David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights—Law, Policy, and Process (3d ed. 2001)
Supplement to Chapter
14: U.S. Adjudicative Remedies for Violations Occurring Outside the U.S.
(October 22, 2002)
Section C (1)(at 763-80): Alien Tort Litigation—Jurisdiction
In Correctional Services Corp. v. Malesko, 122 S. Ct. 515 (2001), the United States Supreme Court held, 5 to 4, that there was no implied right of action, pursuant to Bivens v. Six Unknown Named FBI Agents, 403 U.S. 388 (1971), for damages against private entities that allegedly engaged in unconstitutional conduct while acting under color of federal law. 
The book pointed out that the draft convention for recognition and enforcement of foreign court judgments has a provision allowing a court of a nation state to exercise jurisdiction over an alien for certain international human rights violations (e.g., genocide, a crime against humanity) occurring in another country. (Weissbrodt, Fitzpatrick & Newman, International Human Rights—Law, Policy, and Process at 774-75 (3d ed. 2001).  Information about the status of the draft convention is available on the Hague Conference’s web site: http://www.hcch.net/e/workprog/jdgm.html. The views of the U.S. State Department on the draft convention are also available on the web: Testimony of Jeffrey D. Kovar, Assistant Legal Adviser for Private International Law, U.S. Department of State, before Subcommittee on Courts and Intellectual Property, Committee on Judiciary, U.S. House of Representatives (June 29, 2000), http://www.state.gov/documents/organization/6846.doc
Section C (2) (at 781-794): International Rules Governing Rape and Forced Eviction
1. Unocal and Total litigation.
The book noted that some plaintiffs have sued private corporations under the ATCA for human rights abuses abroad. (Weissbrodt, Fitzpatrick & Newman, International Human Rights—Law, Policy, and Process at 790-91 (3d ed. 2001).) Three of the cited decisions involved oil companies (Unocal Corporation and Total S.A.) that were sued for alleged participation in human rights abuses in Myanmar (Burma). There have been further developments in that litigation.
In Doe v. Unocal, the district court dismissed the complaint against one of the corporate defendants (Total) for lack of personal jurisdiction, 27 F. Supp. 2d 1174 (C.D. Cal. 1998). The Ninth Circuit, per curium, affirmed the dismissal on the basis of the lower court’s opinion. (Doe v. Unocal Corp., 2001 U.S. App. LEXIS 7691 (9th Cir. April 27, 2001).)
In Doe v. Unocal, 110 F. Supp. 2d 1294 (C.D. Cal. 2000), the district court granted summary judgment to the other corporate defendant (Unocal Corp.) on ATCA claims. This was based on the court’s conclusion that the plaintiffs had failed to provide evidence that the corporate defendant was the equivalent of a state actor because there was no evidence that the corporation had participated in or influenced the Burmese military’s unlawful conduct or had conspired with the military to commit same or that it had controlled the military’s decision to commit the alleged tortious acts. In the course of reaching this decision, however, the court held that the ATCA (28 U.S.C. § 1350) provided subject matter jurisdiction and a cause of action. (Id. at 1303.) This Act refers to “the law of nations,” which the court said, was found in juridical writings on public law, the general practice of nations and case law recognizing and enforcing international law. (Id. at 1304.) In addition, the court suggested, but did not hold, that in light of 9th Circuit precedents, only jus cogen norms were actionable. (Id.) 
On September 18, 2002, the Ninth Circuit reversed the grant of summary judgment to Unocal on the ATCA claims for forced labor, murder and rape, but sustained the dismissal of the ATCA claims for torture and the RICO claims. (Doe v. Unocal Corp., 2002 WL 31063976 (9th Cir. 2002).  According to the court, the threshold issues for an ATCA case were (a) whether the alleged tort is a violation of the law of nations; (b) whether the alleged tort requires the private party to engage in state action; and (c) whether the private party in fact engaged in such conduct. (Id. at 8-9.) In the instant case, the alleged tort (forced labor or a variant of slavery), the court held, did not require state action. (Id. at 9-10.) Once these threshold requirements were satisfied, the court held that international law was the applicable law for determining aiding and abetting liability  and that under such law, the standard for such liability was “knowing practical assistance or encouragement that has a substantial effect on the perpetration of the” wrong. (Id. at 10-15.) Finally, the Ninth Circuit held that the Act of State Doctrine did not bar the action. Important in this regard was its conclusion that maintaining the suit would not adversely affect U.S. foreign relations because the Government already had denounced Myanmar’s human rights abuses and because the Government had so advised the court at the dismissal stage. (Id. at 20-21.)
Earlier the federal district court in Doe v. Unocal, 110 F. Supp. 2d at 1311-12, remanded the state law claims to California state court. Recently the state court denied Unocal’s dismissal motion, deciding that Unocal may be liable under California state law of vicarious liability of joint venture partners and that the case should proceed to trial. (See Waldman, Unocal Will Stand Trial Over Myanmar Venture, Wall S. J., June 11, 2002; Reuters, Unocal to Face Suit on Human Rights, New York Times, June 12, 2002; Girion, Judge Oks Unocal Abuse Lawsuit, L.A. Times, June 12, 2002.) More recently, however, the state court granted Unocal’s motion to solicit the opinion of the U.S. Government on letting the suit go forward, and it is anticipated that the Government will say that the suit will prejudice U.S. foreign relations, just as it did in the ExxonMobil case discussed below. (See Waldman & Mapes, White House Sets News Hurdles For Suits Over Rights Abuses, Wall S. J., Aug. 8, 2002; Efron, Judge Lets Unocal Ask State Dept. to Intervene in Myanmar Lawsuit, L.A. Times, Aug. 9, 2002.) Even if the Government submits such an opinion, the state court may decline to dismiss the case in reliance on the Ninth Circuit’s recent rejection of such an argument that was just discussed.
2.Exxon Mobil litigation.
In the meantime, another case against an oil company (Exxon Mobil Corp.) for alleged participation in human rights abuses in Indonesia proceeds in the U. S. District Court for the District of Colombia. In connection with a motion to dismiss the complaint, the U.S. Government advised the court that the suit could damage relations with Indonesia and “impair cooperation with the U.S. across the full spectrum of diplomatic initiatives, including counterterrorism.” Some U.S. Senators and Congresspersons, however, warned the State Department that such intervention by the Government in this case would send the wrong message of impunity for human rights abuses. As of September 24, 2002, the dismissal motion was still pending. (See Docket Sheets, Doe v. ExxonMobil Corp., No. 01-CV-1357 (D.C.D.C.); Letter, Legal Advisor, State Dep’t to District Court, July 29, 2002, http://www.laborrights.org; Mapes, Rights Suit May Undermine War on Terror, U.S. Warns, Wall S. J., Aug. 7, 2002; Waldman & Mapes, White House Sets News Hurdles For Suits Over Rights Abuses, Wall S. J., Aug. 8, 2002; Perlez, U.S. Backs Oil Giant on Lawsuit in Indonesia, New York Times, Aug. 8, 2002; Editorial, Oily Diplomacy, New York Times, Aug. 19, 2002; McGrory, Powell’s Awkward Position, Washington Post, Aug. 29, 2002, at A31; Letter, to Secretary of State Powell from Amnesty Int’l and 12 other groups, Aug. 26, 2002, www.stopexxonmobil.org/statis/SEMletter_powell.html.)) 
Query whether Correctional Services Corp. v. Malesko, supra, will undermine the decisions allowing suits against private entities under the ATCA?
