Talisman Energy — Amateur Hour at the International Law Improv

by Kevin Jon Heller

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.


16 Responses

  1. So… is this a good time to reopen the debate over the death of CIL norms?

  2. While there has been progress in enrolling an increasingly larger number of students in international law courses, opinions like these give one pause.   It is not late breaking news that there is an absolutely stunning lack of knowledge about international law among senior jurists throughout the world, but one must wonder whether the young clerks who do a lot of the lifting in U.S. courts are also equally ignorant?  Opinions like this one do not bode well for the answer.

  3. Scott,

    I think Eric Posner should answer that question.

  4. Kevin,

    I was waiting for your analysis of Talisman and agree in every respect.  

    I was particularly struck by the misreading of the ICTY case law on this.  Not only has the ICTY embraced the knowledge standard for aiding and abetting, it has arguably gone further in certain cases.  In any event, decisions like Kristic and Furundzija are quite clear that knowledge is sufficient.

    However, before we sound the death knell for the ATS as a tool against multinational corporations, it is certainly possible for litigants to proceed outside the Second Circuit.  I expect we will see virtually all of these cases launched in the 9th Circuit going forward. 

  5. This decision was entirely sensible to anyone not living on cloud 9 in ivory tower land. 

    The only reasons to expand aiding and abetting liability to multinational corporations doing business in countries with bad governments for the conduct of those bad governments are (1) to gin up fees for the plaintiffs’ bar (always a popular option) and (2) to force multinationals out of those countries as a way of pressuring the bad governments to reform.  I gather that most of the academic support for this kind of lawsuit is based on reason number 2. 

    Fortunately, the Second Circuit apparently understood the real game here as well and put a stop to it.  If you want to force bad governments to change, you can try to pressure the US Government to act.  Or you can try to organize a private boycott.  But don’t abuse the civil justice system in the US by punishing multinationals for the sins of their host governments. 

  6. One other point:  The ninth circuit might well take a different view than the second circuit, but how do you think the Court would resolve that circuit split?  Want to bet? 

  7. Ct. Lawyer – you might like the policy implications of the Second Circuit’s decision, but the point that Kevin is making and that I articulated in my comment is that the Court’s analysis is completely wrong.  You have not even attempted to defend the Court’s analysis of aiding and abetting.

    I have no idea how the Supreme Court would rule in the event of a circuit split, but the likely swing vote – Justice Kennedy – at least has some familiarity with international law. 
    May I also suggest a possibility #3 – to provide some compensation (however incomplete) to victims of massive human rights violations?

    Lastly, keep in mind that in the US, the standard for aiding and abetting liability is not purpose.  The other controversial aspect of the decision is that the Circuit adopted the alleged customary international standard to assess aiding and abetting liability whereas it could have simply applied the federal law standard.  Sosa simply holds that US courts need to look to CIL to determine what are offenses against the law of nations – not that US courts must also apply those laws in the same way an international court would. 

  8. One interesting argument that might occur in future cases is that the ICC treaty (and practice under it as it continues to develop) will lead to a NEW CIL norm for aiding and abetting liability based on the purpose standard.  It  is indeed unclear whether the ICC charter firmly adopts a purpose based standard given the debate over Art. 25(3).  However, assuming that the ICC adopts the purpose based test in practice, and that the work of the ICTY and ICTR winds down in the next couple years as anticipated, it is likely corporate defendants will argue before the 9th Cir. (or others that might be incline towards a knowledge standard) that the CIL standard has changed to purpose EVEN IF it was a knowledge standard for many decades.  Corporate defendants will likely point to the wide adoption of the ICC (over 110 ratifications and over 139 signatures).  The question is whether the ICC treaty and practice under it (and the end of the work of the ad hoc tribunals) will be sufficient state practice to overturn the prior knowledge standard.  In any event, ICC practice could ultimately have an increased impact on corporate liability under the ATCA and thus plaintiffs lawyers/organizations and corporations might have an increased interest in ICC developments.  This potential argument might also lead to continuing uncertainty and inconsistency among the federal circuits for a considerable period of time (as the question of whether and when sufficient state practice exists to create a NEW CIL purpose based standard is likely to vary among the circuits).  With Talisman the 2nd Circuit is already finding a purpose based test in CIL; even if other circuits do not currently follow the 2nd Cir., might they change their answers in the future based on ICC practice?

    Thanks Roger and Kevin for the interesting blog on this case.

