Category Archives: Theory of Criminal Law

The Virtues of Hybridity: Response to Symposium Contributions

Leora Bilsky is a Full Professor at the Tel Aviv University Faculty of Law, and the Director of the Minerva Center for Human Rights at Tel Aviv University. She is the author of Transformative Justice: Israeli Identity on Trial (Michigan University Press, 2004), and The Holocaust, Corporations and the Law (2017).

I am most grateful to James Stewart for hosting this symposium on my book The Holocaust, Corporations, and the Law: Unfinished Business, and I would like to thank him and the other contributors, Annika van Baar, Chimène Keitner, Joanna Kyriakakis, Mayo Moran and Franziska Oehm, for their insightful and thought-provoking comments.

In my book I argued that Transnational Holocaust Litigation (THL) offers a hybrid model, integrating criminal and civil law and conceptions of individual and collective responsibility. The different contributors acknowledge the THL model’s potential for addressing the responsibility of the business corporation but raise various questions about the need for such a hybrid approach, especially considering what seems to be its biggest concession – the need to refrain from addressing the issue of moral blame. Thus, some of the responses suggest that the book overlooked the advantages offered by criminal law, while others argue that it did not go far enough in harnessing the possibilities offered by civil law responsibility. In my short response, I shall engage the different essays, dividing them along the criminal law/private law axis, and conclude by considering whether THL can provide a model for the future.

 On the “criminal law” side we find Franziska Oehm, who challenges the notion of transnational civil class action settlement as the “better” tool for addressing corporate atrocities. She raises two main points. With regard to the class action mechanism, she notes the lack of an international institution competent to deal with class action lawsuits, and its relative weakness in many domestic jurisdictions outside the United States. With regard to the role of victims, she claims that the preference for a civil track holds true only in relation to well-defined and organized groups. Moreover, she rightly points out that some criminal law systems (such as in Argentina) do indeed allow for the initiation and participation of victims.

I would like to focus on the latter point, which questions the advantages for victim participation provided by the THL model as compared with criminal proceedings. Indeed, one of the goals of my book was to emphasize the importance of allowing victim groups to organize, initiate proceedings and participate in the legal process. In particular, I pointed to the possibilities that the THL model offers for overcoming the barriers to such participation set by states (in both the domestic criminal track and the international track). Regarding the question of what kinds of groups may have the chance to harness these possibilities, I believe that THL provided mixed results. On the one hand, weaker groups such as the Roma were unable to receive significant compensation, but on the other hand, while the lawsuits were indeed initiated and led by strong Jewish organizations, most of the compensation paid by German corporations was channeled to weaker groups of former forced-laborers and their families in Eastern Europe. Substantively, I agree that victim groups’ initiation and participation are no longer limited to civil litigation, and in my book I also pointed to parallel developments in International Criminal Law (ICL) concerning victim participation, such as in the Rome Statute. However, I argue that the solutions that were developed in THL to deal with problems of representation and conflicts of interest can prove fruitful for addressing these issues which are now resurfacing in ICL. In other words, in light of the trend toward victim participation in domestic and international criminal law, THL may provide a source of inspiration for creating better solutions to issues of mass representation.

Also writing from a criminal law perspective, Joanna Kyriakakis thinks that the book “gave up” too quickly on International Criminal Law (ICL) with regard to business corporations, partly because it focused on the Nuremberg model as opposed to modern ICL. Kyriakakis reminds us that, in fact, no corporation was put on trial in Nuremberg, so that the power of criminal law over corporate defendants was not really tested. James Stewart also contends that the book downplays the possibilities offered by modern ICL. Stewart rightly distinguishes between Nuremberg’s jurisprudence, which was based on “conspiracy” and “criminal organizations” in order to move beyond the direct perpetrator, and modern ICL, “which has replaced them with a plethora of ‘modes of liability’ that are better suited to implicate corporations.” On a deeper level, Stewart questions whether “civil liability is a sufficient response to what Raphael Lemkin once called ‘barbarous practices’ reminiscent of the darkest pages of history.” At issue for him is the particular function that criminal law serves – one that is uniquely tailored to addressing moral blame through its expressive function, by insisting on prohibition as opposed to payment, or by prohibiting plea-bargains altogether.

Even though Stewart embraces the contextual and pragmatic approach of my book, and rightly observes that it should not be read as an argument for the “ascendance of civil redress and/or settlement as a blanket rule,” I would like to address his concern about the ability of THL to tackle the issue of moral blame. In his essay, “Undoing Historical Injustice,”[1] legal historian Robert Gordon explains that the familiar critique of structural approaches to remedies is that they obscure the moral significance of social injustice. “Without acknowledgment of wrongful, personal agency, there is no shame; without shame, no assumption of responsibility, no possibility of redemption.”[2] However, as Gordon is quick to remind us, “in practice it has been the agency-based approaches, rather than the structural ones, that have tended to be exculpatory: the new regime turns on the bad agents as scapegoats for wrongs that really derived from the routine functioning of an entire social system.”[3] For Gordon, the capacity of criminal law to move from “narrow agent” to “broad agent” approaches by perfecting our “modes of liability” will not solve the problem because the very insistence on individual moral guilt to address problems of structural crimes will continue to hinder the law’s ability to correct the structure. Gordon concludes that “Agency-based theories are really of very limited use as a framework either for understanding systemic or society-wide injustice or for ensuring it does not happen again.”[4] This problem may arise from the commitment of criminal law to a traditional model that views the state as the source of legality and the criminal as a deviator from the norm, while the structural crime requires this conception to be reversed. As I wrote in the book:

In this [the traditional criminal law] model, the culprit characteristically is an individual, and the state intervenes as the accuser and the agent for enforcing and defending violated norms of community order. The jurisprudence of atrocity begins with the opposite assumption. Here the state is no longer the locus of legality, but rather the source of illegality.

Structural approaches to responsibility begin with this reversal, attempting to “fix” the system first, by bracketing the issue of individual moral responsibility. Moreover, it should be noted that the issue of individual moral blame is not completely absent from THL, but due to its new “division of labor” between judge and historian, it is relegated to the historical commissions. 

Surprisingly, a similar concern with the adequacy of THL to deal with the question of moral blame was also raised from the side of private law by Mayo Moran. While endorsinga civil law perspective, Moran, like Stewart, raises doubts about the need to sidestep the issue of moral blame in order to address institutional responsibility. However, while Stewart upholds the conception of “retributive justice” offered by criminal law, Moran points to the potential of the unique private law conception of “reparative justice.” Moran argues that “the role that private law’s distinctive conception of responsibility could play in Bilsky’s hybrid approach is limited by her view that adopting the structural reform model requires giving up on individual liability.” Moran contends that the relationship between THL and private law remains not fully developed in the book, which moves between instrumental and intrinsic justifications and overlooks the intrinsic justification of private law as a means for reparative justice. As Moran put it, “The book misses an opportunity to harness the normative power of private law responsibility to provide a substantive account of why reparations – or at least an effort to repair – matter intrinsically to THL and not just pragmatically.” In her view, we should return to the fundamental value that informs the requirement of compensation from the wrongdoer to the victim as “grounded in private law’s respect for personhood – compensation is the mechanism by which the law insists that wrongful injuries be repaired by those who inflicted them.” Moran rightly points to the book’s chapter on humanitarian payment, where I criticize the German defendants’ attempt to sidestep the reparative justice dimensions of the compensation by redefining it as a humanitarian gesture responding to the suffering of victims, thus severing the link between the responsibility of corporations (studied by the historical commissions) and the compensation paid to victims.

As I demonstrated in the book, the American model of structural reform litigation had to abstain from questions of moral blame in order to repair structural failures. In contrast, the criminal model offered by the Nuremberg trials focused on moral blame and therefore had to limit its reach only to the culpable individual. Moran asks if there is a way to integrate the recognition of both moral blame and institutional responsibility. In this respect, she rightly points to important developments in private law concerning the general duty of care in negligence law, as allowing for private law today to engage with structural responsibility without limiting its view to the deviant individual (as exemplified by litigation concerning the system of residential schools for First Nations children in Canada).

Another question raised by some of the contributors is whether THL can provide a model for the future. Chimène Keitner, who addresses the “civil” law legacy of the Holocaust litigation, wonders whether the THL can serve as a model as it may have been feasible only due to particular historical circumstances: “[O]ne could justifiably wonder whether the model of transnational Holocaust litigation could ever be replicated to enable wide-scale corporate accountability for participation in mass atrocities outside of the forum state” given the significant unraveling of the idea of universal jurisdiction (Kiobel, 2013; Jesner, 2018), and the ability to bring claims as class actions (Wal-Mart, 2011; Daimler AG, 2014). Annika van Baar, acknowledges the importance of the interplay between law and history in my account of THL and its capacity to challenge common distinctions (between public and private and between ideological and economic motives) that hinder our understanding of business operation during the Third Reich. However, she also doubts whether the THL model could provide a promising model for other contexts, considering the exceptional status of the Holocaust in history.    

The question whether THL can provide a model for the future may be answered by considering the underlying pressures that lead to legal developments in both criminal and private law. The different contributors thoughtfully challenge the model by presenting innovations in criminal and civil law that provide better tools for addressing the problem of collective responsibility and avoiding the false binary choice between individual and state/corporate liability. These include developments in criminal law offering new modes of liability that can implicate corporations (Stewart) and new mechanisms for victim participation (Oehm); and developments in private law that expand the duty of care standard and overcome procedural impediments like immunities and limitations-periods, thus opening up new possibilities for organizational liability (Moran).  

