Part 1 of this post introduced a set of cases against Cisco Systems, which has been sued for being complicit in the design and implementation of China’s Golden Shield surveillance network. The Northern District of California dismissed one such suit on the grounds that it did not overcome the presumption against extraterritoriality first identified in Kiobel. At issue in plaintiffs’ motion for reconsideration in Doe v. Cisco are a number of open questions being considered by courts across the nation in Alien Tort Statute (ATS) litigation involving corporate defendants accused of being complicit with repressive regimes. These include:
The Amenability of Corporations (vice Natural Persons) to Suit under the Alien Tort Statute. Corporations have been sued under the ATS ever since the Second Circuit’s 1995 opinion in Kadić v. Karadžić confirmed that state action is not an essential element for some international torts. This ruling laid the groundwork for victims of human rights violations to sue corporations under the ATS, either for the defendants’ own depredations or for being complicit in the human rights violations of the abusive governments with which they do business. In Doe v. Unocal, for example, the Ninth Circuit in 2002 confirmed that Unocal could be liable for aiding and abetting violations of international law committed by the Burmese military in connection with the construction of a pipeline in Burma. (A 9th Circuit panel opinion on aiding and abetting liability was vacated when the 9th Circuit agreed to hear the case en banc; the case ultimately settled, mooting the appeal).
In 2010, however, the Second Circuit appeared to change course in Kiobel v. Royal Dutch Petroleum Co. Noting that no corporations were criminally prosecuted following World War II, a panel of judges ruled that corporate liability was not part of customary international law. Purporting to follow the Supreme Court’s guidance on customary international law in Sosa v. Alvarez-Machain, the court concluded that the ATS did not confer jurisdiction over corporations. Every other Circuit to consider the issue, however, has rejected this line of reasoning. In Flomo v. Firestone National Rubber Co., for example, 23 Liberian children sued the company for tolerating the use of child labor on its rubber plantations. In a detailed opinion drawing upon precedent from the post-WWII period and beyond, the Seventh Circuit confirmed that corporations could be sued under the ATS, but ruled that the alleged conduct did not violate international law.
Given the circuit split, the issue of corporate liability under the ATS was ripe for certiorari, and Kiobel was to be the vehicle to resolve this question. However, after oral argument, and in a surprise move, the Supreme Court requested supplemental briefing and a second round of argumentation on the question of the extent to which the ATS applies extraterritorially. It was this issue that ultimately disposed of the case: the Court ruled that ATS cases must in fact overcome a presumption of extraterritoriality. (In another case originally taken up with Kiobel, Mohamad v. Palestinian Authority (2012), the Supreme Court determined that only natural persons may be sued under the Torture Victim Protection Act given the strict wording of that treaty.) In Kiobel, the Court further held that a company’s “mere corporate presence” (e.g., being listed on the NYSE or having a public relations office in New York City) was insufficient to overcome the presumption against extraterritoriality.
Most commentators and lower courts have concluded that by sidelining the question of corporate liability, the Supreme Court in Kiobel clearly contemplated that corporations could in fact be sued under the ATS (and tacitly overturned lower court decisions to the contrary). (See Balintulo v. Ford Motor Company, a case involving corporate complicity in the system of apartheid, for persuasive reasoning in this regard.) Nonetheless, defendants, including Cisco, continue to advance this argument in the hope of escaping judicial scrutiny. In its recent ruling in Doe v. Nestle, however, the Ninth Circuit jettisoned this argument, rendering it no longer at Cisco’s disposal in the Northern District of California.
