1 See Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) (involving an appeal from the United States District Court for the Eastern District of New York, where Judge Eugene Nickerson dismissed the action for want of subject matter jurisdiction).Google Scholar

2 See id. at 878 (alleging that Joelito Filártiga was kidnapped and tortured to death by Peña-Irala, while the latter was an Inspector General of Police in Asunción, Paraguay).Google Scholar

3 Id. at 880.Google Scholar

4 Id. at 878.Google Scholar

5 See id. at 890 (emphasis added).Google Scholar

6 See Sarah Joseph, Corporations and Transnational Human Rights Litigation 22 (2004) (referencing Doe I v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997)).Google Scholar

7 See Daniel Diskin, The Historical and Modern Foundations for Aiding and Abetting Liability Under the Alien Tort Statute, 47 Ariz. L. Rev. 805, 807, 810 (2005) (arguing that the standard to be used in ATS aiding and abetting and conspiracy cases is the Restatement (Second) of Torts, section 876, and noting that “Named defendants in these [aiding and abetting, ATS] lawsuits include the oil companies Chevron Texaco, Exxon Mobil, Occidental, Royal Dutch Shell, Talisman, and Unocal, and the mining companies Freeport-McMoran, Newmont, Rio Tinto, and the Southern Peru Copper Corporation.”).Google Scholar

8 See Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002) (alleging that private mining enterprise cooperated with the government of Papua New Guinea to displace villages, cause environmental damage, and commit other abuses and war crimes).Google Scholar

9 See Bigio v. Coca-Cola Co., 239 F.3d 440 (2d Cir. 2001) (alleging that the defendants violated the law of nations by knowingly purchasing property illegally seized by the Egyptian government).Google Scholar

10 See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003) (alleging that the defendant collaborated in torture, enslavement, war crimes, and genocide effectuated by the Sudanese government).Google Scholar

11 See Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002) (alleging that pollution caused by the defendants in Peru and Ecuador violated the law of nations).Google Scholar

12 See Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (finding that the plaintiffs may plead a theory of aiding and abetting liability under the ATCA).Google Scholar

13 Id. at 254.Google Scholar

14 See Drimmer, Jonathan, Don't Be Dubbed a Human Rights Abuser: The Rise in Alien Tort Claims Act Lawsuits Serves as a Wake-Up Call for Companies With Overseas Operations, Legal Times (special report), Oct. 22, 2007, at 39 (profiling the Drummond case as the first § 1350 case to end up before a jury).Google Scholar

15 For a discussion of a case that was settled before the Ninth Circuit could issue a new opinion, see Unocal Settles Rights Suit in Myanmar, N.Y. Times, Dec. 14, 2004, at C6.Google Scholar

16 See Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, 554 (S.D.N.Y. 2001) (involving Peruvian and Ecuadorian citizens, who sued an oil company under § 1350 for alleged property damage, personal injury, and risk of disease due to Texaco's negligent pipeline management).Google Scholar

17 See Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1193, 1198, 1201–06 (C.D. Cal. 2002) (dismissing the case in light of the act of state doctrine, political question doctrine, and international comity).Google Scholar

18 See Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 485 (D.N.J. 1999) (holding that “responsibility for resolving forced labor claims arising out of a war is constitutionally committed to the political branches of government, not the judiciary”).Google Scholar

19 See Jonathan Drimmer, supra note 14, at 39 (discussing the Drummond case in which this international mining company won a “resounding victory” before a jury in a state, not federal, court in the state of Alabama) (italics added).Google Scholar

20 See id. (“While the jury took just four hours to reject the plaintiffs’ claims that Drummond had hired paramilitary forces to kill three labor leaders who worked at the company's coal mine in Colombia, the case represents the first corporate ATCA lawsuit to survive dismissal motions and proceed through trial.”).Google Scholar

21 See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 431 (1989) (explaining that the bombings of these Liberian tanks occurred when Great Britain and Argentina were at war over the Falkland Islands).Google Scholar

22 See id. at 432–33 (referencing Amerada Hess Shipping Corp. v. Argentine Republic, 638 F. Supp. 73 (S.D.N.Y. 1986) and stating “[t]he District Court dismissed both complaints for lack of subject-matter jurisdiction, 638 F. Supp. 73 (1986), ruling that respondents’ suits were barred by the FSIA.”).Google Scholar

23 See id. at 433 (referencing Amerada Hess Shipping Corp. v. Argentine Republic, 830 F.2d 421 (2d Cir. 1987) and Circuit Judge Kearse's dissenting opinion).Google Scholar

24 See id. at 428, 439, 443 (“We hold that the District Court correctly dismissed the action, because the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1330 et seq., does not authorize jurisdiction over a foreign state in this situation.”).Google Scholar

25 See Rasul v. Bush, 542 U.S. 466 (2004) (involving claims by various detainees at Guantanamo Bay, who were challenging the legality of their detention by the United States government).Google Scholar

