# Doe v. Exxon Mobil Corp.

> Court of Appeals for the D.C. Circuit · July 8, 2011 · 654 F.3d 11

URL: https://www.frixlaw.com/law-library/cases/220584

## Case

- **Full name:** John DOE VIII, Et Al., Appellants v. EXXON MOBIL CORPORATION, Et Al., Appellees
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** July 8, 2011
- **Citations:** 654 F.3d 11; 397 U.S. App. D.C. 371; 174 Oil & Gas Rep. 306; 2011 U.S. App. LEXIS 13934; 2011 WL 2652384
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Rogers, Tatel, Kavanaugh
- **Cited by:** 92 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Doe v. Exxon Mobil Corp., 527 F. App'x 7 (2013).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/220584

## How later opinions describe it (automated extraction)

- stating that "[c]orporate immunity . . . would be inconsistent with the ATS because by 1789 corporate liability in tort was an accepted principle of tort law in the United States" and recounting the early history of corporate liability in tort under the common law
- stating that “[corporate immunity ... would be inconsistent with the ATS because by 1789 corporate liability in tort was an accepted principle of tort law in the United States” and recounting the early history of corporate liability in tort under the common law
- noting that when an individual brings suit under the Torture Victim Protection Act of 1999 (TVPA
- noting that the Rome Statute itself acknowledges that it was not meant to affect or amend existing customary international law where the Rome Statute specifically provides that it is not to “ ‘be interpreted as limiting or prejudicing in any way existing or developing rules of…
- noting that when an individual brings suit under the Torture Victim Protection Act of 1999 (TVPA), Pub.L. No. 102-256, 106 Stat. 73, the question is whether the TVPA’s cause of action extends extraterritorially and not whether the jurisdictional grant, § 1331, extends extrater…

## Opinion text

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 25, 2011 Decided July 8, 2011

No. 09-7125

JOHN DOE VIII, ET AL.,
APPELLANTS

v.

EXXON MOBIL CORPORATION, ET AL.,
APPELLEES

Consolidated with 09-7127, 09-7134, 09-7135

Appeals from the United States District Court
for the District of Columbia
(No. 1:07-cv-01022)
(No. 1:01-cv-01357)

Agnieszka Fryszman argued the cause for appellants on
State Claims. Paul Hoffman argued the cause for appellants on
Federal Claims. With them on the briefs were Kathleen M.
Konopka, Maureen E. McOwen, Terrence P. Collingsworth, and
Piper M. Hendricks. Charles J. Ogletree Jr. and Joseph M.
Sellers entered appearances.

Marco B. Simons was on the brief for amicus curiae
EarthRights International (ERI) in support of appellants.
2

Jennifer M. Green was on the brief for amici curiae
University of Minnesota Law School, et al. in support of
appellants.

William J. Aceves was on the brief for amici curiae
International Law Scholars in support of appellants.

Muneer I. Ahmad was on the brief for amici curiae Arthur
Miller, Erwin Chemerinsky, and Professors of Federal
Jurisdiction and Legal History in support of appellants.

Sri Srinivasan argued the cause for appellees/cross-
appellants. With him on the brief were Walter Dellinger, Anton
Metlitsky, Theodore V. Wells Jr., Alex Young K. Oh, Nikhil
Singhvi, Martin J. Weinstein, and Patrick J. Conlon.

Robin S. Conrad, Alan E. Untereiner, and Mark T. Stancil
were on the brief for amicus curiae The Chamber of Commerce
of the United States of America in support of appellees.

Jeffrey A. Lamken and Robert K. Kry were on the brief for
amici curiae National Foreign Trade Council, Inc. et al. in
support of appellees.

Daniel J. Popeo and Richard A. Samp were on the brief for
amici curiae Washington Legal Foundation, et al. in support of
appellees.

Before: ROGERS, TATEL, and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Opinion dissenting in part by Circuit Judge KAVANAUGH.
3

ROGERS, Circuit Judge: Pursuant to a contract with the
Indonesian government, Exxon Mobil Corporation, a United
States corporation, and several of its wholly owned subsidiaries
(hereinafter “Exxon”) operated a large natural gas extraction and
processing facility in the Aceh province of Indonesia in
2000–2001. Plaintiffs-appellants are fifteen Indonesian villagers
from the Aceh territory. Eleven villagers filed a complaint in
2001 alleging that Exxon’s security forces committed murder,
torture, sexual assault, battery, and false imprisonment in
violation of the Alien Tort Statute (“ATS”) and the Torture
Victim Protection Act (“TVPA”), and various common law
torts. (The Doe I complaint.) Four other Aceh villagers alleged
in 2007 that Exxon committed various common law torts. (The
Doe VIII complaint.) All plaintiffs-appellants allege that Exxon
took actions both in the United States and at its facility in the
Aceh province that resulted in their injuries. The district court
dismissed the statutory claims, see Doe I v. Exxon Mobil Corp.,
393 F. Supp. 2d 20 (D.D.C. 2005), and discovery proceeded on
the tort claims.1 Those claims, however, were subsequently
dismissed for lack of prudential standing. See Doe VIII v. Exxon
Mobil Corp., 658 F. Supp. 2d 131 (D.D.C. 2009). Plaintiffs-
appellants challenge the dismissals of their complaints and
Exxon filed a cross-appeal, inter alia raising for the first time
that as a corporation it was immune from liability under the
ATS.2

1
In an interlocutory appeal filed in 2005, this court held that
it lacked jurisdiction to address Exxon’s contention that the complaint
should be dismissed pursuant to the political question doctrine and that
Exxon had failed to meet the standard for issuance of a writ of
mandamus. See Doe I v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir.
2007).
2
For purposes of these appeals it is unnecessary to
distinguish between the two complaints. Plaintiffs-appellants appeal
the dismissal of the statutory claims in 2005 by Judge Oberdorfer and
4

For the reasons that follow, we conclude that aiding and
abetting liability is well established under the ATS. We further
conclude under our precedent that this court should address
Exxon’s contention on appeal of corporate immunity and,
contrary to its view and that of the Second Circuit, we join the
Eleventh Circuit in holding that neither the text, history, nor
purpose of the ATS supports corporate immunity for torts based
on heinous conduct allegedly committed by its agents in
violation of the law of nations. We affirm the dismissal of the
TVPA claims in view of recent precedent of this court. We
conclude, however, that Exxon’s objections to justiciability are
unpersuasive and that the district court erred in ruling that
appellants lack prudential standing to bring their non-federal tort
claims and in the choice of law determination. Finally, we
conclude that Exxon’s challenge to the diversity of parties in the
Doe VIII complaint is to be resolved initially by the district
court. Therefore, we affirm the dismissal of plaintiffs-
appellants’ TVPA claims, reverse the dismissal of the ATS
claims at issue in this appeal, along with plaintiffs-appellants’
non-federal tort claims, and remand the cases to the district
court.

I.

Accepting the allegations of the complaints as true, and
construing the complaints in favor of plaintiffs-appellants, as we
must, see Warth v. Seldin, 422 U.S. 490, 501 (1975), the
plaintiffs claim that Exxon’s security forces were comprised of
members of the Indonesian military and that Exxon and its
subsidiaries, which were incorporated at the time of the filing of
the first complaint in New Jersey and Delaware, Doe I Compl.
¶¶ 17, 20, 23, retained these soldiers as guards for its natural

the dismissal of the common law torts in 2009 on prudential standing
grounds by Chief Judge Lamberth.
5

gas facility even though Exxon was aware that the Indonesian
army had committed human rights abuses in the past, id. ¶¶
39–47; Doe I Am. Compl. ¶¶ 55–66; Doe VIII Compl. ¶¶ 39–59,
and knew that performance of the security contract would lead
to human rights violations by Indonesian soldiers against the
residents of Aceh. Doe I Compl. ¶¶ 64, 71; Doe I Am. Compl.
¶¶ 60, 66, 125; Doe VIII Compl. ¶¶ 51–53, 79. The human
rights abuses alleged included genocide, extrajudicial killing,
torture, crimes against humanity, sexual violence, and
kidnaping. Doe I Compl. ¶ 64. In addition to extrajudicial
killings of some of the plaintiffs-appellants’ husbands as part of
a “systematic campaign of extermination of the people of Aceh
by [d]efendants’ [Indonesian] security forces,” id. ¶ 65, the
plaintiffs-appellants were “beaten, burned, shocked with cattle
prods, kicked and subjected to other forms of brutality and
cruelty” amounting to torture, id. ¶ 66, as well as forcibly
removed and detained for lengthy periods of time, id. ¶ 67.
Plaintiffs-appellants claim that Exxon or its agents, by decisions
made in the United States, id. ¶¶ 30, 32–33, and at its Aceh
plant, id. ¶¶ 55–57, “committed acts that had the intent and the
effect of grossly humiliating and debasing” either them or their
deceased husbands by “forcing them to act against their will and
conscience, inciting fear and anguish, and breaking their
physical and/or moral resistance” by actions that constitute
“inhuman or degrading treatment in violation of the law of
nations.” Id. ¶ 68.

According to the complaints, these actions of the Indonesian
military could be attributed to Exxon because they were
committed by a unit dedicated only to Exxon’s Aceh facility and
Exxon had the authority “to control and direct[]” the soldiers’
actions. Id. ¶ 40. Plaintiffs-appellants claim Exxon was aware
of the atrocities committed by the Indonesian military in Aceh,
as confirmed by public reports including reports of atrocities
committed by Exxon’s dedicated unit, and that Exxon
6

nonetheless provided logistical and material support to the
military by hiring mercenaries to provide advice, training,
intelligence, and equipment to the unit while Exxon profited
from the operation of its Aceh facility. Id. ¶¶ 39–41, 46. By
acting together with Indonesian security forces, the plaintiffs-
appellants claim that Exxon acted under color of Indonesian law.
Id.

On October 1, 2001, Exxon moved to dismiss the
complaint, and after a hearing on the motion the district court
requested the Office of Legal Adviser of the Department of State
to inform the court whether the Department deemed adjudication
of the case to affect adversely the interests of the United States.
On July 29, 2002, the Office of Legal Adviser filed a statement
of interest and attached a statement of the Indonesian
Ambassador to the United States. Thereafter, the district court
dismissed the statutory claims. It ruled that aiding and abetting
was not actionable under the ATS, Doe I, 393 F. Supp. 2d at 24,
that “sexual violence” is not sufficiently recognized as a
violation of the law of nations to be actionable under the ATS,
and that Exxon could not be liable for genocide and crimes
against humanity because adjudication of such claims would “be
an impermissible intrusion in Indonesia’s internal affairs.” Id.
at 25. Although concluding that “resolving claims of complicity
in arbitrary detention, torture, and extrajudicial killing pose[d]
less of a threat of infringing Indonesia’s sovereignty,” id., the
district court ruled that the plaintiffs could not assert such claims
against Exxon because color-of-law jurisprudence developed in
lawsuits under 42 U.S.C. § 1983 was inapplicable in view of
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Doe I, 393 F.
Supp. 2d at 25–26. The district court also ruled that joint action
with the Indonesian military was not sufficiently alleged, but
even if it were the required inquiry would raise justiciability
concerns, and to the extent state action could be alleged under
a proximate cause theory, that theory was not sufficiently
7

alleged in the complaint. Id. at 26–27. The district court
declined to hold, as Exxon urged, that the ATS claims must be
dismissed due to plaintiffs-appellants’ failure to exhaust
remedies in Indonesia because it was apparent that such efforts
would be futile. Id. at 24–25.

On appeal, plaintiffs-appellants challenge the dismissal of
their ATS and TVPA claims based on prohibitions of
extrajudicial killing, torture, and prolonged arbitrary detention,
but do not appeal the dismissal of their claims of genocide,
crimes against humanity, or sexual violence. They contend, and
Exxon does not dispute, that extrajudicial killing, torture, and
prolonged arbitrary detention are clearly established norms of
international law.3 They also contend, but Exxon disputes, that
the district court erred in ruling that aiding and abetting liability
is unavailable under the ATS, in view of subsequent case law in
the circuit courts of appeals, and in ruling that color-of-law
jurisprudence may not be applied in ATS cases. Responding to
Exxon’s new contention on appeal that it is entitled to corporate
immunity because customary international law does not
recognize corporate liability for human rights violations,
appellants contend that Exxon has conflated Sosa’s analysis for
norms in a manner that is inconsistent with a well-established
distinction in international law, and alternatively it has
inaccurately recounted customary international law. Appellants
maintain that corporations may be liable directly and also for
aiding and abetting under the ATS and the TVPA.

Finally, appellants challenge the dismissal of their non-
federal tort claims, contending that history demonstrates that

3
This relieves the court from the task, in which our dissenting
colleague unnecessarily engages, see Dis. Op. at 4 n.2, of identifying
the universe of international norms capable of giving rise to causes of
action in ATS lawsuits. See Oral Arg. Tr. at 64:9–12.
8

there is no per se bar on non-resident alien standing and that
they meet the traditional zone-of-interests test for prudential
standing. Exxon maintains that appellants cannot meet the zone-
of-interests test because the alleged torts occurred on foreign
soil and that any state law claims would be subject to foreign
affairs preemption, and even if those claims survive, Indonesian
law ought to apply. Exxon also raises three justiciability
objections: the complaint should be dismissed in deference to
the foreign policy views of the Executive Branch; the claims
interfere with a peace agreement supported by the United States;
and the claims threaten international comity with Indonesia.
Exxon further maintains the Doe VIII complaint must be
dismissed for lack of diversity jurisdiction.