I think that in order to see the larger potential in THL we should broaden our lenses beyond specific legal setbacks. Contra Keitner’s contention that Kiobel and Wal-Mart have rendered THL a historical model that cannot be repeated, I suggest that we consider the wider context of the socio-legal turn to restitution. By expanding our view to cross-cutting developments in Europe as well as in the United States, we may recognize the underlying influences of THL on the emergence of a reparative model of responsibility that integrates historical research with responsibility, compensation and rehabilitation. For example, inspired by the THL model, different government ministries in Germany, including the ministries of justice and foreign affairs, started appointing historical commissions to study their specific responsibility for crimes that took place during the Third Reich (as opposed to their general responsibility as part of state responsibility).[5] Similarly, historian Constantin Goschler[6] contends that the influx of restitution claims in Europe helped to shift attention from the responsibility of the German state to that of municipalities, schools and other local institutions. He argues that while Nuremberg and criminal law portrayed local actors solely as “victims,” it was the turn to private law and its reparative model of justice that helped to expose their agency and co-responsibility and pointed the way to new means of reparation for specific victims. Indeed, as Moran rightly observes, a similar approach has emerged in the United States in relation to new demands for reparations for slavery. While these attempts failed in the formal legal tracks, they led several institutions (such as Georgetown University) to research their history and respond to demands of specific victims groups. We may also note in this context the current turmoil experienced by museums throughout the world in response to demands to acknowledge their colonial legacy, and the rise of provenance research as a device for addressing the problem of looted art.  

In my view the way forward may also require looking backwards to forgotten legal struggles. For example, my current research on formulations of the crime of genocide in the immediate postwar period, which were developed by victim groups, both Jewish and Polish, who contested Nuremberg’s war-crimes framework, reveals an early attempt to promote an integrative approach linking criminal liability for genocide with collective-group reparation and rehabilitation. The separation between the two tracks, which transpired for example in the Genocide Convention of 1948 (which excluded cultural genocide and rejected the remedy of reparations), is at the root of the current movement of reparative justice.

In conclusion, instead of asking which law, civil or criminal, is better suited to address structural crimes, I believe that we must try to understand how both could and should adapt to meet the challenge. The lessons offered by THL can help us do just that.

[1]  Robert Gordon, Taming the Past, Essays on Law in History and History in Law, 382-415.

[2]  Id. at 411.

[3] Id. at 412.

[4]  Id. at 409.

[5] For example, the Independent Commission of Historians was appointed in 2005 to examine the role of the foreign service during the National Socialist era. Its report appeared as a book, Das Amt und die Vergangenheit: Deutsche Diplomaten im Dritten Reich und in der Bundesrepublik Gebundenes Buch (Munich: Karl Blessing, 2010) by Eckart Conze, Norbert Frei, Peter Hayes and Moshe Zimmermann.

[6] Constantin Goschler, “The Dispossession of the Jews and the Europeanization of the Holocaust,” in Hartmut Berghoff, Jürgen Kocka, & Dieter Ziegler (eds.), Business in the Age of Extremes: Essays in Modern German and Austrian Economic History, Publications of the German Historical Institute (Cambridge: Cambridge University Press, 2013), 189-203.

Towards Synergies in Forms of Corporate Accountability for International Crimes

Leora Bilsky has written a very impressive book entitled The Holocaust, Corporations, and the Law: Unfinished Business. The book addresses corporate responsibility for human rights violations, focusing particularly on the Transitional Holocaust Litigation (THL) with Swiss and German companies over the past decades. Necessarily, any serious scholarly treatment of this issue requires considerable intellectual breadth, in large part because the topic sits at the intersection of a broad range of interconnected fields. Bilsky has written what is, in my opinion, of the most sophisticated scholarly treatments of these issues, weaving together an impressive array of insights from different disciplines into a compelling unified whole. She makes a very eloquent, original, and profound contribution to questions of corporate accountability for human rights violations by pointing to the upsides of civil settlements in terms of structural legitimacy, victim participation and historiography. Her beautifully written argument draws upon and makes significant contributions to Harold Koh’s views of transnational litigation, to Susan Strum’s pluralist reformulations of structural reform litigation, and Michael Marrus’s critique of these cases. The final product is by far the most developed and articulate argument for the importance of civil liability as a response to corporate implication in mass violence, and I recommend it very highly to friends and colleagues.

I find Bilsky’s overall thesis very convincing—there are many reasons why settlements based on civil processes are preferable responses to transnational corporate implication in atrocity. If I have any hesitations, they are minor and probably arise from her focus on post WWII accountability for corporations implicated in the Holocaust based on international criminal law (ICL) as espoused in the Nuremberg Charter, as distinct from modern ICL and its potential reach in the contemporary world. The dominant influence on my reactions is, I confess, an extended period of time thinking about the responsibility of businesspeople and their corporations for international crimes from a comparative criminal law perspective, which is an approach Bilsky reasonably finds less attractive. In defending the significance of civil settlement, she argues throughout the book that “criminal trials are poorly suited to addressing corporate accountability,” (p. 15) and that the focus on criminal law “blinded Arendt, Jaspers, and others from considering the possibilities that other areas of law can offer.” (p. 34). I would agree with both of these statements in many instances, but I wonder if they might be overly categorical if interpreted as universal commitments, with respect to Nazi criminality but especially for atrocities elsewhere.

To begin, let me offer three relatively inconsequential areas where I felt Bilsky may have sold contemporary ICL slightly short in her otherwise compelling justification of civil settlements as a form of redress for wrongdoing during the Holocaust. First, her perfectly valid critique of the (in)efficacy of criminal law as a response to corporate implication in the Holocaust is not focused on modern ICL. As a consequence, her recitation of the failures of conspiracy (p. 18) and criminal organizations (p. 20) within the Nuremberg Statute as redress for corporate malfeasance during WWII do not tell us so much about the strengths or weaknesses of current law. Both conspiracy and criminal organizations are something of an historical embarrassment for modern ICL, which has replaced them with a plethora of “modes of liability” that might (and increasingly do) implicate corporations and their representatives. These modern “modes of liability” include everything from co-perpetration to superior responsibility, aiding and abetting, and just plain old perpetration. As a class, the concepts cast a legal net across modern corporate practices that likely transcends the law enshrined in the Nuremberg Charter. This reality seems to limit the extent to which lessons from Bilsky’s well-documented case studies can be transposed from the particular to the general.

In a similar vein, Bilsky appears to see ambiguity in the notion of complicity, which she argues militates against the use of criminal law norms in favour of THL-style processes. For example, after addressing some of the nuanced complexities of corporate collaboration with the Nazi State, she argues that “[w]e would be hard pressed to find consensual norms on the complex issue of the responsibility of economic ‘enablers,’ especially when the responsibility for the firms’ actions is intertwined with political actions of a corrupt state.” (p. 87). This position seems to overlook that other “modes of liability” have major implications for modern business as well as the advent of courts, international and otherwise, applying different iterations of complicity in trials for international crimes over the past twenty years.[1] Focusing just on the latter, it is true that the majority of more recent complicity cases have not involved economic actors, but several have, and I am not aware of any of these cases struggling with locating concrete norms, outside judicial debates about complicity in the ATS context. And yet, I have argued elsewhere that understandings of complicity in ATS litigation were never entirely true to the concept’s various legal meanings in criminal law.[2] Moreover, the most interesting of ICL complicity cases against economic enablers have occurred in domestic courts,[3] where local norms that presumably enjoy strong democratic credentials apply. And finally, complicity is one of the most discussed topics in the theory of criminal law,[4]  which speaks to an ever-growing understanding of its normative import, including in difficult cases.

Third, I am not entirely convinced by the argument that the lack of settled legal meaning about corporate responsibility militates against ICL in favour of a negotiated process focused on restitution, engaging victims directly, and enabling historiography by true historians. For Bilsky, attempts to ground the legitimacy of transnational public law litigation in the widespread acceptance of international norms are “unable to address the normative uncertainty characterizing many transnational struggles for justice, in particular the struggle for corporate accountability.” (pp. 84-85). I agree that the advantages of civil settlements that Bilsky presents are marked, and that they warrant real attention in concrete cases outside the THL case-studies she explores, but I am less sure that I see indeterminacy in current ICL as a problem to the same extent. Leaving aside broader jurisprudential disputes about the ability of any normative system to immunise itself from indeterminacy, I worry that Bilsky’s views on the ambiguities of corporate responsibility for international crimes tend to draw exclusively on disputes that were housed within the now (nearly) moribund ATS. Yet, once again, corporate civil responsibility within the ATS appears to have obscured the reality of corporate criminal liability for international crimes in national courts.[5] In some instances, this legal reality is explicit in national law, suggesting that ICL in various national legal systems may sometimes be a viable companion to civil cases, including those that result in settlements. And importantly, debates about the liability of corporations for international crimes cannot obfuscate the ability of criminal courts the world over to try businesspeople as individuals, further undermining recourse to ATS debates about corporate liability as a basis for dispensing with the criminal law tout court.

Thus, I read Bilsky’s very insightful work as adding a new layer to a broader set of transnational accountability options to be deployed pragmatically, not as an argument for the ascendance of civil redress and/or settlement over and above other regulatory possibilities as a blanket rule. In line with this thinking, I’ve used philosophical pragmatism as a frame in other work to plot the relationship between different forms of accountability in corporate contexts,[6] in ways that may be helpful in charting a contingent view of Bilsky’s important contribution.