26 See id. at 472 (“The two Australians, Mamdouh Habib and David Hicks, each filed a petition for writ of habeas corpus, seeking release from custody, access to counsel, freedom from interrogations, and other relief. … Fawzi Khalid Abdullah Fahad Al Odah and the 11 other Kuwaiti detainees filed a complaint seeking to be informed of the charges against them, to be allowed to meet with their families and with counsel, and to have access to the courts or some other impartial tribunal. … They claimed that denial of these rights violates the Constitution, international law, and treaties of the United States. Invoking the court's jurisdiction under 28 U.S.C. §§ 1331 and 1350, among other statutory bases, they asserted causes of action under the Administrative Procedure Act, 5 U.S.C. §§ 555, 702, 706; the Alien Tort Statute, 28 U.S.C. § 1350; and the general federal habeas corpus statute, §§ 2241–2243. App. 19.”).Google Scholar

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28 See id. at 505 n.6 (“The Court grasps at two other bases for jurisdiction: the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the federal-question statute, § 1331. The former is not presented to us. The ATS, while invoked below, was repudiated as a basis for jurisdiction by all petitioners, either in their petition for certiorari, in their briefing before this Court, or at oral argument.”).Google Scholar

29 Id. at 485.Google Scholar

30 See Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004) (deciding that the 1990 extraterritorial abduction and forcible transfer by the United States government of Mexican national, Humberto Alvarez-Machain, to the United States did not create a cause of action under the Alien Tort Statute).Google Scholar

31 David D. Caron & Brad R. Roth, International Decision, Scope of the Alien Tort Statute–Arbitrary Arrest and Detention as Violation of Custom, 98 Am. J. Int'l Law 798, 800 (2004).Google Scholar

32 See Sosa v. Alvarez-Machain, 542 U.S. 692, 714 (2004) (“In sum, we think the statute was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject.”).Google Scholar

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35 Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).Google Scholar

36 See Goldhaber, Michael D., Not Dead … Yet: The Corporate Alien Tort Never Left Us, and It's Cued Up for Crucial Tests in the Supreme Court, Am. Law., Mar. 2008, at 77–79 (discussing three corporate, ATS cases that currently are cued for Supreme Court review) (italics added).Google Scholar

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38 See Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (“This requirement of clear definition is not meant to be the only principle limited the availability of relief in the federal courts. … Another possible limitation that we need not apply here is a policy of case-specific deference to the political branches.”).Google Scholar

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40 Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 260 (2d Cir. 2007).Google Scholar

41 See Vairo, Georgene M., Human Rights Violations, Nat'l L. J., Feb. 18, 2008, at 20 (“The case is important because it presents an important twist – aiding and abetting liability – that is beginning to occupy the attention of the federal courts.”); Cohen Milstein Invokes 200-Year-Old Law, Lawyer, Nov. 26, 2007, at 13 (“Last month saw a US Court of Appeals decision that could have implications not only for a significant number of the world's leading multinationals, but also for the US itself. … At stake is a $400bn (#194.2bn) class action centred on the apartheid regime in South Africa between 1960 and 1993.”).Google Scholar

42 Goldhaber, Michael, supra note 36, at 77.Google Scholar

43 Id. Google Scholar

44 Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254 (2d Cir. 2007).Google Scholar

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47 See id. at *23 n.3 (referencing Corrie Caterpiller, Inc., 503 F.3d 974 (9th Cir. 2007), which includes “allegations that Caterpillar aided and abetted international law violations by selling to Israeli military bulldozers used to demolish Palestinians’ homes” and Mastafa v. Australian Wheat Bd. Ltd., No. 5:07–CV–02798, First Am. Compl. ¶¶ 29–45 (S.D.N.Y. Sept. 11, 2007), which includes “allegations that Australian entity and French bank aided and abetted human rights violations of Saddam Hussein's regime by making illicit fee payments to Iraq in connection with United Nations oil-for-food program”).Google Scholar

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59 See Charles, Cassandra F., supra note 57, at 90 (noting that twenty million votes were cast in the election).Google Scholar

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65 Chapman, Audrey R. & Hugo Van Der Merwe, supra note 62, at 9.Google Scholar

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71 See Healing South Africa, N.Y. Times, Sept. 10, 1995, at 16 (“Generations of South African political prisoners were tortured and murdered in police custody. Activists were hunted down on the streets of South Africa and neighboring countries by clandestine police and military units. Some of the victims of this deadly repression were well known, like the Black Consciousness Movement leader Steven Biko. Others were known only to their grieving friends and relatives.”).Google Scholar

72 See Alex Boraine, supra note 58, at 13 (referring to the International War Crimes Tribunal for the Former Yugoslavia).Google Scholar

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78 In re South African Apartheid Litig., No. 1:01–CV–04712, Compl. ¶ 39 (S.D.N.Y. June 19, 2002).Google Scholar

79 Mulugeta, Samson, Apartheid Suits Reach Overseas, Newsday (USA), Sept. 14, 2002, at A15.Google Scholar

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85 See Verkaik, Robert, Ministers Attempt to Halt U.S. Human Rights Cases Against British Firms, Independent (United Kingdom), Feb. 11, 2004, at 2 (“The Government has made a formal intervention in the US justice process in an attempt to stop British companies being sued in America for alleged human rights violations committed around the world. The move follows months of lobbying from British businesses concerned that they might have to pay millions of pounds in compensation for alleged exploitation of Third World countries and their people.”); Greenhouse, Linda, Human Rights Abuses Worldwide Are Held to Fall Under U.S. Courts, N.Y. Times, June 30, 2004, at A21 (“The South African government has opposed these lawsuits on the ground that they interfere with its own post-apartheid approach to reconciliation and reconstruction, and the State Department has endorsed South Africa's view.”); Thurgood Marshall Jr., Let South Africa Decide: America's Courts and Lawyers Have No Business Sorting Out Blame or Punishment for Apartheid, Legal Times, Sept. 15, 2003, at 82 (“The 1993 South African Constitution calls for understanding, not vengeance. It advises that the pursuit of national unity requires the reconstruction of society and reconciliation among the peoples of that country. Let that blueprint guide South Africans in their determined effort to end, once and forever, the horrors and economic injustices of apartheid. Imprudent outsiders should not be allowed to substitute their judgment of what is right for South Africa.”).Google Scholar

