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Nuremberg Scholars in Support of Respondents ------♦ Nos. 19-416 & 19-453 ================================================================================================================ In The Supreme Court of the United States --------------------------------- ♦ --------------------------------- NESTLE, USA, INC., Petitioner, v. JOHN DOE I, et al., Respondents. --------------------------------- ♦ --------------------------------- CARGILL, INCORPORATED, Petitioner, v. JOHN DOE I, et al., Respondents. --------------------------------- ♦ --------------------------------- On Writs Of Certiorari To The United States Court Of Appeals For The Ninth Circuit --------------------------------- ♦ --------------------------------- BRIEF OF AMICI CURIAE NUREMBERG SCHOLARS IN SUPPORT OF RESPONDENTS --------------------------------- ♦ --------------------------------- MICHAEL BAZYLER JENNIFER GREEN Professor of Law and Counsel of Record The “1939” Society Law Clinical Professor of Law Scholar in Holocaust Director, Human Rights and Human Rights Studies Litigation and CHAPMAN UNIVERSITY International Advocacy FOWLER SCHOOL OF LAW Clinic 1 University Drive UNIVERSITY OF MINNESOTA Orange, CA 92866 LAW SCHOOL [email protected] 229 19th Avenue South 714-628-2500 Minneapolis, MN 55455 [email protected] 612-625-7247 Counsel for Amici Curiae ================================================================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................... iii INTEREST OF AMICI CURIAE ........................ 1 SUMMARY OF ARGUMENT ............................. 2 ARGUMENT ...................................................... 6 I. THE ALLIES SPECIFICALLY IMPOSED SANCTIONS IN THE NUREMBERG ERA ON GERMAN CORPORATIONS FOR VIOLATIONS OF CUSTOMARY INTERNATIONAL LAW ................................................................... 6 A. The Allies Were Acting Pursuant to Customary International Law Norms in All Their Post-War Actions, Including Against Corporations ........10 B. The Legal Framework Created by the Allies Provided for Trials Against Natural Persons and Organizations... 12 C. Organizations Were Indicted and Convicted Pursuant to the London Charter ................................................ 17 D. The Legal Framework Created by the Allies Provided for Actions Under International Law Against Corporation .......................................20 E. Control Council and Other Allied Laws, Orders and Directives Addressed Corporations ......................................22 II. CORPORATE LIABILITY WAS RECOGNIZED BY THE NUREMBERG TRIBUNALS .................................................. 30 ii TABLE OF CONTENTS – Continued Page CONCLUSION ................................................... 35 APPENDIX List of Amici Curiae ........................................ App. 1 iii TABLE OF AUTHORITIES Page FEDERAL CASES Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011) ........................ 4, 12 Doe I v. Nestlé USA, Inc., 766 F.3d 1013, 1020-22 (9th Cir. 2014) ............... 4 Flomo v. Firestone Natural Rubber Co., 642 F.3d 1013, 1019 (7th Cir. 2011) ...................................................... 4, 20 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) ............................................ 5, 16, 34 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), reh’g and reh’g en banc denied, 642 F.3d 268 (2d Cir. 2011), 642 F.3d 379 (2d Cir. 2011) ................................................. 4 INTERNATIONAL CASES The Farben Case, 8 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 1 (1952) ............. 33 North Sea Continental Shelf Cases, Judgment, 1969 I.C.J. 3 (Feb. 20) ................................................ 12 The Nurnberg Trial, 6 F.R.D. 69 (1946) ..................................................... 15 iv TABLE OF AUTHORITIES – Continued Page Trial of the Major War Criminals Before the International Military Tribunal Volume II at 98-155 (1947) (“the Blue Series”), available at https://www.loc.gov/rr/frd/Military_ Law/NT_major-war-criminals.html ..... 15 United States v. Krauch [Trial No. 6], U.N. War Crimes Comm’n, 10 Law Reports of Trials of War Crimes 1 (1949). .................................................... 31, 32 United States v. Krupp (The Krupp Case), 9 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10 1 (1950), available at https://www.loc.gov/rr/frd/Military_ Law/pdf/NT_war-criminals_Vol- IX.pdf ..................................................... 