Amicus Curiae Brief — Jesner v. Arab Bank, PLC, 138 S. Ct. 52 (2017) (No. 16-499)

JUN 27 2017

SRE RR

No. 16-499

IN THE

Supreme Court of the United States

JOSEPH JESNER et al.,

Petitioners,

V.

ARAB BANK, PLC,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF INTERNATIONAL LAW SCHOLARS

AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

William S. Dodge

Counsel of Record

400 Mrak Hall Drive

Davis, CA 95616

(530) 752-1910

wsdodge@ucdavis.edu

i

-TABLE OF CONTENTS

ED GI SERPENT ED cscccesne -cvarcovcsnccesossenessscovses il

RE CE SIE crintrasctencnesncssssnnoreccssesveooeseevoonees 1

iiss ceicnta-danterstesnvecnnnscsnuptsnnesaccseusssouientttn 1

SUMMARY OF ARGUMENT. .....0.........:.cceceeeesereeeeenees 4

I aiiiiviiedcicdensscnnmideceninesssenitahethisinepetoobenousiiion 5

I. Customary international law prohibits violations

of fundamental human rights but does not

provide the particular means of enforcing those

IER SAE AR SS AC RRS SS ar PA er CN 5

Il. The proper question in not whether there is a

general norm of corporate liability under

customary international law, but whether the

particular norms at issue distinguish between

natural and juridical persons. ............................ L1

Ill. The Second Circuit erred by treating limitations

on particular enforcement mechanisms for

international human rights norms as limitations

on the applicability of the norms themselves. ... 16

A. Limits on the jurisdiction of international

criminal] tribunals are not limits on the norms

nn Silt A EES ta EER On Tn 17

1. Nuremburg Tribunals .......................2.22++ 18

i

2. Yugoslav and Rwandan Tribunals........... 20

EEE RI ee ened Uenin ORE A: Or 22

B. Obligations to prosecute or extradite natural

persons in suppression conventions do not

imply that the norms are limited to natural

i sistapbahdnbhantiddtdeddumiedgniediiagmaiiaitadnedcuidadeund 23

C. Nations are free to enforce international

human rights norms by creating criminal and

civil liability under their domestic laws. ...... 26

EERE Ae RL SREP DS OE SOE 33

TINIE tihsrvsisininiinniiieeetatidnhiensiapetililigtdinniatinieinduiniesuitinlibciboei la

TABLE OF AUTHORITIES

Domestic Cases

Banco Nacional de Cuba v. Sabbatino,

a sciahiaaielaibulenioe 9

In re Arab Bank, PLC Alien Tort Statute Litigation,

ee ey i ocececieccescconerenccuscececsnces 3,4

In re Arab Bank, PLC Alien Tort Statute Litigation,

808 F.3d 144 (2d Cir. 2015) ......ccccececescecesecececeseeeeee: 3

Kadic v. Karadzic,

ee ee Ee BR oivccccercecccecceccccescesress 11, 14

Kiobel v. Royal Dutch Petroleum Co.,

aE 3

Kiobel v. Royal Dutch Petroleum Co.,

8 + §)> . 1s SS 2, passim

Mohamad v. Palestinian Authority,

HL A 31

Sosa vu. Alvarez-Machain,

542 U.S. 692 (2004) ............. 1, 2, 4, 7, 11, 12, 14, 30

Talbot v. Jansen,

Be Te I OE I cs cccnevcoschecnccvedcnenconsneensies 15

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984)................ccccceeees 11,14

lv

The Palmyra,

25 U.S. (12 Wheat.) 1, 16 (1827) ...0000.. 14

Statutes

3G EE SEN Ae St ORR PEIN RL OSA 30

I chal as Geena alld ils dhs sdanienlamabaal 30

NT HEIR Dict rcenenintevndiadeinhbbancdddegdabteceseubenestia 30

II fii. ha inisis odeaaiemioanabaineinadbaiemsnnanssibds 30

NEES terres se enced PAS 31

Se IE cicnsiitdoninitovansicioinsigindeheashasiiihinibeiciicenppaniinneaiete 30

IT icine. sciectepusscninsasiaieib-abinaiendabeceienieneeabnaaanhiny 30

I I I ia nensncins disci sdihinchinicbdnanlunpadtiipaamagidiansh 1

Ee Se CADRE TO 31

nN nti ciciemtsantatacicheuannaeneniamiieneneen 13

a ics ch eandenpniediomenageaintebiasaana 31

Control Council Law No. 10, Punishment of Persons

Guilty of War Crimes, Crimes Against Peace and

Against Humanity, in 1 Enactments and Approved

Papers of the Control Council and Coordinating

Committee, Allied Control Authority Germany

ta EN Re EE IER ERE Oe SIRI oS nae 19

Vv

International Criminal Court Act, 2001,

eS ee er 28

Interpretation Act, 1978, c. 30, § 5, sch. 1 (U.K.)..... 28

International Cases

Application of Convention on Prevention and

Punishment of Crime of Genocide (Bosn. & Herz. v.

Serb. & Montenegro),

Be Sas HIE, BI oiiceiacicdocnsvcessesncsnsiennscndiintss 24

Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v.

Belg.), 2002 I.C.J. 63 (Feb. 14).................. 16, 17, 27

Jurisdictional Immunities of the State (Germ. v. It.),

ne I TI I OI oii ncitsictndinncechccmsisendoccons 12, 13

North Sea Continental Shelf (F.R.G. v. Den., F_R.G. v.

Neth.), 1969 1.C.J. 3 (Feb. 20) .............cccecccceseees 6,13

Prosecutor v. Kunarac,

Case No. ICTY 96-23-A & 96-23/1-A, Appeals

Chamber Judgment (June 12, 2002) ..................06 8

Prosecutor v. Kunarac,

Case No. ICTY 96-23-T & 96-23/1-T, Trial

PS ,_, ee 8

Prosecutor v. Nahimana,

Case No. ICTR 99-52-T,

I IIS Sie, Bi asttcincdccnsccesssencsesnscccossscnnnen 21

v1

Reservations to the Convention on the Prevention and

Punishment of the Crime of Genocide, Advisory

Opinion, 1951 I.C.J. 15 (May 28)......................--.. 24

The Farben Case, 8 Trials of War Criminals Before

the Nuernberg Military Tribunals (1952)............. 20

Treaties

Agreement for the Prosecution and Punishment of

the Major War Criminals of the European Axis,

art. 6, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T:S.

SUNG, ico cesta seleatcaealinidavieveahcanceehiottonsiebetiensiaianlhciiliciniead 18, 19

Charter of the International Military Tribunal for the

Far East, Jan. 19, 1946, amended Apr. 26, 1946,

ee I I acislidcadciasunsndanddncsnnsicippapeuipdneniantbisuece 19

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment,

art. 1, adopted Dec. 10, 1984, S. Treaty Doc. No.

20, 100th Cong., 2d Sess. (1988),

I II aiid csicnccininbisdatanananseuidinnsengsitn 8, 25, 26

Convention on the Prevention and Punishment of the

Crime of Genocide, art. Il, adopted Dec. 9, 1948,

102 Stat. 3045, 78 U.N.T.S. 277............ 8, 14, 24, 25

Convention to Suppress the Slave Trade and Slavery,

art. 6, Sept. 25, 1926, 46 Stat. 2183, 2191,

I II a ihiectpcnatiets cccnismnctsisstinniinenensinmesenenhiciedion 30

Vil

Protocol on Amendments to the Protocol on the

Statute of the African Court of Justice and Human

Rights, art. 22, available at

https://www.au.int/web/sites/default/

files/treaties/7804-treaty-0045 - protocol_on_

amendments to the protocol_on_the_statute_of_

the_african_court_of_justice_and_human_rights_e.

