Complicity in international law.

Position:Proceedings of the 2015 Annual Meeting of the American Society of International Law: Adapting to a Rapidly Changing World - Discussion
 
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This panel was convened at 9:00 a.m., Friday, April 10, by its moderator Jaya Ramji-Nogales of Temple University Beasley School of Law, who introduced the panelists: Chimene Keitner of the University of California-Hastings College of Law; Andre Nollkaemper of Amsterdam Center for International Law, University of Amsterdam; James Stewart of University of British Columbia Faculty of Law; and Beth Van Schaack, Visiting Professor at Stanford Law School.

REMARKS ON COMPLICITY UNDER THE ALIEN TORT STATUTE

By Chimene I. Keitner *

The Alien Tort Statute (ATS), 28 U.S.C. [section] 1350, provides U.S. federal courts with jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The legal issues that arise in ATS cases are legion, notwithstanding the U.S. Supreme Court's attempts to clarify aspects of this jurisdictional grant in Sosa v. Alvarez-Machain (1) and Kiobel v. Royal Dutch Petroleum. (2) Claims under the ATS have been brought against both state and non-state actors under various theories of direct and accessorial liability.

In my 2008 article on Conceptualizing Complicity in Alien Tort Cases, (3) I explored choiceof-law issues under the ATS. I concluded that "conduct-regulating rules" such as the standard for accomplice liability should be governed by customary international law, not U.S. federal common law. Although the Supreme Court has not squarely addressed this issue, most lower courts have subsequently found (either explicitly or implicitly) that customary international law provides the applicable standard. (4) The ATS thus provides a "portal" through which certain international conduct-regulating rules enter into the U.S. legal system and can be enforced horizontally by U.S. courts, rather than vertically by international tribunals.

Corporations and corporate officers have been named as defendants in ATS suits that allege complicity with repressive regimes in a variety of contexts, including suppression of labor unrest and political dissidence, and violent displacement of populations in connection with the operations of extractive industries. The standards set forth in Bell Atlantic v. Twombly (5) and Ashcroft v. Iqbal (6) may make it more difficult to substantiate claims against individual corporate officers at the pleading stage without discovery, although jurisdictional discovery may be appropriate in certain cases. Whether claims are brought against the corporate entity, individual officers, or both, the standard for accomplice liability requires proving that the defendant performed the requisite actus reus with a specified mens rea.

Although 18 U.S.C. [section] 2(a) provides that, in U.S. criminal law, whoever "aids, abets, counsels, commands, induces or procures" the commission of an offense "is punishable as a principal," this is not the dominant understanding in international criminal law. The International Criminal Tribunal for the Former Yugoslavia noted in Prosecutor v. Kvocka, for example, that "[a]iding and abetting generally involves a lesser degree of individual criminal responsibility than co-perpetration in a joint criminal enterprise." (7) In international law, accomplices are liable for their own wrongdoing, rather than vicariously liable for the principal offender's wrongdoing.

Perhaps because aiders and abettors are punished as principals under U.S. criminal law, the required mens rea for aiding and abetting liability under U.S. criminal law is higher than the U.S. civil law standard and the international criminal law standard. (8) Under international criminal law, aiding and abetting requires providing substantial assistance with knowledge that the acts assist or facilitate the commission of an offense. (9) The applicable standard is broader than that contained in a legislative amendment proposed, and subsequently withdrawn, by Senator Dianne Feinstein in 2005, which would have limited ATS suits to those "asserting a claim of torture, extrajudicial killing, genocide, piracy, slavery, or slave trading if a defendant is a direct participant acting with specific intent to commit the alleged tort." (10) Such a standard would have been too restrictive, and would have failed to reach conduct (such as knowingly assisting slavery) that should be stigmatized, deterred, and penalized.

Recent or ongoing cases involving allegations of complicity under the ATS include:

1) Du Daobin v. Cisco (D. Md., Feb. 24, 2004): The plaintiffs alleged that defendants were complicit in the persecution of dissidents in China by officials of the Chinese Communist Party, because they created technology used in China's so-called "Golden Shield." The court dismissed the claims against Cisco's CEO for lack of personal jurisdiction in Maryland. More questionably, it dismissed the claims against Cisco on political question grounds (because they implicated U.S. export policy) and act of state grounds (because they implicated Chinese enforcement of Chinese law). The court also held that, under governing Fourth Circuit case law, plaintiffs had not adequately alleged that Cisco "purposefully" aided and abetted the Chinese government, noting that "they simply have failed to indicate with any logic what it means to customize technology that would permit the sort of human rights violations alleged here, such as torture."

