05-2141 -cv, 05-2326-cv

Khuluma ni v . Barcl ay Nat ional Bank, L td. , Nts ebeza v . Dai mler Chry sle r Corp.

UNITED STATE S COURT OF APPEA LS FOR THE SEC OND CIRC UIT August Term, 2005 (Argued: January

24, 2006 Decided: October 12, 2007)

Docket Nos. 05-2141-cv, 05-2326-cv

__________________________________________________________ SAKWE BALI

NTULO KHUL

UMANI, as personal r

epresentative of Saba Balintulo, FANEKAYA DABUL

A, as personal representative of L ungile Dabula, NOKI TSIKAYE VIOL ET DAKUSE, as personal representative of Tozi Skwey iya, BERL

INA DUDA, as pe

rsonal representative of Donald Duda, MARK FRANSCH, as per sonal representative of Anton Fransch, SHERIF MZWANDI

LE GEKI SO, as personal representative of Ntombizodwa Annestina Nyong wana, ELSI

GUGA, as personal representative of James Gug a, JOYCE HLOPHE, as personal representative of Jeffrey Hlophe, NOMVULA EUNI CE KAMA, as personal representative of Mncedisi Dlokova, JOYCE LED WABA, as personal representative of Samuel Ledwaba, JOHA NA LERUT LA, as per sonal repres entat ive of Matth ews Lerut la, FR IEDA Z. LUKHUL

EI, as personal re

presentative of Tokkie Lukhulei, EL IZAB ETH MAAKE, as personal representative of Jackson Maake, ARCHI TON MADONDO, as personal represe ntative of Mandla Madondo, BENJAMIN MAI FADI, TSHEMI

MAKEDAMA, as personal representative of Lugile Makeda

ma, MABEL MAKUPE, as per sonal representative of Andrew Makupe, MABEL MAL OBOLA, as per sonal representative of Malobola Mbuso, EVEL YN MATISO, as personal representative of Pitsi Matiso, BETTY MGI DI, as personal re

presentative of Jeffrey Mgidi, ELI

ZABETH MKHONWANA, as persona l representative of Obed Mkhonwana, CAT HER INE M LANG ENI, as p ers ona l re pre sen tat iv e of Bhe ki Ml ang eni , C EC IL MLAN JE NI, as personal representative of Kele Mla njeni, SAMUEL MORUDU, as personal re presentative of Sannah P. Leslie, TSHI

DISO MOTASI , as personal representative of John and Penelope Moloke, WILL IE NEL ANI, as personal re

presentative of Mongezi Nelani, CATHERI NE NGQULUNGA, as personal representative of Br ian Ngqulunga, CATHERI NE PHIRI , as personal representative of T hom as P hi ri, ELIZA BET H S EFO LO, a s pe rso nal rep res ent ati ve o f Ha rol d S efo lo , MA RIA SIBAYA, as personal representative of Jeffrey Sibaya, PATRI CIAL

M. SONGO, as personal representative of Dipulo Songo, MPOL ONTSI TYOTE, as persona l representative of Boy

boy Tyote, NOMKHA

NGO SKOLWENI

DYANTYI, CL

IFFORD Z IXELIL

E FUDUKIL

E, WINDOVOEL GAAJE, CHA RLES HLATSHWAYO, M OSES HLONGWANE , LESIBA KEKANA, SANAKI MAHL ATSHI, ROBERT MAKANA, Z AKHARIA FI

KIL E MAMBA, ELL IOT SI THEMBISO MARENENE, AL FRED MASEMOLA, MAUREEN THANDI MAZIB UKO, MICHAEL MBELE, L

AETITI A NOMBAMBO MFECANE, as persona l representative of Rubin Mfecane, DENN IS MLAN

DELI , TEFO MOFOKENG, MOTLAL

ETSATSI MOL

ATEDI, AZ

ARIEL MOLEBEL

ELI , SIMON MOL OTSI, L INA MOREANE, as personal representative of Alber t Xaba, THABI SO SAMUEL MOTSIE, SONT O* We dire ct the C lerk o f Court to amend the

officia l captio n to ref

lect this spellin g of N tsebez a’s name , which

is cons istent w

ith the spelling

used in his bri efs and

comp laint. 2 NDLOVU, MANGI

NDIVA ROBERT RHENENE , THOBIL E SIKANI , BUBELE STEF ANE, NOLU THA NDO BILET ILE, LE SLIE M NCE DISI B OTY A, LE ON D UKA SC HE, ELS IE GISHI , DORTHIA GOMO-PEFI LE, ZAMI

KHAYA BISHOP KHA

LI , JAMES MAGABANA, NOSIPHO MANQUBA, NO TATHU EUGENIA MA TOMELA, NOMI SA THERSIA MAY, MBONGENI NEL SON MBESHU, MZUHL ANGENA NAMA, ELI

AS NGAMANI, as persona l repr esen tativ e of E lizab eth N aga

mani, GESHI

A NGO XZA , LUCAS ND UKWAY IB UZWA NGWENYANA, WELLINTON MTYUKATO N KOSIPHENDUL

E, VUYANI NONG CAMA, SIN DI SWA MI

RRI AM NU NU, T HUL

ANI NUNU , BON

IWE PHAL AZA , PATH ISW

A PR INGA NE, as p ers ona l re pre sen tat iv e of Mt hoz ama The oph il us P rin gan e, M THU TUZ ELI SIKANI , NOLUTHANDO SI LETI LE, THEMBEKA VI

CTORIA SIPHAH O, JOHANNES TITUS, MPOLO

NTSI TYOTES, MTHUZI MELE MEFORD YAMI LE, NTUNANI

WILL IAM ZENANI, TH

ANDI WE SHEZI , ELI

AS B. BO

NENG, DE

NNI S VIN CENT FRED ERICK BRUTUS, MORALOKI

A. KGOBE, REUBEN MPHEL A, LUL AMIL E RALRALA , Plaintiffs- Appellant s , -v.- BARCL AY NATIONAL

BANK L TD., BRI TISH PETROLEUM, PL C, CHEVRON TEXACO CORPORATION, CHEVRONTEXACO GL OBAL ENERGY, I NC., CITI GROUP, INC., COMMERZBANK, CREDIT SUI SSE GROUP, DAIMLERCHRYSL ER AG, DEUTSCHE BANK AG, DRESDNER BANK AG, EXXONMO BIL CORPORATION, FORD MOTOR COMPANY, FUJITSU, LTD ., GENERAL MOTORS CORPORATIO NS, INTERNATI ONAL BUSINESS MACHI

NES CORP., J.P. MORGAN CHASE, SHELL OIL COMPANY, and UBS AG, Defendants-Appellees , AEG DAIML

ER-BENZ I

NDUSTRIE, FL

UOR CORPORATION, RHEI NMETALL

GROUP AG, RI O TINTO GROUP, TOTAL -FI NA-EL F and DO E CORPORATI ONS, Defendant

s .

________________________________________________________________ LUNGI SILE NTSEBEZA, * HERMINA DI GWAMAJE, ANDILE MF INGWANA, F.J. DL EVU, LWAZI PUMELELA

KUBUKELI , FRANK BROWN, SYLVI A BROWN, NYAMEKA GONI WE, SIG QIB O MPENDUL O, DOROTH

Y MOL EFI , THEMBA

MEQUBE LA, L

OBI SA IRENE DI GWAMAJE, KAELO DI GWAMAJE, LINDI WE PETUNIA LEINANA, MAT SH IDISO SY LVIA LE INAN A, K ELEB OGILE PR UDE NCE LEINA NA, DAV ID MOTSUMI, SARAH NKADI MENG, MOEKETSI THEJANE, MOSHOESHOE THEJANE,3

PASCALINAH

BOOKIE PHOOF OLO, KHOBOTL E PHOOFOLO, GL

ADYS MOKGORO, JONGANI

HUTCHI NGSON, SEF

UBA SI DZUMO, GOBUSAM

ANG L AURENCE LEBOTSO, EDWARD THAPEL O TSHIMAKO, RAHABA MO KGOTHU, JONATHAN

MAK HUD U LED IGA, ANN A LEB ES E, S IPHO ST ANLE Y LEB ES E, W ILLIAM N BOB ENI, JOHN LUCAS NGOBENI , CLEMENT HL ONGWANE and MASEGALE MONNAPUL A, Plaintiffs- Appellant s , SAKWE BALI

NTULO KHUL

UMANI, P.J. OLAYI , WELLI NGTON BANI

NZI GAMAG

U, Violations of Pass Laws, unlawful detention 1981-1983, torture subjec ted to discriminatory labor practic es 1981 a

nd WIL LI AM H. DURH

AM, Plaintiffs , v. DAI MLER CH

RYSLER CORPORATION, NATI ONAL WESTMI

NSTER BAN

K PLC, COLGATE PAL

MOLI VE, BARCLAYS BANK PLC, UBS AG, CITI GROUP INC., DEUTSCHE BANK AG, DRESDNER BANK AG, COMMERZB ANK AG, FORD MOTOR COMPANY, HOLCI

M, INC., EXXON MOBI L CORPORATION , SHELL O IL COMPANY, J.P. MORGAN, MINNESOTA MINI NG AND MANUFACTURI NG CO. (3M CO.), GENERAL EL

ECTRIC COMPANY, BRI STOL-MEYERS SQUI BB CO., E.I. DUPONT

DE NEM OUR S, XER OX C ORP ORA TION , IBM , GE NER AL MO TOR S, HON EYW ELL INTERNATI ONAL, I

NC., BANK OF AMERI CA, N.A., THE DOW CHEMICAL COMPANY, COCA-COL

A CO., CRED IT AG

RICOL E S.A., HE

WLETT -PACKARD C OMPANY, EMSCHEMIE (NORTH AMERI CA) INC., CHEVRON TEXACO CORPORATI ON, AMERICAN ISUZU MOTORS, I

NC. and NESTLE USA, I NC., Defendants-Appellees , SULZER AG, SCHI

NDLER HOL

DING AG, ANGL

O-AMERICAN CORPORATI ON, DEBEERS C ORPORATI ON, NOVA RTIS A G, BANQUE IN

DO SUEZ , CREDI T LYO NNAI S, and Unkno

wn offic ers and d

irectors of DANU

INTE RNATI ONAL , STANDAR D CHARTERED, P.L.C., CORPORATE DOES, CREDIT SUI SSE GROUP, CITIGROUP AG, SECURI TIES I

NC., as suc cessor t

o Morga n Guara nty , MANUFA CTURERS HAN NOVER, CHEMI CAL B ANK & CH ASE MANHA

TTAN BA

NK, UNI SYS CORPORAT ION , SPERRY CORPORATION, BURROUGHS CORPORATI ON, ICL , LTD., AMDAHL CORP., Computer Co mp ani es, JO HN D OE C ORP ORA TION , HO LCIN, LTD. , HE NRY BLOD GET , J US TIN BAL DAUF, K RISTE N CAMPBEL

L, VI RGINIA SY

ER GENERE

UX, SOFI

A GHACHEM, THOMAS MAZZUCCO, EDWARD McCABE, DEEPAK RAJ, JOHN 1-10 DOE, OERL IKON** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by desig nation. 4 CONTRAVE S AG, OERL IKO N BUHRL

E AG, CORPO RATE DOES 1-100, RO YAL DUTCH PE TR OLEU M C O., SH ELL TR ANS PO RT & TR ADIN G CO MP ANY PLC and SH ELL PETROLEUM, I

NC., MERRI

LL LYNC H & CO. I

NC., KENN

ETH SEYMO UR, Defenda nts .

__________________________________________________________________ BEFORE: KATZMANN and HAL L, Circuit Ju dges, and KORMAN, District Judge

. ** Appeal from a judgment of the United States District Court for the Southern District of New York (Sprizzo, J. ), dismissing, inter alia , plaintiffs-appellants’ claims under the Alien Tort Claims Act (“ATCA”) and the Torture Victim Protection Act (“TV PA”). We affirm the district court’s dismissal of the TVPA claims. We vacate that portion of the district court’s judgment dismissing the plaintiffs’ ATCA claims, as well as the district court’s denial of the Dig wamaje, and Ntsebeza motions to amend, and remand for further proc eedings consistent with this opinion. Judge KATZMANN files a separa te concurring opinion. Judge HAL L files a separate

concurring opinion. Judge KORMAN files a separate opinion, concurring in part II and dissenting from parts II I, I V, and V of the per curiam opinion. Affirmed in part, vacated in part, and re manded. MICHAEL

D. HAUSFELD Cohen, Mils tein, Hau sfeld & Toll, P.L .L.C. Washington, D.C. for Khulumani P

laintiffs-A ppellants

. PAUL L . HOFFMAN Schonbru n DeSimone

Seplow Ha

rris & Ho ffm an LLP Venice, California for Ntsebeza &

Digwamaje

Plaintiffs-

Appellant s .*** A dozen entities participated as amici , but only the United States participated in oral argumen t of the a ppeal.

1 The Khulumani Plaintiffs in clude the Khulumani Support Group, a South African nongovernm ental organization that “works to assist victims of ap artheid-era v iolence and has 32,70 0 members who are surviv

ors of such violenc e,” as well as ninety -one indiv

idual plaintiffs who are “the 5 FRANCIS P. BARRON Cra vat h, S wai ne & Moo re LLP New York, New York for Defendants-Appellees

. ROBERT M. LOEB United States Department of Justice Washington, D.C. for Amicus Curiae United States of America. ***

P ER C URIA M : I The plaintiffs in this action bring claims under the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”), a

gainst a pproximate ly f

ifty corpora te defe ndants an d hundre ds of “corporate Does.” The plaintiffs argue that these de fendants actively and willingly collabor

ated with the government of South Africa in maintaining a re pressive, racially

based system known as “apart heid,” w hich res tricted t

he major ity b lack Afr

ican popu lation in a ll areas of life w hile providing benefits for the minority white population. Three g roups of p laintiff

s filed te n separa te action s in multiple

federa l district c ourts asserting these apartheid-rela ted claims. See In re S. African Apartheid Litig. , 346 F. Supp. 2d 538, 542 (S.D.N.Y. 2004) . One gr oup, the K

hulumani Pl aintiffs , filed a complain t again st twenty-three

domestic and foreign corporations, char ging them with various violations of international law. 1 The othe r two gr oups, the N

tsebeza a nd Digw amaje Pla

intiffs, brought c lasspersona

l repres entatives of v

ictims of extr ajudicial killin

g, or were themsel

ves tortured, sexuall

y assaulted, indiscrimina

tely shot, or arbitrarily

detained by the apartheid regim e.”

2 Appare ntly, not all

of the n amed defend ants in the thre e action s have been se rved w ith complaints, and some defendants have indicated that they plan to contest personal jurisdiction. The district court’s order g ranting the m otion to dism iss state d that i

t was “l imited

to thos e defendants as

to whom the C ourt’s personal jurisdiction is not con tested.” In re S. African Ap artheid Litig. , 346 F. Supp. 2d at 54 3 n.3. In additio n, elev en of th e defendants w

ho joined the m otion to dism iss filed separat e motions to dism

iss on the ground

that the plaintiffs’ claim s were conclusory and failed to mee t the pleading standards o f Fed. R. Civ . P. 8(a). The district court did not reach those argum ents in deciding the motion to d

ismiss. 6 action c laims on be

half of the “victim s of the a parthei d relate d atroci

ties, huma

n rights ’ violations, crimes against humanity and unfair [and] discriminatory forc ed labor practices.” The Digwamaje Plaintiffs also brought claims under the Tor ture Victim Protection Act of 1991, Pub. L. 102-256, 106 Stat. 73 (1992), codified at 28 U.S.C. § 1350 note (“TV PA”), and the Racketeer Influenced and Corr

upt Organizations Act, 18 U.S.C. §§ 1961 et seq. (“RICO”). In August 2002, the Ntsebeza Plaintiffs filed a motion with the Judicial Panel on Multidistrict Litigation (“MDL Panel”) to transfer all of the actions to the Southern District of New York, and in December 2002, the MDL Panel ordered that transfer for coor dinated pre-trial proceedings. See In re S. African Apartheid Litig. , 23 8 F. Su pp. 2d 1 379 , 13 80– 81 ( J. P. M.L. 2002). In July

2003, thir

ty- one of the

fifty -five de fendant s in the Nts ebeza an d Digwa maje actions filed a joint motion to dismiss. Following the transfer of the Khulumani complaint to the Southern District of New York, eighteen of the twe nty-three de fendants in that action also filed a joint motion

to dismiss. 2 Later that month, Penuell Mpapa Maduna, w ho was then the Minister of Justice and Constitutional Development for South Africa, submitted an ex parte declaration to the district court, st ating th at the Sout

h Africa n gover nment re garde d these pr

oceedin gs as int erfer ing “wi th3 The Ntsebeza and Digwama je Plaintiffs moved to strike Maduna’s declara tion and submissio

ns, asserting that the declaratio n contained “legal a

rgument by

a non-party

” and “conclusory

allegations not supported by any

creditable citation to the record ,” and recited “disputed evidentiary facts.” They also argue d that i

nternati onal co mity

could o nly be raised by a p arty a s an aff irmati ve def ense, a nd ev en if comit y wer e avai lable, “ it woul d be ina ppropri ate for t

he Cou rt to dis miss this cas e witho ut ma kingfactbound determination s that cannot be m ade on this record . . . .” The dock et sheet indicates that the district court never ruled on this motion.

4 Specifically, the dis trict court inquired whether “ adjudication of these cases wou ld have an adverse imp act on the interests of the United States and, if so , the nature and sig nificance of any suc

h impact.”

5 The plai ntiffs so ught t o prov ide part iculariz ed alleg ations d

irected at partic

ular def endants , to “meet the new Sosa standard,” and to clarify for the district court that their ATCA claims w ere not based 7 a foreign sovereign’ s efforts to address matters in which it has the predominant interest” and asking that the proceedings be dismissed. 3 After receiving the South African de claration, the district court, sua sponte , solicited the views of the United States Department of State. 4 The State Department responded by submitting a “Statement of Intere st” asserting that “continued adjudication of the above-referenc ed matters risks potentially serious a dverse consequences for significant interests of the United States.” Ruling on the defendants’ motions to dismiss, the district court held that the plaintiffs failed to establish subject matter jurisdiction under the ATCA. The district court ruled further that the plaintiffs, having asserted diversity as an alternate basis for jurisdiction, could not establish subject matter jurisdiction on that ground. The district court also held that the plaintiffs failed to state a claim under the TVPA and failed to establish subject matter jur isdiction under RICO. See In re S. African Apartheid Litig. , 346 F. Supp. 2d at 554–57. T he district court therefore dismissed the plaintiffs’ complaints in their entirety

. See id. at 557. In March 2005, the Ntsebeza and Digwamaje Plaintiffs moved for permission to file an a mended consolidated complain t, 5 which the district court denied. See Part IV, infra . Following the district court’supon the corporations “m erely doing b

usiness” in South Africa.

6 The Digwa maje Plai nti ffs have n ot ch all enge d the dismi ssa l of t hei r RICO c lai m. 8 issuance of an amended judgment containing an amended Rule 54(b) certification, the plaintiffs filed time ly notices of

appeal. 6

II All membe

rs of the panel joi n to affir m the distr

ict cour t’s dismissa

l of the Di gwama

je Plaintiffs’ TVPA claims. The Digwamaje Plaintiffs asserted a c laim under the TVPA, alleging that the defendants “aided and abetted the a partheid regime’s subjecting the Plaintiffs to torture and extrajudicial killing within the meaning of the Torture Victim Protection Act . . . under actual or apparent authority , or under color of law.” The TVPA p rovides: Anindividual who, under actual or apparent authority, or

color of law , of an y foreign nation- (1) subjects an individual to torture shall, in a civil action, be liable for damage s to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the indiv

idual’s le gal re

present ati ve, or t o any person w ho may be a claimant in an action for wrongful death. 28 U.S.C. § 1350 note § 2(a). For purposes of the TVPA, an individual “acts under color of law . . . when he acts together with state officia ls or with significant state aid.” Kadic v. Ka radzic , 70 F.3d 232, 245 (2d Cir. 1995)

. The Dig wamaje Pl aintiffs , althoug h twice ha

ving ame nded thei r complain t, failed to link any

defenda nts to state

aid or the

conduct o f state of

ficials. Further, based on the district court’s discussion of the matter of diversity jurisdiction, we affirm t he dismissa

l of the c omplaints i

nsofar a s they

seek to a ssert jur

isdiction u

nder 28 U .S.C. § 1332(a)(3).7 Although the d istrict court rested its decision to deny the plaintiffs’ m otion to replead on severa l grou nds, it is not c lear fro m the

district court’s order t hat it w ould ha

ve rea ched th e sam e result

in the absence of its erroneou s belief that any am endment would

be futile. I

t seems m

ost respectful of the district court’s consid erable d iscretio n in thi s area to

allow i t to determin e in the

first in stance w

hether t o allow the plaintiffs to replead. In that sa me vein, we also leave to the district court on rem and the first opportu nity t o consi der any

moti on that may

be filed by th e Khulum

ani plai ntiffs se eking

perm ission t o amend their comp laint. 9 III Two membe

rs of this p anel join

to vacat e the distr ict cour t’s dismissa

l of the pla

intiffs’ ATCA claims because the district court erred in holding tha t aiding and abetting violations of customar y in ternational law c annot provide a ba sis for AT CA jurisdic tion. We hol d that in thi s Circuit, a plaintiff may plea d a theory of

aiding and abetting liability under the ATCA. The respec tive rati onales of

Judges Ka

tzmann and

Hall are set forth in separ ate conc urring opinions.

IV We further vacate the district court’s order de nying plaintiffs’ motion for leave to amend. In deny ing this motion, the district court relied, in part, on the erroneous premise that subject matt er jur isdi ction did n ot in here an d reaso ned th at any addi tion al ame ndmen ts to the pl eadin gs would be futile. Because the denial of the motion rested, in pa rt, on this erroneous premise, we vacate that order. See Sista v. CDC Ixis N. Am., Inc. , 445 F.3d 161, 177 (2d Cir. 2006) (“The standard for reviewing the denial of a motion to amend a complaint is abuse of discretion . . . .” (interna l quotation

marks omit

ted)); see also Zervos v. Verizon N.Y., Inc. , 252 F.3d 163, 169 (2d Cir. 2001)

(“A distr ict cour t ‘abuse s’ or ‘e xceeds’ t

he discr etion ac corded t

o it when . . . its decision rests on an error of law (such as a pplication of the wrong legal principle) . . . .”). 7 UntilWe do no t, how ever, believe it is n ecessary to va cate the district court’s order t o the ex tent tha t it denied the plai

ntiffs’ m otion w ith resp ect to their TVPA claim s. Giv en that the plai

ntiffs h ad prev

iously amended their com

plaint twice and did no t bring the present m otion to amend until after the district court’s order d

ismis sing t

he case , the d

istrict c ourt did

not abu se its d

iscretio n in den

ying them leave to replead. See, e.g., Gura ry v. Winehou se , 235 F.3d 792 , 801 (2d Cir. 20 00) (“A district court has broad discretion in determinin

g whether to g

rant leave to am

end, and we rev

iew such determ

inations for abuse of discr etion.” ).

8 In his dissen

t, Judge Korman adamantly a sserts that our opinion fails to show deference to the position of the Republic of South Africa, a p osition that also com mands the supp ort of the United States Department of S tate. Opinion of Judg e Korman at 92–10 0. He presents an analysis of prudential conside rations, the stre

ngth o f which

we dec line to address , that m ay we ll sug gest a

roadm ap for f uture motion practice befo

re the district court on rem and. Id. at 73–92. I

mplicit through

out is the sugg estion that by correct ing th e district court’ s error a nd clari fying

the app licabili

ty of a ccessor ial liabi lity to violat ions of internat

ional la w, we have s omeh ow irrevocab ly, an d to the derog ation of

South Africa’s sovereignty , relegated the plaintiffs’ claims to the judicial proces ses of the United States. With all due respect, Judge Korm

an’s position in this reg ard is overstated and ignores the fact that well before any steps can be taken

to address the m

erits of plaintiffs’ claims, the district court may allow for a full airing of prudential concerns and , if it so chooses, en gage in an analysis of, and d ecision regarding , those and other issues , somethi ng that h as been heret ofore lacking. 10 the district court has an opportunity to rule on the motion to amend, we cannot be sure that the plea ding s in th e rec ord b efor

e us r epre sent t he fi nal v ersi on of

the p laint

iffs ’ all ega

tions . We therefore decline to determine whethe r the plaintiffs have adequately pled a violation of international law sufficient to avail themselves of jurisdiction under the ATCA and re mand to the district court to allow it to address the pleadings after amendment a s may be per mitted has occurred.

V Moreover, we decline to affirm the dismissal of plaintiffs’ ATCA c laims on the basis of the prude ntial concerns r

aised by the defe ndants. 8 In Sosa v. Al

varez-M achain , 542 U.S. 692, 733 n.21 ( 2004), the

Supreme C ourt iden

tified two differe nt respe cts in whic

h courts should consider prudential concerns in deciding whe ther to hear claims brought under the ATCA. First,9 We reject the pro position endors ed by

Judge Korman

that th e Supre

me C ourt, in

a footn ote written while deciding

a different case, would

instruct us on how to decide this case, wh ich was not before it. Opinion of Judge Korman at 7 3. Instead, we take the S upreme Court’s la nguage in footnote 21 of Sosa at fac e value, as simply o bservi ng that t here i s a stro ng argument that th e views of the Exec utive Branch on the issue of the case ’s impact on foreign p olicy should be given “serious weight. ” Sosa , 542 U.S. at 733 n. 21. We view summa ry dismissal a

t the behest of a footnote as premature. See Cent. Va. Cmty. College

v. Kat z , 546 U .S. 35 6, 363 (2006)

. 11 the Supreme Court held that courts should consider prudential concerns in the context of determining whether to recog nize a cause of action under the ATCA. Specifically, the Court explained that “the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” Sosa , 542 U.S. at 732-33 (i nternal footnote omitted). Second, t

he Supre me Court r

ecogn ized that, i

n certa in cases , other pr udential principle s might op erate to “limit[] the a

vailabili ty o f relief

in the fe deral c ourts for violations of customary inter national law.” Id. at 733 n.21. 9 One such principle specific ally

identifie d by

the Court was “a pol icy

of case -specif

ic deference to the political branches.” Id . This policy of “[j]udicial deferenc e to the Executive Branch on questions of foreign policy has long been established under the prudential justiciability doctrine known as the ‘political question’ doctrine.” Whiteman v. Dorotheum GmbH & Co KG , 431 F.3d 57, 69 (2d Cir. 2005). Another prudential doctrine that the defendants raise in this case is “international comity .” See, e.g. , Sosa , 542 U.S. at 761 (Brey er, J., concurring) (suggesting that courts should consider “whether the exercise of jurisdiction under the [ATCA] is consistent with those notions of comity that lead each nation to respect the soverei gn rig

hts of othe

r nations by l imiting th e reac

h of its law s and thei

r enfor cement” ). This doctrine, the application of which “ordinarily lies within the discretion of the district court,” asks10 The part ies ag ree that Sosa ’s reference to “case- specific deference” imp licates either the political question or international comity doctrine.

11 Judge Korman su

ggests that the content of the Defendan t’s Joint Motion to Dismiss (“Joint Motion”), cited by the

district court, supports the view that the issue of deference to other political branche s was a

ddresse d below . Opin

ion of Ju dge Ko rman at 93. We fail t o see ho w the c ontent o f a motion, the bas is for which Judge Korm an concedes the district cou rt “declin[ed] to address,” id. , lends any support to the

proposition that the district co urt reached the issues addre ssed therein. 12 whether “adjudication of [the] case by a United States court would offend amicable working relationships with [a foreign country ].” 10 Bigio v. Coca-Cola Co. , 448 F.3d 176, 178 (2d Cir. 2006) (internal quotation marks omitted). In dismissing the plaintiffs’ complaints below, the district court explicitly refrained from addressing the defendants’ arg uments that the ATCA claim presented a non-justiciable political question. 11 In re S. African Apartheid Litig. , 346 F. Supp. 2d at 543 n.4 (“ Defendants also argue that . . . the matter is a non-justiciable political question. Given the Court’s finding that defendants are entitled to relief on other g rounds, the Court need not address these remaining grounds for defendants’ motion.” (internal c itation omitted)). Although the district court noted some collateral consequences that might result fr om the adjudication of these kinds of claims, the consequences it

noted we re prima rily those “th at would r

esult from allowing

courts in this country to hear c ivil suits for the aid ing and abetting of violati ons of inte

rnationa l norms ac

ross the globe.” Id. at 551. Furthermore, the district court expressly characterized its consideration of the collateral consequences as fulfilling its “duty to engage in ‘vigilant doorke eping.’” Id. at 550 (quoting from Sosa , 542 U.S. a

t 729); see also id. at 553. As Sosa makes cl ear, thi s duty is fulfilled in the decision of a federal court to exercise its judicial discretion to rec ognize a cause of action for a violation of customary international law, an issue distinct from whether the12 It was error for the district court to consid er these collateral consequence s in the context of decidin g prel imina

rily w hether i t had juri sdiction

to hear this ca se unde

r the ATC

A. However , eve

n if we con strued t

he distr ict cour t’s disc ussion of the “ collater

al conse quences ” as a d

ecision not to recognize a ca

use of action for plaintiffs’ claim s, in which context c onsideration of these conseq uences would h ave be en appr

opriate, rema

nd wou ld still be nece ssary because the dis trict cou

rt’s dec ision no t to recognize a ca

use of action mig

ht still have rested, in

part, on its erroneous view that the ATCA does not allow fo r claim s of aid

ing an d abetti ng lia bility . Beca

use we cannot know

whethe r the di strict co

urt would have declined to recognize the cause of act ion plaintif fs bring in the absenc e of that error, we believe it is appropriate to remand, so it can have the o pportunity to decide this issue in the first instance. 13 adjudication of a given suit is barred by political question doctrine. Sosa , 542 U .S. at 729. W e see no reason to read the district court’s citation to this part of Sosa as an indication that the court was also (and contrary

to its explicit disclaimer) engaged in a consideration of the political question or other prudentia l doctrine s. 12 To the extent that limited portions of the district court’s discussion were addressed to the statements of interest submitted by the governments of the United States and South Africa, In re S. African Apartheid Litig. , 346 F. Supp. 2d at 553–54, these statements were merely illustrative of a general concer n with what the court saw as the “far-re achin g” cons equen ces of t he spe cific norm i t was t hen di scuss ing ( i.e., doing bu siness in South Africa), id. at 553. The citation to Sosa ’s footnote 21 indicates only that the district c ourt consider ed the vie ws of those

gover nments in a ssessing

“the col lateral

consequences that would result from finding a new international law violation,” id. , and doe s not suff ice to de monstrate that the court (again contrary to its stated intentions) adopted sub rosa the defendants’ political question arguments. We declin e to addr

ess these case-s pecific prudenti al doctr

ines now a

nd instea d remand to the distri ct court

to allow it t

o enga ge in the first insta

nce in the caref ul “case -by -case”

analy sis that questions of this type require. This a pproach is particularly

appropriate here because the plaintiffs have indicated that, if given the opportunity, they would narr ow their claims and clarify13 While we cannot k now how these dev

elopments will affect the positions of the United States and South Africa with

respect to this litigation, the district court m ay wish to solicit a

new the views of these governm

ents, and thus that fact, too, counsels ag ainst us reaching thes e issues at this time

. 14 We do not believe the Supreme Court’s statement in Sosa is to the contrary. Sosa , 542 U.S. at 733 n. 21 (not

ing on ly tha t “there is a str ong a rgum ent that federal courts should give

serious weig ht to the Executive Bran

ch’s view of the case’s impact on foreign policy”). Indeed, to give dispo sitive weight 14 the nature of their allegations ag ainst the various defendants, changes that may affect how the district court ultimately decides to re solve these issues. Oral Argument Tr., Jan. 24, 2006 at 7–8, 14–15; cf. Zivotofsk

y v. Sec ’y of State , 444 F.3d 614, 619–2 0 (D.C. Cir . 2006) (h olding that, where the specific relief soug ht by the plaintiff had cha nged, remand was appropriate to allow the district court to develop a more complete record as to whe ther the revised claim presented a nonjusticiable political question). 13 On remand, the district court will have an opportunity to consider the guidance provided by our prior ca ses regarding the re levant weight of statements of interest submitted by the United States and other governments. I n Whiteman , for example, we addressed “when, and to what extent, . . . the stated foreign policy interests of the United States [should] be accorded deference,” and we he ld that we should be guided in this determination by “our application of the political question d

octrine .” 431 F. 3d at 69, 7 1. In that cont ext, we he ld that “not every case ‘touchin g fore ign rel ations’ is

nonjustic iable an

d judge s should not

reflexive ly in

voke thes e doct rine s to avoid di ffic

ult an d some what sens itive deci sions in the cont ext of

huma n rig hts. We believe a prefe rable a pproach is to weig

h caref ully the rele vant cons iderations on a ca se-by -case basis.” Id. at 69 ( quot ing Kadic , 70 F.3d at 249). We have held that “even an asser tion of the political question d

octrine by t he Executi

ve Bra nch, enti tled to re spectfu

l conside ration, would not necessarily pr

eclude adjudication.” 14 Kadic , 70 F.3d at 250. Likewise, althoug h the views ofto the Executive B ranch’s views wo uld likely raise serious separation-o f-powers con cerns. Cf., e.g. , First Nat’l City Bank v. Banco Nacional de Cuba , 406 U .S. 75 9, 763 (1972) (Powel l, J., co ncurrin g) (“I would be unco mfort

able wi th a doctrine wh

ich wou ld requi re the jud iciary to rece ive th e Execu

tive’s permission before in

voking its jurisdiction. Such a notion, in the name of the doctrine of separation of powers , seem s to me to conflict wi th that very

doctrine.”). 15 foreign nations are an important considera tion under the doctrine of “international comity ,” we have not held them to be dispositive. See, e.g., Jota v. Texaco Inc. , 157 F.3d 153, 159–61 (2d Cir. 1998) . At this sta

ge in the litigati on, we expr

ess no vie w as to wha

t level of defere nce to their vie ws is appr

opriate in this par

ticular c ase. I

nstead, w e reman

d to the dis trict cou

rt so that i

t may caref ully consider whether any of these doctrine s requir

e dismissa

l.

VI We there fore AF FIRM

the distri ct court ’s dismissa l of the Di gwama

je Plaintif

fs’ TVPA claims. We

also AFF IRM th e distric t court’s determination tha

t the plain tiffs hav e failed

to satisfy the diversity

requirements of 28 U.S.C. § 1332(a)(3). We VACATE the district court’s dismissal o f the pla

intiffs’ ATCA cla

ims, as we ll as the di strict co urt’s de nial of the

Digwamaje and Ntse beza Plain

tiffs’ mo tions to ame

nd and REMA

ND for f urther proceed

ings con sistent wit

h this opinion.

K ATZMANN , Circuit Judge , conc urrin g: This case calls upon us in principal pa rt to dete rmine whe

ther the district c ourt err

ed in concluding that it does not have jurisdiction over the plaintiffs’ claims broug ht under the Alien Torts Claim Act (“ATCA”), 28 U.S.C. § 1350. I respe ctfully believe that the district c ourt erred16

in its analysis of plaintiffs’ ATCA claims in two fundame ntal respects. First, it conflated the jurisdictional and cause of action analy ses required by

the ATCA. As a result, the district court mistakenly incorporate d a discretionary analysis into the determination of whe ther it has jurisdiction under the ATCA. Second, it erroneously held that aiding and abetting liability does not exist under international law.