In Part II, we address aiding and abetting liability under the
ATS, concluding that it is well established. In Part III, we
examine Exxon’s claim of corporate immunity, concluding that
corporations can be held liable under the ATS. In Part IV, we
affirm the dismissal of appellants’ claims under the TVPA in
view of precedent issued by this court after oral argument in
these cases. In Part V, we consider Exxon’s contentions that the
complaints should be dismissed on justiciability grounds and
find them unpersuasive. In Part VI, we resolve appellants’
challenge to the dismissal of their common law claims for lack
of prudential standing, concluding that they have such standing;
we agree, however, with Exxon that the district court erred in its
choice of law determination and that Indonesian law applies
under the District of Columbia choice of law rule to appellants’
non-federal tort claims. In Part VII, we remand to the district
court questions raised by Exxon with regard to the existence of
diversity jurisdiction in Doe VIII.

We conclude that none of the four reasons offered by our
dissenting colleague for reaching a different conclusion about
the reach of the ATS withstand analysis. The dissent’s first
9

objection relates to extraterritoriality when that issue is not
presented and, as the historical context makes clear, the ATS
reaches harm occurring outside of the United States. The
dissent’s objection to corporate liability is based on a
misstatement of the definition of customary international law
and of Supreme Court precedent, and disregards both a
fundamental distinction between causes of action based on
conduct that violates the law of nations or treaties and the
remedy under domestic law, and a source of international law.
The dissent’s third objection that the TVPA precludes the
court’s conclusions regarding the ATS is contrary to the
Supreme Court’s conclusion about the effect of the TVPA on the
ATS and inappropriately addresses an argument forfeited by
Exxon. Finally, the dissent’s justiciability objection selectively
characterizes not only the complaints but also the State
Department’s expression of interest in this litigation.

II.

The ATS stood largely dormant for nearly two centuries
after its enactment in 1789. Two district courts invoked
jurisdiction under the ATS. See Adra v. Clift, 195 F. Supp. 857
(D. Md. 1961)); Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795)
(No. 1,607). The first appellate court to uphold a claim under
the ATS did so in 1980 when the Second Circuit held in
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), that
deliberate torture perpetrated under color of official authority
violated universally accepted norms of international law on
human rights and that the ATS provided federal jurisdiction
over a claim by a resident alien against a Paraguayan official for
the death of his son in Paraguay. The Supreme Court in Sosa
described Filartiga as “the birth of the modern line of [ATS]
cases.” 542 U.S. at 724–25. Even after Filartiga, however,
courts and commentators continued to disagree as to the proper
interpretation of the ATS, resulting in the exchange between
10

Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774 (D.C. Cir. 1984). The Supreme Court
in Sosa settled this disagreement, adopting an approach
consistent with both Filartiga and Judge Edwards’ separate
opinion in Tel-Oren.

The issue in Sosa was whether a Mexican citizen (Alvarez-
Machain) could bring a claim under the ATS against Mexican
nationals hired by the U.S. Drug Enforcement Administration
(“DEA”) for an alleged violation of the law of nations arising
from his “arbitrary arrest.” DEA agents had obtained an arrest
warrant from a U.S. district court and hired Mexican nationals
(including Sosa) to abduct Alvarez-Machain and bring him to
the United States to be arrested. 542 U.S. at 698. The Supreme
Court, although concluding the ATS was “intended as
jurisdictional,” id. at 714, and “creat[ed] no new causes of
action,” id. at 724, held that “[t]he jurisdictional grant is best
read as having been enacted on the understanding that the
common law would provide a cause of action for the modest
number of international law violations with a potential for
personal liability at the time,” id. Further, the Court concluded
that “Congress has not in any relevant way amended § 1350 or
limited civil common law power by another statute.” Id. at 725.
The Court went on to observe, as we discuss in Part V, that
“there are good reasons for a restrained conception of the
discretion a federal court should exercise in considering a new
cause of action of this kind.” Id.

Upon considering the history and purpose of the ATS, the
Supreme Court instructed that “courts should require 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 we have recognized,” id., referencing
violation of safe conducts, infringement of the rights of
11

ambassadors, and piracy, id. at 724. The Court recognized that
“a judge deciding in reliance on an international norm will find
a substantial element of discretionary judgment in the decision,”
id. at 726, but admonished that “federal courts should not
recognize private claims under federal common law for
violations of any international law norm with less definite
content and acceptance among civilized nations than the
historical paradigms familiar when § 1350 was enacted,” id. at
732. Appellants’ aiding and abetting contention meets this test.

In dismissing appellants’ statutory claims, the district court
relied principally on In re South African Apartheid Litigation,
346 F. Supp. 2d 538, 549–51 (S.D.N.Y. 2004), which held that
private actors who did not engage in state action committed no
violation remediable under the ATS. That authority was
overruled in Khulumani v. Barclay National Bank Ltd., 504 F.3d
254 (2d Cir. 2007), aff’d for lack of en banc quorum sub nom.
Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008); see
also Presbyterian Church of Sudan v. Talisman Energy, Inc.,
582 F.3d 244, 256 (2d Cir. 2009), cert. denied, 131 S. Ct. 79
(2010). The district court also ruled that there was no liability
for aiding and abetting under the ATS, applying the rule of
statutory construction in Central Bank of Denver v. First
Interstate Bank of Denver, 511 U.S. 164, 181–82 (1994),
superseded in part by statute, 15 U.S.C. § 78t(e), that there is no
general presumption in favor of aiding and abetting liability.
Doe I, 393 F. Supp. 2d at 24.

Appellants persuasively contend that aiding and abetting
liability exists under the ATS. Virtually every court to address
the issue, before and after Sosa, has so held, recognizing
secondary liability for violations of international law since the
founding of the Republic. Appellants cite as examples Talbot
v. Jansen, 3 U.S. (3 Dall.) 133, 167–68 (1795) (Iredell, J.), The
Amiable Nancy, 1 F. Cas. 765, 768 (C.C.D.N.Y. 1817) (No.
12

331), and Henfield’s Case, 11 F. Cas. 1099 (C.C.D. Pa. 1793)
(No. 6,360). Further, they note that aiding and abetting liability
was a common feature of Founding-era statutes addressing
international law offenses, see Crimes Act of 1790, ch. 9, § 10,
1 Stat. 112, 114 (1790) (deeming “an accessary [sic] to . . .
piracies” anyone who “knowingly and willingly aided” piracy).
Exxon maintains, however, that there is no aiding and abetting
liability under the ATS because of the presumption against
extraterritorial application established at the time of the ATS’s
enactment, and the Supreme Court’s instruction in Central
Bank, 511 U.S. at 181–82, that although “aiding and abetting is
an ancient criminal law doctrine,” id. at 181, “when Congress
enacts a statute under which a person may sue and recover
damages from a private defendant for the defendant’s violation
of some statutory norm, there is no general presumption that the
plaintiff may also sue aiders and abettors,” id. at 182. For the
following reasons, we hold that there is no extraterritoriality bar
as Exxon suggests, that the principle of aiding and abetting
liability is well established in customary international law, and
that the mens rea and actus reus requirements are those set out
by the Nuremberg Tribunals and the international courts created
by the United Nations, which reflect the standard under federal
common law.

A.
The issue of extraterritoriality, although briefed,4 was not
decided in Sosa, and it has yet to be decided by a circuit court
of appeals. One judge of this court discussed the issue in Tel-
Oren, looking to the then-tentative draft Restatement of the
Foreign Relations Law of the United States, 726 F.2d at 781 n.7,
788 (Edwards, J., concurring), which in its final version states

4
Brief for the United States as Respondent Supporting
Petitioner 47–50, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No.
03-339), 2004 WL 182581.
13

that a nation has universal jurisdiction to define and prescribe
punishment for certain egregious crimes regardless of any
territorial considerations, RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES § 404, and otherwise
a nation may prescribe law as to conduct occurring or having an
effect in its territory and “the activities, interests, status, or
relations of its nationals outside as well as within its territory,”
id. § 402(1)–(2); see also Sosa, 542 U.S. at 761 (Breyer, J.,
concurring) (citing RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES § 401(1)–(2)). The
two other judges in Tel-Oren and our recent decision in Ali
Shafi v. Palestinian Authority, ___ F.3d ___. 2011 WL 2315028
(D.C. Cir. June 14, 2011), relied on other grounds for
dismissing the ATS claims, notwithstanding that both involved
claims of harms occurring outside of the United States, as did
the claims in Sosa and Filartiga.

The Supreme Court, however, recently reaffirmed the
“presumption against extraterritoriality” in Morrison v. National
Australia Bank Ltd., 130 S. Ct. 2869 (2010), holding that
“[r]ather than guess anew in each case, we apply the
presumption in all cases, preserving a stable background against
which Congress can legislate with predictable effects.” Id. at
2881. “This principle represents a canon of construction, or a
presumption about a statute’s meaning.” Id. at 2877. “When a
statute gives no clear indication of an extraterritorial
application, it has none.” Id. at 2878.

The ATS provides in full:

The district courts shall have original jurisdiction of
any civil action by an alien for a tort only, committed
in violation of the law of nations or a treaty of the
United States.
14

28 U.S.C. § 1350. The ATS was enacted as part of the Judiciary
Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (1789), and its content
has not been materially amended since its enactment.5 Its terms
are “jurisdictional,” the Supreme Court held in Sosa,
“enabl[ing] federal courts to hear claims in a very limited
category defined by the law of nations and recognized at
common law.” 542 U.S. at 712. At the time of enactment of
the ATS, the Court observed, “torts in violation of the law of
nations were understood to be within the common law.” Id.
And although the Supreme Court has fundamentally altered the
breadth and understanding of federal common law since the
ATS’s enactment, see id. at 729 (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 604 (1938)), the Court noted in Sosa that in

5
The ATS has been amended three times. In 1874, as part of
the first official codification of the Acts of Congress when the grants
of jurisdiction were listed, the ATS was amended to read: “The district
courts shall have jurisdiction . . . [o]f all suits brought by any alien for
a tort only in violation of the law of nations, or of a treaty of the
United States.” Rev. Stat. § 563 (1st ed. 1875). In the 1911
codification of the Judiciary Act, a comma was added after the phrase
“tort only” and a comma was removed after the phrase “law of
nations”; neither change appears to have had any practical effect. Act
of Mar. 3, 1911, ch. 231, § 24, 36 Stat. 1087, 1093 (1911). In the
1948 revision of the Judicial Code, the term “civil action” was
substituted for “suits” to conform with Rule 2 of the Federal Rules of
Civil Procedure, which provided that “there shall be one form of
action to be known as a ‘civil action.’” Act of June 25, 1948, ch. 646,
§ 1350, 62 Stat. 869, 934 (1948) (codified at 28 U.S.C. § 1350). The
word “committed” was added, but no party has cited a case or
scholarly work suggesting the addition has any significance or that
Congress had any particular intent in adding it. See Tel-Oren, 726
F.2d at 779 n.3 (Edwards, J., concurring). Also in the 1948 Act, the
term “any alien” reverted to “an alien,” consistent with the original
1789 language, and the word “original” was inserted before
“jurisdiction.” 62 Stat. at 934.
15

certain areas federal common law will prevail either because of
express congressional authorization to devise a body of law, see
id. at 726 (citing Textile Workers v. Lincoln Mills of Ala., 353
U.S. 448 (1957)), or by way of judicial decision “to create
federal common law rules in interstitial areas of particular
federal interest,” id. (citing United States v. Kimbell Foods, Inc.,
440 U.S. 715, 726–27 (1979)). The Court concluded that the
ATS was enacted on the basis of a “congressional assumption”
that courts would develop common law claims “derived from
the law of nations,” thus ensuring that any common lawmaking
authority as to actionable conduct would, at least, be cabined by
the law of nations. Id. at 731 n.19.

Citing Morrison, Exxon contends that a “strong
presumption . . . against extending [federal statutes] to
encompass conduct in foreign territory” militates against
recognizing a common law aiding and abetting claim based on
human rights violations committed in a foreign country.
Appellees’ Br. 37. Exxon posits a novel form of the canon, for
it appears beyond debate that piracy is contemplated by the
ATS, see Sosa, 542 U.S. at 719; Tel-Oren, 726 F.2d at 779
(Edwards, J., concurring) (citing 4 BLACKSTONE’S
COMMENTARIES *67); id. at 813–14 (Bork, J., concurring), and
piracy can occur outside of the territorial bounds of the United
States, see generally United States v. Hasan, 747 F. Supp. 2d
599 (E.D. Va. 2010), and, the Supreme Court has held, also
within the territorial waters of another nation, see United States
v. Furlong, 18 U.S. (5 Wheat.) 184, 200–01 (1820). Morrison
and other Supreme Court cases hold, in contrast to Exxon’s
canon, “that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction
of the United States.” 130 S. Ct. at 2877 (quoting EEOC v.
Arabian Am. Oil Co. (“ARAMCO”), 499 U.S. 244, 248 (1991));
see also Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949);
Blackmer v. United States, 284 U.S. 421, 437 (1932); United
16

States v. Bowman, 260 U.S. 94, 98–99 (1922). It is at least
arguable that none of the modern cases cited by Exxon (and our
dissenting colleague, Dis. Op. at 7–10) interpret statutes having
obvious extraterritorial reach, as the dissent concedes is true of
the ATS, see Dis. Op. at 14–15.

“This principle [of a presumption against extraterritorial
reach of a statute] represents a canon of construction . . . rather
than a limit upon Congress’s power to legislate.” Morrison, 130
S. Ct. at 2877. Exxon’s characterization of the presumption
against extraterritoriality is incomplete at best, stating the
presumption is “against extending [federal statutes] to
encompass conduct in foreign territory.” Appellees’ Br. 37.
Exxon has cited no authority supporting the existence of a
presumption that a statute applies to the high seas (e.g., piracy)
but not to foreign territory; indeed, Exxon cites two Supreme
Court cases supporting the contrary: The Apollon, 22 U.S. (9
Wheat.) 362, 370 (1824), and Rose v. Himely, 8 U.S. (4 Cranch)
241, 279 (1808). In The Apollon the Court held that “[t]he laws
of no nation can justly extend beyond its own territories, except
so far as regards its own citizens,” 22 U.S. at 370 (emphasis
added), and in Rose v. Himely “that the legislation of every
country is territorial; that beyond its own territory, it can only
affect its own subjects or citizens,” 8 U.S. at 279 (emphasis
added).6 To the extent Exxon maintains that the ATS is only

6
In Rose v. Himely the Court went on to hold that “a seizure
of a person not a subject, or of a vessel not belonging to a subject,
made on the high seas, for the breach of a municipal regulation, is an
act which the sovereign cannot authorize,” 8 U.S. at 279, indicating
that the background principle at work at the time was one where
extraterritoriality was based on a national sovereignty principle rather
than a special high-seas exception. Such a principle remains a part of
international law today. See RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES § 402(2); Sosa, 542 U.S. at
17

partially extraterritorial, it advocates a novel canon of statutory
construction, and not one of the settled “background canons of
interpretation of which Congress is presumptively aware” when
it legislates. Lockhart v. United States, 546 U.S. 142, 148
(2005).

