The Fourth Circuit dropped a bombshell yesterday, or at least what counts as a bombshell in this neck of the virtual woods. In Aziz v. Alcolac, the court took sides on a major circuit split regarding the aiding and abetting standard for ATS liability.  The opinion was written by Judge Albert Diaz, an Obama appointee.

At issue is the sale of mustard gas ingredients by defendant Alcolac, Inc.* to Iraq in the 1980s, which was then used against civilians in restive Kurdish areas, most notably in Halabja.  Plaintiffs, representing Kurdish victims of those attacks, sued on ATS and TVPA grounds.  Alcolac moved for 12(b)(6) dismissal, which was granted by the district court and affirmed yesterday on appeal.  Diaz writes:

We agree with the district court that the TVPA excludes corporations from liability. We further conclude that the ATS imposes liability for aiding and abetting violations of international law, but only if the attendant conduct is purposeful. The Appellants, however, have failed to plead facts sufficient to support the intent element of their ATS claims.

On the corporate TVPA liability issue:

This presumptive construction strikes us as particularly appropriate because there “is no indication Congress intended `individual’ to have a variety of meanings throughout the TVPA.” Bowoto, 621 F.3d at 1127. As did the plaintiffs in Bowoto, the Appellants here “ask us to interpret `individual’ to mean a natural person when referring to the victim, but to mean either a natural person or a corporation when referring to the torturer.” Id. We see no compelling reason, and the Appellants have not articulated one, for adopting such a schizophrenic construction of the TVPA. Instead, we apply the standard rule of statutory construction urging that identical words used in different parts of a statute be given the same meaning. Comm’r v. Lundy, 516 U.S. 235, 250 (1996) (in a case involving the interpretation of the term “claim” under the Internal Revenue Code, stating that “[t]he interrelationship and close proximity of [two statutory provisions] presents a classic case for application of the normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning”) (internal citations and quotations omitted).

The “individual” language is specific to the TVPA – ATCA doesn’t use the word, which is part of the reason another circuit split has developed over whether corporations are liable under the latter.

On the ATCA cause of action:

Alcolac contends here that the ATS bars the Appellants from seeking relief on an aiding and abetting theory because such a claim is not recognized under international law. Alternatively, Alcolac contends that the Appellants do not allege facts sufficient to show that Alcolac acted with the purpose of facilitating genocide against the Kurds, which Alcolac asserts is an element of the claim.

[...]

[T]he question of whether the ATS recognizes aiding and abetting liability has become well-settled, as “[v]irtually every court to address the issue, before and after Sosa, has so held, recognizing secondary liability for violations of international law since the founding of the Republic.” Doe VIII v. Exxon Mobil Corp., Nos. 09-7125, 09-7127, 09-7134, 09-7135, 2011 WL 2652384, at *5 (D.C. Cir. July 8, 2011) (citing The Presbyterian Church of Sudan v. Talisman, 582 F.3d 244, 258-59 (2d Cir. 2009); Khulumani, 504 F.3d at 260; Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1258 n.5 (11th Cir. 2009)).

“Well-settled”? Not exactly. There’s the pesky little issue of a mens rea standard for aiding and abetting. One school of thought follows the Rome Statute** standard, which governs the International Criminal Court. Under that standard, liability attaches “[f]or the purpose of facilitating the commission of such a crime.” This standard informed the holding in The Presbyterian Church of Sudan v. Talisman, 582 F.3d 244 (2d Cir. 2009) (“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 perpetration of the crime, and (2) does so with the purpose of facilitating the commission of that crime.”).

The alternate standard comes from the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”), which simply requires knowledge. See Doe VIII v. Exxon Mobil Corp., Nos. 09-7125, 09-7127, 09-7134, 09-7135, 2011 WL 2652384, at *5 (D.C. Cir. July 8, 2011) (“knowing assistance that has a substantial effect on the commission of the human rights violation.”)

Here, the Fourth Circuit agreed with the Second Circuit and applied the Rome Statute standard.

While we agree with the premise that the Rome Statute does not constitute customary international law, we find that its status as a treaty cuts in favor of accepting its mens rea standard as authoritative for purposes of ATS aiding and abetting liability.

Next stop, SCOTUS?
* At the time Alcolac was selling chemicals to Iraq, they were own by Rio Tinto, a company quite familiar to folks who follow ATS/ATCA news.

** The U.S. has not ratified the Rome Statute.