86 See Goldhaber, Michael, supra note 36, at 77 (discussing American Isuzu Motors, Inc. v. Ntsebeza, Exxon Mobil Corp. v. Doe, and Rinto Tinto PLC v. Sarei as three ATS, corporate cases that could receive cert by the Supreme Court).Google Scholar

87 See Thurgood Marshall Jr., Let South Africa Decide: America's Courts and Lawyers Have No Business Sorting Out Blame or Punishment for Apartheid, Legal Times, Sept. 15, 2003, at 82 (“Thurgood Marshall Jr. is a partner in the D.C. office of Swidler Berlin Shereff Friedman. He is researching the Alien Tort Claims Act for the National Foreign Trade Council, an association of more than 500 U.S. firms engaged in international trade and investment. Through its sponsorship of the U.S.-South Africa Business Council, the NFTC supports U.S. companies in the South African market and represents their interests to the U.S. and South African governments.”).Google Scholar

88 Id. Google Scholar

89 In re South African Apartheid Litig., No. 1:01–CV–04712, Compl. (S.D.N.Y. June 19, 2002).Google Scholar

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91 See Id. at ¶ 13 (“The financial institutions and companies that fueled and made possible the Apartheid reign of terror must account for their wrongful acts, crimes and profiteering, just as did the companies that fueled and made possible the reign of terror during the Holocaust.”).Google Scholar

92 See Greene, Jenna, Use of 1789 Alien Tort Claims Act Against Businesses Growing, Miami Daily Bus. Rev., July 29, 2003, at 9 (stating “But the case that has the corporate world most up in arms is In re South African Apartheid Litigation, now pending in the Southern District of New York.”).Google Scholar

93 In re South African Apartheid Litig., 346 F. Supp. 2d 538, 542 (S.D.N.Y. 2003).Google Scholar

94 For a discussion of the cases procedural history, see id. In sum, Judge Sprizzo noted that originally, there were three groups of plaintiffs led by Lungisile Ntsebeza, Hermina Digwamaje, and the Khulumani Support Group. Each group had filed actions in various federal district courts against multinational corporations that did business in Apartheid South Africa. The Judicial Panel on Multidistrict Litigation transferred and consolidated the actions to the Southern District of New York.Google Scholar

95 See id. at 543 (“Because the Court finds that the various Complaints do not sufficiently allege that defendants violated international law, this Court lacks subject matter jurisdiction under the ATCA and therefore defendants’ motion is granted and plaintiffs’ complaints are dismissed.”).Google Scholar

96 See Filártiga v. Peña-Irala, 630 F.2d 876, 878 (2d Cir. 1980) (“Construing this rarely-invoked provision, we hold that deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. Thus, whenever an alleged torturer is found and served with process by an alien within our borders, § 1350 provides federal jurisdiction.”).Google Scholar

97 See Kadic v. Karadzic, 70 F.3d 232, 235 (2d Cir. 1995) (holding that claims may be brought against de facto, but unrecognized governments and private bodies under the ATCA; providing, “Most Americans would probably be surprised to learn that victims of atrocities committed in Bosnia are suing the leader of the insurgent Bosnian-Serb forces in a United States District Court in Manhattan. Their claims seek to build upon the foundation of this Court's decision in Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980), which recognized the important principle that the venerable Alien Tort Act, 28 U.S.C. § 1350 (1988), enacted in 1789 but rarely invoked since then, validly creates federal court jurisdiction for suits alleging torts committed anywhere in the world against aliens in violation of the law of nations.”).Google Scholar

98 See Presbyterian Church of Sudan v. Talisman Energy, 244 F. Supp. 2d 289, 304 (S.D.N.Y. 2003) (“Filartiga proved to be a watershed opinion, catapulting a largely overlooked statute into the limelight as a means of vindicating rights under international law. Later decisions by both the Second Circuit and other courts have upheld and expanded the reasoning of the Filartiga court. See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000).”).Google Scholar

99 See Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004) (“Whereas Justice SCALIA sees these developments as sufficient to close the door to further independent judicial recognition of actionable international norms, other considerations persuade us that the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today.”).Google Scholar

100 In re South African Apartheid Litig., 346 F. Supp. 2d 538, 547 (S.D.N.Y. 2003).Google Scholar

101 See id. (referencing Sosa at 723, 729).Google Scholar

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103 See Kaur, Mini, Global Warming Litigation Under the Alien Tort Claims Act: What Sosa v. Alvarez-Machain and its Progeny Mean for Indigenous Artic Communities, 13 Wash. & Lee J. Civil Rts. & Soc. Just. 155, 171 (2006) (“In deciding Sosa, the Supreme Court left many questions regarding the interpretation of ATCA unanswered. Subsequent lower court decisions have not filled the gaps that Sosa left in the ATCA analytical framework. In particular, two post-Sosa district court cases, In re South African Apartheid Litigation and Presbyterian Church of Sudan v. Talisman Energy, both suggest that Sosa did not clarify the scope of claims that properly allow for jurisdiction under the ATCA.”).Google Scholar

