*1 se Mbuso, Evelyn Matiso, pro personal arguments. considered his la as representative Matiso, Betty They are merit. of without Pitsi
Mgidi, representative personal as of Jeffrey Mgidi, Mkhonwana, Elizabeth Conclusion personal representative as Obed of affirm the of judgment We conviction Mkhonwana, Mlangeni, Catherine as ten-year mandatory sen- minimum representative personal of Bheki tence entered in the District Court. Mlangeni, Mlanjeni, personal Cecil as representative Mlanjeni, of Kele Sam Morudu, personal representa- uel as Leslie, tive of Sannah P. Tshidiso Motasi, personal representative as of Penelope Moloke, John Willie Nelani, representative personal as of Mongezi Nelani, Ngqulun Catherine KHULUMANI, per Sakwe Balintulo as ga, personal representative as Bri representative sonal of Saba Balintu Ngqulunga, Phiri, Catherine as lo, Fanekaya Dabula, personal as personal representative of Thomas representative Lungile Dabula, Phiri, Sefolo, personal Elizabeth as Nokitsikaye Dakuse, per Violet as representative Sefolo, of Harold Ma representative Skweyi sonal of Tozi Sibaya, personal representative ria as ya, Duda, personal repre Berlina as Jeffrey Sibaya, Songo, Patricial M. Duda, sentative Donald Mark personal representative Dipulo as Fransch, personal representative as Songo, Mpolontsi Tyote, personal as Fransch, of Anton Sherif Mzwandile representative Boyboy Tyote, Gekiso, personal representative as Nomkhango Dyantyi, Skolweni Clif Nyongwana, Ntombizodwa Annestina Fudukile, ford Zixelile Windovoel Guga, personal representative Elsi as Gaaje, Hlatshwayo, Charles Moses Joyce Guga, Hlophe, per of James as Hlongwane, Kekana, Lesiba Sanaki representative Jeffrey sonal Mahlatshi, Makana, Robert Zakharia Hlophe, Kama, Nomvula Eunice as Mamba, Fikile Elliot Sithembiso personal representative of Mncedisi Marenene, Masemola, Alfred Mau Dlokova, Joyce Ledwaba, personal as Mazibuko, reen Thandi Michael representative Ledwaba, of Samuel Mbele, Mfecane, Laetitia Nombambo Lerutla, personal represen Johana as personal representative as of Rubin Lerutla, tative of Matthews Z. Frieda Mfecane, Mlandeli, Dennis Mo Tefo Lukhulei, personal representative as fokeng, Molatedi, Motlaletsatsi Azar Lukhulei, Tokkie Elizabeth Molebeleli, iel Molotsi, Simon Lina Maake, personal representative as of Moreane, personal representative as Maake, Madondo, Jackson Architon Xaba, Albert Thabiso Samuel Mot personal representative as of Mandla sie, Ndlovu, Mangindiva Sonto Robert Madondo, Benjamin Maifadi, Tshemi Rhenene, Sikani, Thobile Bubele Ste Makedama, personal representa as fane, Biletile, Noluthando Leslie Lugile Makedama, tive Mabel Botya, Dukasche, Mncedisi Leon El Makupe, personal representative as Gishi, Gomo-Pefile, sie Dorthia Za Makupe, Malobola, of Andrew mikhaya Mabel Bishop Khali, Maga James personal representative bana, of Malobo- Nosipho Manquba, Notathu *2 Dorothy iwe, Sigqibo Mpendulo, Matomela, Nomisa Thersia Eugenia Molefi, Mbeshu, Mequbela, Lobisa Mbongeni Themba May, Nelson Digwamaje, Nama, Ngamani, Digwamaje, Kaelo Elias Irene Mzuhlangena Leinana, representative of Eliza Lindiwe Petunia Matshidiso personal as Leinana, Ngoxza, Sylvia Kelebogile Lu Prudence Nagamani, Geshia beth Ngwenyana, Leinana, Motsumi, Ndukwayibuzwa David Nka Sarah cas Nkosiphendule, dimeng, Thejane, Mtyukato Mosh Moeketsi Wellinton Thejane, Vuyani Nongcama, Mirriam oeshoe Pascalinah Bookie Sindiswa Phoofolo, Gladys Nunu, Phoofolo, Nunu, Phala Khobotle Boniwe Thulani Mokgoro, Jongani Hutchingson, Pringane, personal Sefu za, Pathiswa Theophi Sidzumo, Gobusamang Laurence representative Mthozama ba Sikani, Lebotso, Thapelo Tshimako, No Pringane, Edward Mthutuzeli lus Siletile, Mokgothu, Thembeka Rahaba Jonathan Makhu Victoria luthando Titus, Lediga, Lebese, Sipho Mpolontsi Anna Stan Siphaho, du Johannes Yamile, Lebese, Nbobeni, ley John Tyotes, Meford William Mthuzimele Zenani, Hlongwane Ngobeni, Thandiwe Lucas Clement Ntunani William Masegale Monnapula, Shezi, Boneng, Dennis Vin Plaintiffs- Elias B. Brutus, Appellants, A. Moraloki cent Frederick Mphela, Kgobe, Lulamile Reuben Khulumani, Olayi, Balintulo Sakwe P.J.
Ralrala, Plaintiffs-Appellants, Wellington Gamagu, Baninzi Viola v. Laws, of Pass unlawful deten tions LTD., BANK NATIONAL BARCLAY 1981-1983, subjected torture tion Petroleum, PLC, Chevrontex British discriminatory practices labor Corporation, Chevrontexaco aco Durham, Plaintiffs, and William H. Inc., Citigroup, Inc., Energy, Global Commerzbank, Group, Suisse Credit AG, Daimlerchrysler Bank Deutsche Chrysler Corporation, National Daimler AG, AG, Bank Exxonmobil Dresdner PLC, Colgate Pal Bank Westminster Company, Corporation, Motor Ford Barclays PLC, AG, molive, Bank UBS Corpo Ltd., Fujitsu, General Motors Inc., AG, Citigroup Deutsche Bank rations, Business Ma International AG, Bank Dresdner Commerzbank Chase, Morgan Corp., J.P. chines Holcim, Company, AG, Ford Motor AG, Company, and UBS De Oil Shell Inc., Corporation, Shell Exxon Mobil fendants-Appellees, Morgan, Minnesota Company, J.P. Oil (3M Manufacturing Mining Co. Industrie, Daimler-Benz Fluor AEG Company, Co.), Bris General Electric AG, Group Corporation, Rheinmetall Co., tol-Meyers Squibb Dupont E.I. de Group, Total-Fina-Elf Rio Tinto IBM, Nemours, Corporation, Xerox Corporations, Defendants. Doe Honeywell Motors, Interna General America, N.A., tional, Inc., Digwa Ntsebeza,* Bank Lungisile Hermina Company, Dlevu, Coca- Mfingwana, The Dow Chemical maje, Andile F.J. Agricole S.A., Co., Hew Credit Kubukeli, Frank Cola Lwazi Pumelela Company, Emschemie Brown, Nyameka Brown, lett-Packard Sylvia Gon- * name, consistent Ntsebeza’s of Court to amend We direct the Clerk complaint. spelling used in his briefs caption spelling to reflect official
(North America) Inc., Chevron Texaco
Corporation, Motors, American Isuzu USA, Inc.,
Inc. and Nestle Defen
dants-Appellees, *3 AG, Holding AG,
Sulzer An Schindler
glo-American Corporation, Debeers
Corporation, AG, Banque Novartis Suez, Lyonnais,
Indo Credit and Un
known officers directors of Danu
International, Chartered, Standard
P.L.C., Corporate Does, Credit Suisse
Group, Citigroup AG, Inc., Securities Morgan Guaranty,
as successor Hannover,
Manufacturers Chemical Bank,
Bank Chase & Manhattan Uni
sys Corporation, Sperry Corporation, Corporation, ICL,
Burroughs Ltd., Corp., Computer Companies,
Amdahl Corporation, Holcin, Doe Ltd.,
John
Henry Blodget, Baldauf, Justin Kris Campbell, Virginia Syer
ten Gener
eux, Ghachem, Sofia Thomas Mazzuc
co, McCabe, Deepak RAJ, Edward Doe,
John 1-10 Oerlikon Contraves
AG, AG, Corporate Oerlikon Buhrle Royal 1-100,
Does Dutch Petroleum
Co., Transport Trading Shell & Com
pany Petroleum, Inc., PLC and Shell Lynch Inc.,
Merrill & Co. Kenneth
Seymour, Defendants. 05-2141-cv,
Docket Nos. 05-2326-cv. Court Appeals,
Second Circuit.
Argued: Jan. 2006.
Decided: Oct. Rabinowitz, Boudin, Goldstein, B.
David Leiberman, P.C., Standard, Krinsky & York, Repub- New NY Amicus Curiae Africa. lic South Collinsworth, Terry International Labor Fund, Washington, D.C. for Amici Rights Organizations. International Labor Curiae Resnik, Richard M. Mandel Resnik Kai- Greenstein, York, New ser Moskowitz & *4 for Commissioners and NY Amici Curiae Africa’s Members South Committee Truth and Reconciliation Commission. Steinhardt, George Ralph G. The Wash- School, University Washing- ington Law ton, D.C. for Amici Curiae International Alston, Philip Law William S. Scholars Franck, Hong-Ju Dodge, Thomas Harold Koh, Slaughter, and David Anne-Marie Weissbrodt. Law, Stephens, Rutgers
Beth School Camden, NJ for Amici Curiae Internation- and Bar Rights Organizations al Human Associations. Nagan, University of Flori-
Winston P. Law, Gainesville, da, FL College of Levin Human Institute of for Amicus Curiae Peace, Rights, Development. Sharma, York, Rajan New Himanshu Organ- African for Amici Curiae South NY izations, Sup- Political Parties Unions and Hausfeld, Milstein, Cohen, Michael D. Commis- the Brief of Amici Curiae porting Toll, P.L.L.C., Washington, & Hausfeld of South sioners and Committee Members D.C., Plaintiffs-Appellants. Khulumani for and Reconciliation Commis- Africa’s Truth Hoffman, L. DeSimone Paul Schonbrun sion. Venice, Harris, LLP, Seplow & Hoffman Herz, EarthRights Interna- Richard L. CA, Digwamaje Plaintiffs- for Ntsebeza & tional, D.C. Amici Curiae Washington, for
Appellants. Diplomats. Foreign Service Career Barron, Cravath, & P. Swaine Francis School, Ides, An- Loyola Los Law Allan NY, York, LLP, New for Defen- Moore Professors for Amici Curiae geles, CA dants-Appellees. Law. and International Constitutional Loeb, Depart- M. Robert Baldwin, Jr., University of D.C., Justice, Fletcher N. Washington, ment of Gainseville, Law, Florida, College of Levin States of America. Amicus Curiae United foreign charg- corporations, FL for Amicus Curiae Center for Interna- domestic and ing Financial Crimes them with various violations of interna- tional Studies. tional law.1 The other two groups, Green, M. for Constitu- Jennifer Center Plaintiffs, Digwamaje Ntsebeza York, Rights, New NY Amici tional brought class action claims behalf of the Concerning Apartheid Curiae the Status of atrocities, apartheid “victims of the related as a of International Law. Violation violations, rights’ against human crimes humanity discriminatory and unfair [and] HALL, Before: KATZMANN The practices.” Digwamaje forced labor KORMAN, Judges, and District Circuit brought Plaintiffs also claims under the Judge.** Victim Torture Protection Act of PER CURIAM: (1992), 102-256, Pub.L. codi- Stat. (“TVPA”), fied at 28 U.S.C. 1350 note
I Corrupt and the Racketeer Influenced and Act, et Organizations §§ 1961 18 U.S.C. plaintiffs bring this action claims (“RICO”). seq. *5 Act, under the Tort Alien Claims U.S.C. (“ATCA”), against approximately August In the Ntsebeza Plaintiffs fifty corporate defendants and hundreds of filed a motion with the Judicial Panel on “corporate plaintiffs argue Does.” The that (“MDL Panel”) Litigation Multidistrict to actively willingly these defendants col- all of the transfer actions the Southern government laborated with the of South York, District of New and in December in maintaining repressive, Africa racially 2002, the MDL Panel ordered that trans- system “apartheid,” based known as which fer pre-trial proceedings. for coordinated majority restricted the black popu- African Apartheid Litig., See In re S. African lation all areas of life providing while (J.P.M.L.2002). F.Supp.2d 1380-81 for minority population. benefits white In July thirty-one fifty-five of the groups plaintiffs Three sepa Digwa- filed ten defendants in the Ntsebeza and in multiple maje joint rate actions federal district actions filed motion to dismiss. asserting apartheid-related Following courts these the transfer of the Khulumani See re Apartheid In S. complaint claims. to the Southern District Newof African (S.D.N.Y. Litig., F.Supp.2d York, eighteen twenty-three of the defen- 2004). group, One the Khulumani Plain joint dants in that action also filed a mo- tiffs, complaint against twenty-three filed tion to dismiss.2 Korman, **The Honorable R. 2. Apparently, Edward all of the named defendants three States District for the actions have been Eastern District served York, complaints, and some sitting by designation. defendants have indi- of New they plan personal juris- cated that to contest 1. The Khulumani Plaintiffs include the Khulu- The granting diction. district court’s order Support Group, mani a South African non- motion dismiss stated that it was “lim- governmental organization that “works to as- ited those defendants as to whom the apartheid-era sist victims of violence personal jurisdiction Court's is not contest- 32,700 members who are survivors such Apartheid ed.” re Litig., In S. African violence,” ninety-one as well as individual addition, F.Supp.2d at 543 n. 3. In eleven plaintiffs personal representa- who "the joined the defendants who to dis- motion extrajudicial killing, tives victims of or separate miss filed motions dismiss on the tortured, assaulted, sexually were themselves ground plaintiffs’ that the claims were conclu- shot, indiscriminately arbitrarily detained sory pleading and failed to meet the standards apartheid regime.” 8(a). of Fed.R.Civ.P. The district did court month, See In S. Mpapa Machi- tion RICO. re Penuell Later African na, Apartheid Litig., F.Supp.2d the Minister Justice 554-57. who was then Development South court Constitutional The district therefore dismissed Africa, parte declaration complaints an ex plaintiffs’ entirety. submitted their See court, stating that the South to the district id. at 557. March the Ntsebeza pro- regarded these government African Digwamaje per- Plaintiffs moved for sov- ceedings interfering foreign “with a file an mission to amended consolidated matters ereign’s efforts address complaint,5 which district court denied. predominant IV, which it has the interest” Following See Part the district infra. be dismissed.3 asking proceedings judgment court’s issuance of amended 54(b) African receiving After the South declara- containing an amended Rule certifi- court, tion, solic- sponte, sua cation, district plaintiffs timely notices of filed Depart- of the United States ited views appeal.6 Department
ment State.4 The State by submitting a responded “Statement II adjudi- “continued asserting Interest” panel join All members matters cation of the above-referenced affirm the district court’s dismissal of conse- potentially risks serious adverse Plaintiffs’ Digwamaje TVPA claims. quences significant interests Plaintiffs asserted a claim un Digwamaje United States.” TVPA, alleging der the the defen Ruling defendants’ motions to on the apartheid dants “aided and abetted *6 dismiss, court held that the district Plaintiffs tor regime’s subjecting the to subject matter plaintiffs failed to establish extrajudicial killing ture and within the The under ATCA. district meaning Torture Victim Protection hav- plaintiffs, court ruled further that apparent Act ... under actual or authori diversity an asserted as alternate basis ing ty, under of law.” The TVPA or color subject jurisdiction, not establish could provides: jurisdiction on that ground. matter The who, ap- under actual or plaintiffs held that the An individual district court also law, any authority, a TVPA or color of parent failed to state claim under the jurisdic- subject foreign nation- failed establish matter arguments deciding Specifically, inquired 4. the district court not reach those "adjudication motion to dismiss. of these cases would whether impact an adverse on the interests of the Digwamaje 3.The Ntsebeza and Plaintiffs and, so, signif- nature and if moved to strike Maduna's declaration and any impact.” icance of such submissions, asserting that the declaration "legal argument by non-party” a contained plaintiffs sought provide particular- The allegations supported by "conclusory particular allegations defen- ized directed record,” any creditable citation to the standard,” dants, “meet the new Sosa "disputed evidentiary They facts.” recited clarify for the district court that their ATCA comity argued could that international corporations upon were not based claims only party be a an raised as affirmative "merely doing business” in South Africa. available, defense, comity and even if were "it inappropriate Court to dis- would be making de- Digwamaje miss this case without fact-bound chal- 6. The Plaintiffs have not terminations that cannot be made on this lenged claim. the dismissal of their RICO The docket sheet indicates that record....” the district court never ruled on this motion. (1) subjects may plead theory plaintiff aiding individual torture damages action, shall, abetting liability under the ATCA. The a civil be liable for individual; Judges respective to that or rationales Katzmann separate and Hall are set forth in concur- (2) subjects extrajudi- an individual to ring opinions. action, shall, killing cial in a civil be for damages liable to the individual’s
legal representative, any person or to IV a claimant in an who action for We further vacate the district wrongful death. denying plaintiffs' court's order motion for 2(a). pur- § § 28 U.S.C. 1350 note For denying motion, leave to amend. this TVPA, poses of the an individual “acts relied, part, the district court on the color of ... when he acts to- premise subject ju erroneous matter gether signifi- with state officials or with risdiction did not inhere and reasoned that Karadzic, cant state aid.” Kadic v. 70 any plead additional amendments to the (2d Cir.1995). Digwa- ings would be futile. Because the denial of Plaintiffs, maje although having twice rested, part, the motion on this errone complaint, their any amended failed to link premise, ous we vacate that order. See defendants to state aid the conduct of Am., Inc., Sista v. CDC Ixis N. 445 F.3d state officials. (2d Cir.2006) ("The standard for Further, based on the district court’s reviewing the denial of a motion to amend juris- diversity discussion of the matter of complaint is abuse of discretion .. . diction, affirm we the dismissal of the com- (internal quotation omitted)); marks see plaints they juris- insofar as seek to assert Y., Inc., also Zervos v. Verizon N. 252 F.3d 1332(a)(3). diction under 28 U.S.C. (2d Cir.2001) ("A district court `abuses' or `exceeds' the discretion accord Ill ed to it when . . . its decision rests on an panel Two join (such application members error of law *7 wrong legal principle)... ~~)(cid:127)7 vacate the district court’s of dismissal the . Until the plaintiffs’ opportunity ATCA claims because the dis district court has an to rule on aiding amend, trict court in holding erred that and the motion to we cannot be sure abetting customary pleadings violations of interna that the in the record before us provide tional represent plaintiffs' law cannot basis for ATCA the final version of the allegations. jurisdiction. Circuit, We hold in this that We therefore decline to de not, however, Although 7. the necessary district court rested its deci- We do believe it is deny plaintiffs' replead sion to the motion to to vacate the district court's order to the grounds, on plaintiffs’ several it is not clear from the extent that it denied the motion district respect court's order it would have to their TVPAclaims. Given that plaintiffs reached the same result in the absence of previously its the had amended their any complaint erroneous belief that would bring present amendment twice did the be respectful futile. It seems most of the motion to amend until after the district case, district court's dismissing considerable discretion in this court's order the the district area to allow to determine in denying the first court did not its abuse discretion in See, plaintiffs instance replead. whether to allow the e.g., Gurary them leave to v. vein, Winehouse, replead. (2d Cir.2000) In same we also leave to 235 F.3d 801 ("A the district court on first opportu- remand the district court has broad discretion in de- nity amend, any may termining grant consider motion that filed be whether to leave to by plaintiffs seeking permis- the Khulumani and we review such determinations abuse discretion.”). complaint. sion to amend their of judgment practical ade of about the element plaintiffs the termine whether making cause consequences avail a violation of quately pled jurisdiction litigants able to federal courts.” avail themselves sufficient to Sosa, 732-33, the dis at remand to U.S. under the ATCA and (internal omitted). Second, plead address the footnote court to allow it to trict that, recognized may Supreme Court certain permitted amendment as ings after cases, prudential might other principles has occurred. availability
operate
“limit[ ]
relief
in the federal courts
violations
cus
V
tomary international
law.” Id.
733 n.
Moreover,
affirm the dis
we decline to
21,
263
presented a
of a
the revised claim
merely illustrative
whether
were
statements
nonjusticiable
question).13
political
the
saw
with what
court
concern
general
the
“far-reaching” consequences of
the
remand, the
court will have
On
district
(ie.,
discussing
it was then
specific norm
opportunity
guidance
to
an
consider
Africa),
at 553.
in South
id.
doing business
by
prior
regarding
our
cases
provided
21
footnote
indicates
The citation to Sosa’s
of interest
weight
relevant
statements
court considered
only
by
that the district
the United
and other
submitted
States
Whiteman,
assessing
example,
governments.
governments
of those
views
“when,
extent,
addressed
and to what
we
consequences that
re-
would
“the collateral
foreign
policy
...
the stated
interests
a
finding
new international
sult
be accorded
[should]
violation,” id.,
dem-
not suffice to
does
deference,”
we
and we held that
should
contrary to
(again
the court
that
onstrate
appli-
“our
this determination
guided
intentions)
adopted sub rosa
its stated
doctrine.”
political question
cation of the
arguments.
political question
defendants’
69,
context,
71.
