Wenar’s New Right to Democracy Through Peoples’ Sovereignty over Natural Resources

A substantial portion of the natural resources we consume are stolen. My own thinking about this problem emerged from the ground-up, so to speak, as I realised that certain atrocities I was involved in investigating for an international criminal tribunal almost two decades ago were facilitated by resource predation that was completely devoid of any legal authority. This initial sense of shock was later followed by an unwelcome realisation that the same was true for a substantial body of resource transactions in wars throughout the world, and that in large part, these realities represent a continuation of practices instantiated in colonialism. Initially, my scholarly work involved thinking about how the war crime of pillage might apply to these wartime transactions,[1] and after a long period away from the topic working on tangential themes, I am now completing a second project considering how using pillage of natural resources to address resource wars might bolster (or undermine) the passivist ambition behind the prohibition on the use of force in international law. It is a pleasure to host a discussion of Wenar’s overlapping work, and to present a set of criticisms that apply to my earlier thinking to some extent too.

Wenar’s book starts with similar intuitions to my own, but he takes matters in a narrower, broader then different direction altogether. His focus is narrower than mine in that he is preoccupied with the theft of oil and oil alone. Although many of his insights might be easily transposed to other natural resources, his analysis reasonably selects one of the most spectacular exemplars. Yet his focus is broader than mine because, even though he certainly takes resource predation in war into account and references plunder on occasion, his analysis is not tied to warfare in any meaningful way. On the contrary, Blood Oil is a text that highlights how deference to “might makes right” in international law enables the theft of natural resources the world over by conferring title in natural resources on whatever actor is able to forcibly control them. For Wenar, this control need not necessarily be achieved through warfare, providing his arguments with far wider normative sweep. By implication, Wenar’s project is considerably more ambitious than my own, but this comes at the price of increased exposure to arguments from a critical perspective that I hoped he might react to.

Blood Oil’s most significant contribution lies in its recourse to democracy as a solution to the underlying problem, indeed it may be that democracy is Wenar’s central pre-occupation. I have set out how Wenar gets to democracy through natural resources in my introduction to this symposium,[2] but I summarize my reading of that trajectory again here briefly. Reflecting earlier work in the philosophical tradition, Wenar argues that international law’s willingness to recognize political groups that forcibly acquire control over natural resource endowments makes international law complicit in the collapse of domestic institutions, the ubiquity of coup cultures, the predominance of patronage networks as forms of political governance, and the catastrophic consequences these phenomena entail for local populations. In his own words, “[r]ewarding violence with rights makes a nonsense of property.”[3] Doing so “violates rights on a massive scale, and it causes enormous suffering;”[4] and it undermines democracy since “[t]he money that goes to these men wins them unaccountable power: power unchecked by law or custom or conscience.”[5]

Wenar’s solution is to turn international law against itself by formally insisting on the pre-existing rights of peoples to their natural resources in international human rights treaties, then declaring stolen resources that are alienated in violation of the four principles he announces to ascertain whether peoples have demonstrated meaningful consent to the sale of their resource wealth.[6] Through this method, he ties what he calls “bare-bones civil liberties and basic political rights”[7] to the ability of states to pass good title in resources harvested from within their territory. The implications of the legal construction he supports are stark: non-democratic states cannot sell natural resources. As Wenar puts it, “[t]he people cannot possibly control their resources under a highly authoritarian regime: a military junta or a personalistic dictatorship, an autocratic theocracy or a single-party state.”[8] Thus, peoples’ ownership over natural resources acts as a mechanism to ratchet up global democracy. Although much moral and political philosophy would support this goal, I here invite Wenar to reflect on analogies with areas of international law that also suggest the danger of important unintended consequences.

A perspective that draws on a critical history of international law seems particularly germane since international law has a long history of: (a) attempting to use international human rights law to leverage democracy; (b) making international recognition conditional upon a putative government’s democratic credentials; and (c) ostracizing communities from global trade based on their government’s deficiencies. I wonder, therefore, if engaging with this history alongside Wenar’s innovative new argument also reinforces the value of an intellectual dialogue between philosophy and international law.[9] At a certain juncture in this brilliant text, Wenar is critical of “international lawyers” as part of the problem. I want to disaggregate that group slightly by demonstrating some diversity of opinion amongst them and, in keeping with the focus of this blog, show how the history of international law offers different vantage points that may be intellectually useful to this global justice project. As I say, I am also motivated to ask Wenar to respond to criticisms that, to some extent, are also applicable to my own earlier work.

While Wenar is eager to undercut international law’s deference to “might makes right,” he simultaneously relies on international law in order to call pre-existing and legal the peoples’ right to natural resources he uses to do that work. Stated differently, instead of arguing for people’s rights over natural resources as a purely normative matter, he places important weight on his view that the concept is already instantiated in international human rights treaties. Doctrinally, that view sides with some international lawyers,[10] and plays down the very numerous references to states as owners of natural resources alongside peoples in international law.[11] More importantly though, I wonder if this deference to human rights doctrine leaves a core philosophical question unanswered. Since reading his excellent book, it has struck me that on the normative plane, the distinction between states versus peoples as owners of natural resources may boil down to a contest between rule of law and democracy as primary objectives. Thus, I wonder if readers might benefit from a leading moral and political philosopher’s assessment of whether rule of law is a more viable target to shoot for in the global resource sector.

