[Editor’s Note: This article is part of a Just Security series on the consolidated cases of Nestlé USA, Inc. v. Doe I and Cargill Inc. v. Doe I, which was argued before the Supreme Court on Dec. 1. The introduction to the series and all other articles can be found here.]
The Supreme Court will face difficult questions about the reach of the Alien Tort Statute (ATS) as it hears oral argument in Nestlé USA, Inc. v. Doe I on Dec. 1st. Fortunately, it ought to easily dispense with at least one issue: whether causes of action premised on secondary liability – here taking the form of alleged financial and logistical assistance by Nestlé, USA and Cargill (petitioners) to the cocoa farms that enslaved the respondents – are available under the ATS. While this question was not presented by the petitioners, the Acting Solicitor General has asked the Court to rule that aiding-and-abetting liability is not cognizable under the ATS. Though the petitioners in this case are corporations, the Acting Solicitor General’s argument would deny secondary liability under the ATS against any class of defendant, corporate or individual.
Working together with pro bono counsel from Withers LLP, our brief on behalf of International Law Scholars, Former Diplomats, and Practitioners urges the Court to decline the Acting Solicitor General’s invitation to consider aiding-and-abetting liability under the ATS, because the issue goes beyond the questions presented in this case. If the Court nonetheless chooses to review whether aiding-and-abetting claims may proceed under the ATS, our brief argues (1) that secondary liability is established under international law and lies well within the scope of the ATS, and (2) that prudential considerations weigh in favor of upholding this existing cause of action.
The Court Should Decline to Consider Aiding-and-abetting Liability Under the ATS
We first argue that the Court should not consider whether aiding-and-abetting conduct is actionable under the ATS. This issue was not put before the Court in the petitions of Nestlé or Cargill. Indeed, both petitioners proceed under the assumption that secondary liability is cognizable under the ATS (See the Nestlé merits brief at 22; Cargill merits brief at 33). Instead, the United States government (unsuccessfully) requested the Court to take up the issue as a question presented at the certiorari stage and argued at the merits stage that the Court should consider the question of aiding-and-abetting liability antecedent to the questions raised by petitioners.
Reaching beyond the questions presented would contravene the limiting principle set out in Supreme Court Rule 14.1 to only consider “the questions set out in the petition, or included therein.” (See, e.g., Lucia v. SEC, where the Court declined to consider an issue omitted as a question presented despite the Solicitor General’s urging at the certiorari stage). Resolving whether aiding-and-abetting liability falls under the ATS is not essential to either of the questions presented: whether the conduct alleged in this case overcomes the presumption against extraterritoriality and whether the ATS allows for liability against domestic corporations. Furthermore, the Court does not have sufficient briefing to address an issue as significant as whether secondary liability falls within the scope of the ATS. (See Norfolk S. Ry. Co. v. Sorrell, noting the Court’s preference “not to address [a significant issue] when it has not been fully presented.) Secondary liability is currently a vital cause of action under the ATS, and every circuit that has considered the issue has upheld secondary liability under the ATS, as the government acknowledges (at 23). As neither petitioners nor respondents have briefed the topic, it would be reckless for the Court to stray beyond the questions presented and rule on such a consequential issue.
Secondary Liability is Cognizable Under the ATS
If the Supreme Court does choose to review secondary liability, we argue that it lies within the ambit of the ATS. The application of secondary liability is supported by the original purpose of the ATS and, as an entrenched norm of international law, satisfies the Supreme Court’s requirements for actionability.
As constitutional law scholars Anthony Bellia and Bradford Clark explain, the original intent of the ATS was to ensure the United States complied with its obligations under international law by providing foreign nationals with a federal forum to seek civil redress for violations of the laws of nations. Forms of secondary liability existed under federal common law at the time of the ATS’s passage in 1789 and were recognized in cases involving piracy, the foundational international delict. Additionally, the oft-cited Bradford Opinion, issued by Attorney General William Bradford in 1795, suggested the ATS offered remedy for those injured by U.S. slave traders who aided and abetted an illegal French attack on a settlement in Sierra Leone. In Nestlé, the Acting Solicitor General neglects to explain why Bradford, and his contemporaries at the First Congress, would not have applied the same logic to U.S. cocoa traders aiding and abetting illegal forced labor in Côte d’Ivoire.
