Amicus Curiae Brief — Cisco Systems, Inc., et al., Petitioners v. Doe I, et al.

Supreme Court briefMar 27, 2026

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No. 24-856

IN THE

Supreme Court of the United States

————

CISCO SYSTEMS, INC., ET AL.,

Petitioners,

v.

DOE I, ET AL.,

Respondents.

————

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

BRIEF FOR INTERNATIONAL LAW SCHOLARS

AS AMICI CURIAE IN SUPPORT

OF RESPONDENTS

————

ROBERT K. KRY

Counsel of Record

JACKSON A. MYERS

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

rkry@mololamken.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

Interest of Amici Curiae ............................................

Summary of Argument ...............................................

Argument ......................................................................

I. Under This Court’s Precedents, Whether

Aiding and Abetting Is Actionable Under

the Alien Tort Statute Is Determined by

Customary International Law.......................

II. Customary International Law’s

Prohibition Against Aiding and Abetting

Human Rights Violations Meets the Sosa

Standard ...........................................................

A. The Prohibition Against Aiding and

Abetting Is Generally Accepted.............

B. The Prohibition Against Aiding and

Abetting Is Specifically Defined ............

1. Actus Reus ...........................................

2. Mens Rea ..............................................

III. International Law Allows the United

States To Impose Civil Liability for

Aiding and Abetting Human Rights

Violations ..........................................................

Conclusion .....................................................................

(i)

1

5

7

7

9

9

15

15

17

21

24

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Aziz v. Alcolac, Inc.,

658 F.3d 388 (4th Cir. 2011) .............................. 20

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ............................................. 22

Jesner v. Arab Bank, PLC,

584 U.S. 241 (2018) .......................................... 5, 7-9

Presbyterian Church of Sudan v.

Talisman Energy, Inc.,

582 F.3d 244 (2d Cir. 2009) ............................ 19, 20

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) ................. 5-9, 14, 15, 21, 23, 24

STATUTES

28 U.S.C. § 1350 ...................................... 5-9, 21, 23, 24

TREATIES AND INTERNATIONAL

AGREEMENTS

Agreement for the Prosecution

and Punishment of the Major War

Criminals of the European Axis and

Charter of the International Military

Tribunal, Aug. 8, 1945, 59 Stat. 1544,

82 U.N.T.S. 279 ............................................... 9, 10

Control Council Law No. 10,

1 Enactments and Approved Papers of

the Control Council and Coordinating

Committee: Allied Control Authority,

Germany–1945, at 309 (1946) ........................... 10

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Convention Against Torture and Other

Cruel, Inhuman or Degrading

Treatment or Punishment,

Dec. 10, 1984, S. Treaty Doc.

No. 100-20, 1465 U.N.T.S. 85 ............................ 14

Convention on the Prevention and

Punishment of the Crime of Genocide,

Dec. 9, 1948, 102 Stat. 3045,

78 U.N.T.S. 277 .................................................. 14

Rome Statute of the International

Criminal Court, July 17, 1998,

2187 U.N.T.S. 90 ...................................... 13, 20, 21

Statute of the International Criminal

Tribunal for the Former Yugoslavia,

in Report of the Secretary General

Pursuant to Paragraph 2 of Security

Council Resolution 808,

U.N. Doc. S/25704 (May 3, 1993) ........... 11, 12, 23

Statute of the International Tribunal

for Rwanda (Nov. 8, 1994), in Security

Council Resolution 955 annex

(Nov. 8, 1994) ................................................... 12, 23

Updated Statute of the International

Criminal Tribunal for the Former

Yugoslavia (July 7, 2009)................................... 12

INTERNATIONAL DECISIONS

Case Concerning Application of the

Convention on the Prevention and

Punishment of the Crime of Genocide

(Bosnia v. Serbia), 2007 I.C.J. 43

(Feb. 26, 2007) ....................................................

23

iv

TABLE OF AUTHORITIES—Continued

Page(s)

The Einsatzgruppen Case (Trial of Otto

Ohlendorf and Others), 4 Trials of War

Criminals Before the Nuernberg

Military Tribunals Under Control

Council Law No. 10, at 411 (1952) ......... 10, 16, 18

I.G. Farben Case, 8 Trials of War

Criminals Before the Nuernberg

Military Tribunals Under Control

Council Law No. 10, at 1081 (1952) ................. 19

Judgment of the International Military

Tribunal, 1 Trial of the Major War

Criminals Before the International

Military Tribunal 171 (1947) ............................ 11

Prosecutor v. Aleksovski,

IT-95-14/1-A, Appeals Judgment

(ICTY 2000) ........................................................ 16

Prosecutor v. Blagojeviþ,

IT-02-60-A, Appeals Judgment

(ICTY 2007) ..................................................... 12, 17

Prosecutor v. Blaškiþ,

IT-95-14-A, Appeals Judgment

(ICTY 2004) ..................................................... 12, 15

Prosecutor v. Furundžija,

IT-95-17/1, Trial Judgment

(ICTY 1998) .............................................. 12, 16, 18

Prosecutor v. Kalimanzira,

ICTR-05-88-A, Appeals Judgment

(ICTR 2010) ..................................................... 17, 19

Prosecutor v. Karera,

ICTR-01-74-A, Appeals Judgment

(ICTR 2009) ........................................................ 13

v

TABLE OF AUTHORITIES—Continued

Page(s)

Prosecutor v. Kayishema,

ICTR-95-1-A, Appeals Judgment

(ICTR 2001) ........................................................ 13

Prosecutor v. Krnojelac,

IT-97-25-A, Appeals Judgment

(ICTY 2003) ........................................................ 18

Prosecutor v. Kunarac,

IT-96-23 & IT-96-23/1-A, Appeals

Judgment (ICTY 2002) ..................................... 14

Prosecutor v. KvoĀka,

IT-98-30/1-A, Appeals Judgment

(ICTY 2005) ..................................................... 12, 17

Prosecutor v. Lukiþ,

IT-98-32/1-A, Appeals Judgment

(ICTY 2012) .............................................. 12, 16, 17

Prosecutor v. Mrkšiþ,

IT-95-13/1-A, Appeals Judgment

(ICTY 2009) ..................................................... 12, 17

Prosecutor v. Muhimana,

ICTR-95-1B-A, Appeals Judgment

(ICTR 2007) .............................................. 13, 16, 18

Prosecutor v. Nahimana,

ICTR-99-52-A, Appeals Judgment

(ICTR 2007) ........................................................ 13

Prosecutor v. Ndahimana,

ICTR-01-68-A, Appeals Judgment

(ICTR 2013) .............................................. 16, 18, 19

Prosecutor v. Ntagerura,

ICTR-99-46-A, Appeals Judgment

(ICTR 2006) .............................................. 13, 16, 17

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Prosecutor v. Ntakirutimana,