I The ATCA

provides that “[t]he

district c ourts sha

ll have or iginal ju risdiction of any

civil action by an a

lien for a tort only, committed in violation of the law of na tions or a treaty of

the United States.” Id. When we last substantively gr appled with the meaning of this statute, we noted that “neither Congress nor the Supreme Court ha[d] definitively resolved the complex and controversial questions regarding the meaning and scope of the ATCA.” Flores v. S. Peru Copper Corp. , 414 F.3d

233, 247 ( 2d Cir. 200 3). The next y ear the Supreme C ourt weig

hed in on the modern resurgence of the statute in Sosa v. Al

varez-M achain , 542 U.S. 6 92 (2004) . While the Court d

id not def initively resolve all of the complex an

d controv ersial qu

estions the

ATCA raises, it did clarify to a

significant degree how c laims brought under the ATCA should be analyzed. Sosa endorsed our Court’s prior approach to the ATCA to the extent that we rec ognized that the Act created jurisdiction for a narrow se t of violations of international law, see id. at 720 (“Congress intended the [ATCA] to furnish jurisdiction for a relatively modest set of actions allegi ng viola tions of the

law of na tions.”) ; see also F

ilartiga v. Pena-Ir

ala , 630 F.2d 876,17

887–88 (2d Cir. 1980) (construing the ATCA “as opening the federal courts for adjudication of . . . well-established, universally recognized norms of international law”), and tha t a plaintiff’s claim “must be gauged ag ainst the current state of international law,” Sosa , 542 U.S. a t 733; see also Filartiga , 630 F.2d

at 881 (“ [I]t is c lear tha

t courts mu st interpr

et international la

w not as it was in 1789, but as it has evolved and exists among the nations of the world today .”). The Court also ge nerally endorse d the cau

tious appr oach tha t we had long appl ied in det ermining whether to hear cases brought under the A TCA. See, e.g. , Sosa , 542 U.S. at 728–29 (noting that “great caution” must be exercised in deciding which “norms of today ’s law of nations may . . . be recog nized leg itimately

by f ederal courts” ); see also Flores , 414 F.3d at 248 (“[I]n determining what offenses violate customary international law, courts must proceed with extraordinary care and restraint.”). Sosa did, however, deviate from our case law in one crucial respect. We had allowed cases to proceed under the ATCA on the assumption that when plaintiffs a lleged violations of well-established international law, their “causes of a ction are statutorily author ized.” Kadic v. Karadzic , 70 F.3d 2 32, 246 (2 d Cir. 1995 ); see also Flores , 414 F.3d at 245 (discussing the reception of “

Filartiga ’s holding that the ATCA creates a private r ight of action for violations of United Sta

tes trea ties or cu stomary

interna tional law ”). The Supreme C ourt flat

ly r ejecte d this notion. See Sosa , 542 U.S. at 713-14 (citing William R. Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law Of Nations , 18 Conn. L. Rev. 467, 479, 480 (1986)). Sosa construe d the statu te instea d to be of a

“strictl y ju risdictional natur

e,” in the sense that it “a ddress[e d] the powe

r of the c ourts to e

ntertain cases c oncerne d with a ce rtain subject.” 542 U.S. at 713, 714.18

This holding led the Court to explore “a new question, this one about the interaction between the [ATCA] at the time of its enactment and the ambient law of the era.” Id. at 714. The Court rejected the argument that the F irst Congress passed the ATCA “as a jurisdictional convenie nce to be placed on the shel f for use by a future Congress

or state l egisla

ture tha t might, some day, authorize the c reation of causes of action.” Id. at 719. Ra ther, the historica l materia ls suggested that “the statute was intended to ha ve practical effect the moment it became law.” Id. at 724. This practical effect would be achie ved through the invocation of causes of ac tion already available at common law. Because some “ torts in violation of the law of nations were understood to be within the common law” of 1789, the First Congress would have “ understood that the district courts would recognize private causes of a ction for certain torts in violation of the law of nations.” Id. at 720, 724. No further substantive legislation was required. Id. at 724 (“The jurisdictional grant is best read as having been enacted on the understanding tha t the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.”)

. Finding that “no d

evelopme nt in the tw o centur

ies from t he enactment of § 1 350 to [today] has categor

ically prec luded federal courts from recog nizing a claim under the law of nations as an element of common law,” id. at 724–25, the Court held that federal courts retained the ability to “adapt[] the law of nations to private rig hts” by rec ognizing “further international norms as judicially enforc eable today ,” id. at 728, 729. Most importantly, these norms were enforceable not by

virtue of this statutory cre ation or authorization of a private right of action, as we had previously

assumed, but rather through an exercise in “re sidual common law discretion” to create causes of action under f ederal common law to remedy the violation of those norms. Id.1 This “series of reasons” com prises (1) a change in the “prevailing conception of the com

mon law” su ch that there is

now “a gener al unde rstandin g that the law is not s o muc

h found or disc overe d as it is either made or created,” Sosa , 542 U .S. at 725; (2 ) a “reth inking of the r ole of t he fede ral cour ts in making it,” id. at 726; (3) the recog nition that “a decision to c reate a private rig

ht of action is one better left to legislative judg

ment in the g

reat majority of cases, ” id. at 727; (4) the fact that “attempts by federal courts to craft rem edies for the violation of new norms of international law would raise risks of adverse foreign policy consequences ,” id. at 727– 28; and (5) the lack of a “congres sional m andate” to engage in judicial law

making in this area, id. at 728.

19 at 738; see also id. at 728–31. Thus, Sosa makes clear that all ATCA litigation is in fact based on feder al common

law, rat her than a statutor y c ause of a

ction. B ut a fede

ral cour t’s power to create these causes of action is not without limits. Indeed, the Court identified a number of “good r easons f or a res trained

concep tion of the

discreti on a fede

ral cour t should exe

rcise in considering a new cause of a ction of this kind.” 1 Id. at 725, 72 8. Its consider ation of these factors led the Court to identify a minimum requirement “for accepting a cause of action subject to jurisdiction under

§ 1350,” namely , that “f

ederal courts should not re cognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among

civilized nations than the historical paradigms familiar when § 1350 was enacted.” Id. at 732. Based on the Supreme Court’s holdings in Sosa that (1) the ATCA is purely jurisdictional and (2) the common law provides the cause of ac tion for claims brought under that jurisdiction, a federal court faced with a suit alleging a tort in violation of international law must undertake two distinct a naly tical inqu iries. One is whether jurisd iction lie s under th e ATCA. T he other is whether to recognize a common-law ca use of action to provide a remedy for the alleged violation of international law. Requiring this analy tical separation in ATCA litigation comports with the general principle that whether jurisdiction exists and whether a cause of action exists are two2 Federa l courts may , of course, d

ecline t o accept jurisdic tion ov

er a par ticular c ase in appropriate circumstanc es and in accordance w ith the well-estab lished principles that gu ide such decisions. I merely sug

gest that because fed

eral courts “have on

ly the jurisdiction granted to them by Congress,” Carlyle

Tower s Cond o. Ass’ n, Inc. v. FD

IC , 170 F.3d 301 , 306 (2d Cir. 19 99), their exercise of comm on-law discretion

is better viewed a s creating a cause o f action than jurisdiction. Cf. Bolin v. Sears, Roebuck &

Co. , 231 F .3d 97 0, 974

(5th C ir. 200 0) (hold

ing th at Cong

ress’s g rant of authori

ty to the Supreme C ourt to mak e rules that affect only

the timing of appeals does not con stitute an improper delegation of its power to confer jurisdiction). 20 distinct inquiries. See TCG N.Y., Inc. v. City of White Plains , 305 F.3d 67, 74 (2d Cir. 2002) (noting the Supre

me Court’ s holding

that “‘the question whethe r a fede ral statu te crea tes a cla im for relief is not jurisdictional’” (quoting Northwest Airlines, Inc. v. County of Kent , 510 U.S. 355, 365 (1994 )); cf. Rasul v

. Bush , 542 U.S. 466, 484–85 (2004) (reversing the D.C. Circuit’s holding that jurisdiction did not lie under the ATCA without engaging in a cause of action inquiry). Moreove

r, it reflects the fact that it is Congress, and not the courts, that possesses the power to define the scope of the courts’ jurisdiction. Cf. Whitmore v. Arkansas , 495 U.S. 149, 155–56, 161 (1990) (noting that “[a] federal court is powerless to cre ate its own jurisdiction” and that a court may not “ employ untethered notions of wha t might be good public policy to expand our jurisdiction in an appealing case”). Thus, one mig ht question the extent to which a federal court shoul d exe rcise its o wn jud gment a bout the pr actic al con seque nces o f allo wing a s uit t o go forward in the context of its jurisdictional inquiry when, a ccording to the plain languag e of the ATCA, that inquiry is resolved solely by refe rence to international law. Cf. Harrison v. PPG Indus., Inc. , 446 U.S. 578, 593 (1980) (noting that courts should look to Congress’s intent, and not policy considerations, when c onstruing the terms of a jurisdictional statute). 2 By contras t, it is entirely appropr

iate for courts to consider such concerns in the conte xt of determining whether to recognize a cause of action under federal common law.3 In Flores we noted that the law of nations, as used in the ATCA “refers to the body of law known as customary internation al law.” 414 F. 3d at 247.

21 Having identified the two steps of the inquiry , I now elaborate on w hat each inquiry requires. Aside from noting that “Congre ss intended the [ATCA] to furnish jurisdiction for a relatively modest set of a ctions alleging violations of the law of nations,” Sosa , 542 U.S. at 720, the Supreme Court did not discuss the requirements for invoking this jurisdictional grant in a particular case. The ATCA, by its terms, “confers federal subject-matter jur isdiction when the following three conditions are satisfied: (1) an alien sue s (2) for a tort (3) committed in violation of the law of nations.” Kadic , 70 F.3d at 238. In Flores , we held that the law of nations, or customary interna

tional law, 3 “is composed only of those rule s that States universally abide by , or accede to, out of a

sense of legal o bligatio n and mutua

l concer n.” 414 F .3d at 248 ; see also The Paquete Habana , 175 U.S. 677, 708 (1900) (describing a rule of interna tional law as one reached by “g eneral consent of the civilized nations of the world” and “founde d on considerations of . . . the mutua l conveni ence of

bellige rent stat es”). I n determ ining wh ether a

given o ffense

meets these requirements, we look to the sources of law identified by the Statute of the International Court of Justice (“ICJ Statute”) as the proper sources of inter national law. See Flores , 414 F.3d at 250–51 . These in

clude: a. international conventions, whether gener al or particular, establishing rules expressly recog nized by the conte sting sta

tes; b. international c

ustom, as e

vidence of a ge neral pr actice accept ed as law ; c. the g eneral

principle s of law r

ecogn ized by civilized nations;22

[and] d. . . . judic ial decis ions and th e teach ings of t he most hig

hly qualifie d publicis ts of the various nations, as subsidiary means for the determination of rules of law. ICJ Statute, art. 38, June 26, 1945, 59 Stat. 1055, 1060. If jurisdiction is established, the second inquiry is whether a common-law cause of action should be created to provide a remedy for the alleged violation of international law. Recog nizing that “the re are good re asons for

a restra ined conc eption of

the discr etion a f ederal court sho uld exercise in considering a new cause of action of this kind,” the Court in Sosa “require[d] any claim based on the present-day law of nations to rest on a norm of international characte r accepted by

the civilized world and defined with a specificity comparable to the features of the 18th-century pa

radigms we have recog

nized,” namely, “violation of saf e conducts, infringement of the rig hts of amb assador s, and pir acy .” 542 U.S . at 724–2 5; see also id. at 732 (“[W]e are persuaded that federal courts should not recog nize private claims under federal common law for violations of any international law nor m with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enac ted.”). In setting out this standard, the Court cited with approval our decision in Filartiga , noting t hat “[t]his li

mit upon judicial recognition is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court.” Id. The Supreme Court instructed that determining whether to rec ognize a new cause of action “should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” Id. at 732–33. I23

do not read Sosa as requi

ring tha t a court individua

lly a naly ze each o f the five

reasons it identifies as “argu[ing] for judicial caution when consider ing the kinds of individual claims that might implement the jurisdiction conferred by the . . . statute.” Sosa , 542 U.S. a t 725. The se reasons are already

captured by

the “high bar to new private cause s of action” set by the requirement that a claim be accepted by the civilized world and defined with a sufficient degre e of specificity. See id. at 727–32 ; see also id. at 725 (noting that “there are g ood reasons for a restrai ned conc eption of

[a feder al court ’s] discre

tion” and that “[a]c cordingly . . . courts should require any

claim” to meet its standard of acceptance a nd specificity); Da

vid H. Moore, An Emerging Uniformity for International Law , 75 Geo. Wa sh. L. Rev. 1, 40– 41 (2006)(“Those concerns, which arise whenever [customary international law] is incorporate d as federal common law, are mitigated by

the specific definition and mutuality r equirements.”). I do, howe ver, view the Co urt’ s inst ruct ion th at an

elem ent o f judg

ment m ust be invol ved i n the deci sion t

o rec ogni ze a cause of action as an invitation to lower courts to consider other prudential concerns consistent with Sosa ’s appro ach. As Sosa suggests, courts considering the “ practical consequences” of recognizing a new cause

of action should assess the consequences that might result from making the cause of action genera lly available to all potential plaintiffs. In su m, a distri ct court

analy zing a cl aim under

the ATCA w

ill normal ly b e requir

ed to engage in a two-par

t analysis. The district court he re erred by

failing to undertake separately the two parts of this analy sis. By

conflat ing thes e two que stions, the district c ourt inap

propria tely injected a discretionary

element into the determination of whether it had jurisdiction under the ATCA. See In re S. African Apartheid Litig. , 346 F. Supp. 2d at 551, 553–54. Of greater signific ance to t

he distric t court’s ultimate d

isposition o f the pla

intiffs’ claims, though, w as its24

error in analy zing whe ther the plaintiff s had alle ged a “

violation o f the law

of nation s,” as is required for plaintiffs to establish both jurisdiction and a cause of action. I t is to this analysis that I now turn. II Asking whether “aiding and a betting international law violations . . . [is a] violation[] of the law of nations th at [is] ‘acc epted by the civili zed world a

nd define d with a spe cificity comparable to the features of the 18th-ce ntury para

digms,’” Id. at 549 (quot ing Sosa , 542 U.S. at 725), the district court concluded that it is not, noting that it found “little [in its review of international law] that would lead [it] to conclude that aiding and abetting international law violations is itself an international law violation that is universally acc epted as a legal obligation,” id. Although I believe the district c ourt was correct to look to international law, I disagr ee with it s analy

sis.

A. The district court’s conclusion that its jurisdiction under the ATCA should depend on whether international law specifically recognizes liability for

aiding and abetting violations of the law of nations is consistent with our prior case law. We have repea tedly emphasized that the scope of the ATCA’s jurisdictional grant should be determined by reference to international law. See Kadic , 70 F.3d at 238 (requiring courts to eng age in a “searching review” of international law to verify that subje ct matter

jurisdict ion lies for a part

icular a ction); see also Flores , 414 F.3d at 248 (noting that “courts must proceed with extraordinary care and restraint” in “determining25

what off enses vio late cus tomary

interna tional law”); Filartiga , 630 F.2d at 887 (“The paucity of suits successfully maintained under the section is readily a

ttributable to the statute’s requirement of alleging a ‘violation of the law of na tions’ [] at the jurisdictional threshold.”). It is also consistent with the Supreme Court’s opinion in Sosa . The Court observed in a footnote that “whe

ther a norm is suff

iciently definite to support

a cause of actio n” raise s a “related consideration [of] whether international law extends the scope of liability for a violation of a giv en norm to

the perp etrator

being su ed, if the defenda nt is a priv ate act

or such a s a corporation or individual.” Sosa , 542 U.S. a t 732 & n.2 0. While this

footnote specific ally concerns the liability of non- state actors, its general principle is equally applicable to the question of where to look to determine whether the scope of liability for a violation of international law should extend to aiders and abettors. Furthermore, in Sosa , the Supreme Court echoed our prior cases’ emphasis on the narrowness of the ATCA’s jurisdictional g rant. See id. at 720 (“ Congre ss intended the [ATCA] to furnish jurisdiction for a relatively modest set of a ctions alleging violations of the la w of nations.”); see also id. at 712 (describing the statute as a “limited, implicit sanction to entertain the handful of international law cum common la w claims understo od in 1789” ). I b elieve that we most effec tively

maintain t

he appro priate sc ope of thi s jurisdiction by requiring

that the specific conduct allegedly committed by the defenda nts sued represents a violation of international law. Most importantly, the district court’s approac h is consistent with Sosa ’s broader characterization of the relationship between fe deral common law and international law. The ATCA’s jurisdictional grant “enable[s] federal courts to hea r claims in a very

limited category defined by the law of nations .” Id. at 712 (emphasis added). Once a court dete rmines that the4 In Kadic we assumed that the ATCA itself created the cause of action, see 70 F.3d at 246, but the same princi ple app lies t o the co mmon law fol lowing Sosa

. 26 defendants’ alleged conduct f alls within one of “the modest number of international law violations with a potential for personal liability” on the de fendants’ part, it then considers whether “the com mon law wo

uld provid

e a caus e of act

ion” to enable the

plaintiff s to bring their claim. Id. at 724. The common law thus permits the “independent judicial recog nition of actiona ble inter national norms,” b

ut the cou rts must, a s Sosa cautioned, be “vigilant doorkeep[ers].” Id. at 729. We recognized this important role for domestic law in Kadic when we explained that the “law of nations generally does not create private causes of a ction to remedy its violations, but leaves to each nation the task of defining the remedies that a re available for international law violations.” 4 70 F.3d a t 246. A fe deral c ourt is fr ee, in the exercise of its common-law discretion, to decline to provide a cause of a ction for a violation of international law. See Sosa , 542 U.S. a t 732–33; Tel-Oren

v. LibyanArab Repu blic , 726 F.2d 774, 778 (D.C. Cir. 1984)

(Edwar ds, J., conc

urring) (explain

ing that each sta te may choose w hether t o impose civil liab ility

for viola tions of int

ernatio nal law) . But to a ssure itse lf that it h as jurisdi ction to hear a claim under the ATCA, it should first determine whether the alleged tort was in fact “committe d in violati on of the l aw of na tions,” 28 U.S.C. § 135 0, and whe ther this l aw would recognize the defendants’ responsibility for that violation.

B. I conclude that the re cognition of the individual responsibility of a de fendant who aids and abets a violation of international law is one of those rules “that States universally abide by, or5 The district court seems to have dism issed the significance o f some of these sources because they impose d criminal and n ot civil responsibility

. See In re S. African Apartheid Litig. , 346 F. Supp. 2d at 550. This distinction finds no support in our case law, which has con sistently relied on crim inal law norms in establishing

the content of custom

ary international law fo

r purposes of the ATCA . In Kadic , for instance, we held th

at a defendant could be held liable under the ATCA based on international criminal law norm

s prohibiting g enocide and war crim es. Kadic , 70 F.3d at 24 1–42. In concluding that genocide was actionable under the ATCA, the Kadic court relied on a Un

ited Nations resolution declaring that g enocide is a “crime under international law,” G.A. Res. 9 6(I), at 188– 89, U.N. Do c. A/64 (Dec. 11, 1946), the London Charter, Agreement for the Prosecution and Punishment of the Major War Criminals of the E

uropean Axis, Aug . 8, 1945, E. A.S. 472, and the Genocide Conv

ention, Conventio

n on the Prevention and the Punishment of the Crime of Genocide, Dec. 9 , 1948, 102 Stat. 3045, 78 U.N .T.S. 277, which confirms that “genocide, whether comm itted in a time of peace or in time of war, is a crime under international law

which [the contracting

parties] undertake to prevent and to pu nish,” id. at art. I (emphasis add

ed); see Kadic , 70 F.3d at 24 1. Kadic also held that j urisdictio n existed under th e ATCA for “claims of wa

r crimes” because “[t]he liability of private individuals for com mitting war crimes has been recognize d since World War I and was confirm

ed at Nuremberg

after World War II ,” id. at 243, notwithstanding that the Nuremberg trials were criminal proceedings and that the proscription of war crimes is self- evidently crim inal in nature. Our past reliance on crim inal law norms seems entirely appropriate given that, as Justice Breyer observed in Sosa , international law does not maintain the k ind of hermetic sea

l between criminal and civil law that the district court sought to im pose. See Sosa , 542 U.S. at 762–63 (Breyer, J., concurring). “[T]he criminal courts of m any nations com

bine civil and crim

inal proceedings, allo

wing those injured by criminal conduct to be represented, and to recover d amages, in

the criminal procee ding itself.” Id. Moreover, the I CTY has recogniz ed the propriety of civil remedies for violations of international crimin al law i n certai n circum stances , notin

g for exam

ple that a tortu re vic tim m

ight “ bring a civi l suit for damage in a foreign court.” Prosecu tor v. F urundz ija , Case No. I

T-95-17 /1, Trial Chamber Judgment, ¶

155 (Dec. 10, 1998). 27 accede to, out of a sense of leg al obligation and mutual concern.” Flores , 414 F.3d at 248. Recognized as part of the customary law which authorized and was applied by the war crimes trials following the Second World War, it has been frequently invoked in international law instruments as an accepted mode of liability . During the second half of the twentieth ce ntury and into this ce

ntury , it has be en repe atedly recog nized in num erous int

ernatio nal trea

ties, most notably the Rome Statute of the I nternational Criminal Court, and in the statutes creating the International Criminal Tribunal for the F ormer Yugoslavia (“I CTY”) and the Interna tional Criminal Tribunal for Rwanda (“I CTR”). 5 Indeed, the United States conc edes, and the defenda nts do not di spute, tha

t the conc ept of cr

iminal aid

ing and abetting liability is “well6 The United States also no tes that the law governing the in itial military com

missions established to prosecute acts of internation al terrorism following

the September 11 attacks recog nized aiding and abetting as a m

ode of liability. See Crimes and Ele ments for Trials by

Military Comm

ission, 32 C.F.R . § 11.6(c)(1) (2003). The jurisdiction of the military tribu nals was limited to

established violations of the law of war or to “offe

nses that, consistent with that body of law , are triable by m ilitary comm

ission.” 32 C.F.R. § 11. 3(a). The law of war has long been rec ognized as a subset of international law. See Ex parte Quirin , 317 U.S. 1 , 27–28 (1942) (“From the very beginning of its history this Co urt has recogniz ed and applied the law of wa

r as including that p art of the law of nations which prescribes, for the conduct of war, the s tat us, r ight s and duti es of enemy n ati ons a s wel l as o f ene my indi vidu als .”). Whil e the Supr eme Court eventually

found that the m

ilitary comm

issions lacked the po

wer to proceed, see Hamdan v. Rumsfe ld , 126 S. Ct. 2749, 2759 (2006), nothing in that d ecision addressed the proprie ty of including aiding and abetting

liability as part of the commission s’ jurisdiction. 28 established” in international law. 6 Brief for the United States as Amicus Curaie, at 21. The Lond on Ch arter, which estab lish ed the Internat ional Mili tary Trib unal a t Nure mberg, was entered into by

the allied powers of World War II , “acting in the interests of all the United Nations,” to establish a tribunal to punish violations of international law. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, pmbl., Aug. 8, 1945, E.A.S. 472 (hereinafter L ondon Charter). We have previously recognized the London Charter as an authoritative source of customary international law. See Flores , 414 F.3d at 244 n.18; United States v. Yousef , 327 F.3d 56, 105 nn.39–40 (2d Cir. 2003) (citing the L ondon Charter for definitions of war crimes and cr imes against humanity unde r international law). Moreover, other courts, international bodies, and scholars ha ve recognized that the principles set out in the London Charter and applied by the International Military Tribunal are significant not only because

they have g arnered broad accepta nce, but also because they were viewed as reflecting and cry

stallizing preexisting customary interna tional law. See Princz v. Federal Republic of Germany , 26 F.3d 1166, 1174 (D.C. Cir. 1994) (“The trials for the first time made explicit an

d unambig

uous what

was ther etofore , as the Tr

ibunal ha s declar

ed, implic it in29

Inte rnationa l Law . . . .” (c itation, a

lteration, and inte

rnal quot ation mar ks omitted) ); Siderman de Blake v. Republic of Argentina , 965 F.2d 699, 715 (9th Cir. 1992) (“The legitimacy of the Nuremberg prosecutions rested . . . on the na ture of the acts [the defendants] committed: acts that the laws of all civilized nations define as criminal. The universal and fundamenta l rights of human beings identified by Nuremberg . . . are the dire ct ancestors of the universal and fundame ntal norms

recog nized as jus cogens .” (citations omitted)); Theodor Meron, Reflections on the Pro

secutionof War

Crimes by

Internat ional Tribun als , 100 Am. J. Int’l L. 551, 559 (2006) (“[T]he Nuremberg and Toky o Tribunals drew heavily

on the 1929 Geneva Prisoner of War Conve

ntion and t

he Four th Hagu e Convent

ion of 1907as estab lishing the substan tive law t o be applied—that is, as customary law and general principles of c riminal law, and as norms of both state responsi bility and indivi dual cri

minal liab ility .” (foot

notes omitt

ed)). I ndeed, s hortly after the conclusion of the initial war crimes trials, the Gene ral Assembly of the U

nited Nations unanimously approved a

resolution affirming “the principles of international law r ecognized by the Charter of the Nürnberg Tr ibunal and the judgment of the Tribunal.” Affirmation of the Principle s of I

nternat ional L aw Recog

nized in the

Charter of the Nü

rnberg Tribunal , G.A. Res

. 95 (I), at 188, U.N. Doc. A /236 (Dec. 11, 1946) (hereinafter Nur emberg Principles Resolution I). The London Charter extended individual responsibility for crimes within its jurisdiction not only to “[l]eaders, orga nizers, [and] instigators” but also to “accomplices participating in the formulation or execution of a common plan or conspiracy to commit” any of the cr imes triable by the Tribu nal. L ondon Char

ter art. 6. While the

Charter ’s lang

uage ta ken “lite rally . . . would seem to imply that the complicity rule did not apply to crimes per petrated by individual ac

tion,” as opposed to by common plan, in prac tice the Tribunal “applied genera l principles of criminal30

law regarding complicity .” International Law Commission, Principles of International L aw Recogn ized in the Charter

of the Nü

rnberg Tribunal and in the

Judgment o f the Tri

bunal, wi th commentaries, G.A.O.R., 5th session, Supp. No. 12, U.N. Doc. A/1316, ¶¶ 126-27 (1950) (“ILC Principles”). Accordingly , when the International L aw Commission (“IL C”) formulated the “principles recognized in the Charter . . . and in the judg ment of the Tribunal” at the direction of the General Assembly , see Nuremberg Principles Resolution I, it omitted any indication of a limitation on accomplice liability. Principle VI I provides that “[c]omplicity in the commission of a crime against peace, a

war crime, or a crime ag ainst humanity . . . is a crime under international law.” IL C Principles, Principle VII . The IL C’s formulation of the principles is considered to be an authoritative rendering of the for mal holdings of the Nuremberg Tribunal a nd is consulted as an authoritative source of customary international law by the I CTY and ICTR. See, e.g. , Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber Judgment, ¶ 526 (Sept. 2, 1998) (citing Principle VII

to establish that “participation by complicity in the most serious violations of intern ational h umanitar ian law w as consid

ered a c rime as e arly

as Nure mberg” ); see also Prosecu tor v. Milo

sevic , Case No. IT-02-54, Tria l Chamber Decision on Preliminary Motions, ¶¶ 29–30 (Nov. 8, 2001) (finding that “[t]he customary character of [a] rule [of individual responsibility] is further supported by its incorporation in a wide number of other instruments,” including, inter alia , the IL C Principles). That the L

ondon Char

ter’s use of the te rm “acc omplice”

was unde rstood to in

clude tho se who aid a nd abet a crime is f

urther c onfirmed

by t he law a pplied in th

e war crimes tria

ls held in the United States zone of occupation following World War II . War criminals in the United States zone of occupation were tried under Control Council L aw No. 10, an act promulgated by31

the joint allied body that coordinated the governance of post-war Germa ny. Allied Control Council Law No. 10 (Dec. 20, 1945) in Trials of W ar Criminals

Before th e Nuernbe

rg Military Tribunals Under Control Council Law No. 10 , at XVII I (William S. Hein & Co., I nc. 1997) (1949). Control Council Law No. 10 was patterne d after the London Charter and enacted under its authority with the declare d purpose to “give [it] effect.” Flick v. Johnson , 174 F.2d 983, 985–86 (D.C. Cir. 1949). According to Telford Tay lor, the Chief of Counsel for War Crimes and the Chief Prosecut or for th e United S tates und er the London Char

ter, the “underl yin g princ iples” of the London Charter and L aw No. 10 “are identical” and the tribunals oper ating under each “worked within the same framework” with re spect to “the basic principles of international penal law.” Telford Tay

lor, Final Report to the Secretary of the Army on the Nuernberg W ar Crimes Trial Under Control Council Law No. 10 , at 107 (1949), available at http://www.loc.gov/rr/frd/Military _Law/NT_final-repor

t.html. Control Council Law No. 10 imposed criminal liability on any one who was “an accessory to the commission of any such crime or ordered or abetted the same ,” Contro l Council Law No. 10 , art. I I, se c. 2 (emphasis added), and tribunals apply ing Control Council Law No. 10 are vie wed by interna

tional bodies as having recognized aiding a nd abetting liability. See Prosecu tor v. Furu ndzija , Case No. IT-95- 17/1, Trial Chamber Judgment, ¶¶ 195–225, 236–40 (Dec. 10, 1998) (review ing the case law). We have previously a

cknowledged the contribution that Control Council Law No. 10 and the tribunals that applied it have made to customary international law. In Flores , to support our

co nc lu si on th at “[ c] us to ma ry i nt er na ti on al la w r ul es pr os cr ib in g c ri me s a ga in st hu ma ni ty, including genocide, and war c rimes, have been enforceable against individuals since World War II ,” 414 F.3d at 244 n.18, we pointed specifically to Brigadier Genera

l Taylor’s asse ssment that7 The fact that some of these treaties do not directly criminaliz e aiding and abettin g, but instead require state parties to crim inalize it in their dom

estic law, see, e.g. , United Nations C onvention Ag ainst Transnational Organiz ed Crime, art. 5, G.A. Res. 55/25, at 5- 6, U.N. Doc . A/RES/55/25 (Jan. 8 , 2001) (“Each State Party shall adopt such leg islative and other m easures as may

be necessary to establish as cri minal offe nces . . . ai ding , abe tti ng, fa cil ita tin g or co unse lli ng the commis sio n of s eri ous c rime 32 “the major legal significance of the Law No. 10 judg

ments lies . . . in those portions of the judgments dealing with the area of personal responsibility for international law crimes,” Tay lor, supra , at 109, quoted in Flores , 414 F.3d at 244 n.18. The United States Government, as amicus in this case, similarly acknowle dges the role this law has play ed in establishing the availability of aiding and abetting liability in modern international criminal tribunals. Brief for the United States as Amicus Curaie, at 21 n.11. Having been accepted a s one of the core principles of the post–World War I I war crimes trials, the individual criminal responsibility of those who aid and a bet violations of international law was repeatedly

reflected in international treaties therea fter. These treaties include major ag re em en ts ad dr es si ng fu nd am en ta l h um an ri gh ts co nc er ns su ch as to rt ur e, ap ar th ei d, sl av er y, and genocide. See United Nations Convention Against Torture and Other Cruel, I nhuman or Degrading Trea

tment or Punishment, art. 4, Dec. 10, 1984, 1465 U.N.T.S. 85; International Convention on the Suppression and Punishment of the Crime of Apartheid, art. II I(b), Nov. 30, 1973, 1015 U.N.T.S. 243; Supplementary Convention on the Abolition of Slavery , the Slave Trade and Institutions and Practice s Similar to Slavery, art. 6, Sept. 7, 1956, 18 U.S.T. 3201, 266 U.N.T.S. 3; Convention on the Prevention and Punishment of the Crime of Genocide, art III (e), Dec. 9, 1948, 78 U.N.T.S. 277, 280 (hereinafter Genoc ide Convention). Aiding and abetting liability has also been rec ognized in treaties addressed to crimes of g eneral international concern such a s brib ery of forei gn offi cials in in ternat ional busi ness t ransac tion s and d rug tra ffick ing. 7involv

ing an organ ized crimin al gro

up.”), does not lim

it their value

as relev ant sou rces of custom

ary international law. Customary internation al law addresses “those w rongs that are of m

utual, and not merely sev

eral, concern to States,” Flores , 414 F.3d at 2 49 (internal quotation m arks and em

phases omitted), and where st ates join a bi nding agreement to enforce a mode of li ability in their domestic law, that decision reflects a m atter of mutual, n

ot several, concern and is thus properly considered a subject of customary in

ternational law. See id. (“Matters of mutual co ncern between States are those involving States’ actions perform

ed towards or with regard to the other . . . . Matters of sev eral concern amon g States are matters in which States are separately and independently

interested.” (citation and intern al quotati on ma

rks om itted)). 33 See Conventio n on Combat ing Br ibery of Fore ign Public

Officia ls in I nternat ional Bu siness Transactions, art. 1 (2), Dec. 17, 1997, reprinte d in 37 I.L .M. 1 (1998); United Nations Convention on Psychotropic Substances, art. 22 (2) (a)(ii), Feb. 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175. More recently , aiding and abetting has been included in a number of the treaties concerning organized cr

ime and terrorism, which have become prominent conce rns of the international community. See United Nations Convention Against Transnational Organized Crime, art. 5 (1)(b), G.A. Res. 55/25, at 5–6, U.N. Doc. A/RES/55/25 (Jan. 8, 2001) ; International Convention for the Suppression of the F inancing of Terrorism, art. 2 (5)(a ), opened for signature Jan. 10, 2000, 39 I.L .M. 270; International Convention for the Suppression of Terror ist Bombin

gs, art . 2 (3)(a

), May 23, 2001, 2 149 U.N.T .S. 256; see also Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime, ar t.5 (1)(b), G.A. Res. 55/25, at 40, U.N. Doc. A/RES/55/25 (Jan. 8, 200 1). The U nited Nat ions Secur

ity C ouncil (“ Security

Council”)

also appears to have r

ecogn ized the imp ortance

of accomplice lia

bility in the inte

rnationa l respons e to terrorism, directing states in the wake of the Septembe r 11 attacks to “[e]nsure that any person who participates in the financing, planning, pr eparation or perpetration of terrorists acts or in supporting terrorists acts is brought to justice.” S.C. Res. 1373, ¶ 2(e), U.N. Doc. S/RES/137334

(Sept. 28, 2001) (emphasis added). Aiding and abetting liability continues to be recognized and enforce d in international tribunals . The Statu

tes cre ating th e ICT

Y and I CTR were

adopted b

y r esolution s of the Se curity Council. I

n their re spective

sections on individu

al criminal responsibility, both stat utes impose individua l liability on any person “ who planned, instig ated, or dered, c ommitted or

otherwis e aided and abetted in the planning, prepar ation or execution” of a crime. Statute of the International Tribunal for the Former Yugoslavia, art. 7, S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) (

hereinafter I CTY Statute); Statute of the International Criminal Tribunal for Rwanda, art. 6, S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (hereinafter I CTR Statute). As with the London Charter, the rec ognition of aiding and abetting liability in the ICTY Statute is particularly sig

nificant because the “I

ndividual Criminal Responsibility” section of that statute was intended to codify existing norms of customary interna tional law. In his report to the Security Council re gardin

g the cr eation of the I CTY, the Se cretar

y- Genera l explained

that “in assigning to the Inte

rnational Tribunal the task of prosecuting persons re sponsible for serious violations of international humanitarian law, the Security Council would not be creating or purporting to ‘legislate’ that law. Rather, the I nternational Tribunal would have the task of apply ing existin

g inter national humanita rian law .” Repor

t of the Se cretar

y- Genera l Pursuant to Paragraph 2 of Security

Council Resolution 808, ¶ 29, U.N. Doc. S/25704 (May 3, 1993) (“Sec’y-General Report”). I ndeed, international law principles “require[d]” that the Tribunal’s jurisdiction be limited to “rules of international humanitarian law which are bey ond any doubt part of customary

[international] law.” Id. ¶ 34. Accordingly , the provision of aiding and abetting liability in the ICTY statute reflects a determination by both the Secretary-General and8 The Security Counc il did “elect[] to take a more expansiv

e approach to the choice

of the applicable law” with respe ct to punishable vio lations by prov iding for liability for violations of Additional Protocol I

I and com mon article 3 of the Geneva Co nvention despite the fact that Additional article II had “not yet b een universally recognized as part of customary international law,” and violations of com mon a rticle 3 had nev

er befor e been c rimin alized . Repo

rt of Se cretary -Gen

eral Pur suant to Parag raph 5 o f Secur

ity Co uncil R esolutio n 955, ¶ 12, UN do c. S/19 95/134(Feb. 13, 19 95). Wi th respect to individual res

ponsibility, thoug

h, the Security C ouncil adhered to custom ary law by

adopting the language used in the I CTY Statute. 35 the Security Council, which appr oved the Secretary

-General’s report when it enac ted the statute, that such liability is firmly established in customary interna tional law. The inclusion of substantively identical lang uage in the statute creating the ICTR presumably

reflects a similar determination. 8 Consistent with its statutory authorization, the ICTY ha s recognized and applied aiding and abetting liability for

violations of international law. See, e.g. , Furundzija , Trial Chamber Judgment, ¶¶ 249, 27 5; Prosecu tor v. Tadic , Case No. IT-94-1-T, Tr ial Chamber Opinion and Judgment, ¶¶ 689–92, 730, 735, 738 (May 7, 1997) . Furthermore, it has done so only after confirming that such liability wa s part of customary law. As the Tribunal recognized, it was required to determine “the objective basis for such individual re sponsibility as a matter of customar y in ternational law . . . since th e In ternational Tribu

nal is only

empower ed to appl y international humanitarian law that is ‘bey ond any doubt customary law.’” Tadic, Trial Chamber Opinion and Judgment, ¶ 662 (quoting Sec’y General Report ¶ 34). The Tribunal theref ore conducte d a probin

g and thoughtfu

l analy sis of inte rnationa l law sour ces in its e arly

decision s to confirm that aiding and abetting liability is recognized in customary international law. See Furundzija , Trial Cha

mber Judg

ment, ¶¶ 1 90–249; Tadic , Trial Cha mber Opin

ion and Judg

ment, ¶¶ 661–91.36

More recently , the Rome Statute of the International Criminal Court (“Rome Statute”), July 1 7, 1998, 21 87 U.N.T. S. 90, prov ides that a

person shall be cr

iminally responsi ble and li able for punishment for a crime within the jurisdiction of the I CC if that person: (c) For the p

urpose of facilita ting the commission

of such a crime, a ids, abet s or otherwise assists in its commission or its attempted commission, including providing the means for its commission; [or] (d) In any

other way c ontributes to the commission or attempted commission of such a crime by

a group of persons acting with a c ommon purpose. Such cont ribution shall be inte

ntional a nd shall e ither: (i) Be made with the aim of furthering the c riminal activity or criminal purpose of the group, where such a ctivity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made

in the know

ledge o f the inte

ntion of th e grou

p to commit the crime[.]
Id. art. 25 (3)(c), (d). The Rome Statute is particularly significant for the present inquiry because, unlike other sources of international legislation, it articulates the mens rea required for aiding and abetting liability. The Statute make s clear that, other than assistance render ed to the commission of a crime by

a group of persons acting with a c ommon purpose, a defendant is guilty of aiding and abetting the commission of a crime only if he does so “[f]or the purpose of facilitating the commission of such a crime.” Id . art. 25 (3)(c). In drawing upon the

Rome Statute, I recognize that it has y et to be construed by

the International Criminal Court; its precise contours and the e xtent to which it may differ from customary interna

tional law thus remain somewhat uncertain. Nevertheless, the Statute has be en signed by 139 c ountries and ratified by 105, including most of the mature democracies of the9 The United States has no t ratified the Rome Treaty for reasons unrelated to any concern over the definition of aiding -and- abetting. See Brief f or the U nited S tates as

Amic us Cura ie, at 2 4 n.14 ; see also Presbyterian Churc

h of Sudan v. Ta lisman Energy, Inc. , 374 F. Supp. 2d 331, 339–40 (S.D.N.Y. 2005) ( “[T]he U

nited S tates fe ared ‘un

check ed pow er in th e hands

of the p rosecut or’ that could l ead to ‘politic ized prosecut

ion.’”) . In

deed, t he Am icus Br ief appe ars to e

ndorse the elem

ents set out in Article 25(3). Brief for the U

nited States as Am

icus Curaie, at 26.