Whether the Claims Sufficiently “Touch and Concern” the United States. The extraterritoriality issue, by contrast, remains a live controversy. In its motion to dismiss, Cisco argued that the Supreme Court’s holding in Kiobel demands that the Doe suit be dismissed for lack of jurisdiction. Cisco reasoned that because the harms in question (torture, abduction, etc.) occurred in China and Cisco sold the impugned internet hardware in China, plaintiffs’ claims cannot overcome the presumption against extraterritoriality. Plaintiffs in turn argued that much of the defendants’ assistance to the company (the actus reus of complicity liability) occurred locally — including the design, development, marketing, and servicing of the products sold — such that the plaintiffs’ claims do “touch and concern” the United States “with sufficient force to displace the presumption against extraterritorial application”—the standard articulated in Kiobel. By this account, it is of no matter that Cisco’s domestic conduct itself does not violate an international law norm (the position Justices Alito and Thomas would have adopted in Kiobel had they been able to garner a majority of votes).
An important recent precedent will be Al Shimari v. CACI (2014), in which the Fourth Circuit reversed the district court’s and determined that a case involving a U.S. private contractor that provided interrogators to Abu Ghraib prison in Iraq could proceed. (See our coverage here). The court noted that Kiobel requires a showing that the claims in question, rather than the tortious conduct, “touch and concern” the United States. This fact-intensive inquiry invites a consideration of all the circumstances underlying the claims, “including the parties’ identities and their relationship to the causes of action.” This test was deemed satisfied, because CACI was party to a contract with the Department of the Interior, the performance of which involved a significant degree of domestic conduct (including the review of interrogation reports). The court also noted that the case respects the underlying rationale behind the presumption against extraterritoriality: since the defendant is a U.S. company and the United States is on record opposing the use of torture in any context, the case does not present any of the potential foreign relations problems associated with suing foreign nationals in the United States.
The Actus Reus of Aiding and Abetting Liability under International Law. It is well-settled that the ATS recognizes aiding and abetting liability, although the precise contours of the doctrine remain subject to litigation. In general, courts will look to international law, as articulated by the international criminal tribunals, to define the elements of the operative forms of responsibility. (In Nestle, the Ninth Circuit confirmed that customary international law, as opposed to domestic law, governs forms of responsibility under the ATS.) The international criminal tribunals have established that an individual can be held criminally responsible as an accomplice if his or her assistance to the direct perpetrator had “a substantial effect” on the perpetration of a crime. This assistance need not, however, rise to the level of a “but for” contribution.
This international criminal law doctrine was relatively stable until an Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) abruptly announced in Prosecutor v. Perišić (2013) that it was also necessary to show that the accomplice “specifically directed” his or her assistance toward the commission of the crime. This ruling was tainted, however, because it was issued amidst allegations that one of the judges had succumbed to undue influence from great powers and attempted to bully his colleagues to rule a particular way. In a January 2014 ruling in the Nikola Sainović case, a differently-constituted Appeals Chamber — now presided over by a judge who had dissented in Perišić — rejected the reasoning in Perišić. In an erudite opinion that exhaustively analyzed relevant treaties, the case law dating back to the World War II period, comparative jurisprudence, and national penal codes, the Chamber came to the
compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law [and] unequivocally rejects the approach adopted in the Perišić Appeal Judgement.
Sainović thus aligned the ICTY jurisprudence with the Special Court for Sierra Leone’s 2013 ruling in the Charles Taylor case. In Prosecutor v. Popović (2015), another ICTY Appeals Chamber, composed of a different configuration of judges, confirmed Sainović, rendering “specific direction” all but a jurisprudential dead end within international criminal law.
The actus reus of complicity liability has generated litigation in the ATS context as well. In the Du Daobin case proceeding in Maryland, the district court determined that the plaintiffs had failed to plausibly allege that Cisco’s action had a “substantial effect” on the government’s international law violations, particularly given that the plaintiffs were already well-known dissidents who had been subject to persecution in ways that did not involve the Golden Shield. Similarly, in the Doe matter, the district court rather cursorily concluded that plaintiffs did not sufficiently allege that defendants’ conduct had a “substantial effect” on the commission of torture and other human rights abuses.