104 See In re South African Apartheid Litig., 346 F. Supp. 2d 538, 547 (S.D.N.Y. 2003) (referencing Sosa, 124 S.Ct. at 2761–62).Google Scholar

105 Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).Google Scholar

106 See In re South African Apartheid Litig., 346 F. Supp. 2d 538, 547 (S.D.N.Y. 2003) (referencing Sosa, 124 S.Ct. at 2762).Google Scholar

107 Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004).Google Scholar

108 See In re South African Apartheid Litig., 346 F. Supp. 2d 538, 548 (S.D.N.Y. 2003) (referencing Sosa, 542 U.S. at 727, 733 n.21).Google Scholar

109 See id. at 548 (referencing Sosa, 542 U.S. at 728).Google Scholar

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111 See id. at 549 (referencing Sosa, 542 U.S. at 725).Google Scholar

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113 See id. (“Plaintiffs point to the International Criminal Tribunals for the former Yugoslavia, ICTY STAT. art. 7(1), and Rwanda, ICTR STAT. art 6(1)…”).Google Scholar

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116 See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003) (alleging the defendant collaborated in torture, enslavement, war crimes, and genocide effectuated by the Sudanese government).Google Scholar

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119 See Hufbauer, Gary Clyde & Mitrokostas, Nicholas K., Awakening Monster: The Alien Tort Statute of 1789 (2003) (providing an analysis of the evolving ATS jurisprudence, the scope of ATS litigation, the collateral damage from ATS suits, and a description of ATS-related judicial imperialism).Google Scholar

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122 Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254 (2d Cir. 2007).Google Scholar

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125 See Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 259–60 (2d Cir. 2007) (per curiam) (including Section II, which affirms the dismissal of the complaints insofar as they seek to assert jurisdiction under the Torture Victim Protection Act and 28 U.S.C. § 1332(a)(3)).Google Scholar

126 See id. at 259 (“Later that month, Penuell Mpapa Maduna, who was then the Minister of Justice and Constitutional Development for South Africa, submitted an ex parte declaration to the district court, stating that the South African government regarded these proceedings as interfering ‘with a foreign sovereign's efforts to address matters in which it has the predominant interest’ and asking that the proceedings be dismissed.”).Google Scholar

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128 See id. (“The State Department responded by submitting a ‘Statement of Interest’ asserting that ‘continued adjudication of the above-referenced matters risks potentially serious adverse consequences for significant interests of the United States.'”).Google Scholar

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130 See id. at 260–61 (“We therefore decline to determine whether the plaintiffs have adequately pled a violation of international law sufficient to avail themselves of jurisdiction under the ATCA and remand to the district court to allow it to address the pleadings after amendment as may be permitted has occurred.”).Google Scholar

131 Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 260–61 (2d Cir. 2007) (per curiam).Google Scholar

132 Id. at 261.Google Scholar

133 See id. at 261–62 (referencing Justice Breyer's Sosa concurrence in which he suggested 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 sovereign rights of other nations by limiting the reach of its laws and their enforcement.”).Google Scholar

134 See id. at 262 (“In dismissing the plaintiffs’ complaints below, the district court explicitly refrained from addressing the defendants’ arguments that the ATCA claim presented a non-justisciable political question.”).Google Scholar

135 See id. at 263–64 (“At this stage in the litigation, we express no view as to what level of deference to their views is appropriate in this particular case. Instead, we remand to the district court so that it may carefully consider whether any of these doctrines require dismissal.”).Google Scholar

136 See id. at 264 (stating in part “[w]e vacate the district court's dismissal of the plaintiffs’ ATCA claims, as well as the district court's denial of the Digwamaje and Ntsebeza Plaintiffs’ motions to amend and REMAND for further proceedings consistent with this opinion.”).Google Scholar

137 Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 264 (2d Cir. 2007) (Katzmann, J., concurring in part); See Georgene M. Vairo, Human Rights Violations, Nat'l L. J., Feb. 18, 2008, at 20 (“The Sosa decision quite plainly separates the two questions: First, the court must determine whether there is jurisdiction. Assuming this threshold is met, then, the court must determine whether a common law cause of action ought to be created to provide a remedy. At this point, it is appropriate for the court to limit its discretion.”).Google Scholar

138 Id. Google Scholar

139 Id. at 266.Google Scholar

140 See id. at 268 (referencing Sosa, 542 U.S. at 732–33).Google Scholar

141 See id. (perhaps referencing judicial economy concerns).Google Scholar

142 See id. (referencing In re South African Apartheid Litig., 346 F. Supp. 2d at 549); See Georgene M. Vairo, Human Rights Violations, Nat'l L. J., Feb. 18, 2008, at 20 (“Katzmann agreed that the district court was correct to look to international law as the source of the cause of action, but disagreed with its conclusion.”).Google Scholar

143 See Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 277 (2d Cir. 2007) (Katzmann, J., concurring in part) (citing Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d. Cir. 2003)).Google Scholar

