*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, 124 S.Ct. 2739.9 ATCA claims on plaintiffs’ missal of specifically One such identified principle concerns raised prudential basis case-specific policy the Court “a v. Alvarez-Ma In Sosa defendants.8 chain, political branches.” n. 124 S.Ct. deference to the 542 U.S. (2004), “[jjudicial Supreme policy This deference to L.Ed.2d 718 questions respects foreign Executive Branch different Court identified two long been established under prudential policy consider which courts should justiciability prudential hear doctrine known as deciding whether concerns in First, ‘political question’ White the ATCA. doctrine.” brought claims under KG, GmbH & Co. that courts should man Dorotheum held Court (2d Cir.2005). pru Another context F.3d prudential consider concerns doctrine that defendants raise determining recognize dential whether See, comity.” in this case Specifi the ATCA. is “international cause of action under Sosa, 124 S.Ct. 2739 explained e.g., that “the deter U.S. cally, the Court J., concurring) (suggesting that sufficiently (Breyer, a norm mination whether the exer courts should consider “whether support a cause of action should definite to must) (and, indeed, inevitably [ATCA] an cise of involve claims, dissent, adamantly court allow for a full Judge the district Korman his and, airing prudential concerns if it so opinion defer- our fails to show asserts that of, chooses, analysis engage in an and deci- Republic position of South ence to the issues, Africa, regarding, some- sion those and other position commands lacking. thing that heretofore support Department of has been Opinion of Korman at 306-11. State. *8 presents prudential analysis of consid- by Judge He reject proposition We endorsed 9. the erations, strength Court, decline to the of which we in a foot- that Korman the address, roadmap case, suggest a that well deciding a written while different note practice case, before the district future motion on how to decide this would instruct us Implicit at court on remand. Id. 295-306. Opinion Judge of which was not before it. by Instead, that throughout suggestion is the correct- we take the Su- at 295-96. Korman ing clarifying the error and language the district court's 21 preme in footnote of Sosa Court’s applicability value, to viola- simply observing of accessorial that there is at face as law, we have strong tions international somehow of the Exec- argument of that the views a derogation impact irrevocably, and to of South the the issue the case's utive Branch on of sovereignty, relegated plaintiffs’ foreign given "serious policy should be Africa's 21, Sosa, judicial processes weight.” the United at 733 n. 124 542 U.S. claims summary at respect, Judge Korman's 2739. We view dismissal With all due S.Ct. States. ig- premature. See regard footnote as position this is overstated and the behest of a Katz, College steps Cmty. Va. 546 U.S. any can Cent. v. nores fact that well before (2006). 945 126 163 L.Ed.2d plaintiffs' S.Ct. to the merits of be taken address comity country consistent with those notions courts this to civil hear suits for that respect lead each nation to the sover- aiding abetting violations of eign rights by other limiting nations globe.” international norms across the enforcement”). reach of its laws and their Furthermore, at 551. the district court doctrine, application This of which “or- expressly characterized its consideration of dinarily within the lies discretion consequences as fulfilling collateral its ” court,” “adjudication district asks whether “duty to engage ‘vigilant doorkeeping.’ by a [the] case United States court Sosa, Id. at 550 (quoting from U.S. at would working offend amicable relation- 2739); also see id. at 553. ships foreign country].”10 Bigio [a clear, duty As Sosa makes this is fulfilled (2d Co., Coca-Cola 448 F.3d Cir. of a decision federal court to exer- 2006) (internal omitted). quotation marks judicial cise its to a recognize discretion dismissing In plaintiffs’ complaints customary cause of action for a violation below, explicitly the district court re- law, an issue distinct from addressing frained from the defendants’ adjudication whether a given suit is arguments presented that the ATCA claim political by barred question doctrine. non-justiciable political question.11 In re Sosa, U.S. S.Ct. 2739. We S. Apartheid Litig., F.Supp.2d African see no reason read the district court’s (“Defendants at 543 n. 4 argue that part citation to this of Sosa as an indica- ... non-justiciable political the matter is a (and tion that the court contrary was also question. finding Given the Court’s disclaimer) to its explicit engaged in a defendants are entitled to relief on other question consideration of the political grounds, the Court need not address these prudential other To doctrines.12 the ex- remaining grounds for defendants’ mo- tent portions limited of the district (internal omitted)). tion.” citation Al- court’s discussion were addressed though the district court noted some collat- statements of interest submitted eral consequences that result might governments of the adjudication United States and claims, these kinds of Africa, South consequences Apartheid re primarily noted were S. African those “that would result from allowing Litig., F.Supp.2d 553-54, these parties agree deciding 10. preliminarily Sosa’s reference to text of whether it had “case-specific implicates deference” either hear case the ATCA. political question However, comity or international even if we construed the district doctrine. court's discussion of the “collateral conse- quences” recognize decision not Judge suggests Korman content of claims, plaintiffs’ cause of action in which the Defendant's Joint Motion Dismiss context consequences consideration of these (“Joint Motion”), court, cited the district appropriate, would have been remand would supports the view that the issue deference necessary still be because the district court's political to other branches was addi-essed be- recognize decision not a cause of action Opinion low. Korman at 307. We rested, might part, still have on its errone- motion, fail to see how the content *9 aof the ous view that the ATCA does not allow for basis for which Korman concedes the aiding abetting claims liability. Be- address,” id., district court "declin[ed] to cause we know cannot whether the district any support lends proposition that the recognize court have to would declined the district court reached the issues addressed plaintiffs bring cause of in action the absence therein. error, appropriate of that we believe it is to remand, It was error for the opportunity district court to consid- so can have the to 12. consequences er these collateral in the con- decide in this issue the first instance.

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 124 S.Ct. 2739 upon principal This case calls part us (“Congress intended the to furnish [ATCA] to determine whether the district court jurisdiction relatively for a modest set of in concluding erred that it not does alleging actions violations of the law of jurisdiction plaintiffs’ over claims nations.”); see also Filartiga Pena-Ira brought under the Alien Torts Claim Act la, (2d Cir.1980) (con 630 F.2d 887-88 (“ATCA”), I respectful- U.S.C. struing opening ATCA “as the federal ly believe that the district court erred in adjudication courts for of ... well-estab analysis plaintiffs’ its ATCA claims lished, universally recognized norms of in First, respects. two fundamental it con- law”), plaintiffs ternational and that a jurisdictional flated of action cause claim gauged against “must be the current analyses required the ATCA. As a re- law,” Sosa, state of international 542 U.S. sult, the mistakenly district court incorpo- 2739; at see also Filartiga, discretionary analysis rated into the de- (“[I]t 630 F.2d is clear that courts termination of whether it has interpret must it Second, erroneously ATCA. it inwas but as has evolved and aiding held that abetting does among exists the nations of the world to not exist under international law. day.”). generally The Court also endorsed the cautious approach long that we had I applied determining whether to hear provides See, The ATCA brought district cases “[t]he under the ATCA. e.g., Sosa, original jurisdiction 728-29, courts shall have U.S. 124 S.Ct. 2739 any civil only, action an alien for a tort (noting “great caution” must be exer committed in violation of the law of deciding nations cised in today’s “norms of

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 414 F.3d at 245 for cause action the modest number of “Filartiga’s holding that the reception of a potential international law violations with for private right creates a action ATCA time.”). personal liability at cus States treaties or violations of United Finding that “no in the two development law”). The tomary to centuries from enactment rejected this notion. See flatly Court [today] has categorically precluded federal Sosa, 713-14, 124 at S.Ct. U.S. claim recognizing courts from a Casto, The (citing William R. Federal an law of nations as element common Jurisdiction Over Torts Courts’ Protective 724-25, law,” id. at 124 S.Ct. the Law Committed in Violation Of held that federal courts retained the Court Nations, 467, 479, 480 18 Conn. L.Rev. to law of to ability “adapt[] the nations (1986)). in construed statute Sosa in- rights” by recognizing “further private “strictly jurisdictional a stead be judicially norms as enforceable ternational nature,” it “address[ed] in the sense that 728, 729, 124 today,” id. at 2739. S.Ct. power the courts to entertain cases importantly, norms en- Most these were subject.” a certain concerned with statutory by virtue of this forceable not 713, 714, 124 at S.Ct. 2739. U.S. private right or authorization of creation “a led holding explore This the Court assumed, action, previously we had question, this one about the interac- new through rather exercise “residual but at the time of its tion between [ATCA] to create causes of common law discretion” enactment and ambient law of law reme- federal common action under 714, 124 era.” Id. at S.Ct. 2739. Id. at of those norms. dy violation rejected the First argument 2739; 728-31, Court id. see also S.Ct. Congress jurisdic- the ATCA “as a passed Thus, clear 124 S.Ct. Sosa makes 2739. placed tional convenience on the shelf litigation in fact that all ATCA based law, state Congress for use a future common than rather a statuto- federal day, might, some authorize legislature that action. But a federal court’s ry cause of of causes of action.” Id. of action is power creation create these causes Rather, Indeed, historical limits. the Court not without “good “the suggested materials statute identified a number reasons conception mo- of the discretion practical intended effect the restrained court should exercise consider- law.” Id. at federal ment became *12 266 ” jurisdietional’

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. 159 L.Ed.2d 548 1350,”namely, § diction that under “feder (reversing holding the D.C. Circuit’s that recognize private al should not courts jurisdiction not lie did ATCA federal law claims under common for viola in without a of action in engaging cause any tions of international law norm with Moreover, quiry). it reflects the fact that acceptance less definite content among courts, it is Congress, not the that than para civilized nations the historical power possesses scope define digms familiar when 1350 enacted.” jurisdiction. the courts’ Whitmore v. Cf. 732, 124 Id. at S.Ct. 2739. Arkansas, 149, 155-56, 161, 495 U.S. 110 the Supreme holdings Based on Court’s 1717, (1990) (noting S.Ct. 109 L.Ed.2d 135 (1) in purely juris- that Sosa ATCA that court powerless “[a] federal to cre- (2) provides dictional and the common law ate jurisdiction” its own that a court action brought cause of for claims un- “employ untethered notions of jurisdiction, der that a federal court faced might good what public policy to ex- in alleging with a suit a tort violation of pand jurisdiction our in an appealing law international must undertake two dis- case”). Thus, might one question the ex- analytical inquiries. tinct One is whether tent to a which federal court should exer- jurisdiction lies under the ATCA. The oth- cise its judgment practical own about the er is a recognize whether common-law consequences of allowing go a suit to for- to provide remedy cause of action a for the ward in context jurisdictional of its alleged violation of international law. Re- when, inquiry according plain lan- analytical quiring this separation ATCA ATCA, guage of inquiry that is re- litigation comports general princi- solely by solved reference to international ple jurisdiction that whether exists and Indus., Inc., law. Harrison PPG whether a cause of action exists are two Cf. 578, 593, 446 1889, U.S. 100 S.Ct. N.Y., distinct inquiries. See TCG Inc. v. (1980) L.Ed.2d (noting that Plains, (2d courts City White 305 F.3d Cir.2002) intent, Congress’s should look to (noting and not the Supreme Court’s “ considerations, holding question policy construing ‘the whether a when fed- statute).2 eral creates a jurisdictional statute claim relief is not terms of a By con- (1) 1. comprises This “series of foreign policy reasons” verse consequences,” id. at change 727-28, "prevailing conception 2739; (5) 124 S.Ct. the lack of a gen- common law” such that is now "congressional there "a engage judi- mandate” to understanding area, eral is not so lawmaking cial in this id. much found or discovered as is either made S.Ct. 2739. Sosa, created,” 542 U.S. at 2739; (2) course, "rethinking may, role of the Federal courts decline to it,” making federal id. accept jurisdiction courts particular over a case in 2739; (3) recognition S.Ct. appropriate that "a deci- circumstances and in accordance private sion right to create principles guide action is one with the well-established legislative judgment great better left to merely in the suggest such I decisions. because cases,” 2739; majority of id. at only federal "have courts (4) "attempts by granted the fact that Congress,” Carlyle federal courts to to them Towers Ass’n, FDIC, craft remedies for the violation of new norms Condo. Inc. v. 170 F.3d (2d Cir.1999), of international law would raise risks of ad- their exercise common-law contesting by the recognized expressly for courts entirely appropriate trast, it is states; context of concerns such to consider a cause recognize whether