Our dissenting colleague would bifurcate the canon by
requiring a separate query with respect to the high seas and
foreign countries. The dissent posits that because piracy by
definition occurs on the high seas, application of the canon
against extraterritoriality — as that canon has been consistently
defined by the Supreme Court for over two hundred years —
creates a statutory outcome that is at odds with congressional
intent that the ATS grant federal courts jurisdiction over aliens’
piracy-related torts. Dis. Op. at 14–16. Finding the existing
canon of no avail, the dissent mutates both the canon and the
precedent into a new canon that produces the desired result. To
the extent that a canon of construction draws its persuasiveness
in large measure from the fact that Congress is “presumptively
aware,” Lockhart, 546 U.S. at 148, of such canons of
outstanding vintage when it legislates and thus “preserv[es] a
stable background against which Congress can legislate with
predictable effects,” Morrison, 130 S. Ct. at 2878, a newly
minted canon fashioned in a dissenting opinion more than two
hundred years after the First Congress provides no such
benefit.7

761 (Breyer, J., concurring).
7
To the extent a presumption existed at the time of the First
Congress, it differed materially from that suggested by Exxon and the
dissent. Appellees’ Br. 37; Dis. Op. at 7–9. In Furlong, the Supreme
Court interpreted the reach of the piracy and other provisions in the
Crimes Act of 1790. 18 U.S. at 200. Stating that a court ought to
consider the statute by “reference to the punishing powers” of
18

Further, a technical but nonetheless important point sheds
light on Exxon’s contentions: appellants are not asking this
court to apply the ATS itself extraterritorially. In Sosa, the
Supreme Court held that the ATS is a jurisdictional statute that
provides U.S. district courts with jurisdiction over civil actions
brought by aliens seeking relief for torts committed in violation
of the law of nations, and does not itself create causes of action.
542 U.S. at 713–14; 28 U.S.C. § 1350. As a jurisdictional
statute, it would apply extraterritorially only if Congress were
to establish U.S. district courts in foreign countries. To say that
a court is applying the ATS extraterritorially when it hears an
action such as appellants have brought makes no more sense

Congress and then apply a “reasonable presumption” that Congress
did not intend to exceed those powers, and conversely that “general
words . . . ought not . . . be restricted so as to exclude any cases within
their natural meaning,” the Court held that “it was reasonable to
conclude[] that Congress intended to legislate, unless [the] express
language shall preclude that conclusion.” Id. at 196. The powers of
Congress applied in Furlong were those identified in The Apollon, 22
U.S. at 370, and Rose v. Himely, 8 U.S. at 279, namely that Congress
may legislate with respect to acts within U.S. territory and with respect
to its own citizens. Thus, in Furlong, the Court affirmed the
convictions for piracy of two U.S. citizens under the 1790 Act where
the crimes had been committed in the territorial waters of Portugal,
i.e., in a roadstead near the islands of Boa Vista and Maio, off the
western coast of Africa. 18 U.S. at 200–01; see also U.S. DEP’T OF
STATE, BACKGROUND NOTE: CAPE V ERDE, available at
http://www.state.gov/r/pa/ei/bgn/2835.htm (last visited June 21,
2011); John H. Knox, A Presumption Against Extrajurisdictionality,
104 AM. J. INT’L L. 351, 364 (2010). The dissent argues that
“[c]haracteristically [piracy] has been regarded as an offense of the
open seas,” Dis. Op. at 16 n.8 (quoting Edwin D. Dickinson, Is the
Crime of Piracy Obsolete?, 38 HARV. L. REV. 334, 336–37 (1925)),
but in Furlong the Supreme Court has made patently clear that the
First Congress intended the term “high seas” to include at least some
territory of foreign states, see 18 U.S. at 200–01.
19

than saying that a court is applying 28 U.S.C. § 1331, the
federal question statute, extraterritorially when it hears a TVPA
claim brought by a U.S. citizen based on torture in a foreign
country.

Thus, the question here is not whether the ATS applies
extraterritorially but is instead whether the common law causes
of action that federal courts recognize in ATS lawsuits may
extend to harm to aliens occurring in foreign countries. One
might hope to resolve this question by considering whether the
First Congress would have understood federal courts to have the
authority to recognize such causes of action. Unfortunately, the
historical record with respect to this question is sparse and has
been characterized as ambiguous. The authority most on point
is a 1795 legal opinion by U.S. Attorney General William
Bradford. See Breach of Neutrality, 1 Op. Att’y Gen. 57
(1795). In the midst of the war between Britain and France that
followed the French Revolution, U.S. citizens participated in a
French privateer fleet’s attack and plunder of the British colony
of Sierra Leone in 1794. See id. at 58.8 Responding to a protest
from the British Ambassador, Attorney General Bradford
expressed “some doubt” as to whether the U.S. citizens could be
prosecuted in U.S. courts. See id. at 58–59. But Bradford had
“no doubt that the company or individuals who ha[d] been
injured by the[] acts of hostility ha[d] a remedy by a civil suit in
the courts of the United States” since Congress in the ATS had
granted federal courts “jurisdiction . . . in all cases where an

8
See also William R. Casto, The Federal Courts’ Protective
Jurisdiction over Torts Committed in Violation of the Law of Nations,
18 CONN. L. REV. 467, 502–03 (1986) (hereinafter “Casto, Law of
Nations”) (citing CHRISTOPHER FYFE, A HISTORY OF SIERRA LEONE,
59–61 (1962)), cited by the Supreme Court in Sosa, 542 U.S. at 713,
717, 718, 719 n.13, 721.
20

alien sues for a tort only, in violation of the laws of nations, or
a treaty of the United States.” Id. at 59 (emphasis in original).

Bradford’s opinion, however, is not a model of clarity. The
paragraph containing Bradford’s discussion of the ATS opens
by stating, “So far . . . as the transactions complained of
originated or took place in a foreign country, they are not within
the cognizance of our courts . . . .” Id. at 58. In context, this
statement might be best read as applying only to the scope of
the U.S. courts’ criminal jurisdiction. The majority in the
Second Circuit, however, interpreted the statement more
broadly, citing it as support for the proposition that at the time
of its enactment, the ATS was not understood to grant federal
courts jurisdiction over international law violations committed
within the territorial jurisdiction of foreign nations but “only for
the actions taken by Americans on the high seas.” See Kiobel
v. Royal Dutch Petroleum Co., 621 F.3d 111, 142 n.44 (2d Cir.
2010).9 In Sosa the Supreme Court viewed the Attorney

9
The cases on which Exxon relies, which seek to invoke
early piracy cases for the proposition of non-extraterritoriality, are
inapposite. For instance, in United States v. Palmer, 16 U.S. (3
Wheat.) 610 (1818), the Supreme Court interpreted the Crimes Act of
1790 not to extend to situations where a non-citizen attacked a vessel
under foreign flag bearing citizens of a foreign state. Exxon fails,
however, to account for United States v. Klintock, 18 U.S. (5 Wheat.)
144 (1820), where the Supreme Court backed away from Palmer,
stating that although Palmer could be “understood to indicate the
opinion that the whole act must be limited in its operation to offences
committed by, or upon, the citizens of the United States,” that issue
was not before the Court in Palmer. Id. at 152. The Court held that
so long as the piracy was committed by persons on board a vessel not
“belonging to the subjects of any foreign power . . . in possession of
a crew acting in defiance of all law, and acknowledging obedience to
no government whatever,” id., or in other words, a vessel having no
nationality, the piracy provisions of the Crimes Act of 1790 would
21

General’s opinion as “clear that a federal court was open for the
prosecution of a tort action growing out of the episode,” 542
U.S. at 721, but noted uncertainty about whether Bradford
assumed there had been a violation of a treaty and concluded
that “it appears likely Bradford understood the ATS to provide
jurisdiction over what must have amounted to common law
causes of action,” id.

Extraterritorial application of the ATS would reflect the
contemporaneous understanding that, by the time of the
Judiciary Act of 1789, a transitory tort action arising out of
activities beyond the forum state’s territorial limits could be
tried in the forum state. See Stoddard v. Bird, 1 Kirby 65, 68

reach the conduct. This “description happens to fit pirates to a tee.”
Eugene Kontorovich, The “Define and Punish” Clause and the Limits
of Universal Jurisdiction, 103 NW. U. L. REV. 149, 189 (2009) (citing
4 BLACKSTONE’S COMMENTARIES *71). Further, Exxon fails to
address developments in response to Palmer, namely that in 1819
Congress amended the Crimes Act of 1790 to provide:

That if any person or persons whatsoever, shall, on the high
seas, commit the crime of piracy, as defined by the law of
nations, . . . every such offender or offenders shall . . . be
punished with death.

Act of March 3, 1819, ch. 77, § 5, 3 Stat. 510 (1819) (emphasis
added). The 1819 Act was indefinitely extended, Act of May 15,
1820, ch. 113, § 2, 3 Stat. 600 (1820), and the crime of piracy today
is “nearly identical,” Hasan, 747 F. Supp. 2d at 614 (citing 18 U.S.C.
§ 1651 and, inter alia, United States v. Corrie, 25 F. Cas. 658, 663
(C.C.D.S.C. 1860) (No. 14,869)). Other cases, such as The Apollon,
22 U.S. at 370, and Rose v. Himely, 8 U.S. at 279, on which Exxon (a
U.S. citizen) relies, and the prize court cases on which amici
Washington Legal Foundation and Allied Educational Foundation
rely, do not advance their extraterritorial objection.
22

(Conn. Super. Ct. 1786) (Ellsworth, J.); Mostyn v. Fabrigas,
(1774) 98 Eng. Rep. 1021 (K.B.) 1025–26; Casto, Law of
Nations, supra note 8, at 503–04 & n.205. It also would reflect
an understanding that a violation of the law of nations could
occur within the territorial jurisdiction of a foreign country and
be civilly remediable in the United States courts. As early as
1781, Lord Mansfield held in Lindo v. Rodney, 2 Doug. 614
(K.B.), reprinted in Le Caux v. Eden, (1781) 99 Eng. Rep. 375
(K.B.), that “[b]y the law of nations, and treaties, every nation
is answerable to the other for all injuries done, by sea or land,
or in fresh waters, or in port,” id. at 389 n.1, and that “every
reason which created a Prize Court as to things taken upon the
high seas, holds equally when they are thus taken at land,” id.,
citing treaties as old as 1498, id. at 389, and parliamentary acts
from the reign of King George II, id. at 392. Congress adopted
this definition of “piracy” in the Act of May 15, 1820, ch. 3,
§ 3, 3 Stat. 600 (1820).

Chancellor Kent, “the great commentator on American
law,” Holy Trinity Church v. United States, 143 U.S. 457, 470
(1892), and then “the country’s foremost legal scholar,”
Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 278 n.13
(1977), in “his landmark work,” Sun Oil Co. v. Wortman, 486
U.S. 717, 726 (1988), described both Lindo and the piracy
statute as “only declaratory of the law of nations.” 1 JAMES
KENT, COMMENTARIES ON AMERICAN LAW 189 (New York 8th
ed. 1854) (hereinafter “KENT’S COMMENTARIES”). The Crimes
Act of 1790 had similarly contemplated violations of the law
against piracy committed on land.10 Id. at 187–89. The dissent,

10
The Crimes Act of 1790 provided punishment for

every person who shall, either upon the land or the seas,
knowingly and wittingly aid and assist, procure, command,
counsel, or advise any person or persons, to do or commit . . .
23

in maintaining that the ATS ought to apply wherever piracy can
occur, see Dis. Op. at 14–16, makes no attempt to reconcile its
view with early definitions of piracy that are not limited to the
high seas.

True, the 1790 Act did not provide for primary liability for
actions taken on the land of another nation, instead providing
punishment as a principal only for crimes of piracy committed
“upon the high seas, or in any river, basin or bay, out of the
jurisdiction of any particular [U.S.] state,” ch. 9, § 8, 1 Stat. at
113–14; Furlong, 18 U.S. at 200–01. Moreover, amici suggest
that the provisions were never invoked by prosecutors in cases
involving actions taken within the territory of another nation,
Brief of Washington Legal Foundation and Allied Educational
Foundation as Amici Curiae in Support of Defendants-
Appellees (“Wash. Legal Found. Br.”) 11 n.8, although the facts
of Furlong, see supra note 7, weaken this point. Consequently,
the historical record, clear on the notion that U.S. courts at the
nation’s founding could exercise jurisdiction over at least some
international law violations committed beyond our domestic
shores and in the territorial waters of another nation, Furlong,
18 U.S. at 200–01, is nonetheless ambiguous regarding whether

piracy . . . on the seas, [and that] all and every such person so
as aforesaid, aiding, assisting, procuring, commanding,
counselling [sic] or advising the same, either upon the land
or the sea, shall be, and they are hereby declared, deemed and
adjudged to be accessary [sic] to such piracies before the fact,
and every such person being thereof convicted shall suffer
death.”