  9. One additional consideration to take into account (and a possible reply by ATCA plaintiffs to the possible corporate defendant argument above):  Even if practice under ICC would establish a new purpose based test, if the US is neither a signatory let alone a party to the ICC, then the US may very well be considered a persistent objector to the new rule, and thus not be bound to the rule, and thus a US court may be free to maintain/adopt a knowledge based test.

  10. Milan,

    Thanks for the comment — you beat me to my response to Ct. Lawyer.  Funny how quickly conservatives become naked judicial activists when they like a particular decision!


    Your points are well taken.  That’s why it’s so important to emphasize that the Rome Statute does not exclusively embrace purpose for aiding-and-abetting — to help prevent US courts from selectively citing the Statute to support their own predetermined conclusions.

  11. Assuming that Kevin is right about the state of aiding and abetting liability under international criminal law, why is ICL a more appropriate source than the rules on State responsibility for determining the standard for holding corporations liable for aiding and abetting under the ATS?

    ICL was developed to impose criminal liability on individuals, not civil liability on juridical entities.  Wouldn’t the rules on state responsibility provide a more appropriate source, because they were developed to impose something like civil liability on juridical entities?  According to the ILC’s commentary on the Draft Articles on State Responsibility, “[a] State is not responsible for aid or assistance given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State.”

    Obviously, there are differences between corporations and States, but there are also differences bewteen corporations and individuals.  Further, wouldn’t it be anomolous if a corporation could be liable based only on a knowledge standard while a State would not be liable for the exact same conduct unless acted with intent.  For example, if the United States allowed a corporations to sell military equipment to Israel, the company could be held liable if if knew that the equipment would be used to commit illegal acts, but if the United States bought the equipment itself and then sold it to Israel, it would not be liable unless it intended to assist the illegal acts.

  12. I botched the ILC quote.  It is “A State is not responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct.” 

    The same commentary also states, “Article 16 limits the scope of responsibility for aid or assistance in three ways.  First, the relevant State organ or agency providing aid or assistance must be aware of the circumstances making the conduct of the assisted State internationally wrongful; secondly, the aid or asistance must be given with aview to facilitating the commission of that act and must actually do so;  thirdly; the compelted act must be such that it would have been wrongful had it been committed by the assisting State itself.”

  13. Ok, I’m afraid I don’t understand Milan’s assertion:

    Lastly, keep in mind that in the US, the standard for aiding and abetting liability is not purpose.

    As far as I know, the US has a very strong purpose standard for aiding and abetting, both as a criminal and a civil matter, although as Aiding and Abetting laws tend to be piecemeal, I’m sure there’s a non-purpose standard somewhere.  The Private Securities Litigation Reform Act of 1995 pretty much did it in for most cases of this sort, though.

  14.     Kevin is correct with respect to the customary knowledge or awareness test, and under that test or the purpose test one need not know that one’s conduct or the conduct of a direct perpetrator is criminal.  See, e.g., Paust, The Absolute Prohibition of Torture…., 43 Valparaiso L. Rev. 1535, 1544-45 & nn.42-44 (2009), on line at SSRN.
        I would add (and apparently Matt) that it is possible to interpret art. 25(3)(c) with CIL as an informing background, even when considering arts. 30 and 32(2).  Especially relevant is art. 21(1)(b) when there is some ambiguity inherent in the phrase “purpose of facilitating.”  That ambiguity may be hightened in view of Kevin’s point that there is an inconsistency between 25(3)(c) and (d).  Yet, this may get one only so far.
       Again, under CIL, a complicitor need not know that what is being facilitated is a crime.  Ignorance of the law is no excuse.  Therefore, one can have the “purpose” of engaging in conduct in order to facilitate conduct of a direct perpetrator (and have a “purpose of facilitating”) without knowledge that one’s conduct or that being facilitated by some direct perpetrator is a crime.  It is all the more interesting when one considers that purpose, knowledge, an awareness can be proven by circumstancial evidence.
    Jordan J. Paust

  15. Is the question that I asked above being ignored because the answer is so obvious that it is not worth responding to, or because no one has an answer? 

    If it is the former, I apologize for the trouble, but I would really appreciate a response because, however obvious the answer may be to others, it is not obvious to me. 

  16. M. Gross-
    I was referring to the federal common law standard, which in my view is the standard the Second Circuit should have used.  Please see Judge Hall’s excellent opinion in Khulumani for more.  

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