476 COLUMBIA LAW REVIEW [Vol. 107:457
others—like sexual assault or rape
—have already been recognized as
violations of jus cogens norms.
113
In sum, ATS cases have already encountered a number of questions—and
are likely to encounter even more—that
are simply not definitively
answered by references to international or sometimes even federal
law.
The primary purpose of the ATS, both historically and as construed
by the Court in Sosa—to provide redress for law of nations violations that
lack other means of redress—suggests that this is not a surprising result.
II. D
OMESTIC AND INTERNATIONAL CORPORATE COMPLICITY DOCTRINE
As noted in Part I.C.3, one of the most important issues facing ATS
courts now is how to determine when a corporation can be held liable for
aiding and abetting international human rights violations committed
abroad. In making the determination of which law to apply in these ATS
cases, federal courts will most likely face a choice between applying international
law, federal law, or state law.
This Part describes international,
federal, and general state trends in corporate complicity doctrine
114
113. ATS cases often include allegations of rape. See, e.g., Doe I v. Unocal Corp., 395
F.3d 932, 944 (9th Cir. 2002) (including allegations of rape committed by Burmese
military); Kadic v. Karadzic, 70 F.3d 232, 236–37 (2d Cir. 1995) (including allegations of
rape committed by paramilitary groups in Bosnian peninsula); Chavez v. Carranza, 413 F.
Supp. 2d 891, 901 (W.D. Tenn. 2005) (including allegations of sexual assault committed by
Salvadoran National Police); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244
F. Supp. 2d 289, 296 (S.D.N.Y. 2003) (including allegations of rape committed in Sudan).
Although it is difficult to imagine a situation where government-sponsored sexual
intimidation would need reference to some outside source of law to define its content,
some situations could arise—for example, where sexual assault needs to be defined. See,
e.g., Complaint at 9, El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006) (No. 1:05-CV01417)
(describing abuse, which would likely qualify as sexual assault, endured by
individual
who was allegedly falsely arrested by CIA operatives).
Further, at least one court
has held that sexual violence is not sufficiently defined to qualify for Sosa recognition. See
Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 24 (D.D.C. 2005) (“Nor can plaintiffs
maintain a claim for ‘sexual violence,’ because it is not sufficiently recognized under
international law and is not a ‘specific, universal, and obligatory’ norm.”).
114. As pointed out in Unocal, courts also have the option of applying the law of the
location of the injury. See Unocal, 395 F.3d at 948 (noting that different ATS courts have
applied forum law, international law, and law of location of injury); see also Stephens &
Ratner, supra note 90, at 120 (listing three possible choice of law approaches in ATS cases,
but not considering possibility of using state law); Symeon C. Symeonides, Choice of Law
in the American Courts in 2002: Sixteenth Annual Survey, 51 Am. J. Comp. L. 1, 47 (2003)
(listing choice of law approaches that have been used by American jurisdictions in ATS
cases). In ATS cases, however, the law of the location of injury is typically not a viable
option because it is undeveloped or unavailable (procedurally or substantively), a
condition that probably led the plaintiffs to resort to the ATS in the first place. Cf. Sarei v.
Rio Tinto, PLC, 456 F.3d 1069, 1090 (9th Cir. 2006) (“Other courts have . . . [found] that
even if exhaustion were to apply to the ATCA, local remedies would in those cases be futile
and therefore need not be exhausted.”); S. Rep. No. 102-249, at 9–10 (1991) (“[A]s a
general matter, the committee recognizes that in most instances the initiation of litigation
under this legislation will be virtually prima facie evidence that the claimant has exhausted
his or her remedies in the jurisdiction in which the torture occurred.”).
2007] ATS RULES OF DECISION 477
as an example to show factors an ATS court will likely face when choosing
between competing bodies of law governing ATS questions.
A. International Corporate Complicity Law
1. U.S. and International Criminal Aiding and Abetting Law. — Many
courts considering the issue of corporate complicity under the ATS have
used international law as the rule of decision.
In criminal contexts,
aiding and abetting liability has been part of the common law, and thus
part of the law incorporated by American jurisdictions, for quite some
time.
116
115
A key part of the common law conception of aiding and abetting
liability, as traditionally taught in American criminal law, is that the abettor
shares the same culpability and therefore the same liability as the
principal
actor.
This concept has been incorporated in some aspects
of international law. There is statutory evidence that such liability was
assumed and, in some cases, explicitly adopted by the First Congress with
respect to international law violations. In the 1790 legislation prohibiting
piracy, for example, the First Congress equated the liability of individuals
who were accessories to piracy with that of the pirate himself.
117
The general willingness of international law to accept the idea of
criminal aiding and abetting liability in international law violations
gained even more widespread acceptance after the atrocities of the
Holocaust and the difficulties associated with prosecuting the perpetrators
of the Nazi regime.