ICTR-96-10-A & ICTR-96-17-A,

Appeals Judgment (ICTR 2004) ............ 13, 16, 18

Prosecutor v. Ntawukulilyayo,

ICTR-05-82-A, Appeals Judgment

(ICTR 2011) ........................................ 13, 16, 18, 19

Prosecutor v. Nyiramasuhuko,

ICTR-98-42-A, Appeals Judgment

(ICTR 2015) .............................................. 13, 16, 17

Prosecutor v. Popoviþ,

IT-05-88-A, Appeals Judgment

(ICTY 2015) ........................................ 12, 15, 17, 19

Prosecutor v. Rukundo,

ICTR-2001-70-A, Appeals Judgment

(ICTR 2010) ........................................ 13, 16, 18, 19

Prosecutor v. Šainoviþ,

IT-05-87-A, Appeals Judgment

(ICTY 2014) ..................................................... 15, 17

Prosecutor v. Seromba,

ICTR-01-66-A, Appeals Judgment

(ICTR 2008) ........................................................ 16

Prosecutor v. Simiþ,

IT-95-9-A, Appeals Judgment

(ICTY 2006) ..................................................... 12, 17

Prosecutor v. Stanišiþ,

IT-03-69-A, Appeals Judgment

(ICTY 2015) ........................................................ 15

Prosecutor v. Tadiþ,

IT-94-1-A, Appeals Judgment

(ICTY 1999) ........................................................ 18

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Prosecutor v. Vasiljeviþ,

IT-98-32-A, Appeals Judgment

(ICTY 2004) ........................................................ 12

Reservations to the Convention on

Prevention and Punishment of the

Crime of Genocide, Advisory Opinion,

1951 I.C.J. 15 (May 28, 1951) ............................ 14

United States v. Flick, 6 Trials of War

Criminals Before the Nuernberg

Military Tribunals Under Control

Council Law No. 10, at 1187 (1952) .............. 10, 18

United States v. von Weizsaecker

(The Ministries Case), 14 Trials of

War Criminals Before the Nuernberg

Military Tribunals Under Control

Council Law No. 10, at 314 (1952) ................... 19

The Zyklon B Case (Trial of Bruno Tesch

and Two Others), 1 Law Reports of

Trials of War Criminals 93 (1947).......... 10, 17, 18

OTHER AUTHORITIES

Aiding and Abetting in International

Criminal Law, Yale Law School Lillian

Goldman Law Library Documents

Collection Center, https://documents.

law.yale.edu/aiding-and-abetting-cases .......... 13

W. Blackstone, Commentaries

on the Laws of England (1769) ..................... 7, 23

Brief for David Scheffer as Amicus

Curiae, Presbyterian Church of

Sudan v. Talisman Energy, Inc.,

No. 09-1262 (May 19, 2010) ............................... 20

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Eileen Denza, The Relationship Between

International and National Law,

in International Law 411 (Malcolm

D. Evans ed., 3d ed. 2010) ................................ 22

Oona A. Hathaway, Alexandra Francis,

Aaron Haviland, Srinath Reddy

Kethireddy & Alyssa Yamamoto,

Aiding and Abetting in International

Criminal Law, 104 Cornell

L. Rev. 1593 (2019)................................... 9, 13, 21

Louis Henkin, Foreign Affairs and

the United States Constitution

(2d ed. 1996) ........................................................ 22

Int’l Law Comm’n, Draft Articles

on Responsibility of States for

Internationally Wrongful Acts,

with Commentaries, Report of the

International Law Commission on

the Work of Its Fifty-Third Session,

U.N. Doc. A/56/10 (2001) ................................... 23

Chimène I. Keitner, Conceptualizing

Complicity in Alien Tort Cases,

60 Hastings L.J. 61 (2008) ................................ 22

Principles of International Law

Recognized in the Charter of

the Nürnberg Tribunal and in the

Judgment of the Tribunal, Report

of the International Law Commission

on the Work of Its Second Session,

U.N. Doc. A/1316 (1950) .................................... 11

Restatement (Third) of U.S. Foreign

Relations Law (1987) ......................................... 22

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Security Council Resolution 827

(May 25, 1993) .....................................................

Security Council Resolution 955

(Nov. 8, 1994) ......................................................

11

12

IN THE

Supreme Court of the United States

————

NO. 24-856

CISCO SYSTEMS, INC., ET AL.,

Petitioners,

v.

DOE I, ET AL.,

Respondents.

————

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

————

BRIEF FOR INTERNATIONAL LAW SCHOLARS

AS AMICI CURIAE IN SUPPORT

OF RESPONDENTS

————

INTEREST OF AMICI CURIAE 1

Amici curiae are scholars of international law. They

have an interest in the proper application of customary international law by domestic courts, including the customary international law on aiding and abetting.

E. Tendayi Achiume is Professor of Law at Stanford

Law School and the former U.N. Special Rapporteur on

Contemporary Forms of Racism, Racial Discrimination,

Pursuant to this Court’s Rule 37.6, amici state that no counsel for

any party authored this brief in whole or in part, that no such counsel

or party made a monetary contribution intended to fund the preparation or submission of the brief, and that no person other than amici or

their counsel made a monetary contribution intended to fund the preparation or submission of this brief. Institutional affiliation listings are

for identification purposes only and do not imply the institution’s endorsement of the brief.

1

2

Xenophobia and Related Intolerance. In 2023, she was

awarded a MacArthur Fellowship.

Philip G. Alston is John Norton Pomeroy Professor of

Law at New York University School of Law, the former

Editor-in-Chief of the European Journal of International

Law, and the former U.N. Special Rapporteur on Extrajudicial Executions.

Lori Fisler Damrosch is Hamilton Fish Professor of

International Law and Diplomacy at Columbia Law School.

She is a former Editor-in-Chief of the American Journal

of International Law and a former President of the American Society of International Law.

Laura A. Dickinson is Lyle T. Alverson Professor of

Law at George Washington University Law School. She

is a board member of the U.S. Branch of the International

Society for Military Law and the Law of War and formerly

served as Special Counsel to the U.S. Department of Defense General Counsel.