Section E (at 818-22): Torture Victims Protection Act Litigation
Cases against Salvadoran Generals.
There have been two TVPA cases against two Salvadoran Generals that have gone to trial in federal court in West Palm Beach, Florida. In the first case, the jury returned a verdict in favor of the generals. In the second, a verdict for the plaintiffs. (See Justice & The Generals/PBS, http://www.pbs.org/wnet/justice (public television program about the cases accompanied by web site with additional information about the program, El Salvador history and U.S. law).)
Ford v. Garcia. As the book mentioned, in November 2000 a jury in a Florida federal court rendered a verdict for defendant Salvadoran generals in Ford v. Garcia, an action by the heirs of the four American church women who were raped and murdered in El Salvador in December 1980. (See Weissbrodt, Fitzpatrick & Newman, International Human Rights—Law, Policy, and Process at 822 (3d ed. 2001).) The trial exhibits included the report of the El Salvador Truth Commission, other investigative reports and declassified cables from U.S. Ambassador White to the U.S. State Department. Trial witnesses included Mr. White, a former investigator for the Inter-American Commission on Human Rights and the two defendants. The jurors indicated that they thought they did not have enough evidence that the generals were able to exercise authority over subordinates. (See Eviatar, Following the Blood, American Lawyer, Jan. 2001, at 83.)
On appeal in the Ford case, the Eleventh Circuit affirmed. (Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002).) Because there was no objection at trial to the command responsibility jury instruction, the appellate court reviewed same only for plain error. Finding no such plain error, the court held that legislative history made clear that Congress intended to adopt the doctrine of command responsibility from international law and that the essential elements of liability under that doctrine were (i) the existence of a superior-subordinate relationship between the commander and the perpetrator; (ii) the commander knew or should have known that the subordinate was committing or planned to commit war crimes; and (iii) the commander failed to prevent the crimes or failed to punish the subordinate for same. This conclusion, said the court, was based upon In re Yamashita, 327 U.S. 1 (1946), ICTY and ICTR precedents and Article 28 of the ICC Statute. In addition, the court held that plaintiffs had waived any objection to the related instruction on proximate causation, but Judge Barkett in a concurring opinion stated that the proximate causation instruction was erroneous and should be reviewed.
Arce v. Garcia. More recently another Florida federal court jury, after 20 hours of deliberation, rendered a $54.6 million verdict for other plaintiffs against the same Salvadoran generals under the TVPA. After denial of their post-trial motions, the defendants appealed. (Arce v. Garcia, Civil Action No. 99-8364 (S.D. Fl.), on appeal, No. 02-14427-F (11th Cir.).) The plaintiffs were four Salvadorans who claimed they were detained and tortured by members of the Salvadoran National Guard, National Police and Military in the early 1980’s during the Salvadoran Civil War. (See Gonzalez, Victim Links Retired General to Torture in El Salvador, New York Times, June 25, 2002; Gonzalez, Ex-Envoy Faults Salvador Army Over Torture, New York Times, June 26, 2002; Reuters, Salvadoran Says Police Tortured Prisoners, New York Times, June 28, 2002; Gonzalez, Torture Victims in El Salvador Are Awarded $54 Million, New York Times, July 24, 2002; Roig-Franzia, Torture Victims Win Lawsuit Against Salvadoran Generals, Washington Post, July 24, 2002, at A1; Kinzer, U.S. and Central America: Too Close for Comfort?, New York Times, July 28, 2002; McClintock, A Glimmer of Justice for El Salvador, amnesty now, Fall 2002, at 12.)
The Arce case is also instructive on how to prove under the TVPA that defendant superior officials had knowledge of human rights abuses by their subordinates. One of the plaintiffs’ witnesses in Arce was Michael McClintock, who was a researcher at Amnesty International during the period in question. He testified to its practice of Urgent Actions to solicit letters to government officials about human rights abuses in their countries, its Urgent Actions about El Salvador and a response to one of the letter writers from one of the defendants thanking him for his interest. (McClintock, A Glimmer of Justice for El Salvador, supra.) This experience suggests that organizations like Amnesty International should keep good records of its requests for letters to be sent to government officials and should develop a practice of keeping copies of such letters or urging the authors of the letters to keep copies.
Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002). This was an action by four Muslim refugees from Bosnia-Herzegovina against a former Bosnian Serb soldier who was now a resident of the State of Georgia. After appearing in the action, the defendant failed to appear at trial, thereby causing the court to declare him in default and to strike his answer. On the basis of a day-and-a half bench trial, the court entered judgment for the plaintiffs of compensatory and punitive damages totaling $140 million. The court concluded that under the ATCA and TVPA, the defendant was liable for torture and that under the ATCA, the defendant was liable for arbitrary detention, war crimes, crimes against humanity, genocide and aiding and abetting such wrongs by others. (Id. at 1344-56.) In an unusual twist, the court applied Georgia common law of assault and battery, false imprisonment, intentional infliction of emotional distress and conspiracy to commit said torts to conduct that occurred in Bosnia-Herzegovina; the latter’s law was shown not to differ significantly with Georgia law. (Id. at 1357-58.)
Cabello Barrueto v. Fernandez Larios, 205 F. Supp. 3d 1325 (S.D. Fla. 2002). Survivors of a Chilean official sued a former Chilean military officer under the ATCA and TVPA, alleging extrajudicial killing, torture, crimes against humanity and cruel, inhuman or degrading punishment. Denying a motion to dismiss for failure to state a claim, the court held that the ten-year TVPA statute of limitation was tolled by the military’s deliberate concealment from plaintiffs of the decedent’s burial location and the accurate cause of death. (Id. at 1330-31.) In addition, the court held that under customary international law, an individual was liable for conspiring in, or aiding and abetting, the violations of international law by others. (Id. at 1331-33.)
Schneider v. Kissinger. On September 10, 2001, a civil lawsuit was started in the U.S. District Court for the District of Colombia against Henry Kissinger, former U.S. Secretary of State, and Richard Helms, former CIA Director, for alleged involvement in the assassination 31 years ago of a Chilean military commander in Chile. The lawsuit, which allegedly is based on recently declassified CIA documents, claims that the U.S. targeted Rene Schneider, the head of Chile’s Armed Forces and an ally of Salvador Allende, because Schneider was standing in the way of the coup whereby General Pinochet took power. (Miller, Family of Slain Chilean Sues Kissinger, Helms, Washington Post, Sept. 11, 2001; Schneider v. Kissinger, 01-CV-1902 (D. C. Dist. Ct.). As of August 30, 2002, defendants’ dismissal motion was still pending. In the meantime, the court denied plaintiffs’ motion, pursuant to 36 C.F.R. § 1275.34, to obtain access to Henry Kissinger transcripts at the National Archives and Records Administration. (See Docket Sheets, Schneider v. Kissinger, supra.)