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- 70 F.3d at 238 al law. See quiring specific allegedly re- that the conduct engage “searching in a ing courts to verify repre- committed the defendants sued law to view” international partic- lies for sents a violation international law. subject matter Flores, action); ular see ap- importantly, Most the district court’s proceed that “courts must (noting proach consistent with Sosa’s broader in “de- extraordinary care and restraint” relationship be- characterization customary violate termining what offenses federal common law interna- tween law”); Filartiga, 630 F.2d *15 jurisdictional The tional law. ATCA’s (“The successfully of suits paucity 887 grant courts to hear “enable[s] federal readily is section maintained very category claims in a limited defined requirement of to the statute’s attributable 712, Id. at 124 by the law nations.” of the law nations’ alleging a ‘violation added). (emphasis a court S.Ct. 2739 Once threshold.”). at the jurisdictional [ ] alleged defendants’ determines “the Supreme conduct falls within one of modest It is consistent with ob- number of international law violations with Sosa. Court opinion Court’s potential personal liability” a a norm for in a footnote that “whether served part, a considers to cause of defendants’ then whether sufficiently support definite “the law a cause of provide a common would [of] action” raises “related consideration bring plaintiffs action” to enable the to international law extends whether 724, a their Id. at 124 2739. given for a claim. S.Ct. scope liability violation sued, the “inde permits if the The common thus perpetrator being to norm the pendent judicial recognition a actionable private actor such as defendant must, Sosa, norms,” but courts individual.” 542 U.S. corporation or cautioned, “vigilant door this as Sosa at 732 & n. S.Ct. 2739. While at 2739. liability keepers].” S.Ct. concerns specifically footnote do actors, recognized important role for general principle its is We of non-state explained we mestic law Kadic when question to the where equally applicable generally “law of nations does that the look determine whether scope to remedy of action private international law create causes a violation of for violations, each nation the its but leaves to and abettors. should extend aiders Sosa, defining remedies that are Furthermore, task of Court law violations.”4 on the available for international prior emphasis cases’ echoed our free, A 246. federal court is jurisdictional F.3d at of the ATCA’s narrowness discretion, of its common-law 2739 the exercise id. at grant. See for a a cause of action provide to decline to to furnish (“Congress intended the [ATCA] Sosa, law. See violation of international relatively modest set of jurisdiction for applies principle the same ATCAitself but 4. In Kadic we assumed that the action, following Sosa. common law created cause of see 732-33, 542 U.S. at 2739; Tel- Flores, cern.” 414 F.3d at 248. Recog- Oren v. Libyan Arab Republic, 726 F.2d nized as part of the customary law which (D.C.Cir.1984) (Edwards, J., con authorized and was applied by the war curring) (explaining that each state crimes trials following the Second World choose whether impose civil liability War, for it has been frequently invoked in law). violations of international But international law instruments as an accept- assure itself that it has to hear ed mode of liability. During the second a claim under ATCA, it should first half of the twentieth century and into this determine the alleged whether tort was in century, it has been repeatedly recognized fact “committed in violation of the law of in numerous international treaties, most nations,” U.S.C. and whether notably the Rome Statute of the Interna- this law recognize would the defendants’ tional Court, Criminal and in the statutes responsibility for that violation. creating the International Criminal Tribu- nal Former Yugoslavia (“ICTY”)

