[Ambassador Beth Van Schaack is a Distinguished Fellow at Stanford University’s Center for Human Rights and International Justice and served as the sixth U.S. Ambassador-at-Large for Global Criminal Justice (2022–2025), advising the Secretary of State on preventing and responding to war crimes, crimes against humanity, and genocide. Formerly the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School and Deputy to the Ambassador-at-Large for War Crimes Issues (2012–2013), she is the author of Imagining Justice for Syria (2020) and co-author, with Ronald Slye, of the casebook International Criminal Law and Its Enforcement (4th ed. 2019), and was Executive Editor of Just Security from 2014 to 2022.]
It is a privilege to be part of this symposium featuring Greg Gordon’s wonderful new biography of a remarkable human being. I had the pleasure of interacting with Ben Ferencz over the years, as both an academic and a diplomat. In my latter incarnation, I was regularly subjected to Ben’s persistent efforts to persuade the United States to abandon its more cautious approach to the codification of the crime of aggression in the Rome Statute of the International Criminal Court. When it comes to this topic, I can attest to the discomfort of being a source of perennial disappointment to Ben given his near mythical status in the international criminal law (ICL) world and our shared life-long passion for the interlocking causes of peace and justice. The world is a diminished place with his passing, but the legacy he left—notwithstanding his small stature—is enormous.
Ben is best known for serving as one of the youngest and last surviving Nuremberg prosecutors; for leading the prosecutions of Nazi members of the dreaded death squads, the Einsatzgruppen, in the so-called “subsequent proceedings;” and for being a tenacious champion for the codification and prosecution of the crime of aggression. Less well known is his consequential role in establishing theories and pathways to impose liability on corporate actors for the commission of international crimes. Uncovering the consequential details of this juridical history marks another valuable contribution of Greg’s book, particularly given recent global developments in corporate responsibility.
As Greg recounts, one of Ben’s first postwar assignments was to investigate the industrialists at the helm of German conglomerates—IG Farbenindustrie AG (a chemical producer), Krupp (a steel and weapons producer), the Flick Concern (a mining and weapons company)—that were essential to realizing the Nazis’ aggressive and genocidal ambitions. These corporations exploited concentration camp inmates and Allied prisoners of war in their factories; engaged in the plunder, expropriation, and spoliation of property in occupied territories; financed the SS; and supplied the Nazi extermination and war machinery with poison gas, armaments, and other materiel. Ben’s work in particular focused on IG Farben and Krupp. In his typically indomitable way, Ben threw himself into the work, even convincing the Farben Board of Directors to share their files on Hermann Schmitz, the former CEO. Indeed, it was Ben’s success in these investigations that ultimately led to his promotion to chief of the Berlin headquarters of the Office of the Chief of Counsel for War Crimes (OCCWC), where he was charged with reviewing Nazi captured documents and then leading several of the prosecutions that ensued.
The elderly industrialist Gustav Krupp was originally among the “major war criminals”—those defendants whose offenses had “no particularly localization” and were to be punished by a joint decision of the allied governments before the International Military Tribunal (IMT) at Nuremberg. Due to his failing health, however, Krupp père was dropped from the proceedings and the tribunal rejected a motion to substitute Krupp’s fils Alfried. As such, it fell to those in charge of the so-called “subsequent proceedings” to pursue cases against the captains of industry along with several other categories of defendant implicated in international crimes—medical doctors, jurists, diplomats, civil servants enforcing the racial discrimination laws, and members of the High Command. These cases proceeded under Control Council Law No. 10 (CCL10), legislation adopted by the quadripartite Allied Control Council to exercise executive and legislative functions in the Allies’ respective zones of occupation and to “establish a uniform basis in Germany for the prosecution of war criminals and other similar offenders.” Although the IMT enjoys pride of place in the history of ICL, these subsequent proceedings generated extensive jurisprudence that was critical to the field’s renaissance in the 1990s while also affirming the essential contributions of enablers of mass atrocities.