SUE CINE PRIN SILI, ovccenscnevscvsececsseccesseseesncvess 18

Rome Statute of the International Criminal Court

art. 5, July 17, 1998,

a eniuasnusole 22, 23, 27, 28

Statute of the International Court of Justice art. 38,

es SE. Tr, SE, I cciseunetudinennenaneneusberee 5

Vienna Convention on the Law of Treaties, art.

2(1)(a), 1155 U.N.T.S. 331, T.S. No. 58, 8 I.L.M.

Briefs

Brief for the United States as Amicus Curiae in

Support of Petitioners, Kiobel v. Royal Dutch

Petroleum Co.,

133 S. Ct. 1659 (2013) .... 8, 10, 15, 16, 18, 26-27, 29

Brief of Amici Curiae Nuremberg Scholars in Support

of Petitioners, Jesner v. Arab Bank,

I i a a canes che sndemantintacgnniednaine 20

Brief of the European Commission on Behalf of the

European Union as Amicus Curiae in Support of

Neither Party, Kiobel v. Royal Dutch Petroleum

Co., 183 S. Ct. 1659 (2013)............c0..ceseccosceceees 29-30

Brief of the Governments of the United Kingdom of

Great Britain and Northern Ireland and the

Kingdom of the Netherlands as Amici Curiae in

Support of the Respondents, Kiobel v. Royal Dutch

Petroleum Co., 133 S. Ct. 1659 (2013) .................. 29

Brief of Yale Law School Center for Global Legal

Challenges as Amicus Curiae in Support of

Petitioners, Jesner v. Arab Bank,

Pe EL SE cancievesssdninwievesietiicncscanendoiciaciniilain 15

Other Authorities

Blackstone, William, Commentaries on the Laws of

I PE snicuicniscctsinntciermmmninagntemidanin aman, 7

Cleveland, Sarah H. & William S. Dodge, Defining

and Punishing Offenses Under Treaties, 124 Yale

Rasdhs SE IE cnscoxsediccsrnsesediandenenaiiauneiaeiiaammliandiae 7

Draft Articles on the Responsibility of States for

Internationally Wrongful Acts, Report of the

International Law Commission on the work of its

fifty-third session, 19 U.N. GAOR Suppl. No. 10,

U.N. Doc. A/56/10 (2001), reprinted in [2001] Y.B.

Int'l] L. Comm’n 26, U.N. Doc.

A/CS.4/SER.As/2Z00 LIA. 1. ........ccccccccccccccscoscccseees 12

Denza, Eileen, The Relationship Between

International Law and National Law, in

International Law (Malcolm Evans ed.,

BO Ce i iikksscecieitiomanttaisenineas aeunliemaetaiesaanaaan 9

1x

Dodge, William S., Corporate Liability Under

Customary International Law,

43 Geo. J. Int’] L. 1045 (2012)................-.....0000 4,12

Frulli, Micaela, Jurisdiction Ratione Personae,

in The Rome Statute of the International Criminal

Court: A Commentary

(Antonio Cassese et al. eds. 2002)..............-..2...--- 22

G.A. Res. 39/46, pmbl., U.N. Doc. A/Res/39/46

a sedpastbinbuabeaiocauens 25

Henkin, Louis, Foreign Affairs and the United States

Constitution 245 (2d ed. 1996) .............2.cc.-0eeceeceeeees )

International Criminal Tribunal for the Former

Yugoslavia Statute, S.C. Res. 827, U.N. Doc.

S/RES/827 (May 25, 1993), adopting The

Secretary-General,

Report Pursuant to Paragraph 2 of Security

Council Resolution 808, U.N. Doc. S/25704 (May 3,

1993), reprinted in 32 I.L.M. 1192.................. 20, 21

Library of Congress, Multinational Report: Crimes

Against Humanity Statutes and Criminal] Code

Provisions (2010), available ac

https://loc.gov/law/help/crimes against-

humanity/crimes-against-humanity.pdf.......... 27-28

Restatement (Third) of Foreign Relations Law of the

| SSS 5, 6, 7,9

Restatement (Fourth) of Foreign Relations Law of the

United States: Jurisdiction

(Tent. Draft No. 2, Mar. 22, 2016) ............ 23, 30, 32

x

Statute of the International Tribunal for Rwanda,

S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994),

reprinted in 33 1.L.M. 1598 (1994).................. 20, 21

The Coalition for the International Criminal Court,

2013 Status of the Rome Statute Around the World

9, available at http://www.iccnow.org/documents/

RomeStatuteUpdate_2013_web.pdf...................... 27

Thompson, Robert C., Anita Ramasastry & Mark B.

Taylor, Translating Unocal: The Expanding Web of

Liability for Business Entities Implicated in

International Crimes,

40 Geo. Wash. Int'l L. Rev. 841 (2009) ................. 28

Yang, Xiaodong, State Immunity in International

RENAE al BARS REE Eris aR ST DRE 13

INTEREST OF AMICI

Amici curiae are scholars of international law who

believe that the decision below rests on a fundamental]

misunderstanding of how international law works.

Amici have academic expertise and a strong interest

in the proper application of international law. A list of

amici and their qualifications is provided in the

appendix.!

INTRODUCTION

Petitioners were the victims of terrorist attacks in

Israel, the West Bank, and Gaza. They allege that

Respondent Arab Bank knowingly and intentionally

financed this terrorism through activities in New

York. Petitioners also allege that Respondent

distributed millions of dollars to terrorists and their

families through its New York branch.

Because Petitioners are aliens, they brought their

claims under the Alien Tort Statute (ATS), which

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. In Sosa

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

concluded that the ATS was “enacted on the

understanding that the common law would provide a

cause of action for the modest number of international

law violations with a potential for personal liability at

the time.” Jd. at 724. Sosa held that federal courts may

“recognize private claims under federal common law”

1 No counsel for any party authored this brief in whole or in

part, and no person or entity other than amici curiae or their

counsel contributed money to the preparation or submission of

this brief. The parties have consented to this filing.

2

for violations of modern international law norms that

are as well defined and generally accepted as “the

historical paradigms familiar when § 1350 was

enacted.” Id. at 732. In footnote 20, this Court added:

“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.” Jd.

at 732 n.20.

Relying on footnote 20, the Second Circuit

majority held in Kiobel v. Royal Dutch Petroleum Co.,

621 F.3d 111 (2d Cir. 2010), that claims under the ATS

could never be brought against corporations because

“(t]he concept of corporate liability for violations of

customary international law has not achieved

universal recognition or acceptance as a norm in the

relations of States with each other.” Jd. at 149. Judge

Leval disagreed with this conclusion and concurred

only in the judgment. He pointed out that the

customary international law of human rights

“prohibit[s] conduct universally agreed to be heinous

and inhumane” but “leaves the manner of

enforcement, including the question of whether there

should be private civil remedies for violations of

international law, almost entirely to individual

nations.” Jd. at 152 (Leval, J., concurring in the

judgment). Judge Leval wrote, “the majority's

contention that there can be no civil remedy for a

violation of the law of nations unless that particular

form of civil remedy has been adopted throughout the

world misunderstands how the law of nations

functions.” Id. at 175.

This Court granted certiorari in Kiobel to consider

the question of corporate liability but, after oral

3

argument, asked for additional briefing on the

geographic scope of the ATS cause of action. Kiobel v.

Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1663

(2013). In the end, this Court declined to resolve the

corporate liability question in Kiobel and affirmed the

decision below on the ground that the claims did not

“touch and concern” the United States “with sufficient

force to displace the presumption § against

extraterritorial application.” Jd. at 1669.

Following this Court’s decision in Kiobel, the

district court dismissed Petitioners’ claims against

Respondent Arab Bank on the sole ground that, under

Second Circuit precedent, “plaintiffs cannot bring

claims against corporations under the ATS.” In re

Arab Bank, PLC Alien Tort Statute Litigation, 808

F.3d 144, 148 (2d Cir. 2015) (quoting district court

docket entry). On appeal, the Second Circuit panel

concluded that this Court’s Kiobel decision “cast[s]} a

shadow” on circuit precedent, noting that Kiobel

“appears to reinforce Judge Leval’s reading of Sosa,

which derives from international law only the conduct

proscribed, leaving domestic law to govern the

available remedy.” Jd. at 155. But the panel decided to

“leave it to either an en banc sitting of this Court or an

eventual Supreme Court review to overrule” the

Second Circuit’s precedent categorically barring

corporate liability. Jd. at 157.