In particular, because the literature inadequately attends to the transnational dynamics Bilsky takes so seriously, I have criticised all sides of the debates about the following three questions: first, whether there is a basic conceptual justification for using a system of criminal justice constructed for individuals against inanimate entities like corporations; second, what value corporate criminal liability could have given co-existent possibilities of civil redress against them; and third, whether corporate criminal liability has any added value over and above individual criminal responsibility of corporate officers.[7] In my view, debates about these issues reveal a recurrent tendency to presuppose what I call the perfect single jurisdiction in a way that overlooks globalization, the blind projection of local theories of corporate accountability onto global corporate practices, and a perspective that sometimes seems insensitive to the reality of corporate crimes in the Third World. By adopting a pragmatic frame, however, I doubt that any of these questions can be answered in categorical terms that are divorced from context.

As part of this approach, I hope that a consideration of the countervailing upsides of a criminal law framing will complement Bilsky’s valuable criticisms of it in the THL context. While my earlier work explored these questions in greater detail than I can replicate here, I pause to offer two sets of conceptual arguments that may favour the deployment of criminal law over and above civil remedies in certain circumstances.

First, criminal law is often likely to be a preferable vehicle for communicating moral blame for corporate participation in atrocity. In a section of earlier work entitled “Is Civil Liability Sufficient for Atrocities,” I inquired whether, for all its obvious benefits, civil liability is a sufficient response to what Raphael Lemkin once called “barbarous practices reminiscent of the darkest pages of history.”[8] Criminal law theorists argue that the criminal law serves a particular function that is not reducible to civil restitution. Doug Husak, for instance, asserts the autonomous value of criminal responsibility outside its intersection with tort liability by arguing that the criminal law “has an expressive function.”[9] In doing so, he asks how “could mere compensation possibly convey the stigma inherent in criminal punishment? If the state has a substantial interest in expressing condemnation, it is hard to see how a non-punitive response to core criminality could be adequate.”[10] Similarly minded, George Fletcher argues that “economic analysis misleads us by reducing punishment to the prices that actors pay for engaging in their preferred conduct.”[11] Thus, scholars like Dan Kahan argue that in the corporate context, “substituting civil liability for criminal might be expressively irrational.”[12] In certain especially egregious circumstances, these arguments might serve as a basis for prioritizing criminal not civil redress.

Second, a unique focus on civil liability risks allowing companies to absorb the cost of responsibility for international crimes as an incidental part of normal business by passing this expense on to consumers, who pay incrementally more for weaponry, games consoles, cellphones and engagement rings. In other words, civil liability might allow corporations to purchase massive human rights violations, or equally seriously, shield culpable businesspeople from serious criminal accountability. To address these concerns, many scholars argue, first, that the dividing line between corporate criminal and tortious accountability should be demarcated along essentially moral lines, based on whether the conduct in question was sufficiently grave to warrant outright prohibition or whether it should be priced,[13] and second, that corporate accountability must go hand in hand with individual responsibility.[14] Whether or not these ideas were practically germane in the THL context, I believe that they retain relevance alongside civil settlement as possible responses to transnational corporate implication in atrocity. Much depends on context.

Thus, I am left at the end of Bilsky’s important book wondering about ways of generating synergies between different forms of corporate accountability, including the settlements that she has so ably placed within the scholarly imagination as an important option. There is much interesting literature exploring possibilities of synergistic accountability, although to the best of my knowledge, these arguments are yet to be extrapolated into a transnational context. As an example, Samuel Buell supports the continued availability of corporate criminal liability as the “sharp point” of a pyramid, which includes the full range of civil remedies including those enforced by public administrative agencies.[15] Similarly, Harry Ball and Lawrence Friedman have argued that corporate criminal liability is useful as it allows prosecutors to threaten “the full treatment,” a term that denotes cumulative accountability, including responsibility of individual businesspeople.[16] Finally, Mariano-Florentino Cuéllar has argued that “some will recognize how the presence of overlapping criminal and civil jurisdiction can facilitate the imposition of more severe civil penalties.”[17] In particular, Cuéllar suggests that acquisition of evidence from one legal process might feed into the other, meaning that the two operating in tandem create results unachievable by one alone.

This brings me back to Bilsky’s focus on the Holocaust cases, and a question that has troubled me since it arose in a very interesting conversation with Franziska Oehm some years ago. Over the past decade, German prosecutors have tried a series of former Nazis for their complicity in the Holocaust, from a camp guard who assisted without directly participating in murder, to the accountant at Auschwitz.[18] These men are in their nineties now, raising intriguing theoretical problems about the justification for punishment of defendants that have so little of their lives left to live for events that took place so long ago.[19] Based on preliminary reflections, I am tempted to think that these cases are both defensible and important. Nonetheless, I wonder if there is not something slightly bizarre, perhaps backwards, in the spectacle of prosecuting individual former Nazis as accomplices in the Holocaust for making what are, relative to corporations and their representatives, causally minor contributions. In fact, when I first saw the subtitle to Bilsky’s great book—Unfinished Business—I anticipated that she was referencing exactly this curious anomaly. So despite the important shortcomings of criminal trials Bilsky very fairly points to, I wonder if jarring incongruities of this sort also militate against washing one’s hands of criminal accountability entirely, even within the harrowing set of cases she focuses on.

Overall, I was excited by Bilsky’s occasional use of pragmatism within the book, as well as her lengthy discussion of transitional justice, which I read as adopting philosophical pragmatism as its core ethos. Obviously, any discussion of ideal types in discussions about corporate accountability will need to be highly sensitive to the political realities that ensnare these cases everywhere, and recognize that disaffected communities in Africa, say, are often likely to view any avenue for meaningful redress as an unexpected luxury. Nevertheless, I’m adamant that the enormous insights Bilsky’s excellent book offers are of vital importance in designing accountability mechanisms that fit local contexts as part of transitional justice initiatives, and potentially, in augmenting whatever possibility exists for simultaneously seeking restitution together with moral condemnation. I wholeheartedly recommend this important book to all who are interested in the relationship between commerce, atrocity and accountability, and thank Leora Bilsky for participating in this scholarly exchange.

[1] For a database of international cases separated by incident, see here.

[2] See section entitled Doctrinal Infidelity, in The Turn to Corporate Responsibility for International Crimes: Transcending the Alien Tort Statute.

[3] See, for example, The Historical Significance of the Kouwenhoven Trial.

[4] I wrote a short, non-opinionated overview of this theory in Complicity. See also the series of criminal law theorists discussing the interpretation of complicity in the ICC Statute in Complicity in the ICC Statute.

[5] See section entitled From Custom to Legislation, in The Turn to Corporate Responsibility for International Crimes: Transcending the Alien Tort Statute.

[6] See, A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity.

[7] Ibid.

[8] James G. Stewart, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, 47 N. Y. Univ. J. Int. Law Polit. 121–206, 179 (2014).

[9] Douglas N. Husak, Over Criminalization 186 (2008).

[10] Ibid.

[11] George Fletcher, The Grammar of Criminal Law 61 (2007).

[12] Dan M Kahan, Social Meaning and the Economic Analysis of Crime, 27 J. Legal Stud. 609, 619 (1998) (criticizing economic analyses of corporate criminal liability as inappropriately leaving out the social meaning of punishment).

[13] Coffee, John C., Jr, Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B. U. L. REV. 193–246, 230 (1991); Gerard E. Lynch, The Role of Criminal Law in Policing Corporate Misconduct, 60 Law and Contemp. Probs. 23.

[14] One of the concerns is that focusing on just corporations would allow individuals to use corporations as disposable shells that inhibit individual responsibility, whereas focusing on individuals alone could lead corporations to scapegoat dispensable representatives. See, A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity.

[15] Samuel W. Buell, Potentially Perverse Effects of Corporate Civil Liability, in Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, supra note 88, at 87, 88.

[16] Harry V. Ball & Lawrence M. Friedman, The Use of Criminal Sanctions in the Enforcement of Economic Legislation: A Sociological View, 17 Stanford Law Review 197, 215 (1965).

[17] Mariano-Florentino Cuéllar, The Institutional Logic of Preventive Crime, in Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, at 143.

[18] See, for example, Trial of Reinhold Hanning, Ex-Auschwitz Guard, Opens in Germany, online, February 11, 2016,; Kate Connolly & Reuters, Former Auschwitz guard Oskar Gröning jailed over mass murder, The Guardian, July 15, 2015, (last visited Jan 28, 2019).

[19] The most striking of these cases involves prosecuting an alleged accomplice in Nazi crimes in youth court even though he is now 94 years old. See Reuters, Nazi war crimes suspect, 94, faces German youth court trial, The Guardian, September 21, 2018, (last visited Jan 28, 2019).

Transnational Corporate Accountability: How to Finish Unfinished Business?

Franziska Oehm is a PhD candidate at the University of Erlangen-Nürnberg. Her research focuses on the intersection of human rights protection and corporate liability in international and transnational criminal law.

Unfinished business”, the subtitle of Leora Bilsky’s “The Holocaust, Corporations and the Law” not only refers to corporate accountability for crimes committed during the Holocaust but stresses the importance of continuing scholarly engagement with practitioners’ efforts to dismantle barriers to accountability for corporate involvement in mass atrocities today. From a criminal law perspective, the lack of more recent engagement with corporate international crimes, for instance at the International Criminal Court, is often seen as a systematic failure in the international criminal justice system to examine conflict situations holistically. Apart from some recent transnational lawsuits, for example regarding the situation in Syria, corporate crime is rarely in the spotlight during post-conflict legal proceedings or during debates about transitional justice.

