problem was the adoption of Joint Criminal Enterprise, first announced in Tadic and largely associated with the recently departed great jurist Antonio Cassese.  Although controversial among some scholars, JCE quickly became the preeminent mode of liability charged in almost every indictment at the ICTY.

This international jurisprudence is suddenly of great important to the US Supreme Court, which this spring will hear an appeal of the Second Circuit’s Kiobel decision, which held that corporations cannot be liable under the Alien Tort Statute for aiding and abetting violations of the law of nations.  This case brings into stark relief the uncertainty over how international law deals with collective action in general, and in particular collective action that falls in between the two extremes of state conduct and individual criminal action.  Corporations, conspiracies, and terrorist organizations are all examples of the same general problem.  Although they are undeniably relevant actors in today’s world, they don’t fit neatly in the Westphalian paradigm of public international law.

Friday, November 4, 2011

Karadzic in The Hague

I was visiting The Hague a few days ago for a conference on international criminal procedure and decided to drop by the Radovan Karadzic trial at the ICTY.  Although I have watched countless hours of the trial via the court’s video feed, this was the first time I saw Karadzic – who is representing himself – in person.  A few observations:

First, Karadzic is turning out to be a pretty good lawyer – much better than Milosevic ever was.  Ironically, Milosevic was trained as a lawyer and Karadzic was trained as a psychiatrist (one of the reasons that he passed as a new-age healer in a Belgrade clinic while he was on the run from the authorities for more than a decade).  Milosevic used his trial to make political speeches largely addressed to a domestic constituency – and to history – rather than address the judges with explicitly legal arguments.  True, Karadzic is making some political arguments and is trying to settle old scores with enemies (e.g. NATO, Richard Holbrooke), but he is also couching his claims in a legal framework.