§ 10, 1 Stat. at 114 (emphasis added).
24

jurisdiction could be exercised over law of nations violations
occurring on the land of another nation.11

To the extent the historical record is inconclusive, two
modern developments convince us that it is entirely appropriate
to permit appellants to proceed with their aiding and abetting
claims even though much of the conduct relating to the
international law violations alleged in their complaint occurred
in Indonesia. First, modern ATS litigation has primarily
focused on atrocities committed in foreign countries, and
Congress in enacting the TVPA expressly endorsed federal
courts’ exercise of jurisdiction over such lawsuits. The Report
of the Senate Committee on the Judiciary states that the “TVPA
would establish an unambiguous basis for a cause of action that
has been successfully maintained” in ATS lawsuits such as
Filartiga, explaining that in that case “two citizens of Paraguay
alleged that a former Paraguayan inspector general of police had
tortured and killed a member of their family in Paraguay.” S.
REP. NO. 102-249, at 4 (1991).12 The TVPA thus “enhance[d]

11
The complaints at issue concern aiding and abetting
liability where at least some of the conduct causing harm to the
plaintiffs in Indonesia occurred in the United States. The district
court, in denying in part Exxon’s motion for summary judgment on
the non-federal tort claims, found that the plaintiffs had presented
sufficient evidence of corporate control within the United States to go
to trial. Doe I v. Exxon Mobil Corp., 573 F. Supp. 2d 16, 31–32
(D.D.C. 2008).
12
The Legal Advisor of the State Department supported
adjudication of the claims in Filartiga, participating as amicus curiae
and stating that:

The . . . international law of human rights . . . endows
individuals with the right to invoke international law, in a
competent forum and under appropriate circumstances. . . . As
25

the remedy already available under” the ATS by extending that
civil remedy also to U.S. citizens who may have been tortured
abroad. Id. at 5. Expressing approval for the ATS, the Senate
Committee report thus noted that “[c]onsequently, that statute
should remain intact.” Id. The Report of the House Committee
on the Judiciary is to the same effect. See H.R. REP. NO. 102-
367, at 3 (1991). Second, although the United States argued in
Sosa that the ATS in no way “applies to alleged torts, such as
the one [at issue in Sosa – arbitrary detention], that occur
outside of the United States,” Brief for United States at 8, Sosa,
542 U.S. 692 (2004) (No. 03-339); see also id. at 46–50; Reply
Brief for United States at 19–20, Sosa, 542 U.S. 692 (2004)
(No. 03-339), no Justice indicated agreement with the United
States’ position, cf. Sosa, 542 U.S. at 762–63 (Breyer, J.,
concurring). Given Congress’s ratification of ATS lawsuits
involving foreign conduct and the Supreme Court’s failure to
disapprove of such lawsuits in Sosa, we conclude that the
extraterritoriality canon does not bar appellants from seeking
relief based on Exxon’s alleged aiding and abetting of
international law violations committed in Indonesia.

The arguments of our dissenting colleague offer no basis
for a contrary conclusion. First, the dissent notes that injuries
of the sort alleged here, by aliens occurring abroad, could be
remedied “by foreign sovereigns under their countries’ laws.”
Dis. Op. at 12. Perhaps so, but the unchallenged finding by the

a result, in nations such as the United States where
international law is part of the law of the land, an individual’s
human rights are in certain cases directly enforceable in
domestic courts.

Memorandum for the United States as Amicus Curiae at 20, Filartiga
v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (No. 79-6090), reprinted
in 19 I.L.M. 585, 602–03 (1980).
26

district court is that the plaintiffs could not litigate their claims
in Indonesia, even assuming, as Exxon argued before the district
court, that international law required exhaustion of local
remedies, because they had demonstrated such efforts would be
futile, an exception to prudential exhaustion. Doe I, 393 F.
Supp. 2d at 25 (citing Hammontree v. NLRB, 925 F.2d 1486,
1517 (D.C. Cir. 1991); Rasoulzadeh v. Assoc. Press, 574 F.
Supp. 854, 861 (S.D.N.Y. 1983), aff’d without op. 767 F.2d 908
(2d Cir. 1985)). In Sosa, the Supreme Court referenced the
exhaustion argument by amicus European Commission but
noted that it need not reach the question although stating it
“would certainly consider this requirement in an appropriate
case.” 542 U.S. at 733 n.21. Since then the only circuit to
address the question concluded that “certain ATS claims are
appropriately considered for exhaustion under both domestic
prudential standards and core principles of international law,”
Sarei v. Rio Tinto, PLC, 550 F.3d 822, 824 (9th Cir. 2008) (en
banc), noting that “[u]nder international law, ordinarily a state
is not required to consider a claim by another state for an injury
to its national until that person has exhausted domestic
remedies, unless such remedies are clearly sham or inadequate,
or their application is unreasonably prolonged,” id. at 829
(quoting RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW
OF THE UNITED STATES § 713 cmt. f, and citing id. § 703 cmt. d,
and Interhandel (Switz. v. U.S.), 1959 I.C.J. 6, 26 (Mar. 29));
the Ninth Circuit also recognized the futility exception applied
by the district court here, id. at 830. Because Exxon has not
challenged the district court’s finding of futility, this court has
no occasion to decide the question. To the extent Exxon
suggests subsequent events in Indonesia may have rendered the
finding outdated, that issue may be addressed on remand, see
infra Part V.C.13

13
The dissent’s satisfaction with foreign domestic remedies
and use of extradition, Dis. Op. at 12 n.5, 14 n.7, undoes the First
27

Second, in deeming “very odd” that the First Congress
would be interested in protecting “a Frenchman injured in
London,” Dis. Op. at 12, the dissent ignores that the calculus
can change where a U.S. citizen is a cause of the harm.14 E.g.,
The Apollon, 22 U.S. 362; Furlong, 18 U.S. at 200–01; Rose, 8
U.S. 241. “Congress in prescribing standards of conduct for
American citizens may project the impact of its laws beyond the
territorial boundaries of the United States,” Steele v. Bulova
Watch Co., 344 U.S. 280, 282–83 (1952), especially where a
defendant engaged in acts here that “were essential steps in the
course of business consummated abroad,” id. at 287. The
Supreme Court has not found an extraterritorial bar when a
federal statute provided for criminal or civil liability for a

Congress’s decision that federal courts should be empowered to
provide a remedy for aliens suffering torts in violation of the law of
nations. Relying on foreign domestic remedies, the dissent assumes
such harms occur in the territory of the offended country and not in
the territory of a third disinterested country. Furthermore, neither
party nor amici describe the status of extradition treaties prior to the
passage of the Judiciary Act of 1789. By way of example, the Jay
Treaty with the United Kingdom permitted extradition only in cases
of murder and forgery, see Treaty of Amity, Commerce, and
Navigation, U.S.-Gr. Brit., art. XXVII, Nov. 19, 1794, 8 Stat. 116,
129, and appeared to exclude violations of the law of nations such as
piracy, see id. art. XX, 8 Stat. at 126–27.
14
The objections in some respects echo the minority views
in the Senate Committee report accompanying the TVPA, which
expressed concerns about “over-extendind[ing] Congress’s
constitutional authority” in that statute. S. REP. NO. 102-249, at 13.
But the dissent ignores the fact that both the minority and the majority
views agreed no such concern existed in a case where the “connection
to the United States . . . is clear,” id. at 14, as in Verlinden B.V. v.
Central Bank of Nigeria, 461 U.S. 480 (1983), where a foreign
defendant used a U.S. corporation as an instrumentality of a breach of
contract, id.
28

scheme devised and executed in the United States intended to
inflict harm abroad, e.g., to a Frenchman in London.15 See
Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d
909, 921–22 (D.C. Cir. 1984); cf. Pasquantino v. United States,
544 U.S. 349, 371–72 (2005). Here, appellants claim that
Exxon engaged in acts in the United States that were part and
parcel of the harm they suffered. Considering the identity of the
person causing harm to the Frenchman in London further
illuminates the First Congress’s intent. After all,

where the individuals of any state violate this general
law [of nations], it is then the interest as well as duty
of the government, under which they live, to
animadvert upon them with a becoming severity, that
the peace of the world may be maintained. For in vain
would nations, in their collective capacity, observe
these universal rules, if private subjects were at liberty
to break them at their own discretion, and involve the
two states in a war. It is therefore incumbent upon the
nation injured, first, to demand satisfaction and justice
to be done on the offender, by the state to which he
belongs; and, if that be refused or neglected, the

15
The dissent finds fault with this citation of Steele and
Pasquantino, misinterpreting their citation. The court is not, as the
dissent suggests, reading Steele “to permit application of a
nonextraterritorial statute whenever conduct in the United States
contributes to a violation abroad,” Morrison, 130 S. Ct. at 2886 n.11
(emphasis supplied). Dis. Op. at 8 n.4. Rather, the court starts with
the ATS text and history and concludes that the ATS, like the statute
at issue in Steele, grants federal courts jurisdiction over at least some
forms of extraterritorial conduct. The court cites Pasquantino only as
support for the proposition that where, as here, plaintiffs may
ultimately prove that Exxon provided substantial practical assistance,
see infra Part II.C, from its offices in the United States, jurisdiction
over extraterritorial harm is all the more appropriate.
29

sovereign then avows himself an accomplice or abettor
of his subject’s crime, and draws upon his community
the calamities of foreign war.

4 BLACKSTONE’S COMMENTARIES *67–68. Blackstone’s
representation that a foreign country could deem the United
States an “accomplice or abettor,” id. at *68, of a violation of
the law of nations if it does not censure a U.S. citizen who has
violated that law makes the First Congress’s judgment hardly
“odd” at all.

B.
The rule of statutory construction set forth in Central Bank
does not preclude recognition of aiding and abetting liability for
claims under the ATS. In Central Bank, the Supreme Court held
that although § 10(b) of the Securities and Exchange Act, 15
U.S.C. § 78j, did not prohibit aiding and abetting liability, “the
private plaintiff may not bring a 10b-5 suit against a defendant
for acts not prohibited by the text of § 10(b),” 511 U.S. at 173.
The Court declined to create a presumption against aiding and
abetting liability, but instructed that when Congress enacts a
statute, there is no presumption in favor of aiding and abetting
liability. Id. at 182. Our conclusion that there is aiding and
abetting liability under the ATS is not based on a presumption
in favor of aiding and abetting liability.

The ATS provides jurisdiction for the federal courts to hear
lawsuits regarding torts “committed in violation of the law of
nations.” 28 U.S.C. § 1350. Congress thus directed that the
courts derive the rule of law from the law of nations, and that
law extends responsibility for conduct violating its norms to
aiders and abettors. The “Supreme Court’s instruction in
Central Bank that ‘when Congress enacts a statute under which
a person may sue and recover damages from a private defendant
for the defendant’s violation of some statutory norm, there is no
30

general presumption that the plaintiff may also sue aiders and
abettors,’ is thus inapposite.” Khulumani, 504 F.3d at 282
(Katzmann, J., concurring) (quoting Central Bank, 511 U.S. at
182) (internal citation omitted); see also id. at 288 n.5 (Hall, J.,
concurring); William R. Casto, The New Federal Common Law
of Tort Remedies for Violations of International Law, 37
RUTGERS L.J. 635, 650 (2006) (hereinafter “Casto, Federal
Common Law”).
Ample authority supports the conclusion that the First
Congress considered aiding and abetting itself to be a violation
of the law of nations. All three branches of government had
addressed the subject and were in accord. Congress in 1790
enacted a piracy law providing for aiding and abetting liability.
Crimes Act of 1790, § 10, 1 Stat. at 114. President George
Washington, in response to the state of hostilities in Europe
following the French Revolution, issued the Proclamation of
Neutrality in 1793, warning “the citizens of the United States
carefully to avoid all acts and proceedings” that would
contravene that neutrality and “mak[ing] known that” citizens
would render themselves “liable to punishment or forfeiture
under the law of nations by committing, aiding, or abetting
hostilities against any” power involved in the general conflict
“or by carrying to any of them those articles which are deemed
contraband by the modern usage of nations.” Proclamation No.
3 (1793), reprinted in 11 Stat. 753 (1859) (emphasis added). So
too, the 1795 opinion of Attorney General Bradford stated that
civil recovery could be had in federal court against U.S. citizens
who “aided and abetted” the French privateer fleet in its plunder
of Sierra Leone. 1 U.S. Op. Att’y Gen. at 58; see also Sosa, 542
U.S. at 721. An early decision of the Supreme Court upheld
aiding and abetting liability for the unlawful capture of a neutral
31

ship. See Talbot, 3 U.S. at 167–68; see also Henfield’s Case, 11
F. Cas. 1099.16

Because aiding and abetting liability implicates the
character of the “specific conduct allegedly committed by the
defendants sued,” Khulumani, 504 F.3d at 269 (Katzmann, J.
concurring), adopted in Presbyterian Church of Sudan, 582 F.3d
at 258, the conduct must represent a violation of an international

16
Henfield’s Case involved a U.S. citizen accused of illegally
enlisting with a French privateer. Chief Justice John Jay, sitting on
circuit, instructed the grand jury that: (1) “the laws of the United
States” consisted of treaties, the law of nations, and the Constitution
and statutes of the United States, 11 F. Cas. at 1100–01; (2)
“circumstances and considerations now unite in urging the people of
the United States to be particularly exact and circumspect in observing
the obligation of treaties, and the laws of nations, which . . . form a
very important part of the laws of our nation,” id. at 1102; (3)
President Washington’s proclamation had been “exactly consistent
with and declaratory of . . . the law of nations,” id.; (4) if a nation
“let[s] loose the reins of [its] subjects against foreign nations, these
will behave in the same manner to [it],” id. at 1103; and (5) those
“who commit, aid, or abet hostilities against” the European nations in
violation of neutrality must be punished, id. at 1104 (emphasis added),
and “[w]hat acts amount to committing, or aiding, or abetting
hostilities, must be determined by the laws and approved practice of
nations, and by the treaties and other laws of the United States relative
to such cases,” id. (emphasis added). The grand jury charge was
apparently published to explain the effect of the 1793 Proclamation at
home and abroad. See Casto, Law of Nations, supra note 8, at 502 &
n.193 (citing Ralph Lerner, The Supreme Court as Republican
Schoolmaster, 1967 SUP. CT. REV. 127; FRANCIS WHARTON, STATE
TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF
WASHINGTON AND ADAMS (hereinafter “WHARTON’S STATE TRIALS”)
49 n.* (1849); JULIUS GOEBEL, JR., HISTORY OF THE SUPREME COURT
OF THE UNITED STATES, ANTECEDENTS AND BEGINNINGS TO 1801, at
623–24 (1971)).
32

law norm with at least as “definite content and acceptance
among civilized nations [as] the historical paradigms familiar”
in 1789, Sosa, 542 U.S. at 732. To the extent the district court
in Doe I, 393 F. Supp. 2d at 24, concluded that aiding and
abetting liability would be an “‘innovative interpretation[ ]’ of
the Alien Tort Statute” that could result in “collateral
consequences and possible foreign relations repercussions,” the
Second Circuit has since held that there can be aiding and
abetting liability under the ATS, see Presbyterian Church of
Sudan, 582 F.3d at 258–59; Khulumani, 504 F.3d at 260 (per
curiam). The Eleventh Circuit has also held that aiding and
abetting liability is available under the ATS. See Sinaltrainal v.
Coca-Cola Co., 578 F.3d 1252, 1258 n.5 (11th Cir. 2009);
Romero v. Drummond Co., Inc., 552 F.3d 1303, 1315 (11th Cir.
2008); Aldana v. Del Monte Fresh Produce N.A., 416 F.3d 1242,
1248 (11th Cir. 2005). Both courts reached this conclusion upon
looking to customary international law, see Presbyterian Church
of Sudan, 582 F.3d at 258; Aldana, 416 F.3d at 1247–48, to
which we now turn.