In that
we
431 F.3d at
case-specific
decline to address these
We
‘touching
every
foreign
that “not
case
held
re-
now
instead
prudential doctrines
nonjusticiable and judges
relations’
is
to
it to
to
district court
allow
mand
reflexively
not
invoke these doc-
should
first
in the careful
engage in the
instance
to
difficult and somewhat sen-
trines
avoid
analysis
questions
that
“case-by-case”
decisions in the context of human
sitive
type
approach
partic-
This
require.
this
a preferable approach
We believe
rights.
ularly
plain-
here because the
appropriate
weigh carefully
to
the relevant consider-
that,
op-
given
if
tiffs have indicated
case-by-case
on
basis.” Id.
ations
narrow their claims
they would
portunity,
249).
Kadic,
have
70 F.3d at
We
(quoting
allegations
their
clarify
the nature of
political
held that “even an assertion
defendants, changes
against
the various
by the Executive
question
doctrine
ulti-
may
how the district court
affect
Branch,
to respectful
entitled
consider-
to
issues.
mately
resolve these
decides
ation,
adju-
necessarily preclude
would not
24,
7-8,
Tr.,
Argument
Jan.
Oral
Kadic, 70
at 250. Like-
F.3d
dication.”
State,
14-15;
Zivotofsky
Sec’y
v.
wise,
foreign nations
although the views of
cf.
(D.C.Cir.2006)
(holding
619-20
under the
important
consideration
that,
specific
sought
relief
comity,”
where
of “international
we
doctrine
See,
ap-
plaintiff
changed,
e.g.,
had
remand was
dispositive.
held them to be
Inc.,
to
159-61
allow the district court
157 F.3d
propriate to
Jota
Texaco
Cir.1998).
(2d
litiga-
this
stage
At
develop
complete
more
record as
Indeed,
give
develop-
impact
foreign policy").
cannot
how these
13. While we
know
positions
dispositive weight
affect the
of the United
Executive Branch's
ments will
respect
South
with
separation-of-
States and
Africa
likely raise
views would
serious
litigation,
wish to solicit
the district court
Cf.,
City
e.g.,
powers concerns.
First Nat’l
governments, and
anew
views of these
Cuba,
de
406 U.S.
Bank v. Banco Nacional
fact, too,
against us reach-
thus that
counsels
32 L.Ed.2d
ing these
at this time.
issues
J.,
("I
(Powell,
(1972)
concurring)
would be
would
doctrine which
uncomfortable
We
Court’s
do not believe
the Execu-
require
judiciary
receive
Sosa,
contrary.
in Sosa is to the
statement
invoking
jurisdic-
its
permission before
tive’s
(noting
n.
S.Ct. 2739
U.S. at 733
notion,
the name of
tion. Such a
argument
only
strong
"there is a
separation
powers, seems to me
doctrine of
weight
give
should
serious
federal courts
doctrine.”).
very
to conflict with
view of the case's
the Executive Branch's
*10
tion,
treaty
express
we
no view as to what level
of the United States.”
in
appropriate
substantively grappled
deference to their views
When we last
Instead,
statute,
meaning
remand
of this
we noted that
particular
case.
we
Congress
Supreme
“neither
nor the
to the district court so that it
careful-
Court
definitively
ly
any
complex
ha[d]
consider whether
of these doctrines
resolved
questions
regarding
controversial
require dismissal.
meaning
scope
the ATCA.”
Flores
VI
233,
Copper Corp.,
v. S. Peru
414 F.3d
Cir.2003).
(2d
year
next
We therefore Affirm
district court’s
weighed in on the modern resur
Court
Digwamaje
dismissal of the
Plaintiffs’
gence
v.
statute
Sosa Alvarez-
TVPA claims. We also Affirm the district
Machain,
542 U.S.
124 S.Ct.
plaintiffs
court’s determination that
(2004).
L.Ed.2d 718
While
Court did
satisfy
diversity
require-
have failed
definitively
not
all
complex
resolve
of the
1332(a)(3).
§
ments of 28 U.S.C.
We Va-
questions
and controversial
the ATCA
the district court’s
dismissal
cate
raises,
clarify
it did
a significant degree
plaintiffs’
claims,
ATCA
as well as the
brought
how claims
under
the ATCA
Digwamaje
district court’s denial of the
analyzed.
should be
and Ntsebeza Plaintiffs’ motions to amend
proceedings
and Remand for further
con-
prior
Sosa endorsed our Court’s
ap-
sistent with this opinion.
proach to the ATCA to the extent that we
recognized
jurisdic-
the Act created
KATZMANN,
Judge,
Circuit
tion for
set of
narrow
violations of inter-
concurring:
law,
national
id.
see
at
265
legit-
practical
2739. This
effect would be
recognized
...
of nations
be
law
courts”);
through the
achieved
invocation of causes
imately by federal
see
(“[I]n
already
of action
at common law.
Flores,
available
determining
414
at 248
F.3d
some “torts in
of the law
Because
violation
customary interna-
violate
what offenses
to
of nations were understood
be within
law,
ex-
proceed with
tional
courts must
1789, the
the common law” of
First Con-
restraint.”).
traordinary
care
have
that the dis-
gress would
“understood
however,
did,
case
deviate
our
Sosa
private causes
recognize
trict courts would
al-
respect.
crucial
We had
one
action for certain torts
violation of the
proceed
to
under the ATCA
lowed cases
724,
720,
Id. at
124 S.Ct.
law nations.”
al-
plaintiffs
that when
assumption
on the
No further
legislation
2739.
substantive
interna-
leged violations of well-established
at
required.
was
S.Ct. 2739
law,
of action are stat-
their “causes
tional
(“The jurisdictional grant is best
as
read
Karadzic, 70
utorily
Kadic v.
authorized.”
having
understanding
been enacted on the
(2d Cir.1995);
see also
provide
a
common law would
Flores,
(discussing
ing
(quoting
a
cause of action of this kind.”1
Air
new
Northwest
725, 728,
at
124
2739.
lines,
Kent,
S.Ct.
Its consid
355,
County
Inc. v.
510 U.S.
eration of these factors led the Court to
365, 114
855, 127
(1994));
L.Ed.2d 183
S.Ct.
identify a minimum
“for ac
requirement
Bush,
466, 484-85,
Rasul v.
542 U.S.
cf.
subject
juris
cepting a cause of action
(2004)
2686,
124 S.Ct.
determining custom, as evidence b. *13 law. common federal law; action of as accepted practice general a steps of recog- the two lawof Having principles identified general c. each on what nations; elaborate I now inquiry, by civilized nized noting that from Aside requires. inquiry [and] furnish the [ATCA] “Congress intended the teach- judicial ... decisions d. of relatively modest set a jurisdiction for qualified publi- highly most of the ings of of law violations alleging actions nations, subsidiary as of the various cists 720, 124 Sosa, at S.Ct. nations,” 542 U.S. rules of of for the determination means not discuss did Court Supreme law. jurisdic- this invoking requirements 59 Stat. Statute, June art. ICJ The case. particular a grant tional 1055,1060. sub- terms, federal ATCA, “confers by its established, the second jurisdiction is If following when the ject-matter cause of a common-law inquiry is whether (1) alien an are satisfied: conditions three a rem- provide be created action should (3) in viola- (2) tort committed for a sues violation of internation- alleged edy for Kadic, 70 F.3d of nations.” tion of law good are that “there Recognizing al law. of Flores, held that law In we at 238. of the conception a restrained reasons law,3 nations, customary international exercise should court a federal discretion those rules only of composed “is this of of cause action considering new to, accede by, or universally abide any kind,” “require[d] in Sosa the Court and mutu- obligation legal a sense of out of of na- law present-day on the claim based The 248; see 414 F.3d al concern.” norm of international to rest on a tions 677, 708, 20 Habana, 175 U.S. Paquete world by the civilized accepted (1900) character (describing a 290, L.Ed. 320 comparable specificity awith by defined law one reached as of international rule 18th-century para- of the features to the nations of civilized consent “general namely, “viola- recognized,” we have digms on considerations “founded world” and conducts, of infringement safe belliger- tion of convenience ... mutual ambassadors, piracy.” rights states”). determining whether In ent 2739; id. see also 724-25, 124 S.Ct. requirements, U.S. at meets these given offense (“[W]e persuad- of law identified sources we look to the recognize should not federal courts Court ed that the International the Statute law Statute”) common federal (“ICJ proper claims under private as Justice Flores, norm any international law. See for violations of international sources acceptance content include: definite These less at 250-51. 414 F.3d historical than the nations among civilized conventions, whether a.international was en- when familiar paradigms establishing rules particular, general or pow- its delegation of improper creating a constilute cause viewed as better discretion is jurisdiction). Sears, er confer Bolin v. jurisdiction. of action than Cf. (5th Co., Cir. 231 F.3d & Roebuck nations, that the law we noted Flores In 2000) grant au (holding Congress's body lawof “refers in the ATCA as used make rules Supreme Court thority to the law.” customary international known timing appeals does only that affect at 247. acted.”). standard, setting In out consequences” recognizing a new cause approval Court cited with our decision in of action should assess the consequences Filartiga, noting might making limit result upon the cause of “[t]his judicial generally action to all recognition generally potential consistent available reasoning plaintiffs. many with the of the courts judges faced who the issue before sum, a district analyzing court a claim reached this Court.” normally required under the ATCA will in a engage two-part analysis. The Court instructed that de- court failing district here erred to un- termining recognize whether new *14 indeed, separately parts dertake the two (and, cause this of action “should inevi- must) By analysis. conflating ques- these two tably judg- involve element of tions, inappropriately the district court in- practical ment about consequences the jected discretionary a making that element into the de- litigants cause available jurisdiction termination of 732-33, the whether it had federal courts.” Id. at 124 under ATCA. See In re S.Ct. 2739. I S. requir- do read Sosa as African Apartheid Litig., F.Supp.2d ing that a 346 at individually analyze court each greater 553-54. Of significance to the dis- five reasons identifies as disposition trict court’s “argu[ing] judicial ultimate of the for caution when consid- claims, plaintiffs’ though, was its ering the error in kinds individual claims that analyzing jurisdiction plaintiffs whether had might implement the al- conferred Sosa, leged nations,” “violation by ... a of the law of statute.” 542 at as U.S. required plaintiffs 124 establish already S.Ct. 2739. These both reasons are jurisdiction and a captured by “high cause of action. It private bar to is to new analysis that I causes of now turn. by action” set requirement that a claim accepted by be civilized II world degree and defined with a sufficient 727-32, of specificity. id. at Asking See whether “aiding abetting in- 2739; see at also id. S.Ct. ternational law ... violations viola- [is a] (noting that good “there are for a reasons the law ] of of nations that [is] ‘ac- tion conception restrained by federal cepted [a court’s] the civilized world and defined discretion” that “[accordingly ... specificity with a comparable to the fea- ” require any courts should claim” to meet tures of 18th-century paradigms,’ its acceptance Sosa, standard of at specificity); (quoting at 542 U.S. Moore, 2739), David H. An Emerging S.Ct. court district concluded Uniformi- Law, ty not, International 75 Geo. Wash. that noting it is it found that “little [in (2006) (“Those concerns, L.Rev. 40-41 its review international that law] would which arise [customary whenever interna- lead aiding conclude that [it] and abet- incorporated tional law] is com- ting as federal international law violations is itself an law, mitigated mon by specific international law violation is univer- definition mutuality requirements.”). sally accepted as a legal obligation,” id. do, however, I view the I Although Court’s instruction believe the district court was that an judgment element of law, be in- to look must correct to international I dis- volved in agree the decision to recognize analysis. cause with its of action as an invitation to lower courts to A.
consider
prudential
other
concerns consis-
tent
approach.
with Sosa’s
As
sug-
Sosa
The district court’s conclusion that
its
gests, courts considering
“practical
jurisdiction
ATCA
should de-
of the
specifi-
alleging violations
law
actions
international
on whether
pend
nations.”);
also
at
aiding and
see
id.
liability for
cally recognizes
“limited,
(describing the
of nations is 2739
statute
of the law
abetting violations
implicit
to entertain
handful
prior case law. We
sanction
our
consistent with
law cum common law
scope
of international
repeatedly emphasized
1789”).
I
claims understood in
jurisdictional grant should
believe
ATCA’s
effectively
ap-
most
maintain the
to internation-
we
determined
reference
Kadic,
propriate scope
jurisdiction by
of this
re-
(requir-
B.
and the International Criminal Tribunal
I conclude that
the recognition
(“ICTR”).5
Rwanda
Indeed, the Unit-
individual responsibility of a
ed
concedes,
defendant
and the defendants do
who aids and
abets
violation of interna-
not dispute, that
the concept of criminal
tional law is one of those rules “that States
aiding and abetting liability is “well estab-
universally
by,
abide
to,
accede
out of a
lished” in international law.6 Brief for the
sense of legal obligation and mutual con- United States as
Curiae,
Amicus
5. The district court seems
dismissed
for "claims of war crimes” because "[t]he
*16
significance
of some of these sources be-
private
of
individuals
committing
for
cause they imposed criminal and not civil
war crimes has
recognized
been
since World
responsibility. See In re
Apartheid
S. African
War I and was confirmed at Nuremberg after
Litig.,
F.Supp.2d
346
at 550. This distinction
II,”
243,
World War
id. at
notwithstanding
law,
support
finds no
in our case
which has
that the Nuremberg trials were
pro-
criminal
consistently relied on criminal law norms in
ceedings and that
the proscription of war
establishing the
customary
content of
interna-
crimes is self-evidently criminal
in nature.
tional law purposes
for
Kadic,
of the ATCA.In
past
Our
instance,
reliance on
criminal law
we
norms
held that a defendant could
entirely appropriate
that,
seems
given
be held liable
as
Jus-
under
ATCAbased on inter-
Breyer
tice
Sosa,
observed
national
in
criminal law
international
prohibiting ge-
norms
law does not
Kadic,
nocide and
maintain the
war crimes.
kind of
70
hermetic
F.3d at
seal between
241-42.
In concluding
criminal and
genocide
civil law that the
ATCA,
sought
district
actionable
court
impose.
Sosa,
See
Kadic
542
court
762-63,
relied
U.S. at
on a United
124
J.,
Nations
(Breyer,
resolution declar-
2739
ing
genocide
concurring).
is a
"[T]he
"crime under interna-
criminal
many
courts of
law,”
96(1),
tional
188-89,
G.A.
nations
Res.
combine civil and
proceed-
U.N.
criminal
(Dec. 11, 1946),
Doc.
ings, allowing
A/64
those injured by
London Char-
criminal con-
ter, Agreement for the
duct to
represented,
Prosecution
and Pun-
and to recover dam-
ishment
the Major
of
ages,
War Criminals of
in the
criminal proceeding itself.” Id.
Axis,
8,
European
1945,
Aug.
472,
Moreover,
E.A.S.
and
the ICTY
recognized
pro-
Convention,
the Genocide
on
priety
Convention
of civil remedies for violations of inter-
Prevention and the Punishment of the Crime
national criminal
law
certain circum-
Genocide,
9, 1948,
3045,
Dec.
102
stances,
Stat.
noting for example that a torture
U.N.T.S.
which
"genocide,
confirms that
might
victim
"bring a civil suit for damage in
whether committed
peace
time of
or foreign
court.” Prosecutor
Furundzija,
v.
war,
time of
is a crime under international law
IT-95-17/1,
Case No.
Trial
Judg
Chamber
which [the contracting parties] undertake to
ment,
(Dec. 10, 1998).
II155
prevent
punish,”
and to
id. at art. I (emphasis
added);
Kadic,
see
277
uni-
“well-established[ ][and]
sufficiently
of interna-
source
no
revealed
research
cus-
considered
to be
versally recognized”
liability for aid-
recognizes
that
tional law
purposes
the
law for
tomary international
international
of
abetting a violation
ing and
Kadic,
F.3d at 239
70
See
ATCA.
of the
imposition
not authorize
but
law
would
omitted). This
(internal
marks
quotation
with
acts
who
party
on a
liability
of such
of
the decisions
with
comports
conclusion
violation
facilitating that
purpose
that have con-
federal courts
other
reus
several
course,
actus
that
(provided,
v. Arab
Almog
issue.13 See
satisfied).
sidered
is
requirement
PLC,
287
Bank,
F.Supp.2d
471
compo
retís
actus
to the
respect
With
body of
(E.D.N.Y.2007) (noting the “vast
liability,
abetting
and
aiding
nent
liability
abetting
aiding and
finding
law
helpful
less
is
legislation
international
[ATCA]”); Presbyteri
under
available
Howev
standard.
specific
identifying
in
Energy,
Talisman
an Church
Sudan
of custom
analysis
of its
er,
the course
in
(S.D.N.Y.
Inc.,
F.Supp.2d
law, the ICTY concluded
ary international
liability is a
2006)
abetting
and
(“Aiding
abetting
aiding and
actus reus
that “the
of international
norm
defined
specifically
prac
requires
law
criminal
in international
as the
applied
properly
that is
character
assistance,
moral
encouragement,
tical
purposes
nations
law of
on
a substantial
which has
support
effect
Corp., No.
[ATCA].”);
v. Chevron
Bowoto
crime.” Furundzi
perpetration
2455752, *3-4
SI, 2006 WL
C 99-02506
¶
(second
Judgment,
Trial Chamber
ja,
2006);
“Agent
In re
(N.D.Cal. Aug.22,
added).
has uncov
My research
emphasis
F.Supp.2d
Litig., 373
Prod. Liab.
Orange”
a standard
that
nothing to indicate
ered
(E.D.N.Y.2005).
7, 52-54
should
assistance”
than “substantial
other
apply.
C.
a defendant
I
Accordingly, conclude
only
that,
present,
at
I conclude
law While
under
liable
international
may be held
liability imposed
abetting
and
aiding
of that
abetting the violation
and
aiding
outlined
(1)
the standard
with
accordance
the defendant
another when
law
sufficiently well-established
above is
princi-
assistance
practical
provides
international
under
universally recognized
effect
has a substantial
pal
under
(2)
trigger
crime,
so
does
perpetration
is
this definition
ATCA,
appreciate
I
facilitating the com-
purpose
with the
International
necessarily set in stone.
Furthermore,
not
crime.
mission
law,
change,
can
law, like our domestic
law’s
of international
on this review
based
along
change
was intended
the ATCA
liability
abetting
aiding and
treatment
728, 124
Sosa,
U.S.
it. See
I conclude that
years,
sixty
past
over the
intention
Congress’s
(noting
defined,
is
liability, so
aiding
abetting
definitions,
re-
in other
diversity of
be the
universally recognized
internation-
concur,
holding, that
spects, ail writers
whether there
question
The critical
al law.
upon
depredations
robbery, or forcible
that com-
core definition
ais
discernable
furandi,
sea,
piracy”).
animo
as the
level of consensus
the same
mands
by the Su-
18th-century
identified
crimes
conclusion,
ad-
need not
I
Sosa,
light
542 U.S.
See
preme Court
Sosa.
theory of
that a
argument
plaintiffs'
dress
that the stan-
I believe
S.Ct. 2739.
supplied
abetting
could
aiding and
a definition.
adopt is such
dard I
Cf.
if such
law even
153, 161,
common
Smith,
(5 Wheat.)
domestic federal
18 U.S.
States v.
law.
exist under
liability did
(1820) (noting
“whatever
L.Ed. 57
“
passing
TVPA that
the ATCA
provide
‘re-
“clarification
might
[that]
main intact to permit suits based on other
some value for the future development of
norms that already exist or may ripen in international criminal law.” Antonio Cass-
*23
the future into rules
customary
interna-
ese, The ICTY: A Living and Vital Reali-
”
tional law’
(quoting H.R.Rep. No. 102-
2ty,
J.
Int’l
(2004).
Crim. Just.
589-90
pt.
p.
(1991));
see
id. at
also
Such clarification through dicta can be use-
practical
38(l)(d)
is not to
in Article
iary means’
spe-
has been
ICTY
exaggerated”).
it is insuf-
argues that
Korman
“a
having provided
recognized
cifically
aiding
inquire whether
ficient
on issues
findings
significant
number of
*24
under
recognized
generally
abetting is
23;
Brownlie,
see
supra, at
law.”
and that
international
law
customary
(arguing that
Cassese,
at 591-93
supra,
engage
is instead to
inquiry
appropriate
many
of
the contours
“clarified
the ICTY
analysis” to deter-
“norm-by-norm
a
in
law,” in-
criminal
international
notions of
abetting liabili-
aiding and
mine whether
aiding and abet-
of
notion
cluding “the
a particular
of
for the violation
ty exists
734, 124 S.Ct.
Sosa,
at
542 U.S.
ting”); cf.
at 331.
Judge Korman
of
Opinion
rule.
no
(“
treaty, and
no
there is
‘[W]here
2739
under-
inquiry
is
is not how
Yet this
act or
legislative
or
executive
controlling
whose
tribunals
international
by
taken
had to
decision,
must be
resort
judicial
customary inter-
by
jurisdiction is limited
nations;
of civilized
usages
and
customs
law.
national
of
these,
works
and,
evidence
commentators,
years of
by
Tadic,
of the
who
Chamber
Appeals
jurists
In
and
have made
a defendant
labor,
experience,
and
whether
considered
research
ICTY
under
criminally responsible
acquainted
well
peculiarly
could be held
themselves
”
(quoting
purpose
they treat.’
on common
law
subjects of which
international
(JCE)
700,
theory of
Habana,
20
enterprise
at
joint
U.S.
175
criminal
Paquete
Tadic,
No.
I
290) (alteration
Prosecutor v.
Case
original)).
liability.
While
Judgment,
IT-94-1-A,
Chamber
liability predicated
Appeals
that
find
am unable
1999).