The Nuremberg industrialist trials, however, at least selectively addressed industrialists’ involvement in the Third Reich and the Holocaust, and thereby established a basis of reference in search of a corporate accountability system. One could think of recommencing this line of cases now in line with the recent resumption of criminal prosecutions conducted against former Nazi concentration camp guards in Germany (see for instance here), which rely on the abolition of the statute of limitations for the offence of murder. While similar prosecutions could technically be initiated against former Nazi business leaders, procedural hurdles make them rather unlikely, because corporate criminal liability is not included in German criminal law. In addition, the passing of time makes locating living representatives of high-ranking Nazi industrialists who were responsible for international crimes improbable.

Against this background, Bilsky advocates for transnational class action litigation and settlement as a well-suited and possibly more effective approach to addressing corporate involvement in large-scale human rights violations nowadays. Transnational class action litigation and settlement derives from a series of lawsuits in the 1990s against a variety of corporations that were involved in the Holocaust and Bilsky ably conceptualized these cases as Transnational Holocaust Litigation (THL). Parts of her excellent book rely on comparisons, similarities and synergies of transnational class action settlement and criminal law, that prompt me to offer some reflections on the transferability and comparability of the THL approach to other transnational human rights litigation cases.

First, in my understanding the transnational element stems from the often-occurring geographic discrepancy between the location of the corporation’s seat and the atrocities’ effects, the nature of the atrocity, and the forum of the lawsuit. In such transnational civil lawsuits, both national and international law can be applicable to substantive questions, whereas procedural rules will derive from the domestic forum of the lawsuit. The international community lacks a supranational institution competent to deal with class action lawsuits concerning corporate human rights abuses. Therefore, transnational settlement litigation can only take place within the jurisdiction of national courts. National jurisdictions continue to determine the procedural framework for transnational class action settlement, since it is a procedural tool for collective representation in cases of comparable allegations against the same defendant.

However, many national jurisdictions – especially traditional civil law jurisdictions – do not provide for class action. In Germany, for instance, due to a current wave of consumer claims in the automotive sector, a new class action law (Musterfeststellungsklage) came into effect at the end of last year. Although broadening the recognition of collective redress, the new law is not nearly as far reaching as the class action in the U.S. system. It is restricted to consumer-professional relationships and requires prior registration to create binding effects of the ruling that constitutes the alleged violation of law. Furthermore, participants must individually claim the amount of compensation, each with the burden of proof to prove individual damages regardless of prior registration. While those requirements could diminish the concept’s potential success in human rights cases in Germany, this example also illustrates that even if a jurisdiction provides for some sort of class action, the qualification of transnational class action settlement as the better-suited tool to address corporate involvement in mass atrocities may hold for the U.S. or similar legal systems, but would perhaps require a broader global comparative assessment to determine the potential for transnational human rights litigation.

Second, Bilsky elaborates on the victim driven nature of class action lawsuits as one of the advantages compared to criminal proceedings, where the prosecutor adopts the investigative role. She concludes that civil class actions would be the more victim-oriented, participatory approach. While this assumption may hold true for cases where victims of massive human rights violations belong to a well-identifiable group and have had a chance to organize and start a lawsuit, it could also prove otherwise. This could particularly be true for scenarios with a non-identifiable group of victims, or where no representational organization advocates in the victims’ collective interest. In such cases, the prosecutor’s investigative role can be extremely valuable. Furthermore, many international criminal statutes foresee victims’ participation at a later stage during trial, and some national jurisdictions even provide for victims to initiate criminal proceedings, as well as a continuing investigative role during the trial. Such instruments should serve as a model for a more participatory process that points to the role of victims in international, national and possibly transnational criminal proceedings without losing the potential benefit of criminal investigations.

Overall, both the potential of criminal proceedings that derive from prosecutorial investigations, as well as the limitations class action suits throughout the world pose should not be ignored. However, the effectiveness of transnational remedies probably requires a case by case evaluation. Bilsky’s groundbreaking work on transnational class action lawsuits and settlement as a remedy that has indeed largely been ignored in the context of regulatory approaches to corporate accountability will enrich debates and hopefully lead to further development in that aspect of the field.

Transnational Holocaust Litigation and Corporate Accountability for Atrocities Beyond Nuremberg

Annika van Baar is a criminologist and historian, currently working as a post-doc researcher at Resilient Societies, Faculty of Law, Economics and Governance, Utrecht University, the Netherlands. She wrote het PhD research on corporate involvement in international crimes in Nazi Germany, Apartheid South African and the Democratic Republic of the Congo. 

Discussions on corporate accountability for genocide, crimes against humanity, war crimes and human rights violations almost invariably start with a reference to the Industrialist Trials at Nuremberg (1945-1949). These trials are usually invoked as the starting point and background of corporate accountability for involvement in atrocities. In her book ‘The Holocaust, Corporations and the Law’, Leora Bilsky approaches the discussion on corporate accountability using a different set of trials: the transnational civil litigation trials of the 1990s and 2000s. In these trials, victims sought redress from corporations that had been involved in the crimes committed by the Nazi regime during the Second world war. In her fascinating book, Bilsky argues that Transnational Holocaust Litigation (THL) was capable of assigning corporate accountability in ways that criminal law or other types of transitional justice mechanisms could not. She specifically points at the value of the historical corporate data that was opened up by these trials and the resulting historical research. 

Bilsky gives a clear and important account of how the structure and customs of a certain legal approach, such as (international) criminal law or private law, shape the lens through which the corporate wrongdoing is addressed. ICL tends to be seen as the preferred legal approach for crimes as heinous as the Holocaust and, by some, for corporate involvement in atrocities. The ICL approach, however, makes it difficult to effectively deal with collective, structural and mutually reinforcing patterns that underlie atrocities because it tends to deal with the exceptional and individual. 

In this contribution, I would like to consider two often-made distinctions, criticized by Bilsky, that distort common conceptions on corporate involvement in atrocity crimes. The first is the distinction between the public and the private sphere during the commission of atrocities. The second is the distinction between economically and ideologically driven crimes. I end by raising some questions on the likely success of THL-type processes – and the histories they can produce – for transitional and international justice. 

Bilsky shows that a distinction between private actors on the one hand and public actors on the other hand is not clear in the context of the Holocaust. Critical criminologists, such as those who have coined the concept of state-corporate crime [1], argue that ‘what is economic is always political and what is political is always economic’: the private and the public sphere, at the state level, are not easily disentangled. This is especially true for totalitarian and authoritarian states as they tend to align the business sector with their political goals. Governments such as the Nazi regime are able to exercise considerable legal and institutional control over economic actors and restrict the market conditions in which economic actors operate. At the same time, they are dependent on corporate capital, productivity, technology and expertise to pursue their ideological goals.  

This brings us to the strong distinction made at Nuremberg between ideologically motivated crimes, on the one hand, and economically motivated crimes on the other. Historical research has since shown that precisely the interaction between economic and ideological motives is important in understanding corporate involvement in the Holocaust. I would like to add to this referring to two insights from my own (criminological) research on corporate involvement in international crimes.[2]  

First, even when corporations contribute to ideologically driven (and economically senseless) crimes, their corporate activity tends to be motivated by economic considerations: corporations are hard-wired to seek minimization of losses and maximization of profits within the circumstances in which they operate. This is one interaction between the ideological and the economic: the latter tends to be employed to achieve the goals of the former. Cooperation between (ideological) state actors and (economic) corporate actors towards atrocities can benefit both the public and the private actor. In fact, such state-corporate cooperation tends to be presented as mutually beneficial. During the Holocaust, however, as historical research shows, state-corporate cooperation towards atrocities mostly benefitted the state. That business profited greatly from the Holocaust, as Bilsky appropriately underlines, is a persuasive historical falsehood.  

A second reason ideology cannot be fully separated from economic considerations is that ideology can be an important aspect of the social context in which corporations operate. In Nazi Germany, corporate cultures were intentionally nazified and corporations operated under close government control. Therefore, anti-Semitic, anti-communist and pro-Germanic notions were part of everyday life. In Nazi Germany, ideological notions, socially shared, enabled corporations to conduct and continue corporate activity that led to involvement in the Holocaust. These notions contributed to their relative conformity to Nazi policies and enabled them, inter alia, to ‘Aryanize’ their workforces and employ slave laborers to keep up war production while still perceiving their corporate activity to be ‘business as usual’. In other words, as part of societal and corporate culture, ideology can enable corporations to perceive their (profit-seeking) corporate activity as appropriate and desirable even when it violates moral and social (or even legal) norms.  

The interplay between profit-seeking and ideology is not unique to the context of Nazi Germany. In Apartheid South Africa (1948-1994), white South African owners, managers and employees profited from apartheid and never actively opposed its practices even when the South African economy stagnated in the late 1970s. In the face of world-wide anti-apartheid and a common recognition that apartheid economics was irrational, corporations continued to justify their business activities by ideological notions of white superiority and entitlement and through their fear of (black) communism amongst South Africans. They did so even as their profits suffered because their economic considerations and ideological notions had become intertwined.  

Bilsky impressively shows that the model of the THL, as a hybrid legal mechanism, benefits the law-history relationship by spurring history-making that can properly cope with interactions between the private and the public and between the ideological and the economic. For me, however, the question arises what these histories mean to corporations: To what extent can more nuanced and more accurate histories of corporate involvement in the Holocaust contribute to, for example, a change in business culture, looking forward? To my knowledge, there are no indications that the well-researched monographs on German business under the Nazi Regime had any impact on the human rights records of those companies after the 1990s. While value of these histories for understanding corporate involvement in the Holocaust cannot be overstated, their broader relevance might be limited.   