Relatedly, what constitutes a “people” for Wenar’s theory is of major importance. This is particularly true if the contest between states’ and peoples’ ownership over natural resources overlooks indigenous rights to resource wealth within established nation states.[12] The United Nations Declarations on Rights of Indigenous Peoples stipulates that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Likewise, an important body of caselaw is developing within human rights bodies affirming indigenous rights to natural resources.[13] Thus, I wonder if treating “peoples” as an abstraction leaves unaddressed a whole set of questions that will likely be crucial to an indigenous perspective on these questions, such as how to understand indigenous ownership of natural resources as against majoritarian preferences within the post-colonial state, and equally importantly, whether using self-determination to affirm peoples’ rights to natural resources also enables political autonomy.[14]

As for democracy, Wenar’s work has important analogs in international law’s attempts to promote democratic governance, which might also assist his work. Wenar’s use of people’s ownership of natural resources to promote global democracy is interesting and novel, but the method itself has a long pedigree. In 1992, for instance, Thomas Franck wrote an especially influential article entitled The Emerging Right to Democratic Governance, wherein he too appealed to aspects of international human rights law to bolster democracy building.[15] Whereas Wenar draws on the peoples’ right over natural resources contained within the human right to self-determination, Franck used a range of different civil and political rights in the construction of his equivalent. Self-determination was certainly one of Franck’s emphases, but in addition, he pointed to freedom of expression in human rights treaties, the right to a participatory electoral process in the Universal Declaration of Human Rights, and the right to peace enshrined in the UN Charter.[16] The particular human rights Franck and Wenar employ partially overlap, but their strategies are more or less identical.

In Franck’s earlier iteration of the argument, the risks of imperialism were a central concern, so I wonder how Wenar would address these risks. While Franck wrote between the fall of the Berlin Wall and September 11, when all things seemed politically possible, much of his article was dedicated to tempering the anxiety that this new right to democratic government would turn out to be a trojan horse for neo-colonialism. Franck couched this worry in international law terms too, by exploring how the imposition of democracy might transgress the international law norm of non-interference in the domestic affairs of a state.[17] As we will see, that countervailing principle offers something of a push-back to projections of political uniformity globally. For Franck, his democratic norm ultimately sailed on the safe side of these rocks in ways that may be helpful to Wenar’s argument, but as a reflection of the relative diversity of opinion in the field, other international lawyers saw far greater peril. Martti Koskenniemi, for instance, called the argument “messianic,”[18] objecting that it amounted to “a call for contextual management of far-away societies in reference to Western liberal policies.”[19]

In a similarly critical spirit, Susan Marks’ review of the whole democratic entitlement movement in international law warned that “dire consequences” could follow when legitimacy is denied non-democratic states.[20] Her concern that the deployment of human rights as a mechanism for pro-democratic intervention might end up having predominantly negative, even dire, effects points to a second important theme I take up momentarily. For now, it is sufficient to summarize that Wenar’s use of human rights to generate democratic entitlements is anticipated in international law, that his intellectual predecessors were seriously preoccupied with the potential pitfalls involved in implementing the right, and that a major segment of international law scholarship criticized the endeavor as counterproductive. This history raises the interesting question whether Wenar’s new hook—natural resource ownership—can transcend these concerns and the politics that caused a rise and then fall of this very similar agenda at a point in history that was probably more amenable to the project.[21]

Beyond just human rights norms, the international law governing recognition offers a second parallel that might provide helpful insight. After all, it is the doctrine of recognition in international law that sustains the “might makes right” principle Wenar rightly views as a cause of so much suffering. In addressing this issue, Wenar views Western conferral of privileges over resource endowments to foreign authoritarian regimes via the international law of recognition as one of the primary means by which the West causes global poverty. To paraphrase the argument, Singer’s child drowning in the puddle is not the appropriate metaphor for our obligations vis-à-vis the global poor because we placed and maintain the child in the puddle, in part because our international laws of recognition confer warlords with title in natural resources.[22] To my mind, this critique of recognition likely misses the clearer ways the West causes poverty and fails to engage with the competing values recognition seeks to balance. Even if the doctrine of recognition is unquestionably a causal influence on this deplorable state of affairs, the deeper question is whether it is a necessary evil in the ugly world we find ourselves in.

In practice, states have waxed and waned in their willingness to make democratic credentials prerequisites for their recognition of foreign states and/or governments. In 1907, the Foreign Minister of Ecuador, Carlos Tobar, announced that his government would not recognize any entity that came to power through extra-constitutional means.[23] In 1913, President Wilson formally adopted this doctrine too, then employed it for the better part of two decades to withhold recognition from various would-be governments in South and Latin America.[24] By 1932, however, the practice of making recognition conditional on forms of government, democratic or otherwise, had fallen from favour.[25] Recipient states viewed the practice as a hypocritical violation of the principle of non-intervention in domestic affairs, since no government could trace its lineage to an unbroken line of democratic legitimacy.[26] And most significantly, withholding recognition from non-democratic regimes created a two tiered system; one within the bosom of international law and the other a group of pariahs. Quite apart from replicating standards of civilization, this bifurcation robbed states of a legal framework for governing their inevitable dealings with non-democratic regimes.[27]

In theory, the scholarly literature on recognition is extensive and diverse, but some of the leading scholars are also reluctant about treating democracy as a sine qua non for recognition in international law. Brad Roth, for instance, concludes his masterful treatment of these issues by arguing that “the absence of a meaningful ‘democratic entitlement’ in the international system ought not to be lamented; though superficially attractive, assertions of a new ‘democratic’ legalism pose serious dangers to international peace and security, and even to democracy itself.”[28] I provide a concrete illustration below, but I want to pause to bring the practice and theory of recognition together to show how they offer a significant contribution to the more recent philosophical projects focused on global justice. The combined effect of this international law theory and practice is that, whatever one might think of the underlying argumentation, the supposition that “might makes right” is an evil to be overturned likely requires a supplemental inquiry into whether the alternative might make matters even worse.