Harbury v. Deutsch. In March 1992 Efraín Bámaca Velásquez was a member of a Guatemalan guerrilla group that sought to overthrow the government. He disappeared. Over the next three years, his U.S. wife, Jennifer Harbury, endeavored to find out what had happened to her husband, and the case obtained some notoriety. In March 1995 a U.S. Senator announced that Velásquez had been killed at the order of a CIA “asset.” (Weissbrodt, Fitzpatrick & Newman, International Human Rights—Law, Policy, and Process, 555-56 (3d ed. 2001).)
a. Harbury v. Deutsch in the District Court
Harbury then sued on her own behalf and as administratrix of her husband’s estate officials of the CIA, U.S. State Department and the National Security Council (“NSC”). She sought, among other things, damages for alleged deprivation of her husband’s Fifth Amendment due process rights, violation of her right to familial association and interference with her right of access to the U.S. courts. These claims were based upon two broad allegations. First, CIA officials allegedly knowingly engaged in, directed, collaborated and conspired in her husband’s secret imprisonment, torture and extrajudicial murder. Second, NSC and State Department officials, while Bámaca was still alive, allegedly told her that they were investigating the whereabouts and status of her husband, but had discovered nothing even though they allegedly knew that her husband was alive and being tortured by CIA “assets.” In addition, after his death, these officials continued falsely to tell her that he was alive and that they were investigating the issues. (Harbury v. Deutsch, 233 F.3d at ___.)
The District Court for the District of Colombia dismissed the complaint on the grounds that there was no allegation of constitutional right violations and that the defendants were entitled to qualified immunity.
b. Harbury v. Deutsch in the Court of Appeals (Merits Decision).
On December 12, 2000, the Court of Appeals for the District of Colombia affirmed the dismissal of the Fifth Amendment and familial association claims, but reversed on the access to the courts claim. (Id.)
The governing principles for this case, held the Court of Appeals, had been established by the Supreme Court. “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).) “A court evaluating a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.” (Wilson v. Layne, 526 U.S. 603, 609 (1999).).
Fifth Amendment Claim. Following Supreme Court precedents, the Court of Appeals held that aliens are not entitled to Fifth Amendment rights outside the sovereign territory of the U.S. (Harbury v. Deutsch, 233 F.3d at ___.)
Familial Association. Following other Supreme Court precedents, the Court of Appeals held that interference with a spousal relationship was not entitled to constitutional protection. (Id. at ___.)
Access to the Courts. According to the Court of Appeals, Supreme Court precedents had established that the right to sue and defend in the courts is a constitutional right. (Id. at __.) The D. C. Circuit then relied upon cases from other circuits that found that government cover-ups can infringe the right of access to the courts. (Id. at __.) It then held that the named NSC and State Department officials, according to the complaint, had affirmatively mislead her about her husband’s status, i.e., they had lied to her when they had told her they were trying to find out his whereabouts and status, and that these reassurances had prevented her from seeking emergency injunctive relief in time to save her husband’s life. (Id. at __.) The Court of Appeals also held that the complaint had alleged a constitutional violation and that it would have been clear to a reasonable official that they were committing such a violation. Hence, “when public officials affirmatively mislead citizens in order to prevent them from filing suit, they violate clearly established constitutional rights and thus enjoy no qualified immunity.” (Id. at __.)
c. Harbury v. Deutsch in the Court of Appeals (Petitions for Rehearing).
On April 6, 2001, the D.C. Circuit, 6 to 2, denied the government officials’ petition for rehearing en banc. (Harbury v. Deutsch, 244 F.3d 960 (D.C. Cir. 2001).) Judge Henderson, joined by Judge Sentelle, dissenting, stated that there were no constitutional violations and that the defendants were entitled to qualified immunity. In particular, the dissent stated, “No United States court could reach the alleged tortfeasors, Guatemalan nationals on Guatemalan soil, in order to prevent their killing Harbury’s husband, another Guatemalan national.” (Id.)
The same day, April 6, 2001, the panel unanimously denied the officials’ petition for rehearing. (Harbury v. Deutsch, 244 F.3d 956 (D.C. Cir. 2001).) In so doing, the panel issued a per curiam opinion to respond to Judge Henderson’s dissent and to the petitioners’ arguments:
· According to the panel, the alleged tortfeasors were domestic, and she was allegedly subject to emotional distress. Hence, had they not lied to her, she could have sought an injunction barring them from directing, conspiring in and paying for the detention and torture of her husband. As a matter of pleading, this was sufficient. On remand, noted the court, the defendants could argue that because of the nature (or absence) of a relationship between them and the torturers or for some other reason, the chances of preventing the torture and killing of her husband were too remote to entitle Harbury to relief. (Id. at __.)
· Contrary to the petition for rehearing, the panel stated that its opinion would not open the floodgates of access to courts claims. That opinion upheld the requirement for a plaintiff’s first pressing the underlying claims and for denying such claims where the plaintiff has enough information to file a “John Doe” suit. The opinion was limited to situations where the officials affirmatively mislead the plaintiff and where they do so for the purpose of protecting the officials from suit. (Id. at __.)
· Prior to the petition for rehearing, the government had never claimed before the district court or the panel that the cover-up was necessary to protect national security. Upon remand, the officials were free to do so. (Id. at __.)
· The fact that the CIA defendants, not the NSC and State Department defendants, were the ones allegedly involved in the detention, torture, and killing of her husband was not significant. Access to court claims are not limited to ones in which officials allegedly covered up their own illegal actions, and the NSC and State Department officials could be subject to direct tort liability for their alleged concealment and misrepresentation. (Id. at __.)
d. Harbury v. Deutsch in the Supreme Court
On June 20, 2002, the U.S. Supreme Court unanimously reversed the circuit court’s decision sustaining the claim for denial of access to the courts. (Christopher v. Harbury, No. 01-394 (June 20, 2002).) In an opinion by Justice Souter, the Court held that such a claim had to allege an underlying cause of action, the official acts that frustrated the litigation and a remedy that may be awarded as recompense but not otherwise available in a suit that may yet be brought. (Slip Op. at 12.) Harbury’s claim, however, failed to meet this standard. (Id. at 14-19.) The case was remanded for further proceedings with respect to her tort claims that remain pending in the district court although the Court noted problems inherent in such claims. (Id. at 16-17 n.19, 18-19.)
Burnett v. Baraka Investment & Development Corp. On August 15, 2002, families of 600 people killed in the 9/11 attacks on the World Trade Center and the Pentagon brought suit in the U.S. District Court for the District of Colombia against Saudi Arabian banks and charities, the Government of Sudan, and members of the Saudi royal family, accusing them of financially sponsoring the al Qaeda network and its leader, Osama bin Laden. (See Schmidt, Sept. 11 Families Join to Sue Saudis, Washington Post, Aug. 16, 2002, at A4.)
Other Comments about U.S. Litigation Regarding International Human Rights
As the Eleventh Circuit’s affirmance of a defendants’ verdict in Ford v. Garcia reminds us, the normal trial lawyers’ skills in doing such things as making a good record and objecting to improper questions and other evidence and to erroneous jury instructions are just as important in U.S. litigation regarding international human rights. In addition, such cases present special problems in the trial court, including the following:
a. State court trial judges are of varying quality.
b. Most trial court judges are very busy handling all kinds of cases with priority for criminal cases.
c. There are limited resources in trial judges’ chambers, especially in state courts.
d. Few trial court judges have experience with international law.
e. Conflicts of law principles may make trial court judges unfamiliar with the laws of other states in the U.S. and especially with the laws of other nation states.
f. There are limits on trial lawyers’ time and resources to study and assert international law issues.
g. There are problems of presenting an effective case, including cross-examination, through an interpreter.
h. There are problems of presenting an effective case about something that happened in a foreign country.
i. How a jury reacts to the issues? E.g., How will a U.S. jury evaluate the conduct of foreign generals with command responsibility over foreign soldiers’ human rights abuses when U.S. generals with command responsibility over U.S. soldiers are involved in a war in another part of the world?