At the age of 27, Ben first tried the Einsatzgruppen case, which concerned mass shootings and other abuses against civilians seized by roving death squads on the eastern front. As the ink was drying on that verdict, which found all defendants guilty of war crimes and/or crimes against humanity, Ben was transferred to the Krupp case. Alfried Krupp was in the dock, alongside eleven C-suite colleagues and the heads of several corporate divisions. The Allies had originally charged the defendants with war crimes, crimes against humanity, crimes against the peace, and conspiracy to commit crimes against the peace. By the time Ben joined the proceedings, however, the tribunal had already granted a motion for acquittal on the crimes against the peace charges. Ben moved for reconsideration, advancing ingenious theories for how the rearmament of Germany was intimately connected with, and made possible, German militarism and imperial ambitions. However, these counts were not reinstated—a source of lifelong disappointment to Ben. So, the case proceeded on the basis of the remaining charges, well known to Ben from the Einsatzgruppen case.
In the industrialist indictments, Allied prosecutors charged acts of slave and forced labor as the crimes against humanity of deportation and enslavement and the war crime of deporting members of the civilian population from occupied territories. All manner of property crimes, including systemic plunder and spoliation, were charged as war crimes when committed in occupied territory and as crimes against humanity when committed on persecutory grounds against protected groups. The Krupp indictment, for example, included allegations that the corporation enslaved upwards of 100,000 people, including 75,000 foreign citizens, 5,000 concentration camp inmates, and 23,000 prisoners of war. The prohibition of plunder under international law reached both tangible and intangible property, such as shares of stock. Prosecutors charged the executives and engineers of several firms for designing the Nazi machinery of death.
In his presentation of proof in the Krupp case, Ben was able to show that the company coordinated with the SS to send enslaved persons to Buchenwald for extermination, fully cementing the knowledge of senior corporate figures in the company’s direct involvement in the Holocaust. In so doing, Ben was able to overcome the defendants’ defenses—sounding in duress, necessity, and superior orders—that they were powerless in the face of Hitler’s decrees; instead, he conclusively proved the company willingly contributed to the Nazi program and embraced the prospect of free labor to alleviate wartime labor shortages. Greg’s book offers excerpts from Ben’s brilliant cross examinations building a record of the abject conditions of life experienced by enslaved workers in the company’s factories. Although a handful of corporate defendants were found not guilty of plundering and spoliation, the bulk of the defendants were convicted and sentenced to 6 to 12 years. Krupp’s property was confiscated, ostensibly to pay reparations.
In all the industrialist cases, although individuals were in the dock, the judges make plain in their reasoning and their judgments that they considered the major German corporations to have violated international law—in their corporate form—by virtue of their contribution to and participation in acts of aggression, war crimes, and crimes against humanity. Nonetheless, no corporations were found criminally responsible or civilly liable at Nuremberg. However, nothing about the history of this era suggests that the diplomats and jurists of the time considered corporate liability to be legally foreclosed by international law. Instead, the victorious Allies dealt with German conglomerates in different ways. For example, Control Council Law No. 2, “Providing for the Termination and Liquidation of the Nazi Organizations,” and Control Council Law No. 9, “Providing for the Seizure of Property Owned by I.G. Farbenindustrie and the Control Thereof,” called for the decartelization and liquidation of complicit corporations, with the proceeds slated for survivors. This history is detailed in a brief I and others filed on behalf of Nuremberg scholars in Jesner v. Arab Bank (2018) before the U.S. Supreme Court.
Ultimately, however, very few reparations were paid from these corporate assets, notwithstanding Ben’s tireless post-Nuremberg work. It took subsequent civil lawsuits in courts around the world—many led by Ben once he joined private practice with his former boss, Telford Taylor—and intense diplomacy to finally generate legal settlements for the benefit of victims and establish the German Memory, Responsibility and Future Foundation, dedicated to providing “dignified payments” to slave and forced labor survivors. Ben recounted much of this arduous history in Less Than Slaves: Jewish Forced Labor and the Quest for Compensation (reprinted in 2002).
Much to the disappointment of many, including Ben, the convicted industrialists were soon rehabilitated in the postwar period, largely at the behest of the United States. As the Cold War set in, the United States prioritized Germany’s economic reconstruction and integration into the West as a bulwark against an emergent Soviet threat and swelling communist menace. Many defendants thus enjoyed pardons and dramatic commutations of their sentences, including Alfried, whose vast wealth was restored. Many of the white collar war criminals went on to enjoy storied second careers in business and politics.