Decisions of the courts established by the U.N. Security
Council, the International Military Tribunal at Nuremberg
established in the Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis,
Aug. 8, 1945, U.N.T.S. 280 (hereinafter “London Charter”), and
the several Nuremberg tribunals are recognized as an
authoritative source of customary international law. See, e.g.,
Flores v. S. Peru Copper Corp., 414 F.3d 233, 244 n.18 (2d Cir.
2003); United States v. Yousef, 327 F.3d 56, 105 nn.39–40 (2d
Cir. 2003); cf. Hamdan v. Rumsfeld, 548 U.S. 557, 610 & n.40
(2006); Princz v. Federal Republic of Germany, 26 F.3d 1166,
1174 (D.C. Cir. 1994), cert. denied, 513 U.S. 1121 (1995). See
generally Theodor Meron, Reflections on the Prosecution of
War Crimes by International Tribunals, 100 AM. J. INT’L L. 551,
559 (2006). The General Assembly of the United Nations has
33

unanimously affirmed the principles of international law
recognized by the London Charter and the Nuremberg tribunals.
See Affirmation of the Principles of International Law
Recognized by the Charter of the Nürnberg Tribunal, G.A. Res.
95(I), U.N. Doc. A/236 (Dec. 11, 1946) (“Nuremberg Principles
Resolution I”). Exxon does not dispute that the London Charter
and the cases prosecuted thereunder constitute sources of
customary international law.

“[C]riminal responsibility of those who aid and abet
violations of international law” has been “accepted as one of the
core principles of the post-World War II war crimes trials.”
Khulumani, 504 F.3d at 273 (Katzmann, J., concurring). The
London Charter extended responsibility for crimes to
“accomplices participating in the formulation or execution of a
common plan or conspiracy to commit” any of the crimes triable
by the Tribunal. London Charter art. 6, 82 U.N.T.S. 282. At the
direction of the U.N. General Assembly, the International Law
Commission (“ILC”) in 1950 formulated “principles recognized
in the Charter . . . and in the judgment of the Tribunal,” as a
codification of certain legal principles applied by the Nuremberg
tribunals. See Nuremberg Principles Resolution I; see also
Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber
Judgement, ¶ 526 (Sept. 2, 1998); Prosecutor v. Milosevic, Case
No. IT-02-54, Trial Chamber Decision on Preliminary Motions,
¶¶ 29–30 (Nov. 8, 2001). Principle VII provided that
“[c]omplicity in the commission of a crime against peace, a war
crime, or a crime against humanity . . . is a crime under
international law.” ILC, Principles of International Law
Recognized in the Charter of the Nürnberg Tribunal and in the
Judgment of the Tribunal, G.A.O.R., 5th session, Supp. No. 12,
U.N. Doc. A/1316, Principle VII (1950) (“ILC Principles”).
Implementing the London Charter, the joint Allied body
coordinating the governance of postwar Germany promulgated
Control Council Law No. 10 to impose criminal liability on
34

whomever was “an accessory to the commission of any such
crime or ordered or abetted the same.” Allied Control Council
Law No. 10, art. II, § 2 (Dec. 20, 1945) (“Control Council Law
No. 10”), in 1 ENACTMENTS AND APPROVED PAPERS OF THE
CONTROL COUNCIL AND COORDINATING COMMITTEE 306 (1945)
(“ENACTMENTS”); see Khulumani, 504 F.3d at 272 (Katzmann,
J., concurring); Flick v. Johnson, 174 F.2d 983, 985–86 (D.C.
Cir. 1949).

The U.N. Security Council resolutions establishing the
International Criminal Tribunal for the Former Yugoslavia
(“ICTY”) and the International Criminal Tribunal for Rwanda
(“ICTR”) likewise imposed liability on any “person who
planned, instigated, ordered, committed or otherwise aided and
abetted in the planning, preparation or execution” of a crime.
Statute of the International Criminal Tribunal for the Former
Yugoslavia, art. 7, U.N. Doc. S/25704 annex (May 3, 1993)
(“ICTY Statute”), adopted in S.C. Res. 827, U.N. Doc.
S/RES/827 (May 25, 1993); Statute of the International Criminal
Tribunal for Rwanda, art. 6, S.C. Res. 955, U.N. Doc.
S/RES/955 annex (Nov. 8, 1994) (“ICTR Statute”). The
Secretary General of the United Nations explained that “in
assigning to the International Tribunal the task of prosecuting
persons responsible for serious violations of international
humanitarian law, the Security Council would not be creating or
purporting to ‘legislate’ that law. Rather, the International
Tribunal would have the task of applying existing international
humanitarian law.” Report of the Secretary-General Pursuant to
Paragraph 2 of Security Council Resolution 808, ¶ 29, U.N. Doc.
S/25704 (May 3, 1993) (“Sec’y General ICTY Report”). The
ICTY’s jurisdiction was limited to “rules of international
humanitarian law which are beyond any doubt part of customary
[international] law.” Id. ¶ 34; see Khulumani, 504 F.3d at 275
(Katzmann, J., concurring) (citing Prosecutor v. Furundzija,
Case No. IT-95-17/1 Trial Chamber Judgement, ¶¶ 249, 275
35

(Dec. 10, 1998); Prosecutor v. Tadic, Case No. IT-94-1-T, Trial
Chamber Opinion and Judgement, ¶¶ 689–92, 730, 735, 738
(May 7, 1997)). The ICTY emphasized that it was required to
determine “the objective basis for such individual responsibility
as a matter of customary international law . . . since the
International Tribunal is only empowered to apply international
humanitarian law that is ‘beyond any doubt customary law.’”
Tadic, Trial Chamber Opinion and Judgement, ¶ 662 (quoting
Sec’y General ICTY Report ¶ 34). The ICTR has a similar
mandate to that of the ICTY but also encompasses several
treaties. See Report of the Secretary-General Pursuant to
Paragraph 5 of the Security Council Resolution 955, ¶ 12, U.N.
Doc. S/1995/134 (Feb. 13, 1995).

Federal courts have, in turn, relied on international criminal
law norms in establishing the content of the law of nations. See,
e.g., Khulumani, 504 F.3d at 270 (Katzmann, J., concurring);
Kadic, 70 F.3d at 241–43; see also Sosa, 542 U.S. at 762–63
(Breyer, J., concurring).17 These authorities and sources confirm
that aiding and abetting liability is clearly established in the law
of nations and consequently such liability is available under the
ATS.

17
As the Seventh Circuit has pointed out:

Crimes and torts frequently overlap. In particular, most
crimes that cause definite losses to ascertainable victims are
also torts: the crime of theft is the tort of conversion; the
crime of assault is the tort of battery . . . . [In] a much earlier
era of Anglo-American law, . . . criminal and tort
proceedings were not clearly distinguished.

United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999) (citing, inter
alia, David J. Seipp, The Distinction Between Crime and Tort in the
Early Common Law, 76 B.U. L. REV. 59, 81 (1996)).
36

C.
The question remains what intent must be proved for aiding
and abetting liability under the ATS. Appellants suggest that the
federal common law standard for aiding and abetting —
knowing assistance that has a substantial effect on the
commission of the human rights violation — is well established
and that the standard under customary international law is
essentially the same. Exxon urges the court to follow the
Second Circuit in Presbyterian Church of Sudan, 582 F.3d at
259, by requiring proof that the defendant acted with the purpose
of committing the alleged human rights violation, maintaining
that “[i]f a federal common law aiding and abetting cause of
action is to be recognized under the ATS, then Sosa requires that
the scope of the federal common law rule derive from
international law.” Appellees’ Br. 40.

In Sosa, the Supreme Court stated that the ATS’s
“jurisdictional grant is best read as having been enacted on the
understanding that the common law would provide a cause of
action.” 542 U.S. at 724. From this statement appellants draw
the conclusion that federal common law provides the standard
for aiding and abetting liability. Judge Edwards similarly
observed in Tel-Oren, 726 F.2d at 777–78, that “the law of
nations never has been perceived to create or define the civil
actions to be made available by each member of the community
of nations; by consensus, the states leave that determination to
their respective municipal laws.” Appellants also cite the United
States’ amicus brief in the Second Circuit urging that the
“validity of a federal-common-law claim under Sosa should
generally be treated as a merits question, with the ATS
conferring subject-matter jurisdiction so long as the allegations
of a violation of customary international law are not plainly
insubstantial.” Brief for the United States as Amicus Curiae at
20, Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009) (Nos.
05-48630-cv & 05-6768-cv). Appellants suggest that “[t]he
37

application of domestic common law standards is essential
because international law does not ordinarily provide for the
means of its own enforcement in domestic courts,” Appellants’
Br. 33, and in their view, the Supreme Court in Sosa, 542 U.S.
at 731, “endorsed Judge Edwards’ view that domestic rules
govern the litigation of ATS claims in U.S. courts,” Appellants’
Br. 33–34.

The history of the ATS examined by the Supreme Court in
Sosa, 542 U.S. at 731, indicated the First Congress’s
understanding that federal common law would supply the rules
in ATS cases. Amici law professors in Sosa noted that when the
ATS was enacted there was no clear distinction between
common law and customary international law. See Brief of
Professors of Federal Jurisdiction and Legal History as Amici
Curiae in Support of Respondents, Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) (No. 03-339), reprinted in 28 HASTINGS
INT’L & COMP. L. REV. 99, 109 (2004) (“Sosa Legal History
Amicus Br.”). Courts routinely treated causes of action arising
under international law as they did other common law torts – by
applying general common law principles. See, e.g., Talbot, 3
U.S. (3 Dall.) at 155–58 (Paterson, J.); id. at 161 (Iredell, J.); id.
at 169 (Rutledge, C.J.); United States v. Benner, 24 F. Cas. 1084,
1087 (C.C.E.D. Pa. 1830) (No. 14,568). Appellants maintain
that the application of common law rules to ATS cases is
consistent with the way in which federal courts implement other
federal statutes. See, e.g., United States v. Kimbell Foods, Inc.,
440 U.S. 715, 727 (1979); see also Tex. Indus., Inc. v. Radcliff
Materials, Inc., 451 U.S. 630, 641 (1981). The Eleventh Circuit
has adopted this approach, holding that a knowledge standard
applies because that is the standard under federal common law.
See Cabello v. Fernandez-Larios, 402 F.3d 1148, 1157–60 (11th
Cir. 2005); cf. Doe v. Islamic Salvation Front, 257 F. Supp. 2d
115, 120 n.12 (D.D.C. 2003).
38

That a particular cause of action cognizable under the ATS
is to be recognized as a federal common law claim, however,
does not identify the source of law to which the court must look
for a standard. The Supreme Court in Sosa mandated that courts
recognize only “a narrow set of common law actions derived
from the law of nations.” 542 U.S. at 721. In so doing, a court
must identify a norm for conduct of no less “definite content and
acceptance among civilized nations than the historical paradigms
familiar when § 1350 was enacted,” id. at 732, to which the
international community expresses approbation or
disapprobation.18 Aiding and abetting liability, while
supplemental to some other alleged tort liability, is based on
conduct distinct from the conduct of the principal actor.
Consistent with Sosa, the question is whether the international
community would express definite disapprobation toward aiding
and abetting conduct only when based on a particular standard.
The court therefore looks to customary international law to
determine the standard for assessing aiding and abetting liability,
much as we did in addressing availability of aiding and abetting
liability itself. Important sources are the international tribunals

18
“A norm prescribes or permits a certain human behavior,”
HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 6 (1966); it
determines what “ought” to happen or, the meaning of conduct, that
is, whether one ought or ought not engage in particular behavior,
HANS KELSEN, GENERAL THEORY OF NORMS 2 (1991). International
law embraces the concept of a peremptory norm, one that is “accepted
and recognized by the international community of states as a whole
and from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the
same character.” Art. 53, Vienna Convention on the Law of Treaties,
May 23, 1969, 1155 U.N.T.S. 331; see also RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 cmt. k; 1
OPPENHEIM’S INTERNATIONAL LAW § 2 (Sir Robert Jennings & Sir
Arthur Watts, eds., 9th ed. 1996); Prosper Weil, Towards Relative
Normativity in International Law, 77 AM. J. INT’L L. 413, 421 (1983).
39

mandated by their charter to apply only customary international
law. Two such tribunals, the International Criminal Tribunals
for the Former Yugoslavia and Rwanda, are considered
authoritative sources of customary international law. See, e.g.,
Hamdan, 548 U.S. at 611 n.40; Abagninin v. AMVAC Chem.
Corp., 545 F.3d 733, 739 (9th Cir. 2008); Ford ex rel. Estate of
Ford v. Garcia, 289 F.3d 1283, 1293 (11th Cir. 2002). They
have declared the knowledge standard suffices under customary
international law.19

The ICTY, in addressing whether the accomplice20 must
“share the mens rea of the principal or whether mere
knowledge” will suffice, concluded that “the latter will suffice.”
Furundzija, Trial Chamber Judgement, ¶ 236. It is not necessary
that the aider and abettor “shares the mens rea of the perpetrator,
in the sense of positive intention to commit the crime,” provided
he “ha[s] knowledge that his actions will assist the perpetrator

19
The knowledge standard appears to conform with the
standard for aiding and abetting liability in many other countries,
including France, Germany, England, Canada, Australia, and
Switzerland. See Krstic, Appeals Judgement, ¶¶ 140–41; Brief of
Amici Curiae International Law Scholars in Support of Plaintiffs-
Appellants Seeking Reversal (“Int’l Law Scholars Amicus Br.”)
16–17.
20
The ICTY and the ICTR opinions refer to “accomplice”
and “aiding and abetting” liability interchangeably, e.g., Furundzija,
Trial Chamber Judgement, ¶¶ 190–249, and that understanding is
reflected in the London Charter and the opinions of the Nuremberg
tribunals, see Khulumani, 504 F.3d at 272 (Katzmann, J., concurring).
40

in the commission of the crime.” Id. ¶ 245.21 The Trial
Chamber’s judgment states:

[T]he actus reus [of aiding and abetting] consists of
practical assistance, encouragement, or moral support
which has a substantial effect on the perpetration of the
crime. The mens rea required is the knowledge that
these acts assist the commission of the offense.