29, 33, 34 TREATIES, CONVENTIONS, AND OTHER INTERNATIONAL LEGAL SOURCES Agreement Between Governments of the United Kingdom, United States of America, and Union of Soviet Socialist Republics, and the Provisional Government of the French Republic on Certain Additional Requirements to Be Imposed on Germany, Sept. 20, v TABLE OF AUTHORITIES – Continued Page 1945, reprinted in United States- France-Great Britain-Soviet Union: Arrangements for Control of Germany by Allied Representatives, 40 Supplement to Am. J. Int’l L. 21, 29 (1946) .................. 18, 19 Agreement on Control Machinery in Germany, Nov. 14, 1944, available at http://docs.fdrlibrary.marist. edu/psf/box32/t298f04.html .................. 7 Allied High Commission Law No. 27, On the Reorganisation of the German Coal and Steel Industries (May 16, 1950), Official Gazette of the Allied High Commission for Germany No. 20 299 (May 20, 1950) ............................................................... 27, 28 Allied High Commission Law No. 35, Dispersal of Assets of I.G. Farbenindustrie, (Aug. 17, 1950), reprinted in Documents on Germany under Occupation, 1945- 1954 at 503 (Oxford University Press 1955) ............................................ 24, 25 Allied Military Government, British Zone, General Order No. 7 (Pursuant to Military Government Law No. 52): Iron and Steel Undertakings, Military Govern- ment Gazette (Aug. 20, 1946) ............... 27 vi TABLE OF AUTHORITIES – Continued Page Allied Military Government, U.S. Zone, General Order No. 3 (Pursuant to Military Government Law No. 52): Firma Friedrich Krupp [General Order No. 3], Military Government Gazette (June 6, 1946) .......................... 29 British Military Government Ordinance No. 78, 16 Military Government Gazette 412 (Feb. 12, 1947) ...................................................... 28 Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, 59 Stat. 1544, 82 U.N.T.S. 279 (Aug. 8, 1945) [“the London Charter”] .................................. passim Control Council Directive No. 10, Control Council Methods of Legislative Action (Sept. 2, 1945), reprinted in 1 Enactments and Approved Paper of the Control Council and Coordinating Committee 95, available at https://www.loc.gov/rr/frd/Military_ Law/Enactments/Volume-I.pdf ............ 8 Control Council Directive No. 39, Liquidation of German War and Industrial Potential (Oct. 2, 1946), reprinted in 5 Enactments and vii TABLE OF AUTHORITIES – Continued Page Approved Paper of the Control Council and Coordinating Committee 1, available at https://www.loc.gov/rr/frd/Military_ Law/Enactments/Volume-V.pdf ........... 26 Control Council Directive No. 47, Liquidation of German War Research Establishments (Mar. 27, 1947), reprinted in 6 Enactments and Approved Paper of the Control Council and Coordinating Committee 95, available at http:// https://www.loc.gov/rr/frd/Military_La w/Enactments/Volume-VI.pdf ................. 26 Control Council Directive No. 51, Legislative and Other Acts of the Control Council (Apr. 29, 1947), reprinted in 7 Enactments and Approved Paper of the Control Council and Coordinating Committee 27, available at https://www.loc.gov/rr/frd/Military_L aw/Enactments/Volume-VII.pdf ............ 8 Control Council Law No. 2, Providing for the Termination and Liquidation of the Nazi Organization (Oct. 10, 1945), reprinted in 1 Enactments and Approved Paper of the Control Council and Coordinating Committee 131, available at viii TABLE OF AUTHORITIES – Continued Page https://www.loc.gov/rr/frd/Military_ Law/Enactments/Volume-I.pdf .............. 19, 25 Control Council Law No. 5, Vesting and Marshalling of German External Assets, (Oct. 30, 1945), reprinted in 1 Enactments and Approved Papers of the Control Council and Coordinating Committee 176, available at https://www.loc.gov/rr/frd/Military_ Law/Enactments/Volume-I.pdf ............ 14 Control Council Law No. 9, Providing for the Seizure of Property Owned By I.G. Farbenindustrie and the Control Thereof (Nov. 30, 1945), reprinted in 1 Enactments and Approved Papers of the Control Council and Coordinating Committee 225, available at https://www.loc.gov/rr/frd/Military_ Law/Enactments/Volume-I.pdf ............ passim Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity (Dec. 20, 1945), reprinted in 1 Enactments and Approved Paper of the Control Council and Coordinating Committee 306, available at https://www.loc.gov/rr/frd/Military_ ix TABLE OF AUTHORITIES – Continued Page Law/Enactments/Volume-I.pdf ............ passim Control Council Law No. 43, Prohibition of the Manufacture, Import, Export, Transport and Storage of the Materials (Dec. 20, 1946), reprinted in 5 Enactments and Approved Paper of the Control Council and Coordinating Committee 194, available at https://www.loc.gov/rr/frd/Military_
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