William S. Dodge is Lobingier Professor of Comparative Law and Jurisprudence at George Washington University Law School. He served as a Reporter for the first

phase of the American Law Institute’s Restatement

(Fourth) of the Foreign Relations Law of the United

States (2018) and currently serves as a Reporter for its

second phase.

Mark A. Drumbl is Class of 1975 Alumni Professor of

Law and Director of the Transnational Law Institute at

Washington and Lee University School of Law. He serves

as the Editor-in-Chief of the International Criminal Law

Review.

Jean Galbraith is Professor of Law at the University of

Pennsylvania, Carey Law School. She is a member of the

Board of Editors of the American Journal of International

3

Law and a former Associate Legal Officer at the International Criminal Tribunal for the former Yugoslavia.

Richard J. Goldstone is a retired Justice of the Constitutional Court of South Africa. From 1994 to 1996, he

served as the first prosecutor of the International Criminal Tribunal for the former Yugoslavia and of the International Criminal Tribunal for Rwanda.

Oona A. Hathaway is Gerard C. and Bernice Latrobe

Smith Professor of International Law at Yale Law School.

She currently serves as a Reporter for the second phase

of the American Law Institute’s Restatement (Fourth) of

the Foreign Relations Law of the United States and is

President-Elect of the American Society of International

Law.

Derek Jinks is A.W. Walker Centennial Chair in Law

at the University of Texas School of Law. He is a Distinguished Scholar at the Robert S. Strauss Center for International Security and Law at the University of Texas and

formerly served as the Charles H. Stockton Professor of

International Law at the U.S. Naval War College.

Harold Hongju Koh is Sterling Professor of International Law and former Dean at Yale Law School. He has

served as Legal Adviser (2009-2013) and Senior Adviser

(2021) at the Office of Legal Adviser and as Assistant Secretary for Democracy, Human Rights, and Labor (19982001) at the U.S. Department of State.

Saira Mohamed is Agnes Roddy Robb Chair in Jurisprudence, Ethics, and Social Responsibility and Professor

of Law at the University of California, Berkeley, School of

Law. She is a member of the Board of Editors of the International Criminal Law Review and a former Vice President of the American Society of International Law.

4

Sean D. Murphy is Manatt /Ahn Professor of International Law at George Washington University Law School.

He is a former President of the American Society of International Law and a former member of the U.N. International Law Commission, serving as its Special Rapporteur

for crimes against humanity. He is currently a U.N. expert for the negotiation of a Convention on Prevention and

Punishment of Crimes against Humanity.

Jens David Ohlin is the Allan R. Tessler Dean and Professor of Law at Cornell Law School. He is the author

of International Law: Evolving Doctrine and Practice

(3d ed. 2025) and a co-editor of The Laws and Principles

of Secondary Liability (Cambridge Univ. Press forthcoming 2026).

Steven R. Ratner is Bruno Simma Collegiate Professor

of Law at the University of Michigan Law School and

Director of the University of Michigan Donia Human

Rights Center. He has served on expert commissions of

the United Nations regarding accountability for largescale human rights violations in Cambodia, Sri Lanka,

and Ethiopia.

Leila Sadat is James Carr Professor of International

Criminal Law at Washington University School of Law.

She served as Special Adviser on Crimes Against Humanity to the International Criminal Court Prosecutor from

2012 to 2023 and was recently appointed as a U.S. expert

to the OSCE Moscow Mechanism.

Michael P. Scharf is Associate Dean for Global Legal

Studies and Joseph C. Hostetler—BakerHostetler Professor of Law at Case Western Reserve University School

of Law. He serves as the President of the American

Branch of the International Law Association and the Managing Director of the Public International Law & Policy

Group.

5

Ralph G. Steinhardt is Lobingier Professor Emeritus

of Comparative Law and Jurisprudence at George Washington University Law School. He co-founded the Program in International Human Rights Law at New College,

Oxford, and was the founding Chair of the Center for Justice and Accountability.

Edward T. Swaine is Charles Kennedy Poe Research

Professor at George Washington University Law School.

He served as a Reporter for the first phase of the American Law Institute’s Restatement (Fourth) of the Foreign

Relations Law of the United States (2018).

Alex Whiting is Professor of Practice at Harvard Law

School. He is a former prosecutor at the U.S. Department

of Justice and a former international criminal prosecutor

at the International Criminal Tribunal for the former

Yugoslavia, the International Criminal Court, and the

Kosovo Specialist Prosecutor’s Office.

SUMMARY OF ARGUMENT

In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), this

Court recognized an implied cause of action under the

Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, for claims

“based on the present-day law of nations” if those claims

“rest on a norm of international character accepted by the

civilized world and defined with a specificity comparable

to the features of the 18th-century paradigms” with which

the First Congress was familiar. 542 U.S. at 725. In Jesner

v. Arab Bank, PLC, 584 U.S. 241 (2018), the plurality

articulated a two-step test. First, a plaintiff must “demonstrate that the alleged violation is ‘of a norm that is specific, universal, and obligatory.’ ” Id. at 257-258 (plurality)

(quoting Sosa, 542 U.S. at 732). Second, a court must

determine “whether allowing th[e] case to proceed under

the ATS is a proper exercise of judicial discretion.” Id. at

258. Amici focus on the first step and argue that the pro-

6

hibition on aiding and abetting violations of international

law is itself a “specific, universal, and obligatory” norm

under customary international law.

Neither Petitioners nor the United States as amicus

curiae dispute that proposition. But two of the amici supporting Petitioners do. Amicus Washington Legal Foundation (“WLF”) argues “there is no universal standard for

civil aiding-and-abetting liability, much less one that is

‘accepted by the civilized world’ and defined with the specificity Sosa requires.” WLF Br. 2 (quoting Sosa, 542 U.S.

at 725). WLF further draws a distinction between international criminal liability for aiding and abetting and civil

liability under the ATS. Id. at 6. The U.S. Chamber of

Commerce and its co-amici, meanwhile, contend that

“recognizing a cause of action under the ATS for aidingand-abetting liability expands the ATS far beyond the

party in violation of international law itself.” Chamber Br. 6.