The Second Circuit declined to rehear the case en

banc. In re Arab Bank, PLC Alien Tort Statute

Litigation, 822 F.3d 34, 35 (2d Cir. 2016). Judge Pooler

dissented. She noted that “the panel majority erred by

framing the question in the wrong way: whether there

is a ‘norm of corporate liability under customary

international law.” Jd. at 42 (quoting Kiobel, 621 F.3d

4

at 131). Judge Pooler explained: “International law

does not work that way.’ Customary international law

does not contain general norms of liability or non-

liability applicable to actors.” Jd. (quoting William S.

Dodge, Corporate Liability Under Customary

International Law, 43 Geo. J. Intl L. 1045, 1046

(2012)). This Court granted certiorari.

SUMMARY OF ARGUMENT

The Second Circuit’s decision in Kiobel

fundamentally misunderstood how international law

works. Customary international law establishes

human rights norms that prohibit certain conduct.

Some of these norms apply to all actors, and some

apply only to certain actors. Customary international

law, however, does not provide the means of enforcing

those norms. The enforcement of human rights norms

is instead left to states, which may act collectively

through treaties or separately by providing for liability

under their domestic laws. The Second Circuit's

misunderstanding of international law led it to make

two significant errors.

First, the Second Circuit framed the question as

whether there is a general “norm of corporate liability

under customary international law.” Kiobel, 621 F.3d

at 131. That question makes no sense, because

customary international law leaves the question

whether to impose liability to the decision of states.

The proper question under customary international

law is instead the one this Court framed in Sosa:

“whether international law extends the scope of

liability for a violation of a given norm to the

perpetrator being sued.” Sosa, 542 U.S. at 732 n.20

(emphasis added).

5

Second, the Second Circuit confused limits on

particular mechanisms for enforcing customary

international law norms with limits on the

substantive applicability of the norms themselves.

International criminal tribunals generally have been

given jurisdiction only over natural persons because

many nations have concerns about imposing criminal

liability on corporations. In concluding suppression

conventions, like the Genocide Convention and the

Torture Convention, nations have similarly limited

their obligations to prosecute or extradite to natural

persons. But these limitations on particular

enforcement mechanisms are not limitations on the

underlying norms themselves. This is confirmed by

the widespread practice of states providing both

criminal] and civil liability for human rights violations,

including corporate violations, in their domestic laws.

ARGUMENT

I. Customary international law prohibits

violations of fundamental human rights

but does not provide the particular means

of enforcing those norms.

Modern international law takes two principal

forms: (1) customary international law and (2)

international agreements, also known as treaties or

conventions. See 1 Restatement (Third) of Foreign

Relations Law of the United States § 102(1) (1987);

Statute of the International Court of Justice art. 38,

59 Stat. 1005, T.S. No. 993 (CJ Statute).2 “Customary

2 International law also includes “general principles of law.”

ICJ Statute art. 38(1)(c). These general principles “may be

invoked as supplementary rules of international law where

6

international law results from a general and

consistent practice of states followed by them from a

sense of legal obligation.” 1 Restatement (Third) of

Foreign Relations Law of the United States § 102(2)

(1987); see also North Sea Continental Shelf (F_R.G. v.

Den., F.R.G. v. Neth.), 1969 1.C.J. 3, 44 (Feb. 20)

(customary international law requires “a _ settled

practice” and “a belief that this practice is rendered

obligatory by the existence of a rule of law requiring

it”). Rules of customary international law “have equal

force for all members of the international community.”

North Sea Continental Shelf, 1969 1.C.J. at 38. By

contrast, a treaty is “an international agreement

concluded between States in written form and

governed by international law.” Vienna Convention on

the Law of Treaties, art. 2(1)(a), 1155 U.N.T.S. 331,

T.S. No. 58, 8 I.L.M. 679. “Every treaty in force is

binding upon the parties to it,” id. art. 26, but “[a]

treaty does not create either obligations or rights for a

third State without its consent,” id. art. 34; see also 1

Restatement (Third) of Foreign Relations Law of the

United States § 102(3) (1987) (“International

agreements create law for the states parties thereto.”).

Much international law concerns the rights and

obligations of states. See 1 Restatement (Third) of

Foreign Relations Law of the United States, Part II,

Intro. Note (1987) (“The principal persons under

international law are states.”). But some rules of

customary international law and some provisions of

treaties apply to natural and to juridical persons. See

id. (“In principle, . . . individuals and private juridical

—

appropriate.” 1 Restatement (Third) of Foreign Relations Law of

the United States § 102(4) (1987). Examples include the

principles of laches and res judicata. See id. § 102, Comment /.

7

entities can have any status, capacity, rights, or duties

given them by international law or agreement, and

increasingly individuals and private entities have

been accorded such aspects of personality in varying

measures.”). As this Court recognized in Sosa,

international law at the time the ATS was passed in

1789 recognized certain “rules binding individuals for

the benefit of other individuals,” violations of which

were considered “offenses against the law of nations.”

Sosa, 542 U.S. at 715. These offenses included

“violation of safe conducts, infringement of the rights

of ambassadors, and piracy.” Id. (citing 4 William

Blackstone, Commentaries on the Laws of England 68

(1769)). Some treaties at that time similarly created

rights and obligations for persons other than states.

See Sarah H. Cleveland & William S. Dodge, Defining

and Punishing Offenses Under Treaties, 124 Yale L.J.

2202, 2219-20 (2015) (providing examples).

Customary international law today prohibits

violations of certain fundamental human rights,

creating both rights and obligations for persons other

than States. See 1 Restatement (Third) of Foreign

Relations Law of the United States § 702 (1987)

(listing customary international prohibitions of

genocide, slavery or slave trade, the murder or causing

the disappearance of individuals, torture or other

cruel, inhuman, or degrading treatment or

punishment, prolonged arbitrary detention,

systematic racial discrimination, and a consistent

pattern of gross violations of internationally

recognized human rights). Some of these customary

8 The Restatement (Third) notes that this list “is not

necessarily complete, and is not closed.” Jd. § 702, Comment a.

8

international law norms, like the norm prohibiting

genocide, apply to all actors, regardless of state

involvement. See Convention on the Prevention and

Punishment of the Crime of Genocide, art. II, adopted

Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277

(Genocide Convention) (defining “genocide” for

purposes of the convention as “any of the following acts

committed with intent to destroy, in whole or in part,

a national, ethnical, racial or religious group”). Others,

like the norm prohibiting torture, sometimes apply

only to those who act with state involvement. See

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, art.

1, adopted Dec. 10, 1984, S. Treaty Doc. No. 20, 100th

Cong., 2d Sess. (1988), 1465 U.N.T.S. 85 (Torture

Convention) (defining “torture” for purposes of the

convention as pain or suffering “inflicted by or at the

instigation of or with the consent or acquiescence of a

public official or other person acting in an official

capacity”).4 None of these norms applies only to

natural and not to juridical persons. See Brief for the

United States as Amicus Curiae in Support of

Petitioners 7, Kiobel v. Royal Dutch Petroleum Co., 133

S. Ct. 1659 (2013) (First U.S. Kiobel Br.) (“At the

present time, the United States is not aware of any

international-law norm of the sort identified in Sosa

4 In other contexts, the norm prohibiting torture may apply

regardless of state involvement. See Prosecutor v. Kunarac, Case

No. ICTY 96-23-T & 96-23/1-T, Trial Judgment 4 496 (Feb. 22,

2001) (holding “that the presence of a state official or of any other

authority-wielding person in the torture process is not necessary

for the offence to be regarded as torture under international

humanitarian law”); Prosecutor v. Kunarac, Case No. ICTY 96-

23-A & 96-23/1-A, Appeals Chamber Judgment § 148 (June 12,

2002) (agreeing with the Trial Chamber).

