# Doe v. Nestle, S.A.

> District Court, C.D. California · September 8, 2010 · 748 F. Supp. 2d 1057

URL: https://www.frixlaw.com/law-library/cases/2470318

## Case

- **Full name:** John DOE I, Individually and on Behalf of Proposed Class Members; John Doe II, Individually and on Behalf of Proposed Class Members; John Doe III, Individually and on Behalf of Proposed Class Members; Global Exchange, Plaintiffs, v. NESTLE, S.A.; Nestle U.S.A.; Nestle Ivory Coast; Archer Daniels Midland Co.; Cargill, Inc.; Cargill Cocoa; Cargill West Africa, S.A.; And Corporate Does 1-10, Defendants
- **Court:** District Court, C.D. California
- **Decided:** September 8, 2010
- **Citations:** 748 F. Supp. 2d 1057; 2010 U.S. Dist. LEXIS 98991; 2010 WL 3969615
- **Precedential status:** Published
- **Opinion:** Opinion by Wilson
- **Judges:** Stephen v. Wilson
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by John Doe I v. Nestle, USA, 738 F.3d 1048 (2013).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2470318

## Opinion text

ORDER GRANTING DEFENDANTS ARCHER-DANIELS-MIDLAND CO., NESTLE U.S.A., AND CAR-GILL INC.’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) FOR FAILURE TO STATE A CLAIM
STEPHEN V. WILSON, District Judge.
I. INTRODUCTION
On July 14, 2005, Plaintiffs John Doe I, John Doe II, John Doe III, and Global Exchange (collectively “Plaintiffs”)
1
filed this class action for damages and injunctive relief. On July 10, 2009, Plaintiffs filed a first amended complaint. The amended complaint asserts causes of action under the Aien Tort Statute, 28 U.S.C. § 1350 ; the Torture Victim Protection Act, Pub. L. 102-256, 106 Stat. 73 (1992); state-law unjust enrichment; and Cal. Bus. & Prof. Code §§ 17200
et seq.
2
Defendants are Nestle, S.A. (based in Switzerland), Nestle, U.S.A., and Nestle Cote d’Ivoire, S.A. (collectively “Nestle”); Cargill, Incorporated (“Cargill, Inc.”), Car-gill Cocoa (based in the United States), and Cargill West Africa, S.A. (collectively “Cargill”); and Archer Daniels Midland Company (“Archer Daniels Midland”) (collectively “Defendants”).
3
Defendants Nestle U.S.A., Cargill Inc., and Archer Daniels Midland have filed a Motion to Dismiss the First Amended Complaint for failure to state a claim upon which relief can be granted.
II. LEGAL STANDARD
In order to survive a Rule 12(b)(6) Motion to Dismiss, a plaintiffs complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal,
556 U.S. -, 129 S.Ct. 1937, 1949 , 173 L.Ed.2d 868 (2009) (quoting
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id.
“Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.”
Twombly,
550 U.S. at 555 , 127 S.Ct. 1955 . A complaint that offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Iqbal ,
129 S.Ct. at
*1064
1951;
see also Moss v. U.S. Secret Service,
572 F.3d 962, 969 (9th Cir.2009) (citing
Iqbal,
129 S.Ct. at 1951 ). Courts should not “unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”
Iqbal,
129 S.Ct. at 1950 .
III. FACTS
The individual Plaintiffs are Malians who allege that they were forced to labor on cocoa fields in Cote dTvoire. Plaintiffs seek class status on behalf of similarly situated Malians who were forced to labor in Cote dTvoire. The remaining Plaintiff, Global Exchange, is a San Francisco-based human rights organization that promotes social justice.
Plaintiffs allege that they have filed suit in the United States because: (1) there is no law in Mali allowing civil damages for their injuries caused by non-Malian cocoa exporters (as all Defendants are American, European, or Ivorian corporations); (2) no suit can be brought in Cote dTvoire because “the judicial system is notoriously corrupt and would likely be unresponsive to the claims of foreign children against major cocoa corporations operating in and bringing significant revenue to Cote dTvoire” (FAC ¶ 2); (3) Plaintiffs and their attorneys would be subjected to possible harm in Cote dTvoire on account of general civil unrest and “the general hostility by cocoa producers in the region”; and (4) the United States has provided an appropriate forum for these claims through the Alien Tort Statute and the Torture Victim Protection Act, 28 U.S.C. § 1350 .
Plaintiffs claim that Defendants have aided and abetted violations of international law norms that prohibit slavery; forced labor; child labor; torture; and cruel, inhuman, or degrading treatment. Plaintiffs also seek relief under state-law unjust enrichment. All Plaintiffs (including Global Exchange) allege violations of Cal. Bus.
&
Prof. Code § 17200 .
Plaintiffs allege that Defendants obtain an “ongoing, cheap supply of cocoa by maintaining exclusive supplier/buyer relationships with local farms and/or farmer cooperatives in Cote dTvoire.” (FAC ¶ 33.)
4
These exclusive contractual arrangements allow Defendants “to dictate the terms by which such farms produce and supply cocoa to them, including specifically the labor conditions under which the beans are produced.”
(Id.)
Defendants control the farms’ labor conditions “by providing local farmers and/or farmer cooperatives
inter alia
ongoing financial support, including advance payments and personal spending money to maintain the farmers’ and/or the cooperatives’ loyalty as exclusive suppliers; farming supplies, including fertilizers, tools and equipment; training and capaeity[-]building in particular growing and fermentation techniques and general farm maintenance, including appropriate labor practices, to grow the quality and quantity of cocoa beans they desire.” (FAC ¶ 34.) This oversight requires Defendants to engage in “training and quality
*1065
control visits [that] occur several times per year and require frequent and ongoing visits to the farms either by Defendants directly or via their contracted agents.”
(Id.)
Plaintiffs identify certain of Nestle’s representations in which Nestle states that it “ ‘provides assistance in crop production’ ” and performs “ ‘tracking inside our company supply chain, i.e. from the reception of raw and packaging materials, production of finished products to delivery to customers.’ ” (FAC ¶ 36 (quoting Nestle “Principles of Purchasing,” 2006).) Nestle also states that “ ‘[i]n dealing with suppliers, Purchasing must insist on knowing the origin of incoming materials and require suppliers to communicate the origin of their materials,’ ” and that it “ ‘actively participate^] as the first link in an integrated supply chain,’ ‘developfs] supplier relationships,’ and ‘continually monitors] the performance, reliability and viability of suppliers.’ ”
(Id.)
Nestle also states that its “ ‘Quality System covers all steps in the food supply chain, from the farm to the consumer of the final products ..., including] working together with producers and suppliers of raw ... materials.’ ” (FAC ¶ 37.) Finally, Nestle has stated that “ ‘[w]hile we do not own any farmland, we use our influence to help suppliers meet better standards in agriculture---Working directly in our supply chain we provide technical assistance to farmers.’ ” (FAC ¶ 38.) This assistance “ ‘ranges from technical assistance on income generation to new strategies to deal with crop infestation, to specific interventions designed to address issues of child labour,’ ” including “ ‘[s]pecific programmes directed at farmers in West Africa [such as] field schools to help farmers with supply chain issues, as well as a grassroots ‘training of trainers’ programme to help eliminate the worst forms of child labour.’ ”
(Id.)
Plaintiffs identify certain of Archer Daniels Midland’s representations in which the company states that its relationship
5
with the SIFCA cooperative “ ‘gives ADM Cocoa an unprecedented degree of control over its raw material supply, quality and handling.’ ” (FAC ¶ 39 (quoting ADM statements contained in 2001 article in
Biscuit
World).) An Archer Daniels Midland executive has been quoted as saying “‘ADM Cocoa can deliver consistent top quality products by control of its raw materials,’ and that ‘ADM is focused on having direct contact with farmers in order to advise and support them to produce higher quality beans for which they will receive a premium.’ ”
(Id.)
Archer Daniels Midland has represented that it has a “ ‘strong presence in [cocoa] origin regions,’ ” and that “ ‘ADM is working hard to help provide certain farmer organizations with the knowledge, tools, and support they need to grow quality cocoa responsibly and in a sustainable manner.... ADM is providing much needed assistance to organizations representing thousands of farmers and farming communities. These efforts are making an impact at the farm level.’ ” (FAC ¶ 40.) It has also stated that it “ ‘is actively involved in long term efforts to ensure that cocoa is grown responsibly and sustainably. Such efforts include research into environmentally sound crop management practices, plant breeding work to develop disease-resistant varieties, and farmer field schools to transfer the latest know-how into the hands of millions of cocoa farmers around the world. Starting from the cocoa growers through to the world’s top food and beverage manufactur
*1066
ers, ADM Cocoa is committed to delivering the best in product quality and service at every stage.’ ” (FAC ¶ 41 (quoting ADM Cocoa Brochure).)
Plaintiffs allege that Cargill opened cocoa buying stations in Daloa and Gognoa, and that Cargill’s Micao cocoa processing plant has obtained ISO 9002 certification. Plaintiffs allege that the ISO 9002 certification “is a system of quality standards for food processing from sourcing through processing that inherently requires detailed visits and monitoring of farms.” (FAC ¶ 43.)
With respect to all Defendants, Plaintiffs allege generally that “Defendants’ ongoing and continued presence on the cocoa farms” provided “Defendants” with “first hand knowledge of the widespread use of child labor on said farms.” (FAC ¶ 44.) Plaintiffs also allege that various governmental and non-governmental actors have provided “numerous, well-documented reports of child labor.”
(Id.)
Plaintiffs allege that “Defendants not only purchased cocoa from farms and/or farmer cooperatives which they knew or should have known relied on forced child labor in the cultivating and harvesting of cocoa beans, but Defendants provided such farms with money, supplies, and training to do so with little or no restrictions from the government of Cote d’Ivoire.” (FAC ¶ 47.) Plaintiffs allege that Defendants provided this “money, supplies, and training ... knowing that their assistance would necessarily facilitate child labor.” (FAC ¶ 52.)
Plaintiffs also allege that some of the cocoa farms are linked to the Ivorian government: “Upon information and belief, several of the cocoa farms in Cote d’Ivoire from which Defendants source are owned by government officials, whether directly or indirectly, or are otherwise protected by government officials either through the provision of direct security services or through payments made to such officials that allow farms and/or farmer cooperatives to continue the use of child labor.” (FAC ¶ 47.)
Plaintiffs allege that “Defendants, because of their economic leverage in the region and exclusive supplier/buyer agreements, each had the ability to control and/or limit the use of forced child labor by the supplier farms and/or farmer cooperatives from which they purchased their cocoa beans, and indeed maintained specific policies against the use of such forced labor practices.” (FAC ¶ 48.) Plaintiffs identify various representations in which Defendants asserted that they abide by international standards, do not use child labor, and take efforts to prevent their business partners from using child labor. (FAC ¶¶ 49-51.)
Plaintiffs also allege that Defendants lobbied against a 2001 United States Congressional proposal to require chocolate manufacturers and importers to certify and label their products as “slave free.” (FAC ¶¶ 53-54.) As a result of Defendants’ lobbying efforts, the mandatory law was replaced by a voluntary arrangement known as the Harkin-Engel protocol, in which the chocolate industry agreed upon certain standards by which it would self-regulate its labor practices. (FAC ¶ 55.) Plaintiffs allege that “but for” this lobbying effort, Defendants’ cocoa plantations would not have been able to use child labor.
6
Plaintiff Global Exchange asserts a cause of action under Cal. Bus. & Prof. Code § 17200 . Plaintiffs allege that Global Exchange’s members are American chocolate consumers who “have expressed a clear desire to purchase products that
*1067
are not made under exploitative conditions but are incapable of determining whether products contain slave labor produced cocoa or non-slave labor produced cocoa.” (FAC ¶ 61.) Their “interests are being harmed by having to purchase products containing illegally imported, slave labor produced cocoa against their clearly expressed wishes,” (FAC ¶ 61), thus causing them to “suffer[] specific and concrete injuries.” (FAC ¶ 60.) Additionally, Plaintiffs allege that Global Exchange “has fair trade stores” that sell “fair trade chocolate,” and as a result of Defendants’ actions, Global Exchange’s stores “have been forced to pay a premium for this chocolate due to the unfair competition of slave produced chocolate.” (FAC ¶ 60.) Plaintiffs also allege that Global Exchange “has ... been forced to spend significant resources in providing fairly traded chocolate, educating members of the public, and monitoring Defendants’ corporate obligation not to use child labor.” (FAC ¶ 62.)
IV.
SOSA V. ALVAREZ-MACHAIN
AND INTERNATIONAL LAW
A. CAUSES OF ACTION FOR VIOLATIONS OF INTERNATIONAL LAW
1.