Those assertions are mistaken. The prohibition against

aiding and abetting violations of international law is both

generally accepted and specifically defined. WLF’s distinction between civil and criminal liability misunderstands how international law works: Whereas international law establishes binding norms, each nation decides

for itself whether and how to impose liability for violations

of such norms. The U.S. did so in the ATS, choosing to

impose civil liability for “tort[s] * * * in violation of the law

of nations.” 28 U.S.C. § 1350. And recognizing a cause of

action for aiding and abetting does not expand liability beyond the party violating international law, because aiding

and abetting is itself a violation of international law. In

short, aiding and abetting human rights violations is a

tort in violation of “the present-day law of nations * * *

accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century para-

7

digms.” Sosa, 542 U.S. at 725. It is therefore actionable

under Sosa.

ARGUMENT

I. UNDER THIS COURT’S PRECEDENTS, WHETHER AIDING

AND ABETTING IS ACTIONABLE UNDER THE ALIEN

TORT STATUTE IS DETERMINED BY CUSTOMARY

INTERNATIONAL LAW

As codified today, the Alien Tort Statute provides:

“The district courts shall have original jurisdiction of any

civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

28 U.S.C. § 1350. By referring to the “law of nations,” the

statutory text makes clear that the ATS’s applicability

depends on whether the tort alleged violates customary

international law.

In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), this

Court elaborated on the kinds of torts that are actionable

under the ATS. The Court observed that the First Congress likely had three such torts in mind when it enacted

the statute: violation of safe conducts, infringement of ambassadors’ rights, and piracy. See id. at 720. These were

“offenses against the law of nations addressed by the criminal law of England” that Blackstone discussed in his Commentaries. Id. at 715 (citing 4 W. Blackstone, Commentaries on the Laws of England 68 (1769)). Sosa recognized

that ATS liability is not limited to these paradigm torts,

however. Federal courts may hear claims “based on the

present-day law of nations” if those claims “rest on a norm

of international character accepted by the civilized world

and defined with a specificity comparable to the features

of the 18th-century paradigms [this Court has] recognized.”

Id. at 725. In Jesner v. Arab Bank, PLC, 584 U.S. 241

(2018), the Court reaffirmed Sosa’s holding that “courts

may recognize a common-law cause of action for claims

8

based on the present-day law of nations, in addition to the

‘historical paradigms familiar when § 1350 was enacted.’ ”

584 U.S. at 256 (quoting Sosa, 542 U.S. at 732)).

Consistent with the plain language of the ATS, Sosa

makes clear that whether a claim is actionable under the

statute depends on customary international law. Sosa

noted that, at the time of the statute’s enactment, the ATS

“enabled federal courts to hear claims in a very limited

category defined by the law of nations and recognized

at common law.” 542 U.S. at 712 (emphasis added). It

repeatedly described the claims actionable under the ATS

as violations of “international norm[s].” See, e.g., id. at 730

(“international norm intended to protect individuals”);

ibid. (“enforceable international norms”); id. at 732 (“violations of any international law norm”); see also id. at 733

(referring to “the current state of international law”). And

when addressing the ATS’s applicability to private actors,

Sosa looked to “whether international law extends the

scope of liability for a violation of a given norm to the perpetrator being sued.” Id. at 732 n.20 (emphasis added). As

the cases Sosa cited in footnote 20 make clear, Sosa examined that question because international law requires state

action for some human rights violations (e.g., torture) but

not for others (e.g., genocide). See ibid.

The point is that whether a claim is actionable under

Sosa turns on the content of customary international law,

not U.S. domestic law. The norm must be both “accepted

by the civilized world” and “defined with a specificity comparable” to the international law torts familiar to the First

Congress. Sosa, 542 U.S. at 725.

9

II. CUSTOMARY INTERNATIONAL LAW’S PROHIBITION

AGAINST AIDING AND ABETTING HUMAN RIGHTS VIOLATIONS MEETS THE SOSA STANDARD

A review of customary international law demonstrates

that the prohibition against aiding and abetting international law violations meets the Sosa standard. It is both

“accepted by the civilized world” and “defined with a specificity comparable” to the paradigmatic torts this Court

has recognized. Sosa, 542 U.S. at 725. The prohibition on

aiding and abetting is “a norm that is specific, universal,

and obligatory.” Jesner, 584 U.S. at 258 (plurality) (quoting

Sosa, 542 U.S. at 732).2

A. The Prohibition Against Aiding and Abetting Is

Generally Accepted

In customary international law, “the development [of

aiding-and-abetting liability] began in earnest with the

work of the International Military Tribunals after the Second World War.” Oona A. Hathaway, Alexandra Francis,

Aaron Haviland, Srinath Reddy Kethireddy & Alyssa

Yamamoto, Aiding and Abetting in International Criminal Law, 104 Cornell L. Rev. 1593, 1601 (2019). After the

war, the victorious nations promulgated the London Charter establishing the International Military Tribunal at

Nuremberg to try the major war criminals of the European

Axis. See Agreement for the Prosecution and Punishment

of the Major War Criminals of the European Axis and

Charter of the International Military Tribunal (“London

Charter”), Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.

The drafters of the London Charter found it insufficient

simply to punish those who directly perpetrated the heiAiding-and-abetting liability was well established when the ATS was

enacted. See Resp. Br. 13-15. Amici focus on “the present-day law of

nations.” Sosa, 542 U.S. at 725.

2

10

nous violations of international law at issue. Instead, they

extended liability for crimes against peace, war crimes,

and crimes against humanity to “[l]eaders, organizers, instigators and accomplices participating in the formulation

or execution of a common plan or conspiracy to commit

any of the foregoing crimes.” London Charter art. 6 (emphasis added). Control Council Law No. 10, under which

the Allied powers conducted additional trials, similarly

provided that a person would be deemed to have committed

a crime under the London Charter if he “was an accessory

to the commission of any such crime or ordered or abetted

the same.” Control Council Law No. 10 art. II(2)(b), 1

Enactments and Approved Papers of the Control Council

and Coordinating Committee: Allied Control Authority,

Germany–1945, at 309, 311 (1946) (emphasis added). Several defendants were convicted at Nuremberg of aiding

and abetting under these standards. See, e.g., The Zyklon

B Case (Trial of Bruno Tesch and Two Others), 1 Law

Reports of Trials of War Criminals 93 (1947); The Einsatzgruppen Case (Trial of Otto Ohlendorf and Others), 4

Trials of War Criminals Before the Nuernberg Military

Tribunals Under Control Council Law No. 10, at 411

(1952); United States v. Flick, 6 Trials of War Criminals

Before the Nuernberg Military Tribunals Under Control

Council Law No. 10, at 1187 (1952).