9

that distinguishes between natural and juridical

person. Corporations (or agents acting on their behalf)

can violate those norms just as natural persons can.”).

Although customary international law establishes

norms that apply to certain actors in certain contexts,

customary international law does not itself provide the

means for enforcing those norms against the actors to

whom they apply. Instead, customary international

law generally leaves questions of enforcement to the

decision of states. See Eileen Denza, The Relationship

Between International Law and National Law, in

International Law 423, 423 (Malcolm Evans ed., 2d ed.

2006) (“[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.”); see also 1 Restatement (Third)

of Foreign Relations Law of the United States § 111,

Comment A (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 the general

relationship between customary international law and

domestic law in Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964), when it noted that “the public law

of nations can hardly dictate to a country . . . how to

treat [a violation of international law] within its

domestic borders.” Jd. at 423.

What is true for customary international law in

general is true for the customary international! law of

human rights as well. The Solicitor General explained

during the first round of briefing in Kiobel (in a brief

also signed by the Department of State) that

10

“international law . .. establishes the substantive

standards of conduct and generally leaves the means

of enforcing those substantive standards to each

state.” First U.S. Kiobel Br. 18.

As described in Part III of this brief, states have

acted both collectively and separately to enforce

customary international law norms prohibiting

violations of fundamental human rights. Collectively,

states have established international criminal

tribunals to enforce certain norms against certain

actors during certain conflicts. Collectively, states

have also concluded treaties—commonly called

“suppression conventions”’—in which they agree to

prohibit violations of certain norms in their domestic

laws and either to prosecute or to extradite individuals

who violate those norms. Separately, states have

enacted domestic laws to enforce certain norms of

international human rights law in ways that are not

required by treaty. In doing so, each state has acted

according its own policies, priorities, and legal

traditions. Some have enacted criminal prohibitions,

some have provided civil remedies, and some have

done both.

The resulting patchwork of enforcement

mechanisms for customary international law norms of

human rights does not necessarily extend as far as the

norms themselves. The jurisdiction of international

criminal tribunals is limited in various ways.

Suppression conventions require their parties to take

only some actions in response to violations. And the

domestic laws of individual states do not provide every

possible remedy against every possible violator. But

limitations on the enforcement mechanisms that have

been created under treaties and domestic law must not

11

be confused with limitations on the human rights

norms themselves. That is a mistake the Second

Circuit majority made in Kiobel. See 621 F.3d at 132-

37 (treating limitations on the jurisdiction of

international criminal tribunals as limits on the

applicability of human rights norms). That is a

mistake this Court should not repeat.

IT. The proper question is not whether there

is a general norm of corporate liability

under customary international law, but

whether the particular norms at issue

distinguish between natural and juridical

persons.

In footnote 20 of the majority opinion in Sosa, this

Court said:

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. Compare Tel-

Oren v. Libyan Arab Republic, 726 F.2d

774, 791-795 (C.A.D.C.1984) (Edwards,

J., concurring) (insufficient consensus in

1984 that torture by private actors

violates international law), with Kadic v.

Karddzic, 70 F.3d 232, 239-241 (C.A.2

1995) (sufficient consensus in 1995 that

genocide by private actors violates

international law).

Sosa, 542 U.S. at 732 n.20. In light of the structure of

international law, it makes perfect sense to ask

“whether international law extends the scope of

liability for a violation of a given norm to the

12

perpetrator being sued.” Jd. (emphasis added). Each

norm of customary international law has a different

content and scope, and some norms may apply to some

actors and not to others. It makes no sense, however,

to ask, as the Second Circuit majority did in Kiobel,

whether there is a general “norm of corporate liability

under customary international law.” Kiobel, 621 F.3d

at 131. Customary international law “does not contain

general norms of liability or non-liability applicable to

categories of actors.” William S. Dodge, Corporate

Liability Under Customary International Law, 43 Geo.

J. Int'l L. 1045, 1046 (2012).

Customary international law does, by contrast,

contain doctrines of immunity. For example, the

International Court of Justice has concluded, after

careful review of state practice, that customary

international law “require[s] that a State be accorded

immunity in proceedings for torts allegedly committed

on the territory of another State by its armed forces

and other organs of the State in the course of

conducting an armed conflict.” Jurisdictional

5’ Customary international law does contain rules governing

the responsibility of states for internationally wrongful acts. See

Draft Articles on the Responsibility of States for Internationally

Wrongful Acts, Report of the International Law Commission on

the work of its fifty-third session, 19 U.N. GAOR Suppl. No. 10,

U.N. Doc. A/66/10 (2001), reprinted in [2001] Y.B. Int’] L. Comm’n

26, U.N. Doc. A/CN.4/SER.A/2001/Add. 1. However, these rules

do not apply to actors other than states. Jd. General Commentary

(4)(d) (“The articles are concerned only with the responsibility of

States for internationally wrongful conduct, leaving to one side

issues of the responsibility of international organizations or of

other non-State entities.”).

13

Immunities of the State (Germ. v. It.), 2012 1L.C.J. 97,

135 (Feb. 3). But doctrines of immunity do not affect

the applicability of substantive law. To the contrary,

the ICJ has made clear that “rules of State immunity

are procedural in character” and “do not bear upon the

question whether or not the conduct in respect of

which the proceedings are brought was lawful or

unlawful.” Jd. at 140; see also id. at 145 (“[T]he Court’s

ruling on the issue of immunity can have no effect on

whatever responsibility Germany may have.”). In any

case, corporations do not enjoy immunity from suit

under international law, much less benefit from a

general norm of non-liability that even states uo not

enjoy.®

It is clear from the examples this Court cited in

footnote 20 of Sosa that the Court was concerned not

with whether international law provides general

norms of liability and non-liability but rather with

whether particular norms apply to particular actors.

Specifically, this Court referred to the well-established

distinction between norms that sometimes apply only

to state actors and norms that apply to non-state

actors as well. Footnote 20 cited Judge Edwards’s

® The United States has chosen to grant some immunity to

state-owned corporations under the Foreign Sovereign

Immunities Act. See 28 U.S.C. § 1603(a) (defining “foreign state”

to include “an agency or instrumentality of a foreign state”).

Other states, however, have not done so. See Xiaodong Yang,

State Immunity in International Law 232-86 (2012) (discussing

diverse approaches). There is no customary international law

rule immunizing corporations from suit because, in the words of

the North Sea Continental Shelf decision, there is no “settled

practice” of states, accompanied by “a belief that this practice is

rendered obligatory by the existence of a rule of law requiring 1t.”

North Sea Continental Shelf, 1969 1.C.J. at 44.

14

concurring opinion in Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774, 791-95 (D.C. Cir. 1984), for the

proposition that the prohibition against torture

applies only to those who act with some involvement

of a state. See also Torture Convention art. 1 (defining

“torture” for purposes of the convention as pain or

suffering “inflicted by or at the instigation of or with

the consent or acquiescence of a public official or other

person acting in an official capacity”). Footnote 20 also

cited the Second Circuit’s decision in Kadic uv.

Karddzic, 70 F.3d 232, 239-41 (2d Cir. 1995), for the

proposition that prohibition against genocide applies

to all actors. See also Genocide Convention art. Il

(defining “genocide” for purposes of the convention as

“any of the following acts committed with intent to

destroy, in whole or in part, a national, ethnical, racial

or religious group”).’