Finally, the status of the Holocaust and the particularities of its aftermath may render the THL model less promising in other contexts. The Holocaust may not be wholly unique as an atrocity but its aftermath and its status, at least in Europe and North America, is exceptional. This raises the question how the model would translate for more contemporary cases such as the involvement of corporations in atrocities in Argentina, the Democratic Republic of the Congo or Syria.  Nevertheless, Bilsky’s book leaves us with the important realization that the search for more adequate accountability for corporate involvement in atrocity crimes should not be fixated on (international) criminal law but should keep an open mind to the value of innovative forms of civil litigation.

[1]  See Kramer and Michalowski, State-Corporate Crime: Wrongdoing at the Intersection of Business and Government (2006).  

[2]  Van Baar (forthcoming) Corporate involvement in international crimes in Nazi Germany, Apartheid South Africa and the Democratic Republic of Congo. (PhD dissertation).  

Transnational Holocaust Litigation and Corporate Accountability for Atrocity

Joanna Kyriakakis is a Senior Lecturer at the Monash University Law Faculty and a Deputy Director of the Castan Centre for Human Rights Law. Much of Joanna’s scholarship has focused upon the applicability of international criminal law to corporations involved in atrocity. 

The legacy of Nuremberg looms large within contemporary debates about corporate accountability for atrocity. Legal historians and human rights lawyers alike are divided as to what that history teaches (if anything) about the norms of international law that apply to corporations, and whether and how justice might be achieved where corporate bureaucracies are vehicles for atrocity.  

In her excellent work, The Holocaust, Corporations, and the Law: Unfinished Business, Leora Bilsky challenges those concerned with corporate accountability today to discard our tendency towards narrow legalism in interpreting the history of Nuremberg.  Moreover, she challenges what she sees as our ongoing fixation upon the criminal law as the pre-eminent modality for seeking justice in cases of atrocity.  Both of these predilections, she argues, limit our legal imaginations about ways in which justice can be achieved in cases where corporations are involved in atrocity.  

More particularly, Bilsky sets out to disrupt the prevailing narrative that the transnational holocaust litigations of the 1990s (THL), brought in the United States against corporations that collaborated with the Nazi regime, were largely failures.  Many have criticised THL as a lesser form of justice, on the basis that they resulted in settlements negotiated in the absence of judicial merit determinations and thus failed to advance the legal norms regulating corporate behaviour.  By contrast, Bilsky elegantly and systematically demonstrates how, in the case of THL, ‘a legal settlement was transformed from a barrier to justice into a key mechanism that can enable belated justice to take place’ (at 2).  

She demonstrates this in a variety of ways, but in particular by showing how certain procedural innovations adopted in the litigations resulted in meaningful justice outcomes.  This included their prompting extra judicial processes that were valuable to victims, such as deep historical research.  This historical example thus invites us to place more emphasis in our thinking upon both the procedural and the extra-judicial when exploring possibilities for corporate accountability today. 

As someone whose work has focused upon the potential of international criminal law (including its domestic application) to pursue corporate accountability for atrocity, I was both enlightened by Bilsky’s historical analysis and largely in agreement with the central arguments she develops.  This includes the importance of pursuing creative transnational civil litigation opportunities, the potential of settlements to advance justice goals, the value of bringing a transitional justice framework to the question of corporate atrocity, and the ways in which extra-judicial processes are important when we assess justice outcomes. 

There are, however, some lesser claims in the book of which I am somewhat critical.  Perhaps unsurprisingly, given my own research focus, they are those claims related to continued attention to the potential of the criminal law.  I summarise briefly below. 

In the first parts of the book, Bilsky casts the value of a close re-examination of THL in terms of the claims that ‘criminal trials are poorly suited to addressing corporate accountability’ and given the distorting effects of ‘the continuing privilege enjoyed by the criminal law over the legal imagination’ (at 15).  The Nuremberg example, it is argued, demonstrates the former.  Yet, normative developments in the criminal law continue to be overvalued relative to civil processes and their potential.  However, I am not sure such claims are really demonstrated in the work, nor are they needed.  

To begin, at various points in the book it is implied that the Nuremberg era criminal jurisprudence is bereft of norms relevant to business involvement in international crimes.  I am not convinced this is true.  There are numerous works on the substantive normative principles of direct and indirect liability adopted at Nuremberg that are relevant to corporate atrocity crime, even if they demonstrate the narrowness of cases that are likely to succeed.[1]

Further, the so-called failure of the legal doctrines used at Nuremberg to tie crimes to corporate activity as evidence of the inability of criminal law to deal with collectives (on the basis that this results in collective punishment which is anathema to liberal criminal law)[2] is not entirely compelling.  This is because corporations were never charged at Nuremberg and so the question of corporate rather than individual criminal liability in corporate contexts was never directly addressed. 

Moreover, it may be true that Nuremberg demonstrates the significant limits of liberal criminal law in linking those motivated by profit to international crimes (with the crime of aggression particularly circumscribed) and that on many measures the industrialist trials were failures.  Both judicial and extra-judicial outcomes in the industrialist cases were influenced by particular ideologies of state/ industry power relations in Nazi Germany and by the politics of the era.[3]  Nonetheless, again neither of these facts leads to the conclusion that international criminal law is categorically ill-suited to corporate atrocity prosecutions nor that efforts towards its reform are ill-founded.  

Undoubtedly, liberal criminal law struggles with crime committed via complex bureaucratic structures, a challenge constituted in particular by the struggle between criminal law’s individualism and the plurality of actors and structures involved in bureaucratic crimes.  However, this is a challenge international criminal law is uniquely directed towards, making it arguably a more filial field to address corporate crime than, at least, its domestic counterparts.  It thus confuses me whenever this quality of corporate crime is described as uniquely distinct to the kinds of crime international criminal law is otherwise concerned with, thus warranting an entirely different approach. 

I am also not sure that criminal law is so greatly preferred in the scholarship on transnational corporate human rights accountability, at least if we look beyond the contemporary debates raging around the US Alien Tort Statute (ATS).[4]  Certainly, international criminal law is given a particular pride of place in international justice efforts related to atrocity, a fact of which we may generally be critical,[5] but its shadow is far smaller in the broader business and human rights dialogues and movements.  Indeed, an alternative critique might be levelled in terms of an over-emphasis in corporate human rights scholarship upon uniquely US procedural mechanisms versus exploring the potential of legal cultures, norms, and procedures in other parts of the world. 

Having said this, the emphasis on the US is understandable when we consider the unique potential that had been offered up by the ATS, which leads to my next observation.  The ATS operates at the intersection of substantive international criminal norms and US procedure.  Thus, even if creatively constituted THL-style litigation processes become an increasing site of scholarship, there remains related value in ongoing work aimed at clarifying the substantive international norms relevant to corporate behaviour.  With the exception of claims based entirely in domestic law, international norms are often needed to ground or at least support domestic redress processes for transnational corporate harms.  The recent existential crisis that faced the ATS at least in part hinged upon questions of normative international criminal law.  This observation is not limited to the ATS, as the potential applicability of victim redress mechanisms in other countries, through which creative justice outcomes might be forged, may likewise be linked to the scope of international criminal norms.  In other words, normative developments in international criminal law may still matter even in the context of exploring creative alternative remedies. 

There also remain, in my view, valid questions as to whether, and to what extent, international criminal law has some (albeit limited) role to play when dealing with accountability for atrocity.  To give but one example: from a victim-centric perspective the resort to garden variety torts or breaches of contract to pursue corporations for international crimes may be inadequate in vindicating victim rights, given the label of the wrong understates the precise harms suffered.[6] 

The point here is simply to say that the discussion around achieving corporate accountability today may be best advanced by exploring the multiplicity of justice modalities that, in different circumstances, may have more or less purchase.  In that respect, Bilsky’s work is an important addition to thinking around what and where the emphasis of some future scholarship might lie. 

One final observation relates to the production of independent documentary histories prompted by legal procedure.  In The Holocaust, Corporations, and the Law, Bilsky persuasively demonstrates how the deep documentary histories generated in part by the specific settlement procedures in the THL cases constitute a meaningful component of the justice achieved by those processes.  An interesting area for further study is how these might be replicated in other victim accountability strategies/ procedural innovations in the future.  It strikes me, also, that documentary histories of historical corporate collaborations with human rights abusing regimes have been generated even in cases where the potential of a legal judgment has remained on the table.[7]  The nature and depth of such histories may thus likewise warrant analysis, as pointed to by Bilsky’s work.  

The comments above are not intended to detract from the value of the work, which rests neither upon one’s assessment of the capacity of international criminal law as a vehicle for corporate atrocity accountability nor on an ideological position as to the value of efforts towards its reform.  The insights set out in The Holocaust, Corporations, and the Law’s should enrich our efforts into the future.

[1] See e.g. Sabine Michalowski, ‘No Complicity Liability for Funding Gross Human Rights Violations?’ (2012) 30(2) Berkeley Journal of International Law 451; Kyle Rex Jacobson, ‘Doing Business with the Devil: The Challenges of Prosecuting Corporate Officials Whose Business Transactions Facilitate War Crimes and Crimes against Humanity’ (2005) 56 Air Force Law Review 167.

[2] Leora Bilsky, The Holocaust, Corporations, and the Law: Unfinished Business (2017), Chapter 1.

[3] See e.g. Doreen Lustig, ‘The Nature of the Nazi State and the Question of International Criminal Responsibility of Corporate Officials at Nuremberg: Revisiting Franz Neumann’s Concept of Behemoth at the Industrialist Trials’ (2011) 43 New York University Journal of Law of International Law and Politics 965; Grietje Baars, ‘Capitalism’s Victor’s Justice? The Hidden Stories behind the Prosecution of Industrialists Post-WWII’, in Kevin Jon Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (2013) 163.

[4] 28 USC §1350.

[5] See e.g. Mark Drumbl, Atrocity, Punishment and International Law (2007).

