Nuremberg's legacy continues: the Nuremberg trials' influence on human rights litigation in U.S. courts under the Alien Tort Statute.

• Author: Skinner, Gwynne

1. INTRODUCTION

   In March of 2005, four Palestinian families and the parents of Rachel Corrie, (1) an American, filed a lawsuit against Caterpillar, Inc. (2) under the Alien Tort Statute ("ATS") (3) and general federal jurisdiction, (4) for aiding and abetting the Israel Defense Forces' ("IDF") commission of war crimes and other human rights violations by knowingly providing the IDF with bulldozers used to illegally demolish civilian homes, resulting in deaths and injuries. (5) In the Plaintiffs' response to Caterpillar's Motion to Dismiss, (6) and in their appeal to the Ninth Circuit, (7) the Plaintiffs rely heavily on the Nuremberg WWII military tribunals' (8) prosecutions of the German industrialists, (9) many of whom were convicted for aiding and abetting the Nazis in their atrocities. (10) In particular, the Plaintiffs rely on In re Tesch (also known as The Zyklon B Case), where top company officials were convicted for knowingly supplying Zyklon B--the poison gas used to kill Jews--to the Nazi regime for use in concentration camps, (11) and on United States v. Flick, (12) where a civilian industrialist was convicted for contributing money vital to the Nazi's financial existence, while knowing of their crimes. (13)

   Similarly, in the recent case of In re South African Apartheid Litigation, (14) the plaintiffs relied on the industrialist cases to support their claims of aiding and abetting against several corporate defendants they alleged were complicit with the apartheid regime in South Africa. (15) Specifically, they alleged that certain of the defendants were willing and active collaborators with the apartheid government in creating deplorable labor conditions akin to prison-like conditions and profiting from the cheap labor. (16) The plaintiffs argue, "Like Nazi-era firms that profited from forced labor during World War Two, defendants actively sought cooperation with the regime to secure profits." (17) They continue, "Just as Nazi industrialists faced international tribunals for their complicity in Nazi forced labor regimes, corporations that actively cooperated with the apartheid regime and its discriminatory and repressive practices may be found liable under the ATS." (18)

   These arguments demonstrate the degree to which plaintiffs in domestic human rights litigation are pointing to the Nuremberg trials, (19) and the industrialist cases in particular, to support their theories of corporate complicit liability. These arguments are having some success. In the last three years, three federal district courts have relied on the Nuremberg trials in finding that corporations can be found liable for aiding and abetting human rights violations abroad, (20) two of them analyzing the industrialist cases in detail to support their holdings. (21)

   Attempts to hold corporations liable for human rights violations are the most recent examples of the degree to which the Nuremberg trials have significantly affected human rights litigation in the United States under the Alien Tort Statute. (22) It is also the most controversial because corporations were not prosecuted at Nuremberg, and there remains the unresolved question about whether corporations are, or should be, bound by international human rights norms. (23)

   There have been other criticisms of using the Nuremberg trials as precedent in modern human rights litigation. Some have criticized the Nuremberg trials as "victors' justice," implying that use of any precedent from the Nuremberg trials is inappropriate. (24) Others have suggested that precedent from the trials established to prosecute uniquely horrible crimes should not be used in other human rights litigation where the crimes were not as horrible, especially with regard to complicity standards, such as aiding and abetting. (25) One writer has criticized the use of Nuremberg's legacy to support ATS jurisdiction over conduct occurring abroad, arguing that the Allies had a unique connection to the crimes they were prosecuting, which does not exist in domestic human rights litigation. (26)