While the distinction between norms that apply

only to state actors and those that also apply to non-

state actors is the most prominent modern example of

whether “a given norm” applies “to the perpetrator

being sued,” Sosa, 542 U.S. at 732 n.20, historically

other norms of customary international law were also

limited to particular actors. The law of nations with

respect to piracy, for example, considered the capture

of a ship to be lawful privateering if done by a ship

carrying a valid commission but considered it to be

piracy if done by a ship lacking such a commission. See

The Palmyra, 25 U.S. (12 Wheat.) 1, 16 (1827) (noting

7 As explained below, customary international! law prohibits

torture and genocide independently of the conventions adopted

for their enforcement. See infra Section III.B. The content and

scope of customary international law norms may vary depending

on the context in which they are applies. See supra note 4.

15

that a void commission would “render{] the exercise of

belligerent rights piratical”). The law of nations with

respect to neutrality considered the capture of a ship

to be a violation of neutrality only if the captors were

citizens of a neutral country. See Talbot v. Jansen, 3

U.S. (3 Dal.) 133, 155-56 (1795) (Patterson, J.) (noting

that, because the captor “was a citizen of the United

States,” cruising against nations at peace with the

United States “were violations of the principles of

neutrality, and highly criminal by the law of nations”).

Thus, it makes sense under international law to

ask, as this Court suggested in Sosa, whether the

“given norm{s]” that Respondent is alleged to have

violated apply to juridical persons. The United States

informed this Court in Kiobel that it was “not aware of

any international-law norm, accepted by civilized

nations and defined with the degree of specificity

required by Sosa, that requires, or necessarily

contemplates, a distinction between natural and

juridical actors.” First U.S. Kiobel Br. 20. The United

States cited as examples the norms against torture,

genocide, and war crimes, each of which prohibits

particular acts without regard to whether the

perpetrator is a natural or juridical person. Jd. at 20-

21; see also Brief of Yale Law School Center for Global

Legal Challenges as Amicus Curiae in Support of

Petitioners, Jesner v. Arab Bank, PLC (No. 16-499)

(performing norm-by-norm analysis). In the present

case, neither the district court nor the court of appeals

addressed this question because both were bound as a

matter of precedent by the Second Circuit’s mistaken

holding in Kiobel that customary international law

rejects corporate liability. If this Court determines, as

it should, that customary international law does not

categorically bar corporations from being held liable

16

for violations of human rights, amici respectfully

suggest that this Court should remand so that the

lower courts may consider in the first instance

whether the norms at issue in this case apply to

juridical persons.

lil. The Second Circuit erred by treating

limitations on particular enforcement

mechanisms for international human

rights norms as limitations on the

applicability of the norms themselves.

The Second Circuit’s misunderstanding of how

international law works not only caused it to ask the

wrong question but also to draw the wrong conclusion

from the variety of ways that states have acted to

enforce customary international law norms of human

rights. Sosa required broad international consensus

regarding the substance of a norm of customary

international law. But as the United States explained

during the first round of briefing in Kiobel,

international law does not require “an international

consensus on how to enforce a violation of [a] norm.”

First U.S. Kiobel Br. 18. Rather, it “generally leaves

the means of enforcing those substantive standards to

each state.” Id.

Because the customary international law of

human rights does not provide for its own

enforcement, states have had to develop various

enforcement mechanisms, including international

criminal tribunals, suppression conventions, and

domestic laws imposing criminal and civil liability. See

Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v.

Belg.), 2002 I.C.J. 63, 78 (Feb. 14) Goint separate

opinion of Judges Higgins, Kooijmans, and

Buergenthal) (“[T]he international consensus that the

17

perpetrators of international crimes should not go

unpunished is being advanced by a flexible strategy,

in which newly established international criminal

tribunals, treaty obligations and national courts all

have their part to play.”).8 Each of these enforcement

mechanisms has its limitations, but those limitations

are not limitations on the customary international law

norms of human rights themselves.

A. Limits on the _ jurisdiction of

international criminal tribunals are

not limits on the norms themselves.

The Second Circuit in Kiobel relied heavily on

limits circumscribing the jurisdiction of international

criminal tribunals. See Kiobel, 621 F.3d at 132-37. In

so doing, the Second Circuit majority made the

fundamental error of conflating limits on jurisdiction

with limits on substantive law. As the Solicitor

General explained during the first round of briefing

8 In the course of their joint opinion, Judges Higgins,

Kooijmans, and Buergenthal remarked that the Alien Tort

Statute represented “a very broad form of extraterritorial

jurisdiction” that “has not attracted the approbation of States

generally.” Jd. at 77. Nothing in that remark bears on the

question whether nations may hold corporations civilly liable for

violating customary international law norms. First, the judges

were writing before this Court limited the geographic scope of the

ATS cause of action in Kiobel. Second, because states are free to

provide as they see fit for the enforcement of customary

international! law in their own domestic laws, the fact that other

nations have not adopted enforcement mechanisms exactly like

the ATS is irrelevant to whether the United States may do so.

Third, nothing in the joint opinion suggests a distinction between

natural and juridical persons.

18

before this Court in Kiobel, “each international

tribunal is specially negotiated, and limitations are

placed on the jurisdiction of such tribunals that may

be unrelated to the reach of substantive international

law.” First U.S. Kiobel Br. 28.9

1. Nuremburg Tribunals. After the Second World

War, the Allied Powers established international

tribunals to try war criminals. The London Charter

established the tribunal at Nuremburg with

jurisdiction “to try and punish persons who, acting in

the interests of the European Axis countries, whether

as individuals or as members of organizations,

committed” crimes against peace, war crimes, and

crimes against humanity. Agreement for the

Prosecution and Punishment of the Major War

Criminals of the European Axis, art. 6, Aug. 8, 1945,

59 Stat. 1544, 82 U.N.T.S. 279 (London Charter). The

limits that the London Charter placed on the

jurisdiction of the Nuremburg Tribunal were not

limits on the customary international law norms that

the Charter sought to enforce. That the Nuremburg

Tribunal was given jurisdiction only over persons

“acting in the interests of the European Axis

countries” obviously does not show that the

prohibitions of customary international law did not

® A 2014 protocol amending the Statute of the African Court

of Justice and Human Rights would expressly grant that court

jurisdiction “over legal persons, with the exception of States.”

Protocol on Amendments to the Protocol on the Statute of the

African Court of Justice and Human Rights, art. 22, available at

https://www.au.int/web/sites/default/files/treaties/7804-treaty-

0046 _- protocol_on_amendments_to_the_protocol_on_the_

statute_of_the_ african_court_of_justice_and_human_ rights e.pd

f (adding Article 46C).

19

apply to other persons.!° By the same token, that the

Nuremberg Tribunal only had jurisdiction over

natural persons does not show that the prohibitions of

customary international law did not apply to juridical

persons.

Indeed, the London Charter expressly provided

that “[a]t the trial of any individual member of any

group or organization the Tribunal may declare (in

connection with any act of which the individual may

be convicted) that the group or organization of which

the individual was a member was a criminal

organization.” Jd. art. 9; see also id. art. 10 (“In cases

where a group © organization is declared criminal by

the Tribunal, the competent national authority of any

Signatory shall have the right to bring [an] individual

to trial for membership therein before national,

military or occupation courts. In any such case the

criminal nature of the group or organization is

considered proved and shall not be questioned.”).

Additional trials for crimes against peace, war

crimes, and crimes against humanity were conducted

by the Allied Powers under Control Council Law No.

10. See Control Council Law No. 10, Punishment of

Persons Guilty of War Crimes, Crimes Against Peace

and Against Humanity, in 1 Enactments and

Approved Papers of the Control Council and

Coordinating Committee, Allied Control Authority

Germany 306 (1945). None of these prosecutions were

brought against corporations directly, but the trials of

corporate executives under Control Council Law No.

10 Indeed, the Allies established a separate tribunal to try

violations of customary international law in the Far East. See

Charter of the International Military Tribunal for the Far East,

Jan. 19, 1946, amended Apr. 26, 1946, T.I.A.S. No. 1589.