Id. ¶ 249; see also id. ¶¶ 238–40, 245–46 (citing inter alia, In re
Tesch, 1 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93);
Prosecutor v. Krstic, Case No. IT-98-33-A, Appeals Judgement,
¶¶ 139–41 (Apr. 19, 2004); Prosecutor v. Delalic, Case No. IT-
96-21-I, Trial Chamber Judgement, ¶¶ 325–29 (Nov. 16, 1998);
Tadic, Trial Chamber Judgement, ¶¶ 674, 692. The ICTR is in
agreement. See Prosecutor v. Ntakirutimana, Case No. ICTR-
96-13-I, Appeals Judgement, ¶ 501 (Dec. 13, 2004); Prosecutor
v. Musema, Case No. ICTR-96-13-I, Trial Chamber Judgement,
¶¶ 180–82 (Jan. 27, 2000). The parties do not suggest that the

21
The Trial Chamber in Furundzija further emphasized that
the knowledge standard:

is particularly apparent from all the cases in which persons
were convicted for having driven victims and perpetrators to
the site of an execution. In those cases the prosecution did
not prove that the driver drove for the purpose of assisting in
the killing, that is, with an intention to kill. It was the
knowledge of the criminal purpose of the executioners that
rendered the driver liable as an aider and abettor.
Consequently, if it were not proven that a driver would
reasonably have known that the purpose of the trip was an
unlawful execution, he would be acquitted.

Id.
41

approach of the ICTY and the ICTR is inconsistent with the
federal standard for aiding and abetting liability.

In Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983),
which the Supreme Court described as “a comprehensive
opinion on the subject [of aiding and abetting],” Central Bank,
511 U.S. at 181, this court defined the scope of aiding and
abetting for tort liability in the civil context as follows:

(1) the party whom the defendant aids must perform a
wrongful act that causes an injury; (2) the defendant
must be generally aware of his role as part of an overall
illegal or tortious activity at the time that he provides
the assistance; (3) the defendant must knowingly and
substantially assist the principal violation.

705 F.2d at 477 (citing, inter alia, RESTATEMENT (SECOND) OF
TORTS § 876 (1979), which provides: “For harm resulting to a
third person from the tortious conduct of another, one is subject
to liability if he . . . (b) knows that the other’s conduct
constitutes a breach of duty and gives substantial assistance or
encouragement to the other so to conduct himself.”). In
Halberstam, the court cited five factors relevant in determining
whether the defendant’s assistance was sufficiently substantial:
“‘the nature of the act encouraged, the amount of assistance
given by the defendant, his presence or absence at the time of
the tort, his relation to the other [tortfeasor] and his state of
mind.’” Id. at 478 (alteration in original) (quoting
RESTATEMENT (SECOND) OF TORTS § 876 cmt. d). The Eleventh
Circuit has adopted the Halberstam standard in ATS and TVPA
litigation. See Cabello, 402 F.3d at 1158–59 (citing Halberstam,
705 F.2d at 481, 487). To the extent that the federal common
law and the customary international law standards do not differ,
a court may, for purposes of applying the actus reus and mens
42

rea standards, turn to the federal common law knowledge
standard in addressing claims under the ATS.

The Second Circuit, in Presbyterian Church of Sudan, 582
F.3d at 259, nonetheless held that the aider and abettor must
share the same purpose as the principal actor, relying on the
Rome Statute of the International Criminal Court (“Rome
Statute”), July 17, 1998, 2187 U.N.T.S. 90, and United States v.
von Weizsaecker (“The Ministries Case”), in 14 TRIALS OF WAR
CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS
UNDER CONTROL COUNCIL LAW NO. 10, at 308, 622 (1997)
(“TRIALS OF WAR CRIMINALS”); see also Khulumani, 504 F.3d
at 276 (Katzmann, J., concurring). Under that standard, “the
defendant (1) provides practical assistance to the principal which
has a substantial effect on the perpetration of the crime, and (2)
does so with the purpose of facilitating the commission of that
crime.” Khulumani, 504 F.3d at 277 (Katzmann, J., concurring).
The Second Circuit reasoned that whether to recognize “aiding
and abetting liability is no less significant a decision than
whether to recognize a whole new tort in the first place,”
Presbyterian Church of Sudan, 582 F.3d at 259, and consistent
with Sosa’s command about the definiteness of new norms, it
concluded from those two sources that “no such [international]
consensus exists for imposing liability on individuals who
knowingly (but not purposefully) aid and abet a violation of
international law,” id.

Although we agree with the Second Circuit’s premise that
aiding and abetting must be embodied in a norm of customary
international law, amici international law scholars point out why
its conclusion was flawed. The Rome Statute, which created the
International Criminal Court (“ICC”), is properly viewed in the
nature of a treaty and not as customary international law. See
Int’l Law Scholars Amicus Br. 19–20 (citing Rome Statute, art.
10; Leila Nadya Sadat, Custom, Codification and Some
43

Thoughts About the Relationship Between the Two: Article 10 of
the ICC Statute, 49 DEPAUL L. REV. 909, 911 & n.11, 917
(2000); Otto Triffterer, Article 10, in COMMENTARY ON THE
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 317
(Otto Triffterer ed., 1999)). It specifically provides in Article 10
that it is not to “be interpreted as limiting or prejudicing in any
way existing or developing rules of international law.” This
acknowledges that the Rome Statute was not meant to affect or
amend existing customary international law. See Int’l Law
Scholars Amicus Br. 19. As a treaty, the Rome Statute binds
only those countries that have ratified it, see Military and
Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 175
(June 27), and the United States has not,22 see U.S. CONST. art.
II, § 2, cl. 2; Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1869);
Abagninin, 545 F.3d at 738; see also Statute of the International
Court of Justice (“ICJ Statute”), June 26, 1945, art. 38(1)(a), 59
Stat. 1055, 1060, 832 U.S.T.S. 993. 23 The

22
President Clinton signed the Rome Statute stating: “I will
not, and do not recommend that my successor submit the Treaty to the
Senate for advice and consent.” White House Office of
Communications, Statement by President on Signature of the ICC
Treaty (Jan. 2, 2001), available at 2001 WL 6008. On May 6, 2002,
President Bush withdrew the signature of the United States from the
Statute. See Letter of John R. Bolton, Under Sec’y of State for Arms
Control and Int’l Sec., to Kofi Annan, Sec’y Gen. of the United
Nations (May 6, 2002). By contrast, the United States Representative
to the United Nations voted in the U.N. Security Council to create
both the ICTY and the ICTR; the votes were unanimous, except for
the vote of the representative from Rwanda against creation of the
ICTR. Laura Bingham, Strategy or Process? Closing the
International Criminal Tribunals for the Former Yugoslavia and
Rwanda, 24 BERKELEY J. INT’L L. 687, 695 (2006).
23
Article 38 of the ICJ Statute, which “embodies the
understanding of States as to what sources offer competent proof of
44

the content of customary international law,” Flores, 414 F.3d at 251,
provides:

The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply:
a. international conventions, whether general or
particular, establishing rules expressly recognized by
the contesting states;
b. international custom, as evidence of a general
practice accepted as law;
c. the general principles of law recognized by
civilized nations;
d. . . . judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of
law.

ICJ Statute, art. 38; see also RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES §§ 102(1), 103(2).

Our dissenting colleague incorrectly implies that the definition
of customary international law is synonymous with the law of nations.
Dis. Op. at 1, 26 n.10. Rather, as the ICJ Statute indicates, customary
international law is one of the sources for the law of nations. The
misconception appears also in Kiobel, 621 F.3d at 116, and Flores,
414 F.3d at 237 & n.2, where the cited authorities for treating the “law
of nations” as a synonym for “customary international law” do not
support the proposition. Nor did the Supreme Court in Sosa treat as
equivalent customary international law and the law of nations
generally. In Sosa the notion of customary international law is not
discussed until Part IV.C, where the Court addresses whether Alvarez-
Machain’s abduction and arrest could be considered a violation of an
international norm of a sufficiently specific character to be cognizable
under the ATS. 542 U.S. at 735–37. By contrast, where the Supreme
Court reaches a general conclusion it refers to “international law” or
the “law of nations” without modification. See, e.g., id. at 712, 714,
45

ICC has recognized that the Rome Statute does not necessarily
represent customary international law. Prosecutor v. Germain
Katanga and Mathieu Ngudjolo Chui, Case No. ICC-
01/14/01/07, Decision on the Confirmation of Charges, ¶¶
507–08 (Sept. 30, 2008).24

715 (quoting The Paquette Habana, 175 U.S. 677, 686 (1900)). The
Court’s rejection of Alvarez-Machain’s claim because the defendant’s
conduct “violate[d] no norm of customary international law so well
defined as to support the creation of a federal remedy,” id. at 738,
necessarily requires for liability to exist under the ATS, a finding that
the defendant either violated a norm of customary international law or
a treaty to which the United States is a party. This follows not from
the fact that the “law of nations” is synonymous with “customary
international law.” Countless sources of international law
conclusively demonstrate otherwise, see generally LOUIS HENKIN,
RICHARD CRAWFORD PUGH & OSCAR SCHACHTER, INTERNATIONAL
LAW 51–149 (3d ed. 1993), and this court ought not assume that the
Court misstated international law, cf. Murray v. The Schooner
Charming Betsy, 8 U.S. (4 Cranch) 241, 279 (1808). Rather, in stating
that courts must engage in some form of common lawmaking subject
to “vigilant doorkeeping,” Sosa, 542 U.S. at 729, the Court
emphasized that the violation of a norm of customary international law
is a necessary condition to the recognition under federal common law
of a plaintiff’s claim. This by no means indicates that customary
international law constitutes the entire corpus of international law or
that this court, in exercising its common law authority to decide
interstitial and technical questions appurtenant to the substantive norm
of primary conduct, which is governed by customary international law,
may not look to guidance from other sources of international law.
24
Appellants direct the court to the amicus brief filed by
David J. Scheffer, former U.S. Ambassador-at-Large for War Crimes
Issues and head of the U.S. delegation involved in negotiating the
Rome Statute. Brief of David J. Scheffer, Director of the Center for
International Human Rights, as Amicus Curiae in Support of the
Issuance of a Writ of Certiorari, Presbyterian Church of Sudan v.
46

Even were we to agree that the Rome Statute reflects
customary international law, the Second Circuit’s interpretation
in Khulumani, 504 F.3d at 276 (Katzmann, J., concurring), and
Presbyterian Church of Sudan, 582 F.3d at 259, appears
inconsistent with its provisions. Article 25(3)(c) of the Rome
Statute provides for liability if an individual, “[f]or 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.” Rome
Statute, art. 25(3)(c) (emphasis added). Article 25(3)(d)
provides liability for an individual who “contributes to the
commission or attempted commission of such a crime by a
group of persons acting with a common purpose” where such
contribution is “intentional” and either “made with the aim of
furthering the criminal activity or criminal purpose of the group”
or “made in the knowledge of the intention of the group to
commit the crime.” Id. art. 25(3)(d) (emphasis added). Article
30 provides that “a person has intent where . . . [i]n relation to a
consequence, that person means to cause that consequence or is
aware that it will occur in the ordinary course of events.” Id. art.
30(2)(b) (emphasis added). Although the text of Article
25(3)(c) appears to require proof of “purpose,” the text of
Article 25(3)(d) requires no more than “knowledge.” Given that
Exxon is alleged to have aided and abetted the Indonesian
military forces, which in turn are alleged to have committed