10 The same standard was also adopted by the United Nations Transition al Administration in East Timor (“UNTAET”). See UNTAET Reg. No. 2000/15 § 1 4.3(c).

11 There are occasions when this intent could be inferred from such sales. In Direct Sales Co. v. United States , 319 U.S. 7 03 (1943), the Supre me Court held that the sale of restricted g oods with an inherent capacity for harm, such as the opiates involved in that case, com bined with other factors, may be sufficient to prove that the seller was engaged in a conspiracy with the buyer. Id . at 71 1. Nev ertheles s, it observed that “not every instance of sale of restricted go ods, harmful as are opiates, in which the seller knows the buy

er intends to use them

unlawfully, will support a charge o f conspiracy.” Id. at 712. For example, the C ourt held that a conspiracy charge m ight not lie ag ainst a company engaged in

a “contin uous co urse of sales, m

ade eith er with strong

suspici on of th e buy er’s wro ngful use or w

ith knowledge, but without stim ulation or active incitem

ent to purchase.” Id. at 712 n.8. On the other hand, sales of unlim ited qua ntities s timul ated “b y all t he hig h-pr essure m ethods, legal

if not a lways appropriate in the sale of free com

modities,” id. at 712, would suffice to supp ort such a charg e. Ano ther exa

mple that would suffice is the Zyklon B case, Trial of Bruno Tesch and Two Others , in 1 Law Reports of W ar Criminals 93 (William S. H ein & Co., I nc. 1997) (1946), w

here the principal defendant not only supplied prussic acid to the S.S . but undertook to train its mem bers how it could be used to kill hum an beings. Id. at 95. 37 world. 9 It may

therefore be taken “by

and large . . . as constituting an authoritative e xpression of the legal views of a gre at number of States.” Furundzija , Trial Chamber Judgment, ¶ 227. Further more, the Rome Statut

e’s mens rea standard is entirely c onsistent with the application of accomplice liability under the sources of international law discussed above. 10 For example, in the Ministrie s Case conducted under Control Council Law No. 10, the tr ibunal declined to impose criminal liability on a bank off icer who was alleged to have “ made a loan, knowing or having good re ason to believe that the borrower w[ould] use the funds in financing enterpr ises [cond

ucted] in violation of

either national o r interna tional law ,” but wa s not prove n to have mad e the loa n with the p

urpose of facilita ting the enterpr ises’ ille gal activities. 11 United States v. von W

eizsaec ker ( The Ministr

ies Case ), in 14 Trials of War Criminals Before the12 These Tribunals would also exte nd liability to indiv

iduals who me

rely had “kn

owledge that [their] acts assist the com mission of the sp ecific crime of the p rincipal.” Prosecu tor v. V asiljevi c , Case No. I T-98- 32-A , Appe als Cha mber Judgm

ent, ¶ 102 (ii ) (Feb. 25, 20 04). A ny ind ividua l who a cts with the purpose to facilitate the commission of a crime wou ld necessarily act with

such knowledge. Thus, I do not view the

articulation of a broader d efinition by the I CTY as detracting from my po sition that liability in accordance w

ith the purposefulness standa rd is well-established and universally recognized under international law. The critical question is whether there is a discernable core de finition that comm ands th e sam e leve l of con sensus as the 1 8th- century crime s identi fied by

the Su preme Court in Sosa

. See Sosa , 542 U.S. at 732. I believe that the standa rd I adopt is such a definition. Cf. United States v. Smith, 18 U.S. (5 Whea t.) 153, 161 (1820 ) (noting that “wha tever may be the diversity

of definitions, in other respects, all writers concur, in h olding, that robbery , or forcible depredations upon the sea, animo furandi, is piracy”). 38 Nuernberg Military Tribunals Under Control Council Law No. 10 308, 622 (William S. Hein & Co., Inc. 1997) (1949). Meanw hile, those who assist in the commission of a crime with the purpose of facilitating that crime would be subject to aiding and abetting liability unde r the statutes governing

the I CTY and ICTR. 12 My resea rch has revealed no source of inter national law that recognizes liability for aiding and abetting a violation of interna tional law but would not authorize the imposition of such liability on a party who acts with the purpose of facilitating that violation (provided, of course, that the actus reus requirement is also satisfied). With respect to the actus reus component of the aiding and abetting liability, the interna tional leg islation is less help ful in iden

tify ing a spe cific sta

ndard. H owever , in the co urse of its analysis of customary international law, the ICTY conc luded that “the actus reus of aiding and abetting in international criminal law requires pra ctical assistance, encourage ment, or moral support which has a substantia l effect on the perpetration of the crime.” Furundzija , Trial Chamber Jud

gment, ¶ 235 (sec ond empha sis added ). My resear ch has uncovere d nothing to in di ca te th at a s ta nd ar d o th er th an “s ub st an ti al as si st an ce ” s ho ul d a pp ly. Accordingly , I conclude that a def endant may be

held liable under international law for13 In ligh t of this conclusion, I

need not address the plaintiffs’ argumen t that a theory of aiding and abetting liability

could be supplied by

domestic federal common law even if such liability did not exist under int ernational l aw. 39 aiding and abetting the violation of that law by another when the defendant (1) provides pr actical assistance to the principal which has a substantial effect on the pe rpetration of the crime, and (2) does so wi

th the pur pose of f acilitat ing the c ommission of

that crime. Furthermore , based o n this review of international law’s treatment of aiding and abetting liability ove r the past sixty y

ears, I conclude that aiding and abetting liability, so defined, is sufficiently “ well-established[] [and] universally rec ognized” to be considered customary international law for the purposes of the ATCA. See Kadic , 70 F.3d a t 239 (inte

rnal quot ation mar ks omitted) . This conclusion c omports with the decisions of several other federal c ourts that have considered the issue. 13 See Almog v. Arab Bank

, PLC , 471 F. Supp. 2d 257, 287 (E.D.N.Y. 2007) (noting the “vast body of law finding aiding a nd abetti ng liabi lity

availab le under

the [ATCA]” ); Presbyterian Church of Sudan v. Talisman Energy, Inc. , 453 F. Supp. 2d 633, 668 (S.D.N.Y. 2006) (“Aiding and abetting liability is a specifically

defined norm of international character that is properly applied a s the law of na tions for p

urposes o f the [ATCA ].”); Bowoto v. Chevron Corp. , No . C 99- 025 06 S I, 2006 WL 2455752, * 3–4 (N.D . Cal. Aug . 22, 2006) ; In re “Agent Orange” Prod. Liab. Litig. , 373 F. Supp. 2d 7, 52–54 (E.D.N.Y. 2005).

C. While I conclude that, at present, only aiding and abetting liability imposed in accordance with the standard outlined above is sufficiently well-established and universally recognized under14 The Appeals Cham ber, which is shared by both the I CTY and the I CTR, has made clear that the same law re lating to mo des of liability applies in both Tribunals. See Prosecutor v. N takirutimana , Case Nos. I CTR-96- 10-A, ICTR-96- 17-A, A ppeals Chamber Judgment, ¶ 468 (Dec. 13, 2004) (“Given the fact that both the I CTY and the I CTR have m irror articles identifying

the modes of liability by wh ich an individual can in

cur criminal responsib ility, the Appeals C hamber is satisfied that the jurisprudence of the I CTY sho

uld be a pplied t o the in terpreta tion of Article 6(1) of the I CTR Sta tute.”)

. 15 I note a p ossible tension in the tribuna ls’ definition aiding and

abetting under w

hich the neces sary mens rea is knowing assistance, Vasiljevic , Appeals Cham ber Judgment, ¶ 102(ii), yet requires that the act of assistance be “specifically directed to as sist . . . the perpetratio n of a specific crim

e,” id. ¶ 102(i). I express no view on how, if at all, th is possible tension m

ight be resolve d. 40 international law to trigger jurisdiction under the ATCA, I appreciate that this definition is not necessarily

set in stone. International law, like our domestic law , can change, and the ATCA wa s intended to change along with it. See Sosa , 542 U.S. a t 728 (noti

ng Cong ress’s in tention in passing the TVPA that the ATCA “‘remain intact to permit suits based on other norms that alread y exist or may

ripen in the future

into rules of customary

interna tional law ’” (quot

ing H.R. Rep. No. 102-367, pt. 1, p. 3 (1991)); see also id. at 725 (a rticulat ing the s tandard

for cour ts hearing “any

claim based on the present-day law of nations” (emphasis added)). I n this regard, I note that there is some support, principally in tribunal decisions from the ICTY and ICTR, for a definition of aiding and abetting that would lead to liability where an individual provides substantia l assistan ce with “ the knowl edge that the acts perfo rmed by the aide r and abe ttor assis t the commission of the specific crime of the principal.” 14 Prosecu tor v. Vasi ljevic , Case No. IT98-32-A , Appeal s Chamber Judgment, ¶¶ 102 (i )–(ii) ( Feb. 25, 2004); see also Furundzija , Trial Chamber Judgment, ¶¶ 249, 275; Tadic , Trial Chamber Opinion and Judgment, ¶¶ 689–92, 730, 735, 738. To be sure, I ac

knowledge limitations on the extent to which we may rely on the decision s of the ICTY and ICTR for the present purposes . 15 Those decisions arise out of41

completely distinct factua l contexts and often involve defendants who might have been convicte d on alternate theories of liability . Moreover, as a scholar and participant in the I CTY noted, panels of that Tribunal occasionally (and consciously)

engaged in discussions “peripher al to the ratio decidendiof a case” in order to provide “cla rification [that] might have some value for the future development of international criminal law.” Antonio Cassese, The ICTY: A Living and Vital Real ity , 2 J. Int’l Crim. Just. 585, 589–90 (2004). Such clarification through dicta can be useful and is not necessarily without justification. See id. at 590 (“[T]he absence of an interna tional law -maker

and an int

ernatio nal cour

t with comp

ulsory universa l jurisdic tion enta

ils that many rules ar e not cle ar, par

ticularl y w hen they are of c ustomary origin, and are

thus open t

o differi ng inter pretations—henc e the nee d for cou rts gra dually to spell ou

t the cont ents of those rules, if need be through obiter dic ta .”); see also 1 Oppenheim’s International L aw: Peace 41 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) (noting that “in view of the diff iculties surround ing the c odifica

tion of inte

rnationa l law,” in ternational tribun

als are expected to “fulfi l, inconspic uously but effic iently , a larg e part of the task o f develo

ping inte rnationa l law”). But it “may also prove

simply academic a

nd sometimes also misleading for future courts pronouncing on the same matters.” Cassese, supra , at 590. Nevertheless, the opinions of the ICTY a nd ICTR provide evidence of the state of customar y in ternational law. A s a leadi ng trea tise explai

ns, “dec isions of in

ternational tribun

als

. . . exerc ise consi derable

influenc e as an im

partial a nd conside

red state ment of the

law by jurists of authority in light of a

ctual problems which arise before them.” 1 Oppe nheim’s, supra , at 41; see also Ian Brownlie, Principles of Public International L aw at 19 (noting that “the practical significance of the label ‘subsidiary means’ in Article 38(1)(d) is not to be exagge rated”). The16 I no te furth er that other fed eral cou rts have consu

lted dec isions o f the I CTY and ICTR in determining w

hether various rules are

part of customary

international law. See, e.g. , Hamdan , 126 S .Ct. at 2785 n. 40 (ICTY

); Sosa , 542 U .S. at 762 (Br eyer, J. concu

rring) (IC TY); Ford ex rel. Estate o f Ford v. Gar cia , 289 F .3d 12 83, 12 90–93 ( 11th Ci r. 2002 ) (IC TY and ICTR); Tagaga v. INS , 228 F.3d 103 0, 1035 n. 10 (9th

Cir. 2 000) (I CTY); Almog , 471 F. Supp. 2d at 286 (noting that “[s]tandards for im

posing liabi lity whe re a non -primary ac tor is alleged to be li able f or a viol ation of the l aw of nat ions emer ge from, ” in par

t, the ICTY and

ICTR case la w); Presbyterian Church o f Sudan , 453 F. Supp. 2d at 666–68 (analy zing ICTY cases t o determ ine the eleme

nts of a iding and abe

tting liability

under i nternati onal law

); In re “Agent Orang

e” Prod. Liab. Litig. , 373 F . Supp . 2d at 54 (sam e); Mehinovi

c v. Vu ckovic , 198 F. Supp. 2d 1322 , 1356(N.D. Ga. 20 02). 42 ICTY has been specif

ically rec ognized as having provided “a number of significant findings on issues of law.” Brownlie, supra , at 23; see also Cassese, supra , at 591–93 (arguing that the I CTY “clarified the contours of many notions of international criminal law,” including “the notion of aiding a nd abetti ng”); cf. Sosa , 542 U.S. at 734 (“‘[W]here there is no treaty , and no controlling executive or legislative act or judicial decision, resort must be had to the c ustoms and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by ye ars of la

bor, res earch a

nd experie

nce, ha ve made t hemselve s peculia

rly well acq uainted w ith the su bject s of wh ich th ey treat.’ ” (quo ting The Paquete Habana , 175 U.S. a t 700) (a lteratio n in original)). While I am unable to find that liability predicated on the de finition of aiding and abetting offered in the decisions of the ICTY and ICTR is sufficiently well-established and universally rec ognized to trigger jurisdiction for a tort suit under the AT CA, particularly in lig ht of the hig her stan dard ar ticulate d in the Rome

Statute, I am mindful

of the co nclusions of these tribunals

. 1617 See Prosecu tor v. M ilutinov ic , Case No. I

T-99–37- AR72, Appeals C hamber Decision on Drago lju b Oj dani c’s Moti on Ch all engi ng Ju ris dic tio n - Joint Criminal Enterprise , ¶ 17 (May 21, 2003) (noting that each cham

ber hasa “duty

to asce rtain th at a . . . form

of liab ility charge d in the indictm ent is both provided for under the Statute and tha t it existed at the relev ant time under customary interna tional law.”). 43 D. 1. Judge Kor

man arg ues that it is insuffi cient to in

quire wh ether a

iding an d abettin g is generally recognized under customary international law and that the appropriate inquiry is instead to enga ge in a “ norm-by -norm analy sis” to determine w hether a iding an d abettin g liabili ty e xists for the violation of a particular rule. Opinion of Judge Korman a t 134. Yet this is not how the inquiry is undertaken by

international tribunals whose jurisdiction is limited by customary international law. In Tadic , the Appeals Chamber of the I CTY considered whether a defenda nt could be held criminally responsible unde r international law on a common purpose or joint criminal enterprise (JCE) theory of liability. Prosecu tor v. Tadic , Case No. IT-94-1-A, A ppeals Chamber Ju dg me nt , ¶ 18 5 ( Ju ly 1 5, 19 99 ). Af te r c on cl ud in g t ha t t he ICT Y S ta tu te pe rm it te d s uc h l ia bi li ty, the tribunal turned to customary law. 17 The Appeals Chamber reviewed rele vant sources of customary law inc luding case law from post–World War II war crimes cases, international treaties, and the domestic law of many countries. It then concluded that “ the notion of common design as a form of accomplice liability is firmly established in customary international law.” Id. ¶ 220. The Appeals Chamber made no effort, thoug h, to distinguish among the different crimes (or even broad categor

ies of crimes) over which it had jurisdiction or to verify the existence of44

JCE liability at customary law for each individual crime. L ater panels have confirmed that Tadic ’s review of “state practice a nd opinio juris

. . . was sufficient” to establish that “such a norm existed under customary interna tional law.” Prosecu tor v. Milu tinovic , Case No. IT99–37-AR72, Appeals Chamber Decision on Dragoljub Ojdanic’ s Motion Challenging Jurisdiction - Joint Crimi nal Enterp rise , ¶ 29 (Ma y 21 , 2003); see also Prosecu tor v. Brdj anin , Case No. IT-99-36-A, A

ppeals Chamber Judgment, ¶ 363 (Apr. 3, 2007). These tribunals took the same approach with respect to the a pplication of aiding and abetting liability. I

n Tadic , the I CTY trial c

hamber v iewed int ernatio nal trea

ties and tr ials following the Second World War as “establish[ing] the basis in customary international law for both individual responsibility and of participation in the various way s provided by Article 7 of the [ICTY] Statute.” Tadic , Trial Chamber Opinion and Judgment, ¶ 669. In Furundzija , the trial chamber consulted post–World War II case law, as well as modern authoritative international instruments, to “establish the content” of aiding and abetting liability under customary interna

tional law. Furundzija, Trial Chamber Judgment, ¶¶ 191, 195–231. In ne ither case did the Tribunal engag e in the norm-specific inquiry advocated by

Judge Korman. Indeed, the Furundzija

Trial Chamber concluded that “[t]he definitions and propositions concerning aiding and abetting [it] enunciated . . . apply . . . to all crimes,” even though it had not purported to identify sources re lating to every crime over which it had jurisdiction. Id. ¶ 250. Ye t these analyses a

re recognized as authoritative by other chambers of the Tribunals. See, e.g. , Prosecutor v. Aleksovski , Case No. IT-95-14/1-A, Appe als Chamber Judgment, ¶ 162 (Mar. 24, 2000) (no ting tha

t “[t]he liab ility

of a per son char

ged wit h aiding and abetting an

other pe rson in the commission of a crime was extensively c onsidered by Tr ial Chamber II

in the Furundzija45

Judgment”

and adop ting its c onclusion s); Prosecutor v. Bagilishema , Case No. ICTR-95-1A-T, Trial Chamb er Ju dgment , ¶ 32 n .22 (J une 7, 2001) (citi ng Tadicfor discussion of “the customary nature of the[] principles” of aiding and abetting liability ). The international tribunals’ approach is consistent with the understanding tha t aiding and abetting is a theory

of liability for acts committed by a third party. As we

have recognized in our domestic criminal law, “aiding and abetting ‘doe s not constitute a discrete criminal offense but only serves as a

more particularized way

of identifying

persons involved’” in the underly ing offense. United Sta tes v. Sm ith , 198 F .3d 37 7, 383 (2d Ci r. 199 9) (qu otin g United States v. Oates , 560 F.2d

45, 54 (2d

Cir. 1977)(interna

l quotation

marks omit

ted)); see also Hefferman v. Bass , 467 F.3d 596, 601 (7th Cir. 2006) (explaining that “aiding and abetting is a theory for holding the person who aids and abets liable for the tort itself”) . International law is consistent with domestic law on this point. See, e.g. , Prosecutor v. Kunarac , Case Nos. IT-96-23-T &IT96-23/1-T, Trial Chamber Judgment, ¶ 391 (Feb. 22, 2001) (“A s opposed to the ‘commission’ of a crime, aiding a

nd abetti ng is a f orm of ac cessory

liability .”); Akayes u , Trial Chamber Judgment, ¶ 527 (defining an accomplice as “ someone who associates himself in an offence committed

by a nother” ); see also Hamdan , 126 S. Ct. at 2785 n.40 (“The International Criminal Tribunal for the former Yugoslavia (I CTY), drawing on the Nuremberg precedents, has adopted a ‘joint criminal enterprise’ theory of liability, but that is a species of liability for the substantive offense (akin to a

iding an d abettin g), not a crime on its own.”) . Beca

use aidin g and a betting is a gener ally applica ble mean s of ident

ify ing who should be h eld resp onsible f or a par ticular a ct, rather than a necessary

element of the act itself, it is more reasonable to consider whe ther the theory is acc epted as a general principle of customary interna

tional law than to ask whether each46

substantive norm that proscribes a specific conduct encompasse s liability for aiding and a betting. See, e.g. , R om e St atu te ( in clu di ng t he p rov is io n on in di vi dua l cr im in al r esp ons ib il it y in “ Par t III: General Principles of Criminal Law” and the definition of the substantive offenses in Part I I); ICTR Statute (segreg ating the article defining individual criminal responsibility from the articles describing the substantive offenses); I CTY Statute (same); Draft Code of Crimes Against the Peace a nd Secur ity o f Mankind , Report o f the I nternat ional L aw Commissi on on the w ork of its forty-eig hth session, U.N. GAOR, 51st Sess., Supp. No. 10, U.N. Doc. A/51/10 (1996) (including the article on individual responsibility in “Part One: General Provisions” and the definitions of crimes in “Part Two: Crimes Against the Peace and Sec urity of Mankind”). 2. Viewing aiding a nd abetti ng in this way , as a the ory

of identif yin g who wa s involved

in

an of fe ns e c om mi tt ed by a no th er ra th er th an as an of fe ns e i n i ts el f, al so he lp s t o e xp la in wh y a private actor may

be held responsible for aiding and abetting the violation of a norm that requires state action or action under color of law. I t is true, as we held in Kadic , that “certain forms of conduct” violate the law of nations only when undertaken by

state actors or those acting under color of law. Kadic , 70 F.3d at 239. But imposing liability on priva te actors who aid and abet such conduct does

not, contr

ary to Judge K

orman’s sugge stion, det

ract in a ny way from this requirement. Indee d, the imposition of aiding and abetting liability under international law requires “a predicate offe nce committed by someone othe r than the accomplice,” in this case, a state actor or someone acting under c olor of law. Akayes u , Trial Chamber Judgment, ¶ 529. Recognizing the responsibility of private aiders and abettors merely permits private actors who substantially assist state actors to violate international law and do so for the purpose of47

facilita ting the unlawfu l activity to be held

accoun table fo r their a

ctions. It is of no moment that a private actor c ould be held liable as an aider and abettor of the violation o f a norm r

equiring state action when

that same

person c ould not be

held liab le as a principal. In our domestic law, it is “well settled that one ma y be found g

uilty of aiding and abetting another individual in his violation of a statute that the aider and abettor c ould not be charged personally

with violating.” In re Nofziger , 956 F.2d 287, 290 (D.C. Cir. 1 992); see also United States v. Tannenbaum , 934 F.2d 8, 14 (2d Cir. 1991) (“The fact that the acc used does not possess the legal capacity to commit the substantive offense does not mean that he cannot be convicte d . . . of a

iding an d abettin g the commission of

the substa

ntive off ense by another . Thus, the inability to commit the substantive offense is immaterial.” ( citations omitted)). Indeed, “[t]he doctrine is of ancient origin.” Nofziger , 956 F.2d at 291. International law , too, recognizes that criminality is assessed by reference to the actions of the princ ipal, not the aider and abettor. See Akayesu, Trial Chamber Judgment, ¶ 528 (“[I]t should be understood that the phy sical act which constitutes the act of complicity does not ha ve its own inherent criminality, but ra ther it borrows the criminality of the ac

t committed by the principal perpe trator of the criminal enterprise. . . . The accomplice has not committed an autonomous crime, but has merely facilitated the criminal enterprise committed by a nother.”). The defendants and the governme nt argue that the Supreme Court’s decision in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A. , 511 U.S. 164 (1994), precludes us from rec ognizing

aiding a nd abetti ng liabi lity

for cla ims broug ht under t he ATCA be cause “where Congress has not explicitly provided for aider and abettor liability in civil causes of action, it should not be inferred.” See In re S. African Apartheid Litig. , 346 F. Su pp. 2d at 550.48

The Court’s holding in Central Bank was primarily pre mised on a recognition that § 10(b) does not prohib it aiding

and abetting, a

nd “the pr

ivate pla intiff ma y no t bring a

10b-5 suit

agains t a defendant for acts not prohibited by the text of § 10(b).” Central Bank , 511 U.S. at 173. Here, however, the ATCA provides jurisdiction for the courts to hear torts “c ommitted in violation of the law of nations.” The Supreme Court’s instruction in Central Bank that “whe n Congre ss enacts a statute under which a person may sue and recover damage s from a private defendant for the defendant’s violation of some statutory norm, there is no general presumption that the plaintiff may also sue a

iders and abettors,” 511 U.S. at 182, is thus inapposite. Under the ATCA, the relevant norm is provided not by domestic statute but by the law of na tions, and that law extends responsibility for the violations of its norms to aiders and abettors. See William R. Casto, The New Federal Common Law of Tort Remedies for Violations of International Law , 37 Rutgers L.J. 635, 650 (2006) (noting that “[t]he precise holding in Central Bank . . . does not translate easily to [ATCA] litigation,” and that “a t a fundamental level” Central Bank in fact suggests that a theory

of aiding and abetting liability may be re cognized if “a norm of international law forbids private persons to assist violators”). Thus, I conclude that customary international law recognizes liability for aiding and abetting violations of international law, a nd that the district court erred when it reached the contrary conclusion. 3. Judge Korman further argue s that the defendants cannot be held liable as aiders a nd abettor s becaus e the sour

ces that establish access orial lia

bility do not exten

d that liab ility

to corpora tions. Opin

ion of Judg e Korman

at 118. Th

is argu ment was n

ot raised by t he defe ndants on appeal and therefore the issue was not brie fed by the pa rties. It is perhaps not surprising that49

neither the defendants nor the United States raised this issue as a bar to liability: We have repeatedly

treated the issue of whether corporations may be held liable under the ATCA as indistinguishable from the question of whether private individuals may be. See Bigio v. CocaCola Co. , 239 F.3d 440, 447 (2d Cir. 2000) (asking “whether Coca -Cola can have violated ‘the law of na tions’ if i t acted s olely

as a non- gover

nmental e ntity ”); see also Flores , 414 F.3d at 244 (making no distinc tion betwe en priva te individu

als and c orporat

ions and no ting tha

t “certa in activities are of ‘universal concern’ and therefore constitute violations of customary international law not only when they

are committed by state

actors, but also when they are committed by priva te ind ivid uals” (citi ng Kadic , 70 F.3d a t 239–40)) ; cf. Sosa , 542 U.S. at 732 n.20 (classifying

both corporations and individuals as “private actor[s]”). Regardless, be cause the defendants have not objected to the imposition of liability on this basis, we ne ed not reach the issue at this time.

E. The Ntsebeza and Digwamaje Plaintiffs arg ue that the district court also erred in focusing on whethe

r alleg ations of

access orial lia

bility would supp ort jurisd

iction und

er the AT CA because they

also brought claims of direct liability . To the extent that the court did confront these direct liability claims, it appea rs to have rejected them either on the g round that the plaintiff s failed t o alleg e state a

ction or on the gr

ound that t

he trea ties upon w

hich the c laims were based were not self-e xecuting and therefore could not satisfy the ATCA’s jurisdictional prereq uisite. B oth of the se bases appear to rest on misunder standing s of our A TCA50

jurisprudence. First, it appears that the district court did not distinguish between norms of international law that apply only

to state actors and those norms that proscribe conduct even whe n not taken under the color of law. For example, the district court held that the plaintiffs in this case “do not allege actions by

the defendants that elevate them to the status of state actors in the c ommission of torture, genocide, killings, and other se rious crimes.” In re S. African Apartheid Litig. , 346 F. Supp. 2d at 548–59. As we squarely held in Kadic , however, “the proscription of genoc ide [by customary interna

tional law] has applied equally to state and non- state actors,” and “acts of rape , torture, and summa

ry execution

. . . are a ctionabl e under t

he [ATCA], w

ithout regard to sta

te action, to the extent that they were committed in pursuit of genocide or war crimes.” 70 F .3d at 242, 244. I

t is there fore not

releva nt whethe r the pla intiffs sufficien

tly a llege t hat the de fendant s acted under color of law in the commission of genoc ide as long as they sufficiently alleg e that the defendants committed genocide. Second, I believe that the district cour t overstated the weight we have plac ed on the selfexecuting status of a treaty in our consideration of its weight as evidence of c ustomary international law. In Flores , we explained that “a treaty that is self-executing or that has been executed through an Act of Congre ss—and the

refore gives r ise to rig hts lega lly e nforce able in our courts—provides greater evide nce of the customs and practices of the United States than a treaty that has not be en executed.” 414 F.3d at 257. We did not hold that non-self-executing treaties are without any

evidentiary va

lue with regard to the state of curre nt customary interna tional law , much les s that “no liability based up on any

allege d violation

of the[] nor

ms [articulated in such treaties] can form an adequate pre dicate for jurisdiction under the ATCA.”18 Apparently recog nizing that the Genocide Conv ention may be used to support the existence of genoc ide as a

viola tion of the law

of nati ons, Jud

ge Korm an none theless sugg ests tha

t the di strict co

urt should not reco gniz e a caus e of act ion for genoc ide bec ause “C ongre ss has q uite pla inly i ndicate d its intention that such a cause of action should not be available” throug h its passage of the Genocide Conv ention I

mplem entation Act, 1 8 U.S. C. § 10 91. Opinion of Judg e Korman at 11 6–17; see also 18 U.S.C. § 109 2 (providing that nothing in the Act should be “construe d as creating any substantive or procedu ral rig ht enfor ceable b y law by an y part y in a ny pro ceeding”). I

t is unn ecessary

to reso lve th

is issue as part of the jurisdictional ana lysis, and I

would leave it to the district court to address in the first instance should it undertak e to decide whether to recognize a ca use of action. 51 In re S. African Apartheid Litig. , 346 F. Supp. 2d at 552. Indeed, in Kadic we relied on the Genocide Convention to determine the shape of the international proscr iption of genocide and made cle ar that “

the leg islative d

ecision n ot to cre ate a ne

w private remedy does not im

ply that a private remedy

is not already a

vailable under the [ATCA].” 18 Kadic , 70 F.3d at 241–42. The releva nt inquiry for esta blishing jurisdict ion under the ATCA, as our ca se law ma kes clea r, is whether the conduct alleged by the plaintiffs violates a norm “that States universally abide by, or accede[] to, out of a sense of legal obliga tion and mutual concern.” Flores , 414 F.3d at 248. Whether a treaty

that embodies that norm is self-executing is relevant to, but is not determinative of, that question.

III For the foregoing r

easons, I join in the per curiam opinion.52

Hall, Circuit Judge , conc urrin g: As reflected in the per curiam opinion, I agree with Judge Katzmann with respect to the ultimate disposition of this appeal. The district court erred when it ruled that it lacked jurisdiction under the ATCA to determine plaintiffs’ claims based on defendants’ a ccessorial liability. I

n ruling that it lacked subject matter jurisdiction under the ATCA, the district court required that “aiding and abetting international law violations [be] itself an international law violation that is universally acce pted as a legal obligation.” In re S. African Apartheid Litig. , 346 F. Supp. 2d 538, 549 (S.D.N.Y. 2004). In other wor ds, the district court assumed that a federal court must look to international law to divine not only the applicable pr imary violation of international law cognizable under the ATCA, but also the standard f or aiding and abetting liability . The distr

ict cour t went on to

conclude that aidin

g and a betting liability did not exist a s a matter of customary

international law and thus that federal subject matter jurisdiction did not lie. This conc lusion was

error. As Sosa makes cl ear, a f ederal court mus t turn to int

ernatio nal law to divine standards of primary liability under the ATCA. To derive a standard of accessorial liability, however, a f

ederal court should consult the federal common law.

I A We begin with the te

xt. In it s entiret

y, t he ATCA pr

ovides: The district c ourts sha

ll have original jurisdiction of any civil action by an alien for a tor t only , committe d in violati o n of the law of nations or a treaty of the Un

ited State s.53

28 U.S.C. § 1350. The First Congress enacted the statute as par t of the Judiciary Act of 1789. Over the course of the last 200-odd y ears, the text of the statute has changed only slightly, but “little is known of the framers’ intentions in adopting it—the legislative history of the Judiciary Act does not refer to section 1350.” Presbyterian Church of Sudan v. Talisman Energy, Inc. , 244 F. Supp. 2 d 289, 304 ( S.D.N.Y. 2003). F ew parti es invoke d the ATCA until our d

ecision in Filartiga v

. Pena-I rala , 630 F.2d 876 (2d Cir. 1980), which heralde d the mode

rn era o f ATCA litigation. But from the very beginning, the ATCA’s straightfor ward text belied complex and controversial problems of exegesis and praxis. Struggling with these problems in the wave of litigation that followed Filartiga , we observed that “neither Congress nor the Supreme Court ha[d] definitively resolved the complex and controversia l questions regarding the meaning and scope of the ATCA.” Flores v. S. Peru Copper Corp. , 414 F.3d 233, 247 (2d Cir. 2003). One y ear late r, in an a ttempt to c larify

the probl ems posed

by t he ATCA, t

he Supre me Court issued Sosa v. Al

varez-M achain , 542 U.S. 692 (2004). Principally, Sosa resolved that the ATCA was not “a jurisdictional convenience to be placed on the shelf for use by

a future Congress . . . that might, someday , authorize the creation of causes of action.” Id . at 719. Instead, the ATCA rec ognizes “claim[s] based on the present-day law of nations” so long as they “rest on a norm of international characte r accepted by

the civilized world and defined with a specificity compa

rable to the features of the 18th-century paradigms.” Id . at 725.

B In their complaints, the plaintiffs make claims that re st on such norms “defined with a1 The Charter of the I nternational Military Tribunal (Nurem berg Tribunal) describes crim es against hum

anity as: murde r, exterm ination , ensla

vement, de

port at ion, and other inhum ane acts comm

itted against any c ivilian

popula tion, b efore or

during the wa r, or persecutions on

politic al, raci al, or religious grou

nds in execution of or in connection with any crime within the jurisdiction of the Tribunal , whether or not in viola tion of domestic law of the c ountry where perpetrated. Charter of the I

nternational Military Tribunal, art. 6(c), in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Au g. 8, 1945, E.A.S. No. 472.