SOSA v. ALVAREZ-MACHAIN
In
Sosa v. Alvarez-Machain,
542 U.S. 692 , 124 S.Ct. 2739 , 159 L.Ed.2d 718 (2004), the Supreme Court established the requirements for bringing an action under the Alien Tort Statute, 28 U.S.C. § 1350 .
7
The Court held that § 1350 is solely a jurisdictional statute and does not create any causes of action. Instead, a limited number of international-law based causes of action are provided by the common law. Thus, although the Alien Tort Statute provides broad federal court jurisdiction for any tort committed in violation of customary international law,
Sosa
sharply circumscribed the availability of private causes of action that are cognizable in federal courts under § 1350.
Not all international law norms provide a common law cause of action under § 1350 — to be actionable, it must be a well-defined and universally recognized norm of international law. As explained by the Court, “the ATS was meant to underwrite litigation of a narrow set of common law actions derived from the law of nations.”
Sosa,
542 U.S. at 721 , 124 S.Ct. 2739 . In determining the scope of this “narrow set” of actions, courts must engage in a two-part analysis: “courts should require any claim based on the present-day law of nations to rest on [1] a norm of international character accepted by the civilized world and [2] defined with a specificity comparable to the features of the 18th-century paradigms we have recognized” — that is, the three common law international law wrongs identified by Blackstone, “violation of safe conducts, infringement of the rights of ambassadors, and piracy.”
Id.
at 725-26 , 124 S.Ct. 2739 .
8
The Court added that federal
*1068
courts “have no congressional mandate to seek out and define new and debatable violations of the law of nations,”
id.
at 728 , 124 S.Ct. 2739 , and firmly cautioned 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, 124 S.Ct. 2739 . In a footnote, the Court noted that “[a] related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.”
Id.
at 732 n. 20, 124 S.Ct. 2739 .
2. SOURCES OF INTERNATIONAL LAW
With these basic rules in mind, it is important to have a clear understanding of the sources of international law upon which courts must rely in determining whether a particular norm is universally accepted and defined with the requisite specificity. As explained in
The Paquete Habana,
175 U.S. 677, 700 , 20 S.Ct. 290 , 44 L.Ed. 320 (1900) (cited in
Sosa,
542 U.S. at 734 , 124 S.Ct. 2739 ), “international law is part of our law,” and courts should look to the following sources for guidance:
where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.
The Paquete Habana,
175 U.S. at 700 , 20 S.Ct. 290 (citing
Hilton v. Guyot,
159 U.S. 113, 163, 164, 214, 215 , 16 S.Ct. 139 , 40 L.Ed. 95 (1895)). The Court also stated that international law norms must be agreed upon “by the general consent of the civilized nations of the world,”
id.
at 708, 20 S.Ct. 290 , or, as phrased in international law,
opinio jwris.
The approach set out in
The Paquete Habana
is consistent with the modern view of customary international law. As stated in the Statute of the International Court of Justice (the authoritative institution in adjudicating international law), the sources of international law are:
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. subject to the provisions of Article 59,
9
judicial decisions an the teachings of the most highly qualified publicists of
*1069
the various nations, as subsidiary means for the determination of rules of law.
ICJ Statute, June 26, 1945, art. 38(1), 59 Stat. 1055,1060 , U.S.T.S. 993.
10
In practice, this requires an exhaustive examination of treaties, court decisions, and leading treatises.
11
As a model example, the Supreme Court in
Sosa,
542 U.S. at 732 , 124 S.Ct. 2739 , referred to the lengthy, polyglot footnote in
United States v. Smith,
18 U.S. (5 Wheat.) 153 , 5 L.Ed. 57 (1820). The
Smith
Court examined over a dozen treatises in English, Latin, French, and Spanish, as well as English caselaw, and determined that these various sources all agreed upon the same basic definition of piracy under international law.
Smith,
18 U.S. at 163 -80 n. h.
3. INTERNATIONAL LAW CAUSES OF ACTION AFTER
SOSA
Ultimately,
Sosa
provides that international law norms are only actionable if they are specifically defined and universally adhered to out of a sense of mutual obligation. Other courts, quoted in
Sosa,
542 U.S. at 732 , 124 S.Ct. 2739 , have explained that this requires a showing that the violation is one of a “handful of heinous actions,”
Tel-Oren v. Libyan Arab Republic,
726 F.2d 774, 781 (D.C.Cir.1984) (Edwards, J., concurring), involving a norm that is “specific, universal, and obligatory,”
In re Estate of Marcos Human Rights
*1070
Litigation, 25
F.3d 1467, 1475 (9th Cir. 1994), resulting in a finding that the actor is
“hostis humani generis,
an enemy of all mankind.”
Filartiga v. Pena-Irala,
630 F.2d 876, 890 (2d Cir.1980).
In defining the relevant norms of international law, domestic courts should carefully distinguish the substance of international law from the procedures of international law.
See Sosa,
542 U.S. at 729 -30
&
n. 18, 124 S.Ct. 2739 (referring to
Erie R. Co. v. Tompkins,
304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), and discussing Alien Tort Statute as incorporating “substantive rules” of international law
12
). For example, the Ninth Circuit’s lead
en banc
opinion in
Sarei v. Rio Tinto,
addressing the issue of exhaustion of remedies, noted that
Sosa
requires an inquiry into “whether exhaustion is a substantive norm of international law, to which the ‘requirement of clear definition’ applies; or if it is nonsubstantive, what source of law — federal common law or international law — illuminates its content.”
Sarei v. Rio Tinto, PLC,
550 F.3d 822, 828 (9th Cir. 2008) (en banc) (internal footnote and citations omitted).
13
In other words, courts applying the Alien Tort Statute must determine whether the rule at issue is substantive or non-substantive (i.e., procedural), and then must determine whether that substantive international law is sufficiently definite and universal to satisfy the requirements of
Sosa .
14
In distinguishing between the substance and procedure of international law, it is helpful to consider the guidelines
*1071
set out by a leading expert on international criminal law. According to M. Cherif Bassiouni, who is among the most prolific and prominent authorities on international criminal law, “the penal aspects of international [criminal] law include: international crimes, elements of international criminal responsibility, the procedural aspects of the ‘direct enforcement system’ of international criminal law, and certain aspects of the enforcement modalities of the ‘indirect enforcement system’ of the International Criminal Court.” M. Cherif Bassiouni, 1
International Criminal Law 5
(2008). Customary international law defines the substantive elements of the crimes and the elements of criminal responsibility, whereas the procedural enforcement mechanisms are established largely on a case-by-case basis in response to particular atrocities (though today, the International Criminal Court is meant to provide a permanent forum for enforcement actions).
Id
at 7-8. The Supreme Court in
Sosa
instructed federal courts to look to the substantive aspects of international law, not the procedural details of particular international law enforcement mechanisms. Because the Alien Tort Statute itself provides an independent domestic enforcement mechanism, federal courts should not be distracted by the procedural quirks of foreign and international legal systems. Federal courts must be careful to apply only substantive international law — that is, the elements of the criminal acts and the nature of criminal responsibility — rather than the procedural elements of international law.
See
Bassiouni, 1
International Criminal Law
at 5-8.
It is important for courts to apply international law with a careful eye on its substantive provisions, as
Sosa
repeatedly insisted that only clearly defined, universally recognized norms are actionable under the Alien Tort Statute. Though courts must look to various sources to determine the scope of international law, courts should not just “pick and choose from this seemingly limitless menu of sources” and create a hybrid form of domestic common law that merely draws on customary international law when convenient.
See Abdullahi v. Pfizer, Inc.,
562 F.3d 163, 194 (2d Cir.2009) (Wesley, J., dissenting),
cert. denied,
— U.S. -, 130 S.Ct. 3541 , 177 L.Ed.2d 1121 (2010). The Alien Tort Statute, as interpreted in
Sosa ,
does not permit federal courts to codify a new form of what International Court of Justice Judge Philip Jessup termed “transnational law,” which, as he explained, “includes both civil and criminal aspects, [ ] includes what we know as public and private international law, and [ ] includes national law both public and private.” Philip Jessup,
Transnational Law
106 (1956). Jessup justified his proposed legal mélange on the ground that “[tjhere is no inherent reason why a judicial tribunal, whether national or international, should not be authorized to choose from all these bodies of law the rule considered to be most in conformity with reason and justice for the solution of any particular controversy.”
Id.
But, as made abundantly clear in
Sosa ,
such an idealized and ungrounded form of international law is not a permissible source of authority for Alien Tort Statute cases.
Sosa
requires that federal courts cannot look to general principles of “reason and justice” drawn
ad hoc
from international and domestic rules; rather, courts must look carefully to the substantive norms of international law that are clearly defined and universally agreed-upon. To do otherwise is to misapply
Sosa
and “open the door” far too wide for Alien Tort Statute litigation.
Sosa,
542 U.S. at 729 , 124 S.Ct. 2739 (“[T]he judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today.”).
*1072
B. THE DISTINCTION BETWEEN CIVIL AND CRIMINAL INTERNATIONAL LAW NORMS
In its June 9, 2009 Order for further briefing, the Court requested that the parties address the question of whether the standards for liability under international law distinguish between civil and criminal causes of action. In particular, the Court was concerned with whether
Sosa
requires international law to establish well-defined norms of civil liability in order for an Alien Tort Statute action to lie. In light of this briefing, the Court has reached the following conclusions.
There is no meaningful distinction in Alien Tort State litigation between criminal and civil norms of international law.
See, e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc.,
582 F.3d 244 , 257 n. 7 (2d Cir.2009) (citations omitted),
pet’n for cert. filed,
Apr. 15, 2010, May 20, 2010;
Khulumani v. Barclay Nat. Bank Ltd.,
504 F.3d 254 , 270 n. 5 (2d Cir.2007) (Katzmann, J., concurring) (citations omitted). This is supported by the
Sosa
opinion, by the historical materials relevant to the Sosa Court’s construction of the Alien Tort Statute, and by Justice Breyer’s concurrence in
Sosa .
The majority opinion in
Sosa
pointedly quoted the proposition from international scholar Beth Stephens that a “mixed approach to international law violations, encompassing both criminal prosecution ... and compensation to those injured through a civil suit, would have been familiar to the founding generation.”
Sosa,
542 U.S. at 724 , 124 S.Ct. 2739 (quoting Beth Stephens,
Individuals Enforcing International Law: The Comparative and Historical Context,
52 DePaul L. Rev. 433 , 444 (2002)). In other words, the Court suggested that international criminal law at the time of the founding also contained a civil component.
This conclusion is supported by an examination of Blackstone, upon whom the
Sosa
Court relied heavily. Notably, Blackstone discussed the three “common law” international law violations (piracy, offenses on the high seas, and offenses against ambassadors) as being criminal offenses rather than civil offenses. Blackstone did not suggest that these offenses could be redressed through common-law civil actions.
See
Blackstone, 4
Commentaries,
Ch. 5;
see also Sosa,
542 U.S. at 723 , 124 S.Ct. 2739 (“It is true that Blackstone [ ] referred] to what he deemed the three principal offenses against the law of nations in the course of discussing criminal sanctions.”) (emphasis added). However, Blackstone did explain that violations of an ambassador’s safe-conduct were subject to statutory restitution.
See
Blackstone, 4
Commentaries,
Ch. 5 (“if any of the king’s subjects attempt or offend, upon the sea, or in port within the king’s obeisance, against any stranger in amity, league, or under safe-conduct; and especially by attaching his person, or spoiling him, or robbing him of his goods; the lord chancellor, with any of the justices of either the king’s bench or common pleas, may cause full restitution and amends to be made to the injured.”) (emphasis added) (citing Statute of 31 Hen. VI., ch. 4).
As the Supreme Court recognized in Sosa, the Alien Tort Statute requires that federal courts provide civil redress for these criminal offenses.
Sosa,
542 U.S. at 724 , 124 S.Ct. 2739 (“We think it is correct ... to assume that the First Congress understood that the district courts would recognize private causes of action for ... torts corresponding to Blackstone’s three primary offenses.”). If we are to use Blackstone’s treatise as the lodestar of Alien Tort Statute analysis (as the Supreme Court did in Sosa), then we must
*1073
necessarily conclude that the Alien Tort Statute exists precisely for the purpose of providing civil redress to victims of violations of international criminal law.
See generally
Jaykumar A. Menon,
The Alien Tort Statute: Blackstone and Criminal/Tort Law Hybridities,
4 J. Int’l Crim. Just. 372 (2006) (discussing implications of Alien Tort Statute’s status as a hybrid of criminal law and tort law).
Justice Breyer went further than the
Sosa
majority in discussing the relationship between international criminal law and civil causes of action. He noted that criminal punishment contains an element of restitution in many legal systems.
15
Sosa,
542 U.S. at 762-63 , 124 S.Ct. 2739 (Breyer, J., concurring). Notably, the International Criminal Court provides for reparations and restitution as part of its jurisdiction over international criminal law.