Those prosecutions were neither making new law nor

meting out ex post facto punishments. Consistent with the

international law principle of legality that prohibits creating

new crimes after the fact (nullum crimen sine lege), the

London Charter, Control Council Law No. 10, and the

prosecutions conducted under them reflect the international community’s understanding that customary international law prohibited aiding and abetting international law

violations when the charged conduct occurred. The Inter-

11

national Military Tribunal said as much: “The [London]

Charter is not an arbitrary exercise of power on the part

of the victorious Nations, but * * * the expression of international law existing at the time of its creation.” Judgment of the International Military Tribunal, 1 Trial of the

Major War Criminals Before the International Military

Tribunal 171, 218 (1947). And in 1950, the International

Law Commission summarized the customary international law applied at Nuremberg as including the principle

that “[c]omplicity in the commission of a crime against

peace, a war crime, or a crime against humanity * * * is a

crime under international law.” Principles of International Law Recognized in the Charter of the Nürnberg

Tribunal and in the Judgment of the Tribunal, Principle

VII, Report of the International Law Commission on the

Work of Its Second Session, U.N. Doc. A/1316 (1950).

International agreements and international legal tribunals since Nuremberg have consistently reaffirmed that

aiding and abetting a violation of international law is itself

a violation of customary international law.

In 1993, the U.N. Security Council established the International Criminal Tribunal for the former Yugoslavia

(“ICTY”) to prosecute violations of customary international law. See Security Council Resolution 827 (May 25,

1993). Defining the crimes over which the Tribunal has

jurisdiction, the ICTY Statute provides: “A person who

planned, instigated, ordered, committed or otherwise aided

and abetted in the planning, preparation or execution of a

crime referred to in articles 2 to 5 of the present Statute,

shall be individually responsible for the crime.” Statute of

the International Criminal Tribunal for the Former Yugoslavia art. 7(1), in Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808

(“ICTY Report”), U.N. Doc. S/25704 (May 3, 1993) (em-

12

phasis added); see also Updated Statute of the International Criminal Tribunal for the Former Yugoslavia art.

7(1) (July 7, 2009) (same).

That provision reflected customary international law at

the time. Like the Nuremberg Tribunals, the ICTY was

specifically required to “apply rules of international humanitarian law which are beyond any doubt part of customary law.” ICTY Report ¶ 34; see also Prosecutor v.

Blaškiþ, IT-95-14-A, Appeals Judgment, ¶ 141 (ICTY 2004)

(“[T]he Tribunal may enter convictions only where it is

satisfied that the offence is proscribed under customary

international law at the time of its commission.”). The

ICTY convicted many defendants of aiding and abetting.

See, e.g., Prosecutor v. Popoviþ, IT-05-88-A, Appeals Judgment (ICTY 2015); Prosecutor v. Lukiþ, IT-98-32/1-A, Appeals Judgment (ICTY 2012); Prosecutor v. Mrkšiþ, IT95-13/1-A, Appeals Judgment (ICTY 2009); Prosecutor v.

Blagojeviþ, IT-02-60-A, Appeals Judgment (ICTY 2007);

Prosecutor v. Simiþ, IT-95-9-A, Appeals Judgment (ICTY

2006); Prosecutor v. KvoĀka, IT-98-30/1-A, Appeals Judgment (ICTY 2005); Prosecutor v. Vasiljeviþ, IT-98-32-A,

Appeals Judgment (ICTY 2004); Prosecutor v. Furundžija, IT-95-17/1, Trial Judgment (ICTY 1998).

The International Criminal Tribunal for Rwanda

(“ICTR”), established in 1994, was likewise created to

prosecute crimes under existing customary international

law. See Security Council Resolution 955 (Nov. 8, 1994).

The ICTR Statute contains language identical to the ICTY

Statute on aiding and abetting. Statute of the International Tribunal for Rwanda art. 6(1) (Nov. 8, 1994), in

Security Council Resolution 955 annex (“A person who

planned, instigated, ordered, committed or otherwise

aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present

13

Statute, shall be individually responsible for the crime.”

(emphasis added)). The ICTR likewise convicted many

defendants of aiding and abetting international law violations, primarily genocide. See, e.g., Prosecutor v. Nyiramasuhuko, ICTR-98-42-A, Appeals Judgment (ICTR 2015);

Prosecutor v. Ntawukulilyayo, ICTR-05-82-A, Appeals

Judgment (ICTR 2011); Prosecutor v. Rukundo, ICTR2001-70-A, Appeals Judgment (ICTR 2010); Prosecutor v.

Karera, ICTR-01-74-A, Appeals Judgment (ICTR 2009);

Prosecutor v. Nahimana, ICTR-99-52-A, Appeals Judgment (ICTR 2007); Prosecutor v. Muhimana, ICTR-951B-A, Appeals Judgment (ICTR 2007); Prosecutor v. Ntagerura, ICTR-99-46-A, Appeals Judgment (ICTR 2006);

Prosecutor v. Ntakirutimana, ICTR-96-10-A & ICTR-9617-A, Appeals Judgment (ICTR 2004); Prosecutor v. Kayishema, ICTR-95-1-A, Appeals Judgment (ICTR 2001).3

Liability for complicity, which includes aiding and abetting, is also recognized in international conventions codifying established norms such as torture and genocide.

The Convention Against Torture provides in Article 4(1):

“Each State Party shall ensure that all acts of torture are

offences under its criminal law. The same shall apply to

A database of aiding-and-abetting cases decided by the ICTY, ICTR,

and other international criminal tribunals is available at Aiding and

Abetting in International Criminal Law, Yale Law School Lillian

Goldman Law Library Documents Collection Center, https://docu

ments.law.yale.edu/aiding-and-abetting-cases. Although the United

Nations later established other criminal tribunals for Sierra Leone,

Cambodia, and Lebanon, those tribunals apply varying combinations

of international and domestic law, rather than purely customary international law, and thus “should be approached with caution.” Hathaway et al., supra, at 1624. The Rome Statute of the International

Criminal Court art. 25(3)(c), July 17, 1998, 2187 U.N.T.S. 90, provides

for aiding-and-abetting liability, but it too was not intended to codify

customary international law. See Section II.B, infra.

3

14

an attempt to commit torture and to an act by any person

which constitutes complicity or participation in torture.”

Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment art. 4(1), Dec. 10,

1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (emphasis added). Article III of the Genocide Convention similarly provides that “[c]omplicity in genocide” is “punishable.” Convention on the Prevention and Punishment of

the Crime of Genocide art. III, Dec. 9, 1948, 102 Stat. 3045,

78 U.N.T.S. 277.4

In sum, international criminal tribunals from Nuremberg to the ICTY and ICTR have consistently proscribed

and punished aiding and abetting as a violation of customary international law. Modern human rights treaties such

as the Convention Against Torture and the Genocide Convention confirm that norm by recognizing liability for complicity. There is thus no doubt today that the prohibition

against aiding and abetting human rights violations is a

generally accepted norm of customary international law

“accepted by the civilized world.” Sosa, 542 U.S. at 725.

The International Court of Justice has noted that “the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation.” Reservations to the Convention on Prevention

and Punishment of the Crime of Genocide, Advisory Opinion, 1951

I.C.J. 15, 23 (May 28, 1951). And the ICTY Appellate Chamber has

stated that “[t]he definition of the crime of torture, as set out in the

[Convention Against Torture], may be considered to reflect international law.” Prosecutor v. Kunarac, IT-96-23 & IT-96-23/1-A, Appeals

Judgment, ¶ 146 (ICTY 2002). If anything, the Torture Convention is

narrower in certain respects than customary international law. See

id. ¶ 148 (Convention’s “public official” requirement more restrictive

than customary international law).

4

15

B. The Prohibition Against Aiding and Abetting Is

Specifically Defined

To meet the Sosa standard, a customary international

law norm must also be specifically defined. Amicus WLF

argues that the prohibition against aiding and abetting is

not specifically defined because international law sources

“cannot agree on the mens rea and actus reus required for

a conviction.” WLF Br. 6. This is incorrect.5

While not defined in the instruments establishing international criminal tribunals, the actus reus and mens rea

requirements for aiding-and-abetting liability under customary international law have been repeatedly articulated

in judicial decisions applying the prohibition. Those decisions clearly establish two requirements: (1) assistance that

has a substantial effect on the perpetration of the principal’s offense (the actus reus); and (2) knowledge that the

acts assist the commission of the offense (the mens rea).

1. Actus Reus

The Appeals Chamber of the ICTY has held that “under

customary international law, the actus reus of aiding and

abetting ‘consists of practical assistance, encouragement,

or moral support which has a substantial effect on the perpetration of the crime.’ ” Prosecutor v. Šainoviþ, IT-05-87A, Appeals Judgment, ¶ 1649 (ICTY 2014) (quoting Prosecutor v. Blaškiþ, IT-95-14-A, Appeals Judgment, ¶ 46 (ICTY

2004)); see also Popoviþ, IT-05-88-A, Appeals Judgment,

¶ 1732; Prosecutor v. Stanišiþ, IT-03-69-A, Appeals JudgPetitioners sought certiorari on the substantive mens rea standard

for aiding-and-abetting liability, but this Court did not grant certiorari

on that question. See Pet. i; Order (Jan. 9, 2026). Amici therefore

address the standards for aiding-and-abetting liability under customary international law for the limited purpose of showing that the prohibition against aiding and abetting is defined with sufficient specificity to meet the Sosa standard.

5

16

ment, ¶ 104 (ICTY 2015); Lukiþ, IT-98-32/1-A, Appeals

Judgment, ¶ 422; Prosecutor v. Aleksovski, IT-95-14/1-A,

Appeals Judgment, ¶ 162 (ICTY 2000); Furundžija, IT-9517/1-T, Trial Judgment, ¶ 249 (ICTY 1998).

The ICTR has adopted an identical rule. See Nyiramasuhuko, ICTR-98-42-A, Appeals Judgment, ¶ 1955; Prosecutor v. Ndahimana, ICTR-01-68-A, Appeals Judgment,

¶ 147 (ICTR 2013); Ntawukulilyayo, ICTR-05-82-A, Appeals Judgment, ¶ 214; Rukundo, ICTR-2001-70-A, Appeals Judgment, ¶ 52; Prosecutor v. Seromba, ICTR-0166-A, Appeals Judgment, ¶ 139 (ICTR 2008); Muhimana,

ICTR-95-1B-A, Appeals Judgment, ¶ 189; Ntagerura,

ICTR-99-46-A, Appeals Judgment, ¶ 370; Prosecutor v.

Ntakirutimana, ICTR-96-10-A & ICTR-96-17-A, Appeals

Judgment, ¶ 530 (ICTR 2004).

That standard dates back to the Nuremberg tribunals.

See Furundžija, IT-95-17/1-T, Trial Judgment, ¶¶ 217226, 233-234 (tracing use of the “substantial effect” standard at Nuremberg). In the Einsatzgruppen Case, for example, the U.S. Military Tribunal distinguished between

defendants who could affect the course of events and those

who could not. See The Einsatzgruppen Case, 4 Trials of

War Criminals Before the Nuernberg Military Tribunals

Under Control Council Law No. 10, at 411 (1952). Thus,

the Tribunal acquitted one defendant because his “low

rank [did not] place him automatically into a position

where his lack of objection in any way contributed to the

success of any executive operation,” and it held that another defendant “cannot be found guilty as an accessory”

because he was not “in a position to protest against the

illegal actions of others.” Id. at 581, 585. Similarly, in the

Zyklon B Case, the British Military Tribunal convicted

two individuals for supplying poison gas for use in concentration camps, but acquitted a subordinate because, “[i]f

17

he were not in such a position [either to influence the

transfer of gas to Auschwitz or to prevent it], no knowledge of the use to which the gas was being put could make

him guilty.” The Zyklon B Case, 1 Law Reports of Trials

of War Criminals 93, 93, 102 (1947).

The decisions of the ICTY and ICTR have defined the

actus reus standard with even greater specificity. They

have held, for example, that but-for causation is not required. See, e.g., Popoviþ, IT-05-88-A, Appeals Judgment,

¶ 1740; Simiþ, IT-95-9-A, Appeals Judgment, ¶ 85; Nyiramasuhuko, ICTR-98-42-A, Appeals Judgment, ¶ 1955;

Prosecutor v. Kalimanzira, ICTR-05-88-A, Appeals Judgment, ¶ 86 (ICTR 2010). They have clarified when the conduct in question must have occurred. See, e.g., Lukiþ, IT98-32/1-A, Appeals Judgment, ¶ 425; Kalimanzira, ICTR05-88-A, Appeals Judgment, ¶ 87 n.238. They have explained when omissions may constitute the actus reus.

