By Amara Osei

At 27, Benjamin Ferencz convicted the industrialists of the Krupp conglomerate at Nuremberg — and, more than 75 years later, United States Supreme Court rulings have largely dismantled the litigation pathway his work inspired. That is the arc traced by Ambassador Beth Van Schaack in a symposium essay on Greg Gordon's new biography of Ferencz, published October 14.

Van Schaack, Distinguished Fellow at Stanford University's Center for Human Rights and International Justice and U.S. Ambassador-at-Large for Global Criminal Justice from 2022 to 2025, examines Ferencz's little-remembered role in establishing corporate liability for international crimes.

What did the industrialist cases decide?

The so-called subsequent proceedings at Nuremberg, conducted under Control Council Law No. 10, pursued German industrialists after the International Military Tribunal dropped the elderly Gustav Krupp from the major-war-criminals dock and refused to substitute his son Alfried. Ferencz, fresh from securing guilty verdicts against all defendants in the Einsatzgruppen case, was transferred to the Krupp prosecution.

The numbers were stark. The Krupp indictment alleged the corporation enslaved upwards of 100,000 people: 75,000 foreign citizens, 5,000 concentration camp inmates, and 23,000 prisoners of war. Ferencz proved the company coordinated with the SS to send enslaved persons to Buchenwald for extermination, defeating defenses of duress, necessity, and superior orders. The bulk of the defendants received sentences of 6 to 12 years, and Krupp's property was confiscated, ostensibly for reparations.

The Cold War intervened. At Washington's behest, convicted industrialists received pardons and dramatic commutations; Alfried Krupp's vast wealth was restored.

Did Nuremberg hold corporations liable?

Not as such. Individuals stood in the dock, but the judges made plain that they considered the major German corporations to have violated international law in their corporate form. No corporation was found criminally responsible or civilly liable. Instead, Control Council Law No. 2 and Control Council Law No. 9 provided for decartelization and liquidation of complicit conglomerates, with proceeds slated for survivors.

Very few reparations were paid. It took later civil suits — many led by Ferencz in private practice with Telford Taylor — and intense diplomacy to produce settlements and the German Memory, Responsibility and Future Foundation, dedicated to what Van Schaack describes as "dignified payments" to slave and forced labor survivors. Ferencz later described his corporate-accountability work as "marginal." Van Schaack calls that judgment shortsighted.

What has the U.S. Supreme Court done?

The modern corporate line of cases began under the Alien Tort Statute. The Second Circuit blessed the ATS for human rights claims in Filártiga v. Pena-Irala (1980) and extended it to non-state actors in Doe & Kadic v. Karadžić (1995). Corporate defendants then invoked Nuremberg's failure to prosecute corporations as such — an argument the Second Circuit accepted in Kiobel v. Royal Dutch Petroleum Co. (2010), holding that individual liability for international law violations "has been limited to natural persons." Every other circuit to consider the issue drew the opposite conclusion.

The Supreme Court has since narrowed the door step by step:

• Kiobel (2013): claims dismissed because conduct in Nigeria did not "touch and concern" the United States; corporate liability left unresolved.
• Jesner v. Arab Bank (2018): no ATS claims against foreign corporations absent congressional approval. Van Schaack filed a scholars' brief in the case.
• Doe v. Nestlé & Cargill (2021): general U.S. corporate activity cannot overcome the extraterritoriality presumption.
• Doe v. Cisco (2026): the Court, liberal wing dissenting, ruled the ATS does not support aiding-and-abetting liability, overruled Sosa v. Alvarez Machain (2004), and limited ATS causes of action to Blackstone's three offenses — safe conduct violations, ambassadorial rights, and piracy. The TVPA, the Court added, reaches only one who "subjects" another to torture.

Where does corporate litigation go now?

Practitioners have shifted venues. In the United States, claims proceed under state-law transitory tort theories; in Kashef et al. v. BNP Paribas S.A., civil plaintiffs sue the Swiss bank — which pled guilty to violating U.S. sanctions against Sudan, Cuba, and Iran — under negligence and aiding-and-abetting theories, with litigants now contesting the content of Swiss law.

Abroad, criminal prosecutions advance directly. A French court convicted Lafarge-Holcim of financing a terrorist enterprise after the company paid millions to ISIL, and Lafarge remains under investigation for complicity in crimes against humanity, with Yazidi victims granted civil party status. A Swedish court is hearing evidence against executives of Orrön Energy, formerly Lundin Oil, accused of assisting atrocities by Sudanese militia in what is now South Sudan.

Treaty law points the same way. The Apartheid Convention, the 2000 Convention Against Transnational Organized Crime, and the 2005 European Convention on the Prevention of Terrorism all envision legal-person liability, as do the Draft Articles on Crimes Against Humanity now before the General Assembly's Sixth Committee. The Malabo Protocol would extend the African Court's criminal jurisdiction to corporate entities.

The takeaway is simple: Ferencz's industrialist cases lost their battles but won the war of ideas.