20

10 leave no doubt that corporations were considered to

have violated customary international law. See, e.z.,

The Farben Case, 8 Trials of War Criminals Before the

Nuernberg Military Tribunals at 1132 (1952) (“Where

private individuals, including juristic persons, proceed

to exploit the military occupancy by acquiring private

property against the will and consent of the former

owner, such action .. . is in violation of international

law.”); id. at 1140 (finding “beyond a reasonable doubt

that offenses against property as defined in Control

Council Law No. 10 were committed by Farben”); see

also Kiobel, 621 F.3d at 180 (Leval, J., concurring)

(giving additional examples from the Krupp and Flick

cases); Brief of Amici Curiae Nuremberg Scholars in

Support of Petitioners, Jesner v. Arab Bank, PLC (No.

16-499) (discussing Nuremberg tribunals at length).

As these decisions show, limits on the jurisdiction of

these tribunals were not limits on the applicability of

customary international law.

2. Yugoslav and Rwandan Tribunals. In the wake

of widespread violations of humanitarian law in the

former Yugoslavia and Rwanda, the United Nations

Security Council established international criminal

tribunals with limited jurisdiction to prosecute these

violations. See International Criminal Tribunal for the

Former Yugoslavia Statu‘e, S.C. Res. 827, U.N. Doc.

S/RES/827 (May 25, 199%), adopting The Secretary-

General, Report Pursuant to Paragraph 2 of Security

Council Resolution 808, U.N. Doc. S/25704 (May 3,

1993), reprinted in 32 I.L.M. 1192 (CTY Statute);

Statute of the International Tribunal for Rwanda, S.C.

Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994),

reprinted in 33 1.L.M. 1598 (1994) (ICTR Statute). The

jurisdiction of the ICTY was limited to grave breaches

of the Geneva Conventions, violations of the laws or

21

customs of war, genocide, and crimes against

humanity. ICTY Statute arts. 2-5. It was further

limited to violations committed in the territory of the

former Yugoslavia since 1991. Jd. art. 1. The

jurisdiction of the ICTR was limited to genocide,

crimes against humanity, and violations of Common

Article 3 of the Geneva Conventions and of Additional

Protocol Il. ICTR Statute arts. 2-4. It was further

limited to violations committed in the territory of

Rwanda and violations committed in the territory of

neighboring states by Rwandan citizens during 1994.

Id. art. 1. The jurisdiction of each tribunal was also

limited to “natural persons.” ICTY Statute art. 6;

ICTR Statute art. 5.

The limitations of these tribunals’ jurisdiction to

natural persons does not reject the applicability of

customary international law to juridical persons, any

more than the limitations of these tribunals’

jurisdiction to certain offenses, places, and times

rejects the existence of other norms of customary

international law or that law’s applicability to other

places and times. Indeed, during the course of a trial

of three individual defendants, the ICTR specifically

found that a radio station, a newspaper, and a political

party had been responsible for genocide. See

Prosecutor v. Nahimana, Case No. ICTR 99-52-T,

Judgment § 953 (Dec. 3, 2003) (“The Chamber

therefore considers the killing of Tutsi civilians can be

said to have resulted, at least in part, from the

message of ethnic targeting for death that was clearly

and effectively disseminated through RTLM, Kangura

and CDR, before and after 6 April 1994.”). As with the

Nuremburg Tribunals, limitations on the jurisdiction

of the ICTY and ICTR did not reflect limitations on

substantive law.

22

3. Rome Statute. The same is true with respect to

limitations on the jurisdiction of the International

Criminal Court (ICC). The Rome Statute established

a permanent International Criminal Court with

jurisdiction over genocide, crimes against humanity,

and war crimes (and later the crime of aggression).

Rome Statute of the International Criminal] Court art.

5, July 17, 1998, 2187 U.N.T.S. 90 (Rome Statute). The

ICC is intended to “be complementary to national

criminal! jurisdictions.” Jd. art. 1. This means that a

case will be considered inadmissible if a state is able

and willing genuinely to carry out the investigation or

prosecution. Jd. art. 17. It is in part for this reason that

the drafters of the Rome Statute limited the ICC’s

jurisdiction to natural persons. See id. art 25(1).

Extending jurisdiction to juridical persons would have

posed significant complementarity problems for those

legal systems that do not recognize criminal liability

for juridical persons. See Micaela Frulli, Jurisdiction

Ratione Personae, in The Rome Statute of the

International Criminal Court: A Commentary 527,

532-33 (Antonio Cassese et al. eds. 2002) (“There is no

uniformity whatsoever among the different national

systems on the issue of the criminal liability of

juridical persons and this lack of a common approach

could affect the full functioning of the principle of

complementarity, one of the cornerstones of the ICC.”).

These limitations on the jurisdiction of the ICC do

not reflect limits on the substantive norms of

customary international law. That the ICC’s

jurisdiction is limited to only a few norms of customary

international, see Rome Statute art. 1, does not show

23

that other norms do not exist... That the ICC’s

jurisdiction is limited to crimes committed after the

Statute’s entry into force, see id. art. 11, does not show

that crimes committed before that time do not violate

customary international law. That the ICC’s

jurisdiction is limited to persons over 18, see id. art.

26, does not mean that customary international law is

inapplicable to persons under 18. By the same logic,

that the ICC’s jurisdiction is limited to natural

persons, id. art. 25(1), does not mean that customary

international law norms of human rights do not apply

to juridical persons.

B. Obligations to prosecute or extradite

natural persons in suppression

conventions do not imply that the

norms are limited to natural persons.

Another mechanism that states collectively have

adopted to enforce customary international law norms

of human rights are suppression conventions, which

typically require their parties to prohibit violations of

such norms in their domestic laws and to prosecute or

extradite those who violate them. See Restatement

(Fourth) of Foreign Relations Law of the United

States: Jurisdiction § 217, Reporters’ Note 2 (Tent.

Draft No. 2, Mar. 22, 2016) (listing a number of

suppression conventions). Because of the nature of the

enforcement obligations they impose—to prosecute or

to extradite—these conventions are often limited to

natural persons. But limitations on the treaty

1! To make this point absolutely clear, Article 10 provides:

“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.” Rome

Statute art. 10.

24

obligations of states under these conventions are not

limitations on the customary international law norms

they are intended to enforce.

The first modern suppression convention was the

Genocide Convention. The International Court of

Justice has long held that genocide is prohibited by

customary international law independently of the

Convention. See Reservations to the Convention on the

Prevention and Punishment of the Crime of Genocide,

Advisory Opinion, 1951 I.C.J. 15, 23 (May 28) (noting

that “the principles underlying the [Genocide]

Convention are principles which are recognized by

civilized nations as binding on States, even without

any conventional obligation”). In a later case, the

International Court of Justice made it clear that

genocide could be committed by entities as well as by

natural persons. See Application of Convention on

Prevention and Punishment of Crime of Genocide

(Bosn. & Herz. v. Serb. & Montenegro), 2007 1.C.J. 43,

205 (Feb. 26) (referring to “persons or entities that

committed the acts of genocide at Srebrenica”).

To enforce the customary international law norm

against genocide, the parties to the Genocide

Convention agreed to enact “the necessary legislation

... to provide effective penalties for persons guilty of

genocide or any of the other acts enumerated in article

Ill [conspiracy, incitement, attempt, and complicity].”

Genocide Convention art. V. The parties further

agreed that genocide and the other acts “shall not be

considered as political crimes for the purpose of

extradition” and “to grant extradition in accordance

with their laws and treaties in force.” Jd. art. VII.

Because the Genocide Convention obligates states to

impose criminal punishment and to grant extradition,

25

Article IV of the Convention logically refers to natural

persons. Jd. art. [V (“Persons committing genocide or

any of the other acts enumerated in article III shall be

punished, whether they are constitutionally

responsible rulers, public officials or private

individuals.”). But Article IV simply reflects a

limitation on the obligations imposed under the

Convention—obligations to impose criminal

punishment and to extradite—not on the norm against

genocide itself.

