47 N.Y.U. J. Int'l L. & Pol. 121 (2014-2015)
The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute

handle is hein.journals/nyuilp47 and id is 125 raw text is: 







THE TURN TO CORPORATE CRIMINAL LIABILITY
               FOR INTERNATIONAL CRIMES:
     TRANSCENDING THE ALIEN TORT STATUTE


                          JAMES G. STEWART*

         In November 2013,  Swiss authorities announced a criminal investiga-
     tion into one of the world's largest gold refineries on the basis that the com-
     pany committed a war  crime. The Swiss investigation comes a matter of
     months after the U.S. Supreme Court decided in Kiobel v. Royal Dutch
     Petroleum  Co. that allegations like these could not give rise to civil liabil-
     ity under the aegis of the Alien Tort Statute (A TS). Intriguingly, however,
     the Swiss case is founded on a much earlier American precedent. In 1909,
     the US. Supreme Court approved the novel practice of prosecuting compa-
     nies. Unlike the Court's position in Kiobel a century later, the arguments
     that ultimately led to the open-armed embrace of corporate criminal liability
     were unambiguously concerned with impunity. For the U.S. Supreme Court,
     doing without corporate criminal responsibility would create a significant
     and highly undesirable regulatory gap. Since then, the American fiction that
     corporations are people for the purposes of criminal law has taken hold, such
     that the concept is now relatively ubiquitous globally. Even jurisdictions
     that bravely held out for decades on philosophical grounds have recently
     adopted corporate criminal liability. Switzerland is one such case.
         In this paper, I argue that coupling corporate criminal liability with
     international crimes in national systems, as in this new Swiss case, is the
     next obvious discovery in corporate responsibility. In addition, at least one
     international court has now adopted corporate criminal liability for interna-
     tional crimes. These developments promise to transcend several of the doctri-
     nal and conceptual problems that plagued the ATS. First, this reframing
     will move this field beyond polarized debates about the scope of complicity
     within ATS litigation, which did not fully capture the nuanced meaning of
     accomplice liability in criminal law. Second, it will bypass the cumbersome
     debate about corporate responsibility for international crimes as a matter of
     international law, which would not arise in criminal trials. Third, while
     trading the private right to sue under the ATSforprosecutorial discretion in
     a criminal context is certainly a massive loss, prosecutorial discretion also
     has its upsides, which we should now explore in greater depth. Finally, re-
     framing ATS  cases in international criminal law (principally enforced in

     * Assistant Professor, Faculty of Law,  University of British Columbia.
My  kind  thanks to Jos6 Alvarez, Nehal  Bhuta,  Roger  Clark, Robert  Cryer,
Kevin  Heller, Larissa van den  Herik, Joanna   Kyriakakis, Jens Ohlin, John
Ruggie, and  David  Scheffer for criticizing an earlier draft. Special thanks to
Derek  Gregory  and  the Academic  Mentoring   Program  at the Peter Wall In-
stitute for Advanced  Studies for intellectual encouragement and financial
support  over the course of this project. This project benefitted enormously
from  a fellowship from  the Open  Society Foundations.

                                     121


Imaged with Permission of N.Y.U. Journal of International Law and Politics

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