These concerns become particularly apparent if we turn to international law’s experience with sanctions. The assumption in Wenar’s great book (and sometimes in my own earlier thinking) is that once consumers refuse to purchase natural resources that are stolen from peoples, authoritarian governments will fall, resource wars will dissipate, poverty will decline and human beings will prosper. I have come to wonder if this logic mimics early thinking about sanctions in international law, where international institutions pressured whole societies in an attempt to coerce their uncooperative governments to comply with international law obligations. Significantly, experience has shown that depriving local populations of access to global markets because of their government’s intransigence can have debilitating effects for local peoples, without necessarily changing their government’s behavior as desired.[29] In fact, sanctions’ social, physical and psychic impact could even rise to the level of a crime against humanity in certain circumstances. The question is, could these unintended side-effects also flow from attempts to coerce democracy, thereby providing an illustration of the “dire consequences” and “dangers to international peace and security, and even to democracy itself” that critics have warned about?  

This brings me to two final queries about this highly original, brilliantly written, hugely important book. Perhaps the fact that this new project focuses on natural resources offers a point of differentiation with all that came before in international law, which will allow it to steer clear of some of the objections I share here. Likewise, an appeal to consumers directly could possibly bypass international law and the politics that undergird it, to better achieve the enormously important goals Wenar seeks to promote. Both these questions strike me as valuable further inquiries that could be helpful to those who are for or against the new form of promoting democratic entitlement globally that Wenar has developed. In this spirit, it is a real pleasure to host Wenar’s work on this blog, which I constructed in a bid to promote exactly this type of critical but respectful dialogue about aesthetically pleasing, paradigm shifting work in the service of crucially important values.

[1] See Corporate War Crimes: Prosecuting Pillage of Natural Resources. See also, www.pillageconference.org.

[2] See New Symposium: Leif Wenar’s Blood Oil: Tyrants, Violence and the Rules that Run the World.

[3] Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World 73 (1 edition ed. 2015).

[4] Id. at 334.

[5] Id. at xlviii.

[6] Wenar argues that a people’s consent over the alienation of their natural resources implies four basic principles, namely: (a) information (citizens must be able to find out about the management of their resources); (b) independence (citizens’ approval must not be forced); (c) deliberation (citizens must be able to discuss the management of their resources with each other; and (d) dissent (citizens must be able to dissent from management of their natural resources without risking severe costs). Id. at 227.

[7] Id. at 228.

[8] Id. at 229.

[9] For the leading scholarly work in this spirit, see Steven R. Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (1 edition ed. 2015). A mini-symposium on his book is online here.

[10] See, for instance, Emerka Duruigbo, Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law, 38 Geo. Wash. Int’l L. Rev. 33 (2006).

[11] In reviewing this doctrinal question many moons ago, my own work drew on much scholarly literature, General Assembly Resolutions and treaty provisions. To cite an example of the last of these, Article 21(1) of the African Charter on Human and Peoples’ Rights states that “[a]ll peoples shall freely dispose of their wealth and natural resources,” whereas Article 21(4) of the same treaty indicates that “states parties … shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.” See Corporate War Crimes: Prosecuting Pillage of Natural Resources, paras. 56-60. My own review concluded that “given that permanent sovereignty over natural resources vests in both peoples and states, the doctrine can arguably be relevant to pillage cases in either scenario.” See Corporate War Crimes: Prosecuting Pillage of Natural Resources, para. 58.

[12] See Corporate War Crimes: Prosecuting Pillage of Natural Resources, paras. 61-65.

[13] Ibid.

[14] Karen Engle shows how concerns about encouraging political self-determination among indigenous peoples led states to recognize but limit self-determination during the negotiation of the UN Declaration on Rights of Indigenous Peoples. See K. Engle, On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights, 22 Eur. J. Int. Law 141–163, 144–148 (2011).

[15] Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int. Law 46–91 (1992).

[16] Ibid.

[17] Ibid, at 68.

[18] Martti Koskenniemi, Legal Cosmopolitanism: Tom Franck’s Messianic World, 35 N. Y. Univ. J. Int. Law Polit. 471–486 (2002).

[19] Martti Koskenniemi, Intolerant Democracies: A Reaction Responses, 37 Harv. Int. Law J. 231–234, 233 (1996).

[20] Susan Marks, International law, democracy, and the end of history, in Democratic Governance and International Law 532–566, 565 (Gregory H. Fox & Brad R. Roth eds., 2000), https://www.cambridge.org/core/product/identifier/CBO9780511522307A032/type/book_part (last visited Feb 27, 2019).

[21] J. d’Aspremont, The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks, 22 Eur. J. Int. Law 549–570 (2011).

[22] Thomas W. Pogge, World Poverty and Human Rights (2008).

[23] Ti-chiang Chen, The International Law of Recognition, with Special Reference to Practice in Great Britain and the United States 108 (1951), http://archive.org/details/cu31924016945770 (last visited Nov 9, 2016).

[24] Ibid.

[25] Id. at 108.; d’Aspremont argues that there was a resurgence of democracy as a criteria for recognition after the 1990s. See Jean d’Aspremont, L’Etat non-démocratique en droit internationalion: Etude critique du droit international positif et de la pratique contemporaine (2008).

[26] Chen, supra note 22 at 108.

[27] Sean D. Murphy, Democratic Legitimacy and the Recognition of States and Governments, 48 Int. Comp. Law Q. 545–581, 568–570 (1999).

[28] Brad R. Roth, Governmental Illegitimacy in International Law 413 (1999).

[29] See, for example, The Sanctions Decade: Assessing UN Strategies in the 1990s, (David Cortright & Lopez, George A. eds., 2000); Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law (1 edition ed. 2007).