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 70 F.3d at 241. Kadic also 6. The United States also notes that the law held that existed under the ATCA governing the initial military commissions es- Cir.1992) (“The (9th na, 965 F.2d Charter, established The London Nuremberg prosecutions Nu- of the legitimacy Military Tribunal International allied acts by [the into of the ... on the nature entered rested remberg, was II, “acting the laws War acts that of World powers defendants] committed: Nations,” to the United of all interests criminal. define as nations of all civilized violations punish a tribunal establish rights and fundamental The universal Agreement See law. international Nuremberg beings identified human Major of the Punishment and Prosecution of the univer- ancestors ... are the direct Axis, European of the Criminals War as recognized norms fundamental sal and (hereinaf- E.A.S. Aug. pmbh, (citations omitted)); Theodor jus cogens.” Charter). previously haveWe ter London Meron, the Prosecution Reflections au- as an London Charter recognized Tribunals, International War Crimes customary interna- source thoritative (2006) (“[T]he Int’l L. J.Am. Flores, n. F.3d at 244 See tional law. drew Tribunals Tokyo Nuremberg Yousef, 327 F.3d 18; United Prisoner of 1929 Geneva on the heavily Cir.2003) (2d (citing nn. 39-40 Hague the Fourth War Convention war for definitions London Charter establishing the 1907 as Convention humanity under against and crimes crimes is, as applied law to be substantive —that Moreover, law). other general principles customary law bodies, and scholars courts, international law, state norms both as criminal out principles set that the recognized have liabil- criminal and individual responsibility by the applied London Charter omitted)). Indeed, (footnotes shortly ity.” signifi- Tribunal are Military International the initial war the conclusion after they garnered only because cant not trials, Assembly the General crimes they because but also acceptance, broad unanimously approved Nations crystallizing reflecting and viewed were of in- principles affirming “the resolution law. customary international preexisting by the Charter recognized ternational Republic Germa- v. Federal Princz See judg- *17 and the Nürnberg Tribunal of the (D.C.Cir.1994) 1166, 1174 ny, 26 F.3d of the Affirmation of the Tribunal.” ment explicit (“The time made the first trials Recog- Law International Principles of theretofore, as was unambiguous what Nürnberg Tri- of in the Charter nized declared, In- implicit in the Tribunal ” 188, 95(1), Doc. at U.N. bunal, Res. G.A. alteration, (citation, Law .... ternational (hereinafter 1946) (Dec. Nurem- 11, omitted)); A/236 marks quotation and internal I). Principles Resolution berg Republic Argenti- Blake v. de Siderman of recog- history this Court has beginning itsof international prosecute acts of to tablished including of war as applied law following September 11 attacks nized terrorism pre- abetting of as a mode nations which aiding part recognized law status, war, Trials scribes, Elements liability. See Crimes and for the conduct Commission, 32 C.F.R. Military by enemy well nations as rights and duties of (2003). of the 11.6(c)(1) § individuals.”). While the enemy limited to established was military tribunals military com- eventually that the found Court war or to "offenses law of the violations proceed, see power to lacked the missions law, that, body with that consistent Rumsfeld,-U.S.-, v. Hamdan 32 C.F.R. by military commission.” triable (2006), 2759, nothing 2749, 165 L.Ed.2d long been 11.3(a). war has The law of propriety of decision addressed in that law. international recognized as subset part abetting liability as including aiding and 27-28, 1, Quirin, U.S. parte Ex See jurisdiction. commissions' of the ("From (1942) very 87 L.Ed. The London Charter sevic, extended individual IT-02-54, No. Case Trial Chamber responsibility for jurisdic- crimes within its ¶¶ Decision on Preliminary Motions, 29-30 only tion not “[Headers, organizers, (Nov. 2001) (finding that “[t]he custom- [and] instigators” but also to “accomplices ary character [a] rule [of individual re- participating in the formulation or execu- sponsibility] is further supported its by tion of a common plan conspiracy to incorporation in a wide number of other any commit” of the crimes triable by the instruments,” including, inter alia^ Tribunal. London Charter art. 6. While ILC Principles). the Charter’s language “literally tak$n ... That the London Charter’s use of the would imply seem to the complicity term “accomplice” was understood in- rule did apply perpetrated crimes clude who those aid and abet a crime is action,” individual as opposed further confirmed by the applied plan, common practice the Tribunal “ap- war crimes trials held in the United States plied general principles of criminal law zone of occupation following World II.War regarding complicity.” International Law War criminals in the United States zone of Commission, Principles of International occupation were tried under Control Coun- Law Recognized in the Charter of the cil Law No. an act promulgated by Nürnberg Tribunal the Judgment of joint allied body that Tribunal, coordinated the gov- with commentaries, G.A.O.R., ernance post-war session, Germany. 5th Allied Supp. No. U.N. Doc. Control (Dec. ¶¶ Council Law A/1316, 20,1945) No. 10 (1950) (“ILC 126-27 Princi- in Trials ples”). War Accordingly, Criminals when the Internation- Before Nuernberg Military al Law (“ILC”) Tribunals Commission Under formulated Control Council Law No. “principles recognized in XVIII the Charter (William S. Co., 1997) ... Hein & (1949). and in the Inc. judgment of the Tribunal” Control Council Law direction No. 10 patterned General Assembly, after see the London Nuremberg Charter Principles I, and enacted un- Resolution der its authority omitted any indication with the of a declared purpose limitation on “give accomplice [it] effect.” liability. Flick Johnson, Principle VII pro- vides that (D.C.Cir.1949). 985-86 “[complicity in the commission Accord- of a against ing crime peace, Taylor, Telford crime, war or a Chief of Counsel crime against for War humanity ... Crimes and the is a Chief crime Prosecutor under for the law.” ILC States under Principles, the London Principle Charter, VII. The ILC’s the “underlying principles” formulation of *18 the principles is London considered to Charter be an au- and Law No. 10 “are thoritative rendering of identical” the formal and the hold- tribunals operating un- ings of the Nuremberg der each Tribunal “worked within and the same frame- consulted anas authoritative work” source with respect of cus- to “the basic principles tomary international law of the ICTY penal and international law.” Telford Tay- See, ICTR. e.g., lor, Prosecutor v. Akayesu, Report Final to the Secretary of Case No. ICTR-96-4-T, Trial Army on Chamber the Nuernberg War Crimes Trial ¶ Judgment, 1998) 2, 526 (Sept. (citing Under Control 10, Council Law No. at 107 Principle VII to establish (1949), that “partic- available at http://www. ipation by in complicity the most serious loc.gov/rr/frd/Military_Law/NT_final-re- violations of international porthtml. humanitarian Control Council No. Law 10 im- law was considered a crime as early posed as criminal liability anyone on who was Nuremberg”); see also Prosecutor v. Milo- “an accessory to the commission any of the United Brief for tribunals. criminal or abetted or ordered crime such Curiae, 21 n. 11. at as Amicus States 10, art. No. Law same,” Council Control added), tribunals and (emphasis II, sec. of the core accepted as one Having been 10 are Law No. Council II war Control War applying post-World of principles having as bodies trials, international criminal re- the individual viewed crimes liability. abetting vio- and aid and abet aiding of those who recognized sponsibility No. Furundzija, repeatedly Case law of international lations See Prosecutor thereaf- Judgment, treaties in international IT-95-17/1, reflected Trial Chamber (review- major agree- 1998) (Dec. 10, treaties include These ¶¶ ter. 195-225, 236-40 human addressing fundamental law). ments case ing the torture, apartheid, as such rights concerns acknowledged previously have We Na- United See slavery, genocide. and Law No. Council that Control contribution Torture and Oth- Against tions Convention it have applied tribunals 10 and the Treat- Degrading or Cruel, Inhuman er law. customary international made 1984, 10, Punishment, 4, Dec. art. ment our conclusion Flores, support 85; International Conven- 1465 U.N.T.S. pro- law rules “[c]ustomary international and Punishment Suppression tion on the includ- humanity, against crimes scribing 111(b), Nov. art. Apartheid, the Crime crimes, been and war genocide, ing 243; Supplementa- 1973, 30, 1015 U.N.T.S. World since against individuals enforceable Slavery, the Abolition on ry Convention 18, pointed 244 n. II,” at we 414 F.3d War Prac- and Trade Institutions the Slave Taylor’s 7, General Brigadier specifically Sept. art. Slavery, tices Similar signifi- legal major 3; that “the Con- assessment U.N.T.S. 18 U.S.T. lies judgments the Law No. and Punishment cance of Prevention vention on the 111(e), judgments Genocide, Dec. art portions in ... those of the Crime (hereinafter responsi- personal 9, 1948, the area dealing 78 U.N.T.S. crimes,” Taylor, Convention). Aiding abet- law international bility for Genocide Flores, in recognized 414 F.3d liability in has been quoted ting supra, at general to crimes Govern- addressed treaties 244 n. 18. United bribery as case, similarly ac- concern such international ment, amicus this business officials played foreign the role knowledges trafficking.7 See drug aiding and transactions availability of establishing the Bribery of For- Combating Convention liability in modern international abetting Flores, States,” several, concern do not these treaties that some 7. The fact emphas- (internal quotation marks abetting, but aiding and at 249 directly criminalize binding omitted), join parties to where states require criminalize state es instead law, see, e.g., Nations mode agreement domestic to enforce a in their Organized Against law, Transnational Convention Crime, decision reflects their domestic 55/25, 5-6, U.N. several, G.A. art. Res. mutual, and is concern matter 8, 2001) ("Each (Jan. State Doc. A/RES/55/25 subject custom- considered properly thus legislative and other adopt Party such shall ("Matters of id. law. See ary international *19 as necessary to establish may be measures in- are those States between concern mutual abetting, aiding, facili- ... offences criminal or towards performed volving actions States' of seri- counselling the commission tating or of sever- Matters regard to other.... organized criminal involving ous crime matters in among concern al as relevant their value not group.”), does limit independently inter- separately and States are law. Cus- customary international sources quotation marks (citation and internal ested.” "those law addresses tomary international omitted)). mutual, merely wrongs are of eign Public Officials in International Busi- planned, instigated, ordered, or committed Transactions, ness 1(2), art. 17, 1997, Dec. otherwise aided and abetted plan- reprinted in (1998); 37 I.L.M. 1 ning, preparation or execution” of a crime. Nations Convention on Psychotropic Sub- Statute of the International Tribunal for stances, art. 22(2)(a)(ii), 21, 1971, Feb. 32 the Yugoslavia, Former 7, art. S.C. Res. 543, U.S.T. 1019 U.N.T.S. 175. More re- 827, U.N. Doc. 1993) 25, (May S/RES/827 cently, aiding and abetting has been in- (hereinafter Statute); ICTY Statute of the cluded in a number of the treaties con- International Criminal Tribunal for Rwan- cerning organized crime terrorism, da, 6, art. 955, S.C. Res. U.N. Doc. S/RES/ which have prominent become concerns of (Nov. 1994) (hereinafter 8, ICTR Stat- the international community. See United ute). Nations Convention Against Transnational As with the Charter, London Organized recog- Crime, 5(l)(b), art. G.A. Res. nition of aiding and 55/25, abetting 5-6, liability in U.N. (Jan. Doc. A/RES/55/25 ICTY Statute 8, 2001); particularly significant be- International Convention for the cause the Suppression “Individual Criminal Responsi- the Financing of Terror- bility” ism, section 2(5)(a), art. of that statute opened for signature intended Jan. 10, 2000, codify 270; existing 39 I.L.M. norms customary in- International Con- vention ternational law. for the Suppression report his the Secu- Terrorist rity Bombings, 2(3)(a), art. Council regarding May creation of the 256; ICTY, U.N.T.S. see the Secretary-General also Protocol Against explained the Smuggling Migrants “in by Land, assigning to Sea the International Tri- Air, bunal Supplementing the the task United Na- of prosecuting persons re- tions Convention Against sponsible for Transnational serious violations of interna- Organized Crime, (l)(b), art.5 G.A. tional law, Res. humanitarian Security 55/25, U.N. (Jan. Doc. Council would not A/RES/55/25 be creating purport- 2001). The United Nations Security ing to ‘legislate’ that Rather, law. Council (“Security Council”) also appears International Tribunal would have the task to have recognized importance of ac- of applying existing international humani- complice liability in the international re- tarian law.” Report the Secretary-Gen- sponse terrorism, directing states in the eral Pursuant to Paragraph 2 of Security wake of the September 11 attacks to “[e]n- ¶ Council Resolution 29, U.N. Doc. sure any person who participates in 1993) (May 3, (“Sec’y-General S/25704 Re- the financing, planning, preparation or port”). Indeed, law princi- perpetration of terrorists acts or in sup- ples “require[d]” that the juris- Tribunal’s porting terrorists acts is brought to jus- diction be limited “rules of international tice.” S.C. Res. ¶2(6), U.N. Doc. humanitarian law which are beyond any 28, 2001) (Sept. S/RES/1373 (emphasis part doubt of customary [international] added). ¶ law.” Id. 34. Accordingly, provision Aiding and abetting liability aiding continues abetting liability in the ICTY be recognized and enforced in internation- statute reflects a determination both al tribunals. The Statutes creating the the Secretary-General and the Security ICTY and ICTR were adopted by Council, resolu- which approved the Secretary- tions of the Security Council. In their report General’s when it enacted the stat- respective sections on ute, individual criminal such is firmly established responsibility, both impose statutes indi- in customary international law. The inclu- vidual liability on any person “who sion of substantively identical language in *20 (c) facilitating of purpose For the presumably the ICTR creating statute aids, crime, a of such commission determination.8 a similar reflects in its com- assists or otherwise abets authoriza- statutory with its Consistent commission, attempted or its mission ap- and recognized tion, the ICTY means for its including providing vio- liability for abetting aiding and plied commission; [or] See, e.g., law. international of lations (d) contributes to way Judgment, any In other Chamber Trial Funmdzija, Tadic, attempted commis- or ¶¶ Case commission 249, 275; Prosecutor by group a a crime Opinion of such IT-94-1-T, Trial Chamber sion No. 735, pur- ¶¶ a 689-92, 730, acting common persons Judgment, and Furthermore, be in- 1997). has done shall contribution pose. Such (May liabili- that such and shall either: confirming after tentional only so law. As customary part ty was further- (i) aim of made with the Be required it was recognized, Tribunal criminal activity or criminal ing the such for objective basis “the determine where such group, of the purpose a matter as responsibility individual involves the activity purpose ... since law customary international crime within commission of a only empowered is Tribunal International Court; or jurisdiction law humanitarian apply (ii) knowledge of the Be made customary any doubt ‘beyond is to commit group intention of the ” Tadic, Opinion Chamber Trial law.’ crime[.] ¶ Sec’y Gen- (quoting Judgment, (d). is 25(3)(c), The Rome Statute Id. art. ¶ 34). there- Tribunal Report eral in- present for the significant particularly thoughtful probing a fore conducted in- because, sources unlike other quiry law sources of international analysis it articulates legislation, ternational aiding confirm that early decisions its abetting aiding and for required mens rea in cus- recognized abetting liability that, makes clear liability. The Statute Furundzi law. See tomary international com- assistance rendered than 190-249; ¶¶ other Judgment, Chamber ja, Trial group persons a a crime mission Judg Tadic, Opinion Chamber Trial defen- purpose, a a common acting with ¶¶ ment, 661-91. abetting aiding and guilty dant of the Statute recently, Rome More so only if he does crime of a commission (“Rome Stat- Court Criminal International com- facilitating the the purpose “[f]or 2187 U.N.T.S. ute”), July 25(3)(c). Id. art. of such crime.” mission criminally shall be person provides Statute, I Rome upon the drawing for punishment and liable responsible construed to be yet it has recognize if of the ICC crime within Court; its Criminal by the International person: been before never 3 had common article take a ''elect[] did Security Council 8. The Secretary-General Report of criminalized. approach to choice expansive more Security Council punishable Paragraph 5 of respect to applicable law” with Pursuant ¶ viola- by providing for UN doc. S/1995/134 violations Resolution common II Protocol 13, 1995). Additional (Feb. respect tions to individual With despite the Convention 3 of the Geneva Security article Council though, the responsibility, yet "not II article had Additional fact that customary adopting adhered to of cus- recognized part universally been Statute. in the ICTY language used law,” and violations tomary international *21 precise contours and the extent pose criminal liability on a bank officer may differ from customary who was alleged loan, to have “made a remain, knowing law thus or having good somewhat uncertain. reason to believe Nevertheless, the borrower use signed w[ould] Statute has been the funds financing enterprises by in viola- 105, [conducted] 139 countries and ratified in- tion of either national or international cluding most of the mature democracies of law,” proven but not to have made the may It world.9 therefore “by be taken loan with the purpose facilitating the ... large as constituting an authorita- enterprises’ illegal activities.11 United tive expression of legal of a views (The Stat esv. von Weizsaecker Ministries great number of States.” Furundzija, Case), in 14 Trials War Criminals Be ¶ Trial Chamber Judgment, 227. the Nuernberg Military Tribunals fore Furthermore, the Rome Statute’s mens Under Control 308, Council Law No. 10 rea standard is entirely consistent with the (William Co., 1997) S. Hein & Inc. application of accomplice liability under (1949). Meanwhile, those who assist the sources of international law discussed commission of a crime with purpose above.10 For example, in the Ministries facilitating that crime would subject Case conducted under Control Council aiding and abetting liability under the stat 10, Law No. the tribunal declined to im- utes governing the ICTY and My ICTR.12 9. The United States not ratified the Rome 63 S.Ct. example, 1265. For the Court held Treaty for any reasons unrelated to concern a conspiracy charge might against not lie over the definition aiding-and-abetting. company engaged in a "continuous course See sales, Brief for the United States as Amicus made strong either suspicion with Curiae, 14; at 24 n. see also Presbyterian buyer’s wrongful use or with knowledge, Inc., Church Sudan v. Energy, Talisman but without stimulation or active incitement 331, F.Supp.2d (S.D.N.Y.2005) 339-40 8, purchase.” n. 63 S.Ct. 1265. ("[T]he United hand, States feared pow- 'unchecked On the other sales quanti- of unlimited er in prosecutor’ the hands of the that could "by ties stimulated high-pressure all the meth- ‘politicized lead prosecution.' ”). Indeed, ods, legal always if not appropriate sale appears Amicus Brief commodities,” to endorse ele- 712, of free id. at 25(3). ments out set in Article Brief for the would support suffice to charge. such a Curiae, United States as Amicus at 26. example Another that would suffice is the case, Zyklon B Trial Bmno Tesch Two 10. The same standard adopted by Others, was also in 1 Law Reports War Criminals 93 the United Nations (William Transitional Administra- Co., 1997) S. Hein (1946), & Inc. tion (“UNTAET”). in East Timor See UN- principal where defendant only sup- not Reg. 14.3(c). TAET plied No.2000/15 prussic acid to the S.S. but undertook to its train members how it could be used to kill 11. There are occasions when this intent could beings. human Id. at 95. be inferred from such sales. In Direct Sales States, Co. v. United 319 U.S. 12.These Tribunals would also liability extend (1943), 87 L.Ed. 1674 merely individuals who "knowledge had Court held that the goods sale of restricted that [their] acts assist commission of the harm, with capacity an inherent specific such as crime of the principal.” Prosecutor v. opiates case, involved Vasiljevic, IT-98-32-A, combined Case No. Appeals factors, with other prove ¶ be sufficient to (Feb. Judgment, 102(h) Chamber 2004). that the seller was engaged in a conspiracy Any individual who acts purpose with the buyer. with the Id. 63 S.Ct. facilitate the commission of a crime would Nevertheless, it observed that every “not in- necessarily Thus, act with knowledge. such I stance sale goods, of restricted harmful as do view the articulation of a broader opiates, in which the seller knows the definition the ICTY as detracting my buyer intends to use them unlawfully, position will accordance support charge conspiracy.” Id. at purposefulness standard is well-established