An individual could be charged with violations of
the crimes defined by the Nuremberg Charter
if he (1) was the principal
culprit; (2) was an accessory to the crime, ordered it, or abetted it; (3)
had
a “consenting part” in the crime; or (4) was part of “plans or enterprises
involving [the crime’s] commission.”
119
120
118
The Nuremberg statute
115. For a description of the approaches various federal courts have used to resolve
the question of which substantive law applies in ATS cases, including the use of
international law, see, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 n.12 (2d
Cir. 2000).
116. See Diskin, supra note 2, at 821–22 (describing common law usage of aiding and
abetting liability theories in criminal contexts).
117. Id. The common law traditionally did not recognize accessories after the fact to
be as culpable as accessories before the fact. Id.
118. See Act of Apr. 30, 1790, ch. 9, § 10, 1 Stat. 112, 114. An opinion letter from
Attorney General Bradford also explicitly lists aiding and abetting as a possible basis for
liability under the ATS. See Breach of Neutrality, 1 Op. Att’y Gen. 57, 59 (1795); see also
Diskin, supra note 2, at 823 (discussing 1790 piracy legislation and attorney general letter
as evidence that international law included aiding and abetting liability).
119. These included Crimes Against Peace, War Crimes, and Crimes Against
Humanity. See Charter of the International Military Tribunal art. 6(b), Aug. 8, 1945, 59
Stat. 1546, 1547, 82 U.N.T.S. 284, 288; see also Diskin, supra note 2, at 824–25 (describing
establishment of Nuremberg tribunals).
120. See Allied Control Council Law No. 10, art. II, § 2 (Dec. 20, 1945), reprinted in 6
Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council
Law No. 10, at XVIII, XVIII–XIX (1952) [hereinafter Trials of War Criminals].
478 COLUMBIA LAW REVIEW [Vol. 107:457
thus made liability for aiding and abetting an explicit part of its
prosecutorial mandate.
Courts operating under the Nuremberg statutes prosecuted those
who had been complicit in the Nazi atrocities. German industrialists who
had knowledge of and approved of Nazi actions that fit the definition of
the Nuremberg crimes were found guilty of those crimes, including, for
example, crimes based on charges of taking advantage of slave labor
and selling poisonous gas to the Nazi regime.
122
The Nuremberg trials are not the only international precedents for
establishing the principle of aiding and abetting liability for violations of
international law, although later uses were heavily influenced by the
Nuremberg precedent. The United Nations’s 1948 Genocide Convention
explicitly permits criminal liability for complicity and conspiracy in
genocide
commission.
More modern uses of complicity liability include
the international tribunals for Yugoslavia and Rwanda
123
as well as
the Rome Statute.
125
2. Aiding and Abetting Law as Applied to Corporations. — It seems quite
clear that modern international law and even American law have no difficulty
in accepting the principle that individuals guilty of aiding and abetting
violations of international law can be held criminally liable for certain
types of actions.
But when applied to corporations, disputes are
likely to arise about what specific standard should mold the shape of aid-
126
124
121. These include the Flick Case, the Farben Case, and the Krupp Case. See United
States v. Krupp (The Krupp Case) (July 31, 1948), in 9 Trials of War Criminals, supra note
120, at 1; United States v. Krauch (The Farben Case) (July 30, 1948), in 7 Trials of War
Criminals, supra note 120, at 1; United States v. Flick (The Flick Case) (Dec. 22, 1947), in 6
Trials of War Criminals, supra note 120, at 3.
122. The most famous of these is the Zyklon B case. See In re Tesch & Others
(Zyklon B Case), 13 Ann. Dig. 250 (British Military Ct. 1946).
123. Convention on the Prevention and Punishment of the Crime of Genocide art.
III(b), (e), Dec. 9, 1948, 102 Stat. 2045, 78 U.N.T.S. 277, 280.
124. See Statute of the International Tribunal for Rwanda art. 2(3)(e), Nov. 8, 1994,
33 I.L.M. 1602, 1603 (making “[c]omplicity in genocide” punishable by I.C.T.R.); Statute
of the International Tribunal art. 4(3)(e), May 25, 1993, 32 I.L.M. 1192, 1193 (making
“[c]omplicity in genocide” punishable by International Criminal Tribunal for the Former
Yugoslavia); see also Diskin, supra note 2, at 825–27 (discussing Rome Statute, I.C.T.Y., and
I.C.T.R.).
125. See Rome Statute of the International Criminal Court art. 25(3)(c), July 17,
1998, 2187 U.N.T.S. 90, 105 (establishing individual criminal liability for persons who
“aid[ ], abet[ ] or otherwise assist[ ] in [a covered crime’s] commission or its attempted
commission, including providing the means for its commission”). Unlike the I.C.T.Y. and
I.C.T.R., where complicity liability is explicitly mentioned, it remains unclear whether
corporations could be held liable under the Rome Statute. See Diskin, supra note 2, at 826
(noting this distinction and describing possible test case against corporations responsible
for financial transactions used to purchase arms that were used in commission of
international crimes).
