The Alien Tort Statute and International Law (Guest Post)
The following post was written by Chimène Keitner, an Associate Professor at Hastings. Our thanks to her for contributing it.
The Ninth Circuit issued a panel opinion this week in Abagninin v. AMVAC Chemical Corp., a corporate Alien Tort Statute (ATS) case that had largely been flying under the radar screen of many of us who follow these cases, myself included. In part, this is because the plaintiffs had done their best to file and remain in California state court, where a jury last year awarded Nicaraguan banana workers $2.5 million in punitive damages in a similar case. In this case, however, the defendants successfully removed the case to federal court, bringing the ATS into play. In a 16-page opinion, Judge McNamee (sitting by designation) affirmed the district court’s dismissal of the plaintiffs’ claims against manufacturers, distributors, and users of the pesticide DBCP, which is known to cause male sterility and low sperm count, for genocide and crimes against humanity on Ivory Coast plantations.
Although I have not yet been able to access the operative complaint, it seems that the plaintiffs alleged that the companies were directly liable for genocide and crimes against humanity. This distinguishes Abagninin from the majority of ATS cases against corporations, which more often seek to hold corporations liable as accomplices to international law violations, rather than direct perpetrators. For those who are interested, I analyze and seek to clarify the legal framework for accomplice liability in ATS cases in a forthcoming law review article entitled “Conceptualizing Complicity in Alien Tort Cases,” available here.
There are at least three important points to take away from the Abagninin decision. Two of these involve substantive international law, and one involves the method for identifying the content of customary international law.
1. The crime of genocide requires that the perpetrator act with intent to destroy, in whole or in part, a protected group. The plaintiffs apparently argued, based on the Rome Statute for the International Criminal Court, that genocide only requires knowledge that people will die. It is unclear to me what provision in the Rome Statute supports this reading but, in any event, the Ninth Circuit appropriately rejected it. This does not mean, however, that accomplices to genocide must share the perpetrator’s intent in order to be held liable. Although the Ninth Circuit did not address this issue, international law supports accomplice liability where an accomplice knows that the perpetrator has the requisite intent and provides assistance that has a substantial effect on the commission of the violation, even if the accomplice does not share the perpetrator’s intent. I examine this point in greater detail in my article.
2. Crimes against humanity need not involve state action. In this case, the Court “assume[d], because the parties do” that the Rome Statute reflects the customary international law definition of crimes against humanity. The Court then determined that a crime against humanity can only be committed by “a State or State-like organization,” which does not include a business organization such as AMVAC. Apparently because the complaint was framed in terms of direct rather than accomplice liability, the Court does not appear to have considered the potential role of the Ivory Coast governmental entity Sodefel in the alleged international law violations, or whether this would have conferred on Sodefel’s partners the requisite “State-like” quality. In any event, it is not clear that international law requires “State-like” action in order for a prohibited act committed as part of a widespread or systematic attack directed against a civilian population to constitute a crime against humanity, and the Abagninin court’s cursory analysis, based largely on the parties’ unexamined assumptions, should not be considered authoritative on this point.
3. The Rome Statute does not codify customary international law. Despite its reliance on the Rome Statute to define crimes against humanity because of the parties’ agreement, the Abagninin court appropriately rejects the Rome Statute as a codification of customary international law, rather than an important, but not determinative, source of evidence regarding state practice and opinio juris. The Rome Statute itself rejects such reliance in Art. 10, a point I also discuss in my article on accomplice liability. The Abagninin analysis cuts against what I argue was Judge Katzmann and Judge Korman’s misplaced reliance on their interpretation of the Rome Statute in the Khulumani decision. It remains to be seen what other judges will do when faced with similar arguments.