Talisman Energy, Inc. (May 20, 2010) (No. 09-1262), cert. denied,
131 S. Ct. 79 (2010). Ambassador Scheffer states that the provisions
on accessorial liability were a “negotiated compromise among mostly
common law and civil law governments after years of talks leading to
the Rome Statute and [were] not finalized to express a rule of
customary law.” Id. at 3; see also id. at 7, 9–13; David J. Scheffer &
Caroline Kaeb, The Five Levels of CSR Compliance: The Resiliency
of Corporate Liability Under the Alien Tort Statute and the Case for
a Counterattack Strategy in Compliance Theory, 29 BERKELEY J.
INT’L L. 334, 348–51 (2011) (hereinafter “Scheffer & Kaeb”).
47

violations of the law of nations against appellants, were the
Rome Statute to apply it appears that Article 25(3)(d) and its
mens rea of “knowledge” would apply. Cf. Prosecutor v.
Thomas Lubanga Dyilo, Case No. ICC/01/04-01/06, Pre-Trial
Chamber Decision on the Confirmation of Charges (Jan. 29,
2007) (applying a “knowledge” standard under Article 25(3)(a)
to international law violations by co-perpetrator). To the same
effect are decisions applying Article 30, which defines the mens
rea requirement of intent to include “knowledge,” such as
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui,
Case No. ICC-01/14-01/07, Decision on the Confirmation of
Charges, ¶¶ 528, 530 (Sept. 30, 2008), Prosecutor v. Jean-Pierre
Bemba Gombo, ICC-01/05-01/08, Decision on the Confirmation
of Charges, ¶ 359 (June 15, 2009), and Prosecutor v. Abdallah
Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus,
ICC-02/05-03/09, Decision on the Confirmation of Charges, ¶¶
156–57 (Mar. 7, 2011). The ICTY has also observed that the
Rome Statute embraces a knowledge standard of mens rea for
aiding and abetting. See Furundzija, Trial Chamber Judgement,
¶ 243–44 & n.266.25

Finally, focusing only on The Ministries Case overlooks the
fact that in numerous decisions of the Nuremberg tribunals
defendants were convicted as aiders and abettors based on a
mens rea of knowledge and not purpose. See Int’l Law Scholars
Amicus Br. 21. Amici cite as examples United States v.
Ohlendorf, in 4 TRIALS OF WAR CRIMINALS 568–70 (defendant
“was aware that the people listed would be executed when
found”); United States v. Flick, 6 TRIALS OF WAR CRIMINALS
1217, 1222 (defendant knowingly contributed money to an
organization even though it was “unthinkable” he would
“willingly be a party” to atrocities); In re Tesch, 13 INT’L L. REP.
250 (1947) (defendant acted “with knowledge” that gas would

25
See Scheffer & Kaeb, supra note 24, at 251–57.
48

be used to kill prisoners). See Int’l Law Scholars Amicus Br.
21. These cases are not addressed by the Second Circuit in
either Presbyterian Church of Sudan or Judge Katzmann’s
concurring opinion in Khulumani. But see Khulumani, 504 F.3d
at 290 (Hall, J., concurring).

Instead, the Second Circuit considered only one of the
decisions rendered in the multi-defendant prosecution in The
Ministries Case. In Presbyterian Church of Sudan, 582 F.3d at
251, and Khulumani, 504 F.3d at 276 (Katzmann, J.,
concurring), that court examined the case of Karl Rasche, the
Chairman of Dresdner Bank, who was acquitted of war crimes
and crimes against humanity on an aiding and abetting theory,
14 TRIALS OF WAR CRIMINALS 622, although convicted on other
charges, id. at 784. Yet in the same proceeding the Tribunal
convicted Emil Puhl, deputy to the president of the German
Reichsbank, based on the same charge and theory, where he
knowingly took part in disposing of gold, including gold teeth
and crowns and other valuables looted from Holocaust victims,
even though he did not share the intent of the Holocaust
perpetrators and did not “originate[ ] the matter [that] was
probably repugnant to him.” Id. at 621. The Tribunal concluded
that Puhl had no part in the actual extermination of concentration
camp inmates, and that it had “no doubt that he would not, even
under orders, have participated in that part of the program.” Id.
at 620–21. The distinction for the Tribunal appears to have been
not that Rasche had mere knowledge of the activities of the
German Nazis whereas Puhl had purpose; both had knowledge
only. Instead the actus reus was the critical distinction relied on
by the Tribunal.26 Rasche’s activities never went beyond his

26
The Tribunal stated, with respect to Rasche,

[t]he real question is, is it a crime to make a loan, knowing or
having good reason to believe that the borrower will us[e] the
49

routine duties as a banker and, thus, he had not committed an
actus reus sufficient to convict. By contrast, Puhl had engaged
in activities beyond his routine banking duties in order to assist
the primary perpetrators. The Second Circuit never considered
the implications of Puhl’s conviction for the scope of aiding and

funds in financing enterprises which are employed in using
labor in violation of either national or international law?
Does he stand in any different position than one who sells
supplies or raw materials to a builder building a house,
knowing that the structure will be used for an unlawful
purpose? A bank sells money or credit in the same manner as
the merchandiser of any other commodity. It does not
become a partner in enterprise, and the interest charged is
merely the gross profit which the bank realizes from the
transaction, out of which it must deduct its business costs, and
from which it hopes to realize a net profit. Loans or sale of
commodities to be used in an unlawful enterprise may well be
condemned from a moral standpoint and reflect no credit on
the part of the lender or seller in either case, but the
transaction can hardly be said to be a crime. Our duty is to try
and punish those guilty of violating international law, and we
are not prepared to state that such loans constitute a violation
of that law, nor has our attention been drawn to any ruling to
the contrary.

Id. at 622. By contrast, with respect to Puhl, the Tribunal concluded:

His part in this transaction was not that of a mere messenger
or businessman. He went beyond the ordinary range of his
duties to give directions that the matter be handled secretly by
the appropriate departments of the bank. . . . [W]ithout doubt
he was a consenting participant in part of the execution of the
entire plan, although his participation was not a major one.

Id. at 620–21.
50

abetting liability in reaching a conclusion about the proper
standard.

Accordingly, we hold that aiding and abetting liability is
available under the ATS because it involves a norm established
by customary international law and that the mens rea and actus
reus requirements are those established by the ICTY, the ICTR,
and the Nuremberg tribunals, whose opinions constitute
expressions of customary international law. The Rome Statute
does not constitute customary international law. Its mens rea
requirements contemplate, in any event, a “knowledge”
standard. The discussion of the aiding and abetting charge
against Rasche in The Ministries Case does not support a
“purpose” standard when considered in conjunction with the
charges against Puhl, also part of The Ministries Case, and other
cases heard at Nuremberg that establish that “knowledge”
suffices to meet the mens rea requirement for aiding and
abetting liability. The decisions of the ICTY and ICTR adopt a
“knowledge” mens rea and a showing for actus reus of acts that
have a substantial effect in bringing about the violation. For all
practical purposes, we agree with appellants that the standard
under federal common law applies inasmuch as the parties
suggest no differences between it and the standard under
customary international law.27

III.

Exxon contends, for the first time on appeal, that the ATS
does not recognize corporate liability. The district court

27
Because Exxon is subject to ATS liability on an aiding and
abetting theory, the court need not address appellants’ alternative
contention, which Exxon challenges, that Exxon is subject to ATS
liability as a state actor acting under color of Indonesian law.
51

dismissed appellants’ ATS claims for failing adequately to plead
joint action or causation under a color of law theory of liability,
having ruled that aiding and abetting liability was unavailable.
See Doe I, 393 F. Supp. 2d at 24–27. Appellants contend that,
therefore, this court should not address Exxon’s new argument,
but they have responded to the argument on the merits and an
addendum to their reply brief contains amicus briefs on
corporate liability under the ATS that were lodged with the
Second Circuit in Kiobel v. Royal Dutch Petroleum, No. 06-
4800-cv (Oct. 14 & 15, 2010) (en banc).

A.
In urging the court to address the question of corporate
liability although it is raised for the first time on appeal, Exxon
suggests the question is “jurisdictional.” See Sosa, 542 U.S. at
712–14. Exxon’s jurisdictional theory may, however, run afoul
of Herero People’s Reparations Corp. v. Deutsche Bank, A.G.,
370 F.3d 1192 (D.C. Cir. 2004). In that case, this court held that
subject matter jurisdiction under the ATS existed where a
corporate defendant was alleged to have violated international
law, stating the question as whether the “federal common law
. . . provide[s] a private cause of action for violations of
customary international law,” id. at 1195, which mimics what
the Supreme Court concluded in Sosa, 542 U.S. at 711, 721, 731
n.19; see also Saleh v. Titan Corp., 580 F.3d 1, 14 (D.C. Cir.
2009), cert. denied, __ S. Ct. __, 2011 WL 2518834 (June 27,
2011).

It is unnecessary to decide whether Herero settles the
jurisdictional question after Sosa because, as Exxon alternatively
maintains, “[c]ourts of appeals are not rigidly limited to issues
raised in the tribunal of first instance; they have a fair measure
of discretion to determine what questions to consider and resolve
for the first time on appeal.” Roosevelt v. E.I. Du Pont de
Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992) (citing,
52

inter alia, Hormel v. Helvering, 312 U.S. 552, 555–59 (1941)).
Although such review is usually confined to “exceptional
circumstances,” id., the court in Roosevelt gave as examples of
such circumstances “uncertainty in the state of the law,” id.
(citing Proctor v. State Farm Mut. Auto. Ins. Co., 675 F.2d 308,
325–26 (D.C. Cir.), cert. denied, 459 U.S. 839 (1982)), and a
“novel, important, and recurring question of federal law,” id.
(citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247,
255–57 (1981)). The issue of corporate liability under the ATS
is all of the above, and it “does not depend on any additional
facts not considered by the district court.” Id.; see also Time
Warner Entm’t Co., L.P. v. FCC, 93 F.3d 957, 974–75 (D.C. Cir.
1996). Because appellants do not suggest they are prejudiced by
not having had an opportunity to present their position on the
merits in the district court and they have fully addressed the
issue on appeal, including attaching amici briefs, and because
the question is one of law, we conclude that addressing whether
there is corporate liability under the ATS is both a fair and
efficient way to proceed inasmuch as the Doe I complaint was
filed more than a decade ago.

B.
Appellants contend that there is no basis for corporate
immunity in either the text or the history of the ATS or
international law, and that the question of corporate liability is
to be decided either pursuant to federal common law or general
principles of international law. They observe, as the Eleventh
Circuit held in Romero, 552 F.3d at 1315, that the text of the
ATS places no limit on who can be a defendant, by contrast with
who can be a plaintiff, and the phrase “any civil action”
undermines any implied limitations not contained in the text.
They also observe that the codified statute’s use of “any civil
action,” see supra note 5, does not alter its meaning, citing the
Brief of Amici Curiae Professors of Federal Jurisdiction and
Legal History in Support of Plaintiffs-Appellants Seeking
53

Petition for Rehearing En Banc at 2 n.3, Kiobel v. Royal Dutch
Petroleum Co., __F.3d __, 2011 WL 338048 (2d Cir. Feb. 4,
2011) (No. 06-4800-cv) (“Kiobel Legal History Amicus Br.”).
Consistent with Sosa’s emphasis on history, 542 U.S. at 712–24,
appellants maintain that the textual and historical evidence
indicates that the First Congress would have considered juridical
entities such as corporations to be proper defendants under the
ATS.

Our analysis begins by recognizing that corporate liability
differs fundamentally from the conduct-governing norms at
issue in Sosa, and consequently customary international law
does not provide the rule of decision. Then we establish that
corporate liability is consistent with the purpose of the ATS,
with the understanding of agency law in 1789 and the present,
and with sources of international law. Our conclusion differs
from that of the Second Circuit in Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111 (2d Cir. 2010), reh’g en banc
denied, __ F.3d __, 2011 WL 338048 (Feb. 4, 2011), because its
analysis conflates the norms of conduct at issue in Sosa and the
rules for any remedy to be found in federal common law at issue
here; even on its own terms, its analysis misinterprets the import
of footnote 20 in Sosa and is unduly circumscribed in examining
the sources of customary international law. Finally, we
conclude that Exxon’s other arguments for corporate immunity
are unpersuasive.

1. In Sosa, the Supreme Court set forth the standard by
which federal courts derive common law causes of action for
violations of international law norms, 542 U.S. at 728–29, and
that standard is to be applied where a norm relating to the
conduct of an actor is at issue. Sosa addressed whether federal
courts should recognize under federal common law “new
cause[s] of action,” 542 U.S. at 713, 724, 725, 727, 732, or a
new common law “claim,” id. at 712, 714, 720, 725, 731 n.19,
54

731–32, 733. The Court instructed that when “accepting a cause
of action subject to jurisdiction under § 1350,” a court “should
not recognize private claims under federal common law for
violations of any international law norm with less definite
content and acceptance among civilized nations than the
historical paradigms familiar when § 1350 was enacted.” Id. at
732. The Court also counseled a “restrained conception of the
discretion a federal court should exercise in considering a new
cause of action” of the kind urged by the plaintiff in Sosa. Id. at
725. Because the question presented in Sosa was whether the
alleged illegal arrest and brief detention (of less than 24 hours)
could support a cause of action — i.e., whether a substantive
norm of conduct existed to support the claim — the Court
looked to customary international law.

Corporate liability presents a conceptually different
question. By way of example, in legal parlance one does not
refer to the tort of “corporate battery” as a cause of action. The
cause of action is battery; agency law determines whether a
principal will pay damages for the battery committed by the
principal’s agent. Here the court may assume that individuals
acting as agents of a corporation violated substantive
international law norms. The question is whether a corporation
can be made to pay damages for the conduct of its agents in
violation of the law of nations. Sosa did not address this
question and “at best lends Delphian guidance,” Khulumani, 504
F.3d at 286 (Hall, J., concurring), on what law supplies the rules
governing “the technical accoutrements to [a cause of] action,”
Tel-Oren, 726 F.2d at 778 (Edwards, J., concurring).