Post Script- ATCA Litigation against Corporations in Domestic Courts
Filartiga established that the ATCA may be used to address human rights abuses around the world. Doe I v. Unocal attempts to extend the ATCA’s reach to corporations and other non-state actors. The Ninth Circuit held that it is possible to do so. It may be helpful to refer to the following chart while reading the case:
Doe I v. Unocal, 2002 U.S. App. LEXIS 19263 (9th Cir. 2002) (several citations and footnotes omitted)
PREGERSON, Circuit Judge:
This case involves human rights violations that allegedly occurred in Myanmar, formerly known as Burma. [Plaintiffs] allege that the Defendants directly or indirectly subjected the [plaintiffs] to forced labor, murder, rape, and torture when the Defendants constructed a gas pipeline through the Tenasserim region. The [plaintiffs] base their claims on the Alien Tort Claims Act, 28 U.S.C. § 1350, and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., as well as state law.
The District Court, through dismissal and summary judgment, resolved all of Plaintiffs' federal claims in favor of the Defendants. For the following reasons, we reverse in part and affirm in part the District Court's rulings.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Unocal's Investment in a Natural Gas Project in Myanmar.
Burma has been ruled by a military government since 1958. In 1988, a new military government, Defendant-Appellee State Law and Order Restoration Council ("the Myanmar Military"), took control and renamed the country Myanmar. The Myanmar Military established a state owned company, Defendant-Appellee Myanmar Oil and Gas Enterprise ("Myanmar Oil"), to produce and sell the nation's oil and gas resources.
In 1992, Myanmar Oil licensed the French oil company Total S.A. ("Total") to produce, transport, and sell natural gas from deposits in the Yadana Field off the coast of Myanmar ("the Project"). Total set up a subsidiary, Total Myanmar Exploration and Production ("Total Myanmar"), for this purpose. The Project consisted of a Gas Production Joint Venture, which would extract the natural gas out of the Yadana Field, and a Gas Transportation Company, which would construct and operate a pipeline to transport the natural gas from the coast of Myanmar through the interior of the country to Thailand.
Also in 1992, Defendant-Appellant Unocal Corporation and its wholly owned subsidiary Defendant-Appellant Union Oil Company of California, collectively referred to below as "Unocal," acquired a 28% interest in the Project from Total. Unocal set up a wholly owned subsidiary, the Unocal Myanmar Offshore Company ("the Unocal Offshore Co."), to hold Unocal's 28% interest in the Gas Production Joint Venture half of the Project. Similarly, Unocal set up another wholly owned subsidiary, the Unocal International Pipeline Corporation ("the Unocal Pipeline Corp."), to hold Unocal's 28% interest in the Gas Transportation Company half of the Project. . . .
B. Unocal's Knowledge that the Myanmar Military Was Providing Security and Other Services for the Project.
It is undisputed that the Myanmar Military provided security and other services for the Project, and that Unocal knew about this. . . .
There is . . . evidence sufficient to raise a genuine issue of material fact whether the Project hired the Myanmar Military, through Myanmar Oil, to provide these services, and whether Unocal knew about this. . . . Unocal disputes that the Project hired the Myanmar Military or, at the least, that Unocal knew about this. . . . [T]here is [also] evidence sufficient to raise a genuine issue of material fact whether the Project directed the Myanmar Military in these activities, at least to a degree, and whether Unocal was involved in this. . . .
. . .
C. Unocal's Knowledge that the Myanmar Military Was Allegedly Committing Human Rights Violations in Connection with the Project.
Plaintiffs are villagers from Myanmar's Tenasserim region, the rural area through which the Project built the pipeline. Plaintiffs allege that the Myanmar Military forced them, under threat of violence, to work on and serve as porters for the Project. For instance, [plaintiffs testified that they were forced to build helipads and were subjected to acts of murder, rape, and torture by the Myanmar military.] Plaintiffs finally allege that Unocal's conduct gives rise to liability for these abuses.
. . .
On January 4, 1995, approximately three years after Unocal acquired an interest in the Project, Unocal President Imle met with human rights organizations at Unocal's headquarters in Los Angeles and acknowledged to them that the Myanmar Military might be using forced labor in connection with the Project. At that meeting, Imle said that "people are threatening physical damage to the pipeline," that "if you threaten the pipeline there's gonna be more military," and that "if forced labor goes hand and glove with the military yes there will be more forced labor."
. . .
D. Proceedings Below.
. . .
On March 25, 1997 . . . the District Court dismissed the claims against the Myanmar Military and Myanmar Oil on the grounds that these defendants were entitled to immunity pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § § 1330, 1602 et seq. The District Court also determined, however, that the act of state doctrine did not require the dismissal of the claims against the other defendants, with the exception of the expropriation claims. Moreover, the District Court determined that subject matter jurisdiction was available under the ATCA and that the Doe-Plaintiffs had pled sufficient facts to state a claim under the ATCA. The District Court later denied the Doe-Plaintiffs' motion for class certification and dismissed their claims against Total for lack of personal jurisdiction. . . .
On August 31, 2000, the District Court granted Unocal's consolidated motions for summary judgment on all of Plaintiffs' remaining federal claims. . . . The District Court granted Unocal's motion for summary judgment on the ATCA claims based on murder, rape, and torture because Plaintiffs could not show that Unocal engaged in state action and that Unocal controlled the Myanmar Military. The District Court granted Unocal's motion for summary judgment on the ATCA claims based on forced labor because Plaintiffs could not show that Unocal "actively participated" in the forced labor. The District Court also determined that it did not have subject matter jurisdiction over the Doe-Plaintiffs' RICO claim. Finally, after having granted summary judgment on all of Plaintiffs' federal claims, the District Court declined to exercise its discretion to retain Plaintiffs' state claims and dismissed those claims without prejudice.
On September 5, 2000, the District Court granted Unocal's motion to recover costs in the amount of $125,846.07. . . .
A. Liability Under the Alien Tort Claims Act.
The Alien Tort Claims Act confers upon the federal district courts "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations." 28 U.S.C. § 1350. We have held that the ATCA also provides a cause of action, as long as "plaintiffs . . . allege a violation of 'specific, universal, and obligatory' international norms as part of [their] ATCA claim." Papa v. United States, 281 F.3d 1004 (9th Cir. 2002). Plaintiffs allege that Unocal's conduct gave rise to ATCA liability for the forced labor, murder, rape, and torture inflicted on them by the Myanmar Military.
. . .
One threshold question in any ATCA case is whether the alleged tort is a violation of the law of nations. We have recognized that torture, murder, and slavery are jus cogens violations and, thus, violations of the law of nations. [The court also found that forced labor and rape were jus cogens violations.] Accordingly, all torts alleged in the present case are jus cogens violations and, thereby, violations of the law of nations. . . .
Another threshold question in any ATCA case against a private party, such as Unocal, is whether the alleged tort requires the private party to engage in state action for ATCA liability to attach, and if so, whether the private party in fact engaged in state action. In his concurrence in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), Judge Edwards observed that while most crimes require state action for ATCA liability to attach, there are a "handful of crimes," including slave trading, "to which the law of nations attributes individual liability," such that state action is not required. More recently, the Second Circuit adopted and extended this approach in Kadic. . . . [U]nder Kadic, even crimes like rape, torture, and summary execution, which by themselves [usually] require state action for ATCA liability to attach, do not require state action when committed in furtherance of other crimes . . . which by themselves do not require state action for ATCA liability to attach. [i.e. slave trading, genocide, or war crimes]. [Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)]. We agree with this view and apply it below to Plaintiffs' various ATCA claims.
2. Forced Labor
a. Forced labor is a modern variant of slavery to which the law of nations attributes individual liability such that state action is not required.