Moreover, secondary liability meets the standards for actionability under the ATS set forth by recent Supreme Court decisions. The Court held in Sosa v. Alvarez-Machain, and reiterated in Jesner v. Arab Bank, PLC, that two factors determine whether a tort is actionable under the ATS. First, the plaintiff must allege a breach of a “specific, universal, and obligatory” norm under international law (Sosa step one). Second, allowing that cause of action to proceed must reflect a proper exercise of judicial discretion, given prudential concerns (Sosa step two). Both steps in this analysis support the conclusion that the Court should not disturb consistent circuit precedent by eliminating the availability of secondary liability claims under the ATS
To identify norms of international law for the purposes of Sosa step one, we look for evidence of secondary liability in the sources enumerated in the Statute of the International Court of Justice (ICJ) Article 38: customary international law, conventions and treaties, general principles of international law, and international jurisprudence. We find that States have consistently empowered international tribunals to adjudicate modes of secondary liability such as aiding and abetting, reflecting its status as a customary international law norm.
This practice dates back at least to Nuremberg Charter Article 6, which provided liability for “leaders, organisers, instigators, and accomplices.” Nazi leaders like Herman Goering and Nazi enablers like the gas manufacturers in the notorious Zyklon-B case were prosecuted in the postwar period for complicitous economic conduct during the war, such as supplying lethal gas to Nazi concentration camps. The drafters of the modern international criminal tribunals have carried this obligation forward. For example, the United Nations Security Council directed the International Criminal Tribunal for the Former Yugoslavia (ICTY) to prosecute anyone “who planned, instigated, ordered, committed or otherwise aided and abetted” the relevant crimes (Article 7).
International jurisprudence further affirms this obligation. In adjudicating complicity charges in Prosecutor v. Tadić, the ICTY looked to the Nuremberg jurisprudence as evidence of secondary liability’s parameters under customary international law (at ¶ 674). Other international tribunals, including the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the International Criminal Court, all provide for secondary liability as well, even when the facilitative conduct would otherwise be legal (See our brief at 15, 18). For example, the ICTY held in Prosecutor v. Blagojević & Jokić that “all of [Jokić’s] knowing assistance . . . once he knew of the murder operation is culpable as aiding and abetting,” even though the forms of assistance were not by themselves illegal. Slavery – particularly the enslavement of children – is a universally condemned international crime. It follows that forms of financial or logistical assistance in support of child slavery in the cocoa industry violate international law.
The custom of imposing secondary liability has solidified across a series of international criminal treaties, many of which the United States has ratified. In 1948, Article III of the Genocide Convention explicitly prohibited “complicity in genocide.” Conventions against torture, slavery, trafficking, corruption, and financing terrorism, among others, have followed over the years with their own secondary liability provisions. Furthermore, many of these treaties contain reparations provisions that allow for civil remedies. The United States has incorporated aspects of these treaties into the U.S. code, where they are enforced by 18 U.S.C. § 2, which treats aiders and abettors like principals when it comes to sentencing.
The Court will additionally find that secondary liability is firmly established as a general principle of law. As the Second Circuit Court of Appeals found in Khulumani v. Barclay Nat’l Bank Ltd., aiding-and-abetting liability is something “that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.” (quoting from Flores v. Southern Peru Copper Corp.). This is consistent with the Second and Third Restatements of Torts, which both provide for liability when an actor gives knowing and substantial assistance to another in support of a harm suffered by a third party.