See
Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, at arts. 75(2) (“The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”), 77(2)(b) (“In addition to imprisonment, the Court may order ... [a] forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.”).
In short, even in the absence of a universally recognized civil cause of action that exists under international law, the Alien Tort Statute provides a domestic civil cause of action which incorporates the universally recognized norms of international law, regardless of whether they are criminal or civil. To hold otherwise would render Sosa’s references to Blackstone superfluous and, indeed, would cause the entire foundation of the Alien Tort Statute to crumble, given that there is no universally recognized norm of private civil liability for international law violations.
See generally
Christine Gray,
Judicial Remedies in International Law
(1987) (noting, inter alia, that international law traditionally provides only for reparations between states, not private civil remedies).
Accordingly, the Court concludes that the Alien Tort Statute provides a civil cause of action for international law violations even if international law itself does not clearly recognize a civil cause of action for violations of that norm.
V. THE ALLEGED PRIMARY VIOLATIONS OF INTERNATIONAL LAW
Plaintiffs allege that Cote d’Ivoire farmers are responsible for the following violations of Plaintiffs’ rights under international law. Plaintiffs further allege that Defendants have aided and abetted these violations.
Defendants’ Motion to Dismiss is aimed at the adequacy of Plaintiffs’ allegations of aiding and abetting. Because the Motion is not directed at the underlying primary violations of international law (i.e., the conduct of the Ivorian farmers), the Court assumes for purposes of this Order that Plaintiffs have adequately alleged primary violations of the following norms. The Court summarizes the applicable facts and legal standards in order to provide context for the discussion of Defendants’ contribution (or lack thereof) to those violations. It is helpful to thoroughly examine the
*1074
details of the alleged primary violation pri- or to addressing the parties’ arguments regarding secondary liability.
A. FORCED LABOR
[11] It is widely acknowledged that the use of forced labor violates international law.
See Adhikari v. Daoud & Partners,
697 F.Supp.2d 674, 687 (S.D.Tex.2009) (“trafficking and forced labor ... qualify as universal international norms under
Sosa
”);
John Roe I v. Bridgestone Corp.,
492 F.Supp.2d 988, 1014 (S.D.Ind.2007) (“some forms of forced labor violate the law of nations”);
Jane Doe I v. Reddy,
No. C 02-05570 WHA, 2003 WL 23893010 , at *9 (N.D.Cal. Aug. 4, 2003) (“forced labor ... is prohibited under the law of nations);
Iwanowa v. Ford Motor Co.,
67 F.Supp.2d 424, 441 (D.N.J.1999) (“[T]he case law and statements of the Nuremberg Tribunals unequivocally establish that forced labor violates customary international law.”);
see also In re World War II Era Japanese Forced Labor Litig.,
164 F.Supp.2d 1160, 1179 (N.D.Cal.2001) (“this court is inclined to agree with the
Iwanowa
court’s conclusion that forced labor violates the law of nations”).
For present purposes, the Court adopts the definition of “forced labor” supplied by the International Labour Organization Forced Labor Convention of 1930: “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” International Labour Organization Convention No. 29 Concerning Forced or Compulsory Labor, art. 2., 39 U.N.T.S. 55,
entered into force,
May 1, 1932. More thorough definitions may be found in the treaties and conventions identified in the Complaint (FAC ¶ 63), in the expert declaration of Lee Swepston [docket no. 93], and in the Victims of Trafficking and Violence Protection Act of 2000.
16
There are various examples of forced labor cases being brought under the Alien Tort Statute (many of which, it should be noted, predate
Sosa).
In one case, the district court held that the plaintiffs’ allegations were insufficient to state a claim under international law where:
*1075
John Roe I v. Bridgestone Corp.,
492 F.Supp.2d 988, 1014 (S.D.Ind.2007).
*1074
Plaintiffs allege that they have nothing left after they spend their wages at [the defendant’s] company stores and other company facilities (such as schools), but they do not allege induced indebtedness. Plaintiffs allege that they are physically isolated at the Plantation, but they do not allege that [the defendant] keeps them physically confined there. To the extent plaintiffs allege psychological compulsion, they are clearly alleging what the [International Labor Organization] report calls “pure economic necessity, as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives,” which is not forced labor under international law.
*1075
In another case, the allegations were sufficient where the plaintiffs alleged that they “were brought to the United States and forced to work involuntarily!,] and [that] defendants reinforced their coercive conduct through threats, physical beatings, sexual battery, fraud and unlawful substandard working conditions.”
Jane Doe I v. Reddy,
2003 WL 23893010 , at *9. Similarly, in
Licea v. Curacao Drydock Co., Inc.,
584 F.Supp.2d 1355 (S.D.Fla.2008), the plaintiffs established that they were forced to work on oil platforms after having been trafficked from Cuba to Curacao under threats of physical and emotional harm.
In the present case, Plaintiffs allege that they were forced to labor on cocoa fields. (FAC ¶¶ 57-59.) At least one Plaintiff (John Doe I) alleges that he was trafficked from Mali to Cote d’Ivoire. (FAC ¶ 57.) All three Plaintiffs were locked on their respective farms and plantations and monitored at night by guards armed with guns and whips. (FAC ¶¶ 57-59.) They were subjected to physical violence and related psychological abuse that had the effect of forcing them to work and remain on the farms. (FAC ¶¶ 57-59.) They were threatened with severe beatings from whips and tree branches, being forced to drink urine, and having their feet cut open.
(Id.)
They were not paid for their work, were given inadequate amounts of food, and were forced to sleep in groups in locked rooms, and at least one plaintiff was forced to sleep on the floor.
(Id.)
Because Defendants have not disputed that adequacy of these allegations, the Court concludes for present purposes that these allegations are sufficient constitute forced labor under international law.
B. CHILD LABOR
It is clear that in some instances “child labor” constitutes a violation of an international law norm that is specific, universal, and well-defined. “Yet whatever one’s initial reaction is to the broad phrase ‘child labor,’ reflection shows that national and international norms accommodate a host of different situations and balance competing values and policies.... It is not always easy to state just which practices under the label ‘child labor’ are the subjects of an international consensus.”
John Roe I v. Bridgestone,
492 F.Supp.2d at 1020 .
Plaintiffs submit an expert declaration from a former member of the International Labour Organization, Lee Swepston. [Docket no. 93.] Swepston’s declaration reveals that the definitional concerns identified by the
John Roe I v. Bridgestone
court apply with equal force in the present case.
17
Nevertheless, for present purposes, the Court assumes that the allegations in the First Amended Complaint are analogous to the allegations at issue in
John Roe I v. Bridgestone,
a case involving allegations of forced labor and child labor on a Liberian rubber plantation:
[T]he Complaint states that defendants are actively encouraging — even tacitly requiring — the employment of six, seven, and ten year old children. Giving
*1076
plaintiffs the benefit of their factual allegations, the defendants are actively encouraging that these very young children perform back-breaking work that exposes them to dangerous chemicals and tools. The work, plaintiffs allege, also keeps those children out of the [company-provided] schools. The court understands that defendants deny the allegations, but defendants have chosen to file a motion that requires the court to accept those allegations as true, at least for now. [¶] The circumstances alleged here include at least some practices that could therefore fall within the “worst forms of child labor” addressed in ILO Convention 182. The conditions of work alleged by plaintiffs (and reported by the UN investigators) are likely to harm the health and safety of at least the very youngest of the child plaintiffs in this case.
John Roe I v. Bridgestone Corp.,
492 F.Supp.2d at 1021 .
18
The plaintiffs in the present case allege that they were forced to work “cutting, gathering, and drying” cocoa beans for twelve to fourteen hours a day, six days a week. (FAC ¶¶ 57-59.) The plaintiffs were between twelve and fourteen years old at the time they first began working at the farms.
(Id.)
Because Defendants have not disputed the adequacy of these allegations, the Court assumes for present purposes that Plaintiffs’ allegations establish violations of universal, well-defined international law norms prohibiting child labor.
19
C. TORTURE
Torture is a well-established norm of international law that is actionable under the Alien Tort Statute.
See In re Marcos Human Rights Litig., 25
F.3d 1467, 1475 (9th Cir.1994) (collecting authorities);
Filartiga v. Pena-Irala,
630 F.2d 876, 880-84 (2d Cir.1980);
see also Sosa,
542 U.S. at 732 , 124 S.Ct. 2739 (citing those cases with approval).
A helpful working definition of “torture” can be found in the Torture Victim Protection Act:
the term ‘torture’ means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind[.]
Torture Victim Protection Act, Pub. L. 102-256, 106 Stat. 73 (1992), § 3(b)(1),
reprinted in
28 U.S.C.A. § 1350 note. In
*1077
addition, the Torture Victim Protection Act contains a state-action requirement, such that liability only exists if the act of torture is done “under actual or apparent authority, or color of law, of any foreign nation.”
Id.
at § 2(a)(1).
20
Plaintiffs allege that they were severely beaten and/or threatened with severe beatings in order to prevent them from leaving the cocoa plantations. Plaintiffs also allege that they were given inadequate food, were forced to sleep in tightly-packed locked rooms, and were threatened with being forced to drink urine. (FAC ¶¶ 57-59.)
The Court will assume for purposes of this motion that these allegations are sufficient to state the basic elements of torture: “severe pain or suffering” was “intentionally inflicted on” Plaintiffs for the “purposes” of “punishing” Plaintiffs for acts that Plaintiffs committed, and/or for the “purposes” of “intimidating or coercing” Plaintiffs. Allegations of severe beatings, extended confinements, and deprivation of food—causing both physical and mental injury—generally constitute torture.
See, e.g., Doe v. Qi,
349 F.Supp.2d 1258, 1267-70, 1314-18 (N.D.Cal.2004) (collecting cases).
21
To the extent that the international law definition of torture contains additional requirements (most importantly, the state-action requirement), the Court discusses these issues at greater length
infra.
D. CRUEL, INHUMAN, AND DEGRADING TREATMENT
“Cruel, inhuman, or degrading treatment or punishment is defined as acts which inflict mental or physical suffering, anguish, humiliation, fear and debasement, which fall short of torture.”
Sarei v. Rio Tinto PLC,
650 F.Supp.2d 1004, 1029 (C.D.Cal.2009) (quoting
Aldana v. Del Monte Fresh Produce, N.A., Inc.,
452 F.3d 1284 , 1285 n. 1 (11th Cir.2006) (Barkett, J., dissenting)),
appeal pending,
Nos. 02-56256, 02-56390, 09-56381 (9th Cir.). “The principal difference between torture and [cruel, inhuman, or degrading treatment] is ‘the intensity of the suffering inflicted.’ ”
Id.
(quoting
Restatement (Third) of Foreign Relations,
§ 702 n. 5).
The prevailing view in the caselaw is that “cruel, inhuman, and degrading treatment” generally constitutes an actionable international law norm under
Sosa. See, e.g., Sarei,
650 F.Supp.2d at 1028-29 (collecting cases). However, as with child labor, there is a general consensus that only some types of activities constitute cruel, inhuman, and degrading treatment; and the central question is whether the “specific conduct at issue” fits within that core norm.
Id.
at 1029-30 (“Because multiple elements of plaintiffs’ CIDT claim do not involve conduct that has been universally condemned as cruel, inhuman, or degrading, the court concludes that the specific CIDT claim plaintiffs assert does not exclusively involve matters of universal concern.”);
Bowoto,
557 F.Supp.2d at 1093-94;
John Roe I v. Bridgestone,
492 F.Supp.2d at 1023-24 (recognizing cruel, inhuman, and degrading treatment as actionable norm under customary international law, but holding that “exploitative labor practices” do not violate those
*1078
norms);
Doe v. Qi
349 F.Supp.2d at 1321-25 .
As with the allegations of torture, the Court assumes for purposes of this Order that Plaintiffs have adequately alleged cruel, inhuman, or degrading treatment with respect to Defendants’ alleged severe beatings, extended confinements, and deprivation of food.
VI. LEGAL STANDARD REGARDING LIABILITY FOR AIDING AND ABETTING VIOLATIONS OF INTERNATIONAL LAW
A. INTRODUCTION
There is an extensive body of precedent supporting aiding and abetting-liability for violations of international law. Aiding and abetting liability is prominent in the Nuremberg Tribunals, the International Criminal Tribunals for the Former Yugoslavia and Rwanda (hereinafter “ICTY” and “ICTR”), and the Rome Statute of the International Criminal Court.
See Khulumani v. Barclay Nat. Bank Ltd.,
504 F.3d 254, 270 (2d Cir.2007) (Katzmann, J., concurring) (“the individual responsibility of a defendant who aids and abets a violation of international law ... has been frequently invoked in international law instruments as an accepted mode of liability [and] has been repeatedly recognized in numerous international treaties.”). International conventions such as the Supplementary Convention on the Abolition of Slavery require the punishment of aiders and abetters.
