Talisman Energy — Amateur Hour at the International Law Improv
Assuming that the other Circuits follow suit, Roger is almost certainly right that the Second Circuit’s recent decision in Talisman Energy “will be the death knell for most corporate liability claims under the Alien Tort Statute.” That’s regrettable in itself. What’s particularly regrettable, though, is that the Second Circuit still has no idea what it’s talking about when it comes to the customary definition of aiding and abetting. Here, in relevant part, is the court’s “analysis” (some citations omitted):
Thus, applying international law, we hold that the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone. Even if there is a sufficient international consensus for imposing liability on individuals who purposefully aid and abet a violation of international law, no such consensus exists for imposing liability on individuals who knowingly (but not purposefully) aid and abet a violation of international law. Indeed, international law at the time of the Nuremberg trials recognized aiding and abetting liability only for purposeful conduct. See United States v. von Weizsaecker (The Ministries Case), in 14 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 662 (William S. Hein & Co., Inc. (1949) (declining to impose criminal liability on a bank officer who made a loan with the knowledge, but not the purpose, that the borrower would use the funds to commit a crime). That purpose standard has been largely upheld in the modern era, with only sporadic forays in the direction of a knowledge standard. See Khulumani, 504 F.3d at 276 (Katzmann, J., concurring) (noting that some international criminal tribunals have made overtures toward a knowledge standard but that the Rome Statute of the International Criminal Court adopts a purpose standard). Only a purpose standard, therefore, has the requisite “acceptance among civilized nations” for application in an action under the ATS.
There is not a single accurate statement in this paragraph. Let’s begin with the claim that “international law at the time of the Nuremberg trials recognized aiding-and-abetting liability only for purposeful conduct.” Like the Second Circuit panel in Khulumani, the panel in Talisman Energy cites only one World War II case — and only one defendant in that case — in defense of that conclusion: the acquittal of the banker Rasche in Ministries. I have explained before why Rasche’s acquittal is not indicative of the state of international law in the World War II era, so there is no need to repeat that explanation here. Chimene Keitner has also explored the issue in her excellent article “Conceptualizing Complicity in Alien Tort Cases,” pointing out that Rasche’s acquittal is inconsistent even with the rest of Ministries itself (p. 89):
It is difficult to reconcile this result with the concurrent verdict in the trial of banker Emil Puhl, which is more consistent with other postwar cases. Puhl, deputy to the president of the German Reichsbank, knowingly took part in disposing of gold (including gold teeth and crowns) and other valuables looted from Holocaust victims. He was sentenced to five years’ imprisonment for his accessorial role in crimes against humanity, even though he apparently did not share the intent of the Nazi perpetrators and in all likelihood found their actions “repugnant.
I will simply add a statement made by the NMT in Flick regarding a German industrialist’s financial contributions to the SS: “One who knowingly by his influence and money contributes to support thereof must, under settled legal principles, be deemed to be, if not a principal, certainly an accessory to such crimes.”
The claim that the “purpose standard has been largely upheld in the modern era, with only sporadic forays in the direction of a knowledge standard” is equally indefensible. As I explained in the earlier post, both the ICTY and the ICTR adopt the knowledge standard. The Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia do likewise (as does the very influential 1996 Draft Code of Crimes Against the Peace and Security of Mankind). Indeed, the only international tribunals that even arguably adopt the purpose standard — on that, see below — are the ICC and the Special Panels for Serious Crimes in East Timor, whose statute was based on the Rome Statute. Four out of six international tribunals hardly seems like a “sporadic foray” toward the knowledge standard.
Talisman Energy also conveniently ignores the fact that the ICTY and ICTR’s jurisprudence reflects customary international law, while Article 25(3)(c) of the Rome Statute does not. Here is what Chimene says about the ICTY in her article (pp. 76-77):
The Secretary-General of the United Nations has emphasized that the legality principle, under which individuals can only be punished for violating criminal laws that were in force at the time they committed the allegedly wrongful acts, dictates that “the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law.” Accordingly, the ICTY has taken pains to establish the customary international law foundation of the substantive law it applies, including the elements of aiding and abetting liability.
Judge Katzmann at least had the intellectual honesty to acknowledge in Khulumani (pp. 274-75) that “the provision of aiding and abetting liability in the ICTY statute reflects a determination by both the Secretary-General and the Security Council, which approved the Secretary-General’s report when it enacted the statute, that such liability is firmly established in customary international law,” and that “[t]he inclusion of substantively identical language in the statute creating the ICTR presumably reflects a similar determination.” No such acknowledgment can be found in Talisman Energy.
Article 25(3)(c) of the Rome Statute, by contrast, does not reflect the customary definition of aiding and abetting. Here, for example, is what Rob Cryer has to say:
The article also introduces a purposive, motive requirement that is not required by custom (under which knowledge suffices). Thus the crime is not defined in accordance with customary international law, but in practice the addition of the purposive intent will render liability under the Rome Statute more narrowly than in custom.
Numerous other leading ICL scholars agree with Cryer that customary international law adopts the knowledge standard, not the purpose standard, including Antonio Cassese, Gerhard Werle, and Kriangsak Kittichaisaree.
Once again, Judge Katzmann is honest enough to admit that the Rome Statute “has yet to be construed by the International Criminal Court; its precise contours and the extent to which it may differ from customary international law thus remain somewhat uncertain.” And once again, Talisman Energy fails to do likewise.
Finally — and for a third time unlike Judge Katzmann — Talisman Energy conveniently ignores the fact that Article 25(3)(c) is not not the only provision in Article 25 that deals with aiding and abetting. On the contrary, Article 25(3)(d) imposes criminal responsibility on any person who “[i]n any other way contributes to the commission or attempted commission of… a crime by a group of persons acting with a common purpose” when that contribution is either “made with the aim of furthering the criminal activity or criminal purpose or “made in the knowledge of the intention of the group to commit the crime.” The precise relationship between Article 25(3)(c) and Article 25(3)(d) is much debated by ICL scholars, but it is clear that the Rome Statute does not unequivocally adopt the purpose standard for all forms of aiding and abetting. Indeed, the crimes at issue in ATS cases will almost always (always?) be committed by “a group of persons acting with a common purpose,” precisely the kind of criminality that, according to Article 25(3)(d), can be knowingly aided and abetted.
So, to recap: the Second Circuit’s insistence that “[o]nly a purpose standard… has the requisite ‘acceptance among civilized nations’ for application in an action under the ATS” is supported by the acquittal of one defendant in one Nuremberg-era trial and by one Article in the Rome Statute that does not reflect customary international law and that does not unequivocally limit aiding and abetting to purposeful conduct. On the other hand, Nuremberg-era jurisprudence overwhelmingly supports the knowledge standard, as does the jurisprudence of four modern tribunals, including two that were created to apply customary international law.
And so do the hopes of individuals victimized by the knowing actions of multinational corporations end not with a bang, but a whimper. They deserve better.