Our case law strongly supports the conclusion that forced labor is a modern variant of slavery. Accordingly, forced labor, like traditional variants of slave trading, is among the "handful of crimes . . . to which the law of nations attributes individual liability," such that state action is not required. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), (Edwards, J., concurring.) . . .
[W]e conclude that forced labor is a modern variant of slavery that, like traditional variants of slave trading, does not require state action to give rise to liability under the ATCA.
b. Unocal may be liable under the ATCA for aiding and abetting the Myanmar Military in subjecting Plaintiffs to forced labor.
Plaintiffs argue that Unocal aided and abetted the Myanmar Military in subjecting them to forced labor. We hold that the standard for aiding and abetting under the ATCA is, as discussed below, knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime. We further hold that a reasonable factfinder could find that Unocal's conduct met this standard.20
The District Court found that "the evidence . . . suggests that Unocal knew that forced labor was being utilized and that the Joint Venturers benefitted [sic] from the practice." The District Court nevertheless held that Unocal could not be liable under the ATCA for forced labor because [it incorrectly applied the standard from the] Nuremberg Military Tribunals involving the role of German industrialists in the Nazi forced labor program during the Second World War. . . .
We however agree with the District Court that in the present case, we should apply international law as developed in the decisions by international criminal tribunals such as the Nuremberg Military Tribunals for the applicable substantive law. "The law of nations 'may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.' " Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) (emphasis added). It is "well settled that the law of nations is part of federal common law."
In different ATCA cases, different courts have applied international law, the law of the state where the underlying events occurred, or the law of the forum state, respectively. Where, as in the present case, only jus cogens violations are alleged -- i.e., violations of norms of international law that are binding on nations even if they do not agree to them . . . it may . . . be preferable to apply international law rather than the law of any particular state. . . . The reason is that, by definition, the law of any particular state is either identical to the jus cogens norms of international law, or it is invalid. Moreover, "reading §1350 as essentially a jurisdictional grant only and then looking to [foreign or] domestic tort law to provide the cause of action mutes the grave international law aspect of the tort, reducing it to no more (or less) than a garden-variety municipal tort," Xuncax v. Gramajo, 886 F. Supp. 162, 183 (D. Mass. 1995) . . .
. . .
Application of international law -- rather than the law of Myanmar, California state law, or our federal common law -- is also favored by a consideration of the factors listed in the Restatement (Second) of Conflict of Laws §6 (1969). First, "the needs of the . . . international system" are better served by applying international rather than national law. Second, "the relevant policies of the forum" cannot be ascertained by referring -- as the concurrence does -- to one out-of-circuit decision which happens to favor federal common law and ignoring other decisions which have favored other law, including international law. Third, regarding "the protection of justified expectations," the "certainty, predictability and uniformity of result," and the "ease in the determination and application of the law to be applied," we note that the standard we adopt today from an admittedly recent case nevertheless goes back at least to the Nuremberg trials and is similar to that of the Restatement (Second) of Torts. Finally, "the basic policy underlying the particular field of law" is to provide tort remedies for violations of international law. This goal is furthered by the application of international law, even when the international law in question is criminal law but is similar to domestic tort law, as discussed in the next paragraph. We conclude that given the record in the present case, application of international law is appropriate.
International human rights law has been developed largely in the context of criminal prosecutions rather than civil proceedings. . . . But [that which] is a crime in one jurisdiction is often a tort in another jurisdiction, and this distinction is therefore of little help in ascertaining the standards of international human rights law. Moreover, . . . the standard for aiding and abetting in international criminal law is similar to the standard for aiding and abetting in domestic tort law, making the distinction between criminal and tort law less crucial in this context. Accordingly, District Courts are increasingly turning to the decisions by international criminal tribunals for instructions regarding the standards of international human rights law under our civil ATCA. . . . We find recent decisions by the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda especially helpful for ascertaining the current standard for aiding and abetting under international law as it pertains to the ATCA. . . .
The [standard announced in the ICTY case] Furundzija . . . for aiding and abetting liability under international criminal law can be summarized as knowing practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime. . . . [Prosecutor v. Furundzija, IT-95-17/1 (Dec. 10, 1998), reprinted in 38 I.L.M. 317 (1999).] [T]his standard is similar to the standard for aiding and abetting under domestic tort law. Thus, the Restatement of Torts states: "For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he . . . (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself . . . ." Restatement (Second) of Torts §876 (1979) (emphasis added). . . . [G]iven the similarities between the Furundzija international criminal standard and the Restatement domestic tort standard, we find that application of a slightly modified Furundzija standard is appropriate in the present case. In particular, given that there is -- as discussed below -- sufficient evidence in the present case that Unocal gave assistance and encouragement to the Myanmar Military, we do not need to decide whether it would have been enough if Unocal had only given moral support to the Myanmar Military. Accordingly, we may impose aiding and abetting liability for knowing practical assistance or encouragement which has a substantial effect on the perpetration of the crime, leaving the question whether such liability should also be imposed for moral support which has the required substantial effect to another day.
First, a reasonable factfinder could conclude that Unocal's alleged conduct met the actus reus requirement of aiding and abetting as we define it today, i.e., practical assistance or encouragement which has a substantial effect on the perpetration of the crime of, in the present case, forced labor.
Unocal's weak protestations notwithstanding, there is little doubt that the record contains substantial evidence creating a material question of fact as to whether forced labor was used in connection with the construction of the pipeline. . . .
The evidence also supports the conclusion that Unocal gave practical assistance to the Myanmar Military in subjecting Plaintiffs to forced labor. The practical assistance took the form of hiring the Myanmar Military to provide security and build infrastructure along the pipeline route in exchange for money or food. The practical assistance also took the form of using photos, surveys, and maps in daily meetings to show the Myanmar Military where to provide security and build infrastructure.
This assistance, moreover, had a "substantial effect" on the perpetration of forced labor, which "most probably would not have occurred in the same way" without someone hiring the Myanmar Military to provide security, and without someone showing them where to do it. [Prosecutor v. Tadic, IT-94-1 (May 7, 1997)]. This conclusion is supported by the admission of Unocal Representative Robinson that "our assertion that [the Myanmar Military] has not expanded and amplified its usual methods around the pipeline on our behalf may not withstand much scrutiny," and by the admission of Unocal President Imle that "if forced labor goes hand and glove with the military yes there will be more forced labor."
Second, a reasonable factfinder could also conclude that Unocal's conduct met the mens rea requirement of aiding and abetting as we define it today, namely, actual or constructive (i.e., reasonable) knowledge that the accomplice's actions will assist the perpetrator in the commission of the crime. The District Court found that "the evidence does suggest that Unocal knew that forced labor was being utilized and that the Joint Venturers benefitted [sic] from the practice." Doe/Roe II, 110 F. Supp. 2d at 1310. Moreover, Unocal knew or should reasonably have known that its conduct -- including the payments and the instructions where to provide security and build infrastructure -- would assist or encourage the Myanmar Military to subject Plaintiffs to forced labor.
Viewing the evidence in the light most favorable to Plaintiffs, we conclude that there are genuine issues of material fact whether Unocal's conduct met the actus reus and mens rea requirements for liability under the ATCA for aiding and abetting forced labor. Accordingly, we reverse the District Court's grant of Unocal's motion for summary judgment on Plaintiffs' forced labor claims under the ATCA.
3. Murder, Rape, and Torture
a. Because Plaintiffs testified that the alleged acts of murder, rape, and torture occurred in furtherance of forced labor, state action is not required to give rise to liability under the ATCA.