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- 124 S.Ct. 2739 (articulating the standard ful and not necessarily justifica- without for courts hearing claim “any based on the tion. id. (“[T]he See at 590 absence of an present-day law of nations” (emphasis add- international law-maker and an interna- ed)). regard, this I note that there is tional court with compulsory ju- universal some support, principally in tribunal deci- risdiction entails that many rules are not sions from ICTR, the ICTY and for a clear, particularly when they are of cus- definition of aiding and abetting that would tomary origin, and are thus open to differ- lead to liability where an individual pro- ing interpretations the need for —hence vides substantial assistance with “the gradually courts to spell out the contents knowledge that the performed acts by the rules, of those if need be through obiter aider and abettor assist the commission of dicta.”); see also 1 Oppenheim’s Interna- the specific crime of the principal.”14 (Robert tional Law: Peace 41 Jennings & Prosecutor v. Vasiljevic, Case No. IT-98- eds., Arthur ed.1992) Watts 9th (noting 32-A, Appeals Chamber Judgment, “in view of the difficulties surrounding ¶¶ 102(i)-(ii) (Feb. 25, 2004); see also Fu- the codification of law,” inter- rundzija, Trial Chamber Judgment, national expected tribunals are “fulfil, ¶¶ 249, 275; Tadic, Trial Opinion Chamber inconspicuously but efficiently, a large part ¶¶ and Judgment, 689-92, 730, 735, 738. of the task of developing international sure, To be I acknowledge limitations law”). “may But it also prove simply aca- the extent to which we may rely on the demic and sometimes also misleading for decisions of the ICTY and ICTR for the future courts pronouncing on the same present purposes.15 Those decisions arise Cassese, matters.” supra, at 590. out of completely distinct factual contexts and often Nevertheless, involve defendants might opinions who of the ICTY have been convicted on provide alternate ICTR theories evidence of the state of of liability. Moreover, as a customary scholar and international law. As a leading participant noted, ICTY panels treatise explains, “decisions of internation- (and Tribunal occasionally al conscious- tribunals ... exercise considerable influ- ly) engaged in discussions “peripheral ence as an impartial and considered state- the ratio decidendi a case” in order to ment of by jurists the law of authority in Chamber, 14. Appeals The which is applied shared interpretation 6(1) of Article ICTR, both the ICTY and the has made Statute.”). clear the ICTR that the same relating to modes of liabili- ty applies in both Tribunals. See Prosecutor 15. possible I note a tension in the tribunals' Ntakirutimana, ICTR-96-10-A, Case Nos. aiding definition and abetting under which ICTR-96-17-A, Appeals Judgment, Chamber the necessary assistance, mens rea is knowing ¶ (Dec. 13, 2004) ("Given the fact that Vasiljevic, Appeals Judgment, Chamber both the ICTY and ¶ the ICTR 102(ii), mirror yet requires that the act of assistance identifying articles liability by modes of be "specifically directed to assist ... which an individual can incur criminal re perpetration crime,” specific of a 102(i). Vid. sponsibility, Appeals Chamber satisfied express how, I all, no view on if at that the jurisprudence ICTY should be possible might tension be resolved. artic- higher standard light ularly arise before problems actual light Statute, I mindful am 41; in the Rome ulated see supra, Oppenheim’s, them.” tribunals.16 of these the conclusions In- Public Brownlie, Principles of Ian “the (noting that at 19 Law ternational ‘subsid- the label D. significance

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, 114 128 L.Ed.2d 119 conclusion. (1994), precludes us from recognizing aid-

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, 70 F.3d at 241-42. The relevant exist as a matter of customary interna- inquiry for establishing jurisdiction under tional law and thus that subject federal ATCA, as our clear, case law makes jurisdiction is matter did not lie. This con- whether the alleged by conduct plain clusion was error. As clear, Sosa makes tiffs violates a norm “that States universal a federal court must turn to international ly by, to, abide or accede[ ] out of a sense law divine standards of primary liabili- of legal obligation and mutual concern.” ty under ATCA. To derive a standard Flores, 414 F.3d at 248. Whether a treaty liability, however, accessorial a federal that embodies that norm is self-executing court should consult the federal common to, of, relevant but is not determinative law. that question. I

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, 705 F.2d at 477. The Halber aiding and abetting primary a violation of stam Court adopted then applied and international law.5 I agree with the § factors enumerated 876 to assess Halberstam Court that person “a who as whether the defendant’s encouragement or sists a may tortious act be liable for other assistance was sufficiently substantial to reasonably foreseeable acts done in con support liability. “The sug Restatement nection with it.” Id. at 484. gests five factors in making this determi Under a proper application §of 876 to nation: ‘the nature of the act encouraged, ATCA aiding claims, civil and abetting lia- the amount of given by assistance the de bility should be only found where there is fendant, presence his or absence at the evidence that a defendant furthered the tort, time of the his relation to the other ” violation clearly of a established interna- tortfeasor and his state of mind.’ Id. at tional norm in (1) law one of ways: three 478 (quoting (Second) Restatement by knowingly and d) substantially (alteration assisting Torts 876 cmt. a omitted). principal tortfeasor, In the such as a foreign almost gov- quarter-century since Hal- ernment decided, berstam was or its many proxy, an state courts commit act and Courts, Circuit including violates a clearly Second established interna- Circuit, have adopted (2) norm; tional Restatement’s encouraging, ad- aiding and abetting standard. Following vising, contracting with, or otherwise soli- ” agree I Katzmann that Central abetied the French fleet in their attack on a Bank, 164, 511 U.S. at 114 poses British settlement. Neutrality, Op. Breach 1 finding no aiding bar to abetting and Att'y added). (emphasis Gen. at 58 Attorney ATCA, albeit for a different reason. General Bradford furthermore referred to an Bank, In Central Supreme April Court held that Proclamation issued George the Securities Acts of 1933 and 1934 did Washington which declared that "all those encompass aiding abetting and liability. 511 who should render pun- themselves liable to U.S. at Noting S.Ct. 1439. that the nations, ishment under the laws of by com- provided Acts for some forms of "indirect” mitting, aiding abetting or against hostilities” liability, Court reasoned that foreign merchants of peace nations at "Congress knew impose how to aiding and with the United States would not receive the abetting liability when chose protection to do so.” Id. of the United States. Id. at 59. 114 S.Ct. 1439. reasoning era, This same moreover, Cases indicate that ATCA, apply cannot whose textual brev- secondary liability recognized as an es- ity legislative and dearth of history leave us part tablished of the federal common law. with inconclusive Congress's evidence of Jansen, in- (3 See Dall.) 133, Talbot 3 U.S. tent to include or aiding exclude abetting (1795) L.Ed. 540 (holding a defendant liable liability. however, appear, It would that the aiding capture unlawful of a neutral Founding Generation ship nevertheless understood restitution); ordering Henfield's encompassed ATCA aiding Case, abetting 11 F. (C.C.D.Pa.1793) Cas. liability. example, For Attorney (Chief General Jay) Justice John grand (charging a opinion, Bradford’s 1795 Neutrality, Breach jury that United States citizens held Op. Att'y (1795), Gen. opined he liable under the laws United States for the ATCAallowed civil damages suits for "committing, aiding abetting hostilities” in those who had part" in violating "taken inter- nations); violation of the law of see also Con- Sosa, national law. 542 U.S. at gress’s 30, 1790, April Act of 1 Slat. 114 fact, S.Ct. 2739. opinion (1790) Bradford’s spe- (deeming "an accessary [sic] to ... cifically covered those American piracies” citizens who anyone "knowingly who and will- "voluntarily joined, conducted, aided ingly piracy). aid[ed]” a played knowing defendant to commit tortfeasor principal citing clearly role the violation substantial or constructive having actual act while Fur- law norm. recognized tortfeasor principal knowledge that *33 consequences pre- customary thermore, collateral the clearly established will violate dissent re- process and the by law norm dicted defendants (3) facilitating act; making by when or considerations that main relevant completing rights violations na- the common law judgments, of human as the commission these with tortfeasor limited principal the for a but inquiry the providing ture of allows instrumentalities, or services tools, practical meaningful consideration or con- actual with liability violations commit those extending ATCA consequences of tools, in- those knowledge that structive case. particular each in context of (or only strumentalities, will or services abetting aiding and intend Because I be) in connection with used could way, only this limited attach liability to purpose. il- examples provide it helpful I think understand panel of this All members I in which be- ways three lustrating the business transact must corporations liability for may incur a defendant lieve I not un- world. do perfect than in a less of custom- abetting violations aiding and however, argue, defendants derstand type The first law. ary international a license require imperatives that business designed to abetting liability is and aiding law. of international in violations to assist principal tortfeasor case of capture the to ex- defendants Rather, I understand a defendant seeks assistance who recognition concern that press that violates international an act commit liability could abetting and aiding ATCA extrajudicial killing norms, as law such merely liability for corporations expose figure. The sec- political opposition of an repres- with in countries doing business circumstances to cover designed ond in activi- regimes participating or sive and abettor alleged aider where hindsight, that, twenty-twenty with ties security ser- having purchased accused indirectly linked to have been can be said security that the knowledge vices with the Judge I share abuses. rights to human to, in- likely commit would, were forces however, that understanding, Katzmann’s fulfilling their law violations ternational are corporate and actors parties private raised in allegations The mandate. I the ATCA. liability under subject Unocal, and Wiwa F.3d cases II.D.2 of in Part concur therefore Co., 96- No. Petroleum Dutch Royal to the extent opinion Katzmann’s (S.D.N.Y. Civ-8386, 2002 WL 319887 principle legal general recognizes this 2002), reached Feb.28, would be even obtains abetting aiding and Unocal, and alleged aider In prong. incapable of actor is culpable where the having accused corporation abettor prin- as a legal norm the relevant violating mili- from a security services purchased his II.D.3 of in Part I concur' cipal, and develop its oil to further government tary impor- raise in full. Defendants opinion knowledge that operations, liability, but such about tant concerns inter- likely commit security forces would favor counsel in do not those concerns fulfilling violations national liability, corporate rejection per se Wiwa, 938-42. mandate. 395 aiding liability, and private party the defendants alleged that plaintiffs In- the ATCA. liability under abetting security government aided directed careful narrow and stead, they require the pro- rights by violating plaintiffs’ in forces liability to cases of such extension viding logistical support, transportation, gations culpable conduct. Opinion of weapons to government security Judge Korman at 330 (criticizing Restate- forces to ensure that the corporation’s ment aiding-and-abetting standard business activities proceed “vague could “as usu- and inappropriate in present Wiwa, al.” context”). No. 96-Civ-8386, 2002 WL Standards such as “substantial 319887, at *2. assistance” and “actual or constructive knowledge” hardly “newly minted,” Zyklon B provides Case a clear however, judicial interpret- decisions example of when liability would attach in ing the meaning of these standards in the circumstance, third when a defendant context of individual *34 will provide cases provides tools, “the instrumentalities, or guidance to courts considering accessorial services to commit rights] [human viola- liability See, under the ATCA. e.g., Henry tions with actual ... knowledge those v. Lehman Inc., Paper, Commercial tools, instrumentalities or services will be (9th Cir.2006) (applying Cali- (or be) only could used in connection with fornia law on the “knowledge” requirement purpose.” See Trial of Bruno Tesch 876); §of Aetna Cas. & Sur. Co. v. Leah (The and Two Others Zyklon B Case), 1 Co., ey Constr. (6th 219 F.3d 535-37 Reports Law Trials War Criminals 93 Cir.2000) (applying knowledge and sub (1947) (British Ct., Military Hamburg, stantial requirements assistance § 876); 1-8, 1946). Mar. case, In that Bruno In re Temporomandibular (TMJ) Joint Tesch was the sole owner aof firm that Implants Prods. Liab. Litig., 113 F.3d Zyklon B, distributed highly dangerous (8th Cir.1997) (addressing “sub- poison gas, to Auschwitz and other concen- stantial assistance” requirement in context tration camps from 1941 to 1945. Zyklon of products liability litigation); Rochez B had previously been used as a disinfec- Bros., Inc. Rhoades, 527 F.2d in public tant buildings. The evidence (3d Cir.1975) (“It has been held that liabili- showed that Tesch himself proposed using ty for aiding and abetting may be found on gas to exterminate beings, human un- less than actual knowledge of illegal dertook to train the S.S. in this “new activity. How much or how little knowl- method killing,” that, and was aware edge seem vary would with the facts of June gas was being used for such (citation each case.” omitted)). Common a purpose. Id. at 95. The Prosecutor law decisionmaking proceeds through the successfully argued that “knowingly to incremental, analogical application of supply a commodity to a branch of the broadly-stated principles, and it is there- State which was using that commodity for fore not amenable to the formulation of the mass extermination of Allied civilian finely detailed rules in the manner of a nationals was a crime, war and that the regulatory code. Contrary to the dissent’s people who did it were war criminals for suggestions, however, the contextual na- putting the means to commit the crime ture and factual sensitivity of common law into the hands of those who actually car- judicial rulemaking takes account of the ried it out.” Id. at 94. “practical problems” that can result from ill-designed rules, legal