¶
concluding
15,
After
abetting
(July
and
185
aiding
on
definition
lia-
such
permitted
Statute
and that the ICTY
of the ICTY
the decisions
offered in
customary
turned to
tribunal
bility,
sufficiently well-established
ICTR
reviewed
Appeals Chamber
law.17 The
jurisdic-
trigger
recognized to
universally
includ-
customary
sources
ATCA,
relevant
partic-
suit under
for a tort
tion
liability
abetting
aiding and
the elements
other federal courts
that
I
further
note
law);
"Agent
re
the ICTY
international
decisions
under
have consulted
F.Supp.2d
rules
determining
various
at
Litig.,
whether
373
Orange”
ICTR
Prod. Liab.
See,
customary
Vuckovic,
law.
part of
international
198
(same);
v.
Mehinovic
(ICTY);
Hamdan,
n. 40
at 2785
e.g.,
(N.D.Ga.2002).
F.Supp.2d
(Breyer,
Sosa,
S.Ct. 2739
542 U.S.
(ICTY);
rel.
concurring)
ex
Estate
Ford
J.
Milutinovic,
IT-
No.
Case
v.
Prosecutor
17. See
(11th
Garcia,
1290-93
289 F.3d
Ford v.
99-37-AR72,
Appeals Chamber Decision
INS,
ICTR); Tagaga
Cir.2002) (ICTY
Challenging Ju-
Ojdanic’s Motion
Dragoljub
Cir.2000)
(9th
1035 n.
228 F.3d
-
¶
Enterprise,
Joint Criminal
risdiction
(noting
(ICTY);
F.Supp.2d at 286
Almog, 471
2003) (noting
each
chamber
(May
"[sjtandards
liability where
imposing
liability
a ... form
"duty
to ascertain
alleged to be liable
non-primary actor
provided for
is both
charged in the indictment
emerge
nations
law of
a violation
at the
that it existed
the Statute
law);
from,”
and ICTR case
part, the ICTY
customary international
time under
Sudan,
relevant
F.Supp.2d
Presbyterian Church of
law.”).
to determine
(analyzing
cases
ICTY
at 666-68
ing case law from post
War II war
enunciated ... apply ...
crimes,”
—World
to all
cases,
crimes
treaties,
even though it had not purported to identi-
the domestic law many
countries.
It
fy sources relating
every
crime over
then concluded that “the notion of common
¶
which it had jurisdiction.
Id.
250. Yet
design as a form of accomplice liability is
these analyses are recognized as authorita-
firmly
in customary
established
interna-
tive
other chambers of the Tribunals.
¶
tional
law.”
220. The Appeals See, e.g.,
Aleksovski,
Prosecutor v.
Case
effort,
Chamber made no
though, to distin- No.
IT-95-14/1-A, Appeals Chamber
guish among
(or
the different crimes
even
¶
(Mar.
Judgment,
2000)
(noting
categories
crimes)
broad
over which it
“[t]he
a person
charged
had
verify
or to
the existence with aiding and abetting
person
another
of JCE liability
customary
law for each the commission of a crime was extensively
individual crime. Later panels have con-
considered
Trial Chamber II in the
firmed that Tadic’s
review
prac-
“state
Furundzija
Judgment” and adopting its
tice and opinio juris ... was sufficient” to
conclusions); Prosecutor v. Bagilishema,
establish that “such a norm existed under Case No. ICTR-95-1A-T, Trial Chamber
*25
customary international
law.” Prosecutor
¶
Judgment,
(June
2001)
32 n. 22
7,
(citing
Milutinovic,
v.
Case No. IT-99-37-AR72,
Tadic for discussion of “the customary na-
Appeals Chamber Decision on Dragoljub
ture of
principles”
the[]
of aiding and
Ojdanic’s Motion Challenging Jurisdic-
abetting liability).
¶
tion—Joint Criminal Enterprise,
29
(May
2003);
see
international
also Prosecutor v.
tribunals’ approach is
Brdjanin, Case
IT-99-36-A,
No.
consistent with the
Appeals
understanding that aid-
¶
Chamber Judgment,
2007).
ing
363 (Apr.
and abetting is a theory of liability for
acts
by
committed
a third party. As we
These tribunals took the same approach
have recognized in our domestic criminal
with respect
to the application of aiding
law, “aiding and abetting ‘does not
and
consti-
abetting liability.
Tadic,
the ICTY
tute a discrete criminal
trial
offense but only
chamber viewed international treaties
serves as a more particularized
way
trials
following
Second World War
”
identifying persons involved’
as
“establishing]
the un-
the basis in customary
derlying offense.
Smith,
international
law
v.
for
both individual re-
(2d
198
Cir.1999)
F.3d
383
sponsibility and of participation
(quoting
in the vari-
Oates,
ways
ous
United States v.
provided
(2d
by
Article 7
F.2d
Cir.1977) (internal
Tadic,
[ICTY] Statute.”
quotation
Trial
marks omit-
Chamber
ted));
¶
Opinion and
see
Judgment,
also
Bass,
669. In
Furund-
Hefferman
zija,
(7th
the trial
F.3d
Cir.2006)
chamber
post—
consulted
(explaining
II
law,
World War
that “aiding
case
as well as
and abetting
modern
is a theory for
authoritative international
instruments,
holding
person
who aids and abets
“establish the content” of aiding
liable for
itself’).
abet-
tort
International
ting liability under customary
law is
consistent with domestic law on this
law. Furundzija, Trial
point. See,
Judg-
Chamber
e.g.,
Kunarac,
Prosecutor v.
¶¶
ment,
191, 195-231. In neither case did Case Nos. IT-96-23-T & IT-96-23/1-T,
the Tribunal engage in the norm-specific Trial
¶391 (Feb.
Chamber Judgment,
inquiry
by
advocated
Judge
2001) (“As
In-
Korman.
opposed to the ‘commission’of a
deed, the Furundzija Trial
crime,
Chamber con-
aiding and abetting is a form of
cluded that “[t]he definitions and proposi-
accessory liability.”); Akayesu, Trial
tions concerning aiding and abetting
¶
[it]
Judgment,
Chamber
527 (defining an ac-
state
requires
a norm
him
violation
associates
who
“someone
as
complice
It is
of law.
another”);
under color
or action
action
committed
in an offence
self
Kadic, that “certain
true,
n. 40
we held
Hamdan,
see
of na-
the law
violate
Tribunal
of conduct”
(“The
Criminal
forms
International
actors
(ICTY), drawing
on
state
undertaken
only when
Yugoslavia
tions
the former
Kadic,
a
adopted
law.
color of
precedents,
acting under
Nuremberg
those
or
liabili-
theory
on
imposing
But
enterprise’
‘joint criminal
239.
liability for
con-
species
a
and abet such
that is
who aid
ty, but
actors
private
(akin
aiding
not,
offense
Korman’s
contrary
substantive
does
duct
own.”). Be-
its
a
crime
this
abetting),
any way from
detract
suggestion,
generally
is a
abetting
aiding and
Indeed,
imposition
cause
requirement.
identifying who should
means of
applicable
liability under interna-
abetting
aiding and
act,
particular
a
responsible
be held
offence
predicate
“a
requires
law
tional
the act
necessary element
rather than
than the ac-
by someone other
committed
to consider
itself,
more reasonable
it is
case,
a state actor
complice,” in
gener-
accepted as
theory is
whether
Akay-
of law.
under color
acting
someone
law
customary international
principle
¶
al
esu,
Judgment,
Trial Chamber
norm
substantive
each
whether
than
ask
private
responsibility
Recognizing
encom-
conduct
specific
proscribes
private
merely permits
aiders
abettors
abetting.
aiding and
liability for
passes
actors
substantially assist state
who
actors
(including
pro-
See,
Statute
e.g., Rome
do so for
violate international
responsibility
individual criminal
vision on
*26
facilitating the unlawful
purpose
Principles of Crimi-
General
in “Part III:
their
for
held
activity to
accountable
be
of the substan-
the definition
and
nal Law”
actions.
II);
ICTR Statute
in Part
tive offenses
actor
private
moment that
It is of no
defining individual
the article
(segregating
abet-
aider and
liable
an
be held
could
articles
from the
responsibility
criminal
a norm requiring
violation
tor
offenses);
substantive
describing
could
person
that
when
same
action
state
(same);
Draft Code
ICTY Statute
In our
principal.
liable as a
held
not be
Security of
the Peace
Against
Crimes
one
law,
settled that
it is “well
domestic
Law
Mankind,
International
Report of the
abetting
aiding
guilty
may be found
forty-eighth
of its
work
Commission
of a
violation
in his
another
individual
Sess., Supp. No.
GAOR,
session,
51st
U.N.
could
and abettor
the aider
statute
(1996) (including the
10, U.N. Doc. A/51/10
violating.”
personally
charged
“Part
in
responsibility
on individual
article
(D.C.Cir.
287, 290
956 F.2d
Nofziger,
re
In
defini-
and the
Provisions”
General
One:
v. Tannen
1992);
see also
Crimes
“Part Two:
of crimes
tions
Cir.1991) (“The
(2d
8, 14
baum, 934 F.2d
Security of Man-
Peace and
Against the
possess
does not
accused
fact
kind”).
the substantive
to commit
capacity
legal
2.
cannot be
that he
not mean
offense does
abetting the
aiding
... of
convicted
way,
in this
abetting
aiding and
Viewing
by
offense
of the substantive
commission
involved
identifying who was
theory as a
Thus,
inability to commit
another.
rather
by another
committed
in an offense
(cita
is immaterial.”
offense
substantive
itself,
helps
than as
offense
omitted)).
Indeed,
doctrine
“[t]he
tions
held
may be
actor
why
private
explain
F.2d at
Nofziger,
origin.”
of ancient
abetting the
aiding and
for
responsible
291.
law,
too,
International
recognizes
nations,
law of
law extends
that criminality is
by
assessed
reference
responsibility
the violations of its
to the actions of the principal, not the
norms to aiders and abettors. See William
aider and abettor. See Akayesu, Trial
Casto,
R.
The New Federal Common Law
¶
(“[I]t
Judgment,
Chamber
should be
Tort Remedies
Violations
Inter-
understood that
the physical act which
Law,
national
L.J.
Rutgers
constitutes the act of complicity does not
(2006) (noting that
precise
“[t]he
holding in
have its own inherent criminality, but Central
...
Bank
does not
easily
translate
rather it borrows the criminality of the act
litigation,”
[ATCA]
and that “at a funda-
committed
the principal perpetrator of mental level” Central
Bank
fact sug-
the criminal enterprise....
The accom gests that
theory
of aiding
abetting
plice has not committed an autonomous
liability may be recognized if “a norm of
crime, but
merely
facilitated the crimi
international law forbids private persons to
nal enterprise
another.”).
committed
violators”). Thus,
assist
I conclude that
government
defendants and the
ar-
customary international
recognizes
lia-
gue that
Court’s decision in bility for aiding and abetting violations of
Denver,
Central Bank
N.A. v. First
law,
and that
the district
Interstate
Denver, N.A.,
Bank
511 U.S.
court erred when it reached the contrary
164, 114
ing and abetting liability for claims
brought under the ATCA because “where
Judge Korman
argues
further
that the
Congress has not explicitly provided for
defendants cannot be held liable as aiders
aider and
abettor
in civil causes of
and abettors because the sources that es-
action, it should not be inferred.”
See
tablish accessorial liability do not extend
re S.
Apartheid Litig., 346
African
liability to corporations. Opinion of
F.Supp.2d at 550. The
holding
Court’s
Judge Korman at 321.
argument
This
was
Central Bank
primarily
premised on a
*27
not
by
raised
the defendants on
recognition
10(b)
appeal
§
and
that
prohibit
does not
therefore the issue was
aiding
not
briefed
the
abetting, and
private
“the
plain-
parties.
It
perhaps
may
tiff
not
not bring
surprising
a
that
10b-5
against
suit
a
neither
defendant
defendants nor
prohibited
acts not
United
by the
10(b).”
text
States raised
this issue
Bank,
Central
as bar to liability:
511 U.S.
173, 114
at
We have
Here,
repeatedly
S.Ct. 1439.
however,
treated the issue of
provides
whether
jurisdiction
corporations
ATCA
may
for the
courts
held liable
to hear torts
under the
“committed
ATCA
as indistinguishable
violation of the
from
law of
question
nations.” The Supreme
Court’s in
whether private individuals
struction in
may
Central Bank
be.
that
See Bigio
“when
Co.,
Con
Coca-Cola
gress enacts a
(2d Cir.2000)
statute under which
per
(asking “wheth
son may sue and recover
er
damages
Coca-Cola can
have violated ‘the law of
private defendant for the
nations’ if
defendant’s viola
it acted solely as a non-govern
tion of
norm,
some statutory
entity”);
there is
mental
Flores,
no
see also
414 F.3d
general presumption that
plaintiff
at 244
(making no distinction
pri
between
also sue
abettors,”
aiders and
U.S.
vate
individuals
corporations and not
182, 114
is thus inapposite.
ing that “certain activities are of ‘universal
ATCA,
Under the
the relevant norm is
concern’ and therefore constitute violations
provided not by domestic statute
but
of customary international
only
not
applied
actors,
customary
law]
by state
they are committed
when
actors,” and
and non-state
equally to state
by pri-
committed
they are
when
but also
torture,
summary
execu-
Kadic,
rape,
“acts of
70 F.3d
(citing
vate individuals”
[ATCA],
under the
... are actionable
n.
tion
Sosa,
at 732
239-40));
U.S.
cf.
action, to the ex-
regard to state
without
corpora-
(classifying both
aetor[s]”).
pursuit
they
that
were committed
tent
“private
as
and individuals
tions
70 F.3d at
crimes.”
genocide
war
the defendants
because
Regardless,
relevant
It
is therefore not
liability
imposition of
objected
not
sufficiently allege
plaintiffs
whether
basis,
reach the issue
need not
we
on this
color of
acted under
that
the defendants
time.
at this
long
as
genocide
commission of
law the
E.
that the defen-
sufficiently allege
they
genocide.
dants committed
Digwamaje Plaintiffs
The Ntsebeza
court also erred
that
district
argue
Second,
court
I believe that the district
of accesso-
allegations
focusing on whether
placed
we have
weight
overstated
un-
jurisdiction
support
liability would
rial
treaty in
of a
our
self-executing status
brought
they also
ATCA
der the
because
weight as evidence of
of its
consideration
the extent
liability. To
claims of direct
Flores,
customary international
law.
direct
confront these
court did
that
treaty
“a
that
is self-
that
explained
we
claims,
rejected
to have
liability
appears
it
been executed
executing or
that has
plain-
that the
ground
on the
them either
there-
Congress
Act of
through an
—and
on the
action or
allege
state
tiffs failed
legally enforceable
rights
rise to
gives
fore
upon which
treaties
ground
evidence
provides greater
in our courts—
self-executing
were not
were based
claims
practices of
the customs and
satisfy
not
ATCA’s
could
and therefore
not been
treaty that has
than a
these
Both of
prerequisite.
jurisdictional
at 257. We did
414 F.3d
executed.”
misunderstandings
appear to rest on
bases
non-self-executing treaties
hold
jurisprudence.
of our ATCA
regard
evidentiary
any
value
without
customary interna-
of current
court
state
the district
First,
appears
law,
that “no
much less
inter-
tional
norms of
distinguish between
did not
any alleged
the[ ]
violation
upon
actors
based
only to state
apply
law that
national
can
treaties]
in such
norms [articulated
proscribe
conduct
those norms
adequate predicate for
form an
the color
not taken under
even when
*28
Apar-
In re S.
ATCA.”
held
under the
the district court
For example,
law.
African
In-
F.Supp.2d
552.
Litig., 346
not
theid
case “do
plaintiffs
the
the Genocide
deed,
relied on
we
ele-
Kadic
the defendants
allege
actions
shape of the
to determine
in Convention
of state actors
to the status
vate them
genocide
proscription
torture,
kill-
international
genocide,
the commission
decision
legislative
“the
made
re S.
clear
crimes.” In
and other serious
ings,
remedy does
private
a new
not
create
Litig.,
F.Supp.2d
Apartheid
African
remedy is not
Kadic,
private
that a
imply
squarely held
548-49. As we
under
already
[ATCA].”18
[by
available
however,
genocide
proscription
“the
recognize a
court should not
that the district
Genocide
recognizing that the
Apparently
“Con-
genocide because
action for
cause
support
exis-
used to
Convention
its intention
quite plainly indicated
gress
law of
genocide
violation of
as a
tence of
nations,
not be
of action should
a cause
suggests
that such
Judge Korman nonetheless
Kadic,
Ill For reasons, I foregoing join in the A per opinion. curiam begin We with the text. In entirety, its the ATCA provides:
HALL, Circuit Judge, concurring: The district courts shall have original As reflected in per curiam opinion, jurisdiction any civil action an alien I agree with Judge Katzmann with re- for a only, tort committed in violation of spect disposition ultimate of this the law of nations or treaty appeal. The district court erred when it States. ruled that it jurisdiction lacked under the ATCA to plaintiffs’ determine claims 28 U.S.C. 1350. The Congress First based on defendants’ liability. accessorial enacted the statute part of the Judiciary In ruling that it lacked subject matter Act of 1789. Over the course of the last ATCA, under the the district years, 200-odd the text of the statute has court required “aiding and abetting changed only slightly, but “little is known international law violations itself [be] an of the framers’ intentions adopting it— law violation that is univer- legislative history of the Judiciary Act sally accepted as a legal obligation.” In does not refer to section 1350.” Presbyte re S. Apartheid Litig., 346 rian Church Sudan v. African Talisman Ener F.Supp.2d 538, (S.D.N.Y.2004). Inc., gy, (S.D.N.Y. F.Supp.2d words, other 2003). district court assumed New parties invoked the ATCA that a federal court must look to interna- until our decision in Filartiga v. Penar- tional only law divine not applicable Irala, (2d 630 F.2d Cir.1980), primary violation of cog- international law heralded the modern era of litiga ATCA nizable ATCA, but also the tion. But from very beginning, the for aiding standard and abetting liability. ATCA’s straightforward text belied com The district court went on to conclude plex and problems controversial of exeges that aiding and abetting liability did not praxis. is and Struggling with prob- these *29 through available” passage its the Geno- proceeding”). It is unnecessary to resolve cide Implementation Act, Convention part as jurisdictional issue of the analysis, § U.S.C. Opinion 1091. Korman at and I would leave toit the district court to 321; see also 18 U.S.C. (providing address in the first instance should it under- nothing in the Act should be “construed take to recognize decide whether to a cause of creating any as procedural substantive or action.
right by enforceable law any party any in 725, 124 century Id. at S.Ct. paradigms.” that followed litigation in the wave lems 2739. “neither Con- observed that Filartiga, we defini- ha[d] Supreme nor the Court gress B and controver- complex the
tively resolved meaning and make regarding complaints, plaintiffs In their the questions sial Peru v. S. norms “defined ATCA.” Flores that rest on scope of the claims such (2d 233, 247 Cir. to the fea- Corp., specificity comparable 414 F.3d awith Copper 2003). 18th-century paradigms.” tures torture, genocide, allegations include clarify later, attempt year One treatment, systematic degrading cruel and ATCA, the by the posed problems discrimination, removals, and forced racial Alvarez- issued Sosa Court hu- against crimes other avowed various 2739, Machain, S.Ct. 542 U.S. essence, plaintiffs In assert manity. (2004). Principally, Sosa re L.Ed.2d against a crime apartheid itself is jurisdic not “a that the ATCA was solved genocide2 with humanity,1 par on the shelf on placed convenience tional depredations that the of the slavery, and ... Congress a future for use (such torture, sexual apartheid system as the creation someday, authorize might, assault, killing, and forced la- extrajudicial 719, 124 Id. at of action.” causes bor) in the course of perpetrated were Instead, recognizes the ATCA 2739. humanity. against and crimes genocide law of on the present-day based “claim[s] cor- argument, brief and oral they “rest on a norm of their long so as nations” allega- that such did not contest accepted by porations character in- customary reflected violations specifici with a tions and defined world civilized complaints their Though law.3 the 18th- ternational ty comparable to features group (c)Deliberately inflicting on the con- Military of the 1. The Charter International bring Tribunal) about its of life calculated (Nuremberg describes ditions Tribunal part. physical in whole or in against humanity destruction as: crimes and Punish- Convention on the Prevention extermination, enslavement, murder, depor- Genocide, 2, Jan. art. of the Crime of ment tation, acts committed and other inhumane 12, 1951, U.N.T.S. 277. population, before or against any civilian echoes Notably, Apartheid Convention war, during persecutions political, or applies genocide, in that the definition of racial, grounds religious in execution or group or of a racial “murder of members any within the with crime or in connection upon the members groups,” "the infliction Tribunal, or not whether bodily group groups or or of serious a racial country law of the violation of domestic harm,” imposi- “[d]eliberate mental perpetrated. where living groups group or a racial Tribunal, tion on Military of the International Charter or their to cause its conditions calculated 6(c), Agreement for the Prosecution art. part.” whole or in physical destruction Major War Criminals of the Punishment Apartheid, art. Nov. Convention on Axis, Aug. E.A.S. European of the U.N.T.S. 243. No. genocide defines Genocide Convention 2. The corpora- argument, for the counsel 3.At oral prem- as: accept added that he did tions actually pled those plaintiffs had following ise that any committed acts allege complaints did not allegations, part, a destroy, or in in whole intent national, ethnical, particular particular plaintiffs suffered religious group, racial or specific South African injuries at the hands of as such: corporations aided and whom the (a) group; officials Killing members of way specific time specific (b) abetted in a bodily mental harm Causing serious *30 per curiam place. As reflected group; to members precision, plaintiffs, are not models of wards has explained, “the law of nations if given opportunity replead, likely perceived never has been to create or de- fine the civil actions to be allege primary would violations of interna- made available by community each member of the tional na- cognizable under the ATCA. Libyan
tions.” Repub Tel-Oren Arab lic, (D.C.Cir.1984) (Ed 726 F.2d C wards, J., concurring); see also Kadic v. In addition to its delineation of the stan- Karadzic, (2d Cir.1995) 70 F.3d by pri- dard which federal courts derive (“The law of generally nations does not law, mary international violations of private create remedy causes action to opinion also dicta. Sosa contains numerous violations, its but leaves to each nation the concurring Judge In his Katz- opinion, defining task of the remedies that are thoroughly mann summarizes these dicta. violations.”); available for international law however, It inescapable, remains that Sosa v. Gramajo, F.Supp. Xuncax at Delphian guidance best lends on the (D.Mass.1995) (“While demonstrably it is question of whether the federal common possible for nations to reach some consen- customary law or repre- international law a binding sus on set of principles, is both sents proper source from which to unnecessary implausible suppose aiding derive a standard of abetting that, multiplicity with their legal sys- Lacking under the ATCA. the ben- tems, these diverse nations should also be guidance, presume efit of clear I a federal expected required to reach consensus court should resort to its traditional types on the of actions that should be source, law, the federal common when de- made available in respective their courts to riving the standard. Because I find that implement those principles.”); Restate- federal provides common law a standard (Third) ment of Foreign Relations Law by which aiding to assess and abetting (“In § 703 cmt. c general, individuals do liability, I do not address the alternative not have direct remedies argument such a standard be against a state violating their human derived from international law.4 rights except where such remedies are It is a principle “hornbook that interna- provided by international agreement. tional law does not specify the means of they its Whether have a remedy under the domestic enforcement.” Brief In- for the law of a depends state on that state’s law.” (internal ternational Law omitted)); Scholars as Amici Curiae citation Beth Ste- 5-6; at see also Brief for phens, the United Sosa v. Alvarez-Machain: “The States of America as Amicus Curiae 5 Door Is Ajar” Still Rights Human (“[Although the Courts, substantive norm to Litigation in U.S. 70 Brook. applied (2004) (“Sosa is drawn from international law or L.Rev. does not treaty, any cause of action recognized require every ancillary applied rule federal court is one devised as a matter of an AT[CA] case meet the level of interna- law.”). federal common As Judge Ed- tional required consensus for the definition opinion, plaintiffs may opportunity have an aiding which to abetting determine liabil- replead greater specifici- ity these violations with Opinion Judge this case. Katzmann ty on remand. panel 331 n. 13. It is thus left to a future of this Court to determine whether interna- Katzmann, I note that in his concur- tional or domestic federal common law is the ring opinion, declines to address whether fed- exclusive source from which to derive the provides eral common law applicable a standard standard.