144 See id. at 269 (citing Flores v. S. Peru Copper Corp., 414 F.3d 233, 248 (2d. Cir. 2003)).Google Scholar

145 Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 278 (2d Cir. 2007) (Hall, J., concurring in part).Google Scholar

146 See id. (specifically advocating for the adoption of the following test: “For harm resulting to a third person from the tortuous conduct of another, one is subject to liability if he …(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.”).Google Scholar

147 See id. (citing Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995)).Google Scholar

148 See Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002), reh'g en banc granted, 395 F.3d 978 (9th Cir. 2003), vacated, 403 F.3d 708 (9th Cir. 2005).Google Scholar

149 See Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 287 (2d Cir. 2007) (Hall, J., concurring in part) (citing Oppenheim, 1 International law 44–46 (8th ed. 1955)).Google Scholar

150 In re South African Apartheid Litig., 346 F. Supp. 2d 538, 554 (S.D.N.Y. 2003).Google Scholar

151 Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 289 (2d Cir. 2007) (Hall, J., concurring in part).Google Scholar

152 Id. Google Scholar

153 See id. (referencing Doe I v. Unocal Corp., 395 F.3d 932, 967 (9th Cir. 2002)).Google Scholar

154 See Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 293 (2d Cir. 2007) (Korman, J., dissenting).Google Scholar

155 Id. at 295.Google Scholar

156 Id. Google Scholar

157 Id. at 292.Google Scholar

158 Id. at 298–99.Google Scholar

159 Id. Google Scholar

160 See Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 309 (2d Cir. 2007) (Korman, J., dissenting) (distinguishing his conclusions from those of Judge Katzmann).Google Scholar

161 See id. at 310 (“Since subject matter jurisdiction under the ATCA depends on whether the defendants have violated an international 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 goes to the issue of subject matter jurisdiction.”).Google Scholar

162 See id. at 319–26 (discussing the aiding and abetting liability of private parties and the liability of corporations).Google Scholar

163 See id. at 321.Google Scholar

164 Id. Google Scholar

165 Id. at 323.Google Scholar

166 Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 322–23 (2d Cir. 2007) (Korman, J., dissenting).Google Scholar

167 Id. at 323.Google Scholar

168 Id. at 325–26; Cf. In re Agent Orange Product Liability Litig. 373 F. Supp. 2d 7, 53–54 (E.D.N.Y. 2005) (“The liability of private actors, as aiders and abettors, for violations of international law was understood at the time the ATS was enacted. In a 1795 opinion issued by Attorney General Bradford specifically states that individuals would be liable under the ATS for ‘committing, aiding, or abetting’ violations of the laws of war. Breach of Neutrality, 1 Op. Att'y Gen. 57, 59 (1795).”).Google Scholar

169 Id. at 326.Google Scholar

170 See id. at 333 (“Nevertheless, I concur in section II.B of his opinion that articulates the customary international law standard for aiding-and-abetting based on the Rome Statute.”).Google Scholar

171 Id. Google Scholar

172 See Doe I v. Unocal Corp., 395 F.3d 932, 948 (9th Cir. 2002), reh'g en banc granted, 395 F.3d 978 (9th Cir. 2003), vacated, 403 F.3d 708 (9th Cir. 2005) (stating that the plaintiffs might be able to plead aiding and abetting liability under § 1350).Google Scholar

173 See, e.g., Binda Preet Sahni, Transnational Corporate Liability: Accountability for Human Injury 329–37 (2006) (providing an overview of the Unocal judgments and litigation).Google Scholar

174 Id. at 330.Google Scholar

175 Id. at 330.Google Scholar

176 See id. at 330–31 (describing the corporate structure of Unocal and the named parties).Google Scholar

177 Doe I v. Unocal Corp., 395 F.3d 932, 948 (9th Cir. 2002), reh'g en banc granted, 395 F.3d 978 (9th Cir. 2003), vacated, 403 F.3d 708 (9th Cir. 2005).Google Scholar

178 See, e.g., Gwynne Skinner, supra note 114, at 349–50.Google Scholar

179 Id. at 349.Google Scholar

180 See Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633, 670 (S.D.N.Y. 2006) (“While issues of knowledge and intent are exquisitely fact intensive inquiries, and not typically appropriate for resolution on summary judgment, it is nonetheless incumbent on a plaintiff to point to evidence from which a reasonable juror could infer those states of mind. The plaintiffs have pointed to no such evidence, circumstantial or otherwise. Talisman is entitled to summary judgment on the claim that Talisman aided and abetted genocide.”).Google Scholar

181 See id. at 655 (“As described above, they contend that Talisman joined a conspiracy to commit a crime against humanity, specifically, a widespread and systematic attack on a civilian population to displace it forcibly.”).Google Scholar

182 Id. at 667.Google Scholar

183 Id. at 666.Google Scholar

184 Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457, 463–64 (S.D.N.Y. 2006).Google Scholar

185 Id. at 468.Google Scholar

186 Id. at 463–64.Google Scholar

187 Id. Google Scholar

188 See Almog v. Arab Bank, 471 F. Supp. 2d 257, 285 (E.D.N.Y. 2007) (discussing the South African apartheid litigation and noting that the Executive Branch has not protested the Arab Bank lawsuit).Google Scholar