Plaintiffs further allege that the Myanmar military murdered, raped or tortured a number of the plaintiffs. [We have] adopted . . . the Second Circuit's conclusion that these crimes "are actionable under the Alien Tort [Claims] Act, without regard to state action, to the extent that they were committed in pursuit of genocide or war crimes," i.e., in pursuit of crimes, such as slavery, which never require state action for ATCA liability to attach. According to Plaintiffs' deposition testimony, all of the acts of murder, rape, and torture alleged by Plaintiffs occurred in furtherance of the forced labor program. . . . Thus, under Kadic, state action is also not required for the acts of murder, rape, and torture which allegedly occurred in furtherance of the forced labor program.32
b. Unocal may be liable under the ATCA for aiding and abetting the Myanmar Military in subjecting Plaintiffs to murder and rape, but Unocal is not similarly liable for torture.
[The] "knowing practical assistance [or] encouragement . . . which has a substantial effect on the perpetration of the crime," [standard] from Furundzija, convince[s] us now that Unocal may likewise be liable under this standard for aiding and abetting the Myanmar Military in subjecting Plaintiffs to murder and rape. We conclude, however, that as a matter of law, Unocal is not similarly liable for torture in this case.
. . . Although a number of witnesses described acts of extreme physical abuse that might give rise to a claim of torture, the allegations all involved victims other than Plaintiffs. As this is not a class action, such allegations cannot serve to establish the Plaintiffs' claims of torture here.
Next, a reasonable factfinder could conclude that Unocal's alleged conduct met the actus reus requirement of aiding and abetting as we define it today, i.e., practical assistance or encouragement which has a substantial effect on the perpetration of the crimes of murder and rape. . . .
. . . [A] reasonable factfinder could also conclude that Unocal's conduct met the mens rea requirement of aiding and abetting as we define it today, i.e., actual or constructive (i.e., reasonable) knowledge that the accomplice's actions will assist the perpetrator in the commission of the crime. . . . Under Furundzija, it is not even necessary that the aider and abettor knows the precise crime that the principal intends to commit. Rather, if the accused "is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor." Thus, because Unocal knew that acts of violence would probably be committed, it became liable as an aider and abettor when such acts of violence -- specifically, murder and rape -- were in fact committed.
. . . [W]e reverse the District Court's grant of Unocal's motion for summary judgment on Plaintiffs' murder and rape claims under the ATCA. . . . [W]e affirm the District Court's grant of Unocal's motion for summary judgment on Plaintiffs' torture claims.
B. The Myanmar Military and Myanmar Oil are entitled to immunity under the Foreign Sovereign Immunities Act.
Under the Foreign Sovereign Immunities Act, 28 U.S.C. § § 1330, 1602 et seq., a district court has jurisdiction over a civil action against a foreign state such as Myanmar -- including its political subdivisions, agencies, or instrumentalities, such as the Myanmar Military or Myanmar Oil -- only if one of several exceptions to foreign sovereign immunity applies. See 28 U.S.C. § § 1330(a), 1603(a), & 1605-1607. Specifically,
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . (2) in which the action is based [i] upon a commercial activity carried on in the United States by the foreign state; or [ii] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [iii] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States . . . .
28 U.S.C. § 1605(a). The District Court rejected the Doe-Plaintiffs' argument that the second and third of the above exceptions gave the District Court jurisdiction over their claims against the Myanmar Military and Myanmar Oil. The existence of subject matter jurisdiction under the Foreign Sovereign Immunities Act is a question of law which this court reviews de novo.
. . .
[While the District Court committed some harmless error in its construction of the Foreign Sovereign Immunities Act, it] correctly concluded that the alleged acts of murder, torture, rape, and forced labor by the Myanmar Military and Myanmar Oil did not have the direct effect in the United States required by the third exception to foreign sovereign immunity in § 1605(a)(2). In Siderman, we approved of the definition of a "direct effect" as one that "occurs at the locus of the injury directly resulting from the sovereign defendant's wrongful acts." (quoting Restatement (Third) of the Foreign Relations Law of the United States § 453 Reporter's Note 5 (1987)). The injuries directly resulting from the Myanmar Military and Myanmar Oil's alleged wrongful acts were the murder, rape, torture, and forced labor of the Doe-Plaintiffs. The locus of these injuries was Myanmar. Therefore, any effects -- such as Unocal's profits -- occurring in the United States were not "direct effects" of these acts within the meaning of § 1605(a)(2). Accordingly, the District Court did not err when it concluded that the Doe-Plaintiffs' claims against the Myanmar Military and Myanmar Oil did not fall within the third exception to foreign sovereign immunity in § 1605(a)(2).
C. Plaintiffs' claims against Unocal are not barred by the Act of State Doctrine.
Unocal also argues that Plaintiffs' claims against it are barred by the "act of state" doctrine. The act of state doctrine is a non-jurisdictional, prudential doctrine based on the notion that "the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory." Underhill v. Hernandez, 168 U.S. 250 (1897). "Act of state issues only arise when a court must decide -- that is, when the outcome of the case turns upon -- the effect of official action by a foreign sovereign." W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int'l, 493 U.S. 400 (1990). As long as this requirement is met, the act of state doctrine can be invoked by private parties such as Unocal. In the present case, an act of state issue arises because the court must decide that the conduct by the Myanmar Military violated international law in order to hold Unocal liable for aiding and abetting that conduct. We review the applicability of the act of state doctrine de novo.
The Second Circuit has said that "it would be a rare case in which the act of state doctrine precluded suit under [the ATCA]." Kadic, 70 F.3d at 250. We find that the present case is not that rare case, and that the act of state doctrine does not preclude suit under the ATCA here.
In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), the Supreme Court developed a three-factor balancing test to determine whether the act of state doctrine should apply:
 The greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it . . . .  The less important the implications of an issue are for our foreign relations, the weaker the justification for exclusivity in the political branches.  The balance of relevant considerations may also be shifted if the government which perpetrated the challenged act of state is no longer in existence . . . ."
We have added a fourth factor to this test:  "We must [also] consider . . . whether the foreign state was acting in the public interest." [T]hese factors weigh against application of the act of state doctrine in this case.
Regarding the first factor . . . all torts alleged in the present case are jus cogens violations. Because jus cogens violations are, by definition, internationally denounced, there is a high degree of international consensus against them, which severely undermines Unocal's argument that the alleged acts by the Myanmar Military and Myanmar Oil should be treated as acts of state. Regarding the second factor . . . the coordinate branches of our government have already denounced Myanmar's human rights abuses and imposed sanctions. . . . We agree with the District Court's evaluation that "given the circumstances of the instant case . . . it is hard to imagine how judicial consideration of the matter will so substantially exacerbate relations with [the Myanmar Military] as to cause hostile confrontations."
. . .
Finally, regarding the fourth factor that we have imposed -- public interest -- it would be difficult to contend that the Myanmar Military and Myanmar Oil's alleged violations of international human rights were "in the public interest." . . .
Because the four factor balancing test weighs against applying the act of state doctrine, we find that Plaintiffs' claims are not barred by this doctrine.
. . .
