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.