[6] This was the argument of certain victims against ATS claims against corporations being precluded and thus victims of corporate atrocity forced to litigate harms as ‘garden variety torts’: ‘Brief of Amici Curiae Dr. Juan Romagoza Arce, Cecilia Santos Moran, and Ken Wiwa in Support of Petitioners’, Submission in Kiobel v Royal Dutch Petroleum, No. 10-1491 (21 December 2011) 17-19.

[7] See e.g. Christopher Kopper, VW do Brasil in the Brazilian Military Dictatorship 1964 – 1985: A Historical Study (1 September 2017). This report was commissioned by Volkswagen following findings in 2014 of the Brazilian Truth Commission and after former employees filed a civil lawsuit against VW in Brazil in 2015.

How Private Law Could Help with “Unfinished Business”: A Comment on Leora Bilsky’s The Holocaust, Corporations and the Law

Mayo Moran is Provost and Vice-Chancellor of Trinity College, University of Toronto.  She previously served as Dean and James M Tory Professor of Law at the University of Toronto Law School.  Provost Moran has assisted with the implementation of the Indian Residential Schools Agreement, chairing a committee that oversees the tribunal that awards compensation for physical and sexual abuse.  She has written on the reasonable personlegal theory and the Chinese Canadian Head Tax case.  Her current research focuses on the role of law in redressing historic injustice.  Her new book, The Problem of the Past and How to Fix It, is forthcoming from Oxford University Press in 2020.  In addition to private law and legal theory, she currently teaches a course called “Ten Cases that Changed the World”. 

One of the central ambitions of Leora Bilsky’s excellent new book Unfinished Business is to cast new light on what the Nuremberg model obscures–the complicity, particularly economic complicity, of the private sector in enabling the mass atrocity of the Holocaust.  The Nuremberg model, Bilsky points out, “failed to comprehensively address the responsibility of economic ‘enablers’”  (1).  In the 1990s as Holocaust victims and former slave labourers filed class actions in US courts against Swiss banks and German companies, the law inched closer to addressing this larger and more diffuse responsibility for atrocity.  But as Bilsky notes, while the settlement of these claims may have been an unprecedented win in financial terms (1.25B by the Swiss banks and 5B by German corporations), for many commentators, it came at too high a cost.  The fact of settlement and its nature have tended to be seen as a missed opportunity to elucidate the nature of corporate responsibility for massive human rights violations.  But Bilsky’s reconceptualization of the significance of Transnational Holocaust Litigation (THL) challenges this conventional reading, arguing instead that it actually holds powerful lessons. THL, she points out, was one of the only instances in which “victims succeeded in making corporations pay huge amounts to compensate victims and acknowledge responsibility by opening their internal archives to research and publishing the findings” (3).   And with the growth of transnational corporate influence, such accountability is increasingly important.  So one particular promise of THL may accordingly be found in its ability to serve as a model for holding large transnational corporations liable for human rights abuses (2). 

Bilsky’s illuminating reconceptualization of THL is powerful and potentially extends well beyond the immediate lessons she focuses on in the book.  Making good on this possibility, however, may require some refinements in the conception of responsibility that she articulates. One of Bilsky’s overarching goals is to challenge the critiques that suggest that civil litigation and settlement are inapt ways to respond to grave human rights abuses.  For Bilsky the strength of THL is found in its “hybridity”—particularly of collective and individual responsibility.  Though made up of many elements, she identifies the two main strands of this hybrid form as international criminal law and American structural reform litigation.   It is here I would like to pause to suggest that this approach might benefit from some rethinking.  International criminal law is intensely individualized and morally laden.  Its contribution to THL is found in its normative power, which enables it to overcome problems of time and space—thus neutralizing obstacles such as limitations periods and immunities.   Complementing this is structural reform litigation.  It holds out the promise of responsiveness to bureaucratic violations of human rights, but only if it abandons the cornerstone of civil litigation—the principle of individual liability.  Bilsky does draw important features of her rereading of THL from this structural reform strand including the aggregated nature of both plaintiffs and defendants and perhaps more importantly, the managerial proactive role of the court.  However, structural reform litigation, with its roots in US constitutional law, also creates many other challenges for Bilsky’s account of responsibility.  This leads me to wonder whether it wouldn’t have been preferable for her hybrid model to draw more of its strength and normative content from the private law underpinnings that are so crucial to THL.  

This is not easy however.  The role that private law’s distinctive conception of responsibility could play in Bilsky’s hybrid approach is limited by her view that adopting the structural reform model requires giving up on individual liability.   This is a large concession and one that seems shaped by the sense that individual responsibility closely resembles criminal responsibility despite Bilsky’s obvious determination to distance her account from that paradigm.   ‘Individual’ liability in private law has from the beginning of course encompassed the liability of collective entities—from corporations to other institutions with legal personality to public authorities and indeed the state itself.   It is certainly true today that collective entities are far more likely to be defendants in private law actions than individuals.   However, and much more importantly for Bilsky’s account, since the development of the ‘general duty’ of care in negligence, private law responsibility has been in the process of a transition away from the ‘single wrongdoer’ conception of responsibility.  This shift is the result of an effort to capture the more complex, overlapping and attenuated forms of culpability that characterize modern life—the very kind of institutionalized responsibility that THL engaged and that Bilsky seeks to defend.  In fact, this more complex diffuse understanding of responsibility is now absolutely central to civil liability.  This is especially salient for Bilsky’s retelling of THL: from the private law perspective there is nothing inherently problematic about imposing such liability on a collective entity and it is not conventionally thought of as raising difficult questions of collective responsibility.  

 With this understanding of ‘individual responsibility’ in hand, it is possible to see how it could play a more constitutive role in Bilsky’s hybrid account—a role that would enrich the theory and assist with a number of features of THL that seem challenging for the structural reform model.  The most striking example relates to remedy.  Under the structural reform model that Bilsky borrows from Fiss, the remedy is not about the past but about the future.  It aims at preventing future violations of constitutional values and hence the injunction is the standard remedy.  Yet monetary compensation was a major part of THL remedies.   Such remedies were also overwhelmingly about the past, not the future.  Because this backward-looking orientation and its related compensation model are at odds with the structural reform class action, Bilsky considers it one of the most challenging aspects of her account of THL.  And indeed, while compensation to individuals is sometimes described by Bilsky using the language of justice, it also figures as an incentive to lawyers to enforce public goals (54) or to encourage corporations to internalize norms (73).  And although both of these effects may well be true, they miss, in my view, an opportunity to harness the normative power of private law responsibility to provide a substantive account of why reparations—or at least an effort at repair—matter intrinsically to THL and not just pragmatically.   Indeed, later in her excellent account of the claims process, Bilsky re-infuses her analysis with some of the private law content that she appeared to reject earlier.  For example, she challenges the efforts of defendants to characterize their payments as ‘humanitarian’ and notes, rightly I would suggest, that “private law’s conceptualization of responsibility as relational can be approximated through a class action settlement and does not require a full trial” (124).  But this sits awkwardly with the earlier commitment to the idea of giving up on individual responsibility.  It could be of course that such responsibility matters at the claims process level but not at the class action level, but this renders compensation conceptually confusing and problematic.   

Her analysis of claims processes also gestures towards the important idea that in the private law of responsibility, damages express the demand that the wrongdoer attempt to make the victim whole by compensating her for violations of her physical integrity, autonomy or property interests, for example.  Understood in this way, monetary payments from the wrongdoer to the victim are grounded in private law’s respect for personhood–compensation is the mechanism by which the law insists that wrongful injuries be repaired by those who inflicted them.  Here, however, it must be acknowledged that money is inevitably inadequate as a means of making a victim whole.   Moreover, the graver the injustice, the more pronounced that inadequacy will be.  Thus it is not surprising that the more that private law is called upon to address especially grievous violations of personhood, the more common it will be for other measures to accompany the demand for compensation. Bilsky does a brilliant job of elucidating the salience of these dimensions of THL—in particular with her discussion of the historical studies.  But the strength of this account would be greatly fortified by calling upon the normative power of private law’s reparative justice impulse rather than giving up on the contribution that the civil conception of individual liability could make.  

Recognizing the constitutive role of private law and the reparative justice impulse in THL itself would also extend the reach of Bilsky’s reading in important ways.  One important critique of THL is that is was ‘all about the money’.   The horrific scale of the wrongs addressed by THL make some version of this worry virtually inevitable, and perhaps that is a good thing.  Commodifying and thereby risking trivializing profound suffering is a concern we must remain alive to.   The overall trajectory of Bilsky’s argument makes a strong case for why this concern may not be as central as some critics might suggest.  However, the hybrid account of responsibility with its indebtedness to the structural reform model risks making compensation look like an incentive regime that has little to do with recognition of the personhood of the victims.   There certainly were some flaws in how THL addressed the compensation questions.  But as Bilsky often obliquely suggests, the most important of these were failures of justice, not of incentive structures.   Only an account that gives fuller play to a robust understanding of private law’s distinctive conception of responsibility can grapple with such failures of justice and the lessons they hold .   

