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).