2 The Genocide Conv

ention defines genoc ide as: any o f the fo llowing

acts co mm

itted wi th inten t to des troy, in who le or in part, a nationa l, ethnical, racial or religiou s group, as suc h: (a) Killing mem

bers of the group; (b) Causing serious bodily or m ental harm to m

embers of the g

roup; (c) Deliberately inflicting on the group conditions of life calculated to bring about it s phy sical de struction in whole or i n part. Convention on the Prevention and Punishment of the Crime of G enocide, art. 2, Jan. 12 , 1951, 78 U.N.T.S. 277. Notably , the A

partheid Conv ention e choes the defini tion of genoc ide, in

that it applies

to “murder of m

embers of a racial group or g roups,” “the infliction upon the mem bers of a racial grou

p or groups of serious b odily or m ental harm,” and

the “[d]eliberate impo sition on a racial gro up or groups of living conditions

calculated to cause its or their physical destruction in whole or in part.” Convention on Apartheid, art. 2, N ov. 30, 197 3, 1015 U.N. T.S. 243.

3 At oral argum

ent, counsel for the corp orations added that he d id not accept the prem

ise that the plaintif fs had a ctually pled those alle gation s, as th e com plaints did not

alleg e that p articula

r plaint iffs suffered particular injuries at the hands of specific South African officials whom the corporations aided and abetted in a specific w ay at a specific tim

e and place. As reflected in the per curiam opinion, 54 specificity compa

rable to the features of the 18th-century paradigms.” The allega

tions include genocide, torture, cruel and de grading treatment, sy stematic racial discrimination, forced removals, and various other avowed crimes ag ainst humanity. In essence, the plaintiffs a ssert th at ap ar th ei d i ts el f i s a cr im e a ga in st hu ma ni ty, 1 on a par with genocide 2 and slavery , and that the depredations of the apartheid sy stem (such as torture, sexual assault, extrajudicial killing, and forced labor) w ere per

petrate d in the co

urse of g enocide

and crim es aga

inst human

ity. In the ir brief and at oral argument, the c orporations did not contest that such allegations reflected violations of customary international law

. 3 Though their complaints are not models of precision,plaintiffs may have an opportun ity to replead these v

iolations with greater sp ecificity on rem and.

4 I note that Judge Katzm ann, in his concurring

opinion, declines to ad

dress whether federal common law provides a standard by which to determine aidin

g and abetting

liability in this case. Opinion of Judge Katz

mann at 39 n .12. It is thus left to a future panel of this Court to determ ine whether internat ional or dome stic fed

eral com mon l aw is th e exclu sive s ource fr om w hich to derive

the app licable standard. 55 the plaintiffs, if given the opportunity to replead, likely would a llege primary

violations of international law cognizable under the ATCA.

C In addition to its delineation of the standard by which federal courts derive primary violations of international law, the Sosa opinion also contains numerous dicta. In his concurr ing opinion, Judge Katzmann thoroughly summarizes these dicta. It remains inescapa ble, however, that Sosa at best lends Delphian guidance on the question of whethe r the federal common law or customary interna

tional law represents the proper source fr om which to derive a standard of aiding and abetting liability under the ATCA. Lacking the benefit of clear guidance , I presume a federal court should resort to its traditional source, the fede ral common law, when deriving the standard. Because I

find that federal common law provides a standard by which to assess aiding and abetting liability, I

do not address the alternative argument that such a standard may be derived from international law. 4 It is a “hornbo ok princi

ple that in

ternational law do es not spe cify the mean s of its domestic e

nforce ment.” B rief for

the I nternat ional L aw Schola

rs as Amic i Curiae a

t 5–6; see also Brief for the United States of America a s Amicus Curiae at 5 (“[A]lthough the substantive56

no rm to be ap pl ie d i s d ra wn fr om in te rn at io na l l aw or tr ea ty, an y ca us e o f a ct io n r ec og ni ze d b y a federal court is one devised as a matter of federal common law.”). As Judge Edwards ha s explained, “the law of nations never has been perc eived to create or define the civil actions to be made available by

each member of the community of nations.” Tel-Oren v. Libyan Arab Republic , 726 F .2d 77 4, 778 (D.C. Cir. 1984) (Edwar ds, J ., con curri ng) ; see also Kadic v. Karadzic , 70 F.3d 2 32, 246 (2 d Cir. 1995 ) (“The law of na tions ge nerally does not c

reate private causes of action to remedy its violations, but leaves to each nation the task of defining the remedies that are available for interna tional law violations.”) ; Xuncax v . Gramajo , 886 F. Supp. 162, 180 (D. Mass. 1 995) (“Wh ile it is de monstrab ly p ossible for nations to reach some

consensu s on a bindi

ng set of principle s, it is both u

nnecess ary

and impla

usible to su

ppose tha t, with their multiplicity of legal sy stems, these diverse nations should also be expected or required to reach consen sus on the t ype s of actions that sho

uld be mad

e availa ble in the ir respe ctive co

urts to impleme

nt those pr

inciples. ”); Res tat eme nt (Th ird ) of For eig n R ela ti ons Law § 703 cmt . c ( “In gener al, individ

uals do not

have dir ect inter national remedie s again st a state

violating their human rights except where such remedies ar e provided by inter

national agreement. Whether they have a

remedy unde

r the law of a state depends on that state’s law.” ( internal citation omitted)) ; Beth Ste

phens, Sos a v. Alva

rez-Mac hain : “The Door

Is Still Aja r” for Human Rights Litigation inU.S. Courts , 70 Brook. L. Rev. 533, 558 (2004) (“ Sosa does not require that every ancillary r

ule applied in an AT[CA] case meet the level of international consensus require d for the defi nition of the underl

yin g violat ion. As in a

ny c ase in wh

ich the f ederal courts exercise discretion to recognize federal common law, the c ourts will fashion rules to fill gaps, borrowing from the most analogous body of law.”).57

Numerous international law scholars have describe d this principle. See L. Henkin, Foreig n Affairs and the C onstitution 224 (1972 ); Oppen

heim, 1 I nternat ional L aw 44–46 ( 8th

ed. 1955); L . Henkin, R. Pugh, O . Schach ter & H. Smit, I

nternat ional L aw 116 (1 980); 4 Blackstone’s Commentaries 72 (Welsby ed., 1854) (noting that the law of nations recog nized certain universal offenses but that acce ssorial liability is made available “by statute”). As amicus Inte rnationa l Law Scholars persuas ively

argue , these “

means of domestic e

nforce ment” encompass at least some theories of accessoria l liability, including aiding a nd abetting. Brief for Inte rnationa l Law Scholars as Amici Cu

riae at 6 . I be lieve our

Court shou

ld stand by

this principle. Moreover, when international law and domestic law speak on the same doctrine, domestic courts should choose the latter. Oppenheim, supra , at 44–46 . This, too, is a princ iple our Court should res

pect. He re, cust omary interna tional law and the f ederal common la

w both include standards of aiding and abetting. I n a situation such as this, I opt for the standard articulated by the

federal common law. Supreme C ourt pre cedent c ommands th e same r esult. As Judge Reinhardt noted when concurring in Doe I v. Unocal Cor p ., 395 F.3 d 932 (9th

Cir. 2002) , the ATCA

is silent “ as to what body of law a

pplies to ancillary issues that may arise, such as whether a third party may be held liable in tort” for a violation of international norms. Id. at 965 (Reinhardt, J., concurring). Typ ic al ly, federal courts look to the federal common law to fill such an interstice. Id. at 966 (citi ng United States v. Kimbell Foods , 440 U.S. 7 15, 727 (1 979)); see also Texas Indus., Inc. v. Radcliff Materials, Inc. , 451 U.S. 630, 641 (1981) (stating that courts should apply the federal common law “in such narrow areas as those c oncerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rig hts of States or58

our relations with foreign nations”). Until the Supreme Court provides us more e xplicit guidance regarding acc essorial liability than it has to date, I remain convinced that our federal common law embodies a clearly

extant standard of aiding and abetting liability

. See Unocal , 395 F.3d at 967. It is to this standard that federal cour ts should resort and to which I now turn. The Supreme Court has described Halberstam v. Welch , 705 F.2d 472 (D.C. Cir. 1983) as “a comprehensive opinion on the subject [of aiding and abetting ].” Cent. Bank , N.A. v. F

irst Interstate Bank, N.A. , 511 U.S. 164, 181 (1994). Halberstam relied heavily upon the Restatement (Second) of Torts to set the parameters of a iding and abetting liability . Section 876(b) of the Restatement provides: “For harm re sulting to a third person from the tortious conduct of another, one is subject to liability if he . . . (b) knows that the other’s conduct constitute s a brea

ch of duty and giv es substa

ntial assi stance or encour ageme nt to the other so to conduct himself.” Based on the Restatement, Halberstam held that aiding and abetting included three e lements: (1) the party whom the de fendant aids must pe rform a wro ngful act that causes an in ju ry; (2) the d

efenda nt must be g eneral ly a

ware of his role a s part of

an overa ll illegal or tortious activity at the time that he provides the a ssistance; [and] (3) the defendant must knowingly and substantially assist the principal violation.
Halberstam , 705 F.2d at 477. The Halberstam Court then adopted and applied the factors enumerated in § 876 to assess whether the defenda nt’s encouragement or assistance was sufficiently substantial to support liability

. “The Res tatement sugge sts five f

actors in making t his determination: ‘the nature of the act encoura ged, the amount of assistance given by the defendant, his presence or absenc e at the time of the tort, his relation to the other tortfeasor and his state of mind.’” Id. at 478 (quoting Restatement (Second) of Torts § 876 cmt. d) (alter ation5 I a gree w ith Judg e Katzm

ann tha t Central Bank

, 511 U.S. at 164, poses no bar to finding aiding and abetting liability

under the ATCA, a

lbeit for a different reason. In Central Bank , the S uprem

e Court held that the Securities Acts of 1933 and 1934 did not encom

pass aiding and a

betting liability. 511 U.S. at 171. Noting

that the Acts prov

ided for some fo

rms of “indirect” liability , the Supreme Court reasoned that “Congress k

new how to im

pose aiding and abetting liability w hen it chose to do so .” Id . at 176. This sam e reason ing ca nnot ap ply to the ATC A, who se textu

al brev ity and dearth

of leg islativ e histor

y leave us with inco

nclusive eviden

ce of Congress’s intent to include or exclude aiding and abetting liability. It would appear , however, that the Foundi ng Generation neverthe less understo od the ATCA encompassed aidin

g and abetting

liability. For exa

mple, in Attorney General Bradfo rd’s 1795 opinion, Breach of Neu trality , 1 Op. Att’y Gen. 57, 59 (1795), he opined that the ATCA allowed civil suits for damages fo

r those who had “tak

en part” in violating

international law. Sosa , 542 U .S. at 721. I n fact, Bradford’s opinion specifically covered those A

merican citizens who “voluntarily joined, conducted, aided and abetted

” the French fleet in their attack on a British settlement. Breach of Neu trality , 1 Op. Att’y Gen. at 5 8 (emphasis adde d). Attorney G eneral Bradford furtherm ore referred to an April 1 793 Proclamation issued by George Washington which d eclared that “all those who should render them selves liable to punishmen

t under the laws of na

tions, by com

mitting, aidin

g or abetting hostilities” against the merchants of foreig

n nations at peace with the United States would not receive the protection of the United States. Id. at 59. Cases from that era, moreover, indicate that seco ndary liability was recognized as an established part of the federal comm on law. See Talbot v. Jansen , 3 U.S. (3 D all.) 133 (1795) (holdin g a de fendant

liable f or aidin g the unlawfu

l captur e of a n eutral s hip and

orderin g rest itution) ; Henfield’s Case , 11 F. Cas. 1 099, 1 103 (C. C.D. Pa. 17 93) (Ch ief Justic e John Jay

) (charg ing a grand

jury that United States citize

ns may b e held liable under the law s of the United States fo r “comm itting, aiding or abett ing ho stilities ” in violation of the l aw of nations); see also Congress’s Act o f April 30, 1790, which deemed “an accessary [sic] to . . . piracies” any one who “kno

wingly and

w illingly aid[ed]” p iracy. 1 Stat. 114 (1 790).
59 omitted). In the almost quarter-ce ntury since Halberstam was decided, many state courts and Circuit Courts, including the Second Circuit, have adopted the Restatement’s aiding a nd abetting standard. Following the lead of the Halberstam Court, I believe that § 876 provides the prope r standard under which to assess whether a par ticular defendant may

be held liable for aiding and abetting a primary

violation of international law. 5 I also agre e with the Halberstam Court that “a person w ho assists a

tortious a

ct may be liable for othe r reasonably

forese eable a

cts done i n connection with it.” Id. at 484. Under a proper a pplication of § 876 to

ATCA civi l aiding

and abetting cla

ims, liabili

ty should be f

ound only where there is e

vidence that a de fendant

further ed the vio lation of a

clearly60

established inter

national law norm i

n one of th

ree wa ys: (1) by knowing ly a

nd substan

tially assisting a principal tortfeasor, such as a for eign government or its proxy , to commit an act that violates a clearly

established international law norm; (2) by encouraging, advising , contracting with, or otherwise soliciting a principal tortfeasor to commit an act while ha ving actual or constructive knowledge that the principal tortfea sor will violate a clearly established customary international law norm in the process of completing that act; or ( 3) by fac ilitating the commission of human r

ights vio lations by

providing

the princ ipal tortf

easor with the tool s, instrume ntalities , or servi ces to co mmit those v iolations w

ith actua l or const ructive knowledg e that tho se tools, instrumentalities, or services will be (or only could be) used in connection with that purpose. All membe

rs of this p anel unde

rstand th at corpo

rations mu st transa

ct busine ss in a less than perfect world. I

do not understand defendants to argue, howe ver, that business imperatives require a licens e to assist

in violations of inte

rnationa l law. Rather, I

understa nd defen dants to express th e conce

rn that the

recog nition of ATCA aiding

and abetting lia

bility could expos e corporations to liability for mere ly doing business in countries with re pressive regimes or for particip ating in

activitie s that, wit

h twenty -twenty hindsigh t, can be said to ha

ve been indirec tly linked to h

uman rig hts abuse s. I share Judg e Katzman n’s under standing , howeve

r, that pr ivate parties and corporate actors are subject to liability under the ATCA. I therefore concur in Part II .D.2 of Judg e Katzman

n’s opinion to the exte

nt that it r ecogn izes the g eneral

legal principle that aiding and abetting liability obtains even where the culpable actor is inca pable of violating the relevant legal norm as a principa l, and I concur in Part I

I.D.3 of his opinion in full. Defend ants rais e importa

nt conce rns about such liab ility , but those

concer ns do not co

unsel in favor of the per se rejection of cor porate liability, private pa rty liability , and aiding and abetting61

liability under the ATCA. I

nstead, t hey require the narr ow and ca

reful e xtension of

such liab ility to cases in which a

defenda nt play ed a know

ing and substantia

l role in th e violation of a cle arly recognized international law norm. Furthermor e, the collateral consequences pre dicted by defendants and the dissent remain relevant consider ations when making these judgments, as the common law nature of the inquiry allows for a limited but meaningful consideration of the practical consequences of extending ATCA liability in the context of each particular case. Becau se I i

ntend aid ing and abetting liability to attach only in this limite d way , I thi

nk it helpful to provide examples illustrating the three ways in which I believe a def endant may incur liability for aiding a

nd abetting violations of customary international law. The first ty pe of aiding and abetting liability is desig ned to capture the case of a principa l tortfeasor who seeks assistance from a defendant to commit an act that violates international law norms, such a s the extrajudicial killing of an opposition political figure. The second is designe d to cover circumstances where the al leged ai der and abett or is a ccused of hav ing pu rchase d secu rity serv ices w ith t he kno wledge that the security for

ces would, or were likely

to, commit international law violations in fulfilling their mandate. The allegations raised in the ca ses of Unocal , 395 F.3d 932, and Wiwa v. Royal Dutch Petroleum Co. , No. 96-Civ-8386, 2002 WL 319887 (S.D.N.Y. Feb. 28, 2002), would be reached by

this prong. In Unocal , the alleged aider and abettor c orporation was accused of having purchas ed secur

ity s ervice s from a mi litary gover nment to fu

rther de velop its o il operations, with the knowledge that the security forces would likely c ommit international law violations in fulfilling this mandate. 395 F.3d at 938–42. In Wiwa , the plaintiffs alleged that the defendants directed and aided g overnment security forces in violating plaintiffs’ rights by providing logistical support, transportation, and weapons to g overnment security forces to ensure62

that the corporation’s business activities could proceed “as usual.” Wiwa , No. 96-Civ-8386, 2002 WL 319887, at *2. The Zy klon B Case provides a clear example of when liability would attach in the third circumst ance, w hen a de fendant

provides “the tool s, instrume

ntalities , or serv

ices to c ommit [human rights] violations with actual . . . knowledge that those tools, instrumentalities or services will be (or only could be) used in connection with that purpose.” See Trial of Bruno Tesch and Two Othe rs (The Z ykl on B Case ), 1 L aw Repor ts of Tria ls of War Cr

im. 93 (194 7) (Bri

tish Military Ct., Hamburg, Ma r. 1-8, 1946). In that case , Bruno Tesch was the sole owner of a firm that distributed Zyklon B , a highly da ngerous poison gas, to Auschwitz and other conce ntration camps fr om 1941 to 19 45. Zy

klon B pr eviously had bee n used as a

disinfectant in pub lic building s. The evidence showed tha t Tesch hi mself pro posed usin

g the g as to exter

minate human beings, undertook to train the S.S. in this “new method of killing,” and was awa re that, by June 1942, the gas was being used for such a pur pose. Id. at 95. The

Prosecut or succe ssfully argued that “knowingly

to supply a commodity

to a branch of the State which was using that commodity for the mass extermination of Allied civilian nationals was a war crime, and that the people who did it were war criminals for putting the mea ns to commit the crime into the hands of those who actually c arried it out.” Id. at 94. These e xamples ar

e illustra tive rather than e

xhaustive, and I

offer them in an e ffort to provide g reater substantiv e conten

t for a do ctrinal f

ramewor k that, like

most common

law rule s, is “vague” and abstract in its articulation of leg al obligations and culpable conduct. Opinion of Judge Korman at 133 (criticizing Restatement aiding-and- abetting standard as “vague and inappropriate in the present context”). Standards such as “substantial assistance ” and “actual or63

constructive knowledge” are ha rdly “newly

minted,” however, and judicial decisions interpreting the mean ing of th ese stan

dards in t he context of individu

al case s will provide guid ance to c ourts considering accessorial liability under the ATCA. See, e.g. , Henry v. Lehman Commercial Paper, Inc. , 471 F.3d 977, 993 (9th Cir. 2006) (apply ing California law on the “knowledge” require ment of § 8 76); Aetna Cas. & Sur. Co. v. Leahey Constr. Co. , 219 F.3d

519, 535–3 7 (6th Cir. 2000)

(apply ing know ledge a nd substan

tial assis tance r

equirem ents of § 8 76); In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig. , 113 F.3d 1484, 1496 (8th Cir. 1997) (addressing “substantial assistance” re quirement in context of products liability litigation); Rochez Bros., Inc. v. Rhoades , 527 F.2d 880, 886 ( 3d Cir. 197 5) (“I t has bee n held tha t liability for aiding and abetting may be found on less than actual knowledge of the illeg al activity. How much or how little knowledge would seem to vary with the facts of each case.” (c itation omitted)). Common law decisionmaking proceeds through the incr emental, analogical application of broadly -stated principles, and it is therefore not amenable to the for mulation of finely detailed rules in the manner

of a reg ulatory code. Con

trary to the disse

nt’s sug gestion s, however, the contextual nature and factual sensitivity of common law judicial rulemaking takes account of the “practical problems” that c an result from ill-designed legal rules, a nd the flexibility of the common law process allows those problems to be a ddressed and avoided as they arise. In the case at ba

r, plaintiffs have alleged, albeit in insufficiently specific terms, that the defenda nt corpor ations (a ) knowing

ly a nd substan

tially assisted a

principa l tortfea sor to com

mit acts that violate clearly

established international law norms, and (b) facilitated the commission of interna tional law violations

by providing

the princ ipal tortf

easors w ith the tool s,64

inst rumen tali ties, or serv ices t o comm it th ose vi olati ons wi th act ual or const ructi ve kno wledge that those tools, instrumentalities, or services would be (or only could be) used in connection with that p

urpose. S uch alle gations , if prove n, clear ly s atisfy the stand ard for assertin g ATCA li ab il it y un de r a n a id in g a nd ab et ti ng th eo ry. As to the arguments raised by the Ntsebeza and Digwamaje plaintiffs reg arding direct liability claims and the district court’s trea tment of them, I concur with and join in Part I I.E of Judge Katzmann’s concurring opinion.

III This case has confronted our panel with a number of difficult and unsettled questions in a controversial area of the law. As have other courts, see, e.g. , Tel-Oren , 726 F.2d at 775, we have struggled with these issues in an effort to find some g round on which a majority of our panel could fully ag

ree. Unfortunately , despite tireless debate, we remain diverse in our pe rspectives. Though o ur alre ady lengthy opinions sc arcely

demand le

ngthen ing, I wish to ar

ticulate in a bit more detail, one objection to the dissent covered in part in footnote 14 of the per curiam opinion. The dissent contends that the district court lacked subject matter jurisdiction as a result of certain justiciability doctrines, such a s case specific deferenc e, the political question doctrine, and international comity. Respec tfully, this contention is in error. I n Baker v . Carr , 369 U.S. 186 (1962), the Supreme Court distinguished between the two. The existence, vel non , of subject matter jurisdiction is simply a question (with few exceptions not releva nt here) of whether a claim arises under federal law. Id. at 198. If subject matter jurisdiction exists, a court may65

then—and

only then—inqu

ire as to t he applic ability

of any of the va rious justi ciability

doctrine s: The District Court was uncertain whether our cases withholding federal judi cial rel ief rested upon a lack of federa l jurisdiction or upon . . . “[]justiciability.” The distinction between the two grounds is significant. In the instance of no nj us ti ci ab il it y, consideration of the cause is not wholly and immedi ate ly forec losed; rather, the Court’s inquiry necessa rily procee ds to the po int of dec iding wh ether th e duty asserted can be ju

dicially identifie d and it s brea ch judici ally determined, and whet

her prot ection f or the rig ht asse rted canbe judiciall y molded. In the instance of lack of jurisdict ion the c ause either does not “ ariseunder” the Federal Constitution, laws or treaties (or fallwithin one

of the oth er enume

rated c ategor

ies of Ar t. III, § 2), or is not a “ca se or controversy ” within the meaning of that section; or the cause is not one described by any jurisdictional statute.
Id. (citations omitted). As this quote makes clear, the dissent errs in conflating the a nterior question of the existence of subject matter jurisdiction with the posterior question of ju st ic ia bi li ty. Cf. Sinochem Int’l Co. v. Malay. Int’l Shipping Corp. , 127 S. Ct. 1184, 1191 (2007) ( “[A] fede

ral cour t gener ally may not rule on the mer

its of a ca se without

first determining that it has jurisdiction over the category of claim in suit . . . .”). The dissent’s error is not a minor one. B y c onflating these que stions, the

dissent pr

ovides itse lf the opp ortunity to discuss c ase spec ific def

erence , the politi cal ques tion doctr ine, and i nternat ional com ity. This discussio n, in turn, contains a number of misstep s, at lea st two of w hich mer it our atte ntion in this context. The disse

nt sugg ests a dist

rict cou rt—or ev en an ap

pellate c ourt, sitti

ng in review—must dismiss a case when the executive branch, throug h a State Department Statement of Interest or other doc

ument, deems a case to be a political “irritant.” This is not so. Mere executive fiat cannot control the disposition of a case before a federal court. Our principle of separa tion of pow ers not on

ly c ounsels th e judicia

ry to conduct an indep endent in quiry —it66

requires us to do so. Regardless of what else Sosa holds, it did not doubt that ATCA suits are law suits constitutionally entrusted to the judiciary

. Cf. Whiteman v. Dorotheum GmbH & Co. KG , 431 F.3d

57, 69 (2d

Cir. 2005)(“[N]ot ev ery

case tou ching f oreign relation s is nonjusticiable and judges should not reflexively invoke these doctrines to avoid difficult and

somew hat se nsit ive de cisio ns in the co ntex t of hu man ri ghts. ” (quo ting Kadic , 70 F.3d at 249 (interna l quotation

marks omit

ted))). Thus a dist

rict cou rt must we igh the St

atement o f Int

erest, as well as other relevant facts, in apply ing the Baker v

. Carr factors and exercising its own discreti on befor

e decidi ng whet her to dis miss a comp laint.

IV For the foregoing r

easons, I join in the per curiam opinion.67

Korman, District Jud

ge, concurrin

g in par t and disse

nting in p art: To da y, the majority allows three c lass actions onb ehalf of all persons who live d in South Africa between 1948 and the present and who suffer ed damage s as a

result of apartheid to go forward ina United States court against American, Canadia n, and European corporations that sold goods and materials or made loans to the Union of South Africa during the aparthe id era. It does so over the vigorous objections of the United States, its allies, and, most notably, the Republic of South Africa, whichis justifia

bly proud of t

he ability of its leg al sy st em to adju dic ate leg itimate hu man rig hts claims. In do ing so, the majorit y a lso ignores a direct signal from the Supreme Court of the United S tates regarding the non-viability of these claims. The majority also declines to dismiss the case,

even though the legal

foundation of the complaints was expressly r ejected by a judgment

rendered inNuremberg that “[l]oans or sale of commodities to be used in an unlawful enterprise may

well be condemned

froma moral standpoint and reflect no credit on the part of the le nder or seller in either case, but the tra

nsaction can har dly be said to be a crime.” United States v. von Weizsaeck er (“ The Ministries Case ”), 14 Trials of W ar Crim i nals Before the Nuernberg Military Tribunals Under Contr ol Council Law N

o. 10 308, 622 (William S. Hein & Co., Inc. 1997) (1949). I ndeed, the defendant in that case was an officer of the Dr esdner Bank, w hich is a named defendant in this case. The theory

of lia bi li ty was that the Dresdner Bank provided loans to businesses knowing that the funds would be u sed to finance en terprise s that employ

ed slave labor. I n acquitt ing the c orporat

e office r of the c harge s relatin

g to slav e labor, the tribun al at Nur emberg observe d that: The real que stion is, is i

t a crime to make a loan, knowing or having good reason to belie ve that th e borrow er will us [e] the fund s in68 financingenterprises which are employ ed in using l abor in

violation of either national or international law?

. . . A bank sells money or credit in the same manner as the merchandi ser of a ny other co mm od it y. It does no t become a partner in enterprise and the interest charg ed is m er ely the g

ross profit which the bank realizes from the tran saction, out of whic h it must ded

uct its busi

ness cost s, and from which it hopes to r ealiz e a net profit. Loans or sa le of commodities to be us ed in an unlawful enterprise may well be condemned

from a moral standpoint and reflect no credit on the part of the lender or seller

ineither case, but the transaction can hardly be said to be a cr

ime. Our d

uty is to tr y and punish those guilty of violating international law, and we are not prepar ed to state that such loans constitute a violation of that law . . .
Id. Inde ed, the th eory

of liabili ty r ejecte d by

the tribun

al is the sa

me as that alleg ed here

agains t Dresdner Bank. A 00211-12 . Specifi cally , alo ng w ith other banks, it is accused of providing “[f] oreign capital i

n the for m of trade

loans, large international bonds and credits, direct loans . .

. to South African borrowers, and project financing [that] supported the apartheid regime.” A00194. Instead of d eferr ing to thi s reasoned judg ment, one

member o f the majority , Judge Ha ll, eschews any

reference to sources of c

ustomary international law and applies a principle of aidin gand-abetting

incivil cases that the Supreme Court observed “has been a tbest uncertain in application

. . . with the common-law precedents ‘large ly confined to isolated acts of a dolescents in rural society.’” Cent. Bank of Den v er v. First Interstate Bank of Denver , 511 U.S. 164, 181 (1994) (quoting Halberstam v. Welch , 705 F.2d 472, 489 (D.C. Cir. 1983)). The second member of the

ma jo ri ty, Judge Katzmann, concludes that a defendant’s liabi lity for aidin g-and-abettin

g a cri me agains thumanity must be determined by reference to customary

international law, and he then goes

on to articu

late the s tandard for

determining such liability. While the st andard he enunc iates is entirely consistent with the holding in the Ministrie s Case , and also

reflects an emerging

consensus69

on the ap propr iate s tanda rd for h oldi ng a private party liablefor ai ding-a nd-ab etti ng, he j oins Judge Hall in voting

to vacat e the judgment dismissing the case without deciding whether the alleg ations inthe complaints are sufficient to satisfy that standard, and without addressing the objections of the United States and the Republic of South Africa

to the exer

cise of ju risdiction over the

complain ts. Background Becau se the allegations in the complaint go unmentioned in the per curiam and concurring opinions, it is necessary to provide a n overview of the case bey ond describing the procedure by whichthe case made its way here . Judge Sprizzo’s opinion in the district court contains a detailed and accurate description of

the hundreds of pages of alleg ations contained in the three voluminous complain ts. See In re South African Apartheid Litig. , 346 F. Supp. 2d 538, 543-46 (S.D.N.Y. 2004). This enables me to provide the following brief backg round. In1948, the National

Party came to p ower in So

uth Afric a. From t

hen until the early

1990s, that ruling party

imposed and enforced a set of laws under

which the non-white population was the subject of disenf

ranchis eme nt, sta

te-spons ored disc

riminatio n, and re

pression . These la

ws, establishing what

became known

as apartheid, included severe curtailments on the libertyof nonwhites with respect to residen cy, travel, assembly, e ducation, employment, and mar riage. Apartheid’ s restr ictions were enforced by members of South Africa’s military and police, and the history of apartheid includes many instances of arbitrary

detention, tortur e, a

nd killing s by

those sta te actors. The comp laints re count ma ny of tho se instances of w rongfu l conduct by a parthei d government

officials, including th e Sharpeville Massacre of 1960, the Soweto Massacr e of 1976, and the killing of the Craddock Four in 1985.70

The allegations are very

different with respect to the defendants. The por t ions of th e

com plaints relating to defendants’ alleg ed conduct focus principally on their trade with South Africa. Thus, car com

panies a re acc used of se lling ca

rs, compu

te r compani es are accused of selling computers, banks are accused of lending money, oil companies ar e accus ed of selling oil, and pharmaceuticalcompanies are accused of selling drugs. The theory of the c omplaints is that in this way defendants fa ci litated or “aided- and-abe

tted” ap artheid

and its as sociate d human ri ghts violations

. To suppor

t that theory , the comp laints allege genera lly that defenda nts knew o f the ra

cist policies of apartheid; that they never theless so engaged in the transac tions in and with the Union of South Africa; and

that, had they not done so , the apa

rtheid re gimewould hav e collap sed, apa rtheid would have ended sooner, and plaintiffs would not have suffered some or all of their injuries. The causal theory adva

nced by the K

hulumani plaintiffs is even weaker: “Aparth eid would not have occurred in the same way without the participation of defendants.” A 00 166 (emphasis added). Typical of the a

llegations are:

• “Apartheid

needed the cooperation, financing and supplies fromthe defe

ndant financial in s titutions and companies and/or their predecessors or successors to ensure that they ha

d the technology , equipment, systems, infrastruct ur es and weaponry to insure that their system coul d function.” A00304.

• “Without oil, the po li ce and military could not have functioned and the economy of South Afric a would have come to a standstill.” A00171.

• “More thanany other single technological advancement, the computer fostered the concentration of administrative power in the hands of Africa’s white elite.” A00427.71 • “Many

computer uses were crucial for the aparthe id regi

mes’ [ sic ] keeping track of political a ctivists who were later targeted for assassinations.” A00430.

• “[A]ny

transfe r of cap ital to S outh Africa had military implica tio ns: loans to th e railwa ys a nd harbo rs sy stems assisted in the m obilization of the armed forces; trade financingprovided the co mputers and telecommunications equipment

necessary

to the efficient functioning of a modern ar my; financing for housing project per petuated the segregated housing

of apartheid.” A00201.

• “The money fro m defendant German banks directly benefi tte d and supported the apartheid reign of ter ror inSouth Africa.” A00440.

• “Limitations on the employment of non-whi tes in salaried, administrative jobs puts a premium onautomatin g such ta sks. Inthis sense, U.S. computer firms hel ped to solve the skilled white lab or proble

m.” A0042 8; see also A00306-07.