Although the district court got the law right on actus reus, the Ninth Circuit has since muddied the waters. In Nestle, the Ninth Circuit acknowledged that a number of international tribunals had adopted the “substantial effect” standard without its “specific direction” corollary, requiring plaintiffs to show that the assistance rendered by the putative accomplice “had a substantial effect on the crimes.” However, it declined to adopt a standard and remanded to the district court to allow the plaintiffs to amend their complaint in light of recent jurisprudence from the ICTY and the Special Court for Sierra Leone. Accordingly, on reconsideration, plaintiffs in Doe attempted to demonstrate that they had plead sufficient facts to demonstrate a causal link between the defendants’ conduct and the harm experienced, including the identification of sensitive information used to torture the plaintiffs and the integration of China’s Falun Gong database with the systems employed by its security forces.
The Mens Rea for Aiding and Abetting Liability under International Law. The international criminal tribunals have uniformly ruled that an accomplice can be convicted on a complicity theory so long as s/he aids the direct perpetrator with the knowledge that his or her conduct will assist in the commission of a crime. It is unnecessary for the prosecutor to show that the accomplice knew precisely what crime was intended. Nor is it necessary for the prosecutor to show that the accomplice shared the mental state of the direct perpetrator or specifically intended that the crime be committed; indeed, the accomplice may sincerely hope that the crime is not in fact committed. Some U.S. courts and circuits to consider this mens rea question in ATS litigation have followed international criminal law in this regard.
Notwithstanding this jurisprudential standard, however, the Statute of the International Criminal Court (ICC) seems to raise the mens rea standard when it provides at Article 25:
a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: … (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission …
Later, however, it defines “intent” to include situations in which an individual acts with substantial certainty that some consequence will come about. Article 30 (defining the operative mental element) reads:
For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
Citing the treaty, defendants in Alien Tort Statute cases have argued that plaintiffs must meet this higher standard of purpose, which some parties (including Cisco in Doe) have conflated with the concept of specific intent. (But see this analysis, by James Stewart who has extensively studied complicity, suggesting that this is a misreading of the ICC Statute altogether). Thus, other lower courts and circuits have adopted a purpose standard, giving greater weight to the text of the ICC Statute (as a reflection of the authoritative views of the international community) than to customary international law as reflected in the jurisprudence of the ad hoc tribunals—even though the treaty has not been ratified by the United States. So far, the Ninth Circuit has dodged this doctrinal question. Although the debate was squarely presented in Nestle, the court determined that the plaintiffs’ allegations satisfied both mens rea standards and so were sufficient to survive the pleading stage. In Doe v. Unocal, a panel of the 9th Circuit did conclude that the standard for aiding and abetting under the ATS is “knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime.” The opinion was vacated when en banc review was granted and that case settled, although it does suggest which direction the 9th Circuit might lean…
In Doe v. Cisco, the company concedes that it did act with the purpose of assisting the Chinese government in conducting surveillance and in enforcing the law (the practices of the Falun Gong are illegal); however, defendants argue that plaintiffs have alleged no facts tending to show that Cisco acted with either the knowledge, or the purpose, that their actions would facilitate the Chinese authorities’ alleged acts of torture or other mistreatment. The district court in the Doe v. Cisco applied the more “lenient” knowledge standard, but nonetheless ruled that Plaintiffs did not sufficiently allege that the defendants knew that
their product would be used beyond its security purpose—the apprehension of individuals suspected of violating Chinese law through identifying, locating, profiling, tracking, monitoring, investigating, and surveillance of such individuals—to commit the alleged violations of torture and forced conversion.
On motion for reconsideration, plaintiffs have argued that they adequately alleged that defendants had first-hand knowledge of the ultimate use to which their products would be put but also that defendants acted with the purpose of facilitating the harm to the plaintiffs in order to profit from the China contract and enhance their share of in the Chinese technology market.
The Doe plaintiffs’ motion will be resolved without oral argument. Stay tuned!
(Cross posted at Stanford Law School’s Center for Internet & Society where I am an Affiliated Scholar).