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 70 F.3d at 249 (1949). Indeed, the in defendant that case quotation omitted))). marks Thus dis- was an officer of the Bank, Dresdner trict court must weigh the Statement of which is a named defendant in this case. Interest, as well as other facts, relevant in theory The of liability was that the Dres- applying the Baker v. Carr factors and dner Bank provided loans to businesses exercising its own discretion before decid- knowing that the funds would be used to ing whether to dismiss a complaint. finance enterprises that employed slave labor. acquitting corporate the officer

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) 159 L.Ed.2d 1 (discussing foreign affairs.” Id. The Court continued: the State Department’s use of state many “Since attempts by federal courts to ments of interest cases involving the craft remedies for the violation of new Foreign Sovereign Immunities Act of norms of international law would raise 1976, 28 U.S.C. 1602 et seq.). risks of adverse foreign policy conse Id. at n.21,124 S.Ct. 2739. quences, they undertaken, should be if at all, with great caution.” 727-28, Id. at The Executive Branch’s view of the im- Then, S.Ct. 2739. focusing on the case pact of these cases on foreign policy is set before us on this appeal, forth at some length in a letter to the Court continued: court, district dated October For example, there are now pending in Legal Advisor of Department Federal District Court several class ac- State. The letter advises “that continued

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). 7 L.Ed.2d 663 In port for the Court’s suggestion that Whiteman, we directed the dismissal of there ais argument” “strong that execu- the complaint without examining each of tive branch views “in such cases” the Baker tests because it was clear that entitled to “serious weight.” the case test, met the fourth namely that “ Beth Stephens, ‘a v. Alvarez-Machain, court’s Sosa undertaking independent reso- lution’ “The Door this claim Is impossible Ajar” is Still ‘without Human expressing lack of respect Rights Litigation due’ the Courts, U.S. Executive Branch.” (em- 431 F.3d at 72 Brook. (2005). (Professor L.Rev. (citations phasis deleted) omitted). Stephens and a fellow academic coau-

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. 124 S.Ct. 2739. More any event, that, the force than advice Court advised us State Department the instant cases “there is a enhanced strong argument that, fact federal courts should give doctrine of internation- serious weight to the al comity, Executive Branch’s dismissal justified would be sole- view the case’s impact on foreign poli- ly out of deference to Republic cy.” Indeed, commentator, one who South Africa. Comity, a doctrine more has emphasized the need for a “searching easily invoked defined, than may be viewed review” of the Bush administration’s posi- as either “the degree of deference that a tions human rights cases, has acknowl- domestic forum pay must act of edged that present cases are different: foreign government not otherwise binding [These] cases reflect the unique history forum,” on the Laker Airways Ltd. v. of South Africa and its transition from Sabena, Belgian Airlines, World 731 F.2d apartheid to democracy. The govern- 909, 937 (D.C.Cir.1984), or as “a discretion- ment replaced apartheid regime ary act of deference a national court to was recognized internationally as repre- decline to exercise in a case sentative both of the majority of the properly adjudicated in state, a foreign and, nation in particular, of the victims comity so-called among courts.” In re past human rights abuses. tran- Maxwell Commc’n Corp., 93 F.3d sition included a negotiated process by (2d Cir.1996). A court’s exercise of which abuses would be investigated and discretion to dismiss a suit comity

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 157 F.3d at 160 might be imag- jurisdiction’s determine which laws ined where a foreign sovereign’s policies implicated interests great- were so legitimately est affronted the con- extent. duct of litigation in a United States forum In re Koreag, Controle S.A., et Revision that dismissal is warranted without regard (2d 961 F.2d Cir.1992). In this

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. 11 L.Ed.2d 804 473 F.3d 357 (D.C.Cir.2007) (Kavanaugh (1964).

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, 630 F.2d at 887-88 (comparing the nature of their allegations against vari- O’Reilly de Brooke, Camara v. 209 U.S. ous defendants, changes affect 45, 52, 28 S.Ct. (1907) L.Ed. 676 how the district court ultimately decides to (question of jurisdiction ATCA disposed of resolve these issues.” Per Op. Curiam merits”) “on the (Holmes, J.), Bell, ante at (citing 7-8, 14-15). Tr. 327 U.S. (general federal Khulumani plaintiffs, however, did not question jurisdiction not defeated by the seek leave to file an amended complaint possibility that the averments in the com- and Judge Sprizzo has previously granted plaint may fail to state a action)) cause of the Ntsebesa and Digwamaje plaintiffs (emphasis in original); Kadic, accord 70 leave to file a second amended complaint 238; F.3d at Bigio, 239 F.3d at 447. After alleging that the defendants aided and Sosa, “a more searching preliminary re- abetted the violation of norms of custom- view of the merits” necessarily includes ary international Moreover, law.5 per determining whether plaintiffs curiam opinion does not identify a single adequately pled a violation of the law of flaw the current complaints that would nations over which it is appropriate for the need to be cured an amended com- district court to subject exercise matter plaint, and the transcript of the oral argu- jurisdiction. ment does not any reflect offer by the Again, even if I am wrong on score, plaintiffs to amend their complaints any we should consider the issue of case-specif- significant way. Indeed, plaintiffs ex- ic deference at this juncture because “the pressly argued against the standard that adjudication continued of the ... matters Judge Katzmann adopts in section II.B of risks potentially serious adverse conse- his (which concurring opinion I have quences for significant interests of the joined) for imposing liability on the defen- United States,”, A01090, threatens our re- dants for aiding-and-abetting in violation lations with Republic Africa, South of the norm of international law. poses “continuing tensions in our rela- tions” with the other countries where Nevertheless, relying on the amended many of the defendants are incorporated complaints that the plaintiffs may per- A01091. Just as the Seventh Circuit file, treat- mitted to per curiam opinion de- ed the FTAIA jurisdictional as a statute in clines “to determine whether plaintiffs order to avoid “offending the economic have pled adequately a violation of interna- policies of other nations” during the pen- tional law sufficient to avail themselves of dency of case, United Phosphorus, under the ATCA....” Per Cu F.3d at we should do so here. Op. riam ante at 260-61. The per curiam April 5. On before decided, Sosa was Joint Motion at 5 n. Complaint ''[flhat Judge Sprizzo permitted the Ntsebeza plain- never properly filed.'' S. re Apar- African tiffs to file a third amended complaint. In re theid Litig., F.Supp.2d at 544 n. 8. Never- S. Apartheid Litig., F.Supp.2d African theless, it was virtually identical to the one 544 n. 8. While some defendants received a previously filed. Id. copy of such complaint 19, 2003, on May disposi- peculiar in this join I decline holding of our the face inso does opinion desper- seek colleagues my tion, by which plead properly failure Bigio on which ground easiest *53 ately to avoid that means nations of law the of violation a to of deference appeal this to resolve —that may we nor court] district [the “neither of South ” Republic the of judgment the F.3d further.... matter the consider Depart- State by our Africa, supported obligation its upholding of Instead at 447. our of are none cases ment, these that juris- subject matter whether to determine unneces- grapple on to go business—and at MTBE, F.3d exists, re see diction the relating to issues difficult sarily with up offers opinion 121-22, curiam per the law customary international and ATCA plaintiff a that opinion advisory ratio- the on agree to able being without abet- and aided party private a that allege Neverthe- they reach. result the for nale customary of a norm of a violation ted to do chosen majority the less, since aas much so without law international scope the whether issue the so, address I the allegations factual the to reference internation- the violations for liability norm. specific the to citation or complaint to extends here at issue law norms al for corporations, actors, such private circumstances, is difficult these Under the turn I then aiding-and-abetting. appeal, the disposition the to understand Katz- and Hall Judges opinions separate district the “vacate[s] that judgment a mann. motion denying plaintiffs’ order court’s at Op. ante Curiam Per amend.” leave the Liability Under Scope of 2. The that, de- “[i]n say does majority 260. ATCA relied, court motion, district the this nying that premise erroneous the on part, requires inquiry that indicates Sosa not inhere did jurisdiction matter subject principles. separate two consideration amend- any additional that reasoned ATCA that held First, the Court futile.” be would pleadings jurisdiction ments create read to not should inaccu- incomplete law pass over I Id. international any “violations over for the grounds accep- description rate content definite less with norm Neverthe- amend.6 the his- motion than nations among denial civilized tance majority § 1360 how when less, not understand familiar I do paradigms torical denied Sprizzo at Judge U.S. say enacted.” can was observed complaint Second, the Court to amend 2739. motion inter- whether matter subject consideration related premise” “[a] “erroneous scope declining to extends law lacking, while national was jurisdiction norm given a issue violation a jurisdictional basic on the rule sued, if the defendant being adequately perpetrator “have plaintiffs whether corporation as a actor such private suffi- of international a violation pled 20, 124 S.Ct. n. Id. individual.” themselves avail cient to immediately thereaf- end, To 2739. at 261. ATCA.” under interfere replead would allowing (3) them to amend motion denied Sprizzo (4) the appeal’’; speedy “ensuring provided previously (1) had he because been would amendments proposed (2) plaintiffs' replead; leave plaintiffs aiding- ruling that his light of “fruitless” this Court after months “four request came recognized and-abetting is three than more actions these dismissed A01139. ATCA. appeal’’; their noticed plaintiffs after months ter, the Court contrasted opinions, two one state actor complicit in a violation of finding no consensus that torture customary international law a state ac- private actor violated international law, tor, courts should apply international, Tel-Oren v. Libyan Arab Republic, 726 rather than domestic, legal standards. F.2d (D.C.Cir.1984) 791-95 (Edwards, WL at *4. Significantly, and /., concurring), another finding such a con again consistent with our holding Kadic, sensus that genocide by a private actor did the Commission argued that only a subset violate law, Kadic, 70 of norms recognized as customary interna- *54 239-41. Justice Breyer, in a separate tional law applies to non-state actors and opinion, agreed with the Court that “hence only that subset may form the ba- international law norm invoked “must ex sis of liability against such actors. For tend liability to the type of perpetrator example, non-state may actors be liable for (e.g., actor) a private the plaintiff seeks to genocide, war crimes, and piracy, while Sosa, sue.” 542 760, 124 at U.S. S.Ct. 2739 torture, summary execution, and pro- (Breyer, J., concurring in part and concur longed arbitrary detention do not violate ring in the judgment) (citing id. at n. the law of nations unless they are commit- 20, 124 2739). S.Ct. ted by state officials or under color of law.” (citations Id. at *11 omitted).