See, e.g., Popoviþ, IT-05-88-A, Appeals Judgment, ¶ 1740;

Mrkšiþ, IT-95-13/1-A, Appeals Judgment, ¶¶ 146-152;

Ntagerura, ICTR-99-46-A, Appeals Judgment, ¶ 370. And

they have clarified that the acts of aiding and abetting

need not be directed toward a specific crime. See Šainoviþ, IT-05-87-A, Appeals Judgment, ¶ 1649; Nyiramasuhuko, ICTR-98-42-A, Appeals Judgment, ¶ 1955.

2. Mens Rea

The Appellate Chambers of the ICTY and ICTR have

likewise applied, without exception, the same mens rea

standard: “knowledge that [the defendant’s] acts assist

the commission of the offense.” Šainoviþ, IT-05-87-A, Appeals Judgment, ¶ 1649 (quoting Blaškiþ, IT-95-14-A, Appeals Judgment, ¶ 46); Nyiramasuhuko, ICTR-98-42-A,

Appeals Judgment, ¶ 1955 (quoting Šainoviþ, IT-05-87-A,

Appeals Judgment, ¶ 1649); see also Blagojeviþ, IT-02-60A, Appeals Judgment, ¶ 127; KvoĀka, IT-98-30/1-A, Ap-

18

peals Judgment, ¶ 89; Prosecutor v. Krnojelac, IT-97-25A, Appeals Judgment, ¶ 33 (ICTY 2003); Prosecutor v.

Tadiþ, IT-94-1-A, Appeals Judgment, ¶ 229 (ICTY 1999);

Furundžija, IT-95-17/1-T, Trial Judgment, ¶ 249; Ndahimana, ICTR-01-68-A, Appeals Judgment, ¶157; Ntawukulilyayo, ICTR-05-82-A, Appeals Judgment, ¶ 222; Rukundo, ICTR-2001-70-A, Appeals Judgment, ¶ 53; Muhimana,

ICTR-95-1B-A, Appeals Judgment, ¶ 189; Ntakirutimana,

ICTR-96-10-A & ICTR-96-17-A, Appeals Judgment, ¶ 530.

“Knowledge” was also the mens rea standard applied

by the international military tribunals at Nuremberg. In

the Einsatzgruppen Case, the tribunal noted that a defendant who turned over lists of Communist party members “served as an accessory” to their subsequent executions because he “was aware that the people listed would

be executed when found.” The Einsatzgruppen Case, 4

Trials of War Criminals Before the Nuernberg Military

Tribunals Under Control Council Law No. 10, at 569

(1952) (emphasis added); see also The Zyklon B Case, 1

Law Reports of Trials of War Criminals 93 (1947) (convicting defendants who “suppl[ied] poison gas used for the

extermination of allied nationals interned in concentration

camps well knowing that the said gas was to be so used.”

(emphasis added)); I.G. Farben Case, 8 Trials of War

Criminals Before the Nuernberg Military Tribunals Under

Control Council Law No. 10, at 1081, 1169 (1952) (acquitting

corporate executives who did not have “any significant

knowledge” that “an improper use was being made of

[Zyklon B]”). It was a “settled legal principl[e]” even then

that “[o]ne who knowingly by his influence and money

contributes to the support [of crimes against humanity

and war crimes] must * * * be deemed to be, if not a principal, certainly an accessory to such crimes.” United

States v. Flick, 6 Trials of War Criminals Before the

19

Nuernberg Military Tribunals Under Control Council

Law No. 10, at 1187, 1217 (1952) (emphasis added).6

As with actus reus, the ICTY and ICTR decisions have

defined the mens rea requirement with even greater specificity. For instance, an aider and abettor “need not share

the intent of the principal perpetrator” but “must be

aware of such intent.” Popoviþ, IT-05-88-A, Appeals Judgment, ¶ 1794; see also Ndahimana, ICTR-01-68-A, Appeals Judgment, ¶ 157; Ntawukulilyayo, ICTR-05-82-A,

Appeals Judgment, ¶ 222. Thus, “[s]pecific intent crimes

such as genocide require that the aider and abettor must

know of the principal perpetrator’s specific intent.” Ndahimana, ICTR-01-68-A, Appeals Judgment, ¶ 157; see also

Rukundo, ICTR-2001-70-A, Appeals Judgment, ¶ 53; Kalimanzira, ICTR-05-88-A, Appeals Judgment, ¶ 86.

United States v. von Weizsaecker (The Ministries Case), 14 Trials of

War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, at 314 (1952), is not to the contrary. Though

sometimes cited to support a requirement that the defendant act with

the purpose of facilitating the violation, see Presbyterian Church of

Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009), the

relevant portion of the Ministries Case was actually about actus reus,

not mens rea. In acquitting the banker Karl Rasche, the tribunal concluded that, although Rasche knew that a loan he made would be used

to “financ[e] enterprises which are employed in using labor in violation

of either national or international law,” merely making a loan does not

make the lender a “partner in [the] enterprise.” The Ministries Case,

14 Trials of War Criminals Before the Nuernberg Military Tribunals

Under Control Council Law No. 10, at 622 (1952). In other words, the

tribunal found a lack of actus reus rather than mens rea. Indeed, the

tribunal clearly articulated and applied a knowledge standard to other

defendants in the same case. See id. at 478 (“The question is whether

[Von Weizsaecker and Woermann] knew of the program and whether

in any substantial manner they aided, abetted, or implemented it.”);

id. at 620 (convicting banker who “knew that what was to be received

and disposed of was stolen property and loot taken from the inmates

of concentration camps”).

6

20

Although two Circuits have adopted a narrower “purpose” standard for aiding-and-abetting liability, they did

so based on authorities that by their terms do not reflect

customary international law. See Presbyterian Church of

Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d

Cir. 2009); Aziz v. Alcolac, Inc., 658 F.3d 388, 400-401

(4th Cir. 2011). Neither those cases nor the authorities

they cite call into question that, under customary international law, the “knowledge” standard is well-defined and

universally accepted.

