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.
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.