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- 70 F.3d at 241 (emphasis added). In that ognized international norm providing for case, Judge Newman then proceeded to private parties aid who and abet engage in such an exercise. Id. at 241-44 apartheid. Finally, while officers and em- (discussing independently genocide, war ployees of a corporation may be held re- crimes, and torture and summary execu- sponsible for using the entity as the vehi- tion). More recently, Wiwa, we reiter- cle for the commission of against crimes ated our holding in Kadic that “the ATCA humanity, I address the issue whether the reaches the conduct of private parties pro- entities themselves may be held responsi- vided that their conduct is undertaken un- ble. der the color of state authority or violates a norm of international law that is recog- (a) Private Party Liability under Col- nized as extending to the conduct of pri- or of Law parties.” vate 226 F.3d at 104. Judge Sprizzo held that the allegations These holdings are consistent with the against the defendants were not sufficient position of the European Commission, to “elevate them to the status of state ”

which clearly influenced Justice Souter’s actors.... In re S. Apartheid African majority opinion and Justice Breyer’s con- Litig., 346 F.Supp.2d at 548-49. This as- currence in Sosa. Specifically, in its ami- pect of his decision is challenged cus Sosa, brief in urged Commission briefing of only one group of appellants. the Supreme hold, Court to as it ultimately The state action element derives from the did, that in determining whether a non- principle that violations international lawof color acts individual private apartheid, including norms, rights human 1983 when section meaning of within customary violations or with officials state together he acts or con- encouraged, practiced, only if v. Lugar (citing aid.” state significant state government by the doned Co., U.S. Oil Edmondson Restatement policy. state matter (1982)). Subse L.Ed.2d 2744, 73 &702 Law Relations (Third) Foreign has cautioned Court 737, quently, Sosa, U.S. (discussed in cmt. b which Lugar, from language 2739). See United Josef “must not paraphrased, Newman ”), 3 Trials (“The Case Justice Altstoetter out context torn Nuernberg Criminals War Before 58, 119 S.Ct. Sullivan, U.S. arose,” Coun- Control Under Military Tribunals application parte ex namely, an & (William Hein S. 10No. cil Law ais admonition This of attachment. writ hu- (Crimes 1997) against (1947) Co., Inc. color “under reminder useful nation- against German manity committed contexts. varying arise cases law” where *55 “only punishment subject to als are plaintiffs on cases including Many, participation conscious proof is there Id. facts. their limited been rely, have ap- or organized government systematic 55-59, 119 977. S.Ct. at Indeed, this ”).7 procedures.... proved category that, single largest held Perhaps why specifically Sosa explains in which those law an over color accepted cases is jurisdiction before ais or tortfeasor private offender primary against action cause ATCA on turns the issue in- party, “whether private be determined actor, it must ‘may behavior “seemingly private scope of liabili- whether law extends ternational it- state of the ... a fairly treated norm given aof violation for a ty ” ” Second Tenn. v. Acad. 20, Brentwood n. at 732 self.’ 542 U.S. actor.... private Ass’n, U.S. 531 Ins. Sch. Athletic ary Mut. Am. 2739. 124 S.Ct. Mfrs. Cf. (2001) L.Ed.2d 807 924, 148 49-50, 119 S.Ct. U.S. Sullivan, 526 Co. v. Co., 419 Edison v. Met. (1999) Jackson (linking (quoting 977, 143 L.Ed.2d S.Ct. 449, L.Ed.2d 345, 351, U.S. U.S.C. of 42 element color-of-law appeal this on cases (1974)). Because re- state-action underlying § 1983 reluctant I am category, in this fit Amendment, do not Fourteenth quirement Nevertheless, in detail. them to discuss their from exclude both holding language general rely plaintiffs because conduct, no matter “merely private reach out the context from “torn cases (internal from wrongful”) discriminatory or how Sullivan, at 526 U.S. arose,” omitted). of which and citation marks quotation Professor 977, I borrow construing law that case held have We first, significant one treatise, Schwartz’s guide “a relevant § 1983 42 U.S.C. synthesis second, useful his caveat, and in offi- engaged defendant whether area. this holdings in Court’s un- purposes cial action large analyzing that, in caveat Kadic, 70 F.3d Act.” Tort Alien der the state concerning decisional observed, body “[a] Judge Newman As 245. Tadi n , 36 Prosecutor territory.” defined recently "[w]hile held ICTY 7. The IT-94-1-T, Opinion No. Case during the Second I.L.M. the case been 7,May (Trial ¶ Chamber to crimes Judgment in relation ... the law War World Cassese, into Crimes developed take 1997); humanity has Antonio see against which, al., although supra, those not et Humanity, forces in Cassese account Against con- facto de government, have legitimate 353, 357. within, freely over, move able to or are trol action, “it is important to consider the era 2. State authorization of private con- in which the decision was rendered.” duct not does make the private party a Schwartz, Martin A. Section 1983 Litiga- actor; state to find action, state tion: Claims 5.12, § at 5-85 Defenses state must participate in, coerce, or sig- (4th ed.2003). Professor Schwartz ex- nificantly encourage the contested activi- plains that the Warren Court took ex- ty. pansive view state action in its effort to 3. State assistance a private party, combat racial discrimination society, but even if substantial, will not support a subsequent Burger and Rehnquist finding action, of state whether that as- Courts reversed this trend in order to sistance is in the form of direct financial shield private behavior from the reach of aid, tax exemptions, monopoly power, 5.12, § Constitution. Id. at 5-85-5-86. government mortgage insurance, This reversal undertaken ex- grant aof plicitly license. overturning any earlier state-action decisions, but through a series of decisions importance The mere of the function finding no state action despite heavy gov- carried out the private sector is an ernment involvement in private conduct. insufficient basis upon which to find 5.12, at 5-86. The unmistakable action; state for state action found, to be messages sent by these decisions are that the function must be historically, tradi- the concept of state action is given to be tionally, and exclusively governmental. *56 only berth, limited and that federal courts must assess the continued vitality of earli- 5.12, § (footnotes Id. at 5-87-5-88 omit- er precedents state-action in light of more ted). Professor continues, Schwartz recent decisional law. Id.8 Supreme [t]he Court in some cases has Professor Schwartz then supplemented found no action, state even when all four this perceptive analysis by stating the of these government involvements co- principles that have emerged as the Su- alesced in the same Thus, case. preme Court has scope narrowed the of its Court has on found more than one occa- state-action jurisprudence: sion that an entity was not engaged in

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), 6 L.Ed.2d 45 Supreme dent. Court decisional giv- law has provides which basis the so-called very en Burton and, narrow interpretation "symbiotic relationship test” public between possible with the exception of its decision that private upon actors and plaintiffs which litigant’s a civil exercise racially of a based rely, was one of the Warren Court cases that peremptory challenge constitutes state action expansive took an view of state action. The [Edmonson Co., v. Leesville Concrete 500 U.S. Supreme Court did employ not “symbiotic 614, 2077, 111 S.Ct. 114 L.Ed.2d 660 relationship” Burton, language in though (1991)], ain rejected every attempt to estab- case, subsequent it referred symbiotic to "the lish state action on basis of Burton." 1 relationship between lessor and lessee ... Schwartz, Martin A. Section Litigation: 1983 present in Burton.” Lodge Moose No. 107 v. 5.13[A], Claims § at 5-90-5-91 Defenses Irvis, 163, 175, 407 U.S. 1965, 92 (4th S.Ct. ed.2003); 32 Sullivan, see also 526 U.S. at (1972). L.Ed.2d 627 "Although 57-58, neither Bur- 977; 119 Tribe, S.Ct. Laurence Ameri- symbiotic ton nor the relationship doctrine can 18-3, § Constitutional Law at 1701 n. 13 overruled, has been they (2d severely ed.1988). been

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 86 S.Ct. 1152. State, can be liable under 1983.”

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 503 F.3d 974 Cir. (7th Cir.2000) (Posner, J.) (ob 2007); see also N.Y. Penal Code 115.05 serving “that one who aids and abets a (criminal facilitation). Indeed, such con fraud, in the sense of assisting the fraud duct does not violate customary interna- and wanting it to succeed, is himself guilty tional law. See The *60 Case, Ministries fraud”). of Indeed, in United States v. Trials War Criminals the of Before Blankenship, Judge Easterbrook, after cit- Nuernberg Military Tribunals Under ing to the Model Penal Code for the propo- Control Council Law No. 10 621-22. obvious and most first The actors. vate the that suggest Nevertheless, plaintiffs Apartheid is the of such source rela- the whether not inquiry relevant drafted expressly Convention, which was private the the State tionship between of Union of the conduct of the cover all to nature, rath- but a commercial is of actor allegedly the defendants that Africa South under aiding-and-abetting like er—much Convention, this Of abetted. aided and of section prong assistance substantial the write: Restatement the of Reporters the (Second) of Restatement the of obligations creates [] Convention The suf- had actor private the Torts —whether in- customary imposed those beyond govern- the of knowledge prior ficient personal It attaches law. ternational inter- violations commit plans ment’s individuals to all responsibility criminal the in which ways of the law and national abet, incite, in, commit, participate who govern- by the procured services goods or crime. the co-operate encourage or that actions illicit in those aid ment would requires also The Convention III. Art. have be- be said can actor private any the encour- prevent suppress, states actions. apartheid. the government’s of, punish party come agement Convention, apar- however, whether is not issue, Among parties The subject a effectively made party “a theid become has actor private Art. IV. jurisdiction. universal actions”—whatever government’s by engaging Instead, whether it is Foreign Relations (Third) means. Restatement Thus, the color of 7. “under note reporters’ he acted conduct Law Apartheid recognize Adickes, Reporters 398 U.S. law.” pri- liability on imposition A Convention’s hold- 273. F.3d at 1598; Ginsberg, lawof color acting under not parties vate de- does, in circumstances he ing that customary departure represented both strains complaints, scribed it Moreover, while law.9 international breaking concept to phrase describe overstatement may be an point. the Con- ratified that have of countries list human gallery rogues’ vention Liability (b) Aiding-and-abetting has not violators, the Convention rights States, Parties most Private United ratified been democracies, states other mature other defendants’ that the Ordinarily, fact international role significant play liable to hold them sufficient is not conduct perma- five three affairs, including compel would of law color acting Se- Nations the United members nent alleg- of action the causes dismissal — States, the United curity Council humanity that against crimes Indeed, various ing France. Kingdom, or an during war committed post-apartheid not by the were been ratified Kadic, at 244. Thus, F.3d not a it is See Africa. conflict. of South Republic armed customary interna- two identified Nevertheless, Sprizzo source persuasive S.v. Flores point. See agree- on this tional applicable potentially (2d 233, 257 Corp., 414 Copper pri- Peru liability for contemplated ments B. Sohn University, Louis York New Restatement Reporter of Chief Vagts of F. Georgia, and Detlev University of Universi- of Columbia Henkin Louis Professor as Re- University. Henkin Professor Harvard ty. Associated F. Lowenfeld Andreas porters were Professors *61 Cir.2003) /.) (“[T]he (Cabranes, plementation more 1987, Act of 100-606, Pub.L. States that have treaty, ratified a 4, and the Nov. 102 Stat. at 18 codified greater the relative influence of § those U.S.C. 1091 et seq., expressly provided States in affairs, international the greater the Act shall not “be construed as the treaty’s value.”). evidentiary Dean creating any procedural substantive or Koh made a similar in an point analogous right by enforceable any party in context when he wrote: any proceeding.” 18 U.S.C. 1092. [T]hose who advocate the use of interna- Kadic, which was prior decided

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.” 70 F.3d at 242. As Judge Newman that the practices of other mature de- explained: mocracies—not those lag behind Nothing in the Genocide Convention Im- developmentally the most —constitute plementation Act or its legislative histo- relevant evidence of ... the “evolving ry reveals an intent Congress to re- standards decency that mark the peal the Alien Tort Act insofar as it progress of a maturing society.” applies genocide, and the two statutes Harold Hongju Koh, International surely Law repugnant to each other. Law, Part Our Am. J. Int’l L. Under circumstances, these it would be (2004). Under circumstances, these improper to construe the Genocide Con- the same reason that the vention Apartheid Implementation Con- Act as repealing vention is not a source for the Alien exercise Tort Act by implication. universal jurisdiction, ante at 304-06, Id. Judge Sprizzo properly rejected it as a Sosa, After however, the issue for us to source for extending the scope of liability decide is not whether the Genocide Con- to private actors who aided and abetted Implementation vention Act implicitly re- apartheid in South Africa. pealed the ATCA insofar as it applies to