2) Doe v. Nestle (9th Cir., Sept. 4, 2014): The panel declined to decide whether a "knowledge" or "purpose" standard applies, since it found that the plaintiffs' allegations that the defendant corporations aided and abetted child slavery in the Ivory Coast satisfied the more stringent "purpose" standard. The court held that "[t]he defendants had the means to stop or limit the use of child slavery, and had they wanted the slave labor to end, they could have used their leverage in the cocoa market to stop it. Their alleged failure to do so, coupled with the cost cutting benefit they allegedly receive from the use of child slaves, strongly supports the inference that the defendants acted with purpose."

3) Doe v. Cisco (N.D. Cal., Sept. 5, 2014): The court dismissed these ATS claims, which involved complicity in creating the Golden Shield, on the grounds that "[t]he domestic conduct of the Defendants is not, as set forth by Justices Alito and Thomas fin Kiobel], 'sufficient to violate an international law norm.'" This is not, however, the applicable test, as evidenced by the fact that Justices Alito and Thomas proposed the test in a concurrence that would have narrowed the Court's holding that the "claims" must "touch and concern" U.S. territory with "sufficient force to displace" the presumption against extraterritoriality. The panel also erred by holding--contrary to established Ninth Circuit precedent, applicable legislative history, and language in a recent Supreme Court opinion11--that there is no aiding and abetting liability under the Torture Victim Protection Act (TVPA). Plaintiffs have appealed the decision.

4) Mastafa v. Chevron (2d Cir., Oct. 23, 2014): In an opinion by Judge Cabranes, the Second Circuit dismissed claims that "defendants illicitly diverted money to the Saddam Hussein regime--then subject to economic sanctions--in violation of customary international law" and "aided and abetted the abuses of the Saddam Hussein regime by paying the regime kickbacks and other unlawful payments" because the defendants' alleged conduct did not have a sufficient connection to the United States, and because the allegation of knowing, rather than purposeful, assistance did not meet the requisite standard. Like the District of Maryland in Du Daobin, the Second Circuit found that "conclusory" allegations of purposeful assistance were insufficient to survive a motion to dismiss.

5) Doe v. Drummond (11th Cir., Mar. 25, 2015): The court dismissed ATS claims that defendants "provided substantial financial and material support" to violent paramilitaries in Colombia based on Kiobel. Although the court upheld the possibility of "indirect liability" under the TVPA (which only allows claims against natural persons), it granted summary judgment on the TVPA claims against the individual defendants because it found there was no evidence creating a triable issue of fact.

In sum, plaintiffs are facing challenges surviving motions to dismiss ATS claims based on the heightened pleading standards in Twombly and Iqbal, the "touch and concern" test in Kiobel, and the "purpose" standard for aiding and abetting liability applied by at least some U.S. courts. That said, courts have accepted the basic principle that accomplices may be held liable in appropriate circumstances for their conduct in assisting international law violations. Moreover, even claims that have not succeeded in courts have raised awareness that contributing to international law violations amounts to culpable conduct. Ideally, parties will internalize this norm and take steps to avoid contributing to internationally unlawful conduct, thereby diminishing the need for litigation and judicial enforcement.

* Harry & Lillian Hastings Research Chair and Professor of Law at University of California Hastings College of the Law.

(1) 542 U.S. 692 (2004).

(2) 133 S.Ct. 1659 (2013).

(3) 60 Hastings L. J. 61 (2008).

(4) As attorney Paul Hoffmann stated in response to a question from Justice Scalia in the first oral argument in Kiobel, "I think that aiding and abetting could be viewed as a conduct regulating norm, that it actually applies to the things that can be done to violate the norm. And, therefore, international law could apply to that." Kiobel v. Royal Dutch Petroleum, Case No. 10-1491, Transcript of Oral Argument, 57 (Feb. 28, 2012), available at http:// www.supremecourt.gov/oral_arguments/argument_transcripts/10-149l.pdf.

(5) 550 U.S. 544 (2007).

(6) 556 U.S. 662 (2009).

(7) Case No. IT-98-30/I-A, Appeals Chamber Judgment, [paragraph] 92 (Int'l Crim. Trib. for the...

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