Federal Statutes - Alien Tort Statute - Second Circuit Holds That Human Rights Plaintiffs May Plead Aiding and Abetting Theory of Liability. - Khulumani V. Barclay National Bank Ltd
Some of the most interesting and unsettled questions in human rights litigation after Sosa v. Alvarez-Machain (1) concern the status of secondary liability theories, prominently including aiding and abetting. Although several courts have held that aiding and abetting liability is available in Alien Tort Statute (2) (ATS) cases, there is continuing debate over whether it should be available at all, how it should be defined, and what sources of law courts should consult for answers to these questions. (3) Recently, in Khulumani v. Barclay National Bank Ltd., (4) a Second Circuit panel held that ATS plaintiffs "may plead a theory of aiding and abetting liability," (5) but split on whether courts should look to customary international law or federal common law to determine the availability and scope of this liability theory. Although the three separate opinions in Khulumani indicate the difficulty of the issue, the best reading of the key U.S. cases and of customary international law is that courts should look primarily to federal common law to decide questions about aiding and abetting liability in ATS cases.
Three groups of South African plaintiffs brought ATS claims "against approximately fifty corporate defendants and hundreds of 'corporate Does'" (6) for "active ... collaborat[ion]" (7) with the former South African government in maintaining apartheid. (8) The actions were consolidated in the Southern District of New York, (9) which dismissed the cases, holding--contrary to most courts (10)--that aiding and abetting liability is not available under the ATS. (11)
The Second Circuit vacated the dismissal of the ATS claims. (12) However, the majority could not agree on a rationale: Judge Katzmann looked to international law as the basis for aiding and abetting liability under the ATS, whereas Judge Hall favored federal common law. After a brief per curiam, both judges wrote detailed concurrences.
Judge Katzmann, (13) arguing that courts should look first to international law, (14) relied on language from Sosa suggesting that the scope of liability under the ATS is "defined by the law of nations." (15) He also pointed to Sosa's twentieth footnote, which tells courts to look to international law to determine whether each particular norm extends liability to private actors. (16) Judge Katzmann argued that individual liability for aiding and abetting human rights violations was settled as a matter of customary international law. In support of this position, he drew on sources ranging from post--World War II tribunals to post-9/11 regulations establishing military commissions for accused terrorists. (17) Judge Katzmann looked to the Rome Statute of the International Criminal Court (18) for the mens rea element of aiding and abetting: "[A] defendant is guilty of aiding and abetting ... only if he does so '[f]or the purpose of facilitating the commission of ... a crime.'" (19)
Judge Katzmann next addressed a counterargument based on Central Bank of Denver v. First Interstate Bank of Denver, (20) in which the Supreme Court held that "there is no general presumption" of civil aiding and abetting liability. (21) This counterargument interpreted Central Bank to mean that civil aiding and abetting liability can be imposed only through a deliberate choice made by Congress. (22) Judge Katzmann, adopting the reasoning of Professor William R. Casto, (23) argued that Central Bank's reliance on congressional intent was inapplicable to ATS cases because "[u]nder the [ATS], the relevant norm is provided not by domestic statute but by the law of nations." (24) Consequently, the principle of Central Bank--that courts should look to the source of the underlying norm to decide whether aiding and abetting is available--meant that the court should look to international law.
Judge Hall concurred, agreeing that there was aiding and abetting liability under the ATS, but contended that it should be drawn from U. …