Both courts adopted the “purpose” standard from the

Rome Statute of the International Criminal Court (“Rome

Statute”), July 17, 1998, 2187 U.N.T.S. 90. See Talisman,

582 F.3d at 258-259; Aziz, 658 F.3d at 398-401; see also Pet.

App. 52a-58a. The Rome Statute extends criminal liability

to a person who, “[f]or the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in

its commission or its attempted commission, including

providing the means for its commission.” Rome Statute

art. 25(3)(c). But this provision of the Rome Statute does

not reflect customary international law. The lead negotiator for the United States, Ambassador David Scheffer,

told this Court in 2010 that “Article 25(3)(c) of the Rome

Statute was negotiated not to codify customary international law but to accommodate the numerous views of

common law and civil law experts about how, precisely, to

express the mens rea of the aider or abettor.” Scheffer

Br. in Presbyterian Church of Sudan v. Talisman Energy,

Inc., No. 09-1262, at 11 (May 19, 2010) (emphasis added).

Thus, “understanding the Rome Statute as an effort to

21

codify customary international law at the time it was

drafted is a mistake.” Hathaway et al., supra, at 1599.7

Relying on the Rome Statute to interpret the ATS disregards Sosa’s direction to consult customary international law. It also disregards the text of the ATS, which

refers to torts “in violation of the law of nations or a treaty

of the United States.” 28 U.S.C. § 1350 (emphasis added).

Because the United States is not a party to the Rome Statute, it cannot qualify as a treaty “of the United States.”

Any divergence in the standards for aiding-and-abetting liability merely reflects differences between tribunals

that are charged with applying customary international

law and those that are not. See Hathaway et al., supra, at

1610-1611, 1613-1617. Tribunals applying customary international law from Nuremberg onward have consistently

required (1) assistance that has a substantial effect on the

perpetration of the principal’s offense; and (2) knowledge

that the acts assist the commission of the offense. Customary international law thus defines the prohibition

against aiding and abetting international law violations

with all the specificity that Sosa requires.

III. INTERNATIONAL LAW ALLOWS THE UNITED STATES

TO IMPOSE CIVIL LIABILITY FOR AIDING AND ABETTING HUMAN RIGHTS VIOLATIONS

Amicus WLF acknowledges that aiding-and-abetting

liability “finds some support in international criminal tribunals,” but argues that “no source of international law

Several of the Rome Statute’s provisions distinguish its rules from

those of customary international law. See Rome Statute art. 10

(“Nothing 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.”); id. art. 22(3) (“This article [on nullum

crimen sine lege] shall not affect the characterization of any conduct

as criminal under international law independently of this Statute.”).

7

22

* * * provides a civil remedy for any international crime.”

WLF Br. at 6-7 (emphasis original). That distinction between civil and criminal remedies misunderstands how

customary international law works.

Customary international law establishes substantive

norms of conduct but does not dictate how those norms are

enforced in national legal systems. See Eileen Denza, The

Relationship Between International and National Law,

in International Law 411, 411 (Malcolm D. Evans ed., 3d

ed. 2010) (“[I]nternational law does not itself prescribe

how it should be applied or enforced at the national

level.”); Louis Henkin, Foreign Affairs and the United

States Constitution 245 (2d ed. 1996) (“International law

itself * * * does not require any particular reaction to violations of law.”); Restatement (Third) of U.S. Foreign Relations Law § 111 cmt. h (1987) (“In the absence of special

agreement, it is ordinarily for the United States to decide

how it will carry out its international obligations.”). This

Court acknowledged that relationship between customary

international law and domestic law in Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 398 (1964), noting that “the

public law of nations can hardly dictate to a country * * *

how to treat [a violation of international law] within its domestic borders.” Id. at 423. Different legal systems thus

can and do take different approaches to implementing international law norms. See, e.g., Chimène I. Keitner, Conceptualizing Complicity in Alien Tort Cases, 60 Hastings

L.J. 61, 85 (2008) (“The sharp distinction between civil and

criminal proceedings and penalties is a feature identified

with modern common law systems, not the international

system as a whole.”).

The consistent practice described in Part II clearly establishes that the prohibition against aiding and abetting

international law violations is a generally accepted and

23

clearly defined norm of customary international law.

Although that norm has generally been enforced internationally by criminal tribunals, that practice does not foreclose countries like the United States from imposing civil

liability domestically for violations.8

That is what the First Congress did when it created

civil liability for torts “in violation of the law of nations” in

the ATS. 28 U.S.C. § 1350. The three paradigmatic offenses it had in mind—violations of safe conducts, infringement of the rights of ambassadors, and piracy—

were all offenses “addressed by the criminal law of England.” Sosa, 542 U.S. at 715 (citing 4 W. Blackstone, Commentaries on the Laws of England 68 (1769)) (emphasis

added). Nevertheless, Congress chose to open the doors

of the federal courts to civil claims for the same offenses.

* * * * *

The statutes of some international criminal tribunals do provide for

restitution to victims. See, e.g., ICTY Statute art. 24(3); ICTR Statute

art. 23(3). Civil aiding-and-abetting liability also finds a counterpart

in the customary international law of state responsibility. Article 16

of the International Law Commission’s Draft Articles on State Responsibility provides: “A State which aids or assists another State in

the commission of an internationally wrongful act by the latter is

internationally responsible for doing so if: (a) that State does so with

knowledge of the circumstances of the internationally wrongful act;

and (b) the act would be internationally wrongful if committed by that

State.” Int’l Law Comm’n, Draft Articles on Responsibility of States

for Internationally Wrongful Acts, with Commentaries, art. 16, Report

of the International Law Commission on the Work of Its Fifty-Third

Session, U.N. Doc. A/56/10, at 65 (2001). The International Court of

Justice has referred to Article 16 as reflecting a rule of customary

international law. See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia v. Serbia), 2007 I.C.J. 43, ¶ 420 (Feb. 26, 2007).

8

24

Under this Court’s decision in Sosa, whether the prohibition on aiding and abetting is the kind of norm actionable

under the ATS is determined by customary international

law. Since at least the 1940s, customary international law

has prohibited aiding and abetting violations of international law. That norm is both generally accepted and

specifically defined. And the fact that the international

community has chosen to enforce that norm through international criminal tribunals does not preclude countries

from imposing civil liability for the same violations, as the

United States has done in the ATS.

CONCLUSION

The court of appeals’ judgment should be affirmed.

Respectfully submitted.

ROBERT K. KRY

Counsel of Record

JACKSON A. MYERS

MOLOLAMKEN LLP

The Watergate, Suite 500

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

rkry@mololamken.com

Counsel for Amici Curiae

MARCH 2026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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