For the foregoing reasons, we REVERSE the District Court's grant of summary judgment in favor of Unocal on Plaintiffs' ATCA claims for forced labor, murder, and rape. We however AFFIRM the District Court's grant of summary judgment in favor of Unocal on Plaintiffs' ATCA claims for torture. We further AFFIRM the District Court's dismissal of all of the Doe-Plaintiffs' claims against the Myanmar Military and Myanmar Oil. We also AFFIRM the District Court's grant of summary judgment in favor of Unocal on the Doe-Plaintiffs' RICO claim against Unocal. We REMAND the case to the District Court for further proceedings consistent with this opinion. [The court also reversed the award of fees to Unocal- each party to bear their own costs.]
REVERSED IN PART, AFFIRMED IN PART and REMANDED.
REINHARDT, Circuit Judge, concurring:
I agree with the majority opinion, except for Part II(A), in which the majority discusses the Alien Tort Claims Act. . . . Where I differ from my colleagues is principally with respect to the standard of third-party liability under which Unocal may be held legally responsible for the human rights violations alleged. I do not agree that the question whether Unocal may be held liable in tort . . . should be resolved . . . by applying a recently-promulgated international criminal law aiding-and-abetting standard that permits imposition of liability for the lending of moral support. In fact, I do not agree that the question of Unocal's tort liability should be decided by applying any international law test at all. [T]he ancillary legal question of Unocal's third-party tort liability should be resolved by applying general federal common law tort principles, such as agency, joint venture, or reckless disregard. . . .
1. Forced Labor As A Violation of the Law of Nations
. . .
It is true that a cause of action against non-state actors for conduct in which they engage directly exists only for acts that constitute jus cogens violations and that other conduct of private parties that would violate international law if engaged in by a governmental entity is not actionable under the ATCA. Here, however, if Unocal is held liable, it will be because the Myanmar military committed the illegal acts and Unocal is determined to be legally responsible for that governmental conduct under a theory of third-party liability -- not because Unocal itself engaged in acts transgressing international law. Because the violations of customary international law, if they occurred, were committed by a governmental agency, third-party liability may attach regardless of whether the international law violated is jus cogens. Thus, I see no need to discuss whether forced labor is a modern variant of slavery, which would render it a jus cogens norm, or even whether the prohibition on forced labor is itself a jus cogens norm, which it may well be. The well-established principle that forced labor practices violate customary international law is sufficient in itself to confer jurisdiction in this case with respect to all parties, jus cogens or not.
2. The Appropriate Source of Law for Determining Third-Party Liability
. . . [This case] raises important questions of first impression: Under what circumstances may a private entity doing business abroad be held accountable in federal court for international law violations committed by the host government in connection with the business activities of the private entity; and to what body of law do we look in order to determine the answer? Logically, it is necessary to consider the second question first. In my view, the answer is that we look to traditional civil tort principles embodied in federal common law, rather than to evolving standards of international law, such as a nascent criminal law doctrine recently adopted by an ad hoc international criminal tribunal.
. . .
. . . [A]ctions involving international relations constitute one category of cases in which federal common law is frequently applied. Because Alien Tort Claims Act cases involve the violation of international law, they almost always "implicate . . . our relations with foreign nations." There are thus unique federal interests involved in Alien Tort Claims Act cases that support the creation of a uniform body of federal common law to facilitate the implementation of such claims.
. . .
[T]he question of when third-party liability arises is a straightforward legal matter that federal courts routinely resolve using common law principles. . . . The fact that some of the acts at issue here may have taken place abroad does not militate in favor of applying international law; transnational matters are litigated in federal court, using federal legal standards, more and more frequently as the pace of globalization grows ever more rapid. Nor is there any reason to apply international law to the question of third-party liability simply because international law applies to the substantive violation; . . . federal common law is properly invoked when the statute at issue leaves an ancillary question unanswered, regardless of the nature of the statute. In short, federal common law principles provide the traditional and time-tested method of filling in the interstices and resolving the type of ancillary legal questions presented by this case. . . .
Almost all of the factors that we are required to consider as part of a choice-of-law inquiry [under the Restatement (Second) Conflict of Laws, § 6] militate in favor of [applying] federal common law. First, "ease in the determination and application of the law to be applied" is furthered by applying a well-developed body of law, as opposed to a standard announced in a criminal case only recently decided by an ad hoc international tribunal. Similarly, "certainty, predictability and uniformity of result" are more likely to be achieved when there exists extensive precedent upon which to draw, and the state of the law does not depend on the future decisions of some as-yet unformed international tribunal established to deal with other unique regional conflicts. . . . Next, as noted earlier, the policy of the Alien Tort Claims Act is "to establisha federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law." Thus, the "relevant policy of the forum" is to apply federal common law remedies such as the imposition of third-party liability in the case of violations of customary international law. Finally, "the basic policy underlying the particular field of law" is to provide an appropriate tort remedy for certain international law violations. The application of third-party liability standards generally applicable to tort cases directly furthers the basic policy of using tort law to redress international wrongs, whereas the application of international criminal law doctrines does not advance that objective. . . .
[T]he question of how to establish third-party liability is not in any way unique to human rights cases. The fact that the substantive violation involves international prohibitions on forced labor rather than a more traditional tort does not present any different concerns with respect to the determination of thirdparty liability. I thus see no reason to look to international criminal law doctrines for a civil liability standard when a substantial body of federal common law already exists regarding third-party liability generally. . . . I would derive a thirdparty liability standard for ATCA cases from that body of law.
. . .
3. Application of Federal Common Law
[T]he question remains, for me, as to the proper federal common law rule for third-party liability in this case. . . . [J]oint venture, agency, and reckless disregard have all been applied across a wide range of torts and other legal wrongs, and the overwhelming weight of federal authority supports their application here.
. . .
a. Joint Venture Liability
The principle that a member of a joint venture is liable for the torts of its co-venturer is well-established in international law and in other national legal systems. International legal materials frequently refer to the principle of joint liability for co-venturers. . . .
. . .
The body of international law . . . serves to confirm my view that federal common law regarding the liability of joint venturers applies in the Alien Tort Claims Act context in the same manner and to the same extent as it does in construing other federal statutes. I would therefore hold that plaintiffs may recover on a federal common law theory of joint liability if they can prove both that the forced labor violations occurred and that Unocal was a co-venturer with the Myanmar military, which perpetrated the violations. . . .
b. Agency Liability
Plaintiffs contend that Unocal may also be held liable for the acts of the Myanmar military because the military acted as the company's agent. The theory of agency liability is also well-supported in the federal common law. . . .
Plaintiffs' theory of agency liability is consistent with the substantial federal common law of agency. . . . [F]ederal common law should govern plaintiffs' claim that the Myanmar military acted as Unocal's agent.
. . .
A factual question requiring trial exists with respect to whether an agency relationship existed between Unocal and the Myanmar military. . . . Unocal's alleged actions directing the Myanmar military create a triable question of fact as to whether an agency relationship existed between Unocal and the Myanmar armed forces.
. . .
c. Reckless Disregard
Finally, the facts alleged by the plaintiffs, if proved, support a recovery against Unocal under an additional theory, that of the common law theory of recklessness or reckless disregard. Here, plaintiffs allege that Unocal had actual knowledge that the Myanmar military would likely engage in human rights abuses, including forced labor. Nevertheless, according to plaintiffs, Unocal recklessly disregarded that known risk, determined to use and in fact did use the services of that military to perform pipeline-related tasks, and thereby set in motion international law abuses that were foreseeable to Unocal. Plaintiffs thus allege that Unocal acted with recklessness, which occurs when a party is aware of (or should be aware of) an unreasonable risk, yet disregards it, thereby leading to harm to another.