189 Id. at 259–65.Google Scholar

190 Id. at 286–87.Google Scholar

191 Id. at 263–64.Google Scholar

192 Vietnam Ass'n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d Cir. 2008).Google Scholar

193 In re Agent Orange Product Liability Litig., 373 F. Supp. 2d 7, 32 (E.D.N.Y. 2005).Google Scholar

194 Id. at 52–59.Google Scholar

195 See Curtis Bradley, Jack Goldsmith, & Moore, David, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 869, 927 (2007) (analyzing the Supreme Court's 2004 decision against the backdrop of the post-Erie federal common law and stating that “[w]hile the concept of aiding and abetting liability is recognized as a general matter in international criminal tribunals, it is applied in those tribunals only to natural persons, not corporations.”).Google Scholar

196 See In re Agent Orange Product Liability Litig., 373 F. Supp. 2d 7, 52–53 (E.D.N.Y. 2005) (“See, Kadic v. Karadzic, 70 F.3d [232,] 239 [(2d Cir. 1995)] (the reach of international law is not limited to []state actors); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d [289,] 321 [(S.D.N.Y. 2003)] (holding that “ATCA suits [may] proceed based on theories of conspiracy and aiding and abetting”); Abdullahi v. Pfizer, Inc., 77 Fed.Appx. 48 (2d Cir. 2003); Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 WL 319887 (S.D.N.Y. Feb. 28, 2002) (finding that private corporations could be held liable for “joint action” with state actors); Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 127–28 (E.D.N.Y. 2000) (holding that subject matter jurisdiction existed under the ATCA, where plaintiffs alleged a French bank had been complicit with the Nazi regime); Iwanowa [v. Ford Motor Co.], 67 F. Supp. 2d [424,] 445 [(D.N.J. 1999)] (“No logical reason exists for allowing private individuals and corporations to escape liability for universally condemned violations of international law merely because they were not acting under color of law.”); see also Doe v. Unocal, [395 F.3d 932, 975–78] (9th Cir. 2002)[,] vacated [by] 395 F.3d 978 [(9th Cir. 2003)]; Burnett v. Al Bar[aka] Investment & Development Corp., 292 F. Supp. 2d 9 (D.D.C. 2003); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1355 (N.D. Ga. 2002) (“United States courts have recognized that principles of accomplice liability apply under the ATCA to those who assist others in the commission of torts that violate customary international law.” (citing cases)); Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1090–95 (S.D. Fla. 1997) (holding that subject matter jurisdiction existed in an ATCA action against a Bolivian corporation); Carmichael v. United Technologies Corp., 835 F.2d 109, 113–114 (5th Cir. [1988]) (assuming without deciding that ATCA confers jurisdiction over private parties who aid, abet or conspire in human rights violations). …”).Google Scholar

197 See id. at 53 (mentioning various corporate ATS cases such as Presbyterian Church of the Sudan, 244 F. Supp. 2d at 320–24, Burnett v. Al Baraka Investment, 274 F. Supp. 2d 86, 100 (D.D.C. 2003), Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229, 1247 (N.D. Cal. 2004), and Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 128 (E.D.N.Y. 2000), along with some non-corporate ATS cases like Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1355–1356 (N.D.Ga. 2002) and Hilao v. Estate of Marcos, 103 F.3d 767, 776 (9th Cir. 1996).Google Scholar

198 Id. Google Scholar

199 See id. at 123 (“Defendants have argued that ‘civil aiding-and-abetting liability’ may not be imposed on corporate entities for violations of the law of war and that, in any event, prudential considerations should preclude adjudication of Plaintiffs’ claims. Because Plaintiffs’ claims fail to assert a violation of international law norms that are universally accepted and as specific as the paradigmatic norms identified in Sosa, thereby resulting in a failure to establish a cognizable cause of action that gives rise to jurisdiction under the ATS, we need not address these secondary arguments.”).Google Scholar

200 Id. Google Scholar

201 Vietnam Ass'n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 123 n.5 (2d Cir. 2008).Google Scholar

202 See Mark Drumbl, Atrocity, Punishment, and International Law 23 (2007) (“History teaches that there is something novel in pursuing justice – instead of vengeance – in the aftermath of atrocity. This is a new endeavor. It is bold, fresh, exciting, at times anxious, and certainly lacking in experience. International criminal lawyers have stepped into this experiential void.”).Google Scholar

203 Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 270 (2d Cir. 2007) (Katzmann, J., concurring in part).Google Scholar

204 See, e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633, 666 (S.D.N.Y. 2006) (“The ICTY, ICTR and ICC each impose liability on individual defendants for aiding and abetting the commission of a crime. ICTY Statute at 7(1); ICTR at 6(1); Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17, 1998, art. 25(3), U.N. Doc. A/ CONF.183/9 (1998) (“Rome Statute”).”).Google Scholar

205 Article 15(b)(3) provides a person can be held criminally responsible for aiding and abetting the commission of a crime.Google Scholar

206 Article 6 for the Statute for the Special Court of Sierra Leona allows for any “person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime” to be held liable.Google Scholar

207 See Wells, Celia & Elias, Juanita, Corporate Complicity in Rights Violations, in Non-State Actors and Human Rights 154 (ed. Philip Alston 2005) (citing to Article 25(1) of the Rome Statutes, which states that “The Court shall have jurisdiction over natural persons pursuant to this statute.”).Google Scholar