126. There has been some debate about whether an individual can commit a
“violation of the law of nations,” but the bulk of authority now suggests that for certain
types of law of nations violations—genocide, for example—an individual can be guilty
without any element of state action. See, e.g., Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir.
121
2007] ATS RULES OF DECISION 479
ing and abetting civil liability. Questions include, for example, the level
of knowledge required to find the corporation guilty, who in the corporation
should have the knowledge, and whether the corporation actually
had
that knowledge.
The Ninth Circuit addressed this mens rea question in Unocal. The
court held that, according to international precedent, the corporation
must have either actual or constructive knowledge that its activities would
substantially assist in the commission of a crime,
which in the ATS context
must also be an international law violation.
Other ATS courts that
have had occasion to decide on a mens rea standard for aiding and abetting
liability have come to similar conclusions.
127
128
Two distinct analytical problems arise in applying this standard to
corporations being sued under the ATS. First, one must determine when
a corporation—a legal “person” that exists nowhere except on paper—
has the requisite amount of knowledge. Although this may in practice be
a difficult inquiry, especially when it requires discovery of materials that
may not be located in the United States, theoretically it is unexceptional:
It merely requires deciding upon some standard for determining which
corporate officers should have what amount of knowledge of their corporation’s
(and its subsidiaries’) activities.
This type of inquiry has been
completed in a number of other corporate criminal contexts,
and it
easily could be done in international corporate cases as well.
A second problem with applying the international mens rea standard
to ATS cases was noted by the Unocal concurrence. Although the principles
of international third party liability, as expressed in the Nuremberg
precedents
and the more recent decisions of the I.C.T.Y. and I.C.T.R.,
seem
to be gaining widespread acceptance, they are still relatively new
and
confined to very specific, geographically isolated occurrences of
mass,
state-sponsored atrocities.
The precise contours of the standard
are still in flux and could change with future interpretations of the standard
by new international bodies.
130
The developing nature of the standard
indicates that there is general agreement on the underlying princi-
131
1995) (“[C]ertain forms of conduct violate the law of nations whether undertaken by those
acting under the auspices of a state or only as private individuals.”).
127. Doe I v. Unocal Corp., 395 F.3d 932, 950–51 (9th Cir. 2002).
128. See, e.g., Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1344, 1355–56 (N.D. Ga.
2002) (looking to approaches used by I.C.T.R. and I.C.T.Y., which use similar standard, for
assistance in adjudicating “accomplice liability” under ATS).
129. See, e.g., Arthur Andersen LLP v. United States, 125 S. Ct. 2129, 2135–36 (2005)
(limiting criminal liability of accounting firm defendant to situations where corporate
officers are “conscious of their wrongdoing”).
130. See Unocal, 395 F.3d at 967 n.5 (Reinhardt, J., concurring) (noting limited and
specific purposes for which I.C.T.Y. and I.C.T.R. were created).
131. See id. at 967 (“[T]he standard may well change dramatically if and when it is
applied by a different ad hoc tribunal appointed by future representatives of the nations
that compose the General Assembly of the United Nations.”). Although many courts have
agreed on the general standard, its application to particular instances still lacks a welldefined
body of law.
Questions like when a corporate parent is responsible for the actions
129480 COLUMBIA LAW REVIEW [Vol. 107:457
ple but continued debate about the specific way in which the standard
should be implemented.
132
A federal court choosing to apply international law in an ATS corporate
aiding and abetting case would thus need to face these two issues—
how
to determine whether a corporation had the requisite knowledge
and
the relatively undeveloped nature of the international law mens rea
standard.
The first issue seems to be relatively easy to handle, simply requiring
line-drawing that judicial forums routinely perform.
The second,
however, is more problematic because adopting a new international rule
wholesale subjects businesses to evolving standards of international law
decided by forums over which there is little or no democratic control.
B. Corporate Aiding and Abetting Standards in U.S. Case Law
A second possible choice that federal ATS courts can use in defining
the scope of complicity liability is some type of federal law. Yet despite
the widespread acceptance of aiding and abetting liability internationally
and in some domestic contexts, there are still some hurdles to overcome
in American jurisprudence before a court could find corporations civilly
liable for aiding and abetting under the ATS. The chief obstacle is the
U.S. Supreme Court’s decision in Central Bank of Denver v. First Interstate
Bank of Denver.
In that case, the Supreme Court held that there was no
civil liability for aiding and abetting a violation of section 10(b) of the
Securities Exchange Act of 1934 because Congress did not explicitly provide
for it,
135
134
and “Congress has not enacted a general civil aiding and
abetting statute.”