Let me close with some related thoughts about the reach of Bilsky’s re-reading of THL.  She gestures towards transnational corporate accountability as one potential sphere of THL influence and I would like to suggest that in fact THL has already served as a powerful source of inspiration.   In the interests of brevity let me give just two examples.  First, in Canada, the massive litigation (some individual, some class actions) that focused on the legacy of Indian residential schools has significant resonance with Bilsky’s account of THL.  In 2007, it too resulted in a massive settlement—now approaching 6B CAD—and gave rise to a complex compensation regime that includes nearly 38,000 adjudicated claims, as well as an important Truth Commission among other features.   The second example is the effort to litigate reparations for slavery in the US.  Clearly inspired by the THL slave labour cases, the litigation itself largely failed and did not generate significant settlements.  Nonetheless, the pressures generated by the articulation of the reparations claims—particularly the most powerful slave labour ones—gave rise to a range of institutional responses that also have a strong affinity with Bilsky’s account of THL.  Ordinances designed to force disclosure of links to slavery were passed in several jurisdictions, economists have begun to attempt to quantify the profits of slavery and many truth-seeking projects and commemorative projects have been undertaken at an institutional level.  One striking example is found at Georgetown University.  After studying its links to slavery and in particular to a significant slave sale in 1838, the university offered preferential admissions to descendants of those who were sold as slaves.  It did so specifically on the ground of reparative justice.  

In these and many other examples of hybrid claims that seek to redress grievous large-scale wrongs, Bilsky’s reconceptualization provides rich material for thinking through the complex questions of responsibility, redress, and history at the heart of THL.   Infusing her account with richer content from private law would only assist in illuminating the important lessons of THL that she so expertly draws out. 

Corporate Responsibility for International Crimes: Problems of Civil Procedure and Collective Guilt

Chimène Keitner is Alfred and Hanna Fromm Professor of International Law at UC Hastings Law, San Francisco.  Professor Keitner’s experience includes serving as Counselor on International Law in the U.S. Department of State. She is a founding co-chair of the International Law Association’s Study Group on Individual Responsibility in International Law.  Her areas of expertise include issues of jurisdiction, extraterritoriality, foreign sovereign immunity, and foreign official immunity. 

Leora Bilsky’s The Holocaust, Corporations, and the Law: Unfinished Business seeks to rehabilitate the class actions brought against German and Swiss corporations in U.S. courts, and the legal settlements they produced, from the sting of criticisms levied by their (mostly) European detractors. As part of this endeavor, Bilsky levels criticism against criminal law’s excessive focus on individual culpability at the expense of organizational wrongdoing. Given this critique, one might expect to find greater attention to issues surrounding corporate criminal liability in Bilsky’s capable analysis. Instead, she focuses on the promise of civil litigation as a means of creating a “legal bridge in time” to redress corporate immunity. She argues that, although settlements might not articulate binding norms of behavior or confirm a defendants’ legal liability, they have value in providing compensation to victims and enabling the creation of historical narratives that might not otherwise exist.   

Few in the transnational human rights litigation community would take issue with Bilsky’s central thesis: 

[Transnational Holocaust litigation’s] most important jurisprudential contribution resides not in the norms produced but in the innovative ways the peculiar North American institution of the civil class action was harnessed to create a transnational forum where, on the one hand, groups of victims could demand accountability from giant private corporations and, on the other, the corporations were made to respond and begin a self-critical process of reflection about their involvement in the crimes of the Third Reich. 

 The interesting work done in this area by Bilsky and by her colleagues Natalie Davidson and Doreen Lustig at Tel Aviv University focuses on claims brought in U.S. courts for human rights abuses in other countries. These claims proliferated in the decades following the Second Circuit Court of Appeals’ 1980 decision in Filártiga v. Peña-Irala, which interpreted the Alien Tort Statute (ATS), 28 U.S.C. § 1350, as providing subject-matter jurisdiction in U.S. federal court for a civil suit for damages brought by two Paraguayan citizens for the torture and extrajudicial killing of a Paraguayan citizen by a Paraguayan citizen in Paraguay. That said, the alignment of class action lawyers and human rights advocates who pursued ATS claims during this period was perhaps more contingent than Bilsky appears to suggest. Moreover, although there is some truth in her observation that “[u]niversal civil jurisdiction and class action procedure both reflect a preference in American legal culture for civil litigation over criminal law and administrative regulation in addressing mass wrongdoing,” the book does not engage with the significant jurisprudential unravelling of the idea of universal civil jurisdiction, and of the ability to bring claims as class actions, since the Holocaust cases were filed in the 1990’s—in both instances, for reasons largely unrelated to the critique of settlement whose rebuttal animates the book.  

The three pivotal Supreme Court cases on the ATS to date are Sosa v. Alvarez-Machain (2004), Kiobel v. Royal Dutch Petroleum (2013), and Jesner v. Arab Bank (2018). The holdings of the latter two cases, which restricted the scope of extraterritorial jurisdiction under the ATS and found no basis for ATS jurisdiction over claims against foreign companies, respectively, turned on the “swing” vote of Justice Anthony Kennedy, who has expressed concerns about offending other countries through perceived U.S. judicial overreach. Combined with cases such as Wal-Mart v. Dukes (2011), which has made it more difficult to meet the requirements for class certification under Federal Rule of Civil Procedure 23, and Daimler AG v. Bauman (2014), which has curtailed the exercise of personal jurisdiction over nonresident corporations on due process grounds, one could justifiably wonder whether the model of transnational Holocaust litigation could ever be replicated to enable wide-scale corporate accountability for participation in mass atrocities outside of the forum state.       

The ATS, or what is left of it, provides jurisdiction to adjudicate alleged violations of certain conduct-regulating norms that are rooted in customary international law and applied in U.S. courts as federal common law. Unresolved issues include the standard for aiding and abetting liability: namely, whether a defendant can incur liability for knowingly providing assistance that had a substantial effect on the commission of an international law violation, or whether the claimant must prove that the defendant intended to facilitate the underlying violation (a much higher bar, especially in the corporate context). This issue looms large in corporate cases as a doctrinal matter, and also has important implications for our understandings of agency, culpability, and the obligation to provide redress.  

The broader issue of entity liability, which Bilsky considers under the heading of “collective guilt,” also merits further investigation. I was particularly eager to read these parts of her analysis, as I have been working for a number of years on questions related to attribution under the international law of state responsibility, and the (in my view oversimplified) link between attribution and the availability of conduct-based immunity for foreign officials who violate international law. Many of the conceptual and doctrinal questions flowing from the fact that legal persons can only act through natural persons arise in the context of both state and corporate responsibility. However, Bilsky does not dwell on these issues, and instead appears to accept the anthropomorphization of corporations as a necessary, if conceptually imperfect, mechanism for assigning responsibility to organizational actors under tort law and based on equitable principles such as unjust enrichment.  

As unimaginable as the Holocaust was, certain Nazi-era policies represent an extreme manifestation of the collective, state-sanctioned mobilization of violence seen in other examples, both historical and contemporary. Increased attention to calls for accountability for historical injustices raises persistent questions about the temporal, spatial, and genealogical boundaries of collective responsibility, and collective entitlement to redress. Tel Aviv University, where I have taught as a visitor, has been called upon to acknowledge that is was built on the Palestinian village of Sheikh Muwanis; UC Hastings College of the Law in San Francisco, where I have taught for over a decade, has been faulted for bearing the name of its founder, California Supreme Court Chief Justice Serranus Clinton Hastings, who, like California Governor Leland Stanford, profited from his ability to acquire land titles by promoting the massacre of Native Americans. In the United States, debates persist about reparations for slavery and other domestic atrocities; meanwhile, Palestinian victims of Israeli policies have sought redress in U.S. courts, including under the ATS.  

Bilsky observes: 

In [the traditional criminal law] model, the culprit characteristically is an individual, and the state intervenes as the accuser and the agent for enforcing and defending violated norms of community order. The jurisprudence of atrocity begins with the opposite assumption. Here the state is no longer the locus of legality, but rather the source of illegality.   

Identifying the state as the source of illegality also casts “ordinary” citizens—not just government officials—in the light of potential accomplices. The Nuremberg trials deliberately singled out those deemed most culpable in the name of post-war reconstruction of German society; some degree of national amnesia was seen as a prerequisite for national healing. 

In the United States and in Israel today, government policies protect some and inflict violence on others. Bilsky urges us to “direct our attention to designing mechanisms that are fair, participative, and apt to fulfill important public functions such as deliberation, fact finding, and the production of public narratives.” These are worthy goals, and ones that will continue to prove salient as long as bureaucratic institutions—both public and private—engage in acts that cause pervasive human suffering.

New Symposium: Leora Bilsky’s, The Holocaust, Corporations and the Law: Unfinished Business

I’m very excited to host a discussion of Leora Bilsky’s outstanding book entitled The Holocaust, Corporations, and the Law: Unfinished Business (Michigan, 2017). As per usual, I will avoid an extensive introduction to the book, especially because the text contains a very helpful synopsis that I paste below. I’m also thrilled to host an excellent array of scholars (see a list here), who all work on these issues from different vantage points, in the hope of stimulating helpful creative reflections on this important new text.  

Here then, is the publisher’s summation of Bilsky’s argument:  

The Holocaust, Corporations, and the Law explores the challenge posed by the Holocaust to legal and political thought by examining the multiple issues raised by the restitution class actions brought against Swiss banks and German corporations before American federal courts in the 1990s. Prior to these lawsuits, the legal treatment of the Holocaust had been dominated by criminal law and its individualistic assumptions and had consistently failed to relate to the structural aspects of Nazi crimes, which relied on a modern bureaucratic apparatus and the cooperation of the private sector. Although the class action suits of the 1990s were settled for unprecedented amounts of money, the defendants did not formally assume any legal responsibility. Thus the lawsuits were bitterly criticized by lawyers for betraying justice and by historians for distorting history. 

