TALKING FOREIGN POLICY: JESNER V. ARAB BANK.

• Position: Discussion

Broadcast quarterly, "Talking Foreign Policy" is a one-hour radio program, hosted by Case Western Reserve University School of Law Co-Dean Michael Scharf, in which experts discuss the salient foreign policy issues of the day. The broadcast one September 4, 2015, addressed the controversial Iran Nuclear Accord.

Dean Scharf created "Talking Foreign Policy" to break down complex foreign policy topics that are prominent in the day-to-day news cycles, yet difficult to understand. "Talking Foreign Policy" is produced in partnership between Case Western Reserve University School of Law, the only U.S. law school with Ideastream, Cleveland's National Public Radio affiliate. Archived broadcasts are available for viewing in the video format online at law.case.edu/Academics/AcademicCenters/Cox-International-Law-Center/Talking-Foreign-Policy. (1)

This broadcast featured:

* Judge Thomas Buergenthal, the youngest survivor of the Auschwitz death camp, who went on to become the Dean of American University Law School, to serve for twelve years as a judge on the Inter-American Court of Human Rights, and then another ten years as the U.S. Judge on the World Court;

* Carsten Stahn, one of the foremost experts on the International Criminal Court and the Program Director of the Grotius Centre (The Hague) as well as a professor at Leiden University in The Netherlands;

* Milena Sterio, Associate Dean and Professor of Law at Cleveland-Marshall College of Law. Sterio is also one of six permanent editors of the IntLawGrrls blog and an expert in the field of international law;

* Avidan Cover, Director of the Institute for Global Law & Policy at Case Western Reserve University School of Law and an expert in national security law. Cover has also litigated national security cases in federal and state courts;

* Timothy Webster, Associate Professor of Law, Director of Asian Legal Studies and U.S. Director, Joint Program in International Commercial Law and Dispute Resolution at Case Western Reserve University School of Law;

TALKING FOREIGN POLICY: JESNER V. ARAB BANK OCTOBER 5, 2017 BROADCAST

MICHAEL SCHARF: You probably remember the tragic story of the 1984 Bhopal disaster, where negligence at Union Carbide Corporation's pesticide plant in India resulted in the release of toxic gas that severely injured or killed over 200,000 local residents. (2) Unfortunately, Bhopal is not an isolated case. It is in this context that Fatou Bensouda, the Chief Prosecutor of the International Criminal Court, recently announced that investigating corporations will be a priority for her office. (3) And on October 14, the U.S. Supreme Court is set to hear the case of Jesner v. Arab Bank, (4) a case that will determine if corporations can be sued in U.S. court for the human rights abuses that they commit abroad.

For this broadcast of "Talking Foreign Policy," we've assembled a panel of human rights experts, including Tom Buergenthal, a judge of the International Court of Justice, who will discuss the cutting-edge issue of corporations on trial, right after the news.

Station Break

MICHAEL SCHARF: Welcome to "Talking Foreign Policy." I'm your host, Michael Scharf, the Dean of Case Western Reserve University School of Law. In this broadcast, our expert panelists will be discussing corporate liability for human rights abuses. For our program today, we've assembled a panel of leading human rights experts from the United States and Europe.

We'll begin with a one-on-one conversation with Tom Buergenthal, the youngest survivor of the Auschwitz death camp, who went on to become the Dean of American University Law School, to serve for twelve years as a judge on the Inter-American Court of Human Rights, and then another ten years as the U.S. Judge on the World Court. Thanks, Judge, for being with us today.

THOMAS BUERGENTHAL: It's a great pleasure.

MICHAEL SCHARF: So, let's start. In 2007, you published A Lucky Child,5 a memoir of surviving Auschwitz as a young boy. How did that experience shape the rest of your life and especially your work in the human rights field?

THOMAS BUERGENTHAL: Well, I suppose I would not have written about human rights if I had not been in the camps. It also shaped me in terms of a need to write about it, and to contribute in one way or another to a situation where we can prevent the things that happened to me and that are still happening to a lot of people in the world.

MICHAEL SCHARF: You were just mentioning before we came on the show that you are currently working on a report about the North Korean concentration camps, and I hadn't heard anything about that. Do you want to tell us a little bit about that project?