287 (citing at 966 United States Id. interstice. any case As violation. underlying 715, 727, Foods, 99 440 U.S. Kimbell discre- v. exercise the federal courts (1979)); see L.Ed.2d 711 law, 59 common S.Ct. federal recognize tion Indus., v. Materi Inc. bor- Tex. gaps, to fill rules fashion will courts Radcliff 630, 641, als, Inc., U.S. body of 451 analogous most rowing from (1981) (stating that courts L.Ed.2d 500 law”). 68 “in the federal common law apply should law scholars international Numerous with those concerned areas as narrow such L. Hen- See principle. this have described obligations rights and the Constitution kin, Affairs and Foreign dis- States, and international interstate 1 International (1972); Oppenheim, 224 conflicting rights of implicating putes Henkin, (8th ed.1955); R. L. Law 44-46 na- foreign relations or our Smit, Interna- H. & O. Schachter Pugh, tions”). provides Supreme Court Until (1980); 4 Blackstone’s 116 tional Law regarding acces- guidance explicit more us (not- 1854) ed., (Welsby 72 Commentaries date, I remain than it sorial cer- recognized the law nations ing that common law our federal that convinced that but accessorial offenses tain universal aid- clearly extant standard of embodies statute”). “by liability made available Unocal, 395 liability. See abetting ing per- Law Scholars International As amicus It standard at 967. this F.3d of domestic “means argue, these suasively I and to which should resort courts federal the- encompass at least some enforcement” turn. now including aid- liability, ories of accessorial Hal for International has described abetting. Supreme Brief Court ing and (D.C.Cir. I Welch, 6. be- Curiae at as Amici F.2d Law Scholars berstam v. princi- opinion stand 1983), comprehensive should “a our Court as lieve law Moreover, abetting].” Cent. aiding and subject when [of ple. N.A., Bank, doc- on the same speak Bank, First Interstate law N.A. and domestic should choose trine, courts domestic U.S. This, (1994). relied at 44-46. supra, Halberstam Oppenheim, L.Ed.2d
latter. (Second) re- should too, our Court the Restatement principle heavily upon is a aiding Here, customary international parameters to set spect. Torts 876(b) include liability. law both common Section abetting and the federal In a abetting. “For harm result- aiding provides: standards Restatement this, stan- for the from the tortious opt I person such as a third ing situation liabili- another, subject common by the federal one is dard articulated conduct (b) other’s ... knows if he ty law. duty and a breach constitutes conduct commands precedent Court encourage- assistance gives substantial not- Judge Reinhardt As result. the same conduct himself.” so to the other ment to I v. in Doe Unocal concurring when ed Restatement, Halberstam Based on the (9th Cir.2002), the Corp., 395 abetting included aiding and held body of law what “as to is silent ATCA three elements: arise, may ancillary issues applies to aids (1) defendant party whom held be party a third such whether causes act that a wrongful perform must internation- for violation liable tort” (2) must the defendant injury; (Reinhardt, J., an con- al norms. of an part role as aware of his generally look courts Typically, federal curring). activity at tortious illegal or overall fill such law to common the federal *32 288
time that
assistance;
he provides the
the lead of the
Court,
Halberstam
I be
(3) the
[and]
defendant
knowingly
must
§
lieve that
provides
876
the proper stan
and
assist
substantially
the principal vio- dard under which to assess whether a
lation.
particular
may
defendant
be held liable for
Halberstam,
These examples the flexibility are illustrative rather of the common exhaustive, process than law and I allows offer those them in an problems to be provide effort to addressed and avoided greater substantive con- they arise. tent for a doctrinal that, framework like most common rules, law “vague” is bar, the case at plaintiffs al- abstract in its articulation legal obli- leged, albeit in insufficiently specific terms, non, subject existence, vel (a) The two. know- corporations the defendant simply question jurisdiction matter principal substantially assisted ingly and here) of (with not relevant exceptions few violate acts to commit tortfeasor law. under federal arises a claim law whether international established clearly subject If matter Id. at (b) the commission norms, facilitated then —and exists, a court by providing violations applicability as to tools, only inquire with tortfeasors principal then — doc- justiciability the various any commit instrumentalities, or services trines: or constructive actual those violations tools, instrumentali- that those
knowledge wheth- was uncertain District Court be) (or only could ties, would be services or judicial withholding federal er our cases purpose. with that in connection used juris- lack of federal upon a relief rested satisfy clearly proven, if allegations, Such jjusticiability.” ... upon “[ diction asserting ATCA the standard grounds the two between The distinction theory. abetting aiding nonjus- In the instance significant. *35 the cause of ticiability, consideration by the raised arguments As foreclosed; immediately wholly and not regard- plaintiffs Digwamaje and Ntsebeza necessarily rather, inquiry the Court’s and the district liability claims ing direct deciding of wheth- point proceeds the them, I concur with of treatment court’s judicially can be duty asserted the er Katzmann’s of in II.E join Part deter- judicially its breach identified and opinion. concurring the mined, protection whether II judicially molded. can be right asserted the jurisdiction of lack of the instance panel with our confronted This case has the under” not either does “arise cause ques difficult unsettled number of a Constitution, or treaties laws Federal the law. area of ain controversial tions enumer- (or of the other fall one within Tel-Oren, see, courts, e.g., have other As 2), Ill, § or is of Art. categories ated struggled with we the within controversy” or a “case not find some an effort in issues these section; cause is the or meaning of that panel our majority a ground any jurisdictional described not one Unfortunately, despite fully agree. could statute. in our debate, we remain diverse tireless lengthy already Though our perspectives. omitted). quote (citations As I lengthening, scarcely demand opinions conflating in clear, errs dissent makes the detail one in a bit more to articulate
wish
the existence
question
the anterior
in
part
dissent covered
objection to the
poste-
jurisdiction
subject matter
opinion.
per curiam
14 of the
footnote
Sino
justiciability.
question
rior
Cf.
Shipping
Malay. Int’l
Co. v.
chem Int’l
the district
contends
dissent
The
—
1184, 1191,
U.S.-,
Corp.,
jurisdiction
subject matter
lacked
court
(“[A]
(2007)
court
federal
doctrines,
L.Ed.2d 15
justiciability
result of certain
a
a
merits of
rule on the
may not
deference,
generally
politi-
specific
as case
such
it has
determining
without first
case
doctrine,
question
cal
of claim
category
over
inis
this contention
comity. Respectfully,
is not
suit_”).
dissent’s error
Carr,
186, 82
U.S.
v.
In Baker
error.
questions,
conflating these
(1962),
By
minor one.
the Su-
7 L.Ed.2d
opportunity
itself the
provides
the dissent
distinguished between
Court
preme
specific
discuss case
deference,
po-
materials made loans to the Union
question
litical
doctrine, and international
of South Africa during the apartheid era.
comity.
discussion,
This
turn,
contains
It does so over
vigorous
objections of
a number of missteps, at least two of which the
States,
allies,
and,
its
most
merit our
attention
this context. The notably,
Republic
Africa,
South
dissent suggests a district court—or even which is justifiably proud of
ability
an appellate court, sitting in review—must
legal system
its
adjudicate
legitimate
dismiss
case
branch,
when
executive
rights
human
claims.
In doing so, the
through a State Department
Statement
majority also ignores a
signal
direct
Interest
document,
or other
deems
case
Court
United States
political
be a
“irritant.” This is not so.
regarding the non-viability of these claims.
Mere executive fiat cannot control the dis- The majority also declines to
dismiss
position of a case before a
court.
federal
case, even though
legal
foundation
Our principle
separation
powers
complaints
was expressly rejected by a
only counsels the
judiciary
conduct an judgment
rendered in Nuremberg that
independent inquiry
requires us to do
—-it
“[ljoans or sale of commodities to be used
Regardless
so.
of what
holds,
else Sosa
in an unlawful enterprise may well be con-
did not doubt that ATCA suits are law demned from a moral standpoint and re-
suits constitutionally entrusted to
judi-
flect no credit on the part of the lender or
ciary.
v.
Whiteman Dorotheum GmbH
Cf.
seller
case,
in either
but the transaction
KG,
& Co.
(2d
431 F.3d
Cir.2005)
can hardly be said to
abe
crime.” United
(“[N]ot every
touching
case
foreign rela-
(“The
von Weizsaecker
Minis-
*36
tions
nonjusticiable
is
judges
and
should
Case”),
tries
14 Trials War Criminals
not reflexively invoke these doctrines to
the Nuernberg Military Tribunals
Before
avoid difficult and somewhat sensitive deci- Under Control Council Law
No. 10
sions in the context of human rights.”
(William
S.
Co.,
1997)
Hein &
Inc.
Kadic,
(quoting
(internal
Ill of the charges relating labor, to slave the For the foregoing reasons, join I in the tribunal at Nuremberg observed that: per curiam opinion. The real question is, is it a crime to KORMAN, District Judge, concurring in loan, make a knowing or having good part and dissenting in part: reason to believe that the borrower will Today, the majority allows three class us[e] the funds in financing enterprises actions on behalf of all persons who lived which are employed in using labor in in South Africa between 1948 and pres- violation of either national or interna- ent and who suffered damages as a result tional law? ... A bank sells money or of apartheid to go in forward a United in credit the same manner as the mer- States against court American, Canadian, chandiser any other commodity. It European and corporations that sold goods does become a partner in enterprise liability. determining such While merely the charged the interest and with is consistent he enunciates standard realizes bank which the profit gross Case, and in the Ministries holding it transaction, of which out from the consensus on emerging an reflects costs, and from its business must deduct holding a standard appropriate profit. a net to realize hopes aiding-and-abet- liable private party to be used of commodities or sale Loans va- voting joins Judge Hall ting, he may well enterprise unlawful the case dismissing judgment cate and standpoint a moral condemned allegations deciding whether lend- without part credit on no reflect satisfy sufficient complaints case, but trans- in either er or seller standard, addressing and without to be a crime. said hardly be can action and the objections those try punish duty Our to the exercise Africa law, Republic South violating international guilty of complaints. jurisdiction over the that such to state prepared are not we that law a violation constitute loans Background complaint in the allegations Because by the rejected theory of per curiam go unmentioned alleged here as that same is the tribunal necessary pro- it is concurring opinions, Spe- Bank. A00211-12. Dresdner against beyond de- the case an overview of vide banks, it is ac- other cifically, along case by which the scribing procedure in the capital “[f]oreign providing cused opin- Judge Sprizzo’s way here. made its loans, large of trade form contains detailed court in the district ion ... credits, loans direct bonds hundreds description of the and accurate fi- borrowers, project African South contained allegations pages re- apartheid supported the nancing [that] In re complaints. See voluminous three A00194. gime.” Litig., 346 Apartheid South African reasoned deferring Instead (S.D.N.Y.2004). 538, 543-46 F.Supp.2d Nuremberg, one rendered judgment *37 following provide me This enables Hall, es- Judge majority, of the member background. brief custom- to sources of any reference chews came to Party 1948, the National In princi- applies a law and ary international until From then Africa. power South in civil cases aiding-and-abetting ple imposed 1990s, ruling party early that “has observed Court that which the laws under a set of and enforced ... application uncertain in at best been subject of population non-white precedents ‘largely common-law with disenfranchisement, dis- state-sponsored adolescents acts of to isolated confined ” laws, crimination, These repression. and v. Denver society.’ Cent. Bank rural apar- known as establishing what became Denver, 511 U.S. Bank Interstate First on the theid, curtailments included severe 128 L.Ed.2d 164, 181, 114 S.Ct. resi- respect liberty of nonwhites Welch, 705 (1994) Halberstam (quoting education, employ- travel, assembly, dency, (D.C.Cir.1983)). The second 472, 489 restric- Apartheid’s ment, marriage. Katzmann, and majority, member of South by members enforced tions were liability for a defendant’s concludes the histo- military police, and and Africa’s hu- against a crime aiding-and-abetting many instances includes apartheid ry of by reference determined manity must be torture, killings detention, and arbitrary law, and he customary re- complaints The state actors. for those the standard articulate on to goes then count many of those instances of wrongful economy of South Africa would have conduct apartheid government officials, come ato standstill.” A00171. including (cid:127) Sharpeville Massacre any “More than single other techno- the Soweto Massacre of logical and the kill- advancement, computer fos- ing the Craddock tered Four in concentration of administra- power tive in the hands of Africa’s The allegations very different with white elite.” A00427. respect to the defendants. portions The (cid:127) “Many computer uses were crucial for complaints relating to al- defendants’ the apartheid regimes’ keeping [sic] leged conduct principally focus on their track political activists who were trade with Thus, South Africa. car compa- later targeted assassinations.” cars, nies are selling accused of computer A00430. companies are of selling comput- accused (cid:127) “[A]ny transfer of capital to South Af- ers, banks are of lending money, accused rica had military implications: loans to oil companies are accused oil, of selling railways systems harbors as- pharmaceutical companies are accused sisted in the mobilization the armed of selling drugs. The theory of the com- forces; trade financing provided the plaints is way this defendants facili- computers and telecommunications tated “aided-and-abetted” apartheid and equipment necessary to the efficient its associated human rights violations. To functioning of a modern army; financ- support theory, the complaints allege ing housing project perpetuated generally that defendants knew the rac- the segregated housing of apartheid.” policies ist apartheid; they never- A00201.
theless engaged so (cid:127) transactions in “The money from defendant German and with the Union of Africa; South banks directly benefitted sup- that, they had so, not done apartheid ported the apartheid reign of terror in regime would have collapsed, apartheid South Africa.” A00440.
would
sooner,
(cid:127)
ended
plaintiffs
“Limitations on the employment of
would not have suffered some or all of
salaried,
non-whites in
administrative
injuries.
them
jobs
causal theory
puts a premium
advanced
on automating
by the
plaintiffs
Khulumani
such tasks.
sense,
is even weak-
U.S. com-
er: “Apartheid
puter
would not
firms helped to
have occurred solve the skilled
the same
way
white
problem.”
labor
A00428;
without the participation of
see
defendants.”
A00306-07.
added).
A00166 (emphasis
(cid:127)
*38
of
Typical
the allegations
“Defendant
are:
vehicle manufacturers
knowingly supplied vehicles, parts, and
(cid:127) “Apartheid needed the cooperation,
other equipment to the South African
financing and supplies from the de-
(SAP),
Police
South African Defense
fendant
financial
institutions
(SADF)
Force
and South African
companies
their predecessors
and/or
Army.... These vehicles were
to
used
or successors to ensure that they had
patrol African townships, homelands,
the technology, equipment, systems,
and other areas and were used to sup-
infrastructures
and weaponry to in-
press
A00216;
dissent.”
see sure that
their system could func-
A00312.
tion.” A00304.
The complaints themselves seek relief
(cid:127)
oil,
“Without
police
the
and military
on behalf
persons
of all
who lived in South
could not have functioned and the Africa between 1948 and
present
the
who
“that,
opportunity,
if
the
given
indicated
apartheid.
of
a result
damages
suffered
clarify
the claims
responsible
narrow
they
to hold
would
Moreover, they seek
charac-
defendants,
they
defen-
whom
the various
against
allegations
the
the
each of
aiders-and-abetters,
“all
liable for
ante
262-63.
Op.
terize as
Per Curiam
dants.”
apar-
system
the entire
comprising
acts
these
holding keeping
from
I dissent
the
—
A00255.
enterprise.”
a criminal
theid
alluded to ear-
the reasons
alive for
claims
link the conduct
Nevertheless, they fail to
(1)
Court, in
the
and because
lier
injury
an
suf-
to
defendant
specific
of a
Alvarez-Machain, 542 U.S.
Sosa v.
the
On
plaintiff.
particular
a
fered
(2004),has
L.Ed.2d 718
124 S.Ct.
complaints
the
contrary,
gravamen
the
very sort of
is the
that this
us
instructed
from
recover
should
that
is not
individuals
should not be
case in
mil-
tort,
that
but
defendants
particular
(2)
Department
exercised;
the State
apar-
who “lived
people
lions of
of Interest
Statement
persuasive
a
filed
A00095,
recover
should
system”,
theid
urging
because
matter
dismissal
having
for
been
all
defendants
prosecution of
the continued
effect
adverse
injus-
overwhelming
...
“subject to
interests
cases would have
these
apartheid.”
that characterized
tices
our relations
cases, seeking
sum,
reparations
these are
(3)
countries;
Republic
other
rather
reparations,
billion
at least $400
gov-
Africa, democratically elected
South
They
to
fail
damages.
than torts cases
Afri-
all South
representative
ernment
action.
cause of
cognizable
allege
apartheid,
cans, including the victims
at oral
Moreover,
conceded
plaintiffs
and final-
to define
the right
has asserted
to
not anxious
they are
argument
that
apar-
reparations
related
ize issues
particular
link a
complaints to
their
amend
legal
within its own
offenses
theid-era
particular
by a
injuries caused
plaintiff
—
lawsuit an
making this
thus
framework
Indeed, the attor-
at 64.
Tr.
defendant.
black-majority
the post-apartheid,
insult to
acknowl-
plaintiffs
the Khulumani
ney for
These
people.
a free
necessarily
government
be
he would not
edged that
others,
the com-
amendment, but that
reinforce
among
grounds,
with such
satisfied
it would be
that a
argument
it because
decision
“accept
policy
pelling
he would
Nevertheless, he
Tr. at 80.
the worst
“reflect[
would
beginning.”
]
cases
hear these
“[wjhat’s
at stake here
that
confessed
...
send
[and]
‘judicial imperialism’
sort
crime an inabili-
almost
definition
does
United States
message
degree
exact trace
ty to make that
African
ability of South
respect
This conces-
Tr. 80-81.
particularity.”
by implying
justice
administer
society
allegations
alone
sion
establishes
judge
placed
better
courts are
that U.S.
would
insuf-
complaints
any
amended
na-
Africa’s
degree of South
pace
expectation
a reasonable
“to
ficient
raise
Schrage,
Elliot J.
reconciliation.”
tional
sup-
reveal evidence”
discovery will
Accountability in
Corporate
Judging
Corp.
Twom
Bell Atlantic
them.
port
Transnat’l
J.
Colum.
Economy, 42
Global
—
1955, 167
-,
bly,
U.S.
(2003).
153,166
L.
*39
(2007). Instead,
these com
L.Ed.2d 929
a vehicle
simply provide
plaints would
Discussion
Nevertheless,
coerce
settlement.
United States
1. Deference
order dis
opinion reverses
curiam
per
Republic
Africa
of South
orders
complaints and
missing the
from
unique. Departing
appeal
This
motions
again
plaintiffs’
on
Sprizzo
rule
Court, in
Supreme
practice,
its usual
plaintiffs have
because
replead,
for leave
the context of deciding
case,
a different
porations alleged to have
in,
participated
has already given us guidance
toas
how
abetted,
regime
apartheid
this appeal
Sosa,
be
should
decided.
In
formerly controlled South Africa. See
that,
held
in determining whether
In re South
Apartheid Litiga-
African
(the
Alien
“ATCA”)
Tort Claims Act
pro-
tion,
(JPML
238 F.Supp.2d
2002)
vides a basis for
the exercise of
(granting a motion to
transfer
cases
over an alleged tort in violation of the law
York).
