In Doe v. Nestle, Professors Green and Ní Aoláin Help Bring Nuremberg Precedent to Contemporary Law
DECEMBER 20, 2013—On Dec. 2, the United States Court of Appeals for the Ninth District heard an oral argument in the case of Doe v. Nestle, brought on behalf of three children allegedly forced to perform slave labor on cocoa plantations in the Ivory Coast. During the argument, the judges extensively discussed an amicus brief filed by a group of 15 scholars of the post-WWII Nuremberg war crimes tribunals, one of whom is Professor Fionnuala Ní Aoláin of the Law School. Professor Jennifer Green served as counsel of record on the brief, which argued that the precedents set during the Nuremberg trials regarding corporations' responsibility for criminal acts should be adhered to in Doe v. Nestle as well.
To quote a key summary excerpt from the brief: "Given the singular importance of Nuremberg, it is particularly crucial that this Court conduct a thorough review of its jurisprudence and (1) recognize that corporations can indeed be punished under international law and (2) adopt the proper standard for aiding and abetting liability that flowed out of the Nuremberg trials." With respect to when a corporation might be liable, the brief maintained, that proper standard for aiding and abetting is knowledge of the unlawful acts, rather than having the specific purpose of committing the violation.
The court ruled quickly, holding on Dec. 19 that "corporations can face liability for claims brought under the Alien Tort Statute"—the federal law allowing tort claims by aliens for violations of the law of nations or U.S. treaties.
"The standard that the Nuremberg tribunals established was that government and corporate officials who knowingly aided in atrocities were held accountable, even if others ultimately committed the physical acts of violence," Professor Green commented. "The action the Allies took after the war to dismantle certain corporations—such as I.G. Farben, which produced poison gas for the concentration camps—was further evidence that corporations themselves were to be held culpable for their collective actions. We are pleased to see the Ninth Circuit adopt the correct standard for corporate complicity in human rights abuses and hope this contributes to a system of accountability for today's violations."