Ending the Tyranny of Anonymous Commodities: Trade Rules Can End the Laundering of Stolen Goods and Improve Governance in Producing Countries

Philippe Le Billon  is Professor at the University of British Columbia with the Department of Geography and the School of Public Policy and Global Affairs.  His main research areas include the political economy of war, the governance of primary commodity sectors, and illicit financial flows.

Every day, consumers worldwide spend about US$11 billion on oil products. For those controlling its flow, oil provides a concentrated revenue stream without equal and a source of enormous social power. Economic development in the twentieth century owes much to the cheap and flexible energy that an expanding flow of oil has provided. But this development has come at a high price, especially for people in producing regions.[1]

Turning oil wealth into broadly based social development is a massive challenge for producing countries. Oil-field development requires large capital investment but creates relatively few direct jobs. Developing ‘through oil’ thus largely relies on the capture and allocation of oil revenues. While oil earnings are generally impressive, they are also highly volatile and often negatively distort the rest of the economy. Too often, oil wealth also disproportionately ends up with ruling elites and foreign corporations, despite oil being in most cases “public property.” These challenges require sound long-term policies, robust and accountable governance institutions, and a diversified economy able to withstand the effects of windfall. Yet oil wealth can work against these requirements by fuelling short-term populist policies or unrealistic long-term plans, concentrating rather than diversifying economic activity through overvalued currency and labour-market distortions, and weakening instead of consolidating institutions through corruption, bloated bureaucracies, as well as entrenched patronage and patriarchy.[2]

These challenges are often compounded by the destructive will and personal interests of rulers in oil producing countries. Oil wealth can sustain tyrannies by breaking the link between taxation and representation, supporting belligerent autocrats, and securing the support of foreign powers eager to selectively maintain rulers for the sake of oil supplies and lucrative contracts. In some of the worst cases, oil wealth sustains chronic insurgencies and enables aggressive leaders to take their country to war.[3] Not only is oil stolen from its rightful owners, the people, millions can die as a result of its proceeds being spent by corrupt and incompetent rulers.

Hundreds of scholars have examined these effects, including lack of accountability of resource-fuelled autocrats and rebels, the complicity of corporations and consumers, and the blowbacks resulting from dealing with resource-rich autocrats. In turn, the fair-trade movement, blood diamond & conflict mineral campaigns, and repeated UN embargoes have all pursued (at least in principle) the goal of reducing the suffering arising from the violence of commodity production, unaccountable supply chains, and abuses of power by commodity-funded rulers.

With ‘Blood Oil’, and the advocacy associated with the book, Leif Wenar raises further public awareness on these problems, and squarely puts international law governing commodity trade on the policy agenda. Wenar’s core argument is that ‘might makes right’ still constitutes the foundational norm of commodity trading: Whoever controls a country can sell its resources. His main call is thus to put an end to the unlawful control of resources by illegitimate and unaccountable rulers. The core solution, for Wenar, is a Clean Trade regime vigorously implementing a more expansive and robust definition of ‘stolen goods’.

The idea of restricting trade to ‘clean commodities’ is not novel, but such restrictions have so far fallen short of a systemic redrawing of trade rules around exporting regime characteristics. Campaigns on diamond trade first targeted the apartheid regime in South Africa before moving on to blood diamonds sustaining rebellions in Angola and Sierra Leone; yet the ‘Kimberley Certification’ scheme failed to move beyond rebellion to cover human rights and environmental abuses. Civil society organizations have also rallied against specific commodity exports, but these campaigns have generally targeted the complicity of individual western companies, rather than the resource ownership of rulers in exporting states. The United Nations Security Council imposed commodity sanctions in at least 26, though mostly on rebel groups rather than governments. Individual governments, and most notably the US, have also imposed unilateral sanctions on specific regimes, but selection criteria had more to do with US ‘national interests’ than with the security and well-being of population in exporting countries. More systematically, several schemes have attempted to limit commodity exports to those matching norms of good governance, but these have looked at practices within specific sectors, rather than the type of regime and the record of rulers in exporting countries.[4]

Overall, commodities still remain largely anonymous when it comes to their rightful owners and social impacts. This has no place in the workings of 21st century commodity trade; when so many traceability instruments and information channels are available to inform authorities and consumers about the provenance and impacts of commodities in producing countries. Voluntary instruments are likely to remain limited in their effectiveness, precisely because they are working in a competitive market characterized by an uneven ethical playing field. While some companies may see an interest in ‘clean-sourcing’, many will continue to look at the bottom line. More specifically, the oil market is relatively fluid, and do-gooders will carry the brunt of price differentials for ‘fair oil’ while others will reap the benefit of lower prices for ‘stolen oil’. State-led public policies on sourcing would be more effective, but decisions would come under pressure from many other dimensions, including supply security, affordability, and geopolitical concerns – reproducing many of the distortions observed for UN Security Council sanctions. The best avenue may rest in the legal domain: when claimants can get compensation for having their goods stolen by their illegitimate rulers, and corporate intermediaries in the receiving of stolen goods can be deterred through extensive fines. Corruption by international companies has not come to an end, but some progress has been made since heavy fines and costly reputational damage incentivized companies to change their practices.[5] The same can occur with stolen goods.

[1] Bridge, Gavin, and Philippe Le Billon. Oil. John Wiley & Sons, 2017.

[2] Ross, M. (2012). The oil curse: how petroleum wealth shapes the development of nations. Princeton University Press.

[3] Le Billon, P. (2012). Wars of plunder: Conflicts, profits and the politics of resources. New York: Columbia University Press; Colgan, J. D. (2013). Petro-aggression: When oil causes war. Cambridge University Press.