Notwithstanding this equivocal record, the industrialist cases created important precedents that laid the groundwork for future human rights litigation in courts around the globe against corporate actors. These contemporary cases take many forms, including criminal and civil cases against corporate principals and the corporations themselves, depending on the operative legal framework.
This work began in the United States under the Alien Tort Statute (ATS), a founding-era enactment that empowers federal courts to entertain civil claims by aliens for torts committed in violation of the law of nations or a treaty of the United States. The U.S. Second Circuit Court of Appeals blessed the use of the ATS in modern human rights litigation for the first time in Filártiga v Pena-Irala (1980). The Second Circuit also opened the door to the corporate line of cases when it ruled in Doe & Kadic v. Karadžić (1995) that non-state actors—in this case, the self-proclaimed President of Republika Srpska—could be liable for international crimes. For a time, plaintiffs filed additional corporate cases under the more modern Torture Victim Protection Act (TVPA), enacted in 1991, until the Supreme Court ruled in Mohamad v. Palestinian Authority (2012) that the TVPA vests jurisdiction over natural persons only—one of many Supreme Court cases chipping away at corporate liability for international law violations.
Many of these U.S. corporate cases once proceeded under complicity and other secondary theories of responsibility based on allegations that the corporation colluded with repressive regimes to exploit natural resources, quell civilian protests, or mistreat the local population. For example, Burmese villagers brought a class action against Unocal Corp., Total S.A., the state-owned oil company, and Unocal’s President and CEO alleging that their conduct in connection with a joint venture with the military dictatorship harmed their communities. The district court dismissed claims against the Burmese entity, reasoning that it enjoyed sovereign immunity as an agency or instrumentality of the state, and against the private corporate actors, after concluding that they did not control the Burmese military units who committed the abuses, which included assault, rape, property crimes, and forced labor. The 9th Circuit Court of Appeals reversed and applied standards of aiding and abetting drawn from the jurisprudence of the ad hoc international war crimes tribunals. After the Circuit Court granted en banc review, the case settled in 2005 for an undisclosed amount, allegedly in the range of $30 million.
Over the years, multiple corporate defendants have cited the fact that the IMT did not criminally prosecute any corporations, as such, in the postwar period to bolster an argument that corporations cannot be held responsible for violating international law. Ironically given its earlier jurisprudence, this argument later prevailed in the Second Circuit, which held in Kiobel v. Royal Dutch Petroleum Co. (2010) that, since Nuremberg, “the principle of individual liability for violations of international law has been limited to natural persons—not ‘juridical’ persons such as corporations.” By contrast, every other Circuit to consider the issue (e.g., the 5th, the 7th, the 11th, and D.C. Circuits) drew the opposite conclusion from the Nuremberg history and other more ancient and contemporary precedent. In its 2013 decision in Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court affirmed the dismissal of claims against the company but on different grounds: because the alleged conduct, which occurred in Nigeria, did not “touch and concern” the United States with sufficient force to displace the presumption against the extraterritorial application of a U.S. statute. The Court did not opine on the justiciability of claims against corporations, leaving the question for another day.
This lopsided circuit split on the question of whether foreign corporations are immune from civil suits under the ATS led the Supreme Court to grant certiorari in Jesner, the next Supreme Court cases to gradually obstruct this pathway to accountability. There, the Court ruled in a fractured opinion that the ATS does not support cases against foreign corporations absent congressional approval; it left the issues of domestic corporate liability unresolved. Later, the Court tightened Kiobel’s extraterritoriality standard in Doe v. Nestlé & Cargill (2021), a case alleging the companies employed child slave labor in West Africa, when it ruled that general corporate activity in the United States is not sufficient to overcome the presumption. Once again, no majority emerged with respect to the amenability of domestic corporations to suit under the ATS (even though certiorari was originally granted on this issue) or the cognizability and scope of aiding and abetting liability under the ATS. Although this latter issue was not briefed by the parties, the Solicitor General attempted to inject it into the proceedings. I and others filed a brief on behalf of international law scholars arguing that the Court should not take up the issue but, if it did, it should align with international and domestic courts around the world, which universally recognize accomplice liability for internationally tortious behavior and criminal conduct.