Southern District of New
nations,
must apply
courts
“principle^]
The Government of South Africa has
limiting the availability
beyond
of relief’
said
these cases interfere with the
requirement
that the international law
policy
embodied
its Truth and Recon-
norm whose violation
alleged
suffi-
Commission,
ciliation
which “deliberate-
ciently defined. 542
n.21,
U.S. at 733
ly
avoided
justice’
‘victors’
approach to
S.Ct. 2739. Specifically, because the deci-
the crimes of apartheid and chose in-
sion to permit a case to proceed involves
stead one based on confession and abso-
“an element of judgment
prac-
about the
lution,
informed
principles
rec-
tical consequences of making that cause
onciliation,
reconstruction,
reparation
available to litigants,”
732-33,
id. at
and goodwill.” Declaration of Penuell
Supreme
Court suggested
Mpapa Maduna, Minister of Justice and
that “case-specific deference to
politi-
Development,
Constitutional
Republic of
branches,”
cal
n.21,
id.
124 S.Ct.
Africa,
South
reprinted in App. to Brief
2739, provided one limitation on the exer-
for Government of Commonwealth of
cise of jurisdiction under the ATCA in
Australia et al. as
7a,
Amici Curiae
certain instances.
¶
deleted).
3.2.1 (emphasis
The United
Among the reasons for such deference is
States has agreed. See Letter of Wil
the recognition of private rights of
IV,
liam H. Taft
Legal Adviser, Dept. of
action for violations of international
State,
to Shannen
Coffin,
W.
Deputy
may give rise to
consequences.”
“collateral
Atty. Gen.,
Asst.
27, 2003,
Oct.
reprinted
727, 124
Id. at
S.Ct. 2739. Specifically, the
id.,
at 2a.
cases,
such
there is a
Court cautioned that
potential
“the
impli
strong argument
federal courts
cations for the foreign relations of the
give
should
serious weight to the Execu
United States of recognizing such causes
tive Branch’s view of the
impact
case’s
should make courts particularly wary of
on foreign policy.
Republic Aus
Cf.
impinging
the discretion of the Legisla
Altmann,
tria v.
U.S.
tive and Executive Branches in managing
(2004)
tions seeking damages from various cor- adjudication of the above-referenced mat- *40 most litigation the in issues raised con- adverse serious potentially risks ters Afri- through South handled appropriately the of interests significant for sequences Depart- the State processes,” ca’s domestic outlining After A01090. States.” United continuing possible, “anticipat[ed] ment of South Republic the of objections the coun- with these relations in our tensions of prosecution continued to the Africa A01091. litigation.” tries over not- and States the United in cases these “to it taken steps” has expressed Moreover, Legal “extensive Advisor ing the for redress and actions chilling effect that reconciliation promote over the concern Legal Advis- injustices,” foreign future have on apartheid-era kind of this of South Republic countries: developing that in observed or investment of representative broadly “is relies, significant in Africa The United “is and regime” apartheid of victims ties and investment on economic part, mandate popular charged with uniquely change positive promote encourage and Id. apartheid.” of legacy developing to deal of policies domestic this of discussion his concluded He in- then to U.S. on issues relevant countries concern Branch’s Executive aspect rights for human terests, respect such However, the as follows: poverty. reduction and potential and govern- costly litigation African prospect the South Support for in a operating corner- courts area in U.S. in this ment’s efforts implements coun- government that country towards whose policy stone U.S. discourage reason, are sensitive will policies we oppressive that For try. (and corporations govern- foreign) African other the South U.S. to the view of the many will areas investing the cases adjudication that ment world, especially investment where goals, developing its policy interfere with have the most foreign and and can reparations most needed in the areas both eco- reasonably impact an- on positive investment, can and and forceful we To the cases conditions. political of these adjudication nomic that ticipate litigation African apartheid in U.S.-South that irritant extent bewill investment, adjudica- such the extent courts deters To U.S. relations. poli- foreign ef- on-going a valuable compromise Africa’s South will impedes tion eco- adversely affect U.S. eco- equitable cy tool forts reconciliation de- as economic will also as well litigation interests growth, nomic nomic inter- policy countries. foreign poor velopment to U.S. detrimental economic sustained promoting ests Id. Africa. in South
growth
&
GmbH
v. Dorotheum
In Whiteman
Cir.2005) (Ca
(2d
KG,
Id.
Co.
“[jjudicial
J.),
recognized
branes,
we
other
voiced
also
Department
State
Branch
Executive
deference
Legal Advis-
thing, the
For one
concerns.
long been
policy
foreign
questions
govern-
foreign
wrote,
other
“[v]arious
justicia-
prudential
established
King-
ments, including those
ques
‘political
known as
bility doctrine
us
approached
Canada,
have
dom
deciding
at 69. In
tion’ doctrine....”
their
express
channels
diplomatic
via
position
to accord
deference
what
banks, corpo-
their
concern
profound
Branch,
referenced
we
the Executive
been named
other entities
rations
Carr, which
case Baker
foundational
Because
A01090-91.
as defendants.”
recog-
tests
independent
six
identified
“strong belief
governments’
those
*41
political
nition of a
question.
369 U.S.
ment. All of
provide
these factors
sup-
(1962).
We need not
thored an
examine
amicus
any curiae
the six
brief on behalf of
independent
tests identified in Baker be-
rights
human
organizations
cause Sosa plainly held that the determi-
and bar
associations
support of the
nation of whether
jurisdiction
to exercise
plaintiffs-appellants. While it urges rever-
over
cause of action for a violation of the
sal
the judgment of
court,
the district
law of nations is subject to “case-specific her amicus brief does not address the
deference
political
branches.” 542 effect of
Sosa.)
footnote
in21
n.21,
U.S.
perpetrators given the opportunity to grounds independent of its testify treatment of about their actions in return for the views of the amnesty. Executive Branch. When See the democratically elected, Ungaro-Benages representative AG, Dresdner government Bank (11th South objected Africa 379 F.3d Cir.2004) to the impact of (dismissing a the U.S. litigation on the claim on the negotiated grounds of international comi- transition process, the ty executive after branch declining to defer to the Executive asked the courts to defer to Branch). this judg- *42 by the proposed as to were attended on this dismiss to whether decision The reparations. interim regard to TRC with the which to degree the on depends
basis govern- “legiti- reparations, sovereign are to final foreign regard With of interests grant of litiga- a once-off provide of by the conduct ment will affronted mately forum,” or survivors individuals R30,000 to those Jota States a United tion in (2d and is over TRC. This Cir. designated the Inc., F.3d Texaco, commitments sovereign material foreign above other 1998), the steps already in the mentioned. issues we have the address to have taken inter- own of our payments extent the these process and to litigation, We intend generally current during See the underlying issues. urgency, of est matter & Plastics with commu- Chems. year. Carbide Combined Bi v. Union financial (Newman, Cir.1993) (2d through assistance and Co., nity reparations, factor is have re- we services /.). significant most and Perhaps opportunities the we these earlier, hope sovereign to which we foreign to the ferred whether the acknowledge help democratically govern- elected will disbursements is a defer experi- Id. individuals judiciary. suffering that these independent ment relief. enced, offer some and at 585-86. addressed Mbeki then A00745. President the cases, of extent the present In the corpora- against “civil suits issue of the interests legitimate to the affront apartheid that benefitted tions has it Africa, steps of South Republic litigation. specifically system,” reparations, the issue to address taken the South reiterating “that After A00747. its underlying feeling depth and be will not not and African Government in the rec- reflected amply concern continued: he litigation,” such party to to response in April On ord. unacceptable completely consider “[W]e and Reconcilia- Truth of the Report future central that are that matters (“TRC”), the President tion Commission adjudicated be country should of our Mbeki, announced Thabo Republic, of the responsibility bear no foreign courts implemented that would programs country and of our well-being apartheid: the victims to assist contained the perspective observance indi- cases of specific regard na- [W]ith promotion our Constitution TRC by [the] identified victims recogniz- vidual While Id. tional reconciliation.” place put has Act, government legal institute of citizens right “the ing pertain- intensify programmes will emphasized and Mbeki also action,” President benefits, as- educational to medical ing is in- approach government’s and so housing provision and sistance South involve all desire by “the formed time, Ministers time to citizens, From in a on. corporate Africans, including expatiate will continue elaborated voluntary partnership co-operative oth- these and implementation on so- African develop South reconstruct programmes. rejected er related he also Accordingly, ciety.” Id. corporations on tax wealth once-off 22,000 about reported TRC TRC. by suggested ap- families surviving individuals Parliament Likewise, in an address Of the Commission. before peared Erwin, the Minister day, Alec same rep- urgent 19,000 these, required about that the emphasized Industry, Trade and them, where arations, virtually all rejection its rationale available, government’s necessary information the once-off tax applied wealth equally to South Africa’s view of pend- various cases its opposition to the cases at issue: ing in the United against corpora-
It is for all the above tions that reasons that we did business with South *43 opposed to and indeed Africa contemptuous during apartheid period, includ- attempts to unsound ing use extra-territo- cases at issue here. The statement legal rial precepts in the [United States summarizes the actions by undertaken personal America] to seek Republic financial of South Africa “to repair the gain in South Africa. Whilst individuals damage by caused apartheid system have an right inviolate to recourse in law through a programme broad of socioeco- firmly and this is entrenched in South nomic reparations heart, which has at its Africa it law, is abuse to use the the betterment of the lives of previous- that, unsound law at of another land to ly disadvantaged.” Then, A00801. ad- our sovereign undermine to right settle dressing prosecution cases, of these he our past and build our future as we see argued that the remedies sought—includ- fit. South Africans involved this ing “the demand for billions of dollars in break that indefinable collectivist identi- damages to be distributed the U.S. ty that origin was the strength. our courts”—are “inconsistent with South Afri- government The rejects the actions of approach ca’s to achieving long its term legal practitioners in the exploit USA to goals.” A00805. Specifically, he contin- our history and will not any allow judg- ued: ment made in the USA or elsewhere to Permitting this litigation go to forward be carried out in South Africa. will, in government’s view, discour- A00754-55. age much-needed foreign direct invest- Asmal, Professor Kader the Minister of ment in South Africa and delay thus Education, also prosecution assailed the achievement of our central goals. In-
these eases. He told the Parliament: deed, litigation could have a destabil- South Africa must settle this issue ising effect on the South African econo- themselves and does not need my the help as investment not only a driver of of ambulance chasers and contingency growth, but also of employment. One of operators, fee whether in Switzerland, the structural features of the Afri- South Netherlands, or the United States of can economy, and one of the terrible America. As Africans, South we have legacies apartheid, high is its level of effectively dealt with our own historical unemployment and its by-product, challenges and will we continue to do so. crime. Foreign direct investment es- It is part of our sovereign right. sential to address both these issues. If this litigation proceeds, far promot- A00758. from ing economic growth and employment April 16, 2003, On the day after the and thus advantaging the previously dis- quoted above, addresses the Cabinet of the advantaged, the litigation, by deterring Republic of South Africa resolved that “[i]t foreign direct investment and undermin- the right remains of the [Government [of ing economic stability will do exactly the South Africa] define and finalise issues opposite of what it ostensibly out sets of reparations, nationally both and interna- do. tionally.” A00803. Against backdrop, Justice, then-Minister of Penuell Mpa- A00805-06. last paragraph of Minister pa Maduna, filed a declaration in the dis- Maduna’s declaration invoked the doctrine trict court which set forth Republic of of international comity. He observed to the identifi- and assistance reparations law, courts that under difficult it is apartheid, victims able cases adjudicating may abstain for exercis- reason any policy conceive for- rights of sovereign deference On the cases. these over jurisdiction ing adjudicate legislate, eign countries want, “[mjost would judges contrary, issues domestic resolve otherwise in a own asserting their interference, particular- outside without to re- efforts case, to undermine doubtful government the relevant ly where in- sovereignty, democratic national build pro- the actions opposition expressed courts, stitutions, self-respecting States, where in the United ceeding *44 from lately suffered that countries would the United in adjudication interna- include catastrophic events ef- sovereign’s foreign with the interfere Kirby, Universal Michael tional crimes.” it has in which matters address forts to A Reluctance: Judicial and Jurisdiction govern- The interest. predominant Points”, Ju- Universal in “Fourteen New in ad- interest its ment submits Pros- and the Courts National just risdiction: presents apartheid past dressing its Interna- Under Crimes ecution Serious a situation. such Macedo, (Stephen Law tional A00806. R. ed.2004). Indeed, William Professor Re- appeal, recently, on this Most re- scholarship was cited Casto, whose amicus filed an Africa South public Sosa, in Court peatedly addressed brief, is not which curiae in apartheid regime that the has written argu- concurring opinions, and per curiam of a example may be Africa South “fundamentally in- actions these ing that govern- prior a nation’s “in situation independence Africa’s South terfere despicable in the most engaged has ment inter- in its intervene sovereignty and and government misconduct, current but the under inter- right affairs, including its nal faltering, but honest, perhaps making an past apartheid its law to address national past rectify effort real nevertheless in future its for develop policies and deter- were apartheid If misdeeds.... subject appropriate, most it deems manner clearly estab- violation to be mined demo- of the approval support for law, remedy tort lished Afr. as Ami- Br. S. cratic electorate.” nev- system might evil of that the victims empha- it Specifically, 1-2. Curiae cus R. William inappropriate.” ertheless be litigation of this the continuation sized Law Common Casto, The Nero Federal and, investment business discourage would Interna- Violations Remedies Tort of the South growth disrupt thereby, 635, 656 L.J. Law, Rutgers tional a state- 3^4. In economy. Id. at African (2006). brief, current appended ment Justice, Brigitte Minister African South the charac here is Particularly apposite Mabandla, repeated verbatim Sylvia Judge opinion thoughtful teristically Ma- Minister of former statement earlier Chemi Carbide Bi v. Union Newman country’s duna, adding that “another Co., F.2d 582. Plastics cals & ongoing determine how should Bhopal courts devastating out of arose case Africa should in South processes gas political deadly accident, in which industrial Id. annex resolved.” Carbide by Union operated plant densely into a (“UCIL”) blew Ltd. India and considered consistent light class Some India. part populated Africa of South Republic policy courts district in federal filed were actions provide place put programs across the United States and consolidated settlement grossly inadequate, and in the Southern District of New York. their due process rights were violated After the case was dismissed on the because they received inadequate notice grounds conveniens, non and inadequate the In- representation in the forum government, dian to which parliament its proceedings and because they could not granted the exclusive authority opt out repre- of the settlement. sent the victims of the disaster in India Id. at 584. elsewhere, filed suit in India on behalf After describing in detail the structure of all claimants. India and Union Carbide of the government, Indian pursuant to a ultimately agreed to a court-approved set- Constitution “provides for a republi- tlement, by which the agreed latter pay can form of parliamentary government million to the government $470 Indian for guarantees rights the fundamental
the benefit of all victims of the disaster. people, including equal protection pro-
After the settlement of the class actions cedural process,” due id. at India, two cases were filed Texas Newman observed that India had chosen *45 state courts on behalf of other victims 'of “to represent exclusively all the victims the Bhopal disaster. The cases were a suit against Union Carbide and to use transferred to the Southern District of money the it received in settlement of that York, New Judge where Keenan dismissed suit to fund a plan ... process framed both actions ground on the non the claims of all the victims.” Id. at 586. forum conveniens. dismissal, We the affirmed circumstances, Under these wrote, he “[t]o although on grounds. different Judge grant the victims of Bhopal disaster, the Newman described the appeal present- most whom India, are citizens of access ing “an interesting issue comity among to our courts where India up has set what nations in the resolution of claims arising it believes to be the most effective method from torts occurring a foreign within coun- of dealing with a problem difficult would try.” Bi, 984 F.2d at precise 583. The “[Wjere frustrate India’s efforts.” Id. we issue he identified to pass judgment on validity the of India’s whether
is the response federal to a and state disaster courts that occurred within country borders,” of this its should defer to the judg- continued, Newman “it ment of a democratic would foreign disrupt govern- our with that relations coun- ment that disputes try arising the from a frustrate mass efforts of the interna- occurring tort tional within community its borders to develop can be methods to best problems resolved deal with according foreign the magnitude government the exclusive future.” standing to repre- Id.
sent the victims of the disaster in the Moreover, it was not relevant whether courts the world. our “under constitutional standards, our Id. We to permit declined plaintiffs to Government could pass an act similar to prosecute the class actions in or federal the Bhopal pursuant Act” to which the court, state notwithstanding their argu- government Indian settled the claims that ments that settlement of their claims the plaintiffs sought prosecute. In- Id. government Indian was unfair stead, im- he wrote that: proper because, among other things, when a recognized democracy deter-
the Indian Government had an unaccept- mines that the interests of the victims of able conflict of part interest as owner of a mass tort that within occurred its bor- UCIL, most of the oppose victims ders will be best if served the foreign States, in the United these cases cution exclusively represents government plaintiffs noted world, Minister Erwin we around in courts victims to recourse right an inviolate “have determi- on that judgment pass will States. in the United just not the for- only permit will nation, and we law”— Thus, the victims unlike A00754. courts to our access eign government every indication disaster, is there Bhopal course claims, subject of those litigate court, in their day in their they standing. requirements own our judi- an independent before country, home compelling especially conclusion This tradi- with in a consistent manner ciary, all almost where as this such in case Minister As due process. notions tional citizens. Indian the victims are in his declaration stated Maduna court: district stronger involve cases present au- Constitution, judicial Under doctrine for dismissal basis Republic vested thority of India, the Re- Like comity. and sub- independent courts, which demo- sovereign Africa is of South public law, and the the Constitution only ject broadly reflect policies whose state cratic apply impartially must they Moreover, it people. of its the interests No fear, prejudice. or favour without de- programs policies adopted may interfere of state organ person apartheid the effects to address signed courts, while functioning of However, un- its victims. compensate state, through organs of other all Bi, were whose claims plaintiffs like the *46 measures, as- must and other legislative who had and law Indian wiped out under to ensure courts the and protect sist here forum, plaintiffs the no alternative dignity, impartiality, independence, their in forum alternative competent may have or- An accessibility and effectiveness. accounts, is that, by all country their home per- all a court binds of or decision der In- grievances. their to hear prepared to of state organs and sons whom ac- themselves deed, plaintiffs the has Africa South applies. available would be relief knowledged that with system, judicial developed well of South Republic in courts apex and at its Court Constitutional Br. at 27 Reply Khulumani Africa. See the final as Appeal Court Supreme or criminal (“No civil relief non-constitutional appeal court apply not those who did enacted for the Constitu- Judgments matters. TRC, ... from the amnesty obtain for and indeed, and, Court tional open the leaves approach Africa’s South widely admired are Appeal, Court up to take citizens for individual possibility and incisiveness independence their vio- rights human related any grievance judgments into referred frequently are (internal courts lations interna- appeal courts other final omitted); Reply Ntsebesa marks quotation tionally. plaintiffs’ (“The alleged acts Br. one scholar Similarly, subject would illegal A00798-A00799. are complaints observed, law the United in both African to suit of South the defendants ”). Africa.... only and South in- new constitutional [t]he democratic of a ethos troduced has stat- Mbeki President Significantly, an exten- Rechtsstaat, enacted but also the right recognizes ed, Government “[the] rights of socioeconomic array sive action.” legal institute of citizens African change South designed are prose- Likewise, criticizing A00747. society fundamentally. These can be provide should substantive law in such an and indeed already have been used to action.” v. Royal Wiwa Dutch Petroleum secure, through litigation, Co., the interests (2d 105 n. 12 Cir.2000). of the traditionally marginalised groups I engage in a hypothetical choice-of-law and to ensure their place the political here, analysis because it focuses on the agenda. governmental interests of South Africa and Frangois Bois, du Introduction: History, the United States and serves to reinforce System Sources, in Introduction to argument against jurisdic- exercising (C.G. Law South 3-4 van tion over Africa these cases. As we have ob- der Merwe & Jacques E. eds., du Plessis served,
2004). [t]he federal common law choice-of-law
IWhile have assumed the
rule is to
availability
apply
jurisdic-
law of the
a forum in the Republic
Africa,
tion having
South
greatest
Bi
interest
makes clear that such an
litigation....
