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).