208 See Olah, Frank C., MNC Liability for International Human Rights Violations Under the Alien Tort Claims Act: A Review & Analysis of the Fundamental Jurisprudence and a Look at Aiding & Abetting Liability Under the Act, 25 Quinnipiac L. Rev. 751, 787–88 (2007) (mentioning the Unocal majority's treatment of this issue).Google Scholar

209 See id. (mentioning the Unocal majority's treatment of this issue) (citing Unocal, 395 F.3d at 949).Google Scholar

210 See Wells, Celia & Elias, Juanita, supra note 207, at 155 (“As people become more accustomed to conceiving of collective entities as wrongdoers, the conceptual gulf may become much less wide.”).Google Scholar

211 See Skinner, Gwynne, supra note 114, at 324 (“Attempts to hold corporations liable for human rights violations are the most recent examples of the degree to which the Nuremberg trials have significantly affected human rights litigation in the United States under the Alien Tort Statute. It is also the most controversial because corporations were not prosecuted at Nuremberg, and there remains the unresolved question about whether corporations are, or should be, bound by international human rights norms.”).Google Scholar

212 For a brief discussion on the evolution of aiding and abetting liability in international law, see Herz, Richard, Text of Remarks: Corporate Alien Tort Liability and the Legacy of Nuremberg, 10 Gonzaga J. Int'l L. 76 (2006–2007) (“In international human rights law, this standard comes directly from Nuremberg. … These principles of aiding and abetting liability were directly incorporated into the jurisprudence of the International Criminal Tribunals for Rwanda and for the former Yugoslavia.”). To date, no international tribunal has held an organization or corporation accountable for aiding and abetting liability.Google Scholar

213 See Drumbl, Mark, ICTY Authenticates Genocide at Srebrenica and Convicts For Aiding and Abetting, 5 Melbourne J. Int'l Law 434, 437 (2004) (citing to Krstic Appeals Chamber, Case No. IT–38–33–A (19 April 2004) [7]).Google Scholar

214 See id. (providing a summary of Prosecutor v. Krstic (Appeals Chamber Judgment), Case No. IT–98–33–A (19 April 2004)).Google Scholar

215 International Criminal Law: Cases and Materials 43 (2nd ed. 2000) (citing paragraphs 178–237 from The Prosecutor v. Tadic, ICTY-94-1-AR72 (15 July 1999)).Google Scholar

216 Id. (citing at paragraph 43 from The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-T (6 Dec. 1999)).Google Scholar

217 See Diskin, Daniel, supra note 7, at 834–37 (“Dating back to the aftermath of World War II, corporations that aid and abet violations of modern international law have been found criminally culpable.”).Google Scholar

218 See id. at 824–25 (“Control Council Law No. 10, implementing the 1946 agreement, included a provision expressly providing for aiding and abetting liability. The statute provides: ‘[A] person is deemed to have committed a crime if he was (a) a principal; (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission.'”).Google Scholar

219 Id. at 825 (referencing United States of America v. Friedrich Flick in 1950 before the Nuremberg Military Tribunals under Control Council Law No.10).Google Scholar

220 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, Art. III, 78 U.N.T.S. 277, 280.Google Scholar

221 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR (No 51), at 197, U.N. Doc. A/39/51 (1984), Arts. 1, 4.Google Scholar

222 Petition for a Writ of Certiorari, American Isuzu Motors, Inc. v. Ntsebeza, No. 07–919, 2008 WL 140514 (Jan. 10, 2008).Google Scholar

224 Brief of the National Foreign Trade Council, USA Engage, U.S. Council for International Business, Organization for International Investment, and National Association of Manufacturers for Petitioners, American Isuzu Motors v. Ntsebeza, No. 07–919 (Feb. 11, 2008), 2008 WL 437020.Google Scholar

225 Brief of the United States as Amicus Curiae in Support of Petitioners, American Isuzu Motors v. Ntsebeza, No. 07–919 (Feb. 11, 2008), 2008 WL 408389, *22.Google Scholar

226 Goldhaber, Michael, The Death of Alien Tort, Corporate Lawyer, Oct. 2006, at 117.Google Scholar

227 Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004).Google Scholar

228 Id. Google Scholar

229 Id. Google Scholar

230 Id. at 724–25.Google Scholar

231 Id. at 732.Google Scholar

232 Id. at 737.Google Scholar

233 Curtis Bradley, Jack Goldsmith, & Moore, David, supra note 195, at 896.Google Scholar

234 Sosa v. Alvarez-Machain, 542 U.S. 692, 744 (2004).Google Scholar

235 Id. Google Scholar

236 See id. at 741–42 (citing Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640–41 (1981)).Google Scholar

237 Id. at 744.Google Scholar

238 Id. at 747.Google Scholar

239 See id. at 750 (referring to Justice Souter's opinion).Google Scholar

240 See Sosa v. Alvarez-Machain, 542 U.S. 692, 751–60 (2004) (focusing not on the case's ATS aspect, but instead on the “last significant act or omission rule,” arguing that “I would apply that rule here to hold that Alvarez's tort claim for false arrest under the FTCA is barred under the foreign-country exception.”).Google Scholar

241 Id. at 761.Google Scholar

242 See id. at 761–63 (“Today international law will sometimes similarly reflect not only substantive agreement as to certain universally condemned behavior but also procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior.”).Google Scholar