alternative
goal
forum
of this analysis is
is not always required
before the
evaluate
doctrine
the various contacts each
comity
may be
Jota,
invoked. See also
has with the controversy,
(“[CJases
to the defendant’s amenability to suit in an case, the Republic of South Africa has the adequate forum....”). foreign Neverthe- greatest interest, if not the interest, only less, if even the availability of an alterna- application of its laws. The conduct tive forum were an prerequisite absolute alleged place took in South Africa and the to dismissal on ground of international victims were its own citizens. The reme- comity, and one were not available in these dies that its citizens should have as a *47 cases, deference to South African law result of injuries the they suffered at the would justified under a traditional hands of apartheid the regime are matters choice-of-law analysis. Indeed, although exclusively for its democratically elected he did not in haec verba invoke such anal- post-apartheid government. ysis, Judge Newman’s opinion in Bi is Moreover, the tenuous interest of the entirely consistent with it. in the issues raised these We have previously held that the as cases is also reflected that, in the fact sumption subject of jurisdiction matter under customary law, international we over a cause of action under the ATCA could not subject exercise jurisdic- matter does preclude not analysis choice-of-law tion over a cause of action against the resulting dismissal of the ease. Filarti primary tortfeasor —the of officials the ga Pena-Irala, v. (2d 630 F.2d 889 Union of South Africa—or the foreign cor- Cir.1980). This inquiry is separate from porate defendants. so, This is because jurisdictional the analysis. Indeed, we apartheid, however abhorrent it may have have read Filartiga as “requiring the been, dis has not been regarded as an offense trict court perform to a traditional choice- subject to the exercise of juris- universal analysis of-law to determine whether inter diction. This concept, as its implies, name law, national [the] of state, law forum or “recognize[s] that international per- law [the] law of state where events occurred mits any state to apply its laws punish to
305 (the Conven- “Apartheid 243 U.N.T.S. no has state the although offenses certain jurisdiction, universal tion”), offense, provided of or with territory links of “[ajmong only so it did (or even stated they offender nationality with Restate- Foreign (Third) the Convention.” parties victim).” [the] Restatement of Law (1987); see Relations Foreign (Third) cmt. § 404 Law ment Relations of Demjanjuk, Antonio also 7. See note Extradition reporters’ § 702 Matter also of of 1985). (N.D.Ohio Humanity, 544, 555-58 Against Cassese, F.Supp. Crimes not dependent is International jurisdiction Statute Universal The Rome of cer- as to agreement Commentary only on “substantive A Court: Criminal behavior,” (observ- universally 2002) condemned eds., al., tain et (Antonio Cassese a viola- into behavior transforms Statute, enacted which Rome ing that law, but international customary tion interna- customary than 1998, is broader universal agreement “procedural interna- general “expands tional a subset prosecute exists jurisdiction alia, “broad- it, inter as insofar law” tional 762, 124 at Sosa, U.S. that behavior.” amounting conduct the classes ens part concurring J., (Breyer, “the include humanity” against crimes judgment). concurring Likewise, Euro- apartheid”).1 crime respect agreement no body is There Commission, executive pean the Restate- Although issue. latter explicitly Union, stated European Law Foreign Relations (Third) ment con- widely is “apartheid[] that, while prac- discrimination, [] “when racial cites it present, at least ... by states demned of state matter as a systematically ticed jurisdiction universal rise to give does violation as a apartheid,” e.g., policy, reasons, [Apar- other because, among cmt. law, id. customary widely not been ... has Convention] theid apartheid deleted), omits (emphasis i European Commis- for the Br. ratified.” univer- subject to offenses list of Neither Supporting Curiae Amicus as sion Instead, Restatement jurisdiction. sal Alvarez-Machain, 542 U.S. Party, Sosa exists jurisdiction universal states * 03-339), 2004 (No. WL recognized offenses “certain only for is reason Another n.35. of universal as of nations community condemned universally certain limited trade, at- slave piracy, concern, such either occur nature “by their crimes aircraft, genocide, hijacking or tacks no there or where a State outside acts certain perhaps crimes, and war competent punishing, capable State Indeed, while § 404. terrorism.” *48 war).” (as time in a crime the punish, to observed Restatement the Reporters 56, 105 Yousef, 327 United the on Convention International the that to respect course, with Cir.2003). Of (2d Crime of the Punishment Suppression now here, there alleged conduct the Nov. adopted Apartheid, reconciliation, re- criminal national achieve to “con- apply not does Rome Statute 1. The could Statute Rome the under sponsibility the Stat- force of entry into prior duct Saland, Interna- Per retroactive....” made be International Statute Rome ute.” Inter- The Principles, in Law Criminal tional signature 24(1), open art. Court Criminal Making The Court: Criminal (entered national 999, 1016 I.L.M. July Issues, Results Negotiations, Statute — Rome 1, 2002). commentator As one July force into 1999). ed„ This Lee (Roy S. broadest acceptable be explained, "[t]o Africa, South Republic why the explain countries, many of which majority of possible Conven- Apartheid ratified which never had past and experiences dark had Statute. tion, the Rome ratified solutions similar or amnesties resort State capable of providing redress in a that the United States does not respect competent manner. the ability of South African society to justice administer Under by these circumstances, implying that U.S. particularly courts are placed failure of better the United to judge States to sign or pace and ratify degree Apartheid of South Convention, Africa’s na- denying a tional forum for reconciliation. contrast, these In cases this point U.S. cannot be said intervention to block undermine such a suit any sends interest United different signal States. To to South Africa contrary, and oth- as the er countries struggling States argues through in its amicus brief, difficult political the prosecution of transitions. It these would cases communi- sig- harms cate our nificant recognition interests of the of the respected United States. position Obviously, the justice system congressional holds interest making South available a Africa forum and reinforce the impor- the ATCA would be tance of having if undermined those we denied a claims judged forum where country. regime, which violated the norm, was the same one that decided Schrage, supra, at 166.2 such a cause of action should not pur- The majority declines to address the sued. See Tachiona v. Mugabe, 234 aspect of Sosa directing courts to deter- F.Supp.2d 401, (S.D.N.Y.2002) (declin- mine the deference owed to the Executive ing deference to law of the foreign state in Branch’s view of case, notwithstanding action alleging actionable conduct a sit- the facts that both parties and amici de- ting government). But that is not the case many vote pages of argument to this issue here, for as the State Department has and that the goes issue directly to whether observed, the laws of the Republic of subject jurisdiction matter should be exer- South Africa reflect policy judgments cised over the cause action alleged by made a government that “is broadly plaintiffs. The principal reason given representative of the victims of the apar- for this silence is that “the district court theid regime” and “uniquely charged with explicitly refrained from addressing the a popular mandate to deal with the legacy defendants’ arguments the ATCA of apartheid.” A01090. We have no inter- claim presented a non-justiciable political est in undermining its law policy. question.” Per Curiam Op. ante at 262 sum, quote again from one learned (citing In re S. Apartheid Litig., African commentary: 346 F.Supp.2d 4) at 543 n. (parenthetical A court decision to hear an omitted). Alien Tort The footnote in Judge Sprizzo’s Statute claim over action in South opinion, Africa from which per curiam opin- reflects the worst sort “judicial impe- ion quotes an incomplete excerpt, reads as
rialism.”
It would send the message
follows:
2. The
plaintiffs
Khulumani
that,
argue
J.,
dissenting from denial of writ of manda-
aside,
"[t]he ATS
there
independent
mus.)
point
disagreement
Exxon,
grounds
court”,
in federal
majority
id.,
acknowledged,
turned
namely, diversity of citizenship pursuant to 28
*49
availability of a writ of mandamus to review
U.S.C.
1332. Br. for App. at 56. These
the denial of the defendant’s motion to dis-
action,
of
however,
causes
subject
are also
to
miss where the Executive Branch did not
dismissal based on deference to the Executive
unequivocally seek such relief. See also Am.
Branch's view the foreign
of
policy impact of
Garamendi,
Ins. Ass’n v.
396,
539 U.S.
413-
allowing
proceed,
them to
14,
and on the doc-
123 S.Ct.
156
(2003);
L.Ed.2d 376
trine of
Bi,
international comity. See
984
Banco Nacional de
Sabbatino,
Cuba v.
376
586-87;
F.2d at
Doe v. Exxon Mobil Corp.,
398, 425,
U.S.
307 of reading cursory a significantly, More no there that argue Defendants that demonstrates opinion Sprizzo’s Judge to this Court controversy for case advice Court’s Supreme on the rely he the Constitu- did of III Article under hear Apartheid In re S. establish See cannot in Sosa. plaintiffs African tion because 553-54. bring this at F.Supp.2d to standing 346 Litig., they have that a burden unwilling non- to Nevertheless, matter I am the because action Mem- be- See on this score question. any further political opinion justiciable this rely of Defen- not Support in did Sprizzo Judge of Law if cause, orandum even at 3-4. Dismiss to guid- Motion Court’s Supreme Joint dants’ the on expressly defen- that finding holding, Court’s the his Given for basis as a Sosa ance in other on to relief are entitled the avoiding dants for excuse be an not would not address need Court the grounds, where found may cases While issue. defendants’ grounds remaining these ad- not issue reach to we declined motion. court, see, Bi e.g., the by district dressed Litig., 346 Apartheid (2d re S. 440 Co., In F.3d 239 African v. Coca-Cola gio n.4. 543 F.Supp.2d we that expressly held Cir.2000), we a opinion, curiam per court decision
Contrary to the a district affirm are “free that shows record the reading upon of relied careful not grounds [on] ... even refrain explicitly not Tertiary did Sprizzo Judge Methyl re In court.” the district the deference of issue addressing the Li Liab. (“MTBE”) Prods. Butyl Ether State position the accorded Cir.2007) to be (2d (quot 112, 134 F.3d tig., 488 Indeed, the Sosa. under Department F.3d Hutton, 355 v. Gmurzynska ing the of Support in Law Memorandum Bi, F.2d Thus, Cir.2004)). (2d Dismiss Motion Joint Defendants’ district the Bigio, image of 582, a mirror ex- Sprizzo Motion”), which (“Joint the on complaint a dismissed had court opin- of his part the referenced pressly conveniens —a non grounds forum that argument declining address ion not had defendant on ground non-justicia- presented claim the ACTA because dismiss, presumably moved (in relevant argued question, political ble See forum. another unavailability of plaintiffs’ “adjudication part) Plant Corp. Gas Carbide re Union pass court require would claim 626, 1992 WL Disaster, No. MDL re- were questions political merits 1992). affirmed Feb.18, We (S.D.N.Y. legislative executive solved of inter principle dismissal, applying government States the United branches issue though that even comity, national Africa.” South commerce in favor district by the addressed not had been argue that not did defendants 8. The Id. at Similarly, at 586. Bi, F.2d court. in deference be dismissed should the case (2d Cir. Karadzic, v. Kadic by the filed of Interest Statement dis court J.), district (Newman, 1995) rely on they States, did nor it sole before cases related two missed in Sosa Court advice matter subject of lack ground ly on this case the United the views Doe See the ATCA. Sosa, weight.” great “certainly deserve[d] (S.D.N.Y. 734, 736 Karadzic, F.Supp. In- n.21, 124 S.Ct. 542 U.S. however, parties 1994). appeal, On be- filed motion deed, the defendants’ dis grounds different three briefed year Interest the Statement fore had themof two though missal, even suggested Supreme Court before *50 court, and district by the addressed been deference. it be afforded Judge Newman considered each of them in In re LLC, BDC 56 330 F.3d Kadic, turn. 70 F.3d at (2d Cir.2003) (finding that particular is- sue jurisdictional because it implicated
There is a good reason to reach the “a threshold determination that issue should here. be Prosecution of these cases at made the earliest possible stage of undermines significant interests of the proceedings”). United States our relations with the Republic of South Africa, as well as allies IWhile rely on these cases simply to States, who have expressed demonstrate the force of policy favor- concern over the exercise jurisdiction ing the exercise of our discretion to decide over these cases. Under these issue, circum- they also support the argument stances, it is an issue that should be re- the issue here should be treated as solved the threshold. Particularly — ap- one going subject matter jurisdiction posite here are — words the Court of which we must resolve even if it would Appeals for the Seventh Circuit addressing not necessarily so be treated in other con- a motion to dismiss a Sherman claim Act texts. This argument derives from the on ground that the alleged conduct language did of the ATCA and the Supreme substantial effect on commerce Court’s analysis of the manner in which within the (The United States. “effect on the jurisdictional threshold question should commerce” requirement was enacted as resolved. Specifically, Sosa stated that part of the Foreign Trade Antitrust Im- “[a]ll Members of the Court agree that provements Act (“FTAIA”).) of 1982 § In 1350 is only jurisdictional” and “that the holding that subject matter jurisdiction jurisdiction was originally understood to was implicated, the Seventh Circuit ob- be available to enforce small number of served: international norms that a federal court
There good could policy properly recognize reasons for [this as within the conclusion]. The common law extraterritorial scope enforceable without further of our statutory antitrust laws authority.” touches our rela- U.S. at tions with S.Ct. 2739. foreign governments, so, seems, it prudent to tread softly in The Supreme Court then observed that this area. If FTAIA sets out an issue “it would be unreasonable to assume that merits, resolution of the issue the First Congress would have expected could be delayed until late case, federal courts to lose all capacity to recog- potential for a lawsuit to have ” nize enforceable international norms.... an effect on foreign markets would exist 730, 124 Id. at S.Ct. 2739. Sosa went on to while the ease remained pending.... discuss “the ultimate criteria for accepting Treating the matter as one of subject a cause of action subject jurisdiction jurisdiction matter reduces potential 1350,” id. at for offending the economic policies of while making it clear that the criteria it other short, nations. FTAIA limits was setting forth were not exclusive. One the power of the United States courts consideration an “involve[s] element of (and private plaintiffs) from nosing judgment about practical consequences about they where do not belong. And of making that cause available to litigants the power of the courts is precisely what in the federal courts.” Id. 732-33, subject matter is about. S.Ct. 2739. subject Since jurisdic matter United Phosphorus, Ltd. v. Angus Ch em. tion under the ATCA depends on whether Co., (7th 322 F.3d Cir.2003); see the defendants have violated interna-
309
at
id.
See
of action.
cause
a
states
plaint
courts
which
law norm
tional
federal
(“If
Legislature
the
515-16,
1235
make
accept
recognize,
prepared
on
limitation
a threshold
clearly
that
of the
states
application
the
litigants,
available
jurisdic-
as
shall count
scope
is
determination
a statute’s
that
making
for
criteria
will be
litigants
of
tional,
to the issue
courts
then
goes
definition
one that
be left
not
will
duly
jurisdiction.
instructed
matter
subject
Indeed,
issue.”).3
in
the
with
wrestle
subject
that
argues
Katzmann
Judge
Bevona,
v.
Union
a Better
For
Members
is es-
ATCA
the
jurisdiction
matter
a
Cir.1998),
vacated
we
(2d
58
152 F.3d
allegation
of an
virtue
simply
tablished
of
failure
trial
after
entered
judgment
a
violated
conduct
defendant’s
the
that
action, id.
a
of
cause
to state
complaint
the
the
law
of international
norm
trial record
the
regard
61,
al-
without
for the
at
remedy
to provide
decision
the
“that
the parties
of
issue
assertion
the
simply relates
leged violation
jurisdic
subject matter
Op.
had
exists.”
court
action
of
district
a cause
“whether
of
lat-
The
n.1.4
at 266.
Id. at 67
ante
tion.”
Katzmann
of
continues, does
issue,
argument
this
ter
re-
Sosa
even before
significantly,
More
jurisdiction.
matter
subject
implicate
not
nature
jurisdiction-conferring
the
affirmed
so
may be
While
at 266-67.
ante
Id.
“distinguish[ed][the]
ATCA, we
of
1331,
§
which
U.S.C.
to 28
respect
with
Act,
jurisdic-
its
Claims
Tort
Alien
aris-
actions
civil
“of all
jurisdiction
confers
general
requirement,
pleading
tional
laws,
trea-
Constitution,
ing under
‘not
which
jurisdiction,
question
federal
States,”
per curiam
the United
of
ties
aver-
possibility
by the
defeated
ATCA,
of
language
ignores
opinion
to state
may fail
complaint
in
ments
statutes
of
number
of a
one
which
”
447
at
239 F.3d
Bigio,
action.’
of
cause
its preroga-
exercised
has
“Congress
which
Pena-Irala,
F.2d
630
v.
Filartiga
(citing
jurisdic-
subject-matter
to restrict
tive
Cir.1980)
v.
Bell
(citing
(2d
876, 887-88
aon
based
courts
district
federal
tion
773,
L.Ed.
90
678, 66 S.Ct.
327 U.S.
Hood
factors,
them
some
variety of
wide
very
as the
Indeed,
early
as
(1946))).
939
Arbaugh
case.”
aof
the merits
relevant
con-
cases”
line
the modern
“birth
n.11, 126
500, 516
546 U.S.
Corp.,
v. Y & H
724-
Sosa,
ATCA,
542 U.S.
struing
(2006).
1097
1235,
L.Ed.2d
163
S.Ct.
that,
acknowledged
2739, we
25,
S.Ct.
124
so, subject mat
done
has
Congress
Where
requirement
statute’s
of “the
because
com-
whether
turns
jurisdiction
ter
only, committed
tort
by an alien
by the Su-
cited
statutes
jurisdictional
The
3.
treaty of
aor
nations
Congress
violation
in which
examples
as
Court
preme
States,'
certain
similarly identifies
restrict
prerogative
its
exercised
jurisdictional
district
federal
jurisdiction
law violations
subject matter
substantive
jurisdic-
that contain
n. 13.
at 144
statutes
requirements.”
include
courts
tion-conferring
pleading
to that in
language identical
See,
U.S.C.
e.g., 28
§ 1350.
U.S.C.
28
Bevona,
102
section
at issue
statute
& H
Arbaugh Y
(cited
v.
& 1348
§§ 1345
Dis-
Reporting and
Labor-Management
11,
500,
S.Ct.
126
n.
516
U.S.
Corp., 546
by its
Act,
§
did
28 U.S.C.
closure
Indeed, in
(2006)).
1097
L.Ed.2d
subject matter
exercise
restrict
terms
Malaysia, 269
Government
v.
Robinson
Nevertheless,
held
we
jurisdiction.
Judge Katz-
Cir.2001), in which
(2d
F.3d
Court.
by the
construed
so
been
had
Tort
“Alien
concurred,
we said
mann
(citing Calhoon
Bevona,
(“ATCA”), 28 U.S.C.
Act
Claims
Harvey,
U.S.
shall
courts
district
'[t]he
provides that
(1964)).
L.Ed.2d
action
any civil
original
*52
alleging a ‘violation of the law of nations’ Moreover,
per
curiam opinion offers
jurisdictional
thresh-
no good reason for failing to do so.
It
old[,][c]ourts have ... engaged in a more
suggests that its “approach is particularly
searching preliminary review of the merits
appropriate here because plaintiffs have
than is required, for example, under the
indicated that,
if given the opportunity,
more flexible ‘arising under’ formulation.”
they would narrow their claims and clarify
Filartiga,
As did the Supreme Court in Sosa, we
that,
held
“[i]n order to determine
Consistent with this analysis, I first ad-
whether the offenses alleged by
[plain-
dress whether the complaint here makes
tiffs]
this litigation are violations of the
allegations against defendants sufficient to
law of nations
be the subject of hold them liable
acting
as
under the color
Alien Tort Act
against
claims
private
a
of law. I next turn to whether, at the time
individual, we must make
particularized
a
the alleged crimes
committed,
were
there
examination
these
....” Kadic,
offenses
awas well established and universally rec-
which clearly influenced Justice Souter’s
actors....
In re S.
Apartheid
African
majority opinion and Justice Breyer’s con- Litig.,
1.Mere
state regulation
private
state
con-
action even though it was exten-
duct, even if extensive, is insufficient
sively
regulated, obtained governmental
support a finding of state action.
approval, received
govern-
substantial
8. Burton v. Wilmington Parking Authority, 365
scope
narrowed
and
prece-
as
diminished
715,
856,
U.S.
81 S.Ct.
(1961),
315
acting
have been
lawsuit,
would
he
im-
an
assistance,
performed
mental
of law.
under color
function.
societal
portant
Francisco
(citing San
5.12,
5-88
787,
Price,
86
383 U.S.
v.
States
Olympic
v. United
Athletics
Arts &
(1966), which
267
1152,
L.Ed.2d
16
S.Ct.
2971, 97
S.Ct.
107
Comm.,
U.S.
483
episodes
saddest
of one
out
arose
v.
Rendell-Baker
(1987);
427
L.Ed.2d
movement, provides anoth-
rights
civil
2764, 73
102
Kohn,
U.S.
subgroup.
this
example
compelling
er
Yaretsky, 457
Blum v.
(1982);
L.Ed.2d
subsequent
arrest
involved
Price
L.Ed.2d
991, 102 S.Ct.
U.S.
workers
rights
civil
three
murder
Co., 419
Edison
(1982);
v. Metro.
Jackson
are described
The facts
Mississippi.
L.Ed.2d
345, 95 S.Ct.
U.S.
Court:
opinion
follows
(1974)).
state-ac-
subgroup
analyzing
Price, the
Ray
21, 1964, Cecil
June
On
cases are
instant
tion cases
Mis-
County,
of Neshoba
Sheriff
Deputy
—
primary
where
those
representative
Henry
Michael
detained
sissippi,
actor, and
is a state
or tortfeasor
offender
An-
Chaney and
Schwerner,
Earl
James
party
private
is whether
question
County
Neshoba
in the
drew Goodman
accessory
alleged to be
who is
Mississippi.
Philadelphia,
jail located
—
it is useful
actor
a state
deemed
of that
dark
them
released
He
leading
the facts
discuss
by automo-
proceeded
then
He
night.
they illustrate
because
cases
Court
erst-
intercept his
19 to
Highway
bile
before
made
must be
showing
kind of
three
He removed
wards.
while
a state
may be deemed
party
private
automobile,
them
placed
their
men
most
case
di-
context.
actor in
of the Neshoba
automobile
in an official
Sparks,
is Dennis
point
rectly on
office,
transported
County Sheriff’s
L.Ed.2d 185
U.S.
road.
unpaved
*57
an
on
place
a
them
a
bribed
party
private
a
(1980), in which
pro-
the
enjoining
order
an
to issue
judge
a
part of
were
alleged,
acts, it is
These
leases.
from
oil
certain
of minerals
duction
three
the
whereby
conspiracy
plan
was act-
actor
private
the
holding that
18 defen-
by the
intercepted
were
men
law,”
Supreme
the
color of
ing “under
Price,
Deputy Sheriff
dants,
including
persons,
“[pjrivate
observed
Court
of
Willis
Patrolman
Rainey
Sheriff
a
officials
state
with
jointly engaged
De-
Police
Mississippi,
Philadelphia,
the
color’
acting ‘under
action, are
challenged
of
intent
purpose
The
partment.
Id.
§ 1983 actions.”
purposes
of law
inter-
the
custody and
from
the release
“the
Specifically,
183.