136
Two opposite approaches have emerged on whether Central Bank applies
to prevent aiding and abetting liability in ATS
cases.
of its subsidiaries—central to just about every corporate ATS case—have simply not yet
been addressed by international tribunals.
132. See also infra Part III.B.1 (arguing that international standards can be
implemented in many different acceptable forms).
137
133
The argu-
133. See supra note 56 (noting democratic deficiency of international law standards).
134. 511 U.S. 164 (1994).
135. See id. at 177.
136. Id. at 182.
137. Compare In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 52–54
(E.D.N.Y. 2005) (declining to apply Central Bank in ATS case), with In re S. Afr. Apartheid
Litig., 346 F. Supp. 2d 538, 550–51 (S.D.N.Y. 2004) (applying Central Bank), and Doe I v.
Exxon Mobil Corp., 393 F. Supp. 2d 20, 24 (D.D.C. 2005) (citing Central Bank favorably).
For other cases supporting the idea of aiding and abetting liability in ATS cases, see
Cabello v. Fern
´
andez-Larios, 402 F.3d 1148, 1161 (11th Cir. 2005) (accepting aiding and
abetting liability under ATS); Doe v. Rafael Saravia, 348 F. Supp. 2d 1112, 1148–49 (E.D.
Cal. 2004) (same); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 100 (D.D.C.
2003) (same); see also Carmichael v. United Techs. Corp., 835 F.2d 109, 113–14 (5th Cir.
1988) (assuming that ATS permits aiding and abetting liability but dismissing ATS suit
against private corporation because “the record . . . establishes that [the defendant] did
not conspire in, or aid and abet, official acts of torture”); Diskin, supra note 2, at 828–29
(arguing that approach in Agent Orange is more convincing and reasoning that aiding and
2007] ATS RULES OF DECISION 481
ment for applying Central Bank to the ATS aiding and abetting context is
relatively straightforward: Central Bank requires that aiding and abetting
liability be explicitly listed in the statutory text; the ATS does not contain
an explicit provision establishing aiding and abetting liability; there
should therefore be no complicity liability under the ATS.
The argument
against applying Central
Bank
to ATS
situations, relied on by the
Agent
Orange court,
simply takes a broader view of what constitutes a violation
of the law of nations:
The ATS prohibits violations of the law of
nations; even in 1789, it was a violation of the law of nations to aid and
abet others in their violations of international law; the ATS thus incorporated
the international prohibition against aiding and abetting international
law violations.
139
The Supreme Court’s ruling in Sosa suggests that this inquiry should
turn on whether the activity of aiding and abetting is sufficiently defined
and universally condemned by the international community to constitute
a violation of the law of nations.
As noted above, aiding and abetting a
violation of the law of nations was itself recognized to be a violation of the
law of nations in certain situations, such as the piracy statute enacted by
the First Congress.
141
140
Agent Orange relies on this kind of reasoning. But
it is difficult to imagine following the reasoning in Agent Orange without
implicitly overruling Central Bank. That is, what is left of Central Bank if
the Court holds that it does not apply any time the common law would
have recognized aiding and abetting liability?
Unless the Supreme
Court is willing to substantially confine Central Bank, under current federal
law, aiding and abetting liability would need to be explicitly listed in
the
ATS.
142
This conclusion is bolstered by Sosa’s dual requirements of universal
condemnation and clear definition. The definition of corporate aiding
abetting liability has always been part of law of nations as incorporated into U.S. law by
ATS).
138
138. See, e.g., Apartheid Litig., 346 F. Supp. 2d at 550.
139. Agent Orange, 373 F. Supp. 2d at 53–54; see also Diskin, supra note 2, at 828–29
(agreeing with Agent Orange court).
140. See Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); see also Corrie v.
Caterpillar, Inc., 403 F. Supp. 2d 1019, 1027 (W.D. Wash. 2005) (“While international law
may recognize accomplice liability in some instances, the conduct alleged must first rise to
the level of a claim under Sosa.”). But cf. Diskin, supra note 2, at 828 (arguing that
question of whether conduct has been aided and abetted is distinct from question of
whether that conduct was violation of international law). In any event, Sosa would still
seem to apply even to aiding and abetting itself—that is, under Sosa, the question is not
whether the underlying action that was aided and abetted meets the Sosa standard, but
whether aiding and abetting the alleged conduct meets the Sosa standard. Put differently,
aiding and abetting itself must be universally condemned and well defined to satisfy Sosa.
141. See supra note 118 and accompanying text.
142. The same reasoning would be substantially true for the Central Bank situation
itself: Common law permitted aiding and abetting liability in other kinds of cases, but the
Supreme Court declined to extend it in Central Bank to an implied statutory cause of
action—precisely the same kind of cause of action that most ATS cases rely upon.
others—like sexual assault or rape
—have already been recognized as
violations of jus cogens norms.