In short, customary international law, international jurisprudence, treaties, and general principles of law are unified in their acceptance of secondary liability, meeting Sosa step one. Indeed, every circuit court to consider this question has reached this conclusion after conducting an international law analysis like the one above. (See Khulumani v. Barclay Nat’l Bank (2d Cir.), Am. Isuzo Motors, Inc. v. Ntsebeza (4th Cir.), Aziz v. Alcolac, Inc., Doe I v. Unocal Corp. (9th Cir.), Cabello v. Fernandez-Larios (11th Cir.), Doe VIII v. Exxon Mobile Corp (D.C. Cir.). Like aiding and abetting the French attack in the Bradford Opinion of 1795, aiding and abetting forced labor and child slavery in the twenty-first century violates international law. It is no wonder, then, that the Acting Solicitor instead seeks to make much out of the prudential concerns embedded in Sosa step two.
Prudential Considerations Support Upholding Secondary Liability Under the ATS
The Court in Jesner acknowledged the importance of considering “foreign-policy and separation-of-powers concerns inherent in ATS litigation.” Our brief argues that confirming secondary liability under the ATS would not violate Congressional intent, as analogous statutes all provide for secondary liability even if their text is silent on the issue. The Torture Victim Protection Act (TVPA), for example, allows plaintiffs to recover on an aiding-and-abetting liability basis without explicit Congressional direction. The brief filed by the Center for Justice and Accountability explains that Congress enacted the TVPA to codify the ATS’s jurisdiction over claims of torture and extrajudicial killing. As the closest modern analogue to the ATS, the TVPA and its legislative history evidence Congress’ desire to enable forms of secondary liability when prosecuting violations of the law of nations.
In spite of this, the Acting Solicitor General uses Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A. to argue that allowing secondary liability under the ATS when the text is silent would amount to a “vast expansion of federal law,” raising separation-of-powers concerns. But the government’s reliance on Central Bank is misplaced. In Central Bank, the Court held narrowly that a new cause of action should not be added under a securities regulation statute, because the statute “speaks so specifically” about what conduct was prohibited, and secondary conduct fell outside that instruction. The ATS, as a jurisdictional statute, does not speak in specific terms about what conduct is prohibited, so long as the conduct is a tort that violates the law of nations. To confirm secondary liability under the ATS would be to carry out Congress’ intent to provide civil redress for violations of international law, not to override specific conduct-regulating instructions as in Central Bank.
Finally, we argue that retaining aiding-and-abetting liability does not trigger the foreign policy concerns expressed in Sosa. There, the Court cautioned against the lower courts considering “suits … that would go so far as to claim a limit on the power of foreign governments over their own citizens.” This worry has no application to the case at bar. The way in which the United States regulates its own corporations does not infringe the sovereignty of foreign governments. Other countries have long accepted that the United States is within its right to punish domestic corporations for this sort of conduct, which explains why no foreign state, including Côte d’Ivoire, has appeared in this case to express diplomatic concerns. Indeed, as the brief filed by Former Government Officials describes, preventing corporations from profiting off of human rights violations is an established tool of U.S. foreign policy, and a tool that the Trump administration has applied to other human rights contexts.
Justice Stephen Breyer, concurring in Kiobel v. Royal Dutch Petroleum Co., emphasized that the ATS allows the United States to vindicate its “distinct interest in preventing the United States from becoming a safe harbor … for a torturer or other common enemy of mankind.” On behalf of the International Law Scholars, Former Diplomats, and Practitioners, we have urged the Court to not categorically bar secondary liability under the ATS. We understand that the Court has hesitated to definitively resolve corporate liability under the ATS and may search again for a route to cabin these cases. Our brief makes clear that foreclosing aiding-and-abetting liability offers no such haven. We seek to preserve the United States’ right and obligation to ensure that its residents cannot freely enable crimes as insidious as child slavery in the name of corporate profits.
Image: Detail of a roasted cocoa bean during husk removing process at Moments Chocolate workplace on June 18, 2019 in Accra, Ghana. (Photo credit: CRISTINA ALDEHUELA/AFP via Getty Images)