See
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Sept. 7, 1956, 18 U.S.T. 3201, 226 U.N.T.S. 3.
22
Similarly, domestic criminal law provides for aiding and abetting liability,
see
18 U.S.C. § 2 , and has done so for centuries with respect to aiding and abetting particular violations of international law such as piracy.
23
There is little doubt, then, that certain Alien Tort Statute defendants may potentially be held liable under an aiding and abetting theory of liability.
B. WHICH SOURCE OF LAW TO APPLY?
The key question is whether to examine domestic law or international law to derive the proper legal standard for determining aiding and abetting liability. Plaintiffs assert that the proper source of aiding and abetting liability is domestic law. Defen
*1079
dants assert that international law is the proper source.
Ultimately, the Court agrees with and adopts the Second Circuit’s resolution of this question: international law provides the appropriate definition of aiding and abetting liability.
See Presbyterian Church of Sudan v. Talisman Energy, Inc.,
582 F.3d 244, 258-59 (2d Cir.2009) (discussing
Khulumani v. Barclay Nat. Bank Ltd.,
504 F.3d 254 (2d Cir.2007)). The central principles are as follows.
The Supreme Court in
Sosa
repeatedly insisted that United States courts must follow international law in defining the nature of violative acts and the scope of liability.
See, e.g.,
Sosa, 542 U.S. at 732 , 124 S.Ct. 2739 (“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.”). Though Plaintiffs argue that federal law should be used to fill the gaps where international law is silent, it is clear that international law provides sufficiently well-established norms of secondary liability to satisfy
Sosa’s
requirement of norms containing “definite content [that are] accepted] among civilized nations.”
See id.
There is simply no reason to alter the well-defined scope of international law by introducing domestic law into the Alien Tort Statute.
It is clear from the authorities identified by the parties and discussed at greater length
infra
that international law recognizes aiding and abetting liability. Because the act of aiding and abetting a human rights violation constitutes an independent violation of international law, the Court concludes that international law is the appropriate source of law under
Sosa .
C.
WHAT IS THE SCOPE OF AIDING AND ABETTING LIABILITY UNDER INTERNATIONAL LAW?
There is little doubt that aiding and abetting liability is a part of international law. Aiding and abetting liability is prominent in the Nuremberg Tribunals,
24
the International Criminal Tribunals for the Former Yugoslavia and Rwanda,
25
and the Statute of the International Criminal Court.
See generally Khulumani,
504 F.3d at 270 (Katzmann, J., concurring).
Although there are various formulations of the proper standard of aiding and abetting liability in international law,
*1080
it is important to remember
Sosa’s
instruction that norms are only actionable if they are universally recognized and defined with specificity. For example, as noted by Justice Story in
United States v. Smith,
18 U.S. 153, 161 , 5 Wheat. 153 , 5 L.Ed. 57 (1820), “whatever may be the diversity of definitions, ... all writers concur, in holding, that robbery or forcible depredations upon the sea,
animo furandi
[with the intention to steal] is piracy.”
26
In other words, where there are a variety of formulations, the court should look to the formulation that is agreed upon by all' — a lowest common denominator or a common “core definition” of the norm.
See Khulumani,
504 F.3d at 277 n. 12 (Katzmann, J., concurring). This approach has been adopted by the Ninth Circuit in
Abagninin v. AMVAC Chem. Corp.,
545 F.3d 733, 738-40 (9th Cir.2008), which concluded that customary international law imposes a specific intent standard for genocide, despite an alternative “knowledge” standard established by one particular treaty. In addition, this lowest common denominator approach has been adopted by other federal courts dealing with the question of aiding and abetting liability.
See Presbyterian Church of Sudan,
582 F.3d at 259 (concluding that the relevant “standard has been largely upheld in the modern era, with only sporadic forays in the direction of a [different] standard.”).
1. ACTUS REUS
With respect to the
actus reus
element of the violation, the Court, having examined the applicable authorities, believes that the International Criminal Tribunal for the former Yugoslavia has accurately and concisely restated the governing international law rule:
an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime. The
actus reus
need not serve as condition precedent for the crime and may occur before, during, or after the principal crime has been perpetrated.
Prosecutor v. Blagojevic,
No. IT-02-60-A, at ¶ 127 (ICTY Appeals Chamber, May 9, 2007) (collecting cases) (citations and footnotes omitted, emphasis added),
available at
http://www.icty.Org/x/cases/blagoj evic_ jokic/acjug/en/blajok-jud070509.pdf.
27
This formulation requires that the defendant must do something more than “[a]iding a criminal” generally — the defendant must
*1081
aid the commission of a specific crime. As other District Courts have aptly explained, “[a]iding a criminal ‘is not the same thing as aiding and abetting his or her alleged human rights abuses.’ ”
In re South African Apartheid Litig.,
617 F.Supp.2d 228 , 257 (S.D.N.Y.2009) (emphasis added) (quoting
Mastafa v. Australian Wheat Bd. Ltd.,
No. 07 Civ. 7955(GEL), 2008 WL 4378443 , at *3 (S.D.N.Y. Sept. 25, 2008)). In other words, the aider and abettor’s assistance must bear a causative relationship to the specific wrongful conduct committed by the principal.
Id.
The assistance need not necessarily constitute a “but-for” cause or
conditio sine qua non,
but it must have an actual effect on the principal’s criminal act.
Id.
This definition of the
actus reus
standard is consistent with the caselaw summarized
infra
and, notably, retains a meaningful and clear distinction between aiding and abetting liability and conspiracy/,] oint criminal enterprise liability. As explained by the International Criminal Tribunal for the Former Yugoslavia, the distinctions between aiding and abetting and joint criminal enterprise are as follows:
Participation in a joint criminal enterprise is a form of “commission” [of a crime] under Article 7(1) of the [ICTY] Statute. The participant therein is liable as a co-perpetrator of the crime(s). Aiding and abetting the commission of a crime is usually considered to incur a lesser degree of individual criminal responsibility than committing a crime. In the context of a crime committed by several co-perpetrators in a joint criminal enterprise, the aider and abettor is always an accessory to these co-perpetrators, although the co-perpetrators may not even know of the aider and abettor’s contribution. Differences exist in relation to the
actus reus
as well as to the
mens rea
requirements between
both forms of individual criminal responsibility:
(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a participant in a joint criminal enterprise to perform acts that in some way are directed to the furtherance of the common design.
(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as a co-perpetrator, the requisite
mens rea
is intent to pursue a common purpose.
Vasiljevic,
2004 WL 2781932 , at ¶ 102. In other words, the aider and abettor must do something more than commit acts that “in some way” tenuously “further[ ] ... the common design” of a criminal organization; that
actus reus
standard applies only to co-conspirators who knowingly and actively join in the criminal conspiracy and share its criminal purpose. To establish aiding and abetting liability, generalized assistance is not enough: the assistance must be “specifically directed” — i.e., bear a direct causative relationship — to a specific wrongful act, and the assistance must have a substantial effect on that wrongful act.
Blagojevic,
at ¶ 127.
This aiding and abetting
actus reus
standard necessarily “requires a fact-based inquiry” that is context-specific.
See id.
at ¶ 134 . However, one important issue must be noted at the outset of the discussion. There is a great deal of uncertainty about the
actus reus
of “tacit approval and en
*1082
eouragement” — a theory of liability that, according to Plaintiffs, dates back to Nuremberg-era precedents such as
The Synagogue Case
and
United States v. Ohlendorf (“The Einsatzgruppen Case"), in 4 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10
(“T.W.C.”), at 570-72 (William S. Hein
&
Co., Inc. 1997). To the extent this form of liability even exists, the modern caselaw supports liability only where the defendant has “a combination of a position of authority and physical presence at the crime scene[, which] allows the inference that non-interference by the accused actually amounted to tacit approval and encouragement.”
Prosecutor v. Oric,
No. IT-03-68-A, at ¶42 (ICTY Appeals Chamber, July 3, 2008),
available at
2008 WL 6930198 . As with all aiding and abetting, it must be shown that the encouragement was “substantial” — which necessarily requires that the “principal perpetrators [were] aware of it,” because otherwise, the support and encouragement would not have had any effect (let alone a substantial one) on the principal offense.
Prosecutor v. Brdjanin,
No. IT-99-36-A, at ¶ 277 (ICTY Appeals Chamber, April 3 2007),
available at
2007 WL 1826003 . The specific situations in which courts have imposed such liability are identified
infra.
2. MENS REA
The Court is aware that there is an ongoing debate among courts, litigants, and commentators regarding the proper definition of aiding and abetting liability.
See, e.g., Pet’n for Writ of Cert., Presbyterian Church of Sudan v. Talisman Energy, Inc.,
No. 09-1262, 2010 WL 1602093 , at *27-33 (Apr. 15, 2010) (collecting cases). The Court concurs with the five judges on the Second Circuit who have concluded that the appropriate
mens rea
for aiding and abetting violations of international law requires that the defendant act with “the purpose of facilitating the commission of that crime.”
Khulumani,
504 F.3d at 277 (Katzmann, J., concurring);
see also Presbyterian Church of Sudan,
582 F.3d at 259 (adopting Judge Katzmann’s formulation);
Khulumani,
504 F.3d at 332-33 (Korman, J., concurring in relevant part). As the Second Circuit explained in its recent
Presbyterian Church of Sudan
decision, a plaintiff must show that the defendant acted with “purpose rather than knowledge alone” because only a “purpose” standard “has the requisite ‘acceptance among civilized nations’ ” to satisfy Sosa’s stringent requirements.
Presbyterian Church of Sudan,
582 F.3d at 259 (quoting
Sosa,
542 U.S. at 732 , 124 S.Ct. 2739 ). The less-stringent “knowledge” standard, although it has often been invoked, has not obtained universal recognition and acceptance.
See generally Prosecutor v. Furundzija,
IT-95-17/1-T, at ¶¶ 190-249 (ICTY Trial Chamber, Dec. 10, 1998) (surveying international caselaw and adopting “knowledge”
mens rea
standard),
reprinted in
38 I.L.M. 317 (1999),
affd,
No. IT-95-17/1-A (ICTY Appeals Chamber, July 21, 2000),
available at
2000 WL 34467822 . As such, the “knowledge” standard is an improper basis for bringing an Alien Tort Statute action.
However, to the extent that a “knowledge”
mens rea
standard applies (a conclusion that the Court rejects), the Court believes that the proper articulation of the aiding and abetting standard would be the formulation adopted by the Appeals Chambers of the International Criminal Tribunals for the former Yugoslavia and Rwanda: “the requisite mental element of aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.”
Blagojevic,
at ¶ 127 (collecting cases) (citations and footnotes omitted, emphasis added);
see also Prosecutor v. Ntagerura,
No. ICTR-99-46-A, at ¶ 370 (ICTR Appeals Chamber, July 2006) (same),
available at
2006 WL 4724776 ;
Prosecutor v. Blaskic,
No. IT-95-14-A, at ¶ 45 (ICTY Appeals Chamber, July 2004)
*1083
(same),
available at
2004 WL 2781930 ;
Prosecutor v. Vasiljevic,
No. IT-98-32-A, at ¶ 102 (ICTY Appeals Chamber, Feb. 25, 2004) (same),
available at
2004 WL 2781932 . To the extent that the International Criminal Tribunals for the former Yugoslavia and Rwanda have occasionally adopted a less stringent standard,
see, e.g., Mrksic,
at ¶ 159;
Furundzija,
38 I.L.M. 317 at ¶249, the Court believes that the standard articulated in
Blagojevic, Ntagerura, Blaskic,
and
Vasiljevic
best reflects the relevant caselaw discussed
infra.
28
Accordingly, to the extent that the “purpose” specific intent
mens rea
standard does not apply and a “knowledge” general intent
mens rea
standard does apply, the Court would apply the dominant approach taken in the recent international appellate tribunal decisions. This approach requires that the aider and abettor must know or have reason to know of the relationship between his conduct and the wrongful acts.
See Oric,
2008 WL 6930198 , at ¶ 45. It is not enough, as explained by the
Oric
appeals tribunal, that the aider and abetter knew or had reason to know that crimes were being committed — the aider and abetter must know or have reason to know that his own acts or omissions “assisted in the crimes.”
Id.
at ¶¶ 43 , 45 & n. 104.
That said, the Court concludes that the “purpose”
mens rea
standard is the proper standard to use in Alien Tort Statute litigation. The less-stringent “knowledge” standard that was originally synthesized by the International Criminal Tribunal for the former Yugoslavia in
Furundzija
rests on a number of premises that, while perhaps acceptable under that Tribunal’s enacting authority, fail to satisfy the requirements set forth by the Supreme Court in
Sosa .