24, 101
at
charge, were
according
ception,
the
act
an official
were that
allegations
defen-
The
men.
the three
“punish”
of a cor-
product
judge
defendant
assault,
wilfully
“did
dants,
alleged,
it is
bribery of
involving
conspiracy
rupt
And,
three.
each
kill”
shoot and
pri-
allegations,
these
Under
judge.
continues, the bodies
charge
judge
with
conspiring
parties
vate
by one
transported
were
three victims
law; and
state
under color
acting
were
the rendezvous
from
the defendants
respect
in this
consequence
no
vicinity road to
unpaved
damages
immune
judge himself
ap-
dam
of an earthen
site
construction
theOn
28,
101 S.Ct.
liability.” Id.
Phil-
southwest
miles
five
proximately
merely
had
actor
hand,
private
if
other
Mississippi.
adelphia,
prevailed
courts
resorted
316
790,
86 S.Ct.
1152. The
Court explained in Adickes v. S.H. Kress
Court
private
held that
individuals who
Co.,&
“[t]he involvement of a state official
participated directly with state
pur-
actors
in such a conspiracy plainly provides the
suant
to a common design were acting
state action essential to show a direct vio-
under color of
effect,
law. “In
if the alle-
lation of petitioner’s Fourteenth Amend-
gations
true,
they
participants
were
equal
ment
protection rights.... More-
lawlessness,
official
acting in willful con- over,
private
a
party involved in such a
cert
state officers and hence under
conspiracy, even though not an official of
color of law.”
795,
Id. at
Pnce is a classic example of the rule that 144, 152, 398 U.S. 1598, private parties act under color of law when (1970). L.Ed.2d 142 they are “engaged in a conspiracy with state officials to violate the Fourteenth This holding finds support in the law of Amendment.” Conway v. Vill. Mount agency. “When persons two joint- engage Kisco, (2d F.2d Cir.1984) n. 12 ly in a partnership for some criminal [or (Oakes, J.); accord Ginsberg v. Healey legitimate] objective, the law deems them Car & Inc., Truck Leasing, 189 F.3d agents for one another. Each is deemed (2d 272-73 Cir.1999); Alexis v. McDonald’s to have authorized the acts and declara- Res Inc., ts. Mass. 67 F.3d tions of the other undertaken to carry out (1st Cir.1995); Mershon Beasley, v. joint their objective.” United States v. (8th 994 F.2d Cir.1993); Annun Russo, (2d Cir.2002). Gan, Inc., ziato 744 F.2d Thus, private party conspires who with a (2d Cir.1984). state actor becomes agent, Ms and his good There is reason require direct actions in that capacity are sufficient to participation with a state pursuant actor make him an actor under color of law. a conspiracy or common design before Similarly private where a party induces an holding private party, who is not the otherwise public innocent official to com- primary wrongdoer, liable as a state actor. mit offense, he has effectively made Where the issue is public whether a official person his or agent. her can be held liable for primary wrong- doing of private actor, public office This doctrine is an outgrowth of com- he holds suffices to satisfy the state-actor mon law principles criminal responsi- *58 requirement; only issue is whether his bility dating least as far back as conduct in that capacity constitutes a prox- Regina Saunders, 2 Plowd. 473 imate of plaintiffs cause injury. Thus, (1575); and of principles of respon- civil “a state actor may subject to liability sibility established, by force of the max- for an action physically undertaken by pri- qui im per alium per se [he facit facit vate actors in violation of the plaintiffs who acts thorough another for acts him- liberty or property rights if the state actor self], at least early as the 14th centu- directed or aided and abetted the viola- ry. tion.” Dwares v. City York, New 985 of (2d F.2d Lester, Cir.1993). 98 States v. On 363 F.2d 72 other (6th hand, Cir.1966). where the primary actor On the hand, is a other public there is official, private for a no legal actor to be or precedent deemed a framework for hold- actor, state he must jointly participate ing that private in a party, merely selling the wrongful conduct, pursuant goods to a com- or materials to actor, a state mon design or plan. As himself acting under color of law.
317 context. present in the liability ing such have we precedent, with Consistent a com- enacted has not Congress Because an inter- violate to conspiracy a that held statute, a aiding-and-abetting a civil parable render necessary to norm is national to such subject not be party could in which private for conduct liable party private 42 U.S.C. under action civil Bigio, liability in a actor. primary is the the state v. First Denver a rejected Bank Indeed, § we Central there 1983. of F.3d at Denver, 511 U.S. Co. Coca-Cola Bank that alleging Interstate of action cause of L.Ed.2d where 181-82, of law” color “under acting complaint, in the (1994). allegation was “no there that ... evidence any hint
let alone
enacted
Congress
when
Significantly,
or
participant
a
role as
any
had
Coca-Cola
Act of 1991
Protection
Victims
Torture
confiscation
in the
co-conspirator
Torture
with the
to
(“TVPA”)
comply
to
re
449;
Id. at
property.”
Bigios’
cf.
causes
civil
for
Convention,
provided
Litig.,
Asbestos
Navy Yard
Brooklyn
who,
individual
against “[a]n
only
action
Cir.1992)
that
(holding
(2d
831, 841
col-
authority, or
apparent
or
actual
under
an agree-
to
pursuant
joint participation
nation,” under
foreign
law,
any
or
a
commit
implied
or
express
—to
ment —
Act. TVPA
by the
prohibited
conduct
takes
impose
necessary
tort
102-256, 106 Stat.
2(a), Pub.L. No.
§
concert); Restatement
acting
those
ac
Report
Moreover,
(1992).
the Senate
liabil-
876(a) (imposing
§
(Second) Torts
provides
legislation
companying
act
a tortious
“does
one who
ity on
of liabili
principles
“[cjourts
look
should
a
pursuant
or
the other
with
concert
particu
laws,
rights
civil
U.S.
ty under
him”).
design with
common
of the United
title
1983 of
lar section
Judge
nor
Katzmann
Judge
Neither
color
construing ‘under
Code, in
of sec-
analysis
my
issue
Hall takes
or
‘actual
interpretations
aswell
law5as
un-
circumstances
defining
cases
tion
agency
authority’ derived
apparent
deemed
may be
party
private
der
coverage
fullest
give the
in order
theory
of law.
color
have acted
(Nov.
102-249, at 8
Rep.
S.
possible.”
ap-
however,
on cases
relying
Katzmann,
Re
the Senate
1991).
extent
To the
aiding-and-
criminal
general
plying
aiding-and-
issue
speaks
port
federal
to all
applicable
abetting statute
supervi
issue
abetting, it addresses
pri-
argues
§
crimes, 18 U.S.C.
“a
point
makes
liability and
sory
aiding-and-
for
liable
may be
person
vate
per
not
need
official
[public]
higher
commission
official
public
abetting
to be
in order
abuses
ordered
sonally
incapa-
may be
though he
even
of a crime
law, re
Under
liable.
held
himself
crime
committing the
ble
summary
torture,
execu
sponsibility
satisfy
would
his conduct
though
even
beyond
extends
tion,
disappearances
treating
out
set
the standard
committed
actually
*59
who
persons
person
Judge Katz-
ofOp.
actor.
state
him as
higher authori
anyone
acts [to]
those
Nofziger,
In re
(citing
at 281
ante
mann
knowingly
tolerated, or
authorized,
ty who
(D.C.Cir.1992); United
287, 290
F.2d
956
re
(citing
at 9
those acts.”
(2d ignored
8, 14
Tannenbaum,
F.2d
934
v.
340, 90
1, 66 S.Ct.
Yamashita, 327 U.S.
may be
person
Cir.1991)).
The fact
Suarez-Mason,
(1946);
v.
Forti
499
L.Ed.
an offense
aiding-and-abetting
convicted
see
(N.D.Cal.1987));
1531
F.Supp.
672
aas
guilty
found
could
he
of which
(2d
865, 873
58
Coughlin,
v.
Colon
pro-
so
Congress
principal —because
prin
Cir.1995)
general
the same
(applying
impos-
a basis
provide
vided—does
ciples to determine the liability
supervi
sition that a “supplier
culpable only
[is]
if
sory public officials under 42 U.S.C. he has ‘the purpose of promoting or facili
1983).
§
tating’
crime,”
observed that a similar
approach has been adopted
aiding-and-
Indeed,
notwithstanding
division on
abetting in civil
283,
cases. 970 F.2d
panel
with respect
issues,
to other
(7th Cir.1992). Moreover, in
Qur
Boim v.
per
opinion,
curiam
reflecting
agree-
anic Literacy Institute,
the same court
ment of all members of
panel,
holds
held
§
that 18
2339A,
U.S.C.
which created
allegations
in the complaint are
a civil cause of action for
injured
those
by
insufficient to render the defendants liable
terrorist acts against
pro-
individuals who
under the color of law for violation of the
vided support to terrorist groups, survived
TVPA. Specifically, it rejects the cause of
a First Amendment challenge “so long as
action
TVPA,
under the
alleging
the plaintiffs are able to prove that
defendants “aided and abetted the apar-
defendants knew about
organization’s
theid regime’s subjecting the Plaintiffs to
illegal activity, desired to help that activity
torture and
judicial
extra
killing within the
succeed and engaged in some act
help-
meaning of the
...
[TVPA]
under actual
ing.”
1000,
(7th
291 F.3d
Cir.2002).
or apparent authority, or under color of
Welch,
Halberstam v.
472,
705 F.2d
Cf.
law.” A-00505. Applying principles of li-
(D.C.Cir.1983) (holding that “desire to
ability
under section
per
curiam
make the venture succeed” is a
factor
opinion properly concludes that the com-
determining aiding-and-abetting liability).
plaint “failed to link any defendants to
There is no allegation here that the de-
state aid or the conduct of state officials.”
fendants acted with the intent to make the
Per Curiam Op. ante at 259. The same is
violation succeed. On the contrary, plain-
true with respect
to the other causes of
tiffs strenuously argued in their briefs and
action.
at oral argument
they
were not re-
Nevertheless,
if
even
§
18 U.S.C.
2 ap-
quired to make such a showing. Ntsebesa
plied in
context,
the standard for im- Reply
19;
Br. at
Khulumani Reply Br. at
posing liability for aiding-and-abetting pur-
11; Tr. at 13. They argue that a private
suant to this section is not
satisfied
party who knowingly facilitates the com-
complaints in this case. Specifically, the mission of an international law
violation
Supreme Court
that,
has held
“[i]n order
a state actor acts under color of law. I use
to aid and abet another to commit a crime
the term “facilitates” because “[o]ne who
it is necessary that a defendant in some merely
goods
sells
to a buyer is not an
sort associate himself
venture,
with the
aider abettor
crimes
buyer
that the
that he participate in it as in something might commit, even if the seller knows
that he wishes to bring about, that he seek
that the buyer is likely to
goods
use the
by his action to make it succeed.” Nye & unlawfully, because the seller does not
States,
Nissen v. United
336 U.S.
share the specific intent
to further
(1949)
(internal
L.Ed. 919
buyer’s venture.” Corrie v. Caterpillar,
quotation marks and
omitted).
citation
Inc., 403
(W.D.Wash.
F.Supp.2d
This element
is also essential
to a civil 2005) (citing Blankenship, 970 F.2d at
cause of action for aiding-and-abetting.
285-87),
on other grounds, Corrie v.
aff'd
See,
E.
e.g., Trading Co. Refco,
229 F.3d Caterpillar,
Inc.,
(9th
tional and foreign sources in U.S. consti- Sosa, we held that “the legislative decision
tutional interpretation
he
[as
does] are
not to create a
private
new
remedy does
not urging U.S. courts to defer automat-
not imply that a private remedy is not
ically to some kind of global “nose
already available the Alien Tort
Instead,
count.”
they are suggesting Act.”
The other agreement genocide. iden- As Judge Katzmann acknowl- tified by Judge Sprizzo that expressly rec- edges, ... “Sosa deviate[d] our case ognizes liability for private persons is the law in one crucial respect. We had al- Convention on the Prevention and Punish- lowed cases to proceed under the ATCA ment of the Genocide, Crime of opened on the assumption that plaintiffs when al- signature Dec. 102 Stat. leged violations of well-established inter- (“Genocide U.N.T.S. 277 Convention”). law, national their ‘causes of action are ” The near-unanimous adoption of the con- statutorily authorized.’ Op. of Judge vention constitutes concrete evidence of a Katzmann ante at 265 (quoting Kadic, 70 peremptory norm that has become part of 246). F.3d at Sosa “flatly rejected this customary international law. problem notion.” Instead, we are now required with the invocation of the Genocide Con- to determine “whether to recognize a com- vention—aside from the issue whether the mon-law cause of action to provide a reme- complaints here sufficiently allege activity dy for the alleged violation” of internation- constituting genocide that when Con- al —is law. Id. ante at Thus, we have to gress enacted legislation to implement the address the question threshold of whether agreement, see Genocide Convention Im- to recognize a civil cause of action under
321
liability is
scope
of the
the issue
me that
Congress
where
genocide
for
ATCA
the
law,
no
draws
international
governed
intention
its
indicated
plainly
quite
an
and
corporation
a
between
distinction
be
should not
action
a cause
such
that
in cases
our decisions
do
Nor
individual.
available.
Never-
ACTA.
under
jurisdiction
invoking
acknowl-
to
appears
Katzmann
Judge
corporate lia-
issue
theless,
specific
the
Kadic,
is-
notwithstanding
that,
edge
law
customary international
bility under
of action
cause
a
recognize
to
whether
sue
it raised
discussed,
nor
was not
be
must
ATCA
on the
based
genocide
for
See, e.g.,
cases.
of those
any
parties,
Never-
of Sosa.
light
anew
considered
Flores,
federal liability. While such recognize not do scope of liabili- law extends ternational Inter- Charter, created London norm to given of a a violation ty for “IMT”) (the Military Tribunal national sued, defendant if the being perpetrator limit its explicitly Nuremberg, does anor corporation aas actor such private it seems persons,” “natural 20, 124 S.Ct. n. individual.” context language and its clear Katzmann, agrees who *63 jurisdiction conferred only prose- over the bunals Under Control Council Law No. 10 cution of individuals. Specifically, 14, 39, 50, (1952). the Nu- Nevertheless, remberg empowered Tribunal was try “to notorious I.G. Farben was not named as a punish persons who, acting in the in- defendant. Id. at 11-14. Nor any were of European terests countries, Axis corporations other with charged crimes at whether as individuals or as Nuremberg. fact, members of “In in the Nuremberg organizations,” any trials, committed of point several of lack of corporate liabili- ty enumerated crimes. appeared Charter of the IMT to have been explicitly stat- 6, 8, art. Aug. 1945, 1544, ed.” 59 Stat. In re Agent Orange Product Liab. (the U.N.T.S. 279 Litig., “London 7, (E.D.N.Y.2005) Charter” 373 F.Supp.2d or the “Charter”) added).10 /.). (emphasis (Weinstein, Moreover, in rejecting argument defense “in- that 1948, the United Nations General ternational law is concerned with ac- Assembly asked the International Law tions sovereign states, provides no (the “ILC”), Commission a United Nations punishment individuals,” the Nurem- body, to study the possibility of creating berg “[cjrimes Tribunal held that against judicial international tribunal, ul- which international law are committed by men, timately emerged in the form of the Inter- not by entities, abstract and only by pun- (the national Criminal “ICC”), Court ishing individuals who commit such crimes prosecute genocide and other crimes. Un- can provisions of international law be der the auspices ILC, of the the Commit- enforced.” Trial, The Nuremberg 6 tee on Legal International Jurisdiction be- 69, (1946); F.R.D. 1 Trial Major gan to study issue in and it (William War Criminals 223 S. Hein & report released its in 1953. U.N. See Co., 1995) (1947). Inc. See also Ernst GAOR, Sess., 9th Supp. No. U.N. Doc. Schneeberger, The Responsibility (1954). A/2645 The Committee considered Individual under Law, International 35 a proposal by Australia grant the inter- (1947) Geo. (“[I]n L.J. the last national jurisdiction court over corpora- resort responsibility ¶ tions. Id. 85. The proposal was soundly only can be responsibility of an individ- defeated because “it was undesirable to ual....”). include so novel a principle corporate criminal responsibility in the
Indeed, draft stat- the distinction corpo- between ute.” Id. rate and individual responsibility is illus-
trated
The I.G. Farben Case in which More than forty years later, during ne-
corporate
were charged
officers
with “act- gotiations for
Statute,
the Rome
pursuant
ing through the instrumentality of Farben”
to which the
created,
ICC was
France
in committing various
against
crimes
hu- proposed bringing corporations and other
manity.
(“The
United States v. Krauch
juridical persons
States)
(though not
with-
Case”),
I.G. Farben
7 Trials War Crim-
in the
of the ICC. That propos-
inals
the Nuernberg Military Tri-
al
again rejected,
was
Before
for three principal
10. Article 9 of the
provided
131-33;
London Charter
Major
Trial
War Criminals
that
any
"[a]t the trial of
individual member
255-57.
consequence
of a finding in the
any
group
organization
or
the Tribunal
organizations,
main trial
such as the
(in
may declare
connection
any
with
(more
act of
commonly
Schultzstaffeln
referred to
convicted)
individual
S.S.)
be
as the
and the Gestapo, were criminal in
group
organization
of which the indi-
permitted
nature was that it
finding
guilt
vidual was a member
awas
organi-
criminal
against other
organization
members of the
Trial,
zation.” The Nuremberg
6 F.R.D. at
subsequent trials. See Id.
Res.
S.C.
May
25(1), adopted
art.
point
(1)
pragmatic
“from
reasons:
(the “ICTY
Doc.
U.N.
S/RES/827
would
the ICC
was feared
view
International
Statute”);
evidentiary prob-
Statute
tremendous
faced
(2)
Prosecution
entities”;
for the
Tribunal
legal
Criminal
prosecuting
when
lems
Genocide
point
Responsible
normative-political
Persons
a more
“from
International
criminal
Violations
Serious
Other
emphasized
view it
Ter-
rejected
*64
still
Law Committed
Humanitarian
corporations
liability of
orders,
interna-
Citizens
and Rwandan
legal
ritory of Rwanda
national
many
brought
Such
not be
and Other
could
which
for Genocide
disparity
Responsible
tional
comple-
Territory of
in the
principle
the
Committed
in concord
Violations
morally
(3)
January
“it was felt
1
mentarity”;
Between
Neighboring
criminal
on the
5, adopted
insist
art.
1994
for States
obtuse
December
31
1994 and
than
other
955,
entities
Doc.
of all
U.N.
responsibility
1994,
Res.
8,
S.C.
Nov.
Eser,
Individual
Statute”).
Albin
(the
themselves.”
“ICTR
S/RES/955
1 Antonio
Responsibility,
Criminal
Tor-
Against
Likewise, the Convention
the
al.,
Statute
The Rome
et
Cassese
Inhuman,
De-
Cruel,
or
and Other
ture
A Com-
Court:
Criminal
International
(“Tor-
or Punishment
Treatment
grading
(footnotes
(2002)
767,
mentary
778-79
violations
Convention”), contemplates
ture
pro-
Statute
omitted). Thus,
Rome
the
agreement’s
which
by “persons,”
only “natural
over
jurisdiction
for
vides
per-
only
natural
mean
can
context
textual
the ICC
Rome Statute
persons.”
4(1),
arts.
Convention
See Torture
sons.
17,
July
signature
25(1), opened
art.
for
1984,
10,
6(3),
Dec.
6(1),
adopted
(entered into
999, 1016
1998,
I.L.M.
The lan-
85, 23 I.L.M.
U.N.T.S.
Statute”).
2002) (“The
Rome
July
force
part
TVPA,
executed
which
guage
Apartheid
III of
Similarly, Article
Flores,
Convention,
the Torture
“[ijnternational
that
provides
Convention
for
support
further
provides
n.
at 247
irre-
apply,
shall
responsibility
criminal
customary
that
the fact
involved, to individ-
motive
of the
spective
liability. Un-
corporate
recognized
has not
and institu-
organizations
uals,
members
de-
TVPA,
“individual”
term
der
representatives
tions
pro-
its
violate
who can
those
both
scribes
”
Con-
Genocide
4 of the
Article
State....
those
torture,
as
well
as
against
scriptions
Specifically,
effect.
the same
is to
vention
Specifical-
torture.
victims
be
who can
ge-
committing
“[pjersons
that
provides
individu-
“[a]n
that
provides
the TVPA
ly,
acts enumerated
other
any
or
nocide
tor-
an individual
subjects
...
al who
whether
punished,
[ajrticle
shall
that
damages to
liable for
... be
ture shall
rul-
responsible
constitutionally
they are
“torture”
individual,”
defines
and it
individuals.”
private
or
ers,
officials
public
individual
against
act,
“any
directed
Criminal
International
for
The statutes
...
suffering
pain
severe
...
Yugoslavia
former
Tribunal
individu-
on
intentionally inflicted
Tri-
Criminal
(“ICTY”) and International
add-
3(b)(1) (emphasis
2(a)(1),
§§
al.”
(“ICTR”)
confer
also
for Rwanda
bunal
recently wrote:
ed).
Judge Weinstein
As
persons.”
“natural
only over
sense
common
context
[b]oth
Tribunal
International
Statute
See
“individ-
can be the
persons
only natural
Responsible
of Persons
Prosecution
“severe
inflict
of acts
victims
ual”
Hu-
International
Violations
for Serious
[TVPA
suffering.”
See
pain
Territo-
Committed
Law
manitarian
uses
TVPA
3(b)l].
Because
Since
Yugoslavia
Former
ry of
same term “individual”
identify
of-
These sources are not undermined by
fenders,
the definition of “individual” Professor
suggestion
Henkin’s
that, “[a]t
within the statute appears to refer
juncture[,]
to a
the Universal Declaration
human being, suggesting
only
(G.A.