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, 414 F.3d 233. 440; Bigio, 239 the district it to “leave theless, would he apposite not they simply are Consequently, instance first in the to address court merely which “[questions here, because whether decide it undertake should brought record, neither lurk in Judge ofOp. of action.” a cause recognize upon, ruled nor court of the attention Instead n.18. at ante Katzmann so having been as be considered not to must and that should we issue deciding an precedents.” to constitute as decided disposition resolve, Judge Katzmann’s Fall, 266 U.S. Webster with ping-pong game a invites issue (1925). L.Ed. partic- I decline which Judge Sprizzo, distin- for basis significant is a There ipate. corporate personal between guishing Implementa- Convention The Genocide is an actor private liability. Where recog- door to Act shut tion should acts which for individual, liable is held he the ATCA of action of cause a nition bears which he for committed he has law norm violation hand, other On the responsibility. moral it would because implements, it can entities, legal abstractions as “legal scope expand discretion our abuse beings, as human nor act think neither action liability to causes of ATCA is the them ascribed to legally what is proscribe. intent to its indicated Congress con- by individual produced harm resulting indication a clear “override not should We for the in the name performed duct ‘specific, a branches political from in them or participating those benefit ge- against norm universal, obligatory’ Bas- M. Cherif benefits.” sharing in their through be enforced not nocide is in In- Humanity siouni, Against Crimes Sosa, U.S. damages action[.]” (2d private Law Criminal ternational /., (Scalia, concur- 749, 124 S.Ct. at is whether here ed.1999). Thus, issue judg- concurring part ring allegedly used entity that an artificial ment). a crime the commission vehicle vicariously held humanity may be against (c) Liability Corporations liable. relevant evidencing sources directed Court Sosa, plainly at issue of international in- norms “whether determine courts to

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 156 L.Ed.2d 84 Declaration at 50 and the (2003) (noting Challenge Markets, “[a]bsent some Global con 25 Brook. J. gressional (1999). Int’l L. indication to the contrary, Relying on the Preamble to Declaration, [courts] decline to give the same term in Professor Henkin argued the same Act a that it “is ‘a different common stan- meaning de dard for people all pending and all rights whether the nations.’ It of *65 means ‘every that plaintiff or the individual and every issue”); defendant are at organ of society shall see progres- Beanal v. Freeport-McMoRan, strive — sive measures ... Inc., to secure 969 their 362, (E.D.La. universal F.Supp. 381-82 and effective 1997) (“[T]he recognition and plain observance meaning of the term among the people of member states.’ Ev- ‘individuar does ordinarily include ery individual juridical includes persons.” corporation.”), (5th by 197 F.3d 161 aff'd Id. at 24-25. Supreme Court, Cir.1999). howev- er, has held that the Declaration “does not In Agent re Orange Product Liab. Litig., of its own impose force obligations as a 373 F.Supp.2d at 56. matter of international Sosa, law.” 542 734, U.S. at 124 S.Ct. Moreover, The same is true with respect it is important statute making [also] to keep torture committed mind outside what exactly the United expects States a Preamble federal offense. 18 such individuals § and organs: U.S.C. 2340 et that seq. they Section 2340 pro- “promote” respect that, for rights vides used in set “[a]s chapter ... forth in the Declaration by ‘teaching ‘torture’ means an act committed by a education’ and by person supporting “progres- acting under the color of specif- law sive national and international meas- ically intended to inflict physical severe ures.” The language is thus consistent pain mental or suffering ... upon another with the idea legal obligations bind person within his custody or physical con- corporations only to the extent that fur- trol 2340(1). ....” Id. here, Because ther “national and international meas- TVPA, in the the context indicates that the ures” are taken. “person” word refers to natural persons, the general rule Carlos M. Vázquez, the word Direct “person” vs. Indirect Ob- ligations when used in any Corporations Act of Congress includes Under Interna- corporations, Law, tional unless Colum. J. context 927, Transnat’l L. indicates (2005). otherwise, 1,§ U.S.C. is not applicable here. See Rowland v. Cal. Men’s Colony, Nor are the sources rejecting corporate Unit II Men’s Council, Advisory 506 U.S. undermined two international 194, 199, 716, 121 L.Ed.2d 656 conventions and a Security Council resolu- (1993) (“ ‘Context’ here means the text of tion, all of post-date the dismantling the Act of Congress surrounding the word of apartheid. See The United Nations issue, or the texts of other related con- Convention Against Transnational Orga- gressional ”). Acts.... nized 5(l)(b), art. 8, Crime 2001, Jan. U.N. whether is not here sum, the issue 49, Doc. sess., U.N. Supp. No. GAOR, 55th disfavor) (or favor considerations policy Combating Brib- A/45/49; Convention violations for responsibility corporate in Interna- Officials Foreign Public ery Vázquez, 1(2) M. 2, law. Carlos & arts. Transactions Business Cf. tional Corpora- Obligations (1998); S.C. Res. Indirect Direct v. I.L.M. 18,1997, 37 Dec. Law, (Oct. 2004); Colum. 8, International Under tions Doc. U.N. S/RES/1566 (ac- (2005) Terrorism, S.C. 932-959 Fight L. Action J. Transnat’l Mandatory apply ¶ norms 1(d), very Doc. few knowledging U.N. S/RES/1373 Res. Convention under “interna- 2001); corporations International directly to (Sept. Financing of outlining today” Suppression as it exists law tional G.A. Res. Dec. Terrorism, adopted why “international arguments Sess., plen. 76th generally 54th GAOR direction U.N. move should A/RES/54/109, 39 I.L.M. obligations Doc. mtg., rights U.N. human extending sources Instead, of these (2000). each While corporations”). to private states measures to enact parties upon the law call of what a determination it involves legal per- liability on Indeed, kind some impose period. the relevant during domestic own with their in accordance ret- sons has held Court directly im- of them none principles, legal enacting statutes application roactive With- corporations. liability on any pose inappropri- *66 liability presumptively civil by the enacted the of laws analysis out rise to giving conduct the even where ate to draw impossible it is signatories, various already proscribed liability was of practice regarding any conclusions increased simply legislation newly enacted of the de- issue regard with states Land damages. of scope liability for violation corporate gree 244, Prods., U.S. 511 Film v. USI graf Indeed, as Pro- norms.11 law international 229 1483, 128 L.Ed.2d 281-86, S.Ct. 114 observed, although has Bassiouni fessor (1994). to deal efforts international “contemporary against retroactive presumption “[T]he drug crime, corruption, organized with rooted deeply only] [not legislation the direction moving in trafficking” legal a and embodies jurisprudence, our concepts new liability “these corporate Repub- our than older centuries doctrine have not responsibility criminal corporate 1483, is also but 114 lic,” id. at [customary inter- way into their yet found law. international customary reflected Bassiouni, at 377 supra, law].” national tra- noted, further “[a] As one scholar and footnotes (internal marks quotation crimen the nullum corollary of ditional & R. Ratner omitted). also Steven See the notion principle namely, lege sine Accountability Hu- Abrams, — S. Jason principle non-retroactivity International —views Atrocities Rights man con- perspective: temporal a legality Legacy Nuremberg Beyond Law: basis only on the punished be duct 2001) [ ] (“It unclear remains (2d ed. to when prior into force came a norm impos- generally law whether Lamb, Nul- Susan occurred.” conduct groups responsibility criminal es Lege in Crimen, Sine Nulla Poena lum organizations.”). ratified contracts, majority of States whelming treaties, rule, like general aAs 11. uniformly consis- those Slates treaty and become binding on States that legally "are bound”, principles.” its accordance consenting tently to be act parties to them Flores, of a norm F.3d at evidence may constitute only "an over- if customary international Law, International Criminal only in Cassese sources of customary international al., et supra, (emphasis law that suggest some movement toward original). Indeed, applicability “[t]he the recognition corporate liability post- the nullum crimen principle to serious date the collapse of apartheid regime, breaches of international humanitarian law and because the established during norm bywas sufficiently well-accepted that the apartheid era was that corporations its inclusion within the Rome Statute was were responsible legally for violations seen as necessary....” Id. at 755. See of norms proscribing against crimes hu- Tadic, also Prosecutor v. 36 I.L.M. manity, the complaints are subject to dis- IT-94-1-T, Case No. Opinion and missal on ground alone. ¶ (Trial Judgment 7,May Chamber 1997) (the International Tribunal “must 3. The Concurring Opinions apply customary international law as it stood offences”). time of the (a) Judge Hall’s Concurring Opinion Although precise date on which the heart of flatly Hall ignores apartheid regime stopped holding beating may Court that pinpoint, difficult to second consid- executive order by eration in George deciding President whether H.W. to accept juris- Bush on July diction terminating over a cause of action alleging States sanctions against the country, violation pro- of the law of nations “is whether vides one guidepost. Exec. 12,- Order No. international law extends the scope of lia- 769, 56 Fed.Reg. (July 10, 1991), bility for a violation of given norm to the reprinted in 22 (2004). U.S.C. By perpetrator sued, being if the defendant is order, the President concluded as of private actor such as a corporation or that date that the Government of South Sosa, individual.” *67 542 U.S. at n.20, (1) Africa had: released all persons perse- 124 S.Ct. 2739. Instead of undertaking an cuted for their political beliefs or detained analysis a given of norm of international unduly trial, without it and also released law to determine the scope of liability aof (2) Mandela; Nelson repealed the state of private actor, Judge Hall concludes that in emergency effect on the date of enact- law is irrelevant and that ment of [the “Comprehensive Anti-Apar- once a violation given of a norm alleged, is theid Act of and 1986”] released all detain- subjects ATCA private a party to liability ees held under such state of emergency; if he aided-and-abetted that violation. (3) unbanned political democratic parties permitted and Judge the free Hall’s exercise concurring opinion South prem- is Africans all of races of ised on right the the assumption that, to form even though political parties, express political the ATCA opinions, does not by its terms encom- and otherwise participate pass political aiding-and-abetting liability, it should (4) process; repealed the be Group Areas construed Act as if it contains such lan- and the Population Registration guage. Act This aspect and of Judge Hall’s opin- instituted no other measures with ion not only contradicts Kadic, Sosa and same (5) purposes; and agreed to does enter disservice to the holding of the lead- into good faith negotiations with truly rep- ing Supreme Court case addressing the resentative members of the majority black issue of liability accessorial for violations of preconditions. without See Comprehen- statutes that create civil action, causes of sive Anti-Apartheid Act of Pub.L. Central Bank Denver v. First Interstate of 311(a) § No. (1986). 99-440 Because Denver, the Bank U.S. State, any or that or States (1994). that L.Ed.2d 1439, 128 if commit- violation a criminal would that: observed Court case, of the United ted within civil general a not enacted Congress has any State.” U.S.C. or for abetting statute —either aiding and embracing 2331(1). language, § This (when Gov- the Government suits acts, tak- violent that “involve” activities in- or penalties civil for sues ernment certainly cover would en at face value relief) by private for suits or junctive Re- acts. abetting violent aiding enacts Congress Thus, when parties. laws include member, too, criminal may sue person which a statute liability for 2,§ creates which de- private 18 U.S.C. from damages recover any oth- violations abetting aiding and violation defendant’s for the fendant By incorporating general provisions. norm, is no criminal er statutory there some in- that may also laws any criminal plaintiff that the violations presumption dangerous acts abettors. acts volve violent aiders sue in- expressly life, Congress human sure, only Bank, to be Central Id. extent abetting aiding and cluding when Con- that proposition for stands “involves” vio- abetting aiding and right creating private lawa enacts gress lence. statute, “there aof violation for of action plaintiff presumption general