[4] Le Billon, P., & Nicholls, E. (2007). Ending ‘resource wars’: Revenue sharing, economic sanction or military intervention? International Peacekeeping14(5), 613-632; Carisch, E., Rickard-Martin, L., & Meister, S. R. (2017). Commodity Sanctions. In The Evolution of UN Sanctions (pp. 111-132). Springer, Cham.

[5] Samanta, S., & Sanyal, R. (2016). The Effect of the OECD Convention in Reducing Bribery in International Business. Global Business and Management Research8(1), 68; Arbatskaya, M. N., & Mialon, H. M. (2017). The Impact of the Foreign Corrupt Practices Act on Competitiveness, Bribery, and Investment. Available at SSRN: https://ssrn.com/abstract=3001262

Blood Oil: A Plea for Progressive Reform or a Philosopher’s Utopia?

Phoebe Okowa is Professor of Public International Law at Queen Mary University of London.  Her teaching interests are in the broad area of Public International Law, especially the law of armed conflict, international environmental law and international criminal law.  She has been a Visiting Professor at New York University School of Law, University of Lille and Stockholm. A member of the Permanent Court of Arbitration, she has advised Public Sector Organizations on questions of Public International Law and served as a member of the IUCN Committee on Environmental Law and the International Law Association Committee on Transnational Enforcement of Environmental Law.

This is an important book. Although not the first to document the extreme deprivation that exists in countries abundant with natural resources or the kleptocratic manner in which those in authority enrich themselves at the expense of their populations, it is to my knowledge the first to offer a systematic explanation of our collective complicity as citizens in this kleptocratic enterprise. The existing literature whether by international lawyers or political scientists, have largely documented the complicity of governments and large corporations in atrocities perpetrated by autocratic and unaccountable regimes as well by rebel groups; collectively, these groups have been able to inflict unimaginable misery on political communities, domestic and international through revenues generated by natural resources.  The first part of this book is largely confirmatory of the themes in the existing body of literature that have explored the predatory and destabilizing role of natural resources in perpetuating autocracy, religious intolerance, mass human rights abuses and general global insecurity.  But this is not a rehearsal of well–trodden arguments or sweeping generalizations. The book is meticulously researched and backed by impressive data as evidenced by the detailed account of the extensive abuse of power by President Obiang of Equatorial Guinea, a country and a president not usually the stuff of headlines! But it is not just explanatory of the pernicious effects of natural resources especially oil.  The book postulates an agenda for change, a plea for responsible citizenship that would require individuals in rich countries to give up their dependence on oil from repressive regimes, loosely categorized as those governments that are in not in any way accountable to their populations especially natural in resource matters.

Thematically this review is by no means comprehensive and in many ways reflects my own disciplinary biases as a public international lawyer.  However, it is probably a good area to focus on because from the outset, the author does not hide his disdain for the normative framework of international law and its supporting institutions.  He is particularly critical of international law’s broad acceptance of governments’ ‘effective control’ as the basis of authority and it’s concomitant failure to give substance to ‘popular sovereignty’ in natural resource transactions. Broadly, he sees international law’s unquestioning acceptance of ‘effectiveness’ as being in conflict with its commitment in international treaties, that the resources of a territory belong to its people. Moreover drawing on examples from domestic law, he points out the inherent contradiction in a system notionally committed to the rule of law also sanctioning a power structure characterized by ‘might is right’. The Putin’s, Obiang’s or Gaddafi’s are able to sell oil because by the rules of the system they are the recognized depositaries of public power, free to dispose of the natural resources of their territories even in the absence of tangible benefit to the populations themselves. Put crudely that international law itself sanctions the theft of natural resources by odious regimes from citizens who rightly own it.

It is true that international lawyers have long accepted that in general ‘effective control’ not democratic legitimacy or popular sovereignty is the basis of authority in international law. This is not because they would not prefer things to be otherwise – international law has never claimed that this it is a just or morally defensible rule, but it is a rule the reflects an acceptable compromise between the twin demands of justice and order in a pluralist community of states. It also a nod to the reality that co-operation and peaceful co-existence may in fact entail a considerable degree of deference to governance structures that are plainly undemocratic.  Few would disagree that effective control is in fact the bedrock on which, however imperfect, the present system of international peace and security rests.  The values that underpin Wenar’s plea for change have in fact been considerably undermined in post Gaddafi’s Libya or Saddam’s Iraq by misguided attempts to create a more democratic and accountable framework of governance, and to prioritize the demands of justice. To be clear, he is adamant that his is no call for pro-democratic intervention, but the coercive and intrusive economic measures advocated for in his Clean Trade Act would in each case have an effect, potentially as catastrophic as the military interventions in Iraq and Libya but this time affecting a multiplicity of regimes and millions of citizens. There are good reasons why the strictures on intervention are not limited to use of force but extend to all forms of economic and political coercion, especially when intended to bring about regime change.

