James G. Stewart, an assistant professor of law at the University of British Columbia and a former war crimes prosecutor, has published an article entitled The turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute in the New York University Journal of International Law and Politics. The full article is available here.
Abstract: In November 2013, Swiss authorities announced a criminal investigation into one of the worlds largest gold refineries, on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel that allegations such as these could not give rise to civil liability under the aegis of the Alien Tort Statute (ATS). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Courts 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. After that, the American fiction that corporations are people for the purposes of criminal law took 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. Moreover, this move promises to transcend several of the doctrinal 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 the 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 ATS for prosecutorial 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, reframing ATS cases in international criminal law (enforced in national courts) offers corporate guilt and retribution as a justification for accountability, thereby answering many of criticisms scholars leveled against the ATS process.