The appropriateness of the “purpose” standard is supported by the following authorities. As an initial matter, it is particularly notable that the International Court of Justice — the central expositor of international law,
see Restatement (Third) of Foreign Relations,
§ 103 cmt. (b) (“The judgments and opinions of the International Court of Justice are accorded great weight”) — recently declined to decide whether the crime of aiding and abetting genocide requires that the aider and abettor share the perpetrator’s criminal intent or merely know of the perpetrator’s criminal intent.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
2007 I.C.J. No. 91, at ¶ 421 (“the question arises whether complicity presupposes that the accomplice shares the specific intent
(dolus
specialis) of the principal perpetrator”),
available at
http://www.icj-cij.org/docket/ flles/91/13685.pdf. The fact that the International Court of Justice refrained from addressing this question supports the conclusion that the appropriate definition remains subject to reasonable debate.
29
In
*1084
light of
Sosa ,
any doubts about the standard should be resolved in favor of the most stringent version.
See, e.g., Presbyterian Church of Sudan,
582 F.3d at 259 (adopting approach of looking to common core definition to determine appropriate choice among competing articulations of a standard);
Abagninin,
545 F.3d at 738-40 (same).
The Court notes that a Nuremberg-era precedent supports the view that the aider and abetter must act with the purpose of aiding the principal offender. In the
Hechingen
case, a number of German citizens were accused of aiding and abetting the deportation of the Jewish population of two German towns.
See The Hechingen and Haigerloch Case, translated in Modes of Participation in Crimes Against Humanity,
7 J. Int’l Crim. Just. 131, 132 (2009). The Gestapo had issued orders for the towns’ Jewish populations to be deported and for their persons and luggage to be searched.
Id.
Two of the defendants, “Ho.” and “K.,” had participated in the searches and had collected the victims’ jewelry to give to the town’s mayor.
Id.
at 144-45. The trial court held that on account of these acts the defendants were guilty as accessories of participating “in a persecution on racial grounds and thus in a crime against humanity.”
Id.
at 145. The trial court’s conclusion was based on its view that the “knowledge”
mens rea
standard applied: “Intent as an accessory requires, first, that the accused knew what act he was furthering by his participation; he must have been aware that the actions ordered from him by the Gestapo served persecution on racial grounds.... [And] second, that the accused knew that through his participation he was furthering the principal act.”
Id.
at 139.
This conclusion was reversed on appeal. The appellate court explained that the underlying offense, “[persecution on political, racial and religious grounds,” may only be committed if the defendant “acted out of an inhumane mindset, derived from a politically, racially or religiously determined ideology.”
Id.
at 150. The court explained that the aider and abettor must share this criminal intent — i.e., must act with the intention of bringing about the underlying crime: “[t]he accessory [ ] to a crime against humanity is ‘regarded as guilty of a crime against humanity, without regard to the capacity in which he acted.’ From this complete equation with the perpetrator it follows that the accessory must have acted from the same mindset as the perpetrator himself, that is, from an inhumane mindset and in persecutions under politically, racially or religiously determined ideologies.”
Id.
at 150. The court then concluded that “[t]he accused Ho. and K. were, according to the [trial court’s] findings, involved only in a subordinate manner in the deportations. In doing so they behaved particularly leniently and sympathetically, i.e. humanely [toward the victims]. Their attitudes were not anti-
*1085
Jewish. Moreover, as the [trial court] judgment also explicitly finds, they did not have an awareness of the illegality of what they were doing.”
Id.
at 151. Accordingly, the court of appeal reversed their convictions.
Id.
In light of the
Hechingen
case — which has received surprisingly little attention from courts and litigants under the Alien Tort Statute,
cf.
Brief of Amici Curiae International Law Scholars William Aceves, et al., in support of Pet’n for Writ of Cert.,
Presbyterian Church of Sudan v. Talisman Energy, Inc.,
No. 09-1262, 2010 WL 1787371 , at *7 & n. 4 (Apr. 30, 2010) (arguing that “a single deviation from a long line of precedent does not modify customary international law”) — the Court is compelled to conclude that the “purpose”
mens rea
standard is the correct standard for Alien Tort Statute purposes and the
Furundzija
“knowledge” standard is not. The
Hechingen
precedent was simply brushed aside by the ICTY Trial Chamber in
Furundzija, see
38 I.L.M. 317, at ¶ 248 (“the high standard proposed by
[Hechingen
] is not reflected in the other cases”). But in light of
Sosa ,
this Court is not in a position to ignore international precedent so easily.
30
Notably, this conclusion is further supported by the Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, which “has been signed by 139 countries and ratified by 105, including most of the mature democracies of the world,”
Khulumani,
504 F.3d at 333 (Korman, J., concurring), and which “by and large may be taken as constituting an authoritative expression of the legal views of a great number of States.”
Furundzija,
38 I.L.M. 317, at ¶ 227. Importantly, the Rome Statute, unlike many other international law sources, specifically and clearly “articulates the
mens rea
required for aiding and abetting liability” and harmonizes all of the relevant caselaw from international tribunals.
Khulumani
504 F.3d at 275 (Katzmann, J., concurring);
cf. Abagninin,
545 F.3d at 738-40 (rejecting plaintiffs’ reliance on Rome Statute with respect to genocide because Rome Statute’s definition of genocide conflicted with definition that was uniformly adopted by other authorities).
The Rome Statute provides that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court
31
if that person[,] ... [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.” Article 25(3)(c) (emphasis added). The “purpose”
mens rea
standard should be contrasted with the treaty’s general “intent and knowledge” standard, art. 30(1),
32
the crim
*1086
inal negligence standard applicable to military commanders’ liability for subordinates’ actions, art. 28(a),
33
the criminal recklessness standard applicable to other superiors for their subordinates’ actions, art. 28(b),
34
and the intent and knowledge standard applicable to conspirators (that is, members of “groups acting with a common purpose”).
35
It is also noteworthy that the “purpose” standard “was borrowed from the Model Penal Code of the American Law Institute and generally implies a specific subjective requirement stricter than knowledge.”
See
International Commission of Jurists, Expert Legal Panel on Corporate Complicity in Interna-
tional Crimes, 2
Corporate Complicity & Legal Accountability
22 (2008) (citing Kai Ambos, “Article 25; Individual Criminal Responsibility,”
in
Otto Triffterer, ed.,
Commentary on the Rome Statute
(1999)).
Much like the Nuremberg-era
Hechingen
case, the Rome Statute’s “purpose” standard, was largely ignored by the
Furundzija
tribunal. The
Furundzija
tribunal cited Article 30 of the Rome Statute for the proposition that “knowledge” is the default
mens rea
for violations of human rights law, and wholly failed to mention the more specific “purpose” standard set forth for aiding and abetting liability under Article 25 of the Rome Statute.
See Fu
*1087
rundzija,
38 I.L.M. 317, at ¶ 244 & n. 266; Rome Statute, at art. 25(3)(c) (establishing aiding and abetting liability where defendant acts “[f]or the purpose of facilitating the commission of’ the principal offense) (emphasis added). Yet as the
Furundzija
court recognized, “[i]n many areas the [Rome] Statute may be regarded as indicative of the legal views, i.e.
opinio juris
of a great number of States.”
Furundzija,
38 I.L.M. 317, at ¶ 227;
see also Prosecutor v. Tadic,
No. IT-94-1-A, at ¶ 223 & n. 282 (ICTY Appeals Chamber, July 15, 1999) (same),
available at
1999 WL 33918295 . The Rome Statute’s “purpose” standard must be given great weight. It should be noted as well that the Rome Statute’s standard is not a lone outlier: the same articulation appears in the United Nations’s regulations governing human rights tribunals in East Timor.
See
United Nations Transitional Administration in East Timor, “On the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Offenses,” § 14.3(c), UNTAET Reg. N0.2000/15 (June 6, 2000),
available at
http://www.un.org/en/peacekeeping /missions/pasVetimor/untaetR/Reg0015E.pdf.
Some (including Plaintiffs) have argued that the Rome Statute does not abrogate prior customary international law.
(See
2/23/09 Opp. at 13 n. 16.) However, this argument rests in part on a misreading of the Rome Statute itself. This argument rests on Article 10 of the Statute, which provides that “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.” Based on this provision, Plaintiffs argue that the Rome Statute does not override international caselaw to the contrary. But Article 10 only establishes that nothing “in this Part” affects existing customary international law. Rome Statute, art. 10 (emphasis added). Article 10 appears in Part II, which governs “Jurisdiction, admissibility and applicable law.” On the other hand, Article 25, which establishes the rules regarding individual criminal responsibility (including aiding and abetting liability), appears in Part III of the Treaty, under the heading “General principles of criminal law.”
See
Rome Statute, arts. 22-33 (“Part III”);
see also Tadic,
1999 WL 33918295 , at ¶ 223 n. 282 (making same observation). As such, Article 10 does not apply to the present analysis, and it is therefore appropriate that the Rome Statute’s articulation of the relevant
mens rea
standard — which has been approved by the majority of nations in the world — should prevail over conflicting international caselaw.
36
Accordingly, in light of
Sosa’s
requirement that international law norms must be “accepted by the civilized world” and “defined with a specificity comparable to” the eighteenth-century norms recognized by Blackstone,
Sosa,
542 U.S. at 725 , 124 S.Ct. 2739 , the Court concludes that it is appropriate to adopt the “purpose”
mens rea
standard rather than the “knowledge” standard.
See Presbyterian Church of Sudan,
582 F.3d at 259 ;
Khulumani,
504 F.3d at 277 (Katzmann, J., concurring), 332-33 (Korman, J., concurring in relevant part).
3. SUMMARY OF AIDING AND ABETTING STANDARD
In sum, the Court concludes that the “core” definition of aiding and abetting under international law requires the following. A person is legally responsible for aiding and abetting a principal’s wrongful act when the aider and abettor (1) carries out acts that have a substantial effect on
*1088
the perpetration of a specific crime, and (2) acts with the specific intent (i.e., for the purpose) of substantially assisting the commission of that crime.
See Presbyterian Church of Sudan,
582 F.3d at 259 (articulating
mens rea
standard);
Blagojevic,
at ¶ 127 (articulating
actus reus standard).
The Court concludes that the relevant international caselaw, as construed in accordance with
Sosa ,
supports this articulation of the aiding and abetting standard.
D. NUREMBERG-ERA ILLUSTRATIONS OF AIDING AND ABETTING UNDER INTERNATIONAL LAW
The seminal cases discussing aiding and abetting liability were issued following the Second World War by military tribunals operating under the rules of the London Charter of the International Military Tribunal at Nuremberg.
37
The most important illustration of aiding and abetting liability involves the prosecution of a bank officer named Karl Rasche in
United States v. von Weizsaecker et al. (“The Ministries
Case”), 14 T.W.C. at 308, 621-22.
38
The three-judge military tribunal declined to impose criminal liability with respect to the bank’s loans of “very large sums of money” to various SS enterprises that used slave labor and engaged in the forced migration of non-German populations.
Id.
at 621. The court held that it was insufficient that the defendant knew that the loan would be used for criminal purposes by the SS enterprises. In full, the court held:
The defendant is a banker and businessman of long experience and is possessed of a keen and active mind. Bankers do not approve or make loans in the number and amount made by the Dresdner Bank without ascertaining, having, or obtaining information or knowledge as to the purpose for which the loan is sought, and how it is to be used. It is inconceivable to us that the defendant did not possess that knowledge, and we find that he did.
39
The real question is, is it a crime to make a loan, knowing or having good reason to believe that the borrower will
*1089
use the 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.
Ministries Case,
14 T.W.C. at 622. The court accordingly acquitted Rasche on the charge of aiding and abetting the SS’s use of slave labor and forced migration.
Id.
The court applied an identical analysis in acquitting Rasche on an additional count of aiding and abetting spoliation (plundering) activities by financing the German government’s “spoliation agencies.”
Id.
at 784.
Rasche’s case must be contrasted with the
The Flick Case,
6 T.W.C. at 1187. The defendants Flick and Steinbrinck were charged with being “members of the Keppler Circle or Friends of Himmler, [and] with knowledge of its criminal activities, contributed large sums to the financing of’ the SS.
Id.
at 1190. Both Flick and Steinbrinck gratuitously donated 100,000 Reichsmarks annually to a “cultural” fund headed by Himmler (the head of the SS).
Id.
at 1219-20. The amount was “a substantial contribution” — “even [for] a wealthy man” — and plainly could have not have been used by Himmler solely for cultural purposes.
Id.
at 1220. The court explained that although Flick and Steinbrinck might have plausibly argued that they were initially ignorant of the true purposes of their donations, they continued making donations well after “the criminal character of the SS ... must have been known” to them.
Id.
at 1220. The court held that Flick and Steinbrinck had effectively given Himmler “a blank check,” by which “[h]is criminal organization was maintained.”
