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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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