• “Defendant

vehicle manufacturers knowingly supplied vehicle s, parts, and other equipment to the South African Police (SAP), South African Defense Forc e (SA DF) and South African

Army . . . . Thes e vehicles were used to patrol African townships, homelands, and other areas and were used to suppre ss dissent. ” A00216; see also A00312. The co mplaints themselves seek relief on behalf of all persons who lived in South Afr ic a between 1948 and the pr

esent who suffer

ed damag es as a

result of apartheid. Moreover, they seek to hold responsible each of the defenda nts, whom they

charac terize as aiders- and-abe

tters, lia ble for “allacts comprising the entire system of apartheid – a criminal enterprise.” A00255. Nevertheless, they fail to link the conduct

of a specific defendant to an injury suffered by

a particular plaintiff. On the contrary , the gravamen of the complaints is not that individua

ls should recover from particular72

defenda nts in tort, but that millions of people who “lived under the apartheid system” , A00095, should recover from all the defendants for having been “su bject to . . . the overwhelming injustices that characterized apartheid.” Id. In sum, these are re parations cases, seeking

at least $400 billion inreparations, rather than torts cases for da mages. They

fail to allege a cognizable ca use of action. Moreover, the plaintiffs conceded at oral arg ument that they are

not anxious to amend t

heir complain ts to link a pa

rticular plaintif f to injuries caused by a particular defendant. Tr. at 64. Indeed, the attor

ney for the K hulumani p laintiff

s acknow ledged that he wo

uld not nec essaril

y b e satisfied w ith such an amendment, but that he would “accept it because it would be a beginning.” Tr. at 80. Nevertheless, he confessed that “[w]hat’s at stake her e is almost by

definition of the crime

aninability to make that exact trace or that degree of par

ticular ity.” Tr. 80-81. This conc ession alone establishes that the allegations in any amended complaints woul d be insuffi cient “to raise a

reasona ble expectation that discovery will reve al evidence” to support them. Bell Atlantic Corp. v. Twombly , 127 S. Ct. 1955 (2007). Instead, these complaints would simply pr ovide a veh icle to

coerce a settlement. Nevertheless, the per curiam opinion reverses the order dismi ssin g the complain ts and or ders J udge Sprizz o to rule a gain on plaintiff s’ motions f

or leave to reple ad, bec ause plaintiffs have indi cated “ that, if given the opportunity, the y would narrow

the claims and clarify

the allegations against the various defe ndants.” Per Curiam Op. ante at 13-14. Idissent fromthe holding keeping these claims alive for the rea sons alluded to earlier and because (1) the Supreme Court, in Sosa v. Al varez-M achain , 542 U.S. 692 (2004), has instructed us that this is the very sort of ca se in which jurisdiction should no t be exercised ; (2) the S tate Department

has filed a

persuas ive State

ment of I nterest in this matter urging dismissal because of the adverse effect the

continue d prosec

ution of th ese cas es would h ave on the interest s of the United73

States and our r

elations w

ithother countries; and (3) the Republic of South Africa, a democra tically ele cted government representative of a ll South Africans, including the victims of aparthei d, ha s asserted the rig ht to define and finalize issue s relate d to repa rations f or apar theid-e ra offe nses withi n its own legal framework – thus making t his lawsui

t an insult t

o the post- aparthe id, black -majorit y government

of a free people. These g rounds, among others, reinforce the c ompe lling policy argument arti cula ted that a d

ecis ion to hear these case s woul d “re flec t[] the worst sort of ‘judicial imperial ism’ . . . [and] send the message that the United States does not respect

the abilit y of South African society to administer justice by

implying that U.S. courts are better placed to judge the pace and degree of South Africa’s na tional reconciliation.” Elliot J. Schrage, Judging Co rporate Accountability in the Global Economy , 42 Colum. J. Transnat’l L. 153, 166 (2003). Discussion 1. Deference to the United States and the Republic of South Africa This appeal is unique. Departing from its usual p ract

ice, the Su

prem e Cour

t, in t he context of deciding a different case , has already given us guida nce as to how this ap

peal shou ld be decided. In Sosa , it held tha

t, in dete rmining whether the Alien Tort Claim s Act (the “ATCA”) provides a basis for the e

xercise o f jurisdiction over an alleg ed tort in

violation o f th e law of n ations, c ourts must apply “princi ple[s] limiting

the avai lability

of relie f” bey

ond the re quir em ent that the inte rnational law norm whose violation is alleged be sufficiently defined. 542 U.S. at 733 n.2 1

. Sp ec if ic al ly, because the decision to permit a case to proce e d involves “an element of judgment about the practical consequences of making that cause available to litigants,” id. a t 732-33, the74

Supreme Court sugges ted that “case-specific defer ence to the political branches,” id. at 733 n.21, provided one limitation on the exercise of jurisdiction under the ATCA in certain instances. Among the reasons for such defer ence is that

the recognition of

private rights of action for violations of international law may g ive rise to “collateralconsequences.” Id. at 72 7. Sp ec if ic al ly, the Court cautioned that “the potential implications for the foreign rela tions of the United States of recognizing

such causes should make courts particularly wary of impinging on the discretion of the Legislative

and Executive Branches in managing foreign affairs.” Id. The Court continued: “Since many attempts by feder

al courts to craft remedies for the violation of new norms of international law would raise ri sks of adv erse foreign p olicy consequences, t

hey should be u

ndertak en, if at all, with great caution.” Id. at 727-28. Then, focusing on the case bef o re us on th is appeal, the Supre me Court con tinued: For example, there are now pending in Federal District Court several class ac tions see

king da mages f rom vario us corpor ations all eged to have participated in, or abetted, the regime of apartheid that formerl y controlled

South Africa. See I

n re South A

frican Apa rtheid Litigation , 238 F. Supp. 2d 1379 (JPML 2002) (gran ting a mo tion to transfer the case s to the Southern District of New York). The Government of

South Afr

ica has s aid that these cases in terfer e with the policy embodied by

its Truth and Reconciliation Commission, which“deliberately

avoided a ‘victors’ justice’ a pproach to the cr imes of aparth e id and chose instead one based on confession and absolution, informe d by the principles of r econciliat ion , reconstruction, repar atio n and go odwill.” D eclara tion of Pen

uell Mpapa Mad una, Minister o f Justice a

nd Constitut

ional Dev elopment , Republic of South Africa, reprinted in App. to Brief for Government of Commonwea

lth of Aust

ralia et al. as Amici Curiae 7a, ¶3.2.1 (emphas is d eleted). The United States has agree d. See Letter of Wil liam H. Taft IV, L egal Adviser, Dept. of State, to Shannen W

. Coffin, Deputy Asst. Atty . Gen., Oct. 27, 2003, reprinted in id. , at 2a. Insuch c ases, there i s a str ong argument t hat fede ral cour ts should give serious weight to the Exec utiv e Branch’s view of the case ’s imp acton f

oreign policy

. Cf. Republic of Austria v. Altmann , 54175 U.S. 677, 124 S. Ct. 2240, 159 L. Ed. 2d 1 (2004) (discussing the State Department’s use o f

statements of interest in cases involving the Foreign Sovereig

n Immu nities Ac t of 1976, 2 8 U.S.C. § 1602 et seq. ).
Id. at 733 n.21. The Executive Branch’s view of the impact of these c ases on for eign policy is set forth at some length in a letter

to the district court, dated October 27, 2003, from the L egal Advisor of the Department

of State. The letter advises “that continued adjudication of the above-referenced ma

tters risks potentially serious adverse consequences for sig nificant interests of the United States.” A01090. After ou

tlining the object

ions of the

Republic o f South

Africa to the continued prosecution of these cases in the United States and noting the “ext ensive st eps” it ha s taken “

to promote reconciliation

and redr ess for a parthei d-era i

njustices ,” the L egal A dviso r obs erved that the Rep ublic of South Africa “is broadly

representative of the victims of the apartheid re gime” and “is uniquely charged with a pop

ular mandate to de al with th e legacy of apartheid.” Id. He then c oncluded his discussio n of this a spect of the Execut

ive Bra nch’s concern a s follows: Supportfor th e Sout h Afri can go vernment’s e fforts in this area is a cornerstone of U.S. policy towards that country. F or that reason, we are sensitive to the view of the Sou th Afr ican government that adjudica ti on o f the ca ses will int

erfer e with its p olicy

goals, e special ly inthe are as of re

parati ons and foreign investment, and we can re a sonably

anticipate that adjudication of these cases will be an irritant in U.S.-South African relations. To the extent that adjudica tion impedes South Africa’s on-going efforts at reconciliation and equitabl e econo mic growth, this lit ig ation will als o be detrimental to U.S. fore ign polic

y in terests i n promotin

g sust ain ed economic growth in South Africa.
Id.76

The State Dep artment a

lso voice d other c oncerns . For one thing, the Legal Advisor wr ote, “[v]arious other

foreign governments, including those of the United Kingdom and Cana da, have also approached

us via diplomatic channels to express their profound concern tha t their banks, corporations and other entities have been named a s defendants .” A01090 -91. Be cause of those gover nments’ “strong

belief that the issu

es raise d in the litigation a re most appropriately handled throu gh South Africa’s domestic processes,” the State Depar tment “anticipat[ed] possible, continuing tensions in our relations with these countries over the litigation.” A01091. Moreover, the Legal Advisor e xpressed concern over the chilling effect that

actions o f this kind may have on f uture foreign i

nvestmen t in devel oping c ountries : The United Sta

tes relies, in significant part, on economic ties and investmentto encourage and promote p ositive change in the domes tic policies of

developi ng coun tries on is sues rel evant to U .S. interest s, suchas respect for human rights and reduction of poverty . However, the prosp ect of c ostly

litigati on and pot

ential lia bility in U.S. cou

rts for operating in a

country whose government implements oppressive policies will discourage the U.S. (and other foreig n) cor porat ions frominvesting

in many

areas o f th e developing world, where inves t ment

is most needed and can have the most forceful and positive impact

on both economic and political conditions. To the extent that the a

parthei d litigat

ion in U.S. c ourts deters s uch inve stment, it will compromise a valuable foreign policy tool and adve rsely affect U.S. economic interests as well as economi c development in poor

countrie s. Id. In White

man v. Do rotheum G

mbH & Co. KG , 431 F.3d 57 (2d Cir. 2005) (Cabranes, J. ), we recognized

that “[j]udicial deference to the Executive Branc h on questions of foreign policy has long been established under the pr udential justiciability doctrine known as the ‘political que stion’ doctrine

. . . .” Id. at 69. In deciding wha t deference to accord the position of the Executive Branch,77

we referenced the foundational ca se of Baker v . Carr , wh ich identified six independent tests for recognition

of a political question. 369 U.S. 18 6, 217 (1962) . In Whiteman , we directed the dismissal of the complaint without examining each of the Baker tests because it was clear that the

casemet the fourth test, name ly that “‘a c ourt’s un dertaki ng inde pendent r esolution ’ of this claim is impo ssible ‘without expressing lack of the respect due’ the Executive B ranch.” 431 F.3d at 72 (emphasis deleted) (citations omitted). We need not examine any of the six indepen dent tests identified in Baker because Sosa plainly held that the determination of whether to exercise jurisdiction over a ca use of action for a violation of the law of nations is subject to “case -specif

ic deference to the political branches.” 542 U.S. at 733 n.21. More than that, the Supreme Court advised us that in the instant cases “ th e re is

a strong argument

that fed eral co urts should give serious weight to the Executive Branch’ s view of the case’s impac t on fo reign policy.” Id. Indeed, one commentator , who has emphasized the need for a “searching review”

of the Bush

administration’s positions in human rights cases, has acknowl edged

that the present c ases ar

e diffe rent: [These] cases reflect the unique h istory of South Af

rica an d its transi tion from apartheid to democracy . The government tha t replaced the apartheid regime was re cog nized internationally as representative both of the majority of the nation and, in particular, of t he victims of past human rights abuses. The transition i ncluded a negotiated

process by w hich abus es would b e investi g ated and perpe tr ators given the opportu nity to testify about the ir action s in return for amnesty. When the democratically elected, representative government

of South Af

rica obj ected to

the impact of the U. S. litigationon the negotiated transition process, the executive branch asked the courts to defer to this j udgment. All of these factors provide support f

or the Cou

rt’s sug gestion

th at there is a “strong argume nt” that executive branch v iews “in s uch case s” are ent

itled to “serious weight.”78

Beth Stephens, Sosa v. Al

varez-M achain, “Th e Door Is

Still Ajar”

for Human Rights Litiga tion in U.S

. Courts , 70 Brook. L. Rev. 533, 562 (2005). (Prof essor Stephens and a fellow academic co authored an amicus curiae brief on behalf of international human right s organizations and bar associations in support of the plaintiff s- appellants. While it urges reversal of the judgment of the district court, her amicus brief does not address the effect of f ootnote 21 in Sosa .) Inany event, th e force

of the ad vic e of the State Dep artment i s enhanc ed by the fac t that, under the doctrine of international comity , dismissal would be justified solely out of defere nce to the Republic of South Africa. Comity, a doctrine more easily invoked than

defined, may be

viewed as either “the degree of defe

rence that a domestic forum must pay to the act of a

foreign government nototherwise binding on the forum,” Laker Airw ays Ltd . v. Sabena, Belgian World Airlines , 731 F.2d 909, 937 (D.C. Cir. 1984), or as “a discretionary act of deference by

a national court to decline to exercise

jurisdict ion in a ca se properly a

djudicated in a foreign state, the so-called comity a mong courts.” In re Maxwell Commc’n Corp. , 93 F.3d 1036, 1047 (2d Cir. 1996). A court’s exercise of discretionto dismiss a suit on comity grounds is indep endent of its treatment of the views of the Execut ive Branch. See Ungaro-Benages v. Dresdner Bank AG , 379 F.3d 1227 (11th

Cir . 2004 ) (dismissing a claim on

the gro unds of int

ernatio nal comity

after declining

to defer to the Executive Branch). The decision whether to dismiss on this basis depends on the degree to which the inter ests of a foreign sovereign ar

e “legitimately

affronted by

the conduct of litigation in a United States forum,” Jota v. Texaco, Inc. , 157 F.3d 153, 160 (2d Cir. 1998), steps the foreign sovereig n may have taken to addre ss th e issues in

the litigation, and the extent of our own interest in the underly ing79

issues. See generally Bi v. Union Carbide Chems. & Plastics Co. , 984 F.2d

582 (2d Ci

r. 1 993) (Newman, J

. ). Perhaps the most significant factor is whether the foreig n sovereign to which we defer is a democratically

elected government with an independent judiciar y. Id. at 585-86. Inthe present cases, the extent of the affront to the legitimate int er ests of the Republic of South Africa , the step s i t has taken to address the issue of reparations, and the de pth of feeling underlying

its conc ern are ampl y refle cted in the record. On April 15, 2003, in response to the Report of the Truth and Reconciliation Commission (“TRC”), the President of the Republic, Thabo Mbeki, announced the programs that would be implemented to assist the victims of apar theid: [W]ith regar

d to speci fic cas es of indi vidual v ictims identified by [the] TRC Act, the government has put in place and will intensify programmes pertaining to medical benefits, educational assistance andprovision

of housing

and so on. From time

to time, Min

ister s have elabora

ted and will continu

e to expatia

te on the implementation of these and other related progra mmes. The TRC has reported that about 22,000 individuals or surviving families appeared before the Commission. Of these, about 19,000 requi red ur gent reparations, and virtually all of them, where the necessary information was available, were attended to asproposed by the TRC with

regar d to interi m repar ations. Withregar

d to final reparations, government will provide a once -off grant of R30,000

to those individuals or

survivors designated by

the TRC. Th is is over and above other material commitments that we have already

mentioned. We intend

to process these pay

ments as a matter

of urgency , during the curren

t financ ial y

ear. Comb ined with c ommunit y repa rations, and assistance through opportunities and services we have refer red to earlier, we hope that these disbursements will help acknowledge the suffering that these individuals experienced, and offe r some relief.80

A00745. President

Mbeki then addressed the issue of “civil suits against corporations that benefitted fromthe apar

th e id sy stem,” sp ecifica

lly t his litiga tion. A007 47. Afte

r reiter ating “ that the So

uth African Government is not and

will not be a party

to such litigation,” he continued: “[W]e consider it comp letely una cceptable that matters that are centra l to the future of our country should be adjudicated

in foreig n courtswhich be ar no re sponsibilit y for the well-being of our country and the observance of the per spective contained in our Constitution of the promotion of national reconciliation.” Id. While rec ognizing “the rig ht of citi ze ns to institute legal action,” President Mbeki also emphasized that the gover nme nt’s appr

oach is in formed by “

the desir e to involv e all South Africans, including corporate citizens, in a co-ope r ativ e and volu

ntary partnership to reconstruct

and develop South African society .” Id. Accord in gly, he also rejected the once-off wealth tax on corporations suggested by the TRC. Id. Likewise, in an addr

ess to Parliament on the same day , Alec Erwin, the Minister of Trade and Indu st ry, emphas ized that the government’s rationale for its rejection of the onc e-off wealth tax applied equally to its opposition to the cases at issue:

It is for all the above reasons th at we are opposed to and indeed contemptuous of attempts to use unsound extra-territorial legal precep ts in the [United States of America] to seek personal financial gain in South Afr

ica. Whilst

individua

ls have a n inviolate

right to recourse in law

and this is f

irmly entrenc hed in South

Africa it is an abuseto use the law, unsound la w at that, of anothe

r land to undermine our so vereign right to settleour past and build our future as we see f

it. South Africans involved

in this bre ak that indefinab le col lectivist

identity that was the origin of our strength. Th e government

rejects the actions of legal prac titioners in th e USA to exploit our history and will no t allow an

y ju dgment made in the

USA or elsewhere to be carried out in South Africa

. A00754-55.81

Professor Kader A smal, the M inister of Education, also as saile d the p rosecut ion of the se cases. H e told the

Parliame nt: South Africa must settle

this issue for themselves and does not need the help of a

mbulance chasers and contingenc y fee ope rators, whether inSwitzerla

nd, the Ne

therlands, or the United States of America. As South Africa ns, we ha ve effe cti vely de alt with our own historical challenges and

we w il l co nt in ue t o do so. It is par t of ou r sove reign right.
A00758. OnApril 16, 2003, the day af ter the addresses quoted above, the Cabinet of the Republic of South Africa resolved that “[i]t remains the right of the [G]overnment [of South Africa] to de fi ne and finali se issue s of repa

rations, both nationally

and inter

national ly. ” A00803. Agains t this backdrop, the th en- Minister of Justice, Penuell Mpapa Maduna, filed a declaration in the district

co urt which se t forth the Republic of South Africa’s view of various case s pending in the United States against corporations that did business with and in South Africa during the apartheid period, including the cases at issue here. The state ment summa

rizes the a ctions und

ertake n by the Repub lic of South Afr

ica “torepair the damage ca used by the apa

rtheid system

through a broad p rogra mme of socioeconomic reparations which has at its heart, the better ment of the lives of t he previ ously dis advantaged.” A00801. Then, addressing the prosecution of these c ases, he argued that the remedies sought –

including “the demand for b illions of d ollars in damages to be distributed by the US courts” – are “inconsistent with South Af rica’s approa ch to achieving its long term goals.” A00805. Sp ecifica

lly, he contin

ued: Permitting this litigation to go forward will, in the government’s view, discourage muc h-neede d direct foreig n investme

nt in South Africa and thus delay

the achi evement

of our ce ntral g oals. Indeed,82 the litigation could have a des tabilising effect on the South African eco nomy as invest ment is not only

a driver of grow th, but als o o f employ ment. One o f the structural features of the South African ec on om y, and one of the terrible legac ies of ap artheid , is its high level of unemployment and i ts by-product, crim e. Fo reign direct investmentis essenti al to addr ess both th ese is sue s. If

this litigation procee ds, far from

promoting economic growth and employ ment and thus advanta

ging the previo

usly disadvan taged, the liti gatio n, by deterring foreign dire ct investment and un dermining

economic stability will do exactly theopposite of what it ostensib ly s ets out to do.
A00805-06

. The last

paragraph of Minister Maduna’s de claration invoked the doctrine of international comity. He obse rved that under United States law, courts may abstain from adjudicating cases in defer ence to the sovereign rights of foreig n countries to legislate, adjudicate an d otherw is e resolve domestic issues without outside interference, particularly w here the relevant government

has expressed opposition to the actions proceeding in the Unit

ed States , and where adjudication in the United States would interf ere wit h the f

oreign sovereign’s efforts to address matters in which it has the predominant interest

. The government

submits that its interest in addressing its apart heid past present s just

such a situation.
A00806. Most recent l y, on this appeal, the Republic of South Africa filed an amicus curiae brief, whichis not addressed in the per curiam and concurring opinions and is not specifically listed among the parties filing briefs on this appeal, arg uing that these

actions “ fundame

ntally interfe re with Sou

th Africa’s independence and soverei gnty

and intervene in its internal affairs, including its right unde r international law to address its apartheid past and to develop policies f or its future in

the manne

r it deems most appropriate, subject to the support and approval of the democratic electorate.” B r. for S. Afr. as Amicus Curiae at 1-2. Specifically , it emphasized that the continuation of this litigation83

would discoura ge business inves tme nt and, th ereby, disrupt the g rowth of the South African

ec on om y. Id. at 3-4. In a statement appe nded to the brief, th e current South African Minister of Jus tice, Brigit

te Sy lvia Maba

ndla, re peated v erbatim t

he earl ier state

ment of fo

rmer Mini ste r Maduna, adding that “another country ’s courts should not determine how ongoing political processes in South Africa should be resolved.” Id. annex at 1. Inlight of the consistent and considered policy of the Repub lic of South Africa and the progra ms it has put in place to pro vide re parations and assistance to the identifiable victims of apartheid, it is difficult to conceive of any policy reason f or exerc ising jur

isdiction over thes e cases . Onthe c ontra

ry , “[m]o st judge s would not want, by asserting their own jurisdiction in a doubtful case, to underm

ine eff orts to rebuild national so ve re ig nt y, democra tic i nstitutions, and self-respecting courts, in countries that have lately suffered from catastrophic even ts t hat include international crimes.” Michael Kirby, Universal Jurisdiction and Judicial Relucta nce: A Ne w “Fourtee

n Points”, in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International

Law 240, 255 (Stephen

Macedo, ed. 2004). Indeed, Profe ssor William R. Casto, whosescholar ship was c ited rep eatedly by the Supreme Court in Sosa , has written that the apar theid regime in South Africa may be

an example of a situation “in which a nation’s prior

government has engaged in the most de spicable misconduct, but the current government is making an honest, perhaps falte ring, butnevertheless real effort to rectify the past misdeeds . . . . I f apartheid weredetermined to be a v io la ti on of

cl ea rl y es ta bl is he d i nt er na ti on al la w, a t or t r em ed y f or th e victims o f that evil system might nevertheless be inappropriate.” William R. Casto, The New Federal Common Law of Tort Remedies for Violations of International Law , 37 Rutgers L.J. 635, 656 (2006).84

Particula rly apposite here is the char acteris tically thoughtf ul opinion o f Judge N ewman in Bi v. Union Ca rbide Che

micals & Plastics Co , 984 F.2d 582 . The case arose out of the devastating Bhopal industria

l accide nt, in whic

h deadly gas from a plant operated by Union Carbide India L

td. (“UCIL ”) blew into a densely populate d part of India. Some 145 class actions were filed in federal districtcourts across the United States and consolidated in the Southern District of New York. After the case was dismissed on the grounds of forum non conveniens , the I ndian g overnme

nt, to which its parlia ment gr anted the exclusive authority to repr esent the victims of the disaster in India and elsewhere, filed suit

in Ind ia on beha

lf of all claimants. India and Union Carbide ultimately agreed to a court-approved settlement, by which the latter ag

reed to p ay $470 million to the I ndian government for the benefit of all victims of the disaster. After the settlement of the class actions in India, two c ases were fi led in Texa s statecourts

on behalf o f other victims of the Bhopal disaster. The cases wer e transferred to theSouthern District of New York, where Judge Keena n dismissed both actions on the ground of forum non conveniens

. We affirme d the dismis sal, altho ugh on di ffere

nt groun ds. Judge Newman described the appeal as presenting“an interesting issue of comity among nations in the resolution of cl aims ar ising from torts occurring within a foreign c ountry.” Bi , 984 F.2d at 583. The precise issue he identified is whether the federal and state cour ts of this country should defer to the j u dgment of a demo crati c forei gn government that disputes arising from a mass tort occurring within its b orders can be b est re solv ed by accord ing th e forei gn gover nment exclusive standing

to repre sent the v

ictims of the disaste

r in the c ourts of

the world.
Id. We declin ed to per

mit the pla

intiffs to prosecu te the cla ss action s in fede ral or sta te court , notwithstanding their arguments that settlement of their claims by the

India n gover nment was

unfair and improper because, among other things,85

the Indian Gov ernment had an unacceptable conflict of intere st as part owner of UCIL, most of the

victims oppose the

settleme nt as gr ossly inadequate, and their due process rights w ere viol ated bec ause they receiv ed inade quate not

ice and i nadequa te re presentation

in the proceedings and because the y could not opt out of t h e settleme nt. Id. at 584. After describ ing in de

tail the st ructure of the I ndian g overnme

nt, pursuant to a

Constitution that “provides for a republican form of parliamentary

government and guara

ntees the fundamental rightsof the people, including equal protection and proce dural due process,” i d. at 585, Judge Newman observe d that I

ndia had c

hosen “to repres ent exclus ively

all the v ictims in a

suit aga inst Union Carbide a

nd to use th e money

it recei ved in settlement of that suit to fund a plan framed .

. . to process the claims of all the victims.” Id. at 58 6. Under t hese circ umsta nces , he w

rote , “[t]ogrant the victims of the Bhopal disaster, most of whom are citizens of I ndia, access to our courts where India has set up

what it be lieves to b e the most effective method of dealing with a diffic ult problem would frustrate India’s e fforts.” Id. “[W]ere we to pass jud

gment on the valid ity o f Ind ia’s res ponse to a disaste

r that oc curred

within its bo

rders,” Judge Ne

wman con

tin ued, “i t would disrupt our relations with that country and fr ustrate the efforts of the intern atio nal community to develop methods to deal with problems of this magnitude in the future.” Id. Moreover, it was not relevant whether “under our constitutional standards, our Gove rnment could pass an act similar to the Bhopal Act” pursuant to which the I ndian government settled the claims that the plaintiffs sought to prosecute. Id. Inste ad, he wr ote that: when a recog nized demo cracy

determines that the

interest s of th e victims of a mass tort that occurred wi thin its borders will be be st served if the foreign government e xclusively represent s th e victims incourts a

round the

world, we

will not pa ss j udgme nt on that86 determination, and we will permit only the for eign governm ent acc ess to our courts to litigate those claims, subject of course to our own require ments for stand ing. This conclusion is especially compe lling ina case such as this where almost al l of the victims are Indian citizens.
Id. The present cases involve a stronger basis for dismissal under the doctrine of international comity

. Like I

ndi a, the Republic of South Africa is a sovereign democ ratic state whose policies broadly reflect the interest s of its peo ple. More over, it h as adopte d policie s and prog rams designed to address the effects of apartheid and compensa te its victims. However, unlike the plaintiffs in Bi , whoseclaims were wiped out under I ndian lawand who had

no alternative forum, the plaintiffs here may have a c ompetent

alterna tive foru m in their home

country that, by all accoun

ts, is prep ared to hear their g rievanc es. I

ndeed, the pla intiffs have themselves acknowledged that re lief would be availab le in the courts of the Republic of South Africa. See Khulumani Reply Br. a t 27 (“No relief fromcivil or c

riminal lia

bility was enacted for those who did not apply for and obtain amnesty

from the TRC, . . . South Afr

ica’s a pproach leaves o pen the po ssibility

for individual citizens to take up any grievance related t o human rights violations with the courts . . . .”) (internal quotation marks omitted); Ntsebesa

Reply Br. a

t 28 (“The acts alleged

in plaintif

fs’ comp laints ar

e illeg al and wo

uld subject the defendants to suit in both the United States and South Africa . . . .”). Si gn if ic an tl y, President

Mbeki has stated, “[the] Government recognizes the right of c itizens to insti tute leg al action.” A00747. Likewise, in cr iticizing the prosecution of these cases in the United States, Minister Erwin noted that the p laintiff

s “have a n inviolate

right to recourse in law”

– just not in the United States. A00754. Thus, unlik e the vic tims of the

Bhopal d isaster, there is87

every indication they

may have the ir day

in court, in their

home country , before an independent ju di ci ar y, in a manner consistent with traditional notions of due process. As Minister Maduna stated in his dec laration

to the distr

ict cour t: Under the Constitution, the judicial author ity of t he Republ ic is vested in the co urts, which are independent and subject only to the Constitution and the law, which they must ap pl y impartially

and withoutfear, favour or prejudice. No pe rson or organ of

state may interfere with

the functioning of the courts, while all other orga ns of the st ate, through legislative and other mea sures, must assist an d protect the courts to ensure their independence, im pa rt ia li ty, di gn it y, access ibility

and effectiveness. An

order or decision of a court binds all persons t

o whom and

organ s of st ate to w hich it ap plies. Sout

h Africa has a we ll develope d judicia l sy stem, with the Constitutional Courtat its apex and the Supreme Court of Appeal as the final court of ap peal in non-constitutional matters. Judgments of th e Constitutional Court and, indeed, the Supreme Court of Appeal, are widely admired for thei r ind ependence and incisiveness and are frequen tly refer red to in judgments of other final courts of appeal in te rn at io na ll y. A00798-A00799. Similarly, as one schola r of South African law has observed, [t]he new constitutional law not only introduced the e thos of a d

emocra tic Rechtsstaat , bu t a ls o e na ct ed an ex te ns iv e a rr ay of so cioeconomic rights that are design ed to c hange South African society f undamentally. These

can be and indeed already have be en used to

secure , throug

h litigat ion, the in terests o f the tra

ditionally marginalised groups and to ensure the ir place on the political agenda. Franç ois du Bois, I

ntroducti on: Histor

y, Syste m and Sourc es, in Int

roductionto the Law of S outh Africa 1, 3-4 (C.G. van der Merwe & Jacques E. du Plessis eds., 2004). While I have

assumed the availability of a f

orum in the Republic of South Africa, Bi makes clear tha t s uc h a n a lt er na ti ve fo ru m i s n ot al wa ys r eq ui re d b ef or e t he do ct ri ne of

co mi ty m ay b e invoked. See also J

ota , 157 F.3d at 160 (“[C]ases might be imagined where a fore ign sovereign’s88

interes ts we re so legitimately affronted by

the conduct of litigation in a United States forum that dismissal is warranted without regard to the defendant’s amenab ilit y to suit in an a dequa te for eign forum. . . .”). Ne verth eless, e ven if the

availab ility

of an alt ernativ e forum w ere an a bsolute prereq uisite to dismissal on the ground of international comity , and one

were no t availab le in these cases, defere

nce to South African law would be justified under a t raditiona l choice -of-law

analy sis. Indeed, although he did not in haec verba invoke suc h analy sis, Judge Newman’s opinion in Bi is entirely consiste nt with it. We have previously he ld that the assumption of subject matter jurisdiction over a cause of actionunder the ATCA does not preclude a choice-of-law a nalysis resulting in dismissal of the case. Filartiga v. Pena-

Irala , 630 F.2d 876, 889 (2d Cir. 1980). This inquiry is separ ate from the jurisdictional analysis. I

ndeed, we have read Filartiga as “requir ing the d istrict c ourt to pe

rform a traditional choice-of-law analy sis to determine whether international law, [the] law of forum state,

or [the] law of state where events occurre d should provide substantive law in such an action.” Wiwa v. Royal Dutch Petroleum Co. , 226 F.3d 88, 105 n.12 (2d Cir. 2000). Iengage in a hy

pothetical choice-of-law analy sis here, because it focus es on the gover nmental in

terests o f South

Africa and the United States and servesto reinforce the argument against exercising jurisdiction over these case s. As we have observed, [t] he federal common law choice-of-law rule is to apply the law of the jurisdiction having the gre atest

interest in the litig ation . . . . The goa l of this analy sis is to evaluat e the vari ous conta

cts each ju

risdict ion has with the controversy , and determine whichjurisdict ion’s law s and polic ies are implicate d to the gre atest exte nt.
In re Koreag, Controle et

Revision S.A. , 961 F.2d 341, 350 (2d Cir. 1992). In this case, the Republic of South Africa has the greatest interest, if not the only interest, in the application of its laws. The89

conduct alleged took

place in South Africa and the victims were its own citizens. The remedies that its citizens should have as a result of the injuries they suffered at the hands of theaparthe id regi me are matt ers exclu sively

for its de mocratic ally

electe d post-ap artheid

gover nment. Moreover, the tenuous interest of the United States in the issues raised by t hese ca ses is also

re flect ed in the fact that, under customary international law, we could not exercise subject matter jurisdiction over a cause of action ag ainst the primary tortfe asor – the officials of the Union of South Africa – or th e forei gn corpora

te defe ndants. T his is so, be cause a

parthei d, howeve

r abhorr ent it may have been, has not

been re garde d as an of

fense su bject to the exerci se of universal jurisdiction. This concep t, as its name implies, “recognize[s] that international law permits any state to apply its laws to punish certain offenses although the state has no links of territory with the off ense, or of national ity

with the offender (or even the victim).” Restatement (Third) of Foreign RelationsLaw § 404 cmt. a (1987); see also Matter of Extradition of Demjanjuk , 612 F. Supp. 544, 555-58 (N.D. Ohio 1985). Un

iversal j urisdicti on is d e pendent n ot only on “substa

ntive ag reemen t as to ce rtain universa lly condemned behavior,” which transforms the beha vior into a violation o f customary international law, but also “procedural agre ement that universal jurisdiction exists to prosecute a subset of that behavior.” Sosa , 542 U.S. at 762 (Brey er, J. , concurring in part and concurring

in the judgment). There is no agreement with respect to the latter issue. Althoug h the Restatement (Third) of Foreign Relations

Law cites racial discrimination, “when [ ] practiced systematically

as a matter of state policy, e.g ., apartheid,” as a violation of customary interna tional law, id. § 702 cmt. i (emphas is deleted), it omits a

part heid from the list of offenses subject to universal jurisdiction. I nstead, the Restatement

states that universal jurisdiction exists only fo r “ce rtain offenses recognized by the1 The Rome S tatute does not apply to “conduct prior to the

entry into force of the Statute.” Rome Statute o f the International Criminal Court a rt. 24(1), open for signature July 17 , 1998 , 37 I .L.M. 999, 1016 (entered in

to force July 1, 2002 ). As one com mentator explained, “[t]o be acceptable to the broades t possib le ma

jority o f countr

ies, m any o f which

had da rk exp eriences

in the p ast and had to r

esort to amnesties or sim

ilar solutions to achieve

national reconciliation, crim inal responsibility under the Rome Statute co

uld not be ma

de retroactive . . . .” Per Saland, Interna tional C riminal Law P rinciple s, in The Int ernatio nal Cri

minal C ourt: T he Makin g of the Rome S tatute – Issues, Negoti

ations, Results

189, 196 (Roy S. Lee ed., 1999). This may explain why the Republic of South A frica, which never ratified the Apartheid Conve

ntion, ratified the Rom

e Statute. 90 community

of nations as of universal concern, such as pirac y, slave trade , attacks on or hijacking of aircraft, genocide, war crimes, and pe rhaps certain acts of terrorism.” Id. § 404. Indeed, while the Reporters of the Restatement observed that the I nternational Convention onth e Suppression and Punishment of the Crime of Apartheid, adopted Nov. 30, 1973, 1 015 U.N.T .S. 243 ( th e “Apar theid Convent ion”), prov ided for universal jurisdiction , they stated that it did so only “[a]mong [the] parties to the Convention.” Restatement (Third) of Foreign Relations Law § 702 rep orters’ note 7. See also Anto nio Casse se, Crimes Aga inst Human ity , in 1 The Rome Statute of the International Criminal Court: A Com mentary

353 , 376 (Antonio Cassese et al., eds., 2002) (observing that the Rome Statute, enacted in 1998, is broader than customary international law and “expands general international law” insofar as it, inter alia , “broad ens the c lasses of

conduct a

mounti ng to crimes agains thu ma ni ty” to include “the crime of apartheid”). 1 Likewise, the European Commission, the executive body of the Europe an Union , has stated e xplicitly that, whil e “apar

theid[] is wid

ely condem nedby states . . . at least at present, it does not give rise to universal jurisdiction because , amo ng other reasons, the [Apartheid Convention] . . . has not been widely ratified.” Br. for th e European Commission a s Amicus Curiae Supporting Neither Party , Sosa v. Al varez-M achain , 542 U.S. 692 (No. 03-339), 2004 WL 177036, at *16 n.35. Another reason is that jurisdiction is limited to certain universally

condemned crimes which “by their nature occur either outside of a State or91

where there is no State capable of punishing, or compe te nt to punish, the crime (as in a time of war).” United States v. Yousef , 327 F.3d 56, 105 (2d Cir. 2003). Of cours e, with respect to the conduct alleged here, there is now a State capable of providing redre ss in a competent manner. Under these ci rcumstan ces, par ticularl y th e failur

e of the U nited State s to sign or ratify the Aparthe id Convention, denying a

forum for these cases at this poin t cannot b e said

to undermine any interest of the Un

ited State s. To the c ontrary , as the U nited State s argue s in its amicus brief, t he pros ecution

of these cases ha

rms sign ificant i nterests of the Un

ited State s. Obvio usly , th e congressionalinterest in making available a forum under the AT CA would be undermin ed if we denied a forum where the regime, w hich violated the norm, was the same one that decided that such

a cause of action should not be pursued

. See Tachiona v. Mugabe , 234 F. Supp. 2d 401, 415 (S.D.N.Y. 2002) (de clin ingdeference to law of the fore ign state in action alleging actionable conduct by a sitting government). But that is not the case he re, for as the State Department has observed, the laws of the Republic of South Africa reflect po li cy j ud gm en ts ma de by a gover nment tha t “is broa dly representative of the victims of the apartheid regime” and “uniq uely charg ed with a p opular ma ndate to deal with the legacy

of apartheid.” A01090. We have no interest in undermining its law or po li cy. In s um , t o q uo te ag ai n f

ro m o ne le ar ne d c om me nt ar y: A court de cision to h ear an A lie n Tort Statute c laim over action in South Africa ref

le cts th e wo rst sor t o f “j udi cia l i mp eri ali sm .” It would send the message t

ha t the United States does not respect the ability of South African society

to administer justice by imply ing that U.S. courts a

re bette r place d to ju dge th e pace a nd degr ee of Sou th Africa’s national reconciliation. In contra st, U.S. interve ntion to block such a suit sends a different signal to Sout h Africa and other countries struggl ing through difficul t politica l transitions. I

t would communic ate our recognition of the respected position

that the justice2 The Khulumani plaintiffs also argue that, “[t]he ATS aside, there are ind ependent ground s for jurisdiction in federal court”, nam ely, diversity

of citizenship pursua

nt to 28 U.S.C . § 1332. Br. for App. at 56. T hese ca uses of

actio n, howeve r, are a lso sub ject to dismis sal bas ed on def erenc e to the Execut ive Branch’s view o f the foreign policy impact of allow

ing them to proceed, and on the doctrine of international comity

. See Bi. , 984 F .2d at 586- 87; Doe v. Exxon Mobil Corp. , 473 F.3d 345, 357 (D.C. Cir. 2007) (Kavanau

gh J. , disse

nting from denial o f writ o f man damu s.) The point o f disag reeme nt in Exxon , as the majority acknowledge d, id. , turned on the ava ilability of a writ of m

andamus to rev

iew the denial of the defendant’s m otion to dismiss w

here the Executive Branch did not unequ ivocally seek

such relief. 92

system holds in South Africa

and reinforce the importance of having th os e c la im s j ud ge d i n t ha t c ou nt ry. Schrage, supra , at 166. 2

