In the 1980s, the Republic of Iraq was involved in a long-term conflict with Iran. The governments of several countries overtly condemned Iraq's use of mustard gas against Iran. However, Iraq, under the regime of Saddam Hussein, launched chemical weapon attacks against the Kurds in northern Iraq, accusing them of collaborating with Iran. An international coalition of governments, known as the Australia Group, imposed licensing restrictions on the exports of chemicals used to make chemical weapons, including mustard gas. Defendant, Alcolac, began selling thiodiglycol ("TDG") under the trade name Kromfax. Though TDG could be used to manufacture several products, Alcolac is aware that it could be used to manufacture mustard gas.
The U.S. State Department and the U.S. Customs Service warned Alcolac that TDG was subject to export restrictions. Yet, in 1987, Alcolac filled orders for 120 tons of Kromfax from a German company. This order was eventually shipped to Iran. Later in 1987 and 1988, Alcolac also delivered four shipments of Kromfax to a company in New York, though the Defendant knew this company was a shell corporation used to purchase the product for shipment to Europe and ship it elsewhere. These shipments eventually reached Iraq and were used to manufacture mustard gas used to attack the Kurds. This resulted in the death of thousands of Kurds, and many others were maimed or suffered from physical and psychological trauma.
While Alcolac pleaded guilty to violating the Export Administration Act for the sale to the Germany company, it was not prosecuted for its sales to the New York company. Plaintiffs, individuals of Kurdish descent that were either victims of the mustard gas attacks or family members of deceased victims, asserted claims against Alcolac under the Alien Tort Statute ("ATS"). The district court granted Alcolac's motion to dismiss the Complaint, finding that the Plaintiffs did not sufficiently plead facts to support a reasonable inference that Alcolac provided TDG to Iraq with the purpose of facilitating genocide against the Kurds.
The United States Court of Appeals for the Fourth Circuit affirms the district court's dismissal of the Plaintiff's Complaint. The Court concludes that the ATS imposes liability for aiding and abetting violations of international law, but only if the conduct is purposeful; it found that the Plaintiffs have failed to plead facts sufficient to support the intent element of their ATS claims. The Plaintiffs argue that Alcolac aided and abetted Iraq in committing the crimes against the Kurds, but Alcolac asserts that the claim is not recognized by international law. The Court agrees with the Plaintiffs, finding that it has become well-settled law in several federal courts that an aiding and abetting claim is covered under the ATS.
The Court then turns to Alcolac's contention that the Plaintiffs failed to allege facts that support the proper intent required to satisfy the elements of the aiding and abetting claim. "We are persuaded by the Second Circuit's Talisman analysis and adopt it as the law of this circuit. In that regard, we agree that Sosa guides courts to international law to determine the standard for imposing accessorial liability, given Sosa's command that courts limit liability to violations of international law with definite content and acceptance among civilized nations equivalent to the historical paradigms familiar when the ATS was enacted." 658 F.3d 398 (internal quotations omitted).
To determine the proper standard, the Court looked to the Rome Statute of the International Criminal Court. The Rome Statute of the International Criminal Court imposes aiding and abetting liability on one who aids and abets the commission of a crime only if he does so "for the purpose of facilitating the commission of such a crime." 658 F.3d 397. "While we agree with the premise that the Rome Statute does not constitute customary international law, we find that its status as a treaty cuts in favor of accepting its mens rea standard as authoritative for purposes of ATS aiding and abetting liability." "Although the D.C. Circuit is correct that the Rome Statute is not binding on the United States, Doe VIII, 2011 WL 2652384, at *18, this does not lessen its import as an international treaty and, thus, a primary source of the law of nations. Granting the Rome Statute preference over customary international law to resolve the issue before us is particularly appropriate given the latter's elusive characteristics." 658 F.3d 399-400.
"We conclude that adopting the specific intent mens rea standard for accessorial liability explicitly embodied in the Rome Statute hews as closely as possible to the Sosa limits of requiring any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms the Supreme Court has recognized." 658 F.3d 400-01 (internal quotations omitted).
Although we acknowledge that aiding and abetting liability has been imposed in international tribunals for knowing conduct ... we find that no consensus exists for imposing liability on those who knowingly (but not purposefully) aid and abet a violation of international law. As a result, we agree with the Second Circuit that a purpose standard alone has gained the requisite acceptance among civilized nations for application in an action under the ATS." 658 F.3d 401 (internal citations omitted) (internal quotations omitted).
"In sum, keeping in mind the Supreme Court's admonitions in Sosa that we should exercise 'great caution' before recognizing causes of action for violations of international law, and that liability should attach only for violations of those international norms that obtain universal acceptance, 542 U.S. at 728, we hold that for liability to attach under the ATS for aiding and abetting a violation of international law, a defendant must provide substantial assistance with the purpose of facilitating the alleged violation. " 658 F.3d 401.
citation: Aziz v. Alcolac, 658 F.3d 388 (4th Cir. 2011).
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|Title Annotation:||aiding and abetting case against Alcolac Inc.|
|Publication:||International Law Update|
|Date:||Oct 1, 2011|