25 Oct Second Circuit Relies on Rome Statute to Determine ATS Aiding-and-Abetting Liability
Just in case our readers missed it, the Second Circuit in Khulumani v. Barclay National Bank rendered an extremely important award earlier this month on the subject of corporate aiding-and-abetting liability under the ATS. The decision, which involved alleged corporate assistance to the South African government during apartheid, is quite complicated and fractured. But the key part of the opinion is that a majority of the Court relies on the Rome Statute to determine aiding-and-abetting liability as applied to corporate defendants under the ATS. Judge Korman, concurring and dissenting, said that “I concur in section II.B of [Judge Katzman’s] opinion that articulates the customary international law standard for aiding-and-abetting based on the Rome Statute. I do so because it provides a clear standard, adopted by a majority of the panel, for Judge Sprizzo to apply, in deciding whether to grant the plaintiffs’ motion to file amended complaints.”
Here is the key portion of Section II.B of Judge Katzman’s opinion concerning aiding-and-abetting based on the Rome Statute. This portion serves as the majority rule on corporate liability under international law as applied to the ATS by the Second Circuit:
I conclude that the recognition of the individual responsibility of a defendant who aids and abets a violation of internationallaw is one of those rules “that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.” Flores, 414 F.3d at 248. Recognized as part of the customary law which authorized and was applied by the war crimes trials following the Second World War, it has been frequently invoked in internationallaw instruments as an accepted mode of liability. During the second half of the twentieth century and into this century, it has been repeatedly recognized in numerous international treaties, most notably the Rome Statute of the International Criminal Court, and in the statutes creating the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). Indeed, the United States concedes, and the defendants do not dispute, that the concept of criminal aiding and abetting liability is “well established” in internationallaw. Brief for the United States as Amicus Curaie, at 21.
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More recently, the Rome Statute of the International Criminal Court (“Rome Statute”), July 17, 1998, 2187 U.N.T.S. 90, provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the ICC if that person:
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; [or]
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime[.]
Id. art. 25(3)(c), (d). The Rome Statute is particularly significant for the present inquiry because, unlike other sources of international legislation, it articulates the mens rea required for aiding and abetting liability. The Statute makes clear that, other than assistance rendered to the commission of a crime by a group of persons acting with a common purpose, a defendant is guilty of aiding and abetting the commission of a crime only if he does so “[f]or the purpose of facilitating the commission of such a crime.”Id. art. 25(3)(c).
In drawing upon the Rome Statute, I recognize that it has yet to be construed by the International Criminal Court; its precise contours and the extent to which it may differ from customary internationallaw thus remain somewhat uncertain. Nevertheless, the Statute has been signed by 139 countries and ratified by 105, including most of the mature democracies of the world. It may therefore be taken “by and large … as constituting an authoritative expression of the legal views of a great number of States.” Furundzija, Trial Chamber Judgment, ¶ 227.
Furthermore, the Rome Statute’s mens rea standard is entirely consistent with the application of accomplice liability under the sources of internationallaw discussed above. For example, in the Ministries Case conducted under Control Council Law No. 10, the tribunal declined to impose criminal liability on a bank officer who was alleged to have “made a loan, knowing or having good reason to believe that the borrower w[ould] use the funds in financing enterprises [conducted] in violation of either national or internationallaw,” but was not proven to have made the loan with the purpose of facilitating the enterprises’ illegal activities. United States v. von Weizsaecker (The Ministries Case), in 14 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 308, 622 (William S. Hein & Co., Inc.1997) (1949). Meanwhile, those who assist in the commission of a crime with the purpose of facilitating that crime would be subject to aiding and abetting liability under the statutes governing the ICTY and ICTR. My research has revealed no source of internationallaw that recognizes liability for aiding and abetting a violation of internationallaw but would not authorize the imposition of such liability on a party who acts with the purpose of facilitating that violation (provided, of course, that the actus reus requirement is also satisfied).
With respect to the actus reus component of the aiding and abetting liability, the international legislation is less helpful in identifying a specific standard. However, in the course of its analysis of customary internationallaw, the ICTY concluded that “the actus reus of aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”Furundzija, Trial Chamber Judgment, ¶ 235 (second emphasis added). My research has uncovered nothing to indicate that a standard other than “substantial assistance” should apply.
Accordingly, I conclude that a defendant may be held liable under internationallaw for aiding and abetting the violation of that law by another when the defendant (1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime, and (2) does so with the purpose of facilitating the commission of that crime. Furthermore, based on this review of internationallaw’s treatment of aiding and abetting liability over the past sixty years, I conclude that aiding and abetting liability, so defined, is sufficiently “well-established[ ][and] universally recognized” to be considered customary internationallaw for the purposes of the ATCA. See Kadic, 70 F.3d at 239 (internal quotation marks omitted). This conclusion comports with the decisions of several other federal courts that have considered the issue. See Almog v. Arab Bank, PLC, 471 F.Supp.2d 257, 287 (E.D.N.Y.2007) (noting the “vast body of law finding aiding and abetting liability available under the [ATCA]”); Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F.Supp.2d 633, 668 (S.D.N.Y.2006) (“Aiding and abetting liability is a specifically defined norm of international character that is properly applied as the law of nations for purposes of the [ATCA].”); Bowoto v. Chevron Corp., No. C 99-02506 SI, 2006 WL 2455752, *3-4 (N.D.Cal. Aug.22, 2006); In re “Agent Orange” Prod. Liab. Litig., 373 F.Supp.2d 7, 52-54 (E.D.N.Y.2005).
Roger,
What I don’t understand, honestly, is how the Rome Statute is at all relevant in this case. The fact that aiding and abetting liability undoubtedly exists in international criminal law, which directly bind individuals, does not mean that such civil responsibility exists under international law either for individuals or for corporations. Is there any other non-ATS case, before any domestic court anywhere in the world, where such civil responsibility of non-state actors under international law was recognized?
Marko,
I take your point. There is plenty of disagreement on that score. Beth Stephens has written on the comparative civil/criminal approaches to addressing human rights abuses in her article in the Yale Journal of International Law. 27 YJIL 1 (2002).
I recently have written on the debate regarding corporate liability in this article in the Notre Dame Law Review. Post-Sosa, U.S. courts seem to be moving in the direction of corporate responsibility for aiding-and-abetting government human rights abuses. But even those that do hold corporations liable disagree on the correct standard to apply. I am not aware of other courts that have used the Rome Statute as the appropriate standard.
Roger Alford