There is also the deeply troubling fact that we live in an international system characterized by profound political inequality and in which the United States and the United Kingdom have played a pivotal role in the marginalization of states from the Global South, and have themselves been complicit in propping up some of the most repressive governments that emerged during the cold war period. Against this backdrop, any proposal of oversight by citizens of these same countries plays straight back into the narrative of subordination, a civilizing mission in all but name.  Moreover, it is surprising that not much thought is given in the book as to how those likely to be destabilized by the proposed system of boycott may react to them; for to have any veneer of legitimacy it must act at least in concert or with the the tacit approval of those with a stake in the system.  Congolese artisanal miners as the doomed US legislation (Dodd Franck 2010) indicates or Nigerian citizens dependent on oil revenue are unlikely to take very kindly to system of degrading tutelage overseen by American or British consumers, deciding when best to buy oil from their governments and when to retreat. Wenar’s remedial proposal has all the hallmarks a citizen sanctioned system of vigilante justice, without oversight or any form of accountability to the populations likely to be affected. Moreover, it assumes as a matter of fact that the citizens of rich nations, empowered to exercise oversight will act on principle free from bias or the influence of domestic partisan interests. The Dodd Franck conflict mineral legislation introduced in 2010 was designed to prevent US corporations from buying conflict minerals that were fuelling violence in the DRC is swiftly being reversed by the Trump administration not because of its devastating socio-economic impact, as the de facto boycott of Congolese minerals took hold, but because it puts US companies at a competitive disadvantage in the international market.  The litigation in US Courts challenging the Dodd Franck Act was singularly concerned with the first amendment rights of American corporations and the livelihoods of local stakeholders impoverished in the wake of its implementation has played no role at all in the formulation of American policy.

There in are fact good reasons why all legal systems including international law, generally frown on self-help, and when sanctioned, only as a most exceptional measure, and subject to important humanitarian safeguards. In the absence of adjudicatory structures of oversight, self-help quickly degenerates into an institutionalized system of witch-hunt against so called ‘pariah states’. The systematic boycotts proposed in the book, to the extent that it will be directed at largely oil producing Islamic states will if nothing else be a rallying point for political Islam and the attendant security implications.

The Nigerians, Venezuelans, or Saudi’s may wish for a more just and democratic framework for the distribution of oil revenues but arguably not at the expense of their own dignity and integrity as sovereign peoples. The futility of prolonged economic sanctions in Iraq and their effect in helping Saddam Hussein consolidate his hold on power, as an Arab hero resisting the forces of neo-colonialism, is a cautionary tale against attempts to bring about political change through external economic coercion. In the form outlined, Wenar’s Clean Trade Act sits rather uncomfortably with the sovereign equality of peoples and the overriding imperatives of maintaining peace and order. This is not to say that states must do as they please or that we must always look the other way, but any forms of pressure brought to bear must be consistent with the bedrock principles on which our shared security rests. A targeted campaign of boycott with a declared objective of regime change, even if that change emanates from the people themselves must also recognize that is a course of action potentially destabilizing the very communities it is meant to protect.

Blood Oil and the Individual Consumer

Christian Barry is a Professor of Philosophy in the Research School of the Social Sciences at the Australian National University. His areas of expertise are moral and political philosophy, with a focus on issues of international justice.

At the beginning of his inventive masterwork Blood Oil  Leif Wenar tells a compelling story about how individual consumers are implicated in severe harm abroad. We are accustomed to the depredations of authoritarian regimes, civil conflict, widespread human rights violations and extreme poverty far removed from our day to day activities. We can ring our hands and shake our heads, but what do we really have to do with any of these happenings? And given that we have little to do with them, how much cost can we actually be expected to take on to try to mitigate them? Wenar grabs us by the lapels and shakes us from such acquiescent patterns of thinking. He argues that we are contributing to many such harms, and doing so directly though our everyday purchasing behavior. We are not, as we suppose, innocent bystanders, but are unwitting contributors to death and terror, filling the pockets of merciless men who steal their countries’ resources and terrorize their populations (xvi) when we fill our tanks and do our shopping at the local mall.

While the casual links between individual consumers and these harms may be long and complex, the mechanisms that hold them together are, on Wenar’s telling, surprisingly simple. The problem is that trade is governed by “an archaic rule of international trade that violates the most fundamental rule of capitalism: to protect property rights.” This archaic rule is what Wenar calls effectiveness. The content of this rule is that “coercive control over a population (“might”) will result in legal control over that population’s resources (“right”)(xlv). Basically, “whoever can seize it may sell it” (76). Effectiveness creates powerful incentives for people to take and maintain control over resources, which explains why so many resource-rich countries suffer from social and political dis-function. And it is because of this rule that the money we spend at filling stations and on consumer goods goes back into the pockets of oppressive rulers and fuels intense and violent competition over the control of resources.

Yet while Wenar confronts individuals directly for their role in this deeply unjust system of trade, the reform proposals he offers are not things that individuals, qua individuals, can do. Rather, they focus primarily on what states can do to make their trade governed by the principle of popular sovereignty over resources, rather than effectiveness (‘might makes right’). That is, states must cease to engage in trade in resources with governments that fail to meet even quite minimal standards of legitimacy—a Clean Trade Act (283). And they must impose tariffs on goods imported from countries that use resources from such regimes as inputs to their production, with the funds held until they can be returned to the exporting countries once their governments are legitimate—a Clean Hands Trust (289).

Supposing that Wenar’s analysis of what states ought to do—adopt Clean Trade—is correct, where does this leave the individual consumers with which he begins? One answer might seem straightforward: individual consumers should join together to bring about the changes in the policies of the states that represent them to comply with the norms of Clean Trade. Wenar points out that it is only because our domestic legal regimes treat despotic regimes as entitled to sell their countries’ resources to us, and because they protect out property rights in the things we buy involving such resources, that the archaic rule remains in place. It is our governments that identify which foreigners possess legal rights to sell foreign resources to us, and were they to suspend such rights (as in the case of the executive order targeting Sudan) we could not purchase them (106, 108). So the natural approach would be to work together to bring about legal reform in our own countries so as to delink ourselves from non-clean trade.