[of
natu-
Rights
Human
(III),
Res. 217A
persons
ral
can
(1948)
violate the Act. See
U.N. Doc.
Des
]
A/180
address
Palace,
ert
Costa,
Inc. v.
multinational companies.”
U.S.
Henkin,
Louis
The Universal
no
Id. at 1020.
abettors.”
aiders
also sue
ATCA,
like
however,
preclude
decision,
language
does
That
Boim,
at issue
aiding-and-abetting
of the statute
language
for
civil
clear
of a cause
recognition
intent
Congress’
support
“where
can
cases
Neverthe-
aiding-and-abetting.
structure
for
language
action
legislative
invokes
plaintiff
if the
less,
only
well as from
so
itself as
it does
statute
Boim,
provides
F.3d at 1019.
norm
history.”
an international
language
Nothing
liability.
such
relies,
Hall
Boim,
upon
holding
the broad
supports
the ATCA
aiding-
liability for
the issue
concerns
a forum
provide
intended
Congress
vio-
terrorism
and-abetting international
aiding-and-
of action
causes
adjudicate
2333(a).
While
of 18
lation
U.S.C.
*68
a norm when such
of
the violation
abetting
action,
cause of
statute,
the civil
creating
of
scope
fall within the
not
did
conduct
haec verba
2339A,
not in
§
did
18 U.S.C.
Congress
Indeed,
the same
norm.
liability,
aiding-and-abetting
for
provide
ATCA,
reference
without
enacted
in the defi-
implicit
liability was
accomplice
liability,
explicitly
Thus,
aiding-and-abetting
in
terrorism.
international
nition of
of
acts
to aid-and-abet
a crime
made it
Bank, the Seventh
Central
distinguishing
nations.
of
of the law
violation
piracy,
that:
held
Circuit
10,
9, §
1790,
ch.
April
Act of
See
10(b)
at issue
statute
[the
section
Unlike
that,
(1790). This shows
112, 114
Stat.
also ex-
Bank], Congress
in Central
con-
suggestion
Judge Hall’s
despite
in section
an intent
pressed
5,n.
at 288
ante
Judge Hall
of
trary, Op.
as
liability at least
extensive
make civil
impose
“knew how
Congress
First
defin-
liability. The statute
criminal
it chose
liability when
abetting
aiding and
includes
terrorism”
“international
ing
Bank, 511
Central
so,”
(quoting
id.
to do
acts or
violent
that “involve
activities
1439),
respect
with
174, 114
at
S.Ct.
a U.S.
are
life that
to human
dangerous
acts
of nations.
the law
to violations
laws
the criminal
violation
In the
absence
either statutory lan-
the courts have
tended
cite the Re-
guage
legislative
history
support
his
statement when they are already in
interpretation
ATCA,
of the
Judge Hall’s
agreement
it,
to ignore
it when
opinion argues that “the Founding Genera-
they
not,
so that
impressive
list
tion nevertheless understood that ATCA
of references
it in
the cases may be
encompassed aiding and abetting liability.”
somewhat misleading; and there are
Op.
Hall ante at 288 n.5. This
those who have disagreed with many of
is
contention
point,
beside the
for the rea-
its’conclusions, and even denounced the
sons
above,
discussed
wrong.
whole project.
Bank,
In Central
plaintiff
argued that
“Congress
Prosser,
William
legislated
L.
4,§
with an
Law Torts
understand-
at
(4th
ing
general
ed.1971).12
20-21
principles Perhaps
tort
for
that aiding
reason,
and abetting
liability
was ‘well
Court could write
established in both
fifty-five
civil
years
and criminal ac-
publication
after the
”
tions
year
first
statute at
Restatement
1934/
the doctrine of aid-
adopted.
issue was
of which The Prosser historical support wrote: proposi- tion that “the Founding form of the Generation Restatement never- perhaps
unfortunate,
theless
in that it
understood” that civil seeks to
reduce
aiding
law to a
and abetting
definite set of
black-letter
law viola-
rules or principles,
tions was
ignoring
contemplated
all contrary
ATCA,
authority
Op.
law of
of Judge
torts
its
Hall
n.5,
ante at 288
—since
is am-
present stage of development
biguous
does
best. The lynchpin for this ar-
*69
lend itself at all readily to
gument
such treat-
is Attorney General William Brad-
ment. There is room for suspicion that
ford’s 1795 opinion, Breach Neutrality,
Judge
12.
Learned Hand shared Prosser’s con-
major
ALI and held
positions in it for
cern.
"repeatedly
Hand
urged
...
that the
life,
the rest of his
rarely
he
cited the Restate-
Restatements confine themselves to articulat-
ments.
Id. at 413. The most that he was
ing the law
be;
'as it
not as it should
is/
willing
say
about them was that he found
repeatedly, he insisted that the
"
ALI's task was
them to be useful
questions
'on
which
”
were
'restate,
legislate’....
not
Gerald Gun-
not controversial and [otherwise
long
took] a
ther, Learned Hand: The Man
Judge
and the
’’
(internal
time
up.'
to look
Id.
citations
(1994) (internal
omitted).
citations
In-
omitted).
deed, although Hand was a founding member
by
action
tort”: combined
“joint
(1795).
opinion,
In his
Atty. Gen.
Op.
together
the scene
question
tortfeasors
a
addressed
specifically
—“one
Bradford
while
plaintiff,
American
have battered
might
him, namely, whether
posed
conducted,
him,
a third
joined,
imprisoned
“voluntarily
another
who
citizens
(footnote
in at-
fleet
Id.
a French
buttons.”
aided,
his silver
and abetted
stole
or
settlement,
plundering
omitted).
responsible
tacking the
Each was
subjects
of British
property
destroying the
actions.
others’
subject to criminal
coast” could
on that
Moreover, Prosser
at 476-77.
705 F.2d
Id. at
States.
in the United
prosecution
ele-
the essential
explain that
on to
goes
Brad-
question,
to this
responding
58. In
pursuance
joint tort was “the
of a
ment
a crimi-
doubt about
expressed some
ford
a
to commit
design
plan
common
or
a
he stated
but
prosecution,
nal
Prosser,
at 292.
supra,
act.”
tortious
company
doubt that
can be no
there
in
Hall’s
cited
early cases
Two
by
injured
who
been
or individuals
Dall.)
(3
Jansen,
3 U.S.
Talbot
opinion,
remedy
have a
hostility
acts of
these
(1795), and
1 L.Ed.
Henfield’s
of the United
courts
a
suit
civil
(C.C.D.Pa.1793), nei
Case,
11 F. Cas.
giv-
expressly
being
States;
ATCA,
out
bear
involved
ther of which
all cases where
in
these courts
en to
arose from
Both
analysis.
cases
Prosser’s
only, in violation
for a tort
sues
alien
but
by pirates,
a vessel
the seizure
nations,
treaty of
or a
law of
that are
“armed vessels
by privateers,
States....
United
by one or
owned,
and officered
equipped
Id. at
a
sailing under
but
private persons,
more
distinguish
did not
Bradford
Because
commission,
letters
mar-
usually called
liability, it
secondary
primary
between
state,
em-
which
belligerent
from a
que,
that,
he
when
to discern
possible
is not
it is
to whom
persons
person
powers
lie for “these
would
cause of action
a
said
sea,
seize,
vessels
to attack
granted
aid-
focusing on
was
hostility,” he
acts of
enemy.” 3 James
of its
property
or other
par-
to direct
opposed
as
ing-and-abetting
Cy-
Privateering,
in
Conley,
Fairbanks
violated
in
conduct that
ticipation
Science, Political
Political
clopdia of
Indeed, be-
the United States.
treaty of
History
Political
Economy, and the
partic-
direct
involved
the conduct
cause
(John
ed.,
Lalor
J.
citizens, who acted
by American
ipation
way
1899).
in this
privateers
The use
succeed,
the attack
make
intent to
with the
law.
under international
recognized
recognized
that Bradford
likely
it seems
Henfield’s
Nevertheless,
Talbot’s
tortfeasors,
joint
perpetrators
all of
derived
these cases
legal problems
at the time.
understood
term was
as that
citi-
United States
they were
the fact
explained Halber-
D.C. Circuit
As the
na-
against
acts of
war
engaged
zens
stam:
States was
the United
tions
original mean-
that “[t]he
*70
prosecu-
a criminal
was
Case
re-
the entire
liable for
held
were
sign,
Henfield’s
that,
at
unusual one
tion, and a most
at
Prosser, Law Torts
W.
sult.”
commis-
privateer
aof
prize-master
ed.1971).
(4th
por-
His illustration
was
Henfield
by France.
sioned
that involved
situation
trays a standard
charged with conduct proscribed by an act
encouragement
dant’s
or assistance was
Congress.
sufficiently
grand jury
undelivered
to support liability.”
substantial
Op.
Judge
Hall ante at
charge of Chief
287.
Jay,
Justice
These
upon which
factors
“the nature of the act encour-
Judge
relies, Op.
Hall
of Judge Hall ante
aged, the amount of
given by
assistance
n.5,
appears
practice
reflect the
defendant,
his presence or absence at
early justices
most
“to create
tort,
the time of the
his relation to the
by judicial fiat[,
crimes
particu-
which] was
other tortfeasor and his state of mind.”
larly infuriating to the vast majority of
Id.
citizens who believed the Constitution had
factor,
The “state of mind”
applied
in
a government
established
pow-
limited
Halberstam,
includes a “desire to make
ers.”
Smith,
Edward
Jean
John Mar-
the venture succeed.”
whether (c) The ICTY defi- universally recognized” ][and] lish^ ICTY background, way of By sufficient aiding-and-abetting nition Security Coun- Nations by United created customary international considered actions class appropriate ticularly motion, Judge Sprizzo this deciding 15. coerce case, intended which are pleading applying the also consider should framework provide the than rather Corp. v. settlement Bell Atlantic enunciated standard take never will know we all trial which for a -U.S.-, Twombly, place. par- seems (2007). The standard L.Ed.2d cil Resolution 317, 363, which was passed on IT-95-17/1-T, Case No. Judg- 25, 1993, May ¶ prosecute (Trial re- individuals ment 10, 1998). Chamber Dec. sponsible for serious violations of interna- While this was an open-and-shut case of tional humanitarian law committed joint participation in a violation of interna- former Yugoslavia beginning January tional law members of an armed group Statute, Under the ICTY the tribu- in an international conflict, panel *74 the ICTY nal has over four clusters entered into a confused rambling dis- grave crimes: breaches of the Geneva cussion of aiding-and-abetting. Conventions, violations or cus- laws This theme animates the other ICTY war, toms of genocide, and against crimes cases cited Judge Tadic, Katzmann. humanity. See ICTY Statute arts. 2-5. the Trial Chamber found that the defen- Significantly, noted, previously as dant, part as of a group proclaiming the ICTY against criminalizes crimes humani- creation of an independent Bosnian Serb ty only “when committed con- armed republic, played an active role in the attack flict.” While this connection with armed on a majority Muslim predomi- town conflict is consistent with the London nantly region by, alia, Serb inter beating Charter Judgement and the of the Nurem- civilians and forcibly transferring them to berg Tribunal, 331, ante at the ICTY Stat- id., camps. concentration E.g., Judgement ute undermines “subsequent developments ¶¶ 397, 455, 461. He was also among a de-coupling against humanity’ ‘crimes group beat, stabbed, of men who the initiation and waging of an aggressive and/or killed a Bassiouni, war-” number of individuals at supra, at such con- 194. In- deed, if centration applied camps we retrograde the context of the statute ¶¶ here, it require would armed conflict. E.g., 235-36, id. dismissal complaints. 316, 435, 448. Again, this is a classic joint ease of participation in criminal con- Against this backdrop and my earlier duct state actors in an armed conflict statute, discussion of the ICTY I turn to provided who direct and substantial assis- specific ICTY decisions upon by relied tance to the “common purpose” of effect- gruesome Katzmann. The facts ing a violation of an international the Furundzija case, the principal case Tadi n ¶¶ 730, norm. Indeed, which Judge cites, Katzmann are illustra- was expressly cited in Furundzija, tive of as the circumstances under which the holding that “the accused ‘intentionally ICTY chose to as address aiding-and-abetting directly sisted liability. There, victims, substantially in two identified as D, purpose A and common group’ apprehended were to commit and were ¶ brutally (internal the offence.” Id. interrogated. Judgment ICTY made omitted). the following finding with citations respect See also Prosecutor v. Vasiljevi n , defendant co-defendant, and his IT-98-32-A, Case No. Judg whom ¶ identified as ment Accused B: 134 (App. 2004) “There is no Chamber Feb. (The doubt that the B, accused and evidence Accused showed that “Appellant commanders, process divided the knew that inter- the seven Muslim men were to rogation by performing killed; different functions. that he walked armed with the The role of the accused was to question, group place from the they where had while Accused B’s role parked was to assault and River; cars to the Drina threaten in order to elicit required he pointed gun his seven Muslim information from A men; Witness and Witness and that he stood behind the Muslim D.” Prosecutor v. Furundzija, 38 I.L.M. men gun with his together with the other crime, a war guilty of held shooting sign was shortly before three offenders nature extent though the started.”). may vary. participation Kvo n ka, Case in Prosecutor Similarly, thir- Weiss Trial Martin Gottfried (Trial Cham IT-98-30/1-T, Judgment No. others, Reports Trials 11 Law ty-nine were 2001), defendants Nov. ber (William Hein & S. Criminals War by Serb created camp aof employees 1997) (1945).16 Co., Inc. non- where Herzegovina, in Bosnia Forces a foundation hardly provide These cases killed, detained, and otherwise were Serbs law, of norm of international which a upon The administrative mistreated. gravely can be suggests, Judge Katzmann the kind camp was commander aide opinions of Nor do the constructed. joint participated to have found ICTR, I now turn. to which his “adminis enterprise because *75 criminal inte many one of constituted duties trative (d) The ICTR gross of system a wheel of in the cogs gral on November created The was ICTR ¶ The 460. Judgment Id. mistreatment.” Security Nations by the United re individually held defendants other two judge in order Council Resolution at leaders shift guard were both sponsible for serious responsible those individuals convicted was camp. One defendant the in Rwanda of international violations pre evidence of “substantial the basis on January 1 and states, nearby between and beat on shift guards [his] that the sented the de- Specifically, 1994. December and presence, in detainees, his sometimes of genocide, were accused fendants there object, but participat only failed he not humanity, and violations against crimes ¶ other The 497. Id. on occasion.” ed Conven- Geneva the Article 3 common crimes permitted serious guard leader II. Protocol of Additional tions and com under his by those to be committed a require connection did not Statute ICTR a “perpetrated personally he mand and humanity and against a crime between crimes, sex particularly serious number of and the ICTR While armed conflict. ¶ case is the This Id. 566. ual violence.” shared they separate tribunals are ICTY the Dachau Concentration image of mirror Chamber, ofOp. Appeals the same in which case Camp surpris- n.14. Not ante Katzmann system a camp general there was observes, there Judge Katzmann ingly, as inmates of the and murders of cruelties one judgments distinguish little to was nationals) and (most were allied of whom Ias judgments, other. These from the with practiced was system prece- show, useless equally proceed accused, were who knowledge private on the issue dent staff, their members customary interna- for violations of parties a course Such active participation. tional law. in then, court conduct, held was No. Akayesu, Case In Prosecutor pursu- “acting constitute this case (Trial Chamber ICTR-96-4-T, Judgement design to violate a common ance of defendant, serving as 1998), Sept. Everybody war.” usages of laws and charged with “bourgmestre,” local de- common any part such who took Criminals, x. The War Reports Trials War United Nations tois 16. The citation Court Military Government General case summary Commission Crimes guilty a reached Zone itself indictment, United States evidence based on any opinion. verdict without Law1 See Foreword counsel. arguments of executing the adopted by laws the commu- to killing dition Charles Ukobizaba and legislature, nal had control over ap- shooting at Tutsi refugees at the Com- pointment and removal of communal em- plex, Gérard partic- Ntakirutimana’s ployees, and had authority ultimate over ipation in the attacks included procuring police communal any gendarmes ammunition gendarmes for the at- put at the disposal. communes Judgement Complex tack and participation in ¶¶ 61-71. Bourgmestres signifi- also had the attack SS; 2) on Witness cant de powers over their constitu- relation to the facto that, Bisesero Indictment ents, ¶¶ like those of tribal chief. Id. 72- in addition killing Esdras and the wife Indeed, only indictment charges Nzamwita, pursing and shooting at Akayesu performed with violations during refugees, he transported attackers his time public as a official. Given the at Kidashya, headed group of armed widespread public use of employees and Muyira attackers at Hill in June facilities conduct, in this it is clear that was at Mutiti Hill in June 1994 with Akayesu was a state actor joint and a Interahamwe they where shot at refu- participant with other state actors. gees in a forest church, and partici- pated in attacks in Bisesero during the
Similarly, Prosecutor v. Bagilishema, period April to June 1994. (Trial Case No. ICTR-95-1A-T Chamber *76 ¶ 7, 2001), June Id. Musema, Prosecutor v. 491. This is a classic example joint of (Trial Case No. ICTR-96-13-T participation persons of Chamber acting pursuant to 27, 2000), Jan. a design. defendants common Moreover, were the defen- only charged with acts of dants direct were also criminal direct participants in the participation in crimes in offenses for they which they were which were convicted. joint participants, they significant were Judge Katzmann concedes that the de- public officials. Bagilishema, Mayor fendants in the ICTY and ICTR cases he commune, Rwandan of, was accused in- cites joint involved participants in viola- alia, ter arming individuals directing tions of Indeed, international law. virtual- attack, them to personally attacking and ly all of the defendants in these cases were killing persons, as well as other official state actors. They hold, most, acts encouraging mass killings. See Bagil- “substantial assistance with knowledge” ishema, Judgment annex A. Musema was satisfies the participation necessary for the the director of a state-owned tea factory, imposition of joint participants under the authority of the Rwandan Minis- sharing the purpose common violating try of Agriculture, who led and participat- norm of customary international law. This ed in attacks on using non-Hutus factory is entirely consistent with the Rome Stat- employees and equipment, personally shot ute. at refugees, ordered the rape one Tutsi Moreover, to the extent that any lan- woman, and personally raped another guage in opinions these suggest more than Musema, woman. See Judgment that, it rises only to the dicta, level of Finally, in Prosecutor v. Ntakirutima which peremptory norms of international na, Case 96-10-A, No. ICTR ICTR-96-17 law are not Indeed, made. the leading (App. Chamber 2004), Dec. Appeals Judge treatise Katzmann explains cites Chamber summarized the Trial Chamber’s that “decisions of international tribunals findings facts, in part, as follows: ... exercise considerable influence as an
The 1) Trial Chamber found relation impartial and considered statement of the to the Mugonei'o that, Indictment in ad- by jurists of authority light actu- rules, if need of those contents them.” arise which problems al before dicta. through obiter Peace Law: International Oppenheim’s eds. Watts & Arthur (Robert Jennings Y. at 590. Id. added). Dicta 1962) (emphasis ed. 9th cautioned Nevertheless, Judge Cassese which problems actual to the unrelated not be oblivious should that “one such warrant do not them before arise in- may Courts or abuses. flaws possible where so the more is all This deference. are not only discussions legal dulge using who by judges are inserted dicta decidendi, but ratio peripheral respect with make law positions their and sometimes academic simply prove also they preconceived have matters with pronounc- future courts misleading for commen- jurist and Yet, leading views. accu- This matters.” Id. the same ing on practice has observed tator aiding-and-abetting describes rately legal dicta obiter through “deal[ing] They do not opinions. in the ICTY dicta were, to incidental, that were issues strong enough a foundation constitute practice regular awas questions,” the main rejecting basis a future provide Cassese, The Antonio panels. of ICTY achieved consensus Reality, J. Vital Living and A ICTY: aiding- on the elements Rome Statute (2004). ex- Just. Int’l Crim. and-abetting. pro- that it practice for this given cuse have some might [that] “clarification vided Conclusion of inter- development future for the value reversing judgment As Antonio I dissent law[.]” criminal national for the reasons complaint the ICTY Cassese, President dismissal Nevertheless, I Trial Cham- above. of the ICTY Judge I elaborated Presiding Katz- on the judges *77 II.A of ber, one of in section concur who goes Judge Hall’s Furundzija, rejects that opinion in panel mann’s ICTY liability scope of that the explain: argument norm of international connection, may find much one violation to our own by reference reportedly be decided witty remark must in the merit as well section I concur ICTY law. member domestic by a senior made ar- opinion after Katzmann’s Prosecutor II.B of Office aiding-and-abet- its down the elements handed ticulates Appeals Chamber 25(b) & article Tad defined in liability judgment ting [Prosecutor lengthy elements These (App. (c) Chambers IT-94-1 Rome Statute. ic, No. Case J.)]: by, 1995) (Cassese, Presiding with, mandated if not consistent are Oct. said, ‘and concur steak,’ I also he for a law. gone customary international had ‘We However, opinion inter curiam per cow.’ II got whole in section system legal of action operate in cause the TVPA dismissing courts national many respects. opin- lacking curiam notably per reasons stated only anof absence things, the reason Among other for the additional ion and an interna un- subject law-maker are persons natural compulsory universal court with tional it. der many rules entails they are clear, when particularly open thus and are
customary origin, the need interpretations-hence
differing out spell gradually
for courts notes Prosser peace. vicarious was that ‘joint tort’ ing Talbot case. admiralty was an Talbot per- All action. for concerted com- privateer captain was the himself to commit in concert who acted sons of France. Republic missioned de- common of a pursuance trespass,