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30 Apr 2018

Alessandra De Tommaso, Rights as Usual

Blurring the Line between Criminal and Civil Liability of Corporations in Jesner v Arab Bank

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On 24 April 2018, the U.S. Supreme Court delivered its opinion in the case Jesner v Arab Bank, closing the door to future litigation against foreign corporations under the Alien Tort Statute (ATS).  For those who believe in corporate accountability for human rights violations, this decision is a setback.  But irrespective of one’s views, the decision is also incorrect...In reaching the conclusion that there is no international norm of corporate liability, the majority applies the same reasoning adopted by the Court of Appeals for the Second Circuit in its 2010 decision in Kiobel.  Since none of the existing international criminal tribunals included corporations in their jurisdiction, the liability of business entities for human rights violations must be excluded under international law...Here the Court confuses the lack of a mean of enforcement at the international level with the absence of an international norm...The Court does not take into consideration that the international tribunals mentioned in the judgement have the authority to impose criminal liability only.  Civil liability is not addressed in the statutes of any of these tribunals...[T]he Court fails to distinguish between criminal liability under international criminal law, on one side, and civil liability under national law, on the other...