About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

109 Colum. L. Rev. 1094 (2009)
The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said

handle is hein.journals/clr109 and id is 1114 raw text is: ESSAY
Jonathan A. Bush*
Among the most important questions in international criminal law
since the mid-i 990s have been the status of Anglo-American conspiracy law
and the liability of corporations and their officers for human rights viola-
tions. These two issues have arisen in a broad range of settings, including
Alien Tort Statute suits, cases arising out of the American detentions at
Guantanamo Bay, and in the various international criminal tribunals at
The Hague. The cases and jurists have, despite their otherwise diverse an-
swers, agreed that the Nuremberg trials after World War II are the most im-
portant precedent. This Essay examines the five Nuremberg cases that fea-
tured economic perpetrators and the legal theories used there. The Essay
focuses on the forgotten, crucial months between the first Nuremberg trial
(1945-46) and the later twelve trials (1946-49), when theories of corporate
and conspiracy liability were considered and debated. Using unpublished
memos, letters, and diaries, the Essay concludes that conspiracy was seen to
be a vital part of international law, albeit mainly for its evidentiary advan-
tages, and that criminal charges against corporations were considered en-
* The author wishes to thank Thane Rehn, as well as Z.W. Julius Chen and the other
editors of the Columbia Law Review for their skillful assistance, patience, and confidence in
an unorthodox essay. I gratefully acknowledge Cecelia H. Goetz, Ralph S. Goodman,
Bernard D. Meltzer, Walter Rockler, Drexel A. Sprecher, Telford Taylor, and William A.
and Belle Mayer Zeck, seven now-deceased prosecutors in the Nuremberg economic cases
who shared their varied recollections with me in interviews stretching over a decade. I also
thank the families of Leo M. Drachsler, Frederick Elwyn Jones, Abraham L. Pomerantz,
Alvin Rockwell, Edwin M. Sears, and Telford Taylor for generously sharing private papers;
Henry Friedlander for his skepticism and generous help with sources over the years;
Yakar6-Oule Jansen for help with Dutch sources; Camille i'Hermitte for help with French
sources; Jasper Finke for help with German sources; Kaitlin Cordes and Jennifer Nam for
research assistance; Wendy Morgan Lower for introducing me to her university's
collection; Marlene Trestman for Bessie Margolin documents; and Robert Cherny and Kim
Christian Priemel for references to Judge Sears. For easing my way around their holdings,
I thank the archivists at Llyfrgell Genedlaethol Cymru (the National Library of Wales),
especially Glyn Parry; the Florida Supreme Court Library, especially Erik Robinson and
Andy Edel; the U.S. National Archives; the U.S. Holocaust Memorial Museum, especially
Henry Mayer; the Telford Taylor Papers at Columbia Law School, especially Sabrina
Sondhi, Christopher M. Laico, Whitney Bagnall, and many reference librarians; Columbia
University's Oral History Collection; and the Gantt Collection in Towson University's
Special Collections, especially Nadia Nasr and above all the late Nancy Gonce, longtime
faithful custodian of the Gantt Papers. This Essay grows out of work begun at the Center
for Scholars and Writers, New York Public Library, and I thank the Center and especially
its Emeritus Director, Peter Gay. Most of all, thanks to Lisa Lang. Where documents are
quoted, original spelling is retained.


What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most