Id.
at 1221. When a donor provides extensive sums of money to a criminal organization without asking for anything in return, it is “immaterial whether [the money] was spent on salaries or for lethal gas.”
Id.
The donor becomes guilty of aiding and abetting the organization’s criminal acts: “One who knowingly by his influence and money contributes to the support [of a criminal organization] must, under settled legal principles, be deemed to be, if not a principal, certainly an accessory to such crimes.”
Id.
at 1217. Yet, at the same time, the tribunal also found that Flick and Steinbrinck had not joined in the Nazi Party’s ideologies: “Defendants did not approve nor do they now condone the atrocities of the SS.”
Id.
at 1222. The defendants “were not pronouncedly anti-Jewish,” and in fact “[e]ach of them helped a number of Jewish friends to obtain funds with which to emigrate.”
Id.
The tribunal found it “unthinkable that Steinbrinck, a V-boat commander who risked his life and those of his crew to save survivors of a ship which he had sunk, would willingly be a party to the slaughter of thousands of defenseless persons.”
Id.
Similarly Flick “knew in advance of the plot on Hitler’s life in July 1944, and sheltered one of the conspirators.”
Id.
It thus
*1090
cannot reasonably be argued that the defendants made their contributions for the purpose of assisting the SS’s acts.
The distinctions between Flick and Steinbrinck in
The Flick Case
and Rasche in
The Ministries Case
are narrow, but important. Neither Flick nor Steinbrinck acted with the purpose of furthering the Nazi cause; indeed, the tribunal explicitly concluded that neither defendant shared the German government’s genocidal intent. However, by gratuitously donating money to the Nazi party with full knowledge of the fact that the money would be used to further the German government’s atrocities, they were found guilty as accessories to those atrocities. In
The Ministries Case,
the banker Rasche also acted with full knowledge that his loans would be used to benefit enterprises that used slave-labor and engaged in forced migrations. 14 T.W.C. at 622, 863. But Rasche was acquitted. Regardless of whether the holdings are categorized as turning on the defendant’s
actus reus
or the
mens rea,
40
the ultimate conclusion is clear: ordinary commercial transaction, without more, do not violate international law. In one case, the defendant provided payments without asking for anything in return; in the other case, the defendant engaged in commercial transactions by lending money. One is guilty of violating international law, and the other is not.
A similar distinction can be found by contrasting another pair of Nuremberg-era precedents, the
Zyklon B Case, in
1
Law Reports of Trials of War Criminals
93 (1947), and
The LG. Farben Case,
8 T.W.C. 1081. In the
Zyklon B Case,
defendant Bruno Tesch and a colleague were engaged in the business of providing gasses and equipment for use in exterminating lice.
See
1
Law Reports of Trials of War Criminals at
94. Tesch and his colleague provided the German government with “expert technicians to carry out ... gassing operations” as well as training to the German government on using the gasses.
Id.
They did not physically supply the gas itself, but were exclusive sales agents for the gas in the relevant region of Germany.
Id.
The evidence showed not only that Tesch provided the gas, the training, and the tools for using the gas to carry out genocide; the evidence also showed that Tesch had suggested to the German government that the Germans use the gas in the first place.
Id.
at 95. Following the close of evidence, the prosecutor argued that “[t]he essential question was whether the accused knew of the purpose to which their gas was being put,” because “by supplying gas, knowing that it was to be used for murder, the [ ] accused had made themselves accessories before the fact to that murder.”
Id.
at 100-01. Both Tesch and his colleague (who was personally responsible for operating the business for approximately 200 days a year while Tesch was traveling) were convicted of being accessories to murder.
Id.
at 102.
In contrast, in
The I.G. Farben Case,
various executives and directors of I.G. Farben were charged with supplying Zyklon B gas to the Germans for use in the concentration camps. 8 T.W.C. at 1168. The defendants were directors of a company called “Degesch,” which was 45% owned by I.G. Farben and which was one of two companies that manufactured and sold the Zyklon B gas.
Id.
at 1168-69. The tribunal explained that the evidence showed that the directors were not closely involved in the management of the compa
*1091
ny, and also that the German government’s use of the Zyklon B gas in the concentration camps was kept top secret.
Id.
The court summarized the relevant considerations:
The proof is quite convincing that large quantities of Cyclon-B were supplied to the SS by Degesch and that it was used in the mass extermination of inmates of concentration camps, including Auschwitz. But neither the volume of production nor the fact that large shipments were destined to concentration camps would alone be sufficient to lead us to conclude that those who knew of such facts must also have had knowledge of the criminal purposes to which this substance was being put. Any such conclusion is refuted by the well-known need for insecticides wherever large numbers of displaced persons, brought in from widely scattered regions, are confined in congested quarters lacking adequate sanitary facilities.
Id.
at 1169.
Accordingly, the
I.G. Farben
court held that the defendants, unlike Bruno Tesch in the
Zyklon B Case,
were not guilty as accessories to the gassing of the victims in the concentration camps.
Id.
In one case, the defendants had provided the tools and the training on using those tools for illegal purposes; in the other case, the defendants provided only the tools and were unaware of the illegal acts being done.
Having set forth these basic contours of aiding and abetting liability, it is useful to turn to the cases that Plaintiffs argue are most factually analogous, given that they involve businesspeople who directly benefitted from the use of forced labor.
In
The Flick Case,
defendant Flick, in addition to being convicted for contributing to Himmler and the SS, was also convicted of “participation in the slave-labor program of the Third Reich” because he acted with “knowledge and approval” of his co-defendant Weiss’s decision to order additional freight-car production from a facility that utilized slave-labor. 6 T.W.C. at 1190, 1198. Plaintiffs argue that this conviction resulted from aiding and abetting or accessorial liability. However, Plaintiffs fail to note that Flick was the controlling owner of an industrial empire that included coal and iron mining companies, steel-production companies, and finished-goods companies that made machinery out of the raw steel produced by the other companies.
Id.
at 1192. The indictment charged that Flick and his co-defendants “sought and utilized ... slave labor program [by using] tens of thousands of slave laborers, including concentration camp inmates and prisoners of war, in the industrial enterprises and establishments owned, controlled, or influenced by them.”
Id.
at 1194 (addition in original). The indictment further charged that Flick “participated in the formulation and execution of such slave-labor program.”
Id.
The tribunal held that Flick and the co-defendants were not guilty of most of the charged offenses because “the slave-labor program had its origin in Reich governmental circles and was a governmental program, and ... the defendants had no part in creating or launching this program.”
Id.
at 1196. The German government had required the companies to employ “voluntary and involuntary foreign civilian workers, prisoners of war and concentration camp inmates,” and “the defendants had no actual control of the administration of such program.”
Id.
The government allocated the involuntary labor and set production quotas for the mines and factories.
Id.
at 1197. Accordingly, the tribunal acquitted the defendants on the basis of necessity and duress because they had acted under government compulsion.
Id.
at 1201-02.
*1092
There was, however, a single exception to the acquittal: defendant Weiss had actively solicited an “increased freight car production quota” and “took an active and leading part in securing an allocation of Russian prisoners of war for use in the work of manufacturing such increased quotas.”
Id.
at 1198. This decision was “initiated not in governmental circles but in the plant management ... for the purpose of keeping the plant as near capacity production as possible.”
Id.
at 1202. The necessary effect of the increased production quota was to lead directly to “the procurement of a large number of Russian prisoners of war” to carry out the production.
Id.
The tribunal accordingly found Weiss guilty of participation in the unlawful employment of slave labor.
The tribunal also found Flick guilty for the same acts because “[t]he active steps taken by Weiss [were made] with the knowledge and approval of Flick.”
Id.
at 1202;
see also id.
at 1198 (noting “the active participation of defendant Weiss, with the knowledge and approval of defendant Flick, in the solicitation of increased freight car production quota”). It must be emphasized that Flick was the controlling owner of the entire industrial enterprise, and Weiss was Flick’s nephew and chief assistant.
Id.
at 1192-93. Given the close relationship between Flick and the direct perpetrator Weiss, and given Flick’s central role in the industrial enterprise that directly employed the slave labor, the case is better viewed as imposing direct liability on Flick as a personal participant in the employment of slave labor.
See, e.g., In re Agent Orange Product Liability Litig.,
373 F.Supp.2d 7, 98 (E.D.N.Y.2005) (“Flick was found guilty of charges reflecting his commercial activities and those of his corporations.”). Alternatively, Flick’s liability could viewed as an example of the operation of
respondeat superior
liability under agency principles, or command responsibility, or, perhaps, aiding and abetting liability of the type described in
The Einsatzgruppen Case,
where a top-level commanding authority fails to prevent a known violation.
See Einsatzgruppen Case,
4 T.W.C. at 572;
see also Delalic,
1998 WL 34310017 , at ¶ 360 (“Noting th[e] absence of explicit reasoning [in
Flick],
the United Nations War Crimes Commission has commented that it ‘seems clear’ that the tribunal’s finding of guilt was based on an application of the responsibility of a superior for the acts of his inferiors which he has a duty to prevent.”) (citing
Trial of Friedrich Flick et al., in
9
Law Reports of Trials of War Criminals
54 (1949));
accord Hilao v. Estate of Marcos,
103 F.3d 767, 777-78 (9th Cir.1996) (discussing principles of command responsibility).
The same conclusion may be drawn from the
I.G. Farben Case’s
discussion of slave labor (which is also relied upon by Plaintiffs). The I.G. Farben company had undertaken a construction project in Auschwitz to build a rubber factory.
I.G. Farben Case,
8 T.W.C. 1081, 1180-84. Defendant Krauch was the Plenipotentiary General for Special Questions of Chemical Production, and was responsible for “passing] upon the applications for workers made by the individual plants of the chemical industry.”
Id.
at 1187. The tribunal held that, although Krauch was not responsible for certain wrongful acts in which he was not personally involved,
he did, and we think knowingly, participate in the allocation of forced labor to Auschwitz and other places where such labor was utilized within the chemical field.... In view of what he clearly must have known about the procurement of forced labor and the part he voluntarily played in its distribution and allocation, his activities were such that they impel us to hold that he was a willing participant in the crime of enslavement.
*1093
Id.
at 1189. Plaintiffs argue that Krauch’s case illustrates the scope of aiding and abetting liability under international law, and that the tribunal’s discussion reflects a “knowledge”
mens rea
standard. However, the tribunal’s decision plainly rests on the fact that Krauch “knowingly[ ] participate[d] in the allocation of forced labor to Auschwitz,” and “was a willing participant in the crime of enslavement.”
Id.
at 1189 (emphasis added). The case is plainly not an example of aiding and abetting liability.
These same observations regarding direct personal involvement apply equally to the third major Nuremberg-era case involving German industrialists. In
United States v. Krupp (“The Krupp Case”),
the tribunal convicted various directors and officers of the Krupp corporation for using forced labor in their factories. The tribunal cited evidence such as a letter from the Board of Directors to the German Army High Command stating that “we are ... very anxious to employ Russian prisoners of war in the very near future, [and] we should be grateful if you would give us your opinion on this matter as soon as possible.”
Krupp,
9 T.W.C. at 1439. In this and other instances, “the Krupp firm had manifested not only its willingness but its ardent desire to employ forced labor.”
Id.
at 1440. All but three of the defendants had “participated in the establishment and maintenance” of a particularly brutal forced labor camp at Dechenschule.
Id.
at 1400-02. Of the three who were not involved with Dechenschule, one (Pfirsch) was acquitted of forced labor charges because he was not involved in any of the company’s forced labor activities.
See generally id.
at 1402-49 (court’s factual summary and legal analysis is silent as to Pfirsch). One of the other three (Loeser) was found guilty because he had participated directly in the creation of a forced-labor factory at Auschwitz.
Id.
at 1414, 1449. The third (Korschan) was found guilty because he had directly supervised a large contingent of Russian laborers and had signed a letter proposing the use of concentration-camp labor to increase the production of armaments toward the end of the war.
Id.
at 1405, 1418-19, 1449. The court accordingly rejected the Krupp employees’ necessity defense and found all but one of them (Pfirsch) guilty of employing forced labor in their business.
Id.
at 1441-49.
Thus, like the
Krauch
case,
Krupp
does not provide any discussion of secondary liability for the underlying violations. Contrary to Plaintiffs’ characterization, the defendants in these two cases were direct participants in the illegal acts, and these cases are inapposite to the present case.
E. ILLUSTRATIONS UNDER THE ALIEN TORT STATUTE
41
These foundational principles of aiding and abetting liability are illustrated in the Second Circuit’s recent decision in
Presbyterian Church of Sudan v. Talisman Energy, Inc.,
582 F.3d 244 (2d Cir.2009). The
Presbyterian Church of Sudan
court held on summary judgment that a Canadian energy firm had not purposefully aided and abetted the Sudanese government in committing crimes against humanity. The court examined the evidence and deter
*1094
mined that there was no reasonable inference that the defendants acted with the purpose of furthering the Sudanese government’s policies of clearing out the disfavored ethnic groups. Specifically, the defendants’ actions included the following: “(1) upgrading the Heglig and Unity airstrips; (2) designating areas ‘south of the river’ in Block 4 for oil exploration; (3) providing financial assistance to the Government through the payment of royalties; and (4) giving general logistical support to the Sudanese military.”
