There has been a lot of litigation under the Alien Torts Statute in the past few years. (Go here for posts on some of those recent developments.) The statute, which was enacted in 1789 and is codified in 28 U.S.C. §1350, provides jurisdiction to federal district courts over claims filed by aliens for injuries allegedly caused by conduct that constitutes a violation of the law of nations.
As the use of the ATS as a remedy for damages became more popular, some plaintiffs began to argue that aiding and abetting the violation of international law is itself a violation of international law and, eventually, courts recognized the validity of a cause of action for "aiding and abetting" the commission of a violation of the law of nations. The recognition of this new type of cause of action under the ATS created the need to address yet another difficult question: whether the concept of aiding and abetting should be defined according to international law sources or according to the law of the US.
One of the best discussions of the different approaches to this question was provided by the concurring opinions of two judges of the Court of Appeals for the Second Circuit in a case called Khulumani v. Barclay Nat’l Bank, decided in 2007. In a per curiam opinion the judges recognized the validity of a claim based on a theory of aiding and abetting under the ATS but they disagreed as to the analysis that should be used to resolve those claims. In separate concurring opinions, Judges Katzmann and Hall debated the issues and argued for the different approaches. In doing so, they openned the door to a debate that the Court finally resolved just a few days ago.
In his concurring opinion, Judge Katzmann argued that the proper source to define the requirements of a cause of action for aiding and abetting a violation of the law of nations should be international law. For this reason, following the formulation of aiding and abetting in several international law sources, he also argued that to support a claim for aiding and abetting under the ATS, a plaintiff would have to prove that the defendant provided practical assistance which had a substantial effect on the perpetration of the crime, and that the defendant did so with the purpose of facilitating the commission of the violation of international law at issue in the case.
Judge Hall, on the other hand, argued that the proper standard for aiding and abetting claims under the ATS should be the US federal law and that, following that view, a plaintiff would only have to show that the defendant furthered a violation of a clearly established international law norm by knowingly & substantially assisting the principal tortfeasor to commit the act. In other words, in contrast with Judge Katzman’s analysis, which would require proof of intent on the part of the defendant, Judge Hall would have found a showing of knowledge sufficient.
The question of whether a plaintiff has to show intent or can get by showing just knowledge was not settled until six days ago when the court issued an opinion in The Presbyterian Church of Sudan v. Talisman Energy, Inc. which is available here.
In this new opinion, the court explicitly adopts Judge Katzmann’s proposed rule/analysis in his concurring opinion in Khulumani as the law of the Circuit, stating that: "Thus, applying international law, we hold that the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone. Even if there is a sufficient international consensus for imposing liability on individuals who purposefully aid and abet a violation of international law . . . no such consensus exists for imposing liability on individuals who knowingly (but not purposefully) aid and abet a violation of international law."
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