113
In sum, ATS cases have already encountered a number of questions—and
are likely to encounter even more—that
are simply not definitively
answered by references to international or sometimes even federal
law.
The primary purpose of the ATS, both historically and as construed
by the Court in Sosa—to provide redress for law of nations violations that
lack other means of redress—suggests that this is not a surprising result.
II. D
OMESTIC AND INTERNATIONAL CORPORATE COMPLICITY DOCTRINE
As noted in Part I.C.3, one of the most important issues facing ATS
courts now is how to determine when a corporation can be held liable for
aiding and abetting international human rights violations committed
abroad. In making the determination of which law to apply in these ATS
cases, federal courts will most likely face a choice between applying international
law, federal law, or state law.
This Part describes international,
federal, and general state trends in corporate complicity doctrine
114
113. ATS cases often include allegations of rape. See, e.g., Doe I v. Unocal Corp., 395
F.3d 932, 944 (9th Cir. 2002) (including allegations of rape committed by Burmese
military); Kadic v. Karadzic, 70 F.3d 232, 236–37 (2d Cir. 1995) (including allegations of
rape committed by paramilitary groups in Bosnian peninsula); Chavez v. Carranza, 413 F.
Supp. 2d 891, 901 (W.D. Tenn. 2005) (including allegations of sexual assault committed by
Salvadoran National Police); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244
F. Supp. 2d 289, 296 (S.D.N.Y. 2003) (including allegations of rape committed in Sudan).
Although it is difficult to imagine a situation where government-sponsored sexual
intimidation would need reference to some outside source of law to define its content,
some situations could arise—for example, where sexual assault needs to be defined. See,
e.g., Complaint at 9, El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006) (No. 1:05-CV01417)
(describing abuse, which would likely qualify as sexual assault, endured by
individual
who was allegedly falsely arrested by CIA operatives).
Further, at least one court
has held that sexual violence is not sufficiently defined to qualify for Sosa recognition. See
Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 24 (D.D.C. 2005) (“Nor can plaintiffs
maintain a claim for ‘sexual violence,’ because it is not sufficiently recognized under
international law and is not a ‘specific, universal, and obligatory’ norm.”).
114. As pointed out in Unocal, courts also have the option of applying the law of the
location of the injury. See Unocal, 395 F.3d at 948 (noting that different ATS courts have
applied forum law, international law, and law of location of injury); see also Stephens &
Ratner, supra note 90, at 120 (listing three possible choice of law approaches in ATS cases,
but not considering possibility of using state law); Symeon C. Symeonides, Choice of Law
in the American Courts in 2002: Sixteenth Annual Survey, 51 Am. J. Comp. L. 1, 47 (2003)
(listing choice of law approaches that have been used by American jurisdictions in ATS
cases). In ATS cases, however, the law of the location of injury is typically not a viable
option because it is undeveloped or unavailable (procedurally or substantively), a
condition that probably led the plaintiffs to resort to the ATS in the first place. Cf. Sarei v.
Rio Tinto, PLC, 456 F.3d 1069, 1090 (9th Cir. 2006) (“Other courts have . . . [found] that
even if exhaustion were to apply to the ATCA, local remedies would in those cases be futile
and therefore need not be exhausted.”); S. Rep. No. 102-249, at 9–10 (1991) (“[A]s a
general matter, the committee recognizes that in most instances the initiation of litigation
under this legislation will be virtually prima facie evidence that the claimant has exhausted
his or her remedies in the jurisdiction in which the torture occurred.”).
2007] ATS RULES OF DECISION 477
as an example to show factors an ATS court will likely face when choosing
between competing bodies of law governing ATS questions.
A. International Corporate Complicity Law
1. U.S. and International Criminal Aiding and Abetting Law. — Many
courts considering the issue of corporate complicity under the ATS have
used international law as the rule of decision.
In criminal contexts,
aiding and abetting liability has been part of the common law, and thus
part of the law incorporated by American jurisdictions, for quite some
time.
116
115
A key part of the common law conception of aiding and abetting
liability, as traditionally taught in American criminal law, is that the abettor
shares the same culpability and therefore the same liability as the
principal
actor.
This concept has been incorporated in some aspects
of international law. There is statutory evidence that such liability was
assumed and, in some cases, explicitly adopted by the First Congress with
respect to international law violations. In the 1790 legislation prohibiting
piracy, for example, the First Congress equated the liability of individuals
who were accessories to piracy with that of the pirate himself.
117
The general willingness of international law to accept the idea of
criminal aiding and abetting liability in international law violations
gained even more widespread acceptance after the atrocities of the
Holocaust and the difficulties associated with prosecuting the perpetrators
of the Nazi regime.