A more recent suppression convention is the

Torture Convention. The General Assembly

Resolution adopting the Torture Convention makes

clear that torture violates customary international

law independently of the Convention, the purpose of

which was to “achievie] a more effective

implementation of the existing prohibition under

international and national law of the practice of

torture and other cruel, inhuman or degrading

treatment or punishment/|.]” G.A. Res. 39/46, pmbl.,

U.N. Doc. A/Res/39/46 (Dec. 10, 1984) (emphasis

added).

To enforce the customary international law norm

against torture more effectively, the Torture

Convention requires its parties to “ensure that all acts

of torture are offences under its criminal law,” Torture

Convention art. 4(1), and to “make these offences

punishable by appropriate penalties which take into

account their grave nature,” id. art. 4(2). The Torture

Convention further requires its parties either to

extradite, id. art. 8, or to prosecute, id. art. 7, any

person alleged to have committed torture who is

present within any territory under ‘ts jurisdiction. The

text describing some of these obligations refers to a

26

person alleged to have committed torture with the

word “him.” See, e.g., id. art. 7(1) (“The State Party in

the territory under whose jurisdiction a person alleged

to have committed any offence referred to in article 4

is found shall in the cases contemplated in article 5, if

it does not extradite him, submit the case to its

competent authorities for the purpose. of

prosecution.”). To the extent references to natural

persons limit the obligations of the Convention’s

parties to natural persons,!2 however, such references

limit only the parties’ treaty obligations. Such

references do not, and could not, limit the scope of the

customary international law norm prohibiting torture.

C. Nations are free to enforce

international human rights norms by

creating criminal and civil liability

under their domestic laws.

Although suppression conventions require states

to enact domestic laws enforcing customary

international law norms, and the complementarity

system of the International Criminal Court

encourages them to do so, states are free to go beyond

their treaty obligations and to create additional

criminal and civil enforcement mechanisms in their

own domestic laws. As the United States noted in its

first brief in Kiobel: “Until the twentieth century,

domestic law and domestic courts were the primary

12 Other obligations under the Torture Convention contain

no express reference to natural persons. Article 14(1), for

example, provides: “Each State Party shall ensure in its legal

system that the victim of an act of torture obtains redress and

has an enforceable right to fair and adequate compensation,

including the means for as full rehabilitation as possible.”

Torture Convention art. 14(1).

27

means of implementing customary international law.”

First U.S. Kiobel Br. 31. The development of

international criminal tribunals and suppression

conventions during the twentieth century has not

displaced the role of domestic law and domestic courts.

See Arrest Warrant of 11 April 2000, 2002 I.C.J. at 78-

79 (Goint separate opinion of Judges Higgins,

Kooijmans, and Buergenthal) (“We reject the

suggestion that the battle against impunity is ‘made

over to international treaties and tribunals, with

national courts having no competence in such

matters.”).

1. A number of states have criminalized certain

violations of fundamental human rights in ways that

go beyond their treaty obligations. The Rome Statute

does not require its parties to prohibit genocide, crimes

against humanity, and war crimes in their domestic

laws, but its system of complementarity encourages

states to do so because a prosecution at the ICC is

inadmissible if a state is able and willing to carry out

the prosecution. See Rome Statute art. 17. A large

number of states have therefore adopted national

complementarity legislation making genocide, crimes

against humanity, and war crimes criminal offenses

under their domestic laws. See The Coalition for the

International Criminal Court, 2013 Status of the

Rome Statute Around the World 9, available ai

http://www.iccnow.org/documents/RomeStatuteU pdat

e_2013_web.pdf (reporting that, as of 2013, “59

countries, including those who are not states parties of

the Rome Statute, have national complementarity

legislation and an additional 23 countries have partial

legislation in place. In addition, 38 nations are in the

process of enacting national complementarity

legislation.”); Library of Congress, Multinational

28

Report: Crimes Against Humanity Statutes and

Criminal Code Provisions (2010), available at

https://loc.gov/law/help/crimes-against-humanity

/crimes-against-humanity.pdf (reviewing laws in 52

jurisdictions).

Significantly, in adopting criminal legislation, a

number of states have gone beyond what would be

necessary to implement even the Rome Statute’s

system of complementarity. In particular, although

the ICC has jurisdiction only over natural persons, see

Rome Statute art. 25(1), a number of states have

applied their criminal prohibitions against genocide,

crimes against humanity, and war crimes to juridical

persons. See Robert C. Thompson, Anita Ramasastry

& Mark B. Taylor, Translating Unocal: The

Expanding Web of Liability for Business Entities

Implicated in International Crimes, 40 Geo. Wash.

Int'l L. Rev. 841, 871 (2009) (noting that “Australia,

Belgium, Canada, France, India, the Netherlands,

Norway, and the United Kingdom .. . make it a

general practice to recognize no distinction between

natural and legal persons, thus giving [international

criminal law] a wider reach at the domestic level”).

For example, in 2001 the United Kingdom adopted

its International Criminal Court Act, which made the

Rome Statute’s three original offenses punishable

under domestic law. International Criminal Court Act,

2001, c. 17, § 51 (U.K.). Under U.K. law, “unless a

contrary intent appears,” the word ““person’ includes a

body of persons corporate or unincorporated.”

Interpretation Act, 1978, c. 30, § 5, sch. 1 (U.K.).

Because the United Kingdom did not exempt

corporations from the International Criminal Court

Act, its criminal! prohibitions apply to them. Indeed, in

29

its first Kiobel brief filed with the Netherlands—a

brief arguing that customary international law did not

directly impose liability on corporations—the

Government of the United Kingdom acknowledged

that “some countries, when incorporating the Rome

Statute into their domestic law, imposed criminal

liability on legal persons for the group of crimes

included in the Rome Statute.” Brief of the

Governments of the United Kingdom of Great Britain

and Northern Ireland and the Kingdom of the

Netherlands as Amici Curiae in Support of the

Respondents 20, Kiobel v. Royal Dutch Petroleum Co.,

133 S. Ct. 1659 (2013); see also First U.S. Kiobel Br. 29

(noting that “several countries (including the United

Kingdom and the Netherlands) that have incorporated

the Rome Statute’s three crimes . . . into their domestic

jurisprudence themselves impose criminal liability on

corporations and other legal offenses for such

offenses”). International law does not require the

United Kingdom and other countries to extend

criminal liability to corporations for violating

customary international law norms of human rights.

But international law certainly permits them to do so.

2. A number of states also provide civil liability for

certain violations of fundamental human rights in

ways that go beyond their treaty obligations.

Suppression conventions typically require states to

provide only criminal sanctions in their domestic

laws,'* but a large number of states permit the victim

of a crime to append a claim for civil compensation to

a criminal proceeding in an action commonly known as

an action civile. See Brief of the European Commission

—

13 Article 14 of the Torture Convention is an exception to this

general practice. See supra note 12.

30

on Behalf of the European Union as Amicus Curiae in

Support of Neither Party 18 n.48, Kiobel v. Royal

Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (“Such

proceedings are available in Austria, Belgium,

Denmark, Finland, France, Germany, Greece, Italy,

Luxembourg, the Netherlands, Poland, Portugal,

Romania, Spain, and Sweden.”); Restatement (Fourth)

of Foreign Relations Law of the United States:

Jurisdiction § 211, Reporters’ Note 5 (Tent. Draft No.

2, Mar. 22, 2016) (additionally listing Argentina,

China, Ghana, and Russia); see also Sosa, 542 U.S. at

762-63 (Breyer, J., concurring) (noting that “the

criminal courts of many nations combine civil and

criminal proceedings”). International law generally

does not require states to provide civil liability for

violations of customary international law norms of

human rights. But international law certainly permits

them to do so.

3. The United States has a number of statutes

providing criminal and civil liability for violations of

customary international law. To implement the

Genocide Convention and the Torture Convention,

Congress has made genocide and torture criminal

offenses. See 18 U.S.C. § 1091 (criminalizing

genocide); 18 U.S.C. § 2340A (criminalizing torture).