As a claim about what we ought to do, this seems unobjectionable. However, the path from what we ought to do, to what I and other individuals reading his book ought to do, is an uneasy one. I cannot count on others doing what we ought together do in deciding how to act.  Indeed, the unwillingness of others to do what we ought to do may change what I ought to do. If it turns out that the concerted action of willing individuals will be highly unlikely to bring about the reforms Wenar proposes, where does that leave us? This is not an idle question. Although Wenar carefully shows how his reforms may be incentive compatible, there are also, he notes, very powerful interests that would be mobilized against them (230). Certainly, no major political party in any Western country has made trade reforms of this type part of their agenda, and it is hardly obvious that this will change in the near future.

Note that the kind of responsibility that Wenar has attributed to consumers—not to contribute to harming innocent people and stealing resources that belong to them—is quite stringent. We cannot easily excuse ignoring this responsibility by appealing to the costs to ourselves of doing so, or to other valued moral ends that our conduct will bring about if we act against it (as Wenar details, existing trade generates great benefits, as well as harms, which might be diminished with reduction in trade volumes (x). So throwing up our hands in frustration at the unwillingness of others to help bring about the desired institutional reforms while getting on with our ordinary business is not, on this reasoning, an option. Nor would the option of supporting Clean Trade policies that we are confident will not be adopted now or in the near future seem sufficient. One option would be for individuals to withdraw from involvement in trade with countries that do not practice popular resource sovereignty. Wenar suggests that this is not really feasible. He notes that it is nearly impossible to function in modern societies without using petroleum-based products (xxxvi). But this argument is not entirely convincing. While it may be true that we can hardly avoid consuming oil, we can surely limit significantly the degree to which we consume it and products composed of it. And it seems we should take on such costs, if that is really what it takes to refrain from putting lots of money in the hands of repressive regimes.  So at the very least his argument would seem to trigger a quite stringent responsibility to reduce consumption—an implication he does not explicitly embrace in his book. Alternatively, individuals might seek to avoid consumption of oil from at least those countries that do not embrace popular sovereignty over resources. Wenar is skeptical that we can do this either, noting that the supply chains involving such products are too complex and intertwined.  But should we accept that it is really impossible to gain more information about where the oil we consume is from? Would it not be possible for citizens to start to demand such information from firms that sell goods to them? Pressure of this sort might be difficult to generate, but arguably much less difficult than bringing about substantial institutional reform. And as Wenar there are example campaigns such as ‘publish what you pay’ that are at least encouraging in this regard. There seem certainly to be some instances in which we can shift from non-clean trade to clean (or at least cleaner) trade, such as when a new product like the FairPhone appears that is functionally equivalent to other mobile devices without involving components sourced via non-clean trade. Wenar claims that “it’s difficult to imagine being a Fair Trade consumer of oil”, but surely individuals can at least do a bit better than they do at present. Moreover, skepticism about the ability to learn more about the province of goods and services sits somewhat uncomfortably with Wenar’s own proposal of a Clean Hands Trust, which requires that we return funds to exporting countries once their governments restore popular sovereignty over resources. How would we know what we should return to whom unless we are able to track, at least roughly, where the inputs to consumer goods are coming from? His own proposals seem to depend on the feasibility of reliable schemes of certificates of origin (409).

When it comes to the stringent responsibility not to contribute to severe harm, acting contrary to it triggers a requirement to take on quite significant costs to address the hardships of the victims. So if it is infeasible to withdraw from involvement in non-clean trade, this seems to trigger quite demanding duties to address their effects. How should such duties be discharged? All things being equal, individuals should take action in the manner that is most likely to remedy the most amount of harm. One possibility will be to take on cost to support Wenar’s proposals. We can vote, lobby, contribute to those who are seeking to bring about these changes. But if the forces allied against such changes seem unlikely to be overcome, what individuals should do may diverge considerably from what we together should to. I ought to orient my efforts where they will have the greatest chance of success. What alternative strategies might I take? Some of these are already suggested by Wenar’s proposal at the state level. We as individuals could self-impose a tax on goods that come to us through non-clean trade. Ideally, these funds would not be held in trust, but rather directed back to those harmed insofar as there is any chance this would do any good. While I have been speaking of individuals, there is no reason they cannot join together with like-minded others to create organizations that pool such resources and acquit them responsibly.

Blood Oil is an important work, and individuals need to think seriously about what they ought to do in light of its analysis given the many obstacles to the adoption of the far-reaching policy reforms that Wenar defends in this work. Failing to take action as individuals while waiting for institutional reform has another disturbing implication—those who continue to harm innocent people and steal their property become liable to being harmed in self-defense, as well as having their (stolen) property appropriated by its rightful owners or others acting on their behalf.

New Symposium: Leif Wenar’s Blood Oil: Tyrants, Violence and the Rules that Run the World

I’m very pleased to host this new symposium on Leif Wenar’s book Blood Oil: Tyrants, Violence, and the Rules That Run the World (OUP, 2015). This major new text takes up the problem of the resource curse and its discontents, offering a politically ambitious, substantively provocative, beautifully written, and highly accessible treatment of a major global problem. I was especially excited to see a leading political philosopher address the relationship between natural resources and global justice, and to pick up on our overlapping concern for the widespread theft of natural resources globally. Wenar not only explains the problem with great clarity, he also offers a bold prescriptive way out of the predicament. In this symposium, he submits to respectful scrutiny from a range of scholars from diverse disciplinary backgrounds who contest different aspects of his argument. Before I introduce the commentators, I add to a longer summary he himself has written by presenting some brief background about the central arguments in the book.