An individual could be charged with violations of
the crimes defined by the Nuremberg Charter
if he (1) was the principal
culprit; (2) was an accessory to the crime, ordered it, or abetted it; (3)
had
a “consenting part” in the crime; or (4) was part of “plans or enterprises
involving [the crime’s] commission.”
119
120
118
The Nuremberg statute
115. For a description of the approaches various federal courts have used to resolve
the question of which substantive law applies in ATS cases, including the use of
international law, see, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 n.12 (2d
Cir. 2000).
116. See Diskin, supra note 2, at 821–22 (describing common law usage of aiding and
abetting liability theories in criminal contexts).
117. Id. The common law traditionally did not recognize accessories after the fact to
be as culpable as accessories before the fact. Id.
118. See Act of Apr. 30, 1790, ch. 9, § 10, 1 Stat. 112, 114. An opinion letter from
Attorney General Bradford also explicitly lists aiding and abetting as a possible basis for
liability under the ATS. See Breach of Neutrality, 1 Op. Att’y Gen. 57, 59 (1795); see also
Diskin, supra note 2, at 823 (discussing 1790 piracy legislation and attorney general letter
as evidence that international law included aiding and abetting liability).
119. These included Crimes Against Peace, War Crimes, and Crimes Against
Humanity. See Charter of the International Military Tribunal art. 6(b), Aug. 8, 1945, 59
Stat. 1546, 1547, 82 U.N.T.S. 284, 288; see also Diskin, supra note 2, at 824–25 (describing
establishment of Nuremberg tribunals).
120. See Allied Control Council Law No. 10, art. II, § 2 (Dec. 20, 1945), reprinted in 6
Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council
Law No. 10, at XVIII, XVIII–XIX (1952) [hereinafter Trials of War Criminals].
478 COLUMBIA LAW REVIEW [Vol. 107:457
thus made liability for aiding and abetting an explicit part of its
prosecutorial mandate.
Courts operating under the Nuremberg statutes prosecuted those
who had been complicit in the Nazi atrocities. German industrialists who
had knowledge of and approved of Nazi actions that fit the definition of
the Nuremberg crimes were found guilty of those crimes, including, for
example, crimes based on charges of taking advantage of slave labor
and selling poisonous gas to the Nazi regime.
122
The Nuremberg trials are not the only international precedents for
establishing the principle of aiding and abetting liability for violations of
international law, although later uses were heavily influenced by the
Nuremberg precedent. The United Nations’s 1948 Genocide Convention
explicitly permits criminal liability for complicity and conspiracy in
genocide
commission.
More modern uses of complicity liability include
the international tribunals for Yugoslavia and Rwanda
123
as well as
the Rome Statute.
125
2. Aiding and Abetting Law as Applied to Corporations. — It seems quite
clear that modern international law and even American law have no difficulty
in accepting the principle that individuals guilty of aiding and abetting
violations of international law can be held criminally liable for certain
types of actions.
But when applied to corporations, disputes are
likely to arise about what specific standard should mold the shape of aid-
126
124
121. These include the Flick Case, the Farben Case, and the Krupp Case. See United
States v. Krupp (The Krupp Case) (July 31, 1948), in 9 Trials of War Criminals, supra note
120, at 1; United States v. Krauch (The Farben Case) (July 30, 1948), in 7 Trials of War
Criminals, supra note 120, at 1; United States v. Flick (The Flick Case) (Dec. 22, 1947), in 6
Trials of War Criminals, supra note 120, at 3.
122. The most famous of these is the Zyklon B case. See In re Tesch & Others
(Zyklon B Case), 13 Ann. Dig. 250 (British Military Ct. 1946).
123. Convention on the Prevention and Punishment of the Crime of Genocide art.
III(b), (e), Dec. 9, 1948, 102 Stat. 2045, 78 U.N.T.S. 277, 280.
124. See Statute of the International Tribunal for Rwanda art. 2(3)(e), Nov. 8, 1994,
33 I.L.M. 1602, 1603 (making “[c]omplicity in genocide” punishable by I.C.T.R.); Statute
of the International Tribunal art. 4(3)(e), May 25, 1993, 32 I.L.M. 1192, 1193 (making
“[c]omplicity in genocide” punishable by International Criminal Tribunal for the Former
Yugoslavia); see also Diskin, supra note 2, at 825–27 (discussing Rome Statute, I.C.T.Y., and
I.C.T.R.).
125. See Rome Statute of the International Criminal Court art. 25(3)(c), July 17,
1998, 2187 U.N.T.S. 90, 105 (establishing individual criminal liability for persons who
“aid[ ], abet[ ] or otherwise assist[ ] in [a covered crime’s] commission or its attempted
commission, including providing the means for its commission”). Unlike the I.C.T.Y. and
I.C.T.R., where complicity liability is explicitly mentioned, it remains unclear whether
corporations could be held liable under the Rome Statute. See Diskin, supra note 2, at 826
(noting this distinction and describing possible test case against corporations responsible
for financial transactions used to purchase arms that were used in commission of
international crimes).