Earlier this year, the Supreme Court dealt a decisive blow to corporate litigation under the ATS in Doe v. Cisco (2026), a case alleging that the company helped the Chinese Communist Party create a vast surveillance system to root out dissent. There, the Court (with the liberal wing in dissent) ruled that the ATS does not support aiding and abetting liability, even though it is a general principle of criminal law prosecutable in all the ad hoc war crimes tribunals convened to date, as argued in an amicus curiae brief I joined with other former Ambassadors-at-Large for Global Criminal Justice and international prosecutors. The Court also overruled Sosa v. Alvarez Machain (2004) and held that federal courts do not have the power to create new causes of action under the ATS beyond the three offenses mentioned by Sir William Blackstone in his Commentaries on the Laws of England: violations of safe conduct, infringement of the rights of ambassadors, and piracy. This power, the majority observed, belongs to Congress in our system of separation of powers. Finally, it concluded that the TVPA does not support aiding-and-abetting liability because it ascribes liability to someone who “subjects” another to torture.
As a result of this line of U.S. Supreme Court cases, those leading efforts to hold corporate actors responsible for international law violations have had to evolve their approaches and shift their cases elsewhere. In the United States, to the extent that claims cannot be shoehorned into the “Blackstone three,” these cases are now proceeding under state law transitory tort theories of liability. For example, a Swiss bank that pled guilty to violating U.S. sanctions against Sudan, Cuba, and Iran in the United States has been sued by a class of civil plaintiffs in Kashef et al. v. BNP Paribas S.A. under state tort law (e.g., negligence, intentional infliction of emotional distress, aiding and abetting assault and battery, etc.). Litigants are now fighting over the content of Swiss law, which applies under the operative choice of law rules.
In Europe, Canada, and elsewhere, criminal suits are proceeding against corporate principals and corporations directly. For example, a French court convicted the Swiss cement company Lafarge-Holcim and some of its principals of financing a terrorist enterprise. The facts revealed the company’s breach of an E.U. embargo on Syrian oil by Lafarge’s cement factory in northern Syria, where ISIL was operating. Prosecutors alleged that the company paid millions to ISIL in order to further its operations knowing that ISIL was engaged in atrocities. LaFarge remains under investigation in France for complicity in crimes against humanity. Lawyers representing Yazidi victims of ISIL crimes have been granted civil party status in the case. Likewise, a Swedish court is hearing evidence against executives (including a Swiss national) of Orrön Energy, a Swedish company originally known as Lundin Oil. They stand accused of assisting atrocities committed by Sudanese militia to secure the company’s operations in what is now South Sudan.
A number of multilateral treaties also explicitly envision corporate liability, such as the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (art. I(2)), the 2000 Convention Against Transnational Organized Crime (art. 10(1)), and the 2005 European Convention on the Prevention of Terrorism (art. 10(1)). The Draft Articles on Prevention and Punishment of Crimes Against Humanity under consideration before the 6th (Legal) Committee of the General Assembly oblige future state parties at article 6(8) to “take measures, where appropriate, to establish the liability of legal persons for the offences referred to in this draft article. Subject to the legal principles of the State, such liability of legal persons may be criminal, civil or administrative.” The ad hoc criminal tribunals only allowed for jurisdiction over natural persons; several corporate executives were tried for their role in advancing the Rwandan genocide. A proposal to extend ICC jurisdiction to legal persons in the Rome Statute did not advance during the negotiations. By contrast, the Malabo Protocol (art. 46C)—which would add a criminal chamber to the African Court of Human and People’s Rights—envisions criminal charges against corporate entities as well as natural persons: “2. Corporate intention to commit an offence may be established by proof that it was the policy of the corporation to do the act which constituted the offence.”
As Greg notes poignantly in his conclusion, Ben rarely highlighted his work on the industrialist cases in later accounts of his legal career, describing this work on corporate accountability as “marginal” when asked. Beyond simply memory lapses, Greg speculates that this may be due to the disappointing legacy of those cases given the subsequent clemency afforded to the postwar defendants and the challenges of achieving meaningful compensation for survivors. That said, in many respects, Ben’s deep disappointment in the ultimate outcomes of the industrial cases, including the crimes against the peace acquittals, inspired his subsequent work to achieve restitution and compensation for survivors and to better define the crime of aggression to ensure that enablers do not escape accountability. And, the postwar work on corporate accountability continues to inspire modern cases to hold corporate actors to account. As these modern cases attest, Ben’s chagrin about the impact of his efforts was woefully shortsighted.