THOMAS BUERGENTHAL: Well, it's a project about, as you mentioned, about the work camps, what they call work camps, but, in fact, they are worse than concentration camps. I thought I knew everything about concentration camps and how bad things can be in it. I must say, what I heard, if it is true, and I have no reason to assume that it's not true, this is much worse than anything I've experienced in the camp.

MICHAEL SCHARF: That's hard to believe because many people know about what you went through in Auschwitz, and North Korea is worse.

THOMAS BUERGENTHAL: Now this is, for example, something. They would arrest one person and then, because he was guilty of something that they say he was guilty of, they would take the entire family with him. They had methods of cruelty in terms of getting rid of babies [of women] that were impregnated by the guards. Methods that, I must say, I'd never heard of, what you can do, when it would be just as easy to kill the baby. Just the utter cruelty and inhuman cruelty that, to me, was something I'd never heard of. So, if all of this is true, it is the worst, I think, that the world has ever heard of, what's happening in these camps. (6)

MICHAEL SCHARF: And this is from somebody who not only lived through that, but you were a judge in so many human rights cases, and also human rights cases that came before the World Court. Let me ask you about one of the cases you presided over when you were at the Inter-American Court of Human Rights, which you ended up being the President of. This was the case about whether the Honduran government had to pay compensation to families of victims of forced disappearances that had occurred during the 1980s.7 Many people say that was the most important of the Inter-American Court's cases. What was the significance of that precedent?

THOMAS BUERGENTHAL: Well, for one thing, it was really the first, really important case to reach us. And secondly, there had been no decisions in international courts about international law and disappearances. So, we really had to deal with the subject and come up with a theory in which we could deal with these terrible, again, cruelties.

MICHAEL SCHARF: And part of that case was that the government was responsible for prosecuting the people, and they couldn't give amnesty to the individuals who were involved, right? So, if the US ...

THOMAS BUERGENTHAL: Let me just interrupt you, because what was interesting particularly in this case was that the government would say, "Well, this person hasn't disappeared if he went to see his girlfriend." But the problem was, how do we prove that somebody, that the government, is responsible for a disappearance, when everything was done to keep it secret? And so, to develop the theory in these cases, we've set precedents for many others that are now happening in many parts of the world.

MICHAEL SCHARF: But the idea that governments are, after these things come to light, responsible for making sure that there are remedies to the individuals, is one of the biggest things that came out of that line of cases. If the U.S. Supreme Court decides that corporations cannot be sued for human rights abuses that they commit abroad, would that violate the spirit of the line of cases we were discussing?

THOMAS BUERGENTHAL: Very much so. I mean the whole idea that corporations somehow are exempt or immune, and can only be tried in their own countries, and [under] certain circumstances, and even not that--that's not international law.

MICHAEL SCHARF: So then let's take your career forward to the International Court of Justice where you served for ten years. This is the court that is in The Hague. It's known as the World Court. It's the court that hears cases between countries. While you were there, it's pretty rare, I think, that a judge of that Court will side against his own country. And there were several cases involving the United States that you sat on, and in two of those cases, you did decide that the US was wrong. (8) These are the cases that you held that the United States failed to advise foreigners of their consular rights in proceedings that resulted in death sentences, and that that was a violation of international law. Did you feel at the time that it was risky to exercise that kind of independence to go against your own government?

THOMAS BUERGENTHAL: No, and I should tell you that this question was asked even by my colleagues. And my reply was always, "I'm sure I'm not going to end up in Siberia for proceeding the way I proceeded." It seemed to me, first of all, the U.S. put me there because they had confidence in me. And that meant that they also had to take my interpretations, the way I felt it should be interpreted.

MICHAEL SCHARF: But that's rare, and in other countries, many times, the individual judges don't feel that kind of security.

THOMAS BUERGENTHAL: I suppose, but, I must say, it was easy for me. Because, and I should tell you that nobody ever from the U.S. Government even mentioned it to me, which is interesting. So, no, I'm not a hero in that regard. I just felt I was free. And also, it was important that somebody set the precedent that you can do that.

MICHAEL SCHARF: Well, you were a little bit heroic in the eyes of many who followed your career. Not only by standing up to the...