As the U.S. Supreme Court takes up the question of whether the Alien Tort Statute supports claims against corporations in Jesner v. Arab Bank, PLC, the scope of corporate liability during the World War II era has assumed renewed relevance. The fact that the International Military Tribunal at Nuremberg did not criminally prosecute any corporations, as such, in the postwar period gets trotted out in support of two contentions: that international law does not recognize corporations as being capable of violating international law and that corporations cannot be held legally accountable if they commit international delicts. For example, in support of his conclusion in Kiobel v. Royal Dutch Petroleum Co. that corporations cannot be sued under the ATS, Judge José Cabranes of the U.S. Court of Appeals for the 2nd Circuit reasoned that “at the time of the Nuremberg trials, corporate liability was not recognized as a ‘specific, universal, and obligatory’ norm of customary international law.” Subsequent 2nd Circuit panels have largely, with some reluctance, considered themselves bound by this ruling. By contrast, every other circuit to consider the issue has drawn the opposite conclusion from the Nuremberg history as did the U.S. government in its amicus brief in Kiobel. This lopsided circuit split brought the question to the Supreme Court.
At the close of World War II, the Allies were faced with the prospect of bringing to justice potentially thousands of war criminals from all sectors of German society. To respond to these unprecedented events, they looked to international law. They convened the first international tribunals with jurisdiction over individuals and organizations accused of committing international crimes. They prosecuted industrialists alongside government officials — public and private actors, heads of state and the rank-and-file — under various theories of responsibility. They dismantled, liquidated, sequestered or otherwise sanctioned corporations that were central to Axis aggression and atrocities, at times for the purpose of paying reparations to victims. And they declared certain public and private organizations to be criminal and subsequently prosecuted individual members under res judicata theories of varying intensity. What lessons for contemporary ATS litigation should the Supreme Court draw from these varied responses of the Allies — in and out of the courtroom — to corporate malfeasance during the war? At bottom, nothing about the history of this era suggests that the Allies considered corporate liability to be legally foreclosed by international law. Rather, the diplomats and jurists of the time recognized that corporations are capable of violating international law and of being held accountable for doing so.
To be sure, as the Nuremberg tribunal was being convened, the Allies did consider establishing a regime of corporate criminal liability. Abraham L. Pomerantz, U.S. Deputy Chief Counsel at Nuremberg in charge of the industrialist cases, floated a proposal dedicated to the concept of prosecuting corporations in their corporate capacity. Nonetheless, for a range of pragmatic and prudential reasons, the proposal was not pursued. As an historian of the era has explained: “Corporate and associational criminal liability was seriously explored, and was never rejected as legally unsound. These theories of liability were not adopted, but not because of any legal determination that it was impermissible under international law.” Rather, as revealed in the documentary history and subsequent scholarship, although the Nuremberg architects believed that imposing a regime of corporate criminal responsibility was legally available to them under international law, they ultimately chose not to prosecute corporate entities for a variety of reasons: because these institutions were dealt with under different legal frameworks, because of shifting political winds in Europe, because the Allies saw the need to rebuild the peacetime German economy, and because the Allies were already focused on establishing another groundbreaking concept — the principle of individual criminal responsibility. Invoking this latter principle, the Allies prosecuted a range of corporate actors — industrialists, managers, and their staff — who ran the corporations that enabled, and profited from, the Holocaust and the Nazi program of aggressive war.
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