   This Article both traces the Nuremberg trials' tremendous influence on human rights litigation in the United States under the ATS, which has culminated most recently in the area of corporate complicit liability, and argues that the use of the Nuremberg trials as precedent in modern domestic human rights litigation is appropriate. Part I traces the Nuremberg trials' influence on ATS litigation in the United States, which began with the very first modern ATS case, and notes that the dramatic increase in claims against corporations for complicity in human rights violations has led courts to rely even more heavily on precedents from the Nuremberg trials over the last three years, a trend that will likely continue. Part II addresses criticisms that using Nuremberg precedents in modern ATS litigation is not appropriate, refutes these criticisms, and argues that plaintiffs' and courts' reliance on the precedents is both appropriate and helpful. With regard to corporate complicity specifically, Part II argues that the fact that corporations themselves were not prosecuted at Nuremberg or in the industrialist cases should not foreclose corporate liability today, noting that even though corporations were not prosecuted, the tribunals spoke in terms of corporate actions and liability when prosecuting industrial executives. For these reasons--in combination with the rise in multinational and transnational corporations, their complex structures, and their increasing influence--courts are correct to look to the industrialist cases as precedent in determining corporate complicity liability for human rights violations.

2. THE NUREMBERG TRIALS' INFLUENCE ON HUMAN RIGHTS LITIGATION IN THE UNITED STATES UNDER THE ALIEN TORT STATUTE

   As has been noted by numerous scholars and commentators, the Nuremberg trials opened the door to a new era in international human rights. The Nuremberg trials' well-known legacies include, inter alia, (1) disposing of the notion that States should not concern themselves with human rights violations occurring within the borders of another State (especially with regard to that States' own citizens), and (2) establishing individual accountability for human rights violations. (27) The Nuremberg trials' impact in these areas cannot be overstated, leading to the U.N. Charter (28) and the U.N. Declaration of Human Rights, (29) as well as providing the groundwork for the establishment of the various international criminal tribunals (30) and, most recently, the International Criminal Court. (31)

   Much less noted, however, and thus less known, is the far-reaching impact the Nuremberg trials have had in the development of human rights jurisprudence under the ATS in the United States, especially over the last decade. Moreover, the Nuremberg trials' influence has notably increased over the last three years, especially as more corporations are finding themselves defendants in such litigation. (32) Plaintiffs and courts are increasingly relying on the Nuremberg trials, and the industrialist trials in particular--where British and U.S. military tribunals tried several German corporate industrial executives for complicity in war crimes and other human rights violations--to find corporations complicit in human rights abuses. (33)

   The Nuremberg trials have significantly influenced human rights litigation in the United States in at least five distinct ways. (34) First, the Nuremberg trials created space for the initial acceptance of civil subject-matter jurisdiction over acts occurring abroad, and they continue to legitimize such jurisdiction. (35) Second, the Nuremberg trials have served as the main source for the recognition that crimes against humanity, war crimes, and forced labor are violations of customary international law giving rise to claims under the ATS. Third, the Nuremberg trials have served'as direct legal precedent for individual liability for private, non-state actors who violate human rights. (36) Fourth, the Nuremberg trials have been the primary legal precedent for finding that corporations are bound by international law, even though no corporations were prosecuted at Nuremberg. (37) Last, the Nuremberg trials have served as a key precedent for theories of complicit liability, such as aiding and abetting, under the ATS. (38) These precedents have created the jurisprudential backbone for the increasing number of corporate liability cases under the ATS. (39)

   1. Subject-Matter Jurisdiction

      The Nuremberg trials greatly impacted early human rights litigation in the United States in the most fundamental way: by creating the legal space for such litigation in the first place. Prior to the Nuremberg trials, there existed no specific legal precedent for subjecting offenses such as war crimes and crimes against humanity, such as genocide, to the principle of universal jurisdiction. (40) Because of Nuremberg, the idea that there is universal jurisdiction over those who commit such offenses gained legitimacy. In addition, in the aftermath of World War II, members of the United Nations recognized that offenses such as crimes against humanity and genocide were the concern of all States, and that each State's domestic institutions, such as courts, should be responsible for remedying these wrongs. (41)

      Moreover, although the Nuremberg trials concerned criminal actions, commentators and scholars suggested there was no reason why such jurisdiction should not also occur in the civil context. (42) As stated by one commentator, "The exercise of universal jurisdiction in civil actions obviously serves the values that underlie the burgeoning international criminal law." (43) The implication was, and continues to be, that given modern jurisdictional concepts, courts have subject-matter jurisdiction over civil actions arising from human rights violations that occur abroad. (44)

      1. Concepts of Universal Jurisdiction Gave Life to...