Another ATS Decision: Fourth Circuit Holds Aiding and Abetting Liability Requires Specific Intent

Adding to the flurry of recent Alien Tort Statute appellate decisions, on Monday the Fourth Circuit issued its opinion in Aziz v. Alcolac, an ATS and TVPA suit brought by Iraqi Kurds against a US company that had supplied a chemical used by the Saddam Hussein regime to manufacture mustard gas used against the Kurds in the 1980s.  A unanimous panel held that: 1) the TVPA imposes liability only on individuals, not corporations; 2) the ATS permits claims for aiding and abetting liability but only if the alleged tortious conduct is purposeful; and 3) the plaintiffs had not alleged that the defendant intended to aid and abet Saddam’s genocide against the Kurds. The panel declined to consider the currently hot issue of corporate liability under the ATS, which has resulted in a circuit split between the Second Circuit (finding no corporate liability under the ATS) and the DC, Seventh, and Eleventh Circuits (finding corporate liability) and which is currently pending cert before the Supreme Court (in Kiobel). The cautious decision does not break much new ground (and is primarily based on a review of other circuit decisions), but is interesting in two respects.  First, the panel agreed that the Supreme Court’s Sosa decision requires lower courts to look to international law to determine the scope of aiding and abetting liability.  This might suggest that if the Circuit were to take up the question of corporate liability (if the Supreme Court does not decide the issue first), it might look to international law, rather than domestic law.  Second, upon reviewing international law, the panel follows the Second Circuit’s decision in Talisman and concludes that the Rome Statute, which imposes aiding and abetting liability in the International Criminal Court only on conduct intended to facilitate a crime, is a more authoritative source of international law than rulings of other international tribunals.