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 511 U.S. at 114 ing-and-abetting in civil cases “has at been (citation omitted). The Court’s best uncertain application ... with the opinion suggested that the plaintiff there precedents common-law ‘largely confined relied on the principle derived from the to isolated acts of adolescents rural ” (Second) Restatement (1979), Torts society.’ Bank, Central U.S. at provides person that a is liable for 114 S.Ct. 1439 (quoting Halberstam, 705 another’s torts if he “knows that the oth- 489). If there was general no er’s conduct constitutes a breach duty understanding that civil aiding-and-abet- gives substantial assistance or encour- ting liability was “well established ... agement to the other so to conduct him- civil ... by 1934,” actions id. at ...” self. 876(b); Bank, see Central (citation S.Ct. 1439 omitted), it is difficult 511 U.S. at 114 S.Ct. 1439. prin- The to understand how it can be asserted that ciple of “substantial assistance,” which such an understanding present in 1789 Judge Hall adopts, initially appeared in when Congress enacted the ATCA. (First) the Restatement Torts in

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.” 705 F.2d at 488. (1996). shall: a Nation 284 Definer of Nevertheless, despite his reliance on Hal- The Supreme repudiated Court the prac- berstam, Judge opinion Hall’s to even fails Hudson, tice in (7 United States v. 11 U.S. allude this critical state-of-mind ele- Cranch) 32, (1812). 3 L.Ed. 259 Under Moreover, ment. even under Halber- circumstances, these it is not surprising formulation, stam’s only it is one factor Henfield, who charged was not among five for determining whether “sub- aiding-and-abetting, acquitted was because stantial assistance” provided. was Such a “he ignorant was of the unlawfulness of his five-prong test for determining whether undertaking.” Case, 11 F. Cas. Henfield’s assistance was hardly substantial provides at 1122 n.7. Nor is it surprising, given guidance the clear necessary to those en- (or role Henfield’s as a principal joint as a gaging in commercial transactions. context), tortfeasor the civil Jay’s By incorporating a vague “substantial grand jury charge, which was written to standard, assistance” this newly minted apply “to offenders, the class of of whom theory of aiding-and-abetting liability will one,” n.2, Henfield id. at 1105 did not many practical create problems harmful to define aiding-and-abetting, and that political and economic interests of the judge actually who charged the Henfield United States. As the United States ob- grand jury did not allude to the concept brief, serves its amicus the decision to altogether. Id. at 1105-09. embrace this scope broader of liability un- der the generate ATCA will sum, tremendous Bradford’s opinion and the cases uncertainty private corporations, who cited by Hall do not support will be reluctant operate in countries extraordinary proposition that Congress with poor human rights records fear intended ATCA permit jurisdiction incurring legal liability for regimes’ those to be exercised over claims aiding-and- bad acts. Br. for the U.S.A. as Amicus abetting without regard to whether Curiae at 13. uncertainty, turn, This conduct at issue violated an international will undermine efforts the United law norm. Moreover, Judge Hall com- to encourage reform in those coun- pounds his flawed discussion of this issue tries through active economic engagement, by adopting a standard for aiding-and- id., and will deter the free flow of trade abetting that vague and inappropriate in and investment generally. more present context. ifAs the language of 876(b) section (Second) (b) Restatement Judge Katzmann’s Concurring of Torts imposing liability Opinion for “substantial assistance” was not vague enough, he en- Judge Hall, Unlike Judge Katzmann test, dorses five-factor suggested first by looks to international law to resolve the Restatement and adopted then Hal- issue of whether a private party aor cor- berstam, to “assess (he whether the defen- poration draws no distinction between *71 of crimes violation [in the crimes of aiding-and- two) for liable held can be the 1315, Res. U.N. humanity].” law S.C. against of international violation abetting a 2000). 14, The res- (Aug. actors to state Doc. applicable otherwise S/RES/1315 law. of under color 1 of the acting in article parties implemented private olution looks properly Katzmann Nations the United While Between Agreement the hold- law, disregards he international Leone on of Sierra and the Government in Kadic holdings own and our ing Sosa for Special a Court of Establishment the already discussed Fiicci, I have which Leone. Sierra 311-12, that re- length, ante at some on which in the cases significantly, More to deter- analysis norm-by-norm quire a — the relies those of Judge Katzmann extends “international law mine whether — required to was not tribunal the ICTY aof a violation liability for of scope the the of issue any inquiry regarding make sued, being perpetrator to the norm given the law extends “international whether aas actor such private is a if the defendant given norm liability for scope of Sosa, 542 U.S. or individual.” corporation is if the defendant being sued perpetrator add- n.20, (emphasis at 732 corporation.” such as private actor to under- ed). declines Judge Katzmann 20, n. Sosa, at 732 542 U.S. not how that “is analysis because take by international undertaken inquiry ICTY, the fol- article the of The Statute limited whose tribunals Charter, Judgment the the lowed London Op. law.” customary international it, Tribunal, construing Nuremberg of the at 279. ante Judge Katzmann pursuant empaneled and the tribunals to disre- freedom a connection enjoy required the of which all do CCL We Court of the war humanity and guidance against gard crimes between tri- of international practice adopt the are indi- private parties crimes.13 Because — the unorthodox particularly bunals crimes committed for vidually responsible ICTR, see the ITCY practices war, this connection aof in the course Moreover, contrary to 333-37. post at Nuremberg unnecessary made jurisdic- suggestion, the Judge Katzmann’s ad- tribunals the CCL 10 Tribunal or tri- international post-apartheid tion of actors private scope dress refers, principally to which he bunals Kadic, 70 See as aiders-and-abetters. Security ICTY, are conferred at 242-43 239-41; id. see also They creating them. resolutions Council (“Plaintiffs acts contend In- law.” by international “limited are not arbitrary deten- torture, murder, rape, statutes, which stead, custom-made these civilians, in the course committed tion crises particular address of war. Atroci- hostilities, the law violate norms of evolving contrary sometimes long here alleged types ties of is true law. This customary international in international recognized been creating the to the statute respect liabili- The law of war.... violations Security 333-34, and the UN ICTY, post at committing individuals private ty of estab- for the calling Resolution Council since recognized has been crimes war for Sierra Court the Special lishment Nu- confirmed at I and was War World only for provides latter The Leone. II.”). Thus, War remberg World after “who bear persons prosecution failing support for no provide ICTY cases for the commission responsibility greatest (William S. app. B at Trial, cil Law No. 6 F.R.D. Nuremberg 13. See 1997) (1949). Co., dis- 253-54, A useful Inc. Hein & Major War Criminals 1 Trial of Charter, 6(c) London art. cussion of Taylor, Final Re- Telford Brigadier General holdings, for these provided the basis Army the Nuer- Secretary port to Bassiouni, supra, 19-30. may be found Coun- under Control enberg Trials War Crimes *72 to follow the instruction of (d) In any way other contributes to the Court, one that is consistent with our own commission or attempted commission of holding in Wiwa, Kadic and which re- such by crime a group persons quires an analysis particular of the norm acting with a purpose. common Such the defendant is accused of violating contribution shall be intentional and determine private whether a party may be shall either: responsible held as an aider-and-abettor.14 (i) Be made with the aim of further- While Judge Katzmann erroneously con- ing the activity criminal or criminal cludes that there during period purpose of the group, was— where such ac- when the crimes alleged here took place— tivity purpose or involves the commis- an independent norm of customary inter- sion of a crime within the law, national making private legally actors Court; of the or responsible as aiders-and-abetters without (ii) Be made in the knowledge of the regard to particular whether norm intention of the group to commit the they allegedly imposed violated such liabil- crime; ity, he correctly rejects the “substantial art, 25(3)(e), (d). assistance with knowledge” standard for This article is significant because it newly minted norm that Judge Hall that, makes clear other than assistance 876(b) finds in section of the Restatement rendered to the commission of a crime (Second) of Instead, Torts. he “con- a group of persons acting with a common clude[s] that a defendant bemay held lia- purpose, a defendant is guilty of aiding- ble under international law aiding and-abetting the commission of a crime abetting the violation of that law anoth- only “[f|or if he does so purpose (1) er when the defendant provides prac- facilitating the commission of such a crime tical assistance to the principal which has a ... including providing the means for its substantial effect on the perpetration of commission.” Id. The same crime, (2) standard does so with the purpose adopted by the United of facilitating Nations Transition- the commission of that al Administration in (“UN- crime.” East Op. Timor of Judge Katzmann ante at TAEAT”). See UNTAET, 277. The basis for June this formulation is arti- Reg. 14.3(c). cle 25 of the Rome No.2000/15 As one Statute. com- Rome Statute ICC, mentator opened has observed: signature July 1998, 37 (entered I.L.M. 999, regard With to facilitating into the commis- 1, 2002). force July sion of crime, the aider and abettor must act with ‘purpose.’ ... This Specifically, article 25 of the Rome Stat- means more than the mere provides knowledge ute that a person shall be crimi- that the accomplice aids nally responsible commission punishment liable for offence, for specified would suffice for com- against crimes humanity if plicity person: according to the ICTR and ICTY Statutes, (c) rather he must For know as well as purpose of facilitating the wish that his assistance commission of shall a crime, aids, such facilitate abets commission of otherwise crime. assists its commission or its attempted commission, including pro- Eser, Albín Individual Respon- Criminal viding the means for commission; its sibility, in 1 The Rome Statute 14. Another reason the ICTY cases are silent authority. official all, The inquiry, after that, on this score is while the defendants in person whether a purporting to wield official these cases not have been power officials of has exceeded internationally recog- formally states, recognized they were state nized conduct, standards of civilized held, actors. As we have "the state action whether statehood in all its aspects formal concept requires ... merely the Kadic, semblance of exists." 70 F.3d at 245. *73 the during ATCA of the purposes the for Court Criminal International alleg- defendants when the era apartheid eds.2002) (empha- al, et (Antonio Cassese law. international customary edly violated original). insis 277. There at ante Judge Katzmann ofOp. by signed been Statute Rome The & Jason R. Ratner See Steven none. was including by ratified countries Accountability Human Abrams, S. for the democracies the mature most Law: International in Atrocities Rights interna- it reflects that agree I world. (2d Nuremberg Legacy the Beyond appro- the the issue of on consensus tional a defini- of such ed.2001), absence and the determining for standard priate the significant for is period during this tion consistent it aiding-and-abetting, for discussed, at ante 325-27. already reasons at law, ante see domestic own our with II.B Nevertheless, in I concur section over the concern 317-18, and it addresses customary the articulates that opinion Ms assistance “substantial aof adoption the aiding-and- for standard law international in raised standard knowledge” with I do Statute. the Rome on abetting based States. the United filed brief amicus standard, a clear provides because so 13. as Amicus Curiae U.S.A. for the Br. for panel, of the majority by a adopted en- to appears brief Indeed, the amicus deciding in wheth- apply, to Sprizzo Judge 25(3). in article out set the elements dorse to file motion plaintiffs’ grant to er “the that standard (arguing at 26 Moreover, ap- complaints.15 amended materially from differs propose plaintiffs case, the standard in facts this plied to in adopted formulations recent most with consistent adopts is Katzmann Judge 25(3) (citing article practice”) validity which Case—the the Ministries signif- Statute). more Perhaps the Rome questioned. been has never 25(3)(c) of article in the standard icantly, however, opinion, Katzmann’s Judge with consistent Rome Statute Thus, while II.B. section end not with does outset, Case, discussed Ministries deci- rely post-apartheid on not he does de- the conduct holds support to the ICTR the ICTY sions of not here was engaged allegedly fendants deter- for he enunciates the standard law. customary international violation liability, he aiding-and-abetting mining Case, War 14 Trials Ministries suggest to those cases rely on does Military Nuernberg Criminals Before knowl- with assistance the “substantial No. Law Council Control Under Tribunals aiding-and-abetting for standard edge” also obviate considerations These 622. future devel- foundation may provide the failure of regarding any concern I discuss area. this law in opment Rome Treaty of ratify to relies demon- he on which the cases the definition unrelated for reasons Katzmann’s Judge contrary why, strate Yousef, 327 See aiding-and-abetting. they provide do suggestion, gratuitous n. 25. 92at definition a broader basis a reliable Stat- in the Rome proscribed one disagreement than point My narrow issue ute. to the relates Katzmann any “well estab- was there

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,