Wenar’s major claim is that most natural resources are stolen. He takes this view for a variety of reasons, but predominantly because the international legal order allows any armed group, no matter their how weak their democratic credentials, to enjoy legal title over a state’s natural resource endowments. In Wenar’s language, the international order’s deference to “effectiveness” is morally perverse in that it embraces “might makes right.”[1] According to Wenar, this perversity engulfs the entire global resource sector: “‘Might makes right’ is as much true for an autocrat in coercive control of an oil-rich country as it is for a band of militants who seize a mine by force. In both cases, the alchemy of effectiveness transmutes the iron of coercion into the gold of legal title.”[2] And yet, if peoples own natural resources, international law’s deference to effectiveness as part of this dark alchemy enables theft.

The implications of Wenar’s thesis are sweeping. As he argues, international law’s overly-permissive stance towards violent resource predation “violates rights on a massive scale, and it causes enormous suffering.”[3] Deontologically speaking, Wenar argues that “[r]ewarding violence with rights makes a nonsense of property.”[4] Consequentially, he draws on the resource curse literature to show how resource endowment is negatively correlated with rates of armed violence, severe poverty and all other measures of social dysfunction. Perhaps his farthest-reaching argument, however, is that international law’s perverse embrace of “might makes right” undermines democracy: “[t]he money that goes to these men wins them unaccountable power: power unchecked by law or custom or conscience.”[5] Thus, Wenar sees redressing this dynamic in global resource governance as crucial in promoting democracy.

Wenar finds the norms necessary to achieve the political transformation to global democracy via resource governance in pre-existing international law,[6] echoing the international law scholars who discovered an emerging right to democracy at the close of the Cold War.[7] In particular, he relies on self-determination in human rights instruments and the notion of permanent sovereignty over natural resources to conclude that peoples own natural resources. For the bulk of the remainder of the book, he seeks to establish the circumstances under which state officials cannot act as agents of the people in resource transactions, negatively delineating the circumstances wherein the purported alienation of people’s resources is incapable of passing good title.

On this score, Wenar argues that a people’s consent over the alienation of their natural resources implies four basic principles, namely: (a) information (citizens must be able to find out about the management of their resources); (b) independence (citizens’ approval must not be forced); (c) deliberation (citizens must be able to discuss the management of their resources with each other; and (d) dissent (citizens must be able to dissent from management of their natural resources without risking severe costs).[8] The political ramifications are substantial. As Wenar explains, “[i]n concrete political terms, these conditions require that citizens must have at least bare-bones civil liberties and basic political rights.”[9] Consequently, for Wenar, popular sovereignty over natural resources guarantees some semblance of democracy: “[t]he people cannot possibly control their resources under a highly authoritarian regime: a military junta or a personalistic dictatorship, an autocratic theocracy or a single-party state.”[10]

The book addresses itself to a public audience, presumably because its overall conclusion is that we Western consumers are inextricably bound up in this violence and can do something politically transformative in response to it. To illustrate, at the beginning of the book, Wenar promises to “probe how consumers come to be legally chained to distant warlords. For surely those warlords had no legal right to their plunder?”[11] He goes on to argue that these problems are so ubiquitous that we consumers are all implicated, concluding that “[o]ur moral taint is a certainty… we all own stolen goods.”[12] In calling on us to address this moral taint, Wenar places the issue alongside some of the most infamous historical manifestations of “might makes right” — such as the slave trade, colonialism, apartheid, and territorial conquest[13] — insisting that addressing the theft of natural resources is the boldest yet still realistic global political project our generation might undertake to further this emancipatory moral trajectory.[14]

As will be apparent from my recitation of the argument, a project of this breadth and ambition will attract a broad variety of opinion. To foster critical debate on this topic, I am pleased to have brought together a group of scholars and practitioners from diverse backgrounds to offer reflections, criticisms and new vantage points on these issues. As is my normal practice, I have placed the names and affiliations of commentators on an accompanying page that lists all of the current and past contributions to this blog (see here). Nevertheless, let me explicitly showcase the disciplinary diversity they offer. This symposium hosts a leading scholar in the philosophy of global justice, a prominent international lawyer from Africa, arguably the leading scholar on resource wars globally and the founders of the NGO Global Witness. I also contribute a series of reactions based on the difficulties that have arisen in the theory and practice of attempts to promote democracy in international law, before inviting Wenar to respond to criticisms. I hope that the resulting body of thought is stimulating to all those concerned by the egregious underlying problem.

[1] Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World xlv (1 edition ed. 2015).

[2] Id. at xiv.

[3] Id. at 334.

[4] Id. at 73.

[5] Id. at xlviii.

[6] Wenar, supra note 1 at See Chapter 11 Popular Resource Sovereignty and Chapter 12 The State of the Law.

[7] Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int. Law 46–91 (1992); Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 Harv. Int. Law J. 1–70 (1995); Anne-Marie Burley (Slaughter), Toward an Age of Liberal Nations Symposium: Nationalism and Internationalism: Shifting World Spheres, 33 Harv. Int. Law J. 393–406 (1992).

[8] Id. at 227–228.

[9] Id. at 228.

[10] Id. at 229.

[11] Id. at xlv.

[12] Id. at xx.

[13] Id. at 311.

[14] Id. at 358. Like “the abolition of the slave trade, the liberation of the colonies, the end of white rule, and the many campaigns for human rights,” “[t]he reform of ‘might makes right’ for natural resources will be the next of these movements.”

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, http://www.nytimes.com/2016/02/12/world/europe/reinhold-hanning-trial-auschwitz.html?_r=0; Kate Connolly & Reuters, Former Auschwitz guard Oskar Gröning jailed over mass murder, The Guardian, July 15, 2015, https://www.theguardian.com/world/2015/jul/15/auschwitz-guard-oskar-groening-jailed-over-mass-murder (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, https://www.theguardian.com/world/2018/sep/21/nazi-war-crimes-suspect-faces-trial-german-youth-court (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.