-------------- -------------- - The majority declines to addre ss the aspect of Sosa directin g cour ts to dete rmine the deferenceowed

to the Exec

utive Br anch’s v iew of the

case , notwithst

anding the fac ts that both parties and amicidevote many pa ges of arg umen t to this issue and tha t the issue

goes dir ectly to whether subje ct ma

tter juris dicti on sho

uld be exe rcis ed over the cause of action alleg ed by the plaintiffs. The principal reason given for this si lence is

that “the district c ourt explic itly

refrained f rom addressing the defendants’ arguments that the ATCA claim pre sented a non-justiciable political question.” Per Curiam Op. ante at 12 (citi ng In re S. African Apartheid Litig. , 346 F. Supp. 2d at 543 n.4 ) (parenthetical omitted). The footnote in Judge Sprizzo’s opinion, from which t he per curiam opinion quo tes an inc omplete excerpt, r eads as f ollows:
Defen dan ts also arg

ue that th ere is no

case or controve rsy for this Co urt to hea r un der Art icl e III of the Constitution because plaintiffs cannot esta

blish that they have standing to bring this action and because the matt er is a non-justiciable political question. See Memorandum

of La w in Suppor

t of Defe ndants’ Join

t Motion to Dismiss at 3-4. Given the Court’s finding that defendants are entitled93 to relief on other grounds, the Court need not addre ss these remaining grounds for defendants’ motion. In re S. African Apartheid Litig. , 346 F. Supp. 2d at 543 n.4. Contrary to the per curiam opinion, a careful reading of the r ecord shows that

Judge Sprizz o did not explicitly refrain from addr essing the issue of the deference to be accorded to the position of the State Department under Sosa . Ind eed, the Memoran

dum of L aw in Support of the D efenda nts’ Joint Motion to Dismiss (“Joint Motion”), which Judge Sprizzo expressly referenced in the part of his opinion declining to address the argument that the ACTA c laim pre sen ted a non- justiciab le political question, argue d (in releva nt part) t hat the “ adjudica

tion of pla

intiffs’ claim wou

ld require

a court to pass on the merits of political questions thatwere resolved by the executive and legislative branches of the United States government in favor of commerce with South Africa.” Id. at 3. The defenda nts did not

argue that the c ase shoul d be dismiss ed in def erence to the Statement of

Inte rest filed by the United States, nor did they rely on the advic e of the Supreme Court in Sosa that the views of the United

States in this case

“certainly

deserve[d] great weight.” Sosa, 542 U.S. at 733 n.21. Indeed, the defe

ndants’ motion was filed before the Statement of I nterest and a y

ear before the Supreme Court suggested that it be afforde d deference. More significantly, a

n objective reading of Judge Sprizzo’s opinion demonstrates that he did rely on the Supreme Court’s advice in Sosa

. See In re S. African Apartheid Litig. , 346 F. Supp. 2d at 547, 551, 553- 54. Neve rtheless , I am unwilling to burden this opinion any further on this score because, even if Judge Sprizzo did not rely expressly

on the Supreme Court’s guidance in Sosa as

a basis for his ho lding, thi s would not be an excuse for avoiding the issue. While cases may be found where we declined to reac h an issue not addressed by the district court, see, e.g. , Bigio v.94

Coca-Cola Co. , 239 F. 3d 440 (2d Cir. 2000), we have held expressly that we are “f

ree to affirm a districtcourt decision . . . even [on] grounds not relied upon by the district court.” In re Methyl Tertiary Butyl Eth e r (“MTBE”) Prods. Liab. Litig. , 488 F.3d 112, 134 (2d Cir. 2007) (quoting Gmurzynska v. Hutton , 355 F.3d 206, 210 (2d Cir. 2004)). Thus, in Bi , 984 F.2d 582 , a mirr or ima ge of Bigio , the district court had dismissed a complaint on the grounds of forum non c onvenie

ns – a ground on which t

he defe ndant had not moved t

o dismiss, presuma

bly because of the una

vailabili ty of another forum. See In re Union Carbi de Co rp. Gas Plant Disaster , MDL No. 6 26, 19 92 WL 36135 (S.D. N.Y. Feb. 18, 19 92). We affirmed the dismissal, applying the principle of international

co mi ty, even though that issue had not been addressed by the district court. Bi , 984 F.2d at 586. Si mi la rl y, in Kadic v. Ka ra dzic , 70 F.3d 232 (2d Cir. 1995) (Newman, J. ), the district court dismissedthe two re lated ca ses before it solely on the gr

ound of lack of subject

matter jurisdiction under the ATCA. S

ee D oe v. Kara dzic , 866 F. Su pp. 734, 73 6 (S.D.N. Y. 1994). On appea l, however, the parties briefed three differe nt grounds for dismissal, even though two of them had not been addressed by

the district court, and Judge Newman considered eac h of them in turn. Kadic , 70 F.3d at 238. There is a good reason to reach the issue her e . Prosecu

tio n of these cases undermines significant

interests of the United States and our relations with the Republic of South Africa, as well

as allies of the United States, who have expressed concern over the exerc ise of jur

isdiction over thes e

cases. Under these circumstances, it is an issue that should be resolved at the thr eshold. Pa

rticular ly apposite here are the words of

the Court o f Appea

ls for the Seventh Ci

rcuit ad dressing a motion to dismiss a Sherman Act

claim on the ground that the conduct allege d did nothave a substantial effect

on commerce within the United States. (The “effect on commerce ” requirement was enacted as pa rt95

of the Foreign Tra de Antitrust Improvements Act of 1982 (“F TAIA”).) I n holding that subject matter jurisdiction was implicated, the Seventh Circuit observed:

There are goo d p olicy reasons f or [this conclusion]. The extraterritorial scope of our antitrust laws touches o

ur rela tions with forei gn governments, and so, it seems, i t is prude nt to tread so ftly

in this area. If F TAIA sets out an issue on the merits, resolution of the issue could be delayed until late in the case, and the potential for a lawsuit to have a

n effec t o n foreig

n markets would exist while the caseremained pending. . . . Tre a ting the matter as one of subject matter ju risdiction reduce s the pote ntial for offendi ng the e conomic p o licies of other nations. In short, FTAI A limits the power of the United States courts (and

private plaintiffs) from nosing about where they do not belong. An d the p ower of the courts is precisely what subject ma

tter juri sdiction is

about. United Phosphorus, Ltd. v. Angus Chem. Co. , 322 F.3d 942, 952 ( 7th Cir. 200 3); see also In re BDC 56 LLC, 330 F.3d 111, 118 (2d Cir. 2003) (finding that a particular issue was jurisdict ional bec ause it implicate d “a thre shold dete rmination that shoul d be made

at the ea rlie st possible

stage of the proceedings”). While I rely

on these cases simply to demonstra te the force of the pol icy

favorin g the exe rcise of ou r d is cr et io n t o d ec id e t hi s i ss ue , t he y a lso supp ort the argument that the issue here should be treated as one going to subject matter jurisdiction – which we must resolve – e v en if it w ould not

necessa rily be so treated in other contexts. This argument derives from the language of

the ATCA and the Supre me Court’ s analy

sis of the manner in

whic h the threshol d jurisdictional que stion shoul d be r e solved. Specifically, Sosa stated tha t “[a]ll Memb ers of th e Court ag ree tha t § 1350 is on

ly jurisdict ional” and “that the jurisdiction was originally understood to be availab le to enf orce a s mall number of intern ational norms that a

federa l court c ould prope

rly recognize as within the common law enforceable without further statutory authority.” 542 U.S. at 729.96

The Supreme Court then observed that “it would be unreasonable to assume tha t the First Congre ss would ha ve expe cted fe deral c ourts to los e all ca pacity to recog

nize enforceabl e international n orm s . . . .” Id. at 730. Sosa went on to discuss “the ultimate criteria for accepting

a cause of action subj ect to jur isd iction under § 1350,” id. at 732, while making it clear that the criteri a it was set

ting for th were n

ot exclusive . One con siderati on “involv e [s] an element of judgment about the practical consequences of making t hat caus e availa

ble to litigants in the federal courts.” Id. at 732-33. Since subject matter jurisdiction under the ATCA depends on whether the defenda nts have viol ated an i

nternat ional law norm which federal

courts are prepared to recognize, accept and make

available to litigants , the application of the criteria for making that determination is one that by definition goe s to the issue of subject matter jurisdiction. The per curiam opinion

argues that subject matter jurisdiction under the ATCA is established simply by virtue of an allegation that the defendant’ s conduct violated a norm of international law and that the decision to provide a remedy for the a lleged violation simply relates to the issue of “whet her a cause of action exists.” Per Curiam Op. ante at 19. The latte

r issue, th

is argumen t continues, does not

implicate subject matter jurisdiction. Id. ante at 19-20. While this may be so with respect to 28 U.S.C. § 1331, which confers jurisdiction “of all civil actions arising unde r the Constitution, laws, or treaties of the United States,” the per curiam opinion ignores the language of the ATCA, which is one of a number of statutes in which “Congre ss has exercised its prerogative to restrict the subject-matter jurisdiction of federal district courts based on

a wide va riety of fact ors,

some of them also relevant to the merits of a case.” Arb aug h v. Y & H Corp. , 546 U.S. 500, 516 n.11 (2006). Where Congress has done so, subject matter jurisdiction turns on wh ether the complaint states a cause of action. See id. at 515-16 (“I f the L egisla ture cle arly

states that a threshold limitation3 The jurisdictional statutes cited by the Supreme Court as examp les in which Cong ress has exercised its prerogativ

e to restrict the subject matter jurisdiction of federal district courts include statutes that contain jurisdiction- conferring langu age identical to that in

28 U.S.C. § 1350. See, e.g., 28 U.S.C. §§ 13 45 & 1348 (cited in Arbaugh v. Y & H Corp. , 546 U .S. 50 0, 516n.11 ( 2006)). Ind eed, in Robins on v. G

overnm ent of Ma laysia , 269 F.3d 133 (2d Cir. 2001), in which Judge Katzm

ann concurred, we said that the “Alien Tort Claims Act (“A TCA”), 28 U.S.C . § 1350, which provides that ‘[t]he d

istrict courts shall hav

e orig inal juris diction

of any civil action by an a

lien for a tort only, comm

itted in violat ion of t he law of

nation s or a tr eaty of t he Unit ed Stat es,’ si milarl y identi fies c ertai n subst antive law violations as jurisdictional pleading requirem ents.” Id. at 144 n.13.

4 The statute at issue in Bevona , section 102 o f the La bor- Manage

ment Reporti

ng and Discl osure Act, 28 U.S.C . § 412, did no t by its term s restrict the exercise of subject m atter jurisdiction. Nevertheless, we held that it had been so construed by the

Supreme Co

urt. Bevona , 152 F.3d at 6 2 (citi ng Calhoon v. Harvey , 379 U.S. 1 34, 138 (1964)).
97 on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be lef

t to wrestle with the issue.”). 3 Indeed, in Members For a Better Union v. Bevona , 152 F.3d 58 (2d Cir. 1998), we vacate d a judg ment ente red aft er trial for fail ure of th e compla

int to state

a cause of action, id. at 61, without regard to the trial record and the assertion of the parties “that the district court had subject matter jurisdiction.” Id. at 67 n.1. 4 More significantly, e

ve n b efore Sosa reaffirmed the jurisdiction-conferring nature of the ATCA, we “distinguish[ e d] [the] Alien Tort Claims Act, with its jurisdictional pleading require ment, from general federa l question jurisdiction, which is ‘not defeated by the possibility that the averments in the complaint may fail to state a cause of

action.’” Bigio , 239 F.3d at 447 (citing Filartiga v. Pena-

Irala , 630 F .2d 87 6, 887 -88 (2 d Cir . 1980 ) (cit ing Bell v . Hood 327 U. S. 678 (1946))). Inde ed, as ea

rly as the very “

birth of the modern line of cases” construing the A TCA, Sosa , 542 U.S. at 724-25, we ac knowledged that, becaus e of “th e stat ute’s requi rement of all eging a

‘ violation of the law of nations’ . . . at the ju risdictional thre shold[,] [c]our ts have . . . enga

ged in a

more search

ing pre liminary

revie w of the merits than is required, for example, under the more98

flexible ‘arising under’ formulation.” Filartiga , 630 F.2d at 887 -88 (co mpari ng O’Reilly de Camara

v. Brooke, 209 U.S. 45 , 52 (1907 ) (quest io n of ATCA jurisdiction disposed of “on the merits”) (Holmes, J. ), with Bell , 327 U.S. 678 (gener al federal question jurisdiction not defeated by the possibility

that the a

verment s in the co mp lai nt may fail to sta

te a cau se of ac tion)) (e

mphasis in original); accord Ka dic , 70 F.3d a t 238; Bigio , 239 F .3d at 447. A fter Sosa , “a more searching preliminary

review of the meri ts ” necessarily includes determining whether the plaintiffs have adequa tely pled a violation of the law of nations over which

it is appro

priate f or the dis trict cou

rt to exercise subject matter jurisdiction. Again, even if I am wrong on this score, w e should c onsider t he issue o f case- specific deferenceat this junctur e becaus e “the c ontinued a djudicat ion of the . . . matte

rs risks po tentially serious adverse consequences for sig nificant interests of

the United States,”, A01090, threatens our relations with the Republic of South Afr

ica, and poses “c ontinuing

tensions in

our rela tions” wit h the other countries where many of t he defendants are incorporated A01091. Just as the Sev enth Circuit treated the FTAI

A as a jur

isd ict ional stat

ute in ord

er to avo id “offe

nding the economic policies of other nations” during the pendency of the case, United Phosphorous , 322 F.3d at 952, we should do so here. Moreover, the per curiam opinion offers no good reason for failing to do so. It sugge sts that its “approach is particularly appropriate here because p laintiffs have indicated that, if given the op po rt un it y, they

would nar

row their claims and clarify

the nature of their allegations ag ainst various defenda nts, changes that may

affec t how the d

istrict c ourt ultima

tely decides to resolv e these

issues.” Per Curiam Op. ante at 13-14 (citing Tr. 7-8, 14-15). The Khulumani plaintiffs, however, did not seek leave to file an

amended complaint and

Judge Sprizzo has previously grante d the Ntsebesa and5 On April 28, 200 3, before Sosa was de cided, Judge S prizz o perm itted th e Ntseb eza pl aintiffs to file a third amended

complaint. In re S. African Ap artheid Litig. , 346 F. Supp. 2d at 544 n.8. While some defendants received a copy of such a com

plaint on May 19, 2003, Joint Motion at 5 n.2 , “[t]hat Complaint was never properly filed.” In re S. African Ap artheid Litig. , 346 F. Supp. 2d at 544 n.8. Nevertheless, it wa s virtually identical to the one previou sly filed. Id. 99 Digwamaje plaintiffs leave to file a second amended complaint alleg ing that the defendants aided and abetted the violation of norms of customary international law. 5 Mor eover, the per curium opinion does not identify a single f law in the cur

rent com plaints tha

t would ne ed to be cured by an amende d complaint, and the transcript of the oral argume nt does not reflect

any offe r by the plaintiffs to amend their complaints in any sig nificant way. I

ndeed, the plaintiffs expressly arg ued agains tthe standard that Judge Katzmann adopts in section II .B of his concurring opinion (which I have joined) for imposing liability on the def endants for

aiding-and-abetting in violation of the norm of international law. Nevertheless, relying

on the ame

nded comp laints tha

t the plain tiffs may be permi tted to file, the per curiam opinion declines “to determine whether the plaintiffs have adequately

pled a violation of interna tional law sufficie nt to avai l themselves of jurisdictionunder the ATCA . . . .” Per Curiam Op. ante at 10. The per

curiam opinion does so in the face of our holding in Bigio that the failure to properly plea

d a violation of the law of nations means that “neither [the district court] nor we may consider the matter further . . . .” 239 F.3d at 447. Instead of upholding its obligation to determine whether subject matter jurisdiction e xists, se e In re MTBE , 488 F.3d at 121-22, the per curium opinion offers up an advisory opinion that a plaintiff may alleg e that a private party

aided and abetted

a violation of a norm of customary interna tional law without so m

uch as a r efere nce to the factual allegations in the com

plaint or c itation to t

he speci fic norm in whichthe defe ndants we re alleg edly complicit

.6 Judge Sprizz o denie d the m

otion to amen d becau se (1) h e had p reviou sly pr ovide d the pl aintiffs leave to replead; (2) the plaintiffs’ request cam e “four months after this Court dism issed these actions and m ore than three m onths a fter pla

intiffs n oticed t heir app eal”; (3 ) allowi

ng the m to r eplead would interfer e with “ ensurin

g a sp eedy a

ppeal” ; and (4) the proposed amendme nts would have been “fruitless” in light of his ruling

that aiding- and-abetting

is not recogniz ed under the ATCA. A01139. 100 Under these circumstances, it is difficult to un derst and the disposition of the appeal, a judgment that “vacate[s] the district court’s order d enying plaintiffs’ motion for leave to amend.” Per Curiam Op. ante at

9. The majority does say that, “[i]n denying this motion, the district court relied, inpart, on t

he erroneous pre

mise that s

ubject ma ter juris diction did

not inhere and reasoned that any additional amendme nts to the pleadings would be futile.” Id. I pa ss over th e incomplete and inaccurate description of the grounds f or the denial of the motion to amend. 6 Nevertheless, I do notunderstand how the majority c an say that Judge S prizzo denied the motion to amend the complaint on the “erroneous premi se” th at sub ject m atter juris dicti on was lacki ng, while declining to rule on th e basic j urisdicti onal issue of wheth er th e plaintiffs “have adequately pled a violation of international law sufficient to avail themselves of jurisdiction under the ATCA.” Id. at 10. Ide cl in e t o j oi n i n t hi s p ec ul ia r d is po si ti on , b y which my colleag ues seek despera tely to avoid the easiest ground on which to resolve this appeal – that of deference to thejudgmen t of the Re public of South Afr

ica, supp orted by

our State Department, that

these cases are none of our business – and go on to grapple unnecessarily with difficult issues relating to th e ATCA and customary international law without be ing able

to agre e on the r

ati onale for the result they reach. Nevertheless, since the majority has chosen to do so, I address the issue w hether the scope of liability for violations of the international law norms

at issue here extends to private actors, such as corporations, for aiding- andabetting. I then turn to the sepa rate opinions of Judges Hall and Katzmann.101

2. The Scope of Liability Under the ATCA Sosa indicates that

this inquiry requires consider ation of two separate principles. First, the Courth eld that t

he ATCA should not be read to create jurisdiction over “violations of any international law norm

with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enac ted.” 542 U.S. at 73 2. Second, the Court observed that “ [a] related

consider ation is wh ether in

ternational law extends the s cope of l iability for a violation o f a give

n norm to th e perpe

trator be ing sued , if the de fendant is a private actor such

as a corporation or individual.” Id. at 732 n. 20. To that en d, immediately therea fter, the Court contrasted

two opinions, one finding no consensus that torture by a private actor violated international law, Tel-Oren v. Libyan A rab Republic , 726 F.2d 774, 791-95 (D.C. Cir. 1984) (Edwar ds, J. , concurring), another finding sucha consensu s that ge nocide by a privat e actor did violate international law, Kadic , 70 F.3d at 239-41. Justice Brey er, in a separate opinion, agreed with the Court that the int ernati onal law norm invoked “must extend liability to the ty pe of per petrato r ( e.g. , a private actor) the plaintiff seeks to sue.” Sosa , 542 U.S. at 760 (Brey er, J. , concu rring i n part and co ncurri ng in t he jud gment) (citi ng id. at 732 n.20). As did the S upreme Co

urt in Sosa , we have held that, “[i]n order to determine whether the offenses alleged by

the [plaintiffs] in this litigation are violations of the law of nations that may be the subject of Alien Tort Act claims against a private individual, we must make a particularized examination of these o

ffe nses . . . .” Kadic , 70 F. 3d at 2 41 (em phasi s adde d). In th at case , Jud ge Ne wman then pro ceeded to engag e in such an exercise. Id. at 241-44 (discuss ing inde

pendentl y genocide, war crimes, and torture and summary

execution). More recently , in Wiwa , we reiterated

our holding in Kadic

that “the ATCA reaches the conduct o f private parties p rovided t hat their102

conduct is undertaken under the color of state authority or violates a norm of international law that is recognized as extending to the conduct of private par ties.” 226 F.3d a

t 104. Theseholdings

are con sistent wit

h the position of

the Europ ean Commis sion, whic h clear ly influenced

Justice Soute

r’s major ity opinion an

d Justice B rey

er’s concurre

nce in Sosa . S pe ci fi ca ll y, in its amicus brief in Sosa , the Commission urged the Supreme Court to hold, as it ultimately did, that in deter mining whether a

non-stat e actor was comp licit in

a violation of customary

international law by a state actor, c ourts shou

ld apply international, ra

ther than domestic, legal standards. 2004 WL 177036, at

*4. Signi ficantly

, and ag ain

consistent with our holding in Kadic , the Commission argued that only a sub set o f norms re cognize d as custo mary interna tional law applies to

non-stat e actors and “hence only

that subset

may form the

basis of liability aga

inst such actors. For example, non-stat e actors may be

liable for genocide, war cr imes , and piracy , while torture, summary execution, and prolonged arbitrary detention do not violate the law of nation s unless they are committed by state officials or unde r color of law.” Id. at *11 (citations omitted). Consistent with this a

naly sis, I first

address whether the complaint here makes allegations agains tdefendants sufficien t to hold the m l iable as

acting under the

color of law. I next turn to whether, at the time the alleged crimes w ere com

mitted, the

re was a well established and un

iversall y recognized

interna tional nor m providin

g for li ability

of private parties who aid and abet apartheid. Fi na ll y, while off

icers a nd employ

ees of a corpora tion may be held r esponsibl e for usi

ng the e ntity

as th e v eh ic le fo r t he co mm is si on of cr im es ag ai ns t h um an it y, I ad dress the issue whether the entities themselves may be he ld responsible. (a) Pri

vate Par ty Liabilit

y unde r Col or of L aw7 The I CTY hel d recen tly th at “[w]h

ile this may

have been th e case d

uring the Sec ond Wor

ld War . . . the law in relation to crimes against hum anity has dev eloped to take into account forces which, althoug h not those of t

he leg itimat

e gov ernme nt, hav e de fac to contr

ol ove r, or ar e able t o mov e freely within, defined territory .” Prosecutor v. Tadi  , 36 I.L .M. 908, 945, C ase No. I T-94-1- T, Opinion and Judgment ¶

654 (Trial Chambe

r May 7, 1997) ; see also Antonio Cassese, Crimes Against Hum anity, in Cassese et al., supra , at 353, 357. 103 Judge Sprizzo held that the allegations against the defenda nts were no t suffici ent to “e levate them to the status of state actors . . . .” In re S. Afric an Aparthe id

Litig. , 346 F. Supp. 2d at 548-49. This aspect of

his decision is challenged in the briefing of only one gr oup of ap pellants. The state actionelement d

erives f rom the pr inciple that violati ons of inte rnationa l human rig

hts norms, including apartheid, are violations of customary international law only

if practiced, encourage d, or condoned by the g overnment of a

state as a matter

of state policy. Restatement (Third) of Foreign Relations Law § 702 & cmt. b (discussed in Sosa , 542 U.S. at 737). See United States v. Josef Altstoetter (“ The Justic e Case ”), 3 Trials of W ar Criminals

Before th e Nuernbe

rg Military

Tribunals Under Control Council Law No. 10 954, 982 (William S. Hein & Co., Inc. 1997) (1947) (Cri me s agains thumanity committed aga inst German nationals are subject to punishment “only where there is proof of conscious participation in systematic gove

rnment organized or approved procedur es . . . .”). 7 Ind ee d, th is ex pl ai ns wh y Sosa specifically he ld that, before jurisdiction is accepted over an AT CA cause of action against a private actor, it must be determined “whether interna tional la w extends the scope of liability for a violation of a

given norm to . . . a private actor. . . .” 542 U.S. at 732 n.20. Cf. Am. Mfr

s. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 49-50 (1999) (linking the color-oflaw eleme nt of 4 2 U.S .C. § 1983 t o the u nderl ying state-a ctio n requir ement of the Four teenth Amendmen

t, and holding that both exclude from their reach “mere ly private conduct, no matter how discriminatory or wrong ful”) (internal quotation marks and citation omitted).104

We have held that case law construing 42 U.S.C. § 1983 is “a r elevant guide to whether a d efendant has engaged in officia

l action for purposes of jurisdiction under the Alien Tort Act. ” Kadic , 70 F.3d at 245. As Judge Newman observed,“[a] private individual acts under color of law within the meaningof section 1983 when he a cts toge ther with state off icials or with sign ificant s tate aid.” Id. (citi ng Lugar v. Ed mondson Oil Co. , 457 U.S. 922, 937 (1982)). Subsequently, the Supreme Court has c autioned

that the la

nguag e from Lugar , which Judge N ewman parap hrased, “must not b e torn fr

om the con

text out of w

hich it arose,” Sullivan , 526 U.S. at 58, namely, an ex parte application for a writ of

attachment. This admonition is a useful reminder that the “under color of law” cases arise in vary

ing co nt ex ts . M an y, i nc lu di ng ca se s o n w hi ch pl ai nt if fs re ly, have been limited to their facts. Id. at 55-59. Perhaps the largest single categ ory of ca ses under color of law are those in which the primary offender or tortfeasor is a private party , and the issue turns on whether “seemingly

private behavior ‘may be fair ly treated as that of the state itself.’” Brentwood Acad. v. Tenn. Sec ondary Sc h. Athleti c Ass’n , 531 U.S. 288, 295 (2 001) ( quot ing Jackson v. Met. Edison Co. , 419 U.S. 345, 351 (1974)). Becau se the cases on

this appeal do not fit in th is categ ory , I a

m relucta nt to discu ss them in de

tail. Nevertheless, because

plaintiff s rely on ge nera l lang uag e from the c ases

“tor n fro m the c onte xtout of which it arose,” Sullivan , 526 U.S. at 59, I borrow from Professor Schwartz’s treatise, first, one significant caveat, and second, his useful sy nthesis of the Supreme Court’s holdings in this area. The caveat

is that, in a

naly zing the l arge b ody

of decis ional law

concer ning sta te action , “it is important to consider the era in which the decision was rendered.” 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 5.12, at 5-85 (4th ed. 2003). Professor Schwartz explains that the Warren Court took an expansive view of state ac tion in its effort to combat racial8 Burto n v. W ilmingt on Park ing Aut hority , 365 U.S. 7 15 (1961), which p rovides the basis for the so-call ed “symbio tic re latio nship test” betwee n publi c and pr ivate ac tors a nd upon w hich pl ainti ffs re ly, was one of the W arren C ourt cas es that took a n expan sive v

iew of s tate act

ion. Th e Supre

me C ourt did not employ

the “sym biotic relationship” langu age in Burton , thoug

h in a subsequent case , it refe rred to “the symbio tic relationship between lessor and lessee . . . p resent in Burton .” Moose Lodge No. 1 07 v. Irvis , 407 U .S. 16 3, 175 (1972) . “Alt hough neither Burton nor the sym biotic relationship doctrine has been ov erruled, they have b een sev erely narrowe d in sco

pe and dimin

ished as preced ent. S uprem

e Court decisional law has g iven Burton a ver y narr ow inte rpretati on and, with th e possib le exception of its decision that a civil litig ant’s exercise of a racially based peremptory challenge c onstitutes state action [ Edmondson v. L eesville Concrete Co. , 500 U .S. 61 4 (1991 )], has rejected e very attem pt to es tablish state action on the ba sis of Burton. ” 1 Martin A. Schwartz, Section 1983 Litigation: C laims and Defenses

§ 5.13[A ], at 5- 90–5- 91 (4th ed. 20 03); see also Sullivan , 526 U.S. at 57-58; Lauren ce Tribe, American Constitutional Law

§ 18- 3, at 1 701 n. 13 (2d ed. 198 8). 105 discrimination in so c iety, but that the subsequent Bur ger and Rehnquist courts reversed this trend inorder to shield private behavior from the reac h of the Constitution. Id. § 5.12, at 5-85–5-8 6. This reversal was undertaken

not by explicitly

overturning any

earlier state-action decisions, but throu gh

a series of decisions finding no state action despit e heavy gover nment invo lvement in

private conduct. Id. § 5.12, at 5-86. The unmistakable messages sent by these dec isions are that the concept of state action is to be

given o nly

limited be

rth, and t hat fede ral cour ts must asses s the continued vitality of earlier sta

te-action precedents in light of more re cent decisional law. Id. 8 Professor Schwart z then suppl emented

this perc eptive a

naly sis by stating the pr

inciples that have emerged as the Supreme Court ha s narrowed the scope of its state-action jurisprudence :

1. Mere sta

te regula tion of pr ivate conduct, ev en if exten sive, is insufficient to support a finding of state action.
2. State authorization of private conduct does no t make th e privat e party a state a ctor; to f ind state a

ction, the state must

part icipate in, co er ce , o r s ig ni fi ca nt ly e nc ou ra ge th e c on te st ed ac ti vi ty.
3. State assistance to a private party , even if subs tantia l, will not support a finding of

state action, whether that assistance is in the form106 of direct financial aid, tax exemption s, monopoly power, government mortgage insurance, or

the grant of a license.
4. The mere

importanc e of the f

unction c arried

out by the priva te sector is an insufficient basis upon which to find state action; for s tate actionto be found, the function must be historically, traditionally, and exclusive ly g overnme

ntal.
Id. § 5.12, at 5-87–5-88 (footnotes omitted). Professor Schwartz continues, [t]he Supreme Court in some cases has found no state action, even when all four

of thesegovernment involvements coalesced in the same c ase. Thus, the Court has found on more than one occasion that an entity was not eng aged in state action even thou gh it was extensivel y regulated, obtained gover nmental approval, received substantial governmental assistance, and performed an important societal function.
Id. § 5.12, at

5-88 (citi ng San Francisco Arts & Athletics v . United States Olympic Comm., 483 U.S. 522 (1987 ); Rendell-Baker v. Kohn , 457 U.S. 8 30 (1982) ; Blum v. Yaretsky , 457 U.S. 991 (1982); Jackson v. Metro. Edison Co. , 419 U.S. 345 (1974)). Inanalyzing

the subgroup of state-action cases of w hich the instant

cases are representative

– those whe

re the pr imary offende r or tortf easor is a state actor, and

the quest ion is whet

her a pr ivate party who is alleged to be an accessory may be dee

med a state actor – it is us eful to dis cuss the f acts of the leading

Supreme Court cases because they illustrate the kind of showing that must be made before a privat

e party may be deeme d a state

actor in this context. The cas e most dire ctly on point is Dennis v. Spar ks , 449 U.S. 24 (1980), in which a private party bribed a judge to issue an order enjoining the produ

ction of mi

nerals f ro m certain oil leases. In holding that the private actor was acting “under c olo r of law,” the Supreme Court observed that “[p]rivate persons, jointly e ngaged with state officials in a challenged action, are acting ‘under color’ o f law for purposes of § 1983 actions.” Id. at

24. Specifically, “the

allegations were that

an official act of the defendant judg e was107

the product of a corrupt conspira cy involving bribery of the

judge. Under these allega tions, the private pa rties con spir ing with the judge were acting under color of state law; and it is of no consequence in this respect that the judge himself is immune from damage s liability.” Id. at 28. On the other hand, if the private actor had merely resorted to the courts and prevailed in the lawsuit, he would not have been acting under color of law. United States v. Price , 383 U.S. 787 (1966), which arose out of one of the saddest episodes of the civil rights movement, provides another compelling example of

this subgroup. Price involved the arrest a

nd subseq uent murd

er of thr ee civil r ights wo rkers in

Mississippi

. The facts are described as follow s in the opi

nion of the

Court: OnJune 2 1, 1964, Cecil Ray Price, the De puty Sheriff of Ne shoba Co un ty, Mississippi, detained Michael Henry Schwe rner, James Earl Chaney and Andrew Goodman

in the Neshoba Count

y jail loca ted in Philadelphia, Mississippi. He released them in the dark of that nig ht. He then proc eeded b y a

utomobile o

n Highw ay

19 to inter

cept his erstwhil e w a rds. He removed the three men from their automobile, placed them in an official automobile of the Neshoba County Sheri ff's office, and transported them to a place on an unpa ved road.
Theseacts, it

is alleged, were part of a

plan and conspiracy

whereby the three men were intercepted b y th e 18 defendants, including Deputy Sheriff Price, Sheriff Rainey and P atrolm an Willis of the Philadelphi a, Mississippi , Po lice Department. The purpose and intent of the release from custody and the interc eption, according to the charge, were to “punish” the three men. The defendants, it is alleged, “did wilfully assault, shoot and kill” each of the three. And , the charge continues, the bodies of the three victims were transported by one of the de fendant s from the rendezvous on the unpaved road to the vicinity of the construction site of an earthen dam approximately five miles south

west of Ph

iladelph ia, Mississ ippi.108

Id. at 790. The Supreme Court he ld that private individua

ls who par

ticipate d direct

ly w ith state actors pursuant to a common design were acting under color of law. “I n effect, if the allegations are true, they we

re participants in official lawlessness, acting in willful concert with state officers and hence under color of law.” Id. at 795. Price is a classic example of the rule that private parties act under color of l aw when they are “engag ed in a conspiracy with state officials to violate the Fourteenth Amendment.” Conway v. Vill. of Mount Kisco , 750 F.2d 205, 214 n.12 (2d Cir. 1985) (Oakes, J. ); accord Ginsberg v. Healey Car & Truck Leasing, Inc

. , 189 F.3d 268, 272-73 (2d Cir. 1999); Alexis v

. McDona ld’s Rest

s. of Mass. Inc. , 67 F.3d 3 41, 352 (1 st Cir. 1995 ); Mershon v. Beasley , 994 F.2d 449, 451 (8th Cir. 1993); Annunziato v. The Gan, Inc. , 744 F.2d 244, 251 (2d Cir. 1984). There is good reason to requiredirect participation with a state actor pursuant to a conspiracy

or common design before holding a privat e party , who is not

the prima ry wrongd oer, lia ble as a s tate actor. Where the issue is whether a public official can be held liable for the primary wrongdoing of

a private actor, the public of fice he holds suff

ices to satisfy the state-a

ctor requirement; the only issue is whether his conduct in that capacity constitutes a proximate cause of the plaintiff’s injury. Thus, “a state actor may

be su bject to liability

for an a ction phy sically underta ken by private actors in violation of the plaintiff’s liberty or property rig

hts if the state actor

directed or aided

and abetted the violation.” Dwares v. City of New York , 985 F.2d 94, 98 (2d Cir. 1993). On the other hand, where the prima ry actor is a public of ficial, f or a priv ate act

or to be de emed a st

ate act or, he mus t jointly participate in the wrongful conduct, pursuant to a c ommon design or plan. As the Supreme Court explained in Adickes v. S.H. Kress & Co. ,“[t]he involvement of a state officialin such a conspiracy plainly provides the state action essential to show a direct violation of petitione r’s Four teenth109

Amendment

eq ua l p ro te ct io n r ig ht s . . . . M or eo ve r, a p ri va te pa rt y in vo lv ed in su ch a c on sp ir ac y, even though not an official of the State, can be liable under § 1983.” 398 U.S. 144 , 152 (1970). This holding finds support in the law of agency . “When two persons engage jointly in a partnership for some

criminal [or legitimate] objective, the law deems them agents for one another. Each is deemed t

o have a uthorized the acts and dec laration s of the ot

her unde rtaken t o carry out their joint objective.” United Sta tes v. Rus so , 302 F.3d 37, 45 (2d Cir. 2002). Thus, a private party who conspires with a state actor becomes his agent, and his ac tions in that capacity ar

e sufficient to make him an actor under color of law. Similarly wh ere a private party induces an otherwise innocent public official to commit an offense, he has effec tively made that person his or he r agent. This doctrine

is an outg

rowth of c ommon law p

rinciple s of crimi

nal resp onsi bility dating at least a s far back as Regina v . Saunder s , 2 Plowd. 473 (1575); and of principles of civil responsibility established, by fo rc e of the maxim qui facit per alium facit per s e [he who act s thor ough anot her a cts f or him self

], at least as early a s th e 1 4t h c en tu ry. United States v. Lester , 363 F.2d 68, 72 (6th Cir. 1966). On the other hand, there is no lega l framework

or precedent for holding that a private party, mere ly selling

goods or materia ls to a stat e actor, is himself acting under color of law. Consistent with

this prec edent, we have held that a conspiracy to violate an international law

normis neces sary

to render a

private party

liable for conduct in which the state is the primary actor. Bigio , 239 F.3d at 447. Indeed, there w e rejected a cause of action alleging that Coca-Cola Co. was acting “under color of law” where the re was “no allegation in the complaint, l et alone any

hint of evidence

. . . that Coca-Cola had any role as a participant or co-conspirator in the confisca tion of the Bigios ’ property.” Id. at 449; cf. In re Broo klyn Nav y Yard Asbestos Litig. , 971 F.2d 831, 841 (2d110

Cir. 1992) (ho lding tha

t joint par

ticipation pursuan

t to an ag

reemen t – express

or implied

– to commit a tort is ne cessar

y to impose lia

bility on those a

cting in concer t); Restatement (Second) of Torts § 876(a)(imposing liability on one who

“does a t

o r tious act in concert with the other or pursuant to a common design with him”). Neither Judge Katzmann nor

Judge Hall takes issue with my ana lysis of section 1983 cases defining circumstances under which a private party

may be dee

med to have acted under color of law. Judge K atzmann, however, rely ing on cases apply

ing the general criminal aiding -and-abetting statut e applica ble to all fed

eral cr imes, 18 U. S.C. § 2, argues that a private person may be liable for

aidin gand-abetting

a public o ffic ial in the c omm ission of a crime even though he may be incapable of committing the crime

himself and even thou

gh his conduct wou

ld not satis fy

the stand ard set o ut in § 1983 for treating him as a state actor. Op. of Judge Katzmann ante

at 47 ( citi ng In re

Nofziger , 956 F.2d 287, 290 (D.C. Cir. 1992); United States v. Tannenbaum , 934 F.2d 8, 14 (2d Cir. 1992)) . The fact that a person may be convicted of aiding-and-abe tting an offense of which he c ould be found guilty as a principal - b ecause Co ngre ss has so provided - does not provide a basis for imposing such liab ility

in the pre sent cont

ext. Bec ause Congress has not enacted a compar able civil aiding-and-abetting

statute, a priv ate p arty could not be subjec t to such liability in a civil action under 42 U.S.C. § 1983. Central Bank of Denver v. First Interstate Bank of Denver , 511 U.S. 164, 181-82 (1994). Si gn if ic an tl y, when

Congress enacted the Torture Victims Protection Act of 1991 (“TVPA”) to comply to with the Torture Convention, it provided for civil causes of action only aga inst “ [a]n individual who, under actual or a pparent a uthority, or color of law , of any for eign nation,” undertakes conduct prohibited by the Ac t. TVPA § 2(a), Pub. L. No. 102-256, 106 Stat. 73 (1992).111

Moreover, the Senate Report accompany ing the legislation pr ovides th at “[c]our ts should lo ok to principles of liability under U.S. civil rights laws, in particular section 1983 of title 42 of the United States Code, in cons truing ‘und er color of law’ as well as interpreta tions of ‘actual or apparent

au th or it y’ derived from

agenc y th eory in order to give t he fulle st cover

age po ssible.”