126. There has been some debate about whether an individual can commit a
“violation of the law of nations,” but the bulk of authority now suggests that for certain
types of law of nations violations—genocide, for example—an individual can be guilty
without any element of state action. See, e.g., Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir.
121
2007] ATS RULES OF DECISION 479
ing and abetting civil liability. Questions include, for example, the level
of knowledge required to find the corporation guilty, who in the corporation
should have the knowledge, and whether the corporation actually
had
that knowledge.
The Ninth Circuit addressed this mens rea question in Unocal. The
court held that, according to international precedent, the corporation
must have either actual or constructive knowledge that its activities would
substantially assist in the commission of a crime,
which in the ATS context
must also be an international law violation.
Other ATS courts that
have had occasion to decide on a mens rea standard for aiding and abetting
liability have come to similar conclusions.
127
128
Two distinct analytical problems arise in applying this standard to
corporations being sued under the ATS. First, one must determine when
a corporation—a legal “person” that exists nowhere except on paper—
has the requisite amount of knowledge. Although this may in practice be
a difficult inquiry, especially when it requires discovery of materials that
may not be located in the United States, theoretically it is unexceptional:
It merely requires deciding upon some standard for determining which
corporate officers should have what amount of knowledge of their corporation’s
(and its subsidiaries’) activities.
This type of inquiry has been
completed in a number of other corporate criminal contexts,
and it
easily could be done in international corporate cases as well.
A second problem with applying the international mens rea standard
to ATS cases was noted by the Unocal concurrence. Although the principles
of international third party liability, as expressed in the Nuremberg
precedents
and the more recent decisions of the I.C.T.Y. and I.C.T.R.,
seem
to be gaining widespread acceptance, they are still relatively new
and
confined to very specific, geographically isolated occurrences of
mass,
state-sponsored atrocities.
The precise contours of the standard
are still in flux and could change with future interpretations of the standard
by new international bodies.
130
The developing nature of the standard
indicates that there is general agreement on the underlying princi-
131
1995) (“[C]ertain forms of conduct violate the law of nations whether undertaken by those
acting under the auspices of a state or only as private individuals.”).
127. Doe I v. Unocal Corp., 395 F.3d 932, 950–51 (9th Cir. 2002).
128. See, e.g., Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1344, 1355–56 (N.D. Ga.
2002) (looking to approaches used by I.C.T.R. and I.C.T.Y., which use similar standard, for
assistance in adjudicating “accomplice liability” under ATS).
129. See, e.g., Arthur Andersen LLP v. United States, 125 S. Ct. 2129, 2135–36 (2005)
(limiting criminal liability of accounting firm defendant to situations where corporate
officers are “conscious of their wrongdoing”).
130. See Unocal, 395 F.3d at 967 n.5 (Reinhardt, J., concurring) (noting limited and
specific purposes for which I.C.T.Y. and I.C.T.R. were created).
131. See id. at 967 (“[T]he standard may well change dramatically if and when it is
applied by a different ad hoc tribunal appointed by future representatives of the nations
that compose the General Assembly of the United Nations.”). Although many courts have
agreed on the general standard, its application to particular instances still lacks a welldefined
body of law.
Questions like when a corporate parent is responsible for the actions
129480 COLUMBIA LAW REVIEW [Vol. 107:457
ple but continued debate about the specific way in which the standard
should be implemented.
132
A federal court choosing to apply international law in an ATS corporate
aiding and abetting case would thus need to face these two issues—
how
to determine whether a corporation had the requisite knowledge
and
the relatively undeveloped nature of the international law mens rea
standard.
The first issue seems to be relatively easy to handle, simply requiring
line-drawing that judicial forums routinely perform.
The second,
however, is more problematic because adopting a new international rule
wholesale subjects businesses to evolving standards of international law
decided by forums over which there is little or no democratic control.
B. Corporate Aiding and Abetting Standards in U.S. Case Law
A second possible choice that federal ATS courts can use in defining
the scope of complicity liability is some type of federal law. Yet despite
the widespread acceptance of aiding and abetting liability internationally
and in some domestic contexts, there are still some hurdles to overcome
in American jurisprudence before a court could find corporations civilly
liable for aiding and abetting under the ATS. The chief obstacle is the
U.S. Supreme Court’s decision in Central Bank of Denver v. First Interstate
Bank of Denver.
In that case, the Supreme Court held that there was no
civil liability for aiding and abetting a violation of section 10(b) of the
Securities Exchange Act of 1934 because Congress did not explicitly provide
for it,
135
134
and “Congress has not enacted a general civil aiding and
abetting statute.”