Id.
at 261 (quoting
Presbyterian Church of Sudan,
453 F.Supp.2d at 671-72) (alterations omitted).
The first issue involved the assistance with building roads and airstrips despite knowing that this infrastructure might be used by the government to conduct attacks on civilians. The court recognized that the defendants “had a legitimate need to rely on the [Sudanese] military for defense” because of the unrest in the region; given this legitimate need, the evidence that the defendant was “coordinating with the military supports no inference of a purpose to aid atrocities.”
Id.
at 262. As for the second sets of acts — designating certain areas for oil exploration — there was no evidence that the oil exploration even occurred or that any international law violations took place.
Id.
With respect to royalty payments to the government, the court explained that “[t]he royalties paid by [defendant] may have assisted the Government in its abuses, as it may have assisted any other activity the Government wanted to pursue. But there is no evidence that [defendants] acted with the purpose that the royalty payments be used for human rights abuses.”
Id.
Finally, the act of providing fuel to the military was not criminal because “there is no showing that Talisman was involved in such routine day-to-day [defendant] operations as refueling aircraft. Second, there is no evidence that [defendant’s] workers provided fuel for the purpose of facilitating attacks on civilians; to the contrary, an e-mail from a Talisman employee to his supervisor, which plaintiffs use to show that the military refueled at a [defendant] airstrip, expresses anger and frustration at the military using the fuel.”
Id.
at 262-63. In short, none of the purported acts of aiding and abetting were supported by the necessary “purpose”
mens rea.
Notably, the court stated that something more than mere knowledge and assistance are required to hold commercial actors liable for third parties’ violations of international law. The court explained:
There is evidence that southern Sudanese were subjected to attacks by the Government, that those attacks facilitated the oil enterprise, and that the Government’s stream of oil revenue enhanced the military capabilities used to persecute its enemies. But if ATS liability could be established by knowledge of those abuses coupled only with such commercial activities as resource development, the statute would act as a vehicle for private parties to impose embargos or international sanctions through civil actions in United States courts. Such measures are not the province of private parties but are, instead, properly reserved to governments and multinational organizations.
Id.
at 264.
The
Presbyterian Church of Sudan
court’s ultimate conclusion is in full accord with the trend identified
supra
with respect to the Nuremberg-era cases involving German industrialists. When a business engages in a commercial
quid pro quo
— for example, by making a loan to a third party — it is insufficient to show merely that the business person knows that the transaction will somehow facilitate the third party’s wrongful acts.
See The Ministries Case,
14 T.W.C. at 621-22. Rather, the business person must partici
*1095
pate more fully in the wrongful acts — most obviously, in the cases involving the primary liability of the industrialists who personally participated in planning and using of slave labor.
See, e.g., Krupp,
9 T.W.C. at 1439-49;
The I.G. Farben Case,
8 T.W.C. at 1189;
The Flick Case,
6 T.W.C. at 1190-93. Or, alternatively, the business person must be acting in a non-commercial, non-mutually-beneficial manner, as with the banker in
The Flick Case
who gratuitously funded the SS’s criminal activities, 6 T.W.C. at 1219-20, or the chemical-company employees in the
Zyklon B Case
who provided the gas, tools, and specific training that facilitated the Germans’ genocidal acts.
Zyklon B Case, in
1
Law Reports of Trials of War Criminals,
at 95, 100-01.
This conclusion is supported by the domestic caselaw applying the Men Tort Statute. In
Corrie v. Caterpillar, Inc.,
403 F.Supp.2d 1019 (W.D.Wash.2005),
aff'd on other grounds,
503 F.3d 974 , 977 (9th Cir. 2007) (holding that case presented nonjusticiable political question), the district court held that a bulldozer manufacturer could not be held liable for aiding and abetting the Israeli military in demolishing residences and causing deaths and injuries to the residents. The court explained that even if the defendant “knew or should have known” (as the plaintiff conclusorily alleged in the
pre-Tioombly
era,
see id.
at 1023) that the bulldozers would be used to commit those illegal acts, “[o]ne who merely sells goods to a buyer is not an aider and abettor of crimes that the buyer might commit, even if the seller knows that the buyer is likely to use the goods unlawfully, because the seller does not share the specific intent to further the buyer’s venture.”
Id.
at 1027 (citing
United States v. Blankenship,
970 F.2d 283, 285-87 (7th Cir.1992) (“a supplier joins a venture only if his fortunes rise or fall with the venture’s, so that he gains by its success”)).
A relevant contrast to
Presbyterian Church of Sudan
and
Corrie
may be found in the allegations against automakers Daimler, Ford, and General Motors in
In re South African Apartheid Litig.,
617 F.Supp.2d 228 (S.D.N.Y.2009),
on remand from Khulumani,
504 F.3d 254 . The plaintiffs in that case alleged that the automakers “aided and abetted extrajudicial killing through the production and sale of specialized military equipment.”
Id.
at 264 ;
see also id.
at 266-67. The defendants were not selling ordinary vehicles to the South African government; they were selling “heavy trucks, armored personnel carriers, and other specialized vehicles,” including “military vehicles.”
Id.
at 264, 266 . “These vehicles were the means by which security forces carried out attacks on protesting civilians and other antiapartheid activists.”
Id.
at 264 . The plaintiffs also alleged that the automakers both knew of and affirmatively expressed their support for the South African government’s illegal activities.
Id.
Accordingly, the court held that the automakers could be held liable for selling these military-type products to the South African government, thereby aiding and abetting the government’s atrocities. On the other hand, the court held that the automakers could not be liable for selling “passenger vehicles” and mass-market light trucks to the government, because the “[t]he sale of cars and trucks without military customization or similar features that link them to an illegal use does not meet the
actus reus
requirement of aiding and abetting a violation of the law of nations.”
Id.
at 267 .
The
South African Apartheid
plaintiffs introduced similar allegations with respect to computer manufacturer IBM. The plaintiffs alleged that IBM provided computers to the South African regime and that the computers were used to further the regime’s policies of apartheid because the computers allowed the regime to create a
*1096
registry of individuals in order to relocate them and change their citizenship.
Id.
at 265 . Importantly, the plaintiffs alleged that “IBM employees also assisted in developing computer software and computer support specifically designed to produce identity documents and effectuate denationalization.”
Id.
at 265 ;
see also id.
at 268. These “customized computerized systems were indispensable to the organization and implementation of a system of geographic segregation and racial discrimination in a nation of millions.”
Id.
at 265 .
42
The distinction between
Come
and
In re South African Apartheid
is instructive. In one case (Come), a manufacturer sold its ordinary goods to a foreign government and the foreign government, with the manufacturer’s knowledge, used the goods to commit alleged atrocities. In the other case
(In re South African Apartheid),
manufacturers sold custom-made goods to a foreign government with the knowledge that those goods were an essential element of the foreign government’s wrongful conduct. The manufacturers in
South African Apartheid
affirmatively evidenced their support for the government’s conduct, either implicitly by intentionally creating custom equipment or explicitly by expressing their support for the government. As reflected in this comparison, a plaintiff must allege something more than ordinary commercial transactions in order to state a claim for aiding and abetting human rights violations. Indeed, consistent with the generally aiding and abetting standard articulated
supra,
a plaintiff must allege that the defendant’s conduct had a substantial effect on the principal’s criminal acts. Mere assistance to the principal is insufficient.
43
Another example can be found in
Almog v. Arab Bank, PLC,
471 F.Supp.2d 257 (E.D.N.Y.2007). There, the plaintiffs sued the defendant bank for aiding and abetting various terrorist activities by Hamas and other radical groups in violation of international law. The plaintiffs alleged that the defendant bank knew of Hamas’s terrorist activities, knew that the bank accounts were being used to fund the terrorist activities directly, and even “solicited and collected funds for” organizations that were
*1097
known to be fronts for Hamas.
Id.
at 290 . The plaintiffs also alleged that the bank was directly involved with Hamas’s creation of bank accounts to provide for the families of suicide bombers.
Id.
at 291 . The bank allegedly knew about the nature of the accounts, which “facilitated and provided an incentive for the suicide bombings and other murderous attacks,” and the bank both maintained the accounts and “consulted with” a Hamas-related organization “to finalize the lists of beneficiaries” of the funds.
Id.
at 291-92 . In light of these allegations, the court held that the defendant bank did not “merely provide[ ] routine banking services” that benefitted the terrorist organization.
Id.
at 291 . Rather, the bank “actively] participat[ed]” in the terrorist organization’s activities.
Id.
at 292 ;
see also Lev v. Arab Bank, PLC,
No. 08 CV 3251(NG)(WP), 2010 WL 623636 , at *2 (E.D.N.Y. Jan. 29, 2010) (holding that
Presbyterian Church of Sudan’s
“purpose”
mens rea
standard was satisfied by the allegations in
Almog
because “Plaintiffs’ plausible factual allegations here permit the reasonable inference that Arab Bank was not merely the indifferent provider of ‘routine banking services’ to terrorist organizations, but instead purposefully aided their violations of international law”).
A useful factual contrast to the
Almog
case can be found in part of the
South African Apartheid
case. In
South African Apartheid,
the plaintiffs alleged that a pair of banks had provided loans to the South African government and purchased “South African defense forces bonds.” 617 F.Supp.2d at 269 . The court, relying heavily on the Nuremberg-era
Ministries Case
in which the tribunal acquitted the banker Karl Rasche, held that “supplying a violator of the law of nations with funds — even funds that could not have been obtained but for those loans — is not sufficiently connected to the primary violation to fulfill the actus reus requirement of aiding and abetting a violation of the law of nations.”
Id.
As a final pertinent example under the Alien Tort Statute, the Ninth Circuit has analyzed a specific intent
mens rea
standard in
Abagninin v. AMVAC Chemical Corp.,
545 F.3d 733 (9th Cir.2008).
44
The plaintiffs’ allegations in
Abagninin
related to the defendants’ alleged genocide through their use of agricultural pesticides that caused male sterility in villages in the Ivory Coast.
Id.
at 735-36 . As defined in international law, genocide requires a showing of “specific intent” (which appears analogous to the “purpose”
mens rea
in the aiding and abetting context) to achieve the particular wrongful result — namely, to destroy a particular national or ethnic group as such.
Id.
at 739-40 . The court specifically rejected a “knowledge” or general intent standard, which would have required a showing of the defendant’s “awareness that a consequence will occur in the ordinary course of events.”
Id.
at 738 . Instead, the court required plaintiff to allege that defendants intended to cause the particular (genocidal) harm. Even though plaintiff alleged that the defendant knew of the likelihood that the chemicals caused this particular harm, the court found significant the fact that the plaintiff “fail[ed] to allege that [the defendant] intended to harm him through the use of chemicals.”
Id.
at 740 . The court refused to infer from the plaintiffs allegations of knowledge, and rejected the plaintiffs conclusory statements that the defendant
*1098
“acted with intent.”
Id.
Finally, although one of the defendant’s employees allegedly stated “[f]rom what I hear, they could use a little birth control down there,” the court refused to attribute this statement to the corporate employer and also determined that the statement was not directed at the Ivory Coast (as is required to show genoeidal intent with respect to Ivorians).
Id.
VII. DISCUSSION REGARDING AIDING AND ABETTING ALLEGATIONS
A. BACKGROUND
Plaintiffs describe their allegations as encompassing three types of activities: financial assistance; provision of farming supplies, technical assistance, and training; and failure to exercise economic leverage.
Defendants break down the alleged conduct into five groups: financial assistance; providing farming supplies and technical farming assistance; providing training in labor practices; failing to exercise economic leverage; and lobbying the United States government to avoid a mandatory labeling scheme.
Because Plaintiffs bear the burden of pleading sufficient “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” the Court will adopt Plaintiffs’ preferred approach.
See Ashcroft v. Iqbal,
556 U.S. -, 129 S.Ct. 1937, 1949 , 173 L.Ed.2d 868 (2009). As will be shown, the First Amended Complaint fails to allege that Defendants’ conduct was “specifically directed to assist [or] encourage ... the perpetration of a certain specific crime,” and “ha[d] a substantial effect of the perpetration of the crime.”
See Blagojevic
(ICTY Appeals Chamber), at ¶ 127. Additionally, the First Amended Complaint fails to allege that Defendants acted with the “purpose” of facilitating the Ivorian farm owners’ wrongful acts.