S. Rep. 102- 249, at 8 (Nov. 26, 1991). To the extent that the Senate Report speaks to the issue of aiding-andabett ing, it addre sses the is sue of sup ervisor y li ability and makes the point that “a higher [public] official need not have personally ordered the abuses in order to be held liable. Under international law, responsi

bility for torture, summary

execution, or

disappearances extends bey ond the person or person s who actu

ally committed

those ac ts [to] any

one with h

igher a uthority who authoriz ed , tolerated, or know ingly

ig nored those acts.” Id. at 9 (ci ting In re Yamash ita , 327 U.S. 1 ; Forti v. Suarez-Mason , 672 F. Supp. 1531 (N.D. Cal. 1987)). Nevertheless, even

if 18 U.S.C. § 2 applie d in this context, th e standa rd for imp osing lia

bility for aiding- and-abe

tting pursuant to th

is section is not satis fied by

the compl aints in thi s c ase . Sp ec if ic al ly, the Supre

me Court ha s held

that, “[i]n order to a

id and abe

t another to commit a

crime it is necessary

that a defendant in some sort associate himself with the venture, that he pa rt ic ipate init as in something that he wishes to bring about, that he seek by his ac tion to make it succeed.” Nye & Nissen v. United States , 336 U.S. 613, 6 19 (1949) (internal quotation marks and citation omitted). This elem ent is also essentia l t o a cause of action for aiding-a nd-abetting. See, e.g., E. Trading Co. v. Refco , 229 F.3d 617, 623 (7th Cir. 2000) (Posner, J. ) (observing “that onewho aids and abets a fraud, in the sense of assisting the fraud and wanting it to succeed, is himself g uilty of fraud”). Indeed, in United Sta tes v. Bla nkenship , Judge Easterbrook, after citing to the Model Penal Code for the proposition that a “supplier [is] culpabl e on ly if he has ‘the pur pose of promoting or112

facil itat ing’ the crime ,” obser ved that a similar a pproach has been adopted t o aiding -and-a

betting in civilcases. 970 F.2d 283, 286 (7th Cir. 1992) . Moreover, in Boim v. Q uranic Lite

racy Ins titute , the

same cou rt held that 18 U.S.C. § 2339A, which created a civil cause of action for those injured by terrori st acts against individuals who provided s up port to ter rorist g roups, sur

vived a F irst Amendment

challen ge “so long as t he plaint iffs are able to prove that the defendants knew about the organization’s illegal activity, de sired to help that a ctivity succeed a nd engaged in some act of helping.” 291 F.3d 1000, 1028 (7th Cir. 2002)

. Cf. Halberstam v. Welch , 705 F.2d 472, 488 (D.C. Cir. 1983) (holding that “desire to makethe ventu re succ eed” is a

factor indetermining aiding-andabetting liability). T her e is no allegation here that the defendants ac ted with the intent to make the violation succeed. On the contrary , plaintiffs strenuously arg ued in their briefs and at oral argume nt thatthey

were not required to make such a showi ng. Ntsebesa Reply B r. at 19; Khulumani Reply Br . at 11; Tr. at 13. They ar

gue that a private party

who knowingly f

acilitates the commission of an international law violation by a state ac tor ac ts under c olor of la w. I u se the te

rm “fac ilitates” because “[o]ne who merely

sells goods to a buye

r is not an aider and abettor of crimes that the buyer might commit, ev en if the

seller kn ows that th e buy

er is like ly

to use the goo ds unlawf

ully , becau se the seller do es not share the specific intent to further the buy er’s venture.” Corrie v. C aterpillar , Inc. , 403 F. Supp. 2d 101 9, 102 7 (W. D. Was h. 200 5) (ci ting Blanken ship , 970 F.2d at 285-87), aff’d

on other grounds, Corrie

v. Caterpillar, Inc. , _F.3d_, 2007 WL 2694701 (9th Cir. Sept. 17, 2007);

see also N.Y. Penal Code § 115.05 (criminal facilitation). I ndeed, such conduct does not violat e customary

international law. See The M inistries Ca

se , 14 Trials of W

ar Cri minals Be

fore the Nuernberg Military Tribunals Under Control Council Law No. 10 621-22.113

Nevertheless, plaintiff

s sugg est t

hat the rele

vant inqui

ry is not whet

her the r elationsh ip between the State and the private actor is of a commercial na ture, but rather – much like aiding-andabetting under the substantial assistance prong of section 876 of the Res tatement (Second ) of Tort s

– whether the private actor had suffici ent prior knowledg e of the governme nt’s plan s to commit violations of intern

ational la w and of t

he way s in which t

he good s or servic es procured by the government

would aid

in those ill icit acti ons that th e privat e actor c an be sai d to have b ecome pa rty to the government’s ac tio ns. The issue, however, is not whether the private actor ha s become “a party to the governmen

t’s actions” – wha

tever th at means . Ins tead, it is whether by e ngag ing in thi s conduct he acted “under color of law.” Adickes , 398 U.S. at 150 ; Ginsberg , 189 F.3d at 273. A holding that he does, in the circumstances described in the complaints, strains both the phrase and the conc ept to the

breakin g point. Indeed, notwithstanding the division on the pa nel with r espect t o other is sues, the per curiam opinion, reflecting the agre ement of all members of the panel, holds that the allegations of criminal facilitationalleged

in the com

plaint ar e insuff icient torender the defendants liable under the c olor of law for violation of the TVPA. Specifically , it rejects the cause of action under the T VPA, alleging that the defend an ts “aide d and abe tted the a parthei d regime’s subje cting th e Plaintif fs to torture and ext ra judic ial kil ling within the meaning of the [TVPA] . . . under actual or appare nt

au th or it y, or under color

of law.” A-00505. Apply ing principles of liability under section1983, the per curiam opinion pr

operly concludes that the complaint “failed to link any

defenda nts to state

aid

or the condu

ct of sta te offic ials. ” Per Curiam Op. ante at 8. The same is true with respect to the other causes of action. (b) Aiding-and-abetting Liability of Private Parties9 The Chief Reporter of the Restatement was Professor Louis Hen kin of Colum

bia University. Associa ted with Profess or Henk

in as R eporters were P rofesso rs Andr

eas F. Lowenf

eld of N ew Yor

k University, L ouis B. Sohn of the University of Georgia, and Detlev F. Vag

ts of Harvard U

niversity. 114 Or di na ri ly, the fact that the defendants’ conduct is not sufficient to hold them liable for acting under color of law would compel the dismissal of the causes of actio n alleg ing var ious crime s again st humanity that were not committed during war or an ar med conflict. See Kadic , 70 F.3d at 244

. Neverthel ess, Judge Sprizzo identified two potentially applicable international ag reements that contemplated liability for private actors. The firs t and most o bvious sour

ce of suc h liability is the Aparthe id Convention, which was expressly draf ted to cover all of the conduct o f the Union of South Africa that the defendants allegedly aided and abetted. Of this Convention, the Reporters of the Restatement write:

The Convention [ ] creates obligations be y ond those imposed by customary

interna tional law . It a

ttaches perso na l criminal responsi bility to all indiv

iduals who

commit, pa

rticipat e in, incite, abet, encou rage or co-operate in the crime. Art. II I. The Convention also re quires states to suppress, prevent any encouragement of, and punish apartheid. Among parties t o the Conve

ntion, apa rtheid is a lso effectively

made a subject of universal jurisdiction. Art. I V.
Restatement

(Thir d) of Foreign Relations Law § 702 reporters’ note 7. Thus, the Reporters

reco gniz e that

the Apar theid Conv ention’s

imposition o f liability

on private parties not acting under color of law represented a departur e from customary

international law. 9 Moreove r, while it may be

anoverstat ement t o descri be the list

of countr

ies that ha

ve ratif ied the Con

vention a s a rogu

es’ gall ery of human r

ights vio lators, the Convent ion has not

been ra tified by the Unite d States, most other mature democracies , or

other states that play a

significant role in international affairs, including three of the five permanent members of the United Nations Security Council – the United States, the115

United Kingdom, and France. I ndeed, it has not been ratifi e d by the post-apar theid Republic of South Africa . Thus, it is

not a persuasive source of customary international law on this point. See Flores v. S. Peru Copper Corp., 414 F.3d 233, 257 (2d Cir. 2003) (Cabranes, J. ) (“[T]he more States that have ratified

a treaty, a nd the gre ater the

relative influenc e of those

States in in

ternational aff

airs, the greater the treaty ’s evidentiary va lue.”). Dean Koh made a similar point in an anal ogou s con

text when he wrote:

[T]hose who advoca

te the use of intern ational a nd forei gn sour

ces in U.S. constitutional interpretation [as he does] are n ot urgin g U.S. courts to defer automat ically to some kind of global “nose count.” Instead, they are

suggesting that the practice s of other mature democracies –

not those t

hat lag behind de

velopmen tally – constitu

te the most relevant evidence of . . . the “evolving standa rds of decency that mark the progress of a maturing society.”
Harold Hongju Koh, International Law as Part of Our Law , 98 Am. J. Int’ l L. 43, 56 (2004). Under thesecircumstances, for the same reason that the A partheid Conven ti on is not a source for the exercise of universal jurisdiction, Judge Sprizzo properly rejec ted it as a source for extending the scope of liability to private ac tors who aided and abetted apartheid in South Africa. The other international agreement identified by Judge Sprizzo that expressly recognizes liabilit y for p rivate persons is the Convention on the Prevention and Punishment of the Crime of Genocide, opened for signatu re Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 (“Genocide Convention”). The near-unanimous adoption of the convention constitutes concrete evidence of a peremptory

norm that has become part o f custom ary interna tional law. The problem with the invocationof the Genocide Convention – aside from the issue whether the complaints here sufficie ntly allege activity

constituting genocide – is that when Con gress enact ed legi slation to116

implementthe agreement, see Genocide Convention Implementation Act of 1987, Pub. L. 100-606, Nov. 4, 1988, 102 Stat. 3045, codified at 18 U.S.C. § 1091 et seq. , it expressly provided that the Act shallnot “be c onstr

uedas creating any

substantive or procedural right enforc eable by la w by any party in any

proceeding.” 18 U.S.C. § 1092. In Kadic , which was decided prior to Sosa , we held that “the legisla tive dec ision not to c

reate

a new private remedy

does not imply that a private re medy is not already

available under

the Alien Tort Act.” 70 F.3d at 242. As Judge Newman explained:

Nothing in the Genocide Conve nti on Imp lementat ion Act or

its legislative hi st or y r eveals a n intent by Congre ss to repeal the Alien Tort Act insofar as it applies to genocide, and the two s ta tutes are surely not repugna

n t to each

other. U nder the se circ

umstance s, it would be improp er to construe the Genocide Convention Implementation Act as repea ling the Alien Tort Act by implication.
Id. A fter Sos a , however, the issue for us to decide is not whether the Ge nocide Convention Implementation

Act implicitly repea

led the AT CA inso far as i t appl ies to genoci de. As Judge Katzmann acknowledges, “ Sosa

. . . deviate[d] from our case law in one crucial respec t. We had allowed cases to proceed under the ATCA on the assumption that when plaintiffs alleged violations of well-es tablis hed internationa l law, their ‘causes of action are statutorily authorized.’” Op. of

Judge Katzmann ante

at 17 (quo tin g Kadic , 70 F.3d at 246). Sosa “flatly re jected this notion.” Id. Instead, we are now required to determine “ whether to recognize a common-law ca use of action

to provide a remedy

for the alleged violation” of international law. Id. ante at 19. Thus, we have to address the th resh old question of w

heth er toreco gniz e a civil ca use of ac tion under

the ATCA

for117

genocide where Congress has quite plainly indicated its intention that such a ca use of ac tion should not be available. Judge Katzmann a

ppears t o ackno wledge that, notwi thst andin g Kadic , the issue whether to

reco gniz e a cause of action for ge nocide based on the ATCA must be co nsidered anew in light of Sosa

. Nevertheless, he

would “leave it to the dis trict cou

rt to address

in the fir st instanc e should it undertake to d eci de w

het her to reco gni ze a

cau se o f action .” Op. o f Ju dge Katzman n ante at 51 n.32. While leaving it to Judge Sprizzo to resolve the issue, however, Judge Katzmann goes on to sugge st to him that s

uch a ca use of ac tion should

be recognized. Id. Instead of deciding an issue that

we should and

must resol

ve, Judge Katzmann’ s disposition of this issue invites a game of ping-pong with Judge Sprizzo, in which I decline to participate. The Genocide Convention Implementation Act should shut the door to the recognition of a

cause of action under the ATC A for viola tion of the

interna tional law

norm that i

t implemen

ts, because it would be an

abuse of our discretion to expand the scope of ATCA liability to causes of actionthat Congress indicated its intent to proscribe. We should not “override a clea r indi catio n fromth e p ol it ic al br an ch es th at a ‘ sp ec if ic , u ni ve rs al , a nd ob li ga to ry’ norm ag ainst ge nocide is not to be enforced through a priva te damages action[.]” Sosa , 542 U.S. at 749 (Scalia, J. , concur ring in part and concurring in the judgment)

. (c) Liability of C orporat ions In Sosa , the Supre

me Court di

rected federa l courts to determine “whether international law extends the scope of liability for a violation o f a giv en norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or a n individual.” Id. at 732 n.20. Judge118

Katzmann, who agrees with me that the issue of the scope of liability is g overned by inter national law, draws no distinction between a corporation and an individual. Nor do o ur decisions in cases invoking jurisdiction under ACTA. Nev er theless, the specific issue of corporate liability under customary

interna tional law was not dis cussed, n

or was it r aised by the part ies, inany of those c ases. See, e.g., Big

io , 239 F. 3d 440; Flores , 414 F.3d 233. Conse quently, they are simpl y no t apposite here, be cause “ [q]uestions w hich mer ely lurk in the

record , neither

brough t to the att

ention of th e court nor ruled upon, are not to be considered as having been so dec ided as to constitute precedents.” Web ster v. Fa ll , 266 U.S. 507, 511 (1925). There is a sign

ific a nt ba si s f

or di st in gu is hi ng be tw ee n p er so na l a nd co rp or at e l ia bi li ty. Where the private actor

is an individual, he

is held lia

ble for a cts which he has committed and for whichhe bears moral re sponsibil ity. O n the other hand, “legal entities, as leg al abstractions can neither think nor a

ct as huma

n being s, and wha

t is le ga ll y a scribed to them is the resulting harm produced by i ndividual conduct p erforme d in the na me or for the bene fit of thos e partic ipating in them or sharing in their benefits.” M. Cherif Ba ssiouni, Crimes Against Humanity in International Criminal Law 378 (2d

ed. 1999) . Thus, the

issue her e is whether an ar

tificial e ntity that is all egedly used as a vehicle for the com mission of a crime against humanity may be held vica

riously liable. The sources

evidenc ing the r

elevant norms of in

ternational law a

t issue pla

inly d o not

re cog nizesuch liability. While the L ondon Char

ter, whic h creat ed the I nternat ional Mil itar y Tribunal (the “IMT”) a

t Nuremberg, does not explicitly limit its jurisdiction to “natura l p ersons,” it seems clear from

its language and context that it conferred jurisdiction only over the prose cution of individuals. Specifically, the Nure mberg Tribunal was empowered “ to try and punish persons who, acting in the interest s of the Eu ropean A xis countrie s, whethe

r as individua ls or as members10 Article 9 of the L ondon Charter prov ided that “[a]t the trial of any individual m

ember of any group or org anization the Tribunal m ay declare (in connection with any a ct of which the indiv

idual may be convicted) that the

group or org anization of which the individual was a memb er was a criminal organization.” 1 Trial o

f Major W

ar Crim inals 255-57. The consequence of a finding in the m ain trial that organizations, such as the Schultz staffeln (more com monly referred

to as the S.S.) a

nd the Gestapo, were criminal in n

ature was that it perm

itted a finding of g

uilt against other m

embers of the organization in subsequent trials. See The Nuremberg Trial , 6 F.R.D. at 131-33. 119 of organ izations,” committed

any of sever al enume rated crimes. Charter of the IMT ar t. 6, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 (the “London Charter” or the “Charter”) (emphasis added). 10 Moreover, in rejectingthe defense argument that “interna tional law is concerned with the actions of soverei gn s tates, and provides no punishment for individuals,” the Nuremberg Tr ibunal held that “[c]rimes ag ai ns t i nt er na ti on al la w a re co mm it te d b y men, no t by abstract e ntities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The Nuremberg Trial , 6 F.R.D. 69, 110 (1946); 1 Trial of the Majo r War C

riminals 223 (William S. Hein & Co., Inc. 1995) (1947). See also Ernst Schneeberger, The Responsibility of the Individual under International Law , 35 Geo. L. J. 481, 48 9 (1947 ) (“[I]n the last resort responsibility under international law can only be responsibility of an individual . . . .”). Indeed, the distinction between corporate and individual responsibility is illustrated by The I.G. Farben Case in which c orporat e officers were charg ed with “acting through the instru mentality of Farben” in committing various crimes ag ainst humanity. United States v. Krauc h (“ The I.G. Farben Case ”), 7 Trials of W ar Criminals

Before th e Nuernbe

rg Military Tribunals Under Control Council Law No. 10 14, 39, 50, 59 (1952). Nevertheless, the notorious I .G. Farben was not named

as a defendant. Id. at

11-14. Nor were any

other corporations charged with crime s at Nu rember g. “In fact, in

th e Nuremb erg tr

ials, this point of lack of corporate liability a ppeared to have been120

explicitly stated.” In re Agent Orange Product Liab. Litig. , 373 F. Supp. 2d 7, 57 (E.D.N.Y. 2005) (Weinstein, J. ). In1948, the United Nations General Assembly asked the International L aw Commission (the “IL C”), a United Nations body, to study the possibility of creating an international judicial tribunal, whichultimately

emerg ed in the f

orm of the

Inte rnationa l Criminal Co

urt (the “ ICC”) , to prose cute genocide and other crimes. Under the auspice s of the IL C, the Committee on International L egal Jurisdiction began

to study the issue in 1951, a

nd it released its report in 1953. See U.N. GAO R, 9th Sess., Supp. No. 12, U.N. Doc. A/2645 (1954). The Committ ee consi dered a

proposal by A ustralia to grant t he inter national court jur isdiction over cor

poration s. Id. ¶ 85. The proposal was soundly defeated because “it was un

desirab le to include so novel a principle as corporate criminal responsibility in the draft statute.” Id. More than for

ty y ears la ter, dur ing neg otiations f

or the Rome

Statute, pursuant

to which the ICC was created, France

proposed bringing corporations and other juridica l persons ( though not States) within the jurisdiction of the ICC. Th at proposal was again rejecte d, for three principal

reasons : (1) “from a pragmatic point of view it was feared that the I CC would be

faced w ith tremendous evidentiary pr oblems when prosecuting legal entities”; (2) “from a mor e normativ epolitical point of view it was emphasized that the criminal liability of corporations is still rejected inmany national legal o rders, and inter

national disparity which co uld not be brought i

n concor d with the principle of complementarity ”; and (3) “it was fe lt morally obtuse for States to insist on the crimi nal responsibility of all entities other than themselves.” Albin Eser, Individual Criminal Responsib ility , in 1 Antonio Cassese et al., The Rome Statute of the International Criminal Court: A Commenta ry

7 67, 778-79 ( 2002) (footnotes omitted). Thus, the Rome Statute provides for121

ju risdiction over only “na tural persons.” The Rome Statute of the I CC art. 25(1), op ened fo r signature July 17, 1998, 37 I.L .M. 999, 1016 (entered into forceJuly 1, 2002) (“The Rome Statute”). Si mi la rl y, Article II

I of the Apartheid Convention provides that “ [i]nternational criminal responsi bility shall apply, irrespe ctive of the motive involved, to individuals, members of

or gan iza tions and institutions and representatives of the State . . . .” Article 4 of the Genocide Convention is to the sa

me effect. Specifically , it provides that “[p]ersons committing genocide or any of the oth er acts

enumera ted in [a]rticle 3 shall be p

unished, w

hether t hey are con stitutiona

lly responsi ble rulers, public of

ficials or private

individ uals.” The statutes for the Inte rnational Cri minal Trib unal for the former Yugoslavia (“ ICTY”) and I nternational Criminal Tribunal for Rwanda (“ICTR”) also confe

r jurisdiction only over “na tural persons.” See St atut e of the International

Tribunal for the Prosecution of Persons Responsible for Serious Violations of International

Humanitarian Law Committed in the Territory of the Former

Yugoslavia Since 1991 art. 25(1), adopted

May 25, 1993, S.C. Res. 827, U.N. Doc. S/RES/827 (the “ICT Y Statute” ); Statute of the International Criminal Tribunal for the Prose cution of Persons Responsible for the Genocide and Other Serious Violations of Interna tional Hum anitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed inthe Territory

of Neighboring States Betwe en 1 January 1994 and 31 De cember 1994 ar t. 5, adopted Nov. 8, 1994, S.C. Res. 955, U.N. Doc. S/RES/955 (the “ICTR Statute”). Likewise, the Co nvent ion Against Torture and Other Cruel, I nhuman, or Degrading Treatment

or Punishme

nt (“Tor ture Conv ention”) , contemp lates viol ations by “person s,” which in the agree ment’s textual context can only mean natural persons. See Torture Convention arts. 4(1), 6(1), 6(3), adopted

Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L .M. 1027. The language of the TV PA,122

which executed in part the Torture Convention, Flores , 414 F.3d at 247 n.20, provides furthe r support for the fact that

customary interna

tional law has not recognized corporate liability. Unde r the TVPA, the

term “ind

ividual” describ es both tho se who ca n violate its p roscrip tio ns aga

inst torture, as well as those who can be victims of torture. Specifically , the TVPA provides that

“[a]n individual

who . . . sub

jects an individu al

to torture shall . . . be liable for damages to that individual ,” and it def

ines “tor ture” a s “any

act, dir ected a gainst an individual

. . . by which

severe pain or suffe ring . . . is intentionally

inflicte d on that individual .” Id. §§ 2(a)( 1), 3(b) (1) (emp hasis added). As Judge Weinstein recently wrote: [b]oth from context and common sense only natur al per sons can be the “individu

al” victi ms of acts

th at infli ct “severe pain and suffering.” See [TVPA

§ 3(b)1]. B ecause

the TVPA u ses the sa

me term“individu

al” to identify offende

rs, the definition of “indi

vidual” within the statute appears to refer to ahuman being, suggesting that o nly natural persons can violate the Act. See Desert Palace, Inc. v . Costa , 539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (noting that

“[a]bsent s ome co ng re ss io na l i nd ic at io n t o t he co nt ra ry, [courts] declin e to give the same term in the same Act a different meaning depending on whether the rights of the plaintiff or the defendant are at is sue”); see also Beanal v. Freeport-McMoRan, Inc. , 9 69 F.Sup p. 362, 381-82 (E.D. La. 1997) (“ [T]he plain meaning of the term ‘individual’ does not ordinarily inc lude a corporation.”), aff’d by197 F.3d 161 (5th Cir. 1999). In re Agent Orange Product Liab. Litig. , 373 F. Supp. 2d at 56. The same is tr

ue with re spect to the statute making t orture c ommitted ou

ts i de the United Stat es a federal offense. 18 U.S.C. § 2340 et seq. Section 2340 provides that, “[a]s us ed in thi s chapter . . . ‘torture’ means an act committed by a person a cting under the

color of law spec ifically intended to inflict severe phy sical or mental pa

in or suff erin g . . . upon a nother pe rson withi

n his custody or physical control . . . .” Id. § 2340(1). Bec ause here , as in the TVPA, t

he context123

indicat es that the w ord “person” refers to natural pe rsons, the general rule that the word “ person” when used in any

Act of Congress includes corporations, unless the context indicates otherwise, 1 U.S.C. §1, is not applicable here. See Rowla nd v. Cal. M en’s Colon

y, Unit II Men’s Ad

visory Council , 506 U.S. 19 4, 199 (19 93) (“‘ Context’ he re mean s the text o f the Act of Congr

ess surrounding the word at issue, or the texts of other related cong ressional Acts . . . .”). Thesesources

are not u

ndermine d by

Professor Henkin ’s sugges tion that, “ [a]t this juncture[,] the Universal Declaration [of Human Rights (G.A. Res. 217A (I II), U.N. Doc. A/180 (1948)] may also addre ss multinational companies.” Louis Henkin, The Universal Declaration at 50 and the Challenge of Global M arkets, 25 Brook. J. Int’l L . 17, 24 (1999). Relying on the Preamble to the Dec laration , Profess or Henki n argued that it “ is ‘a common standar d for all p eople andall nations.’ It me ans that ‘ every individua

l and eve ry organ of society s hall s trive – b y progressive measures . . . to secure their universal and ef fective recognition

and observance among the people of

member st

ates.’ E very in divi dual includes juridical persons.” Id. at 24-25. The Supreme Court, however, has held that the Declaration “does not of its own for ce impose obligations as a matter of international law.” Sosa , 542 U.S. at 734. Moreover, it is [also] impo rt ant to keep in mind what exactly the Prea mble expects of such individua ls and org ans: that they

“promote” respect for the rig hts set forth in the Declaration

by ‘teac hing and education’ and by

supporting “progressive national and international measure s.” The la nguag e is thus c onsistent w ith the ide a that leg al obligations bind corporations only to the extent that further “ n ational and international measures” are taken. Carlos M. Vázquez, Direct vs. Indirect Obligations of Corporations Under International Law , 43 Colum. J. Transnat’l L. 927, 942 (2005).11 As a g eneral r ule, tre aties, l ike contracts, “are legally b inding on Sta tes that becom e partie s to them by consenting to be b ound”, and may constitute evidence of a norm of customary internation al law only if “ an overwh elming maj ority of States have rat ified the tre aty and those States uniform

ly and consistently act in acco

rdance with its principles.” Flores , 414 F.3d at 2 56. 124 Nor are the sources rejecting c orporate liability undermined by two international convention s and a Security Council resolution, all of which post-da te the dismantling of apartheid. S e e The United Nations Convention Against Transna tional Or ganized Crime art. 5(1)(b), Jan. 8, 2001, U.N. GAOR, 55th sess., Supp. No. 49, U.N. Doc. A/45/49; Convention on Combating Briber y of Foreign Public Officials in International B usiness Transactions arts. 1(2) & 2, Dec. 18, 1 997, 37 I.L .M . 1 (1998); S.C. Res. 1566, U.N. Doc. S/RES/1566 (Oct. 8, 2004); Manda tory Action to Fight Terror ism, S.C. Res. 1373 ¶ 1(d), U.N. Doc. S/RES/1373 (Sept. 28, 2001); International Convention fo rthe Su

ppression of the Financing of Terr orism, adopted Dec. 9, 1999, G.A. Res. 109, U.N. GAOR 54th Sess., 76th plen. mtg., U.N. Doc. A/RES/54/109, 39 I. L.M. 2 70 (2000) . While each of thesesources

call upon parties t o enact measure s to impose s ome kind of lia bility on legal persons inaccordancewith their

own domes tic leg al princ iples, non e of them directly impose an

y lia bility

on corporations. Without an analysis of the laws ena cted by the vari ous signa

tories, it is impossibl e to draw an

y conclusion s regarding the prac tice of states with regard to the issue of the deg ree of corpor ate l iability

for viola tion of inte

rnationa l law norm s. 11 Indeed, as Professor B assiouni has observed, a lthough “contemporary international efforts to deal with organized crime, cor ruption, a n d drug trafficking” are

moving in

the dire ction of c orporat

e liability “these new conc epts of c orporat e criminal responsibility have notye t found the ir way

into [customary

interna tional law ].” Bassi ouni, supra , at 377 (internal quotation marks and footnotes omitted). See also StevenR. Ratner & Jason S. Abrams , Account

ability for Human Rig

hts Atroci ties in Int

ernationa l Law: Beyond the Nurember g125

Legacy 16 (2d ed. 2001) (“It re mains unclear [ ] whether international law genera lly imposes criminal responsibility on groups a nd organizations.”). Insum, the iss

ue here is n ot whether

policy consider ations fa vor (or d isfavor ) corpor ate responsi bility for violations of international law. Cf. Carlos M. Vá s quez, Direct v. Indirect Obligations of Corporati ons Under

Internat ional Law, 43 Colum. J. Trans nat ’l L. 927, 932-959 (2005) (acknowledging that very few norms apply dir

ectly to corpor

ations under “international law

as it exists toda

y” and outlin

ing arg uments for why “ international law should move in the direction of generally

extending human rights obligations of states to private corpora t ions ”). I

nstead, i t involves a determination of what the law was during the relevant period. I ndeed, the Supreme Court has held that

the retr oactive applica ti on of stat utes ena

cting c ivil liabili

ty is presumpt

ively inappropriateeven whe

re the c onduct g iving ri se to liabi lity was already

proscribed and the newly enacted legislation

simply increased the sc ope of liability for damag es. Landgraf v. USI Film P rods. , 511 U.S. 244, 281-86 (1994). “[T]he presumption agains t r et ro ac ti ve le gi sl at io n i s [ no t o nl y] deeply rooted in our jurisprudence, and embod ies a lega l doctrine centuries older than our Republic,” id. at 265, bu t is also reflected in

cu stomary international law. A s one scholar has noted, “[a] further traditional corollary of the nullum crimen sine legeprinciple – namely, the notion of non-re troactivity – views the principle of legality

from a temporal perspective: conduct may be punished only on

the basis of

a norm that c ame int o force prior to when the conduct occurred.” Susan L amb, Nullum Crimen, Nulla Poena Sine L ege in International Criminal Law , in Cassese et al., supra , at 733, 751 (emphas is in th e o ri gi na l) . In de ed , “ [t ]h e a pp li ca bi li ty of the nullum crimen principle to serious breaches of

international humanitarian law was by 1998 sufficiently well-a

ccepted that its inclusion126

within the Rome Statute was seen as necessary . . . .” Id. at

755. See also Prosecutor v. Tadi  , 36 I.L .M. 908, 945, Case No. IT-94-1-T, O pinion and Judgment ¶ 654 (Trial Cham ber May 7, 1997) (t he In ternational Tribunal “must apply customary interna

tional law as it stood at the time of the offences”). Although the precise date on which the hear t of the a parthei d regime stopped beating may be d ifficult to pinpoint, the executive order by President Ge orge H.W. Bush on July 10, 1991, terminating United States sanctions against the country , provides one guidepost. Exec. Order No. 12,769, 56 Fed. Reg. 31855 (July 10, 1991) , reprinte d in 22 U.S.C. § 5061 (2004). By that order, the President conclude d as of th at date that the Gov ernment of South Af

rica ha d: (1) re leased a

ll persons persecuted

for their political beliefs o r detain ed unduly without tr

ial and Ne lson Mande la fromprison; (2) repealed the state of emerg ency in ef f ect on the date of enactment of [the “Comprehensive Anti-Apartheid Act of 1986”] and relea sed all detainees held under such state of

em er ge nc y; (3) unbanned democratic political parties and per mitted the free exer cise by South Africans of all races of the right to form political parties, express political opinions, a nd otherw

ise particip ate in the political process; (4) repealed the Group Areas Act and the Population Registration Act and institu

ted no othe

r measur es with the

same pur poses; an d (5) ag reed toenter in

to good f aith negotiations with truly

repr esentative members of the black majority without preconditions. See Comprehensive Anti-Apartheid Act of 1986, Pub. L. No. 99-440 § 3 11(a) ( 1986). B ecause the only

sources of customary inter nation al law that suggest some movement toward the rec ognition of corpora te liability

post-dat e the col lapse of

the apar theid regime, and because the established norm during the apartheid era was that corpora tions were not responsible legall y f or violati ons of nor

ms127

proscribingcrimes a

gainst h umanity, the comp laints are subject to dismissal on this ground alone. 3. The Concur ring Opinions (a) Judge Hall’s Concurring Opinion Judge Hall flatly ignor

es the holding of the Supreme Court that the second consideration in deciding whether to accept jurisdiction over a cause of action alleging a violation of the law o f nations “is whether international law extends the scope of liability for a violation of

a given norm to the perpetrator

being su ed, if the defendant is a private actor such as a corporation or individual.” Sosa , 542 U.S. at 732 n.20. Instead of undertaking an analysis of a

given norm of international law to determine the sco

pe of lia bility of a priv ate act

or, Judge Hall conc ludes tha

t interna tional law is irrelevant and that once a violation of a given norm is all eged, ATCA subje cts a priv ate par ty to liability if he aided-and- abetted that violation. Judge Hall’s concurring opinion is premised on the assumption that, even though the ATCA does not by its terms encompass aiding -and-abetting liability , it should be construed as if it contains suchlangua

ge. Thi s aspect

of Judge H all’s opin

ion not only

contrad icts Sosa and Kadic , it does disservice to the holding of the leading Supreme Court case a ddressing the issue of accessorial liability for violations of statutes that create civil causes of action, Central Bank of Denver v. First Interstate Bank of Denver , 511 U.S. 1 64 (1994) . In that case , the Supre me Court ob served t

hat: Congre ss has not enacted a gener al civil aiding and abetting statute – either for suits by the Governme nt (when the G overnme nt sues for civilpe nal ties or inj unctive r elief) or for suit s by

private parties. Thus, when Cong

ress enacts a

statute under which a person may sue and recove r damage s from a private defendant for the def endant’s violation of some

statutory norm, there is no general presumption that the plaintiff may also sue a iders and abettors.128