136
Two opposite approaches have emerged on whether Central Bank applies
to prevent aiding and abetting liability in ATS
cases.
of its subsidiaries—central to just about every corporate ATS case—have simply not yet
been addressed by international tribunals.
132. See also infra Part III.B.1 (arguing that international standards can be
implemented in many different acceptable forms).
137
133
The argu-
133. See supra note 56 (noting democratic deficiency of international law standards).
134. 511 U.S. 164 (1994).
135. See id. at 177.
136. Id. at 182.
137. Compare In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 52–54
(E.D.N.Y. 2005) (declining to apply Central Bank in ATS case), with In re S. Afr. Apartheid
Litig., 346 F. Supp. 2d 538, 550–51 (S.D.N.Y. 2004) (applying Central Bank), and Doe I v.
Exxon Mobil Corp., 393 F. Supp. 2d 20, 24 (D.D.C. 2005) (citing Central Bank favorably).
For other cases supporting the idea of aiding and abetting liability in ATS cases, see
Cabello v. Fern
´
andez-Larios, 402 F.3d 1148, 1161 (11th Cir. 2005) (accepting aiding and
abetting liability under ATS); Doe v. Rafael Saravia, 348 F. Supp. 2d 1112, 1148–49 (E.D.
Cal. 2004) (same); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 100 (D.D.C.
2003) (same); see also Carmichael v. United Techs. Corp., 835 F.2d 109, 113–14 (5th Cir.
1988) (assuming that ATS permits aiding and abetting liability but dismissing ATS suit
against private corporation because “the record . . . establishes that [the defendant] did
not conspire in, or aid and abet, official acts of torture”); Diskin, supra note 2, at 828–29
(arguing that approach in Agent Orange is more convincing and reasoning that aiding and
2007] ATS RULES OF DECISION 481
ment for applying Central Bank to the ATS aiding and abetting context is
relatively straightforward: Central Bank requires that aiding and abetting
liability be explicitly listed in the statutory text; the ATS does not contain
an explicit provision establishing aiding and abetting liability; there
should therefore be no complicity liability under the ATS.
The argument
against applying Central
Bank
to ATS
situations, relied on by the
Agent
Orange court,
simply takes a broader view of what constitutes a violation
of the law of nations:
The ATS prohibits violations of the law of
nations; even in 1789, it was a violation of the law of nations to aid and
abet others in their violations of international law; the ATS thus incorporated
the international prohibition against aiding and abetting international
law violations.
139
The Supreme Court’s ruling in Sosa suggests that this inquiry should
turn on whether the activity of aiding and abetting is sufficiently defined
and universally condemned by the international community to constitute
a violation of the law of nations.
As noted above, aiding and abetting a
violation of the law of nations was itself recognized to be a violation of the
law of nations in certain situations, such as the piracy statute enacted by
the First Congress.
141
140
Agent Orange relies on this kind of reasoning. But
it is difficult to imagine following the reasoning in Agent Orange without
implicitly overruling Central Bank. That is, what is left of Central Bank if
the Court holds that it does not apply any time the common law would
have recognized aiding and abetting liability?
Unless the Supreme
Court is willing to substantially confine Central Bank, under current federal
law, aiding and abetting liability would need to be explicitly listed in
the
ATS.
142
This conclusion is bolstered by Sosa’s dual requirements of universal
condemnation and clear definition. The definition of corporate aiding
abetting liability has always been part of law of nations as incorporated into U.S. law by
ATS).
138
138. See, e.g., Apartheid Litig., 346 F. Supp. 2d at 550.
139. Agent Orange, 373 F. Supp. 2d at 53–54; see also Diskin, supra note 2, at 828–29
(agreeing with Agent Orange court).
140. See Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004); see also Corrie v.
Caterpillar, Inc., 403 F. Supp. 2d 1019, 1027 (W.D. Wash. 2005) (“While international law
may recognize accomplice liability in some instances, the conduct alleged must first rise to
the level of a claim under Sosa.”). But cf. Diskin, supra note 2, at 828 (arguing that
question of whether conduct has been aided and abetted is distinct from question of
whether that conduct was violation of international law). In any event, Sosa would still
seem to apply even to aiding and abetting itself—that is, under Sosa, the question is not
whether the underlying action that was aided and abetted meets the Sosa standard, but
whether aiding and abetting the alleged conduct meets the Sosa standard. Put differently,
aiding and abetting itself must be universally condemned and well defined to satisfy Sosa.
141. See supra note 118 and accompanying text.
142. The same reasoning would be substantially true for the Central Bank situation
itself: Common law permitted aiding and abetting liability in other kinds of cases, but the
Supreme Court declined to extend it in Central Bank to an implied statutory cause of
action—precisely the same kind of cause of action that most ATS cases rely upon.
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