See Presbyterian Church of Sudan,
582 F.3d at 259 .
45
B. DISCUSSION OF ACTUS REUS
Plaintiffs assert that Defendants’ conduct was “not only substantial, it was essential” to the existence of child slavery in Ivorian cocoa farming. (8/6/09 Opp. at 2.) Plaintiffs’ fundamental premise is that Defendants were not engaged in ordinary commercial transactions; rather, Plaintiffs emphasize that Defendants “maintain[ ] exclusive supplier/buyer relationships with local farms and/or farmer cooperatives in Cote d’Ivoire,” and that these exclusive relationships allow Defendants “to dictate the terms by which such farms produce and supply cocoa to them, including specifically the labor conditions under which the beans are produced.” (FAC ¶ 33.) Plaintiffs further contend that “Defendants, because of their economic leverage in the region and exclusive supplier/buyer agreements[,] each had the ability to control and/or limit the use of forced child labor by the supplier farms and/or farmer cooperatives from which they purchased their cocoa beans.” (FAC ¶ 48.)
In support of their claims, Plaintiffs detail three types of conduct: financial assistance; provision of farming supplies, technical assistance, and training; and failure to exercise economic leverage. The Court addresses each form of assistance in turn.
1. FINANCIAL ASSISTANCE
Plaintiffs allege that Defendants “provide ongoing financial support, including advance payments and personal spending money to maintain the farmers’ and/or the cooperatives’ loyalty as exclusive suppliers.” (FAC ¶ 34.) Plaintiffs argue that
*1099
Defendants’ financial support “provide[d] the financial means ... to commit international human rights violations” and provided the “incentive for these farmers to employ slave-labor.” (8/6/09 Opp. at 14-15.)
As is repeatedly illustrated in the caselaw discussed
supra,
merely “supplying a violator of the law of nations with funds” as part of a commercial transaction, without more, cannot constitute aiding and abetting a violation of international law.
In re South African Apartheid,
617 F.Supp.2d at 269 . The central example of this principle is provided in the discussion of banker Karl Rasche in
The Ministries Case,
14 T.W.C. at 621-22. Rasche provided a loan of “very large sums of money” to enterprises that used slave labor, but was acquitted of aiding and abetting the enterprises’ wrongdoing.
Id.
at 621. Likewise, the banks in
South African Apartheid
provided loans to the South African government and purchased government bonds. 617 F.Supp.2d at 269 . The act of providing financing, without more, does not satisfy the
actus reus
requirement of aiding and abetting under international law.
On the other hand, if defendant engages in additional assistance beyond financing, or engages in financing that is gratuitous or unrelated to any commercial purpose, the
actus reus
element has been satisfied. So, for example, the bank in
Almog v. Arab Bank
did not just hold and transfer funds on behalf of the terrorist organization Hamas; rather, the bank took the extra step of “solicit[ing] and collecting]” those funds for Hamas.
Almog,
471 F.Supp.2d at 290 . As another example, the industrials Flick and Steinbrinck in
The Flick Case
did not provide hundreds of thousands of Reichsmarks to Himmler and the SS as part of a mutually beneficial commercial transaction; rather, the funds were donated gratuitously, and served as “a blank check” that ensured the “maintain[ence]” of the criminal organization.
The Flick Case,
6 T.W.C. at 1220-21.
These observations are summarized in the District Court opinion in
In re South African Apartheid:
It is (or should be) undisputed that simply doing business with a state or individual who violates the law of nations is insufficient to create liability under customary international law. International law does not impose liability for declining to boycott a pariah state or to shun a war criminal....
Money [as in
The Ministries Case
] is a fungible resource, as are building materials [which were also mentioned in
The Ministries Case
]. However, poison gas [as in the
Zyklon B Case
] is a killing agent, the means by which a violation of the law of nations was committed. The provision of goods specifically designed to kill, to inflict pain, or to cause other injuries resulting from violations of customary international law bear a closer causal connection to the principal crime than the sale of raw materials or the provision of loans. Training in a precise criminal use only further supports the importance of this link. Therefore, in the context of commercial services, provision of the means by which a violation of the law is carried out is sufficient to meet the
actus reus
requirement of aiding and abetting liability under customary international law.
In re South African Apartheid,
617 F.Supp.2d at 257 -59 (citing
The Ministries Case,
14 T.W.C. at 621-22; The Zyklon B Case,
in
1
Law Reports of Trials of War Criminals,
at 100-01). In contrast, “supplying a violator of the law of nations with funds — even funds that could not have been obtained but for those loans — is not sufficiently connected to the primary violation to fulfill the actus reus requirement of
*1100
aiding and abetting a violation of the law of nations.”
Id.
at 269 .
Here, it is clear from Plaintiffs’ allegations that Defendants were engaged in commercial transactions. Plaintiffs do not allege that Defendants gratuitously gave large sums of money to the Ivorian farmers in the manner that Flick and Steinbrinck gave money to the SS in
The Flick Case.
Rather, Plaintiffs’ allegations specifically state that Defendants provided money to the farmers in order to obtain cocoa and to ensure a future cocoa supply. (FAC ¶ 84.) Even if the payments are described as “advance payments” (FAC ¶ 34), this is another way of stating that Defendants were paying for cocoa.
See Black’s Law Dictionary
1243 (9th ed. 2009) (defining “advance payment” as a “payment made in anticipation of a contingent or fixed future liability or obligation”). And to the extent that Plaintiffs allege that Defendants provided “personal spending money” to the farmers, Plaintiffs themselves assert that these payments were made “to maintain the farmers’ and/or the cooperatives’ loyalty as exclusive suppliers.” (FAC ¶ 34.) Again, Plaintiffs’ own Complaint identifies the commercial
quid pro quo
in which Defendants were engaged.
In short, Plaintiffs fail to allege any facts showing that Defendants’ transfers of money were “specifically directed to assist ... a certain specific crime” and had a “substantial effect on the perpetration of that crime.”
See Blagojevic
(Appeals Chamber), at ¶ 127. Defendants’ “financial assistance” does not constitute a sufficient
actus reus
under international law.
2. PROVISION OF FARMING SUPPLIES, TECHNICAL ASSISTANCE, AND TRAINING
Plaintiffs assert that Defendants provided “farming supplies, including fertilizers, tools and equipment; training and capacity[-] building in particular growing and fermentation techniques and general farm maintenance, including appropriate labor practices, to grow the quality and quantity of cocoa beans they desire.” (FAC ¶ 34.) “The training and quality control visits occur several times per year.”
(Id.)
Plaintiffs cite to Nestle’s representation that it “provides assistance in crop production,” and “provide[s] technical assistance to farmers.” (FAC ¶¶ 36, 38.) This assistance “ranges from technical assistance on income generation to new strategies to deal with crop infestation.” (FAC ¶ 38.) Similarly, Plaintiffs cite to Archer Daniels Midland’s representation that “ADM is working hard to help provide certain farmer organizations with the knowledge, tools, and support they need to grow quality cocoa responsibly and in a sustainable manner.” (FAC ¶ 40.) Archer Daniels Midland provides “research into environmentally sound crop management practices, plant breeding work to develop disease-resistant varieties and farmer field schools to transfer the latest know-how into the hands of millions of cocoa farmers around the world.” (FAC ¶ 41.)
Plaintiffs argue that these allegations show that “Defendant were providing the [Ivorian] farmers the necessary means by which to carry out slave labor.” (Pis. Opp. (8/6/09), at 17.) Plaintiffs describe Defendants’ actions as providing “logistical support and supplies essential to continuing the forced labor and torture.”
(Id.
at 18.)
This line of argument is unavailing. Plaintiffs contend that Defendants’ logistical support and other assistance generally furthered the Ivorian farmers’ ability to continue using forced labor. However, Plaintiffs do not allege that Defendants provided supplies, assistance, and training that was “specifically directed” to assist or encourage “the perpetration of a certain specific crime,” or that Defendants’ conduct had a “substantial effect” on the spe
*1101
cific crimes of forced labor, child labor, torture, and cruel, inhuman, and degrading treatment. Plaintiffs simply do not allege that Defendants’ conduct was specifically related to those primary violations. Plaintiffs do not allege, for example, that Defendants provided the guns and whips that were used to threaten and intimidate the Plaintiffs, or that Defendants provided the locks that were used to prevent Plaintiffs from leaving their respective farms, or that Defendants provided training to the Ivorian farmers about how to use guns and whips, or how to compress a group of children into a small windowless room without beds, or how to deprive children of food or water, or how to psychologically abuse and threaten them.
46
That is the type of conduct that gives rise to aiding and abetting liability under international law — conduct that has a substantial effect on a particular criminal act.
See, e.g., Vasiljevic,
2004 WL 2781932 , at ¶¶41, 133-34 (affirming defendant’s guilt for aiding and abetting murder where defendant, armed with a gun, escorted victims to murder site and pointed his gun at victims to prevent them from fleeing).
' Plaintiffs’ allegations do not identify any specific criminal acts that were substantially furthered by Defendants’ general farming assistance. It is useful to compare Plaintiffs’ allegations to the relevant caselaw. The defendants in the
Zyklon B Case
provided the gas that was used to commit murder and the training on how to use that gas; the automakers in
In re South African Apartheid
provided the specialized military vehicles that were used to further extrajudicial killings, 617 F.Supp.2d at 264, 266 ; and the computer company in that case provided customized software and technical support designed to facilitate a centralized identity database that supported the government’s segregation, denationalization, and racial discrimination activities,
id.
at 265, 268 . In contrast to those examples, the heavy-equipment manufacturer in
Come
sold its ordinary product to an alleged human-rights abuser, 403 F.Supp.2d at 1027 , and the automakers in
South African Apartheid
were not liable for their sales of ordinary passenger vehicles to the apartheid regime, 617 F.Supp.2d at 267 .
Another salient example is
Prosecutor v. Delalic,
in which the ICTY acquitted the defendant on aiding and abetting charges based on his “logistical support” to a prison that engaged in the unlawful confinement of civilians.
Delalic ,
No. IT-96-21T, at ¶ 1144 (Trial Chamber Nov. 16, 1998),
available at
1998 WL 34310017 ,
affd,
No. IT-96-21-A, at ¶ 360 (Appeals Chamber Fed. 20, 2001),
available at
2001 WL 34712258 . The trial court concluded that the defendant had no authority over the prison camp, 1998 WL 34310017 , at ¶ 669, and the appeals court agreed that “he was not in a position to affect the continued detention of the civilians at the [prison] camp.”
Delalic,
2001 WL 34712258 , at ¶ 355. The appeals court explained that “the primary responsibility of Delalic in his position as co-ordinator was to provide logistical support for the various formations of the armed forces; that these consisted of,
inter alia,
supplies of material, equipment, food, communications equipment, railroad access, transportation of refugees and the linking up of electricity grids.”
Id.
at ¶ 355 (citing Trial Chamber Judgment, at ¶ 664). The courts concluded that Delalic’s involvement in the camp — although essential to its functioning — was unrelated to the specific offense of unlawful confinement of civilians.
Delalic,
1998 WL 34310017 , at ¶ 669, 2001 WL 34712258 , at ¶ 355. Accordingly, he was acquitted of
*1102
aiding and abetting the crimes of unlawful confinement.
47
Here, Plaintiffs allege that Defendants engaged in general assistance to the Ivorian farmers’ farming activities-mainly, assisting crop production and providing training in labor practices. Plaintiffs do not allege that Defendant provided any specific assistance to the farmers’ specific acts of slavery, forced labor, torture, and the like. In light of the international case-law described
swpra,
Plaintiffs’ allegations do not give rise to a plausible inference that Defendants’ conduct had a substantial effect on the Ivorian farmers’ specific human rights abuses. As Defendants rightly point out, “providing a farmer with ... fertilizer does not substantially assist forced child labor on his farm.” (Defs. Reply (8/24/09, at 13.)
48
Plaintiffs’ allegations establish, at most, that Defendants generally assisted the Ivorian farmers in the act of growing crops and managing their business — not that Defendants substantially assisted the farmers in the acts of committing human rights abuses.
3. FAILURE TO EXERCISE ECONOMIC LEVERAGE
Plaintiffs’ final set of allegations focus on Defendants’ implicit moral encouragement and failures to act to prevent the Ivorian farmers’ abuses. Plaintiffs assert that “Defendants, because of their economic leverage in the region and exclusive supplier/buyer agreements each had the ability to control and/or limit the use of forced child labor by the supplier farms and/or farmer cooperatives from which they purchased their cocoa beans.” (FAC ¶ 48.) Plaintiffs argue that the international law
actus reus
standard is satisfied if “a different course of conduct could have been pursued that would have mitigated or prevented the [primary] offense.” (Pis. Opp. (8/6/09), at 20.)
a. LEGAL AUTHORITY
The precise nature of aiding and abetting liability for omissions, moral

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2470318. Public record. Not legal advice.