Sosa instructs that the substantive content of the common
law causes of action that courts recognize in ATS cases must
have its source in customary international law. It is clear from
the fact that the law of nations, outside of certain treaties, see
Dreyfus v. Von Finck, 534 F.2d 24, 31 (2d Cir. 1976), creates no
55

civil remedies and no private right of action that federal courts
must determine the nature of any remedy in lawsuits alleging
violations of the law of nations by reference to federal common
law rather than customary international law. Professor Louis
Henkin, a leading authority on international law, explained the
distinction:

[T]hough international law is part of the law of United
States . . . , except as otherwise provided by treaty or
by special doctrine . . . , international law establishes
rights, duties, and remedies for states against states . .
. . International law itself . . . does not require any
particular reaction to violations of law . . . . Whether
and how the United States should react to such
violations are domestic, political questions: the court
will not assume any particular reaction, remedy, or
consequence.

LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES
CONSTITUTION 245–46 (2d ed. 1996). Judge Edwards
elaborated in Tel Oren, specifically addressing ATS claims:

The law of nations . . . permits countries to meet their
international duties as they will. In some cases states
have undertaken to carry out their obligations in
agreed-upon ways, as in a United Nations Genocide
Convention, which commits states to make genocide a
crime, or in bilateral or multilateral treaties.
Otherwise, states may make available their municipal
laws in the manner they consider appropriate. As a
result, the law of nations never has been perceived to
create or define the civil actions to be made available
by each member of the community of nations; by
consensus, the states leave that determination to their
respective municipal laws. Indeed, given the existing
56

array of legal systems within the world, a consensus
would be virtually impossible to reach — particularly
on the technical accoutrements to an action — and it is
hard even to imagine that harmony ever would
characterize this issue.

726 F.2d at 778 (Edwards, J., concurring) (citations omitted);
accord Dreyfus, 534 F.2d at 31; RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 906 & cmt.
b; 1 OPPENHEIM’S INTERNATIONAL LAW § 19. That the ATS
provides federal jurisdiction where the conduct at issue fits a
norm qualifying under Sosa implies that for purposes of
affording a remedy, if any, the law of the United States and not
the law of nations must provide the rule of decision in an ATS
lawsuit.

Consequently, the fact that the law of nations provides no
private right of action to sue corporations addresses the wrong
question and does not demonstrate that corporations are immune
from liability under the ATS. There is no right to sue under the
law of nations; no right to sue natural persons, juridical entities,
or states. Customary international law — defined as the
“[p]ractice of states,” RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES § 102(2) & cmt. b, i.e.,
that law “made over time by widespread practice of
governments acting from a sense of legal obligation,” LOUIS
HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 33
(2d ed. 1979), 1 OPPENHEIM’S INTERNATIONAL LAW § 10, and
“gradually ripening into a rule of international law,” The
Paquette Habana, 175 U.S. 677, 686 (1900); see also North Sea
Continental Shelf (Ger. v. Den.), 1969 I.C.J. 3, ¶ 77 (Feb. 20);
Asylum (Colom. v. Peru), 1950 I.C.J. 266, 276 (Nov. 20);
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE
UNITED STATES, § 102(2) & cmts. b, c, k; 1 OPPENHEIM’S
INTERNATIONAL LAW §§ 16–17; 1 CHARLES CHENEY HYDE,
57

INTERNATIONAL LAW § 6 (1922) — does not “partake of the
prolixity of a legal code,” cf. M’Culloch v. Maryland, 17 U.S. (4
Wheat.) 316, 407 (1819). Although customary international law
provides rules for determining whether international
disapprobation attaches to certain types of conduct, such as
torture, extrajudicial killing, prolonged arbitrary detention, or
aiding and abetting the same, one could not expect, as Judge
Edwards has written, the widespread practice of states out of “a
sense of legal obligation,” to produce detailed rules of procedure
and evidence on matters like res judicata, burdens of proof, and
respondeat superior.

2. Ordinarily our statutory analysis would begin with the
text of the ATS, and end with the text if it is clear. See, e.g.,
Hawaii v. Office of Hawaiian Affairs, __ U.S. __, 129 S. Ct.
1436, 1443 (2009). Appellants have made such points as can be
made about the plain text: the phrase “any civil action” is
inclusive and unrestricted. The Supreme Court has observed
that the ATS “by its terms does not distinguish among classes
of defendants.” Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 438 (1989). Given the brevity of the text
of the ATS and the absence of a formal legislative history,28 see
Sosa, 542 U.S. at 718–19, the court, as in Sosa, looks to the
historical context, and it suggests that the purpose of the ATS
supports the availability of corporate liability.

28
Little is known of the origins of the ATS. See Sosa, 542
U.S. at 718. The debates in the House of Representatives “contain no
reference to the” ATS, In re Estate of Ferdinand E. Marcos Human
Rights Litig., 978 F.2d 493, 498 (9th Cir. 1992), and the debates in the
Senate were not recorded, Tel-Oren, 726 F.2d at 812 (Bork, J.,
concurring); see also Sosa, 542 U.S. at 718–19; Wiwa v. Royal Dutch
Petroleum Co., 226 F.3d 88, 104 n.10 (2d Cir. 2000).
58

As the Supreme Court observed in Sosa, under the Articles
of Confederation, the federal government lacked authority to
remedy or prevent violations of the law of nations.29 Id. at 716.
The need to address and enforce the law of nations at the federal
level was among the concerns that motivated abandoning the
Articles and convening the Constitutional Convention. James
Madison complained:

The[ ] articles [of confederation] contain no provision
for the case of offenses against the law of nations; and
consequently leave it in the power of any indiscreet
member to embroil the Confederacy with foreign
nations.

THE FEDERALIST NO. 42, at 258, 260 (James Madison) (Henry
Cabot Lodge ed., 1888). The Continental Congress struggled
to respond to violations of the law of nations. In 1779 it wrote
to the French Minister Plenipotentiary to assure that the courts
“will cause the law of nations to be most strictly observed: that
if it shall be found, after due trial, that the owners of [ ] captured
vessels have suffered damage from the misapprehension or
violation of the rights of war and neutrality, Congress will cause
reparation to be made . . . .” 14 JOURNALS OF THE CONTINENTAL
CONGRESS 1774–1789, at 635 (Worthington Chauncey Ford ed.,
1909). The promise rang hollow; although the Articles gave the
federal courts authority over “the trial of piracies and felonies
committed on the high seas,” ARTICLES OF CONFEDERATION,
art. 9, § 1, 1 Stat. 4, 6 (1778), the courts lacked authority over
violations of the law of nations on land. In 1781, the
Continental Congress adopted a resolution that “implored the
States to vindicate rights under the law of nations,” Sosa, 542
U.S. at 716, specifically to “provide expeditious, exemplary and
adequate punishment” for violations. 21 JOURNALS OF THE

29
See Sosa Legal History Amicus Br. 102–03.
59

CONTINENTAL CONGRESS 1774–1789, at 1136–37 (Gaillard Hunt
ed., 1912).

The 1781 resolution is acknowledged to be “the direct
precursor of the alien tort provision in the First Judiciary Act.”
Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act
of 1789: A Badge of Honor, 83 AM. J. INT’L L. 461, 477 (1989);
see also William S. Dodge, The Historical Origins of the Alien
Tort Statute: A Response to the “Originalists,” 19 HASTINGS
INT’L & COMP. L REV. 221, 226–29 (1996); Casto, Law of
Nations, supra note 8, at 490–91. The resolution requested that
each state, “in words that echo Blackstone,” Sosa, 542 U.S. at
716, establish remedies for the “violation of safe conducts or
passports,” for “the commission of acts of hostility against such
as are in amity, league or truce with the United States, or who
are within the same, under a general implied safe conduct,” for
“the infractions of the immunities of ambassadors and other
public ministers,” for “infractions of treaties and conventions to
which the United States are a party,” and for “offences against
the law of nations, not contained in the foregoing enumeration.”
21 JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at
1136–37. In letters to the states, the Continental Congress
pointed out that “a prince, to whom it may be hereafter
necessary to disavow any transgression of that law by a citizen
of the United States, will receive such disavowal with reluctance
and suspicion, if regular and adequate punishment shall not have
been provided against the transgressor.” Id. at 1136.30

30
In response, for example, Connecticut in 1782 enacted a
law criminalizing violations of the law of nations, as well as “any
other Infractions or Violations of, or Offenses against the known,
received and established Laws of civilized Nations, agreeable to the
Laws of this State, or the Laws of Nations,” and creating a tort remedy
for injuries caused by violation of the law of nations. ACTS AND LAWS
OF THE STATE OF CONNECTICUT, IN AMERICA 82, 83 (1784).
60

Two examples illustrate concerns underlying the 1781
Resolution and enactment of the ATS. Sosa, 542 U.S. at
716–17. In May 1784, the Chevalier De Longchamps, a French
citizen, assaulted Francis Barbe Marbois, the French Consul
General, on a street in Philadelphia, Pennsylvania. See
Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 111 (O.T.
Phila. 1784). The French Ambassador complained to the
Continental Congress and the Dutch Ambassador threatened to
leave the State if action was not taken. Id. (citing Casto, Law of
Nations, supra note 8, at 491–92 & n.138). Although the
Pennsylvania state court tried and convicted De Longchamps for
an offense against the law of nations, which the Court of Oyer
and Terminer termed “in its full extent, . . . part of the law of”
Pennsylvania, De Longchamps, 1 U.S. (1 Dall.) at 116, the
events laid bare the impotence of the young nation. The
Continental Congress and the Secretary of Foreign Affairs
struggled to respond to an international incident over which the
federal government had no authority.31

31
“The Marbois Affair was a national sensation that attracted
the concern of virtually every public figure in America.” Sosa Legal
History Amicus Br. 105 (quoting Casto, Law of Nations, supra note
8, at 492). The Continental Congress could only require the Secretary
for Foreign Affairs John Jay to express the Congress’s “regret” and
“lament” over the incident and explain

the difficulties that may arise on this head from the nature of
a federal union in which each State retains a distinct and
absolute sovereignity [sic] in all matters not expressly
delegated to Congress leaving to them only that of advising in
many of those cases in which other governments decree.

33 JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at 314
(John C. Fitzpatrick ed., 1933). The Secretary explained that

many allowances are to be made for a nation whose whole
61

In “a reprise of the Marbois affair,” Sosa, 542 U.S. at 717,
in December 1787, during the Constitutional Convention, a New
York constable entered the house of the Dutch Ambassador and
arrested one of his domestic servants. Sosa Legal History
Amicus Br. 105; Curtis A. Bradley, The Alien Tort Statute and
Article III, 42 VA. J. INT’L L. 587, 641 (2002). The Mayor of
New York City arrested the constable, as Secretary of Foreign
Affairs John Jay requested, but he cautioned that “neither
Congress nor our internal Legislature have yet passed any act
respecting a breach of the privileges of Ambassadors” and so the
nature and degree of punishment would depend on whether the
common law would recognize the breach. Bradley, The Alien
Tort Statute and Article III, supra at 641–42 (quoting 3 DEP’T OF
STATE, THE DIPLOMATIC CORRESPONDENCE OF THE UNITED
STATES OF AMERICA 447 (1837)). Secretary Jay reported to the
Continental Congress that “the federal Government does not
appear . . . to be vested with any judicial Powers competent to
the Cognizance and Judgment of such Cases.” 34 JOURNALS OF
THE CONTINENTAL CONGRESS 1774–1789, at 111 (Roscoe R.
Hill ed., 1937).

James Madison lamented at the Constitutional Convention
that “[t]he files of Cong[ress] contain complaints already, from
almost every nation with which treaties have been formed.
Hitherto indulgence has been shewn to us. This cannot be the
permanent disposition of foreign nations.” 1 THE RECORDS OF

attention till the present period has been engaged in the
pursuit of measures which were to determine their existence
as such, even tho they should be found deficient in those wise
provisions which experience has established among older
Nations.

Id.
62

THE FEDERAL CONVENTION OF 1787, at 316 (Max Farrand ed.,
1937) (“FARRAND’S RECORDS”) (statement of James Madison).
Opposing the New Jersey Plan to enhance the power of small
states, Madison asked: “Will it prevent those violations of the
law of nations & of Treaties which if not prevented must involve
us in the calamities of foreign wars? The tendency of the States
to [sic] these violations has been manifested in sundry
instances.” Id.32 Alexander Hamilton noted that “[t]he Union
will undoubtedly be answerable to foreign powers for the
conduct of its members,” THE FEDERALIST NO. 80, at 494, 495
(Alexander Hamilton) (Henry Cabot Lodge ed., 1888), and that
“[a]s the denial or perversion of justice by the sentences of
courts, as well as in any other manner, is with reason classed
among the just causes of war, it will follow that the federal
judiciary ought to have cognizance of all causes in which the
citizens of other countries are concerned,” id. Hamilton
emphasized that such jurisdiction was “not less essential to the
preservation of the public faith, than to the security of the public
tranquility.” Id. at 495–96.

The Judiciary Act of 1789 ensured that there would be no
gap in federal subject matter jurisdiction with regard to torts in
violation of treaties or the law of nations. It provided federal
jurisdiction for lawsuits brought by aliens for torts in violation
of the law of nations without textual limitation. By contrast, it
contained no grant of federal question jurisdiction in civil cases,
see Tel-Oren, 726 F.2d at 779 n.3 (Edwards, J., concurring), and
established diversity jurisdiction in the federal circuit courts

32
See also James Madison, Vices of the Political System of
the United States, reprinted in SELECTED WRITINGS OF JAMES
MADISON 36 (Ralph Ketcham ed., 2006); 2 DOCUMENTARY HISTORY
OF THE RATIFICATION OF THE CONSTITUTION 520 (Merrill Jensen ed.,
1976) (statement of James Wilson); 1 FARRAND’S RECORDS 24–25
(statement of Edmund Randolph), 164 (statement of James Madison).
63

subject to a $500 amount-in-controversy requirement, ch. 20,
§ 11, 1 Stat. at 78–79. As a consequence, aliens alleging
domestic common law or international non-tort claims,
including foreign creditors seeking to collect on debts owed by
U.S. citizens, were forced into state courts unless their suit was
for $500 or more, which had the practical effect of excludi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/220584. Public record. Not legal advice.