Id. at 182. Central Bank , to be sure, only stands for the proposition that when Congress enacts a law creating a private right of action for violation of a statute, “there is no general pre sumption that the pl ain tiff may also sue aide

rs and abettors.” Id. That dec ision, how ever, do es not pre clude ci vil liability for aidin g-and-abettin

g in cas es “whe

re Cong ress’ in tent is clear from the languag e and structure of the statute itself as well as from the legislative history .” Boim , 291 F.3d at 1019. Boim , upon which Judge Ha ll relies , concerns the issue of liability for aiding- and-abetting international terrorism in violation of 18 U.S.C. § 2333(a). While the st atute, creating

the civil cause of action, 1 8 U.S.C. § 23 39A, did no t in haec verba provide for aiding-an d -a be tt in g l ia bi li ty, accomplice liability

was implic it in the de finition of interna tional ter rorism. T hus, in distinguishing Central Bank , the Seve

nth Circui

t held tha t: Unlike section 10(b) [the statute at issue in Central Bank ], Congre ss also expressed an intent

in section2333 to mak

e civil lia bility at least as extensive as criminal liabilit y. T he statute defining “international terrori sm” include s activiti es that “ involve vi olent ac ts or acts dangerous to human life that are a violation of t he crimin al laws of the United Sta

tes or of any State, or that would

be a criminal violation if committed within th e jurisdiction of the United States or of any State.” 18 U.S.C. § 2331(1). This language, embracing activities that “involve” violen t acts, taken at face value would certa inly cover aiding and abetting vio lent acts . Reme mber , too, the criminal laws include 18 U.S.C. § 2, which creates liability for aiding and abetting violations of any other

criminal provisions. By incor p ora ting violations of any

criminal laws t hat involve vi olent ac ts or acts dangerous to human life, Congress was expressly including aiding and abetting to the exten

t that aidi

n g an d abettin

g “invo lves” violence.
Id. at 1020. The language of the ATCA, like the lang uage of the statute at issue in Boim , can support the recognition

of a cau se of action

for aiding-and-abetting. Ne vertheless, it does so only if the plaintiff129

invokes a n international law norm that provides for such liability . Nothing in the language of the ATCA supports the broad holdingthat Congress intended to provide a forum to adjudicate ca uses of action for aiding-and-abetting the violation of

a norm when such conduct did not fall within the scope of the norm. Indeed, the same C ongres s that enacte d the A TCA, w itho ut ref erence t o aidi ngand-abetting

liability, explicitly ma

de it a crime to aid-and-abet acts of piracy , a violation of

the law of nations. See Act of April 30, 1790, ch. 9, § 10, 1 Stat. 112, 114 ( 1790). Th is shows tha

t, despite Judge Hall’s suggestion to the contrary , Op. of Judge H all ante

at 59 n.37, the First Congress “knew how to impose aiding and abettingliability when it chose to do so,” id. (quot ing Central Bank , 511 U.S. at 174 ), with re spect to v iolations o f the law

of nation s. Inthe absence of either statutory language or legislative history to support his interpretation of the ATCA, Judge Hall’s opinion argues that “the Founding Genera tion neve rtheless understood that ATCA encompassed aiding and abettin g liabili ty. ” Op. of Jud

ge Hal l ante

at 59 n.37 . This contentionis beside

the point, for the r

easons di s cussed above, an d it is also wrong. In Central Bank , the plaintiff argued that “Congress leg islated with an understanding of general principles of tortlaw and that aiding and abetting liability was ‘well established in both civil and criminal actions by 1934,’” the ye ar the statute at issue was adopted. 511 U.S. at 181 (citation omitted). The Court’s opinion suggested that the plaintiff there re lied on the principle derived f ro m the Restatement (Second) of Torts (1979), which provides that a person is liable for another’s torts if he “knows that the other’s conduct constitutes a breach of duty and g ives substantial assistance or encourageme nt to the other

so to conduct himself. . . .” Id. § 876(b); see Central Bank, 511 U.S. at 181. Th e principle of “subst antial as sistance ,” which

Judge Ha ll adopts, initially

appear ed in the Restatement (First) of Torts in 1939, of which Prosser wrote:12 Judge Learned H and shared Prosser’s conc ern. Hand “repeatedly . . . urge d that the Restatements confine

themselves to articulating the law ‘as it is,’ not as it should be; repeatedly, he insisted that the ALI ’s task was to ‘restate , not legislate’ . . . .” Gerald G unther, Learned Hand: The Man and the Judge 411 (1994) (internal citations omitted). I ndeed, although Hand was a found ing mem ber of the ALI an

d held major positions in it for the rest of his life, he rarely cited the R estatements. Id. at 413. The most that he was willing to say about them was that he found them to be useful “ ‘on q

uestions which were not controversial and [otherwise took] a long time to look

up.’ ” Id. (internal citations omitted). 130

The form of the Restatement is perhaps unfortunate, in tha t it seeks to re duce the

law to a de finite se

t of blac k-letter

rules or princip les , ignoring all contrary

authority – since the law of torts in its present stage of development does not lend itself at all readily to such treatme nt. There is room for suspicion that the courts ha ve tende d to cite the Restatement

when the y a re alre ady in agre ement wit

h it, and to ignore it when they

are not, so that the impressive list of references to it in the c ases may be

somewha

t misleadi ng; and there a re those who have disa

greed with many

of its conclusio ns, an d even denounc ed the whole proje ct. William L. Prosser, Law of Torts § 4, at 20-21 (4th ed. 1971). 12 Perhaps for this reas on, the Supreme Court cou ld write fifty-f

ive years after the publication of the first Restatement that the doctrine of aiding-and-abetting

in civil cases “has been at

best uncertain in application . . . with the common-law preced ents ‘large ly con fined to isolated acts of adolescents in rural society .’” Central Bank , 511 U.S. at 181 (quoting Halberstam , 705 F.2d at 489). If ther e was no general understanding that civil aiding- and-abe

tti ng l iability was “well established in . . . civil . . . ac tions by 1934,” id. at 181 (citationomitted), it is difficult to understand how it can be asserted that such an understanding was present in 1789 when Congress enacted the A TCA. T he historical support for the proposition that “[t]he Founding Generation never theles s understood

that civil liability for aiding and a betting international law violations was contemplated

un der the ATCA, ” Op. of Jud

ge Hal l ante

at 59 n.37 , is ambiguous at best. The ly nchpi n for thi s131

argument is Attorney Gene

ral William Bradford’s 1795 opinion, Breach o f Neutrality , 1 Op . A tt y. Gen. 57 (1795). In his op inion, Brad ford specifically addressed whether American citizens who “v olunt arily

joined, conducted, aided, and abetted a Fre nch fleet in attacking the settlement, and plundering or destr

oyi ng the property

of Briti sh subjec ts on that coast” could be subject to criminal prosec ution in t he United States. Id. at 58. Bradford expressed some doubt about a criminal prosecu tion, but he

stated tha

t there can b e no doubt that the company or individuals who have been injured by theseacts of hostility have a r emedy by a civil sui t in the co urts of the Un

ited State s; jurisdiction being expressly g iven to these courts in all cases where an aliensues for a tort only, in violation of the law of nations, or a treaty of the

United States . . . .
Id. at 59. Becau se Bradford did not distinguish between primary and secondary

liability, it is not possible to discern that, when he said a ca use of ac tion would l ie for “these acts of hostility,” he was foc usi ng on aiding-and-abetting as opposed to direc t participation in the conduct that violated a treaty of the United States. Indeed, because the conduct involved direct participation by American citizens, who acted with the intent to make the attack succeed, it see ms likely that Brad

f ord recognized

all of the perpetrators as joint tortfeasors, as that term was understood at the time. As the D.C. Circuit explained in Halberstam :

Prosser notes that “[t]he original meaning of ‘joint tort’ was that of vicarious liability

for conc erted a

ction. All persons w

ho acted in concert to commit

a trespa ss, in

pursuance of a common design, were held liable for the entire result.” W. Prosser, Law of To rts § 46, at 291 (4th ed. 1971). His illustration portrays a standar d situation that involved this “joint tort”: combined actionby tortfeasors on the scene together – “one mig

ht have ba

ttered the plainti ff, whil e another imprisoned

him, and a third stole his silver buttons.” Id. (footn ote omitted). Each wa s respons ible for t he other s’ action s.132

705 F.2d at 476-77. Moreover, Prosser goes on to explain that the essential element of a joint tort

was “the pursuance of a common plan or design to commit a tortious act.” Prosser, supra , at 292. Two early c ases cited

in Judge Hall’s opinion, Talbot v. Jansen , 3 U.S. (3 Dall.) 133 (1795), and Henfield ’s Case , 11 F. Cas. 1099 (C.C.D. Pa. 1793), neither of whichinvolved the ATCA, bear outProsser’s analy sis. Both cases arose from the seizure of a vessel not by

pirates, but by

private ers, “armed vessels that

are owned, equipped

and officered by

one or more private persons, but sailing under a commission, usually called letters of marque, from a belligerent state, which empowers the person or person s to whom it is gra nted to at tack and seize, at s ea, vess els or oth er prope rty of its

e nemy.” 3 James Fairbanks Conley, Privateering , in Cyclopædia of Political Science, Politica l Economy, and

the Political History of the United States 361 (John J. Lalor ed., 1899). The use of privateers in this way was rec ognized under internation al law. Id. Nevertheless, Talbot’s and Henfield’s legal problems in these cases derived fr om the fact that they

were United

States citizens engaged in acts of wa

r against nations with which the United States was at peace

. Talbot was an admiralty

case. Talbot

himself was the captain of a privateer commissioned by the Republic of France. Henfield ’s Case was a criminal prosecution, and a most unusual one at that, of the prize-master of a privat eer als o commissioned by Franc e. Henf

ield was n ot charg ed with conduct proscribed by a

n act of Congress. The undelivered g rand jury c

harge of Chief Justice Ja y, upon w hic h Ju dge Ha

ll relies , Op. of Judg e Hall ante at 59 n.37 , appears to reflect the practice of most of the ea rly justices “ to create crimes by

judicial fiat[, which] was particularly infur iating to the vast majority of citizens who believed the Cons titution had established a government of limited powers.” Jean Edward Smith, John Marshall: Definer of a Nation 284 (1996). The Supreme Court133

repudiated

the practice in United States v. Hudson , 11 U.S. (7 Cranch) 3 2 (1812). Under th ese circumst ances, it is not surprising that Henfield, who was not charged with aiding-and- abetting, was acquitted because “he was ignorant of the unlawfulness of his undertaking .” Henfield ’s Case , 11 F. Cas. at 1122 n.7. Nor i s it surprisin g, giv en Henf

ield’s ro le as a pr

incipal ( or as a jo int tortfe asor in the civil con

text), that Jay’ s grand

jury charg e, which

was writt en to apply “to the

class of offende rs, of whom Henfield was one,” id. at 1105 n.2, did notdefin e aidi ng-and -abett ing, an d that the ju dge who actually

charg ed the He

nfield grand jury did not allude to the concept altogether. Id. at 1105-09. Insum, Bradford’s opin ion an d the c ases ci ted by Ju dge Hall do not support the extraordinary proposition that Congress intended the ATCA

to permit jurisdiction to be exercised over claims of aid ing -and-abetting

without regard to whether the conduct at issue violated a n international law

norm. Moreover, Judge Hall compounds his flawed discussion of this issue by adopting a standard for aiding-and-abetting that is vag ue and inappropriate in the present context. As if the language of section876(b) of the Restatement (Second) of Torts imposing liability for “substantial assistanc e”

was not vague enough, he endorse s a fi ve-f actor test, first suggested by the Restatement and then adopted in Halber

stam , to “assess whether the defendant’s enc ouragement or assistance was sufficie ntly substantia

l to suppor

t liability .” Op. of

Judge Ha

ll ante at 58. T hese factors are “the nature of the act encouraged, the a mount of a ss istance given by the defendant, his presence or absence at the time of the tort, his relation to the other tortfeasor a nd his state of mind.” Id. The “state of mind” factor, as applied in Halberstam , includes a “desire to make the venture succeed.” 705 F.2d at 488. Nevertheless, despite his reliance on Halberstam , Judge Hall’s opinion fails to even a

ll ude to this critical state-of-mind element. Moreover, even under Halberstam ’s formulat ion, it is only one factor among five for determining whe ther “substantial assistance” was134

provided. Such a five-prong test for determining whether assistance was substantial hardly provides the clea r guida nce nec essary

to those e

ngag ing in commercia

l transac tions. By incorporating a vague “ substantial assistance” standard, this ne wly min ted theory of aiding-and-abetting

liability will create many practical problems har

m ful to the political and economic interests of the United States. As the United States observes in its am icus brief, the decisionto embrace this broader scope of liability under the ATCA wi ll generate tremendous uncerta inty for private corporations, who will be reluctant to operate in countries with poor human rightsrecords for fear of incurr ing legal liability

for those regimes’ bad acts. Br. f or the U.S.A. as A micus Curiae at 13. This uncerta inty , in turn, w

ill underm

ine eff orts by the Unite d St ates t o

encou rage reform

in those countries through active economic eng agement, id. , and will deter the free flow of trade and investment more gener ally. Id. at 18. (b) Judge Katzmann’s Concurring Opinion Unlike Judge Hall, Judge Katzmann looks to international law to resolve the issue of whether

a private party

or a cor poration (he draws no distinction between the two) can be held liable for aiding-and-abetting

a violation of

international law otherwise applicable to state actors or to priv ate parties acting under color of law. While Judge Katzmann properly looks to international law, he disre ga rds the hol ding in Sosa and our own holdings in Kadic and Wiwa , which I have alre ady discussed at some length, ante

at 101-02, that req

uire a norm-by

-norm analy sis to determine whether “international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such a s a corporation or individual.” Sosa , 542 U.S. at 732 n.20 ( emphasis

added). Judge Ka

tzmann dec lines to un

dertake this analy

sis beca use that “is13 See The Nuremberg Tr ial , 6 F.R.D. 69, 131, 1 Trial o f the Maj or Wa r Crimi

nals 253-54, Brigadier General Telford Taylor, Final Report to the Secretary of the Army o n the Nuerenberg W ar Crimes Trials under C

ontrol Council Law No. 10, app. B at 224, 228 (William S. H ein & Co., I nc. 1997) (1949). A useful d

iscussion of art. 6(c) of the London Charter, which provided the basis for these holdings, m

ay be found in Bassiouni, supra , 19-30. 135 not h ow the inq

uiry is undert

aken by interna tional tri bunals whose jurisd

iction is li

mited b y customary interna

tional law.” Op. of Judge Katzmann ante at 43. Contrary to J udge Katzmann’s suggestion, the jurisdiction of the international tribunals – he relies principally on the

ICTY – are conferre d by

the Secur

ity C ouncil re solutions c

reating them –

or in the ca se of the

ICC by the Trea ty o f Rome. I

ndeed, in one sign if icant respec t the statu

te creating the ICTY is inconsistent with the evolving standards of c ustomary international law. Post at 140. C.f. Rome Statut

e art. 25(3)(e) (expanding the liability for genocide bey

ond that provided for other crimes against humanity) . More significantly , in the cases on which Judge Katzmann relies

– those of the ICTY – the t ribun al was not required to make any inquiry reg arding the issue of whether “international law extends the scope of liability for a given norm to the perpetrator being sued if the defendant is a private actor such a s a corporation.” Sosa , 542 U.S. at 732 n.20. The Statute of the ICTY, article 5, followed the London Charter, the Judgment of the Nuremberg

Tribunal , constru

ing it, a nd the trib

unals empanel ed pursua

nt to CCL 10, all of which required a conne ction bet

ween cr imes ag ainst huma

nity and war crimes. 13 Becau se private parties

are individua

lly r esponsi ble for c rim es committ

ed in the c ourse of

a war, th is connec tion made it unnecessary

for the CCL 10 tribunals

to address the scope of liability ofprivate actors as aiders-andabetters. See Kadic , 70 F.3d at 239-41 ; see also id. at 242-43 (“Plainti ffs also c ontend tha t the acts of murder, rape, torture, and arbitrar y detention of

civilians, committed in the course of hostilities ,14 Another reason the ICTY cases are silent on this score is that, while the defendants in these

cases may not have been o fficials of formally recognized s tates, they were sta te actors. As we h

ave held, “the sta te actio n conce

pt . . . require s mer

ely th e sem

blance of offic ial authority. The inq uiry, after al l, is whether a person purpo

rting to wield official p ower has exceeded intern ationally recognized standards of civilized conduct, not whether statehood in all its formal as

pects exists.” Kadic , 70 F.3d at 24 5. 136 violate the law of

war. Atr

ocitie s of the ty pes alle ged he

re have long be en reco gnized in international law as violations of the law of war . . . . The liability of private individuals for committing war c

rime s hasbeen

reco gniz ed sin

ce Wo rld Wa

r I and was confirmed at Nuremberg after World War I

I.” ). Thus, ICTY

cases pr ovide no su

pport for failing to follow the instruction of the Supreme Court, one that is consistent with our own holding in Kadic and Wiwa , which requires

ana na lysis of the particular nor m the defendant is accused of violating to determine w hether a private party

may be held re sponsible as an aider-and-abettor. 14 While Judge Katzmann erroneously concludes that there was – during the period when the crimes alleged here took place – an inde pendent norm of customary international law, making private actors legally

responsible as aiders-and-abetters without rega rd to whether the particular norm they allege dly violated imposed su

ch liabili ty, he corr

ectly rejects the “subs tantial a ssistance with knowledge” standard for t his newl y minted norm that Judge Hall finds in section 876(b) of the Restatement

(Second) of

Torts. Instead, he “conc lude[s] that a defendant may be held liable under international law for aiding and abetting the violation of that law by another when the defendant (1) provides practical assistance to the principal which has a substantial effect on the perpe tration of the crime, and (2) does so with the purpose of facilitating the commission of that crime.” Op. of Judge Katzmann ante

at 38-39. The basis for this f ormulation is artic le 25 of th e Rome Stat ute. Rome Statuteof the ICC, opened fo r signature July 17, 1998, 37 I. L.M. 9 99, 1016 ( entere d into for ce July 1, 2002).137

Sp ec if ic al ly, article 25 of the Rome Statute provides that a person shall be c riminally responsi ble and li able for

punishmen

t for spe cified c

rimes ag ainst huma

nity if that pe rson: (c) For the purpose

of facilitating the commission of such a crime, aids, abets or

otherwis e assists i

n its commis sio n or its attempted commission , includin

g provid ing the means for

its commissi on; (d) In any

ot he r w ay contributes to the commission or attempted commission of such a crime by a group of p ersons ac ting with a com mon purpose. Such contribution shall be intentional and sha l l either: (i) Be made with the a imof furth ering t

he criminal activi

ty o rcr iminal purpose of the group, where such ac tivity or pu rpose i nvolves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the g roup to commit th e crime; Id. art. 25(3)(c), (d). This article is significant because it makes clea r that, oth er than assistance rendered to the commission of a crime by a group of

persons a

cting witha common p

urpose, a defenda nt is guilt y of aiding-and-abetting the commission of a crime only

if he does so “[f]or

the purpose of facilitating the commission of

such a crime . . . including providing the means for its commission.” Id. The

same standar

d was ado

pted by the Unite d Nations T

ransitional Administratio n i n East Timor (“UNTAEAT”). See UNTAET, June 6, 2000, Reg. No. 2000/15 § 14.3(c). As one commentator has observed: Withregard to facilitating

the commission of a crime, the aider and abettor must act with

‘ purpose. ’ . . . This means more than the mere knowl edge that the ac complice aids the commission of the offence,138 as would suffice for complicity ac co rding to the ICTR and I CTY Statutes, rather

he must know as w ell as wis h that his as sistance shall facilitate the commission of the crime. Albin Eser, Individu al Criminal R esponsibi lity , in 1 The Rome Statute of the International Criminal Court 767, 801 (Antonio Cassese et al., eds. 2002) (emphasis in original). The Rome Statute has been signed by 139 countries and ratified by 105, including most of the mature democracies of the world. I ag

ree that it reflects an international consensus on the issue of the appro priat e stan dard fo r deter mini ng liab ilit y for aidi ng-and -abett ing, it is consistent with our

owndomestic law, see ante at 111-12, and addresses the concern over the adoption of a “substantial assistance with knowledge” standard raised in the amicus br i ef filed by the United States. Br. for the U.S.A. as Amicus Curiae at 13. Indeed, the amicus brief appears to endorse the elements set out in article 25(3). Id. at 26 (arguing that “the standar d the plaintiffs propose differs materially from the most recent

form ulations a

dopted in i

nternat ional pra ctice” ) (citing

article 25(3) of the Rome Statute). Perhaps more significant ly, the stand ard in ar ticle 25( 3)(c) o f the Rome Statute is consistent with the Ministrie

s Case , discusse d at t

he outset, that holds that the conduct which the defenda nts allege dly

engag ed in her

e was not a violation of custo mary interna tional la w. Th e Ministries Case , 14 Trials of War Criminals Before theNuernberg Military Tribunals Under Control Council Law No. 10 622. These considerations also obviate any concern regarding

the failure of the United States to ratify the Tre aty of Rome for reasons unrelated to the definition of aiding-andabetting. See Yousef

, 327 F.3d at 92 n.25. My point of disagreement

with Judge Katzmannrelates to the narrow issue of whether there

was any“‘well established[] [and ] un iversally rec ognized” definition of aiding-and-abetting sufficient to be cons idered c

ustomary interna tional law for the p urpose s of the AT CA during the15 In decidin g this moti on, Judg

e Spriz zo sho uld also consid er apply ing th e plead

ing st andard enunciated in Bell Atl

antic C orp. v. Twomb ly , 127 S . Ct. 1 955 (20 07). Th e standa rd seems partic

ularly appropriate to the class action s in this case, which are intended to coerce a settlement rather than provide the framework

for a trial which we all know will ne ver take place. 139 aparthe id era when the defendants alleg edly violated custom a ry intern ation al law . Op. o f Jud ge Katzmann ante

at 39 ( quot ing Kadic , 70 F.3d at 239). Nevertheless, I concur i n section II .B of his op ini on that articulates the customary international law standard for aiding-and- abetting based on the Rome Statute. I

do so bec ause it provide s a clea r standa rd, adop ted by

a majorit y of the pane l, for Judge Spri zzo to app ly, in dec idin g wheth er to gr an t the plaintiffs’ motion to file amended complain ts. 15 Moreover, as applied to the facts in this case, the stand ard Judge Katzmann a

dopts is consistent with the Ministrie s Case – the validity of which has ne ver been questioned. Judge Katzmann’s opinion, however, does not end wit h section II.B. Thus, while he does notrel y on post-aparthe id decisions of the ICTY or the I CTR to support the standard that he enunciates for

determin ing aidi ng-and-abett

ing liab ility , he does

rely on those cases to suggest that the “ substa

ntial assistance with knowledge” standard for a iding-and-abetting may

provide a foundationfor future development of the law in this area. I discuss the c ases on which he relies to demonstr ate why, contrar

y to Judge Katzmann’s gratuitous suggestion, they do not prov

ide a re liable basis for a broader definition than the one proscribe d in the Rome Statute. (a) The ICTY By way of ba ckground, the I CTY was cr eated by U nited Nations Security Council Resolution 827, which was passed on May 25, 1993, to prosecute individuals responsible for serious violations of interna tional huma

nitarian law commi

t ted in the forme

r Yugoslavia beginning on January 1, 1991. Under the ICTY Statute, the tribunal has jurisdiction over four c lusters of crimes: grave breache s of140

the 1949 Geneva Conv entions, violations of the laws or customs of war, genocide, and c rimes agains thumanity. See ICTY Statute arts. 2-5. Significan tl y, as previously

noted, the ICTY criminalizes crimes against humanity only “when c ommitted in armed conflict .” Wh ile this connection

with arme d conflict is consist ent with th e London Charter and the Judge ment of the Nuremberg

Tri bunal, ante

at 135, the ICTY Statute undermines “subsequent developments decoup ling ‘crimes ag ainst humanity’ from the initiation and wag ing of an aggr

essive war . . . .” Bassiouni , supra , at 194. I ndeed, if we applied thi s retrograde statute here, it would re quire the dismissal o f the com

plaints. Agains tthis backdrop and my e arlier d iscussion of the I CTY statut e, I turn to the spec ific ICTY decisions rel ied up on by Judge Katzmann. The g ruesome facts in the Furundzija case, the principal case which Judge Katzmann cites, are il lustrative of the circumstances under which the ICTY choseto address aiding-and-abetting liability. There, two victims, identified as A and D , were apprehended

and were brutally

interrogated. The I CTY made the following finding with resp ect to the defendant and his co-defendan t, who it identified as Accused B: “There is no doubt that the accused and Accused B, as commanders, divided th e process of interrogation by performing different function s. The role

of the ac cused wa s to question, while A ccused B ’s role w as t o assaul t and threaten in order to elicit the required information from Witness A and Witness D.” Prosecutor v. Furundzija , 38 I.L .M. 317, 363, Case No. IT-95-17/1-T, Judgment ¶ 130 (Tria l Chamber Dec. 10, 1998). While this was an open-and-shut case of joint participation in a violation of international law by members of an armed group in an interna tional conflict, the ICTY

panel entered

into a confused and ram blin g discu ssio n of ai ding-a nd-ab etti ng.141

This theme a nimates the other ICTY case s cited by Judge Ka tzmann. In Tadi  , the Trial Chamber fo und that the defendant, as part of a gr oup proclaiming the creation of an independe nt Bosnian Serb republic, played an active role in the attack on a majority Muslim town in a predominantly

Serb region by , inter alia , beating civilia ns and for

cibly transfe rring t hem to concentration

camps. E.g. , id. , Judgement ¶¶ 397, 455, 461. He was also am ong a group o f men who beat, stabbed, and/or killed a number of individuals at such concentra tion camps in the cont ext of the armed conflict. E.g. , id. ¶¶ 235-3 6, 261, 303 , 316, 435, 448. Ag ain, thisis a classic case of joint particip ation in criminal c onduct by state actors in an

armed conflict who provided direct and substantial assistance to the “common purpose” of effecting

a violation of an int

ernatio nal law norm. Id. ¶¶ 730, 735, 738. Indeed, Tadi  was expressly cited in Furundzija , as holding that “the accused ‘intentionally

assisted d irectly and substa

ntially in the common purpose of the group’ to commit the offence.” Id. Judgment ¶ 226 (internal citations omitted). See also Prosecutor v. Vasiljevi  , Case No. IT-98-32-A, Judgment ¶ 134 (A pp. Chamber F eb. 25, 20 04) (The evidence showed that “Appellant

knew that the seven

Muslim men were to be killed; that he walked armed with the group fromthe place where they had parked the cars to the Drina River; that he pointed his g un at the seven Muslim men; and that he stood behind the Muslim men with his guntogether with the other three offenders shortly

before the shooting started.”). Similarly, in Prosecutor v. Kvo ka , Case No. IT-98-30/1-T, Judgment (Trial Chamber Nov. 2, 2001), the defe

ndants were employees of a camp created by Serb Forces in Bosnia Herzeg ovina, where non-Serbs were detained, killed, and otherwise gravely

mistreated. The administrative aide to the comma

nder of t he camp was found

to have pa

rticipat ed in the j oint crimi

nal ente rprise b ecause his “administrative duties constituted o ne of man y in tegra l cogs in the whee l of a sy

stem of g ross16 The citation is to the Un ited Nations War Crim

es Comm ission summ

ary of the case ba sed on the indictment, the

evidence and arg

uments of coun sel. See Foreword 1 Law Reports of Tria ls of War Crimin als , at x. The General Military Governm ent Court of the United

States Zone itself re ached a guilty v erdict without any opinion. 142 mistreatment.” Id. Judgment ¶ 460. The other two defendants held individually responsible were both guard shift lea ders at the camp. One defendant was c onvicted on the basis of “substantial evidence presented that the guard s on [his] shif t beat de tainees , sometime s inhis presence, and he notonly failed to object, b ut partic ipate d on occa sio n.” Id. ¶ 497. The other g uard lea der also permitted serious crimes to be commi tted by those unde

r his comma

nd and he

persona lly “perpetrated

a number of serious crimes, particularly sexual violence.” Id. ¶ 566. This case is the mirror image of the Dachau Conce ntration Camp case in which there was in the camp a general sy stem of cruelties and murders of the inmat es (most of whom were allied nationals) and that this sy stem was practi ced wi th kn owled ge of the accused, who were members of the staff, a

nd with the ir active

particip ation. Su ch a course of conduct, then, wa s held

by the court in this case to constitute “acting inpursuance of a

common de sign to violate the laws and usages of war.” Everybody

who took any part in such c ommon design was held guilty of a war crime, though the nature and extent

of the participation may vary . Trial of Martin Gottfried

Weiss and

thirty-ni ne others , 11 Law Reports of Trials of W

ar Criminals 5, 14 (William S. Hein & Co., Inc. 1997) (1945). 16 Thesecases hardly

provide a foundation upon which a norm of international law, of the kind Judge Katzmann s

ugge sts, can b e constr

ucted. N or do the o

pinions of

th e ICT R, to whic h I now turn.143

(b) The ICT R The ICTR w as crea

ted on Nov ember 8, 1994, by the Unite d Nations S ecurity Council Resolution 995 in order to judge those individuals responsible for serious violations of international law in Rwanda and n earby states, between January

1 and December 31, 1994. Specifically, the defend ants there were accused of g enocide, crimes against humanity, and violations of Article 3

common to the Geneva

Conventio ns and of Additional P rotocol I I. Th e ICTR Statute

did not require

a connec tion betwe en a cri me aga inst human

ity a nd an armed confl ict. While the ICTR and ICTY

are separat e trib unals they share d the same Appeals Chamber, Op. of Judge Katzmann ante at 40 n.28. Not surpr

isingly , as Judge Katzmann o

bserves , there w as little to distingu ish judgments of one fromthe other. Id. These judgments, as I pr oceed to show, are equally useless precedent on the issue of liability of private par ties for violations of customary inter national law. In Prosecutor

v. Akay esu , Case No. ICTR-96-4-T, Judgement (Tr ial Chamber Sept. 2, 1998), the defenda

nt, servi ng as the local “b ourgme stre,” w as char ged wit h executing the laws adopted by the communal legislature, had control over the appoi ntment and remova

l of commun

al employ ees, and had ultimate authority over the communal police and any gendarmes put at the communes disposal. Judgemen

t ¶¶ 61-7 1. Bourg

mest res also had signific ant de facto powers o ver thei r constitue nts, like those

of a tribal chief. Id. ¶¶

72-74. I ndeed, the indictme

nt only charg es Akay

esu with violations performed during his time as a public official. Given the widespr ead use of pub lic employees

and facilities in this conduct, it is clear tha t Akayesu wa s a state actor and a joint particip ant with ot

her state actors.144

Si mi la rl y, in Prose cu tor v. Bagilishema , Case No. ICTR-95-1A-T (Tr ial Chamber June 7, 2001), and Prosec utor v. M usema , Case No. ICTR-96-13-T (Tria l Chamber Jan. 27, 2000), the defenda nts were no t only

charg ed with ac

ts of dire ct criminal partic ipation in crimes in which

they

were joint participants, they were significant public officials. Ba gilishema, the May

or of a Rwandan commune, was accused of, inter al ia , arming

individua

ls and dir ecting them to att

ack, pe rsonally attackingand killing persons, as well as other official a cts encouraging mass killings. See Bagilishema , Judgment a nnex A. Muse

ma was the director of a

state-owned tea factory, under the authority of the Rwandan Ministry of A griculture, who led and participated in attacks on non-Hutus using fa ctory employ ees and e quipment, personally shot at refug ees, ord

ered the rape of one Tutsi woman, and personally

raped another woman. See Musema , Judgment § 5. Fi na ll y, in Pro sec utor v. Ntakirutimana , Case No. ICTR 96-10-A, I CTR-96-17 (App. Chamber Dec. 13, 2004), the

Appeals Chamber summarize d the Tria

l Chamber ’s finding s of fac ts, in part, a s follows:

The Trial Chamber found 1) in relation to the Mugonero I ndictment th at, in addition

to killing Charles U

kobizaba a

nd shooting

at Tuts i refugees at

the Complex, Gérard Ntakirutimana’s participation in the attacks included procuring ammunition and gendarmes for theattack on the Complex and participation in the atta

ck on Witne ss SS; and 2) inrela tio n to the Bisesero Indictment that, in addition to killing Esdras and the wife of Nzamwita, pursing and shooting at the refug ees, he transpor

ted at tackers at Kidashy

a, headed a group of armed attackers at Muy

ira Hill in June 1994, was at Muti ti Hill in June 1994 with Interaha mwewhere they shot at re fugee s in a for

est by a church, and participated in attacks in Bisesero during theperiod April to June 1994.145

Id. ¶ 491. Thi s is a clas sic example of joint part icipation of persons acting

pursuant to a common design. Moreover, the defendants were also direct participa nts in the offenses for which they were convicted. Judge Katzmann concedes that the d efenda nts in the ICTY and I CTR cases he cites involved joint participants in violations of interna tional law . Ind

eed, vir tually all of the defenda nts in these cases were state actors. They hold, at most, that “substantial assistance with knowledge” satisfies the participation necessary for the imposition of liability on joint participants sharing the common purpose of violati

ng a nor m of custo mary

interna tional law . This is en

tirely consiste nt with the Rome Statute. Moreo ver, t o the e xten t that any language in these o pinions sug

gest more than that, it rises only to the level of dicta , of which peremptory norms of international law are not made . Indeed, the leading treatise

Judge Ka tzmann cite s explains that “dec isions of in ternational tribun

als . . . exe rcise consider able influence as an impartial and considered statement of the la w b y ju ri st s o f a ut ho ri ty in light of actual problems which arise before them .” 1 Oppenheim’s Internat ional La w: Peace31 (Robert Y. Jenning s & Arth

ur Watt s eds. 9th ed. 1962) (emphasis added). Dicta unrelated to the actual problems which arise before them do not warra nt such deference. This is all the mor e so where dicta are inserted

by judge s who are using their positions to make law with respect to matters with which they have

preconceived

views. Yet, a leading jurist and commentator hasobserved that the practice of

“d eal[ing] through obiter dic ta with leg al issues t hat were incident al, as it w ere, to the main questions,” was a regular practice of ICTY pa

nels. Antonio Cassese, The ICTY: A Living and Vital Real

ity , 2 J. Int’l Crim. Just. 585, 589 (2004). The excuse given for this practice is that it provided “clarification

[that] might have some value for the future development of international146

criminal law[.]” Id. As Antonio Cassese, the President of t he ICTY and Pres iding Judge of the ICTY Trial Chamber, who was one of the judges on the ICTY pa nel in Furundzija , goes on to explain: I n this connection, one may f ind much merit in the witty remark repor tedly ma de by a senior

member of the ICTY Off ice of the Prosecutor

in 19 95, afte r the App eals Cham ber hand ed down it s l engthy judgment in [ Prosecutor v. Tadi  , Case No. IT-94- 1 (App

. Chambers Oct. 2, 199 5) (C asse se, Pr esidi ng J.) ]: ‘We had gone for

a steak,’ he said, ‘and

have got a whole cow.’ However, international courts operate

in a leg al s yst em t hat is notably lacking in many r esp ects. Among other things, the absence of a n international l aw-maker

and an int

ernatio nal cour

t with comp

ulsory univ ersa l jurisdiction entails that many rules ar e not clear, p articularly w hen they are of customary

origin, and are thus open to diffe ring i n terpretations-hence the need for courts gradually to spell out the contents of those rules, if need be through obiter dic ta . Id. at 590. Nevertheless, Judge Cassese cautioned that “ one should not be oblivious of the possible flaws

or abuses. Courts may

indulge in legal discussions that not only are peripheral to theratio decidendi , butmay also prove simply

academ ic and somet

imes also misleading for future courts pronouncing

on the same matters.” Id. This accurately describes the aiding-and-ab etti ng dicta in the ICTY opinions. They

do not constitute a foundationstrong enough to provide a future ba sis for rejecting the in ternat ional conse nsus achiev ed by the R ome S tatut e on th e elem ents o f aidi ng-and -abett ing.147 Conclusion Idis sent from judgment reversing the dismissal of the complaint for the r easons I have elaborated above. Nevertheless, I concur i n section I

I.A o f Judge K

atzmann’s

opinion tha

t reject s Judge Hall’s argument that the scope of liability for the violation of

the norm of international law must be decid ed by refer ence to o ur own domestic law . I c oncur as well in secti on II.B of J udge Katzmann’s opinion that articulates the elements of aiding-and-abetting

liability as defined in art

icle 25(b) & (c) of the Rome Statute. These elements are consistent with, if notmandated by, c ustomary international law. I also concur in section II

of the per curiam opinion dis missing the TVPA ca use of action for the reasons stated in the per curium opinion an d for the additiona

l reaso n th at only natural persons a re subje ct to liabi lity

under it.