. . . . I see no reason why the general principle that liability arises for one party's conscious disregard of unreasonable risks to another should not apply when a defendant consciously disregards the risks that arise from its decision to use the services of an entity that it knows or ought to know is likely to cause harm to another party.
Proof of even willful recklessness does not require proof of intent; it requires only that a defendant have acted in conscious disregard of known dangers. The doctrine of reckless disregard of another's rights has been well-developed in the [42 U.S.C. 1983] context; there, courts have held that a plaintiff need not prove that a defendant intended to cause harm to the specific plaintiff. . . . Plaintiffs' theory that by using the services of the Myanmar military in connection with the Yadana Project, Unocal recklessly disregarded the likelihood that their human rights would be violated is thus well grounded in federal common law.
Plaintiffs have presented sufficient evidence to proceed to trial on the reckless disregard claim. . . .
d. Murder and Rape Claims
Like the majority, I agree with the Second Circuit's holding in Kadic v. Karadzic, that under the Alien Tort Claims Act, a plaintiff may recover for wrongs that occur ancillary to a violation of international human rights law as part of the claim for the primary violation. . . .
As with the forced labor claims, however, I disagree with the majority regarding what it is necessary for plaintiffs to prove in order for Unocal to be held liable for acts of murder or rape. . . . In my opinion, if it is established that the alleged rapes and murder of plaintiffs occurred in furtherance of the forced labor program, and if Unocal is held liable for the forced labor practices of the Myanmar military, then plaintiffs need not again prove separately the elements of a third-party liability theory. In such case, they need prove only the additional facts supporting the rape and murder allegations. . . .
Notes and Questions
1. The majority and the concurrence view this case in fundamentally different ways. The majority concluded that Unocal could be held liable for its own actions, regardless of any theory of third party liability. The court held that “aiding and abetting” forced labor is a jus cogens violation of international law, and that an individual may be held liable absent state action. The concurrence would have allowed the plaintiffs’ case to proceed to trial, but not on a theory that the defendants themselves had committed a violation of international law. The concurrence stressed that federal common law theories of third party liability sufficed for the present case. Therefore, there was no need to reach the conclusion that defendants themselves had violated international law. The Myanmar Military’s violations were sufficient.
2. While both factions of the court agreed that this case should advance to trial, the different approaches have consequences for the ensuing litigation. To recover under the majority’s theory, plaintiffs only need to prove that 1) the Myanmar military engaged in forced labor, 2) Unocal supplied practical assistance that had a substantial effect on the perpetration of forced labor, and that 3) Unocal knew or had reasonable knowledge that their acts would assist or encourage the Myanmar Military. Under the concurrence’s view of either joint venture, agency liability, or reckless disregard, the plaintiffs would have to prove additional facts. For example, under an agency theory, plaintiffs would have to prove that the Myanmar Military was Unocal’s agent. Given the complex relationship between Unocal, Union Oil of California, Unocal Offshore/ Unocal Pipeline, Total and its subsidiaries, Myanmar Oil, and finally the Myanmar Military, it seems likely that this will drastically complicate the litigation. Similar problems apply for theories of joint venture and reckless disregard.
3. The court held that a jury could find that Unocal’s actions constituted a jus cogens violation of international law. However, the court was careful to note that, in general, “. . . any "violation of 'specific, universal, and obligatory' international norms" -- jus cogens or not -- is actionable under the ATCA. Thus, a jus cogens violation is sufficient, but not necessary, to state a claim under the ATCA.” Doe I, 2002 U.S. App. LEXIS 19263 at 29, n.15. The rule is different for non-state actors. There are only a handful of violations of international law for which non-state actors can be held liable under the ATCA. These violations for which individual liability can attach are all jus cogens violations. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984). By finding that aiding and abetting of forced labor is a jus cogens violation of international law, the court was able to determine (consistent with Kadic and Tel-Oren) that individual liability could attach under the ATCA to Unocal’s actions.
4. Is it clear which law the district court may apply to this case on remand? While the court says that “We however agree with the District Court that in the present case, we should apply international law as developed in the decisions by international criminal tribunals such as the Nuremberg Military Tribunals for the applicable substantive law.” Doe I, 2002 U.S. App. LEXIS 19263 at 39. However, the court also states that “Because we reject the District Court's general reasons for holding that Unocal could not be liable under international law . . . we do not need to address Plaintiffs' other theories, i.e., joint venture, agency, negligence, and recklessness. [These other theories] may, like aiding and abetting, be viable theories on the specific facts of this ATCA case. Moreover, on the facts of other ATCA cases, joint venture, agency, negligence, or recklessness may in fact be more appropriate theories than aiding and abetting.” Doe I, 2002 U.S. App. LEXIS 19263 at 36, n.20. May the plaintiffs, for tactical reasons, still argue agency, joint venture, and reckless disregard theories of liability?
5. The court notes that “[t]he successive military governments of first Burma and now Myanmar have a long and well-known history of imposing forced labor on their citizens.” Doe I, 2002 U.S. App. LEXIS 19263 at 13. The court then cites to an International Labor Organization report about Myanmar’s violations of the Forced Labor Convention. Under the Federal Rules of Evidence, would it be proper for the trial court to take judicial notice of this ILO report? What about Amnesty International or United Nations reports? See generally Fed. R. Evid. 201. If permissible, this might make the plaintiff’s burden easier to carry.
6. The majority and the concurrence split on a choice of law question: can the plaintiffs recover on a theory of aiding and abetting under international law? The majority found this theory acceptable, the concurrence didn’t. Both parties applied the Restatement (Second) Conflict of Laws § 6 (1969). Section 6 (1) states that “A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.” Restatement (Second) Conflict of Laws § 6(1) (1969). According to the Restatement, Congress could choose to speak to the choice of law issue at some point in the future. In the absence of an express statutory directive, courts engage in a balancing test. Comparing the majority’s opinion to the concurrence’s opinion, it is apparent that different courts and different judges can reach different conclusions. However, the Ninth Circuit’s decision to look to the International Criminal Tribunal for the Former Yugoslavia is not unique. See, e.g., Cabello Barrueto v. Fernandez Larios, 205 F. Supp. 2d 1325 (S.D. Fla. 2002); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) (both cases acknowledging “aiding and abetting” liability under international law).
7. In Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002), that court heard an appeal from a case concerning jury instructions about the doctrine of command responsibility and proximate cause in the context of the Torture Victims Protection Act (TVPA). The TVPA was enacted by Congress to provide a cause of action for individuals subjected to torture. It is analogous to the ATCA. At trial, there was a question as to whether the plaintiff needed to prove that the defendant had “effective control” of his troops as an element of the plaintiff’s claim, or whether the defendant had to prove that he was not in “effective control” as an affirmative defense. The trial court decided that the burden lay with the plaintiff, and gave jury instructions to that effect. Plaintiffs lost at trial. On appeal, plaintiffs argued that 1) the burden of proof of control had been allocated incorrectly, and that 2) it was plain error to require proximate cause under the command responsibility doctrine. See Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996). The court held that since the plaintiffs hadn’t objected to the burden of proof instruction at trial, there was no plain error. Also, since the plaintiffs explicitly accepted the jury instruction regarding proximate causation, they could not claim it as reversible error. At best, the burden of persuasion regarding the command responsibility doctrine in the Eleventh Circuit is “not altogether certain.” Ford, 289 F.3d at 1292. As the law of the Eleventh Circuit stands now, plaintiffs must show “(1) a superior-subordinate relationship between the commander and the perpetrators, (2) the requisite knowledge on the part of the commander, and (3) the commander’s failure to prevent or repress the abuses or