Congress has also criminalized slavery, 18 U.S.C. §§

1583-1584, as required by the Slavery Convention.

Convention to Suppress the Slave Trade and Slavery,

art. 6, Sept. 25, 1926, 46 Stat. 2183, 2191, 60 L.N.T.S.

253. But Congress also has criminalized violations of

customary international law in the absence of a treaty

obligation. See 18 U.S.C. § 1651 (criminalizing piracy).

Each of these federal criminal statutes applies to both

natural and juridical persons. See 1 U.S.C. § 1

(providing that the word “whoever” includes

31

“corporations, companies, associations, firms,

partnerships, societies, and joint stock companies, as

well as individuals”).

In some instances, Congress has provided civil

liability for violations of customary international law.

The Torture Victim Protection Act, 28 U.S.C. § 1350

note (TVPA), makes natural persons civilly liable for

torture and extrajudicial killing under color of foreign

law. See Mohamad v. Palestinian Authority, 566 U.S.

449 (2012) (holding that only a natural person can be

held liable under the TVPA). In providing a civil

remedy for extrajudicial killing, Congress went beyond

its obligations under the Torture Convention, which

does not cover extrajudicial killing. Congress has also

provided a private right of action under the Foreign

Sovereign Immunities Act against state sponsors of

terrorism and their officials “for personal injury or

death caused by [an act of torture, extrajudicial

killing, aircraft sabotage, or hostage taking].” 28

U.S.C. § 1605A(c). And Congress has provided a civil

remedy for victims of slavery, 18 U.S.C. § 1595, which

extends to anyone who violates the federal criminal

prohibitions including juridical persons as discussed

above.

In short, just as other nations have gone beyond

the strict scope of their treaty obligations to provide

additional enforcement of customary international law

norms against natural and juridical persons under

their domestic laws, so too the United States has gone

beyond its treaty obligations to provide additional

enforcement of customary international law norms

against natural and juridical persons under its

domestic law. In doing so, the United States is not

bound to follow the patterns established by other

32

nations. Nor are other nations bound to follow the

patterns established by the United States. Beyond the

obligations that states have adopted by treaty,

international law leaves each state free to decide how

to enforce customary international law norms within

its own legal system.

4. Despite the advent of international criminal

tribunals and suppression conventions, the domestic

laws of individual states remain an important

mechanism for enforcing customary international law

norms of human rights. In providing for criminal or

civil liability under domestic laws, states must of

course observe customary international law

limitations on jurisdiction to prescribe. See

Restatement (Fourth) of Foreign Relations Law of the

United States: Jurisdiction §§ 211-217 (Tent. Draft

No. 2, Mar. 22, 2016) (describing customary

international law governing jurisdiction to prescribe).

Under the principle of universal jurisdiction, states

may have jurisdiction to prescribe violations of human

rights norms “even if no specific connection exists

between the state and the persons or conduct being

regulated.” Id. § 217. In many cases, a _ specific

connection will provide an additional basis for

jurisdiction to prescribe, like Respondent’s conduct in

the United States in this case. See id. § 212

(“International law recognizes a state’s jurisdiction to

prescribe law with respect to persons, property, and

conduct within its territory.”). Within those

limitations, however, states are free under

international law to enforce applicable norms of

human rights in a wide variety of ways.

The Second Circuit drew the wrong lesson from

the variety of state enforcement practices in Kiobel. It

33

looked at this variety and concluded that, because

there was no consensus about how customary

international law norms of human rights should be

enforced, international law therefore prohibited their

enforcement against corporations. Kiobel, 621 F.3d at

149 (observing that “[t]he concept of corporate liability

for violations of customary international law has not

achieved universal recognition or acceptance”). The

proper lesson is quite the opposite. That states have

acted in a variety of ways to enforce customary

international norms of human rights shows that

international law permits states to enforce those

norms against any actor subject to the norm in

whatever ways are consistent with its own legal

traditions.

In 1789, the First Congress decided that aliens

should be able to seek recovery in tort for violations of

the law of nations. In Sosa, this Court gave effect to

that decision by recognizing a federal-common-law

cause of ac.ion for a limited number of modern

customary international law norms. Allowing claims

against juridical persons, as well as natural persons,

for the violations of those norms is a choice that

international law permits the United States to make.

The Second Circuit’s conclusion to the contrary is

based on a fundamental misunderstanding of

international law.

CONCLUSION

The judgment of the court of appeals should be

reversed.

34

Respectfully submitted,

WILLIAM S. DODGE

Counsel of Record

400 Mrak Hall Drive

Davis, CA 95616

(530) 752-1910

wsdodge@ucdavis.edu

June 2017

la

APPENDIX

LIST OF AMICI"

Thomas Buergenthal is Lobingier Professor

Emeritus of Comparative Law and Jurisprudence at

The George Washington University Law School. From

2000 to 2010, he was a judge on the International

Court of Justice. He has also served as a member of

the U.N. Human Rights Committee and as a judge on

the Inter-American Court of Human Rights.

Douglass Cassel is Professor of Law and Notre

Dame Presidential Fellow at Notre Dame Law School.

A former member of the Executive Council of the

American Society of International Law, he has served

as an advisor on international human rights law to the

United Nations, the Organization of American States,

and the U.S. Department of State.

Sarah H. Cleveland is Louis Henkin Professor of

Human and Constitutional Rights at Columbia Law

School. She is a member of the U.N. Human Rights

Committee and a coordinating reporter for the

American Law Institute’s Restatement (Fourth) of

Foreign Relations Law of the United States. From 2009

to 2011, she served as Counselor on International Law

to the Legal Adviser at the U.S. Department of State.

Lori Fisler Damrosch is Hamilton Fish Professor

of International Law and Diplomacy at Columbia Law

School. She served as Co-Editor in Chief of the

American Journal of International Law from 2003 to

14 Affiliations listed for purposes of identification only.

2a

2013 and as President of the American Society of

International Law from 2014 to 2016.

William S. Dodge is Martin Luther King, Jr.

Professor of Law at the University of California, Davis,

School of Law. He is a co-reporter of the American Law

Institute’s Restatement (Fourth) of Foreign Relations

Law of the United States. From 2011 to 2012, he served

as Counselor on International Law to the Legal

Adviser at the U.S. Department of State.

Richard J. Goldstone is a retired Justice of the

Constitutional Court of South Africa. From 1991 to

1994, he served as Chairperson of the South African

Commission of Inquiry Regarding Public Violence and

Intimidation (Goldstone Commission). 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.

Saira Mohamed is Professor of Law at the

University of California, Berkeley, Schoo] of Law. She

previously served as Senior Advisor in the Office of the

U.S. Special Envoy for Sudan and as an Attorney-

Adviser in the Office of the Legal Adviser at the U.S.

Department of State.

Gerald L. Neuman is J. Sinclair Armstrong

Professor of International, Foreign, and Comparative

Law at Hervard Law School. He is an advisor to the

American Law Institute’s Restatement (Fourth) of

Foreign Relations Law of the United States. From 2011

to 2014, he was a member of the U.N. Human Rights

Committee.

3a

Bernard H. Oxman is Richard A. Hausler

Professor of Law at the University of Miami School of

Law. A former Assistant Legal Adviser of the U.S.

Department of State, he served as Co-Editor in Chief

of the American Journal of International Law from

2003 to 2013, and as judge ad hoc of both the

International Court of Justice and the International

Tribunal for the Law of the Sea.

Steven R. Ratner is Bruno Simma Collegiate

Professor of Law at the University of Michigan Law

School. He is an advisor to the American Law

Institute’s Restatement (Fourth) of Foreign Relations

Law of the United States. He has served in the legal

division of the International Committee of the Red

Cross and as an Attorney-Adviser at the U-‘S.

Department of State.

Ralph G. Steinhardt is Arthur Selwyn Miller

Research Professor of Law at The George Washington

University Law School. He serves on the Expert Legal

Panel on Corporate Complicity in International

Crimes established by the International Commission

of Jurists.