Leora Bilsky argues that class action litigation and settlement offer a mode of accountability that is well-suited to addressing the bureaucratic nature of business involvement in atrocities. Engaging critically with contemporary debates about corporate responsibility for human rights violations and assumptions about what constitutes “law,” she argues for the need to design processes that would make multinational corporations accountable in the era of globalization. She examines the implications of this new legal constellation for transitional justice and the relationship between law and history, as well as for community and representation in a postnational world. In this way, her novel interpretation of the restitution lawsuits not only adds an important dimension to the study of Holocaust trials, but also makes an innovative contribution to broader and pressing contemporary legal and political debates. In an era when corporations are ever more powerful (and international in their reach), Bilsky’s arguments will attract attention beyond those interested in the Holocaust and its long shadow. 

Leora Bilsky is professor of law and director of the Minerva Center for Human Rights at Tel Aviv University. 

Pluralism and the Alegitimacy of International Criminal Law

Markus D. Dubber is Professor of Law and Director of the University of Toronto’s interdisciplinary Centre for Ethics. Much of Markus’s scholarship has focused on theoretical, comparative, and historical aspects of criminal law.

Stewart & Kiyani’s sweeping article, The Ahistoricism of Legal Pluralism in International Criminal Law, makes an important contribution to the literature on international criminal law, and many other topics besides. It covers so much ground that I’m in no position to comment on much, or even most, of it, but I’ll spell out a few of the thoughts that arose while reading this stimulating paper.

Historical analysis as critical analysis. Given my own (mis-)adventures in historical analysis of law and historical methodology,[1] it’s no surprise that I wholeheartedly agree with the authors that international criminal law, and in fact all of criminal law (comparative and domestic, regional and parochial) needs more history, to paraphrase Christopher Walken. The authors not only insist that it’s worth looking into the history of legal norms but also aren’t shy about putting that historical inquiry to critical use. It’s not just that historical analysis is worth doing for its own sake (I certainly learned a lot from their article) but this historical analysis then allows them to formulate a critique of a position(s) they describe as “pluralism.” And so we see, for instance, that Japanese criminal law is German criminal law and that, in fact, Japanese criminal law swallowed German criminal law whole for a specific (power-political) reason in a specific historical context, as a kind of exercise in self-colonization or preemptive imperialization. I have no idea whether this story holds water, but it makes sense on its face, and certainly enough sense to suggest the need for further inquiry and, more important for the authors’ purposes, the need to take a breath before treating Japanese criminal law as specifically (and characteristically? genuinely?) Japanese criminal law, whatever that would mean, and whyever that would matter.

Pluralism. Why it would matter, according to the authors, is: pluralism! “Pluralism,” in the authors’ telling, comes in a descriptive and a normative flavor. Their paper takes issue with both versions, though the second—normative—one takes the brunt of their critical question-raising (which, in the end, politely pulls its punches and, as a result, never quite evolves into an all-out critique). The descriptive version is “ahistorical” and, more important, misleading because international criminal law isn’t always as pluralistic as it might appear: if historical analysis shows that, to stick with our example, Japanese criminal law is German criminal law then what looks like pluralism is really just duplicatism: German criminal law by different names. But, leaving that aside, even if we maintain—descriptively—a distinction between Japanese and German criminal law (they are, after all, not identical!), then the supposed fact of pluralism doesn’t translate into the desideratum of pluralism. For it turns out that local doctrinal norms may be poor indicators of local social norms because (ignoring a more basic question regarding the relationship between—artificial?—doctrinal norms and—real?—social norms) they may not be truly local, all the way down; upon closer inquiry of the historical kind, they instead turn out to be foreign, alien, “irritating,” “partial,” “dysfunctional.”

International criminal law. But why does pluralism matter? Why is it a good thing that pluralism is a good thing in international criminal law? I take it the apparent interest in, and professed preference for, legal, social, cultural, etc. pluralism (or “diversity”) has something to do with the existential anxiety of international criminal law. Is it legitimate? Is it imperialistic? Is it racist? Socially, cultural, politically, economically, legally hegemonic? Since self-government (most obviously by personal consent), the familiar mode of legitimation of modern (liberal) law, including—at least in theory—modern criminal law, isn’t available in the self-made sui generis, stateless, asovereign, and nonhierarchical realm of international criminal law, its oppressive potential, I suppose, is thought to be mitigated (rather than acknowledged and justified) by showing respect for a vague notion of “pluralism.” “Pluralism” here might mean nothing more than not universalism or not Western/Northern imperialism (leaving conveniently unclear what it is, rather than what it is not). Pluralistic international criminal law thus becomes international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy.

This anxiety about legitimacy turns out to be both appropriate and inapposite, at the same time. Appropriate because there is a very real problem with a system of international criminal law that threatens and inflicts penal violence on persons, insofar as that system holds itself out a system of law in a very particular, liberal, Western, enlightenment sense, namely in the sense of a then-radically new mode of governance grounded in the conception of the subjects and objects of penal power as persons marked by, and only by, their capacity for autonomy, or self-government (rather than their place on some status hierarchy or other, e.g., patriarchalism). This enormous, and prima facie unmeetable, legitimacy challenge is not unique to international criminal law; it applies to any (but only any) political-legal regime that regards itself as committed to this conception of law, domestic, regional, international, global.

Inapposite insofar as international criminal law is, in fact, a misnomer.[2] Instead of conceptualizing international criminal law as a system of law, it may be useful to regard it as a regime of police, where police is understood as that long-pedigreed patriarchal mode of governance on which the modern conception of law cut its teeth during the long turn of the eighteenth century. In this (historicizing…) light, international criminal law appears as an alegitimate regime of discretionary governance in which technically and supposedly asovereign subjects exercise penal power over categorically distinct—and inferior—objects (pirates, ex lex, outlaw, vogelfrei, hostis humani generis, all vanquished, none victorious, evil creatures beyond the pale, for whom punishment under international criminal law is a merciful alternative to a far worse fate, etc.).

Incapable of facing its legitimacy challenge head-on, international criminal law instead makes do with professions of concern about “pluralism.” Sensitivity to pluralism, in this light, appears as part of a general attempt to obfuscate and thereby to manage, rather than to address, the fundamental legitimacy crisis of international criminal law as law…ironically, by highlighting the superior character and benign intentions, if not the benevolence, of its subject-protagonists, however unconstrained by, say, formal “principles of legality” their penal actions may be.

[1] E.g., Markus D. Dubber, The Police Power: Patriarchy and the Foundations of American Government (2005); Markus D. Dubber, “Legal History as Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law,” in Oxford Handbook of Legal History (Markus D. Dubber & Christopher Tomlins eds., forthcoming 2018) [SSRN].

[2] See Markus D. Dubber, “Common Civility: The Culture of Alegality in International Criminal Law,” 24 Leiden Journal of International Law 923 (2011) [SSRN]; see generally Markus D. Dubber, The Dual Penal State (forthcoming 2018).

New Symposium: The Ahistoricism of Legal Pluralism in International Criminal Justice

I am very pleased to host a new mini-symposium on a long article I co-authored with Asad Kiyani, entitled the Ahistoricism of Legal Pluralism in International Criminal Justice. Because of length constraints, the American Journal of Comparative Law could only publish a shorter version of the piece, so with their blessing, Asad and I have decided to publish the longer version online and invite a series of excellent scholars to debate this longer version as part of this blog’s commitment to curating respectful critique of new scholarship. The longer version we discuss here contains a fourth part focused on criminal law procedure in Argentina and post WWI trials in Europe. In this additional part, we use these two illustrations, first as a counterexample that acts as a null hypothesis for the remainder of our piece, then as a qualification of this initial counterexample. We are thrilled to have an eclectic group of scholars who work on these issues from different disciplinary backgrounds criticize the piece, and hope that the dialogue spawns further debate within legal pluralism as well as international criminal justice. The article’s abstract follows: 

International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal laws that inform ICL leads to (a) the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural and political values; and (b) in the limited instances where criminal law doctrine does reflect underlying societal values, an overly general assumption that respecting the various embodiments of this law is best for ICLThese oversights result in important normative distortions, with major implications for the field’s self-image, function and legitimacy. In particular, scholars and courts overlook that much criminal law doctrine globally is the result of either a colonial imposition or an “unsuccessful” legal transplant, as well as historical examples where respecting pre-existing doctrinal arrangements undermined the value of postwar trials on any semi-defensible measure. In this Article, we revisit a cross-section of this missing history to contribute to both Legal Pluralism and ICL. For the former, we demonstrate that there is nothing inherently good about Legal Pluralism, and that in some instances, a shift from its descriptive origins into a more prescriptive form risks condoning illegitimate or dysfunctional law. For ICL, our historiography shows how partiality is embedded in the very substance of ICL doctrine, beyond just the politics of its enforcement. At one level, this realization opens up the possibility of renegotiating a universal ICL that, at least in certain circumstances, is actually more plural in terms of values and interests than doctrinal pluralism (although the dangers of power masquerading as universalism are also profound). At another, it suggests that institutions capable of trying international crimes need to do far more to step away from the ugly legal histories they have inherited. 

Before we begin the mini-symposium, a word from behind the scenes. First, this piece resulted from an excellent collaboration between Asad and I. As the article attests, Asad and I were very equally involved in all facets of its production, including design, research, (re)writing, editing and workshopping. The collaboration was a great pleasure, from which I learned a lot. In terms of process, this project consumed a tremendous amount of energy. On more than one occasion, we concluded that we had to rewrite large sections. The history of the criminal law in entire regions of the world was excised with the stroke of a pen, entire subject-areas were calved off after more than one person said we had two papers here not one, and several times, we concluded that despite already having spent years on it, we had to begin new research on different periods and legal systems. I think I speak for Asad as well when I say that we learned a great deal through this project and are very pleased to see it completed and debated by so many outstanding scholars whose work we admire.