243 Donovan, Donald Francis & Roberts, Anthea, The Emerging Recognition of Universal Civil Jurisdiction, 100 Am. J. Int'l L. 142, 148 (2006).Google Scholar

244 Id. Google Scholar

245 Sosa v. Alvarez-Machain, 542 U.S. 692, 732–33 (2004).Google Scholar

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247 Mulugeta, Samson, supra note 79, at A15; See Apartheid Reparations the Govt's Problem: Tutu, S. Afr. Press Ass'n, June 28, 2002, 2002 WLNR 3378078 (“Compensating apartheid victims was the government's problem – not that of the Truth of Reconciliation Commission, former TRC chairman Archbishop Desmond Tutu said on Friday.”).Google Scholar

248 See Chapman, Audrey R. & Hugo Van Der Merwe, Conclusion, in Truth and Reconciliation in South Africa: Did the TRC Deliver? 286 (2008) (discussing how the South African government largely has failed to implement the TRC recommendations on reparations).Google Scholar

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250 Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882, 2005 WL 2082846, *8 (S.D.N.Y. Aug. 30, 2005).Google Scholar

251 See id. (“Talisman is therefore at pains to identify United States foreign policies towards Sudan with which this action interferes, other than to speculate more generally about its effects on efforts to promote peace in Sudan.”).Google Scholar

252 See id. (“This action, evidently, did not hinder the conclusion of the Peace Agreement.”).Google Scholar

253 See Kaur, Mini, supra note 103, at 177 (“Although Apartheid Litigation and Talisman were issued by the same district court and addressed similar alleged offenses, the court reached opposite decisions on the issue of ATCA jurisdiction. …).Google Scholar

254 See Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882, 2005 WL 2082846, *8 (S.D.N.Y. Aug. 30, 2005) (“This action, evidently, did not hinder the conclusion of the Peace Agreement.”).Google Scholar

255 See Almog v. Arab Bank, 471 F. Supp. 2d 257, 285 (E.D.N.Y. 2007) (noting that the Executive Branch, specifically the Department of Justice, did not protest the Arab Bank lawsuit).Google Scholar

256 Id. Google Scholar

257 Id. at 288.Google Scholar

258 Whiteman v. Dorotheum GMBH & Co. KG, 431 F.3d 57 (2005).Google Scholar

259 Id. at 58–59.Google Scholar

260 Id. at 59–60.Google Scholar

261 Id. at 83.Google Scholar

262 Id. Google Scholar

263 Id. at 83 n.28.Google Scholar

264 Opposition to Petition for Writ of Certiorari, American Isuzu Motors, Inc. v. Ntsebeza, No. 07–919, (Mar. 27, 2008), 2008 WL 877891.Google Scholar

265 Id. at *11–17.Google Scholar

266 Id. at *19–31.Google Scholar

267 Id. at *27–31.Google Scholar

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269 Sosa v. Alvarez-Machain, 542 U.S. 692, 725, 732 (2004).Google Scholar

270 Presbyterian Church of Sudan v. Talisman Energy Inc., 244 F. Supp. 2d 289, 322 (S.D.N.Y. 2003).Google Scholar

271 See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994) (involving the 1934 Securities Act and a futile attempt to imply that aiding and abetting liability in the context of a complex regulatory scheme); cf. Petition for a Writ of Certiorari, American Isuzu Motors, Inc. v. Ntsebeza, No. 07–919, 2008 WL 140514, * 29 (Jan. 10, 2008) (“Even as a matter of domestic law, where aiding and abetting is ‘an ancient criminal law doctrine,’ its application in civil law ‘has been at best uncertain’ and ‘there is no general presumption that the plaintiff may also sue aiders and abettors.”).Google Scholar

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273 Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 184 (1994).Google Scholar

274 See Opposition to Petition for Writ of Certiorari, American Isuzu Motors, Inc. v. Ntsebeza, No. 07–919, (Mar. 27, 2008), 2008 WL 877891, *23 (noting that “the drafters of the ATS expected aiding and abetting liability to attach, as the early history of the statute confirms.”).Google Scholar

275 Brief of the Chamber of Commerce of the United States of America as Amicus Curiae in Support of Petitioners, American Isuzu Motors, Inc. v. Ntsebeza, No. 07–919, (Feb. 11, 2008), 2008 WL 437022, *14.Google Scholar

276 Weinstein, Martin, The World of International Compliance: What Transactional Lawyers Need to Know to Perform Ethically and Responsibly, 29 Hous. J. Int'l L. 311, 326 (2007).Google Scholar

277 Id. Google Scholar

278 Brief Amicus Curiae of Hayward D. Fisk, William Graham, Ernest T. Patrikis, Clifford B. Storms and Atlantic Legal Foundation in Support of Petitioners, American Isuzu Motors, Inc. v. Ntsebeza, No. 07–919 (Feb. 11, 2008), 2008 WL 437022, *14.Google Scholar

279 See Chapman, Audrey R. & Hugo Van Der Merwe, supra note 248, at 286 (“The challenge of reconciliation in South Africa is clearly not reducible to a process of reconciling victim and their perpetrators. Reconciliation in a context of hundreds of years of exploitation, dehumanization, and continued inequality and deprivation is a serious challenge that can not be magically dissolved through public rituals. …”).Google Scholar