The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said

Among the most important questions in internati onal criminal law since the mid-1990s have been the status of Anglo-American conspiracy law and the liability of corporations and their officers for human rights violations. These two issues have arisen in a broad range of settings, including Alien Tort Statute suits, cases arising out of the American detentions at Guantanamo Bay, and in the various international criminal tribunals at The Hague. The cases and jurists have, despite their otherwise diverse answers, agreed that the Nuremberg trials after World War II are the most important precedent. This Essay examines the five Nuremberg cases that featured economic perpetrators and the legal theories used there. The Essay focuses on the forgotten, crucial months between the first Nuremberg trial (1945–46) and the later twelve trials (1946–49), when theories of corporate and conspiracy liability were considered and debated. Using unpublished memos, letters, and diaries, the Essay concludes that conspiracy was seen to be a vital part of international law, albeit mainly for its evidentiary advantages, and that criminal charges against corporations were considered entirely permissible, though ultimately not used. The Essay also shows that other legal concepts, including genocide and crimes against humanity, were used against economic perpetrators. The Essay concludes by reprinting a sample of documents by such key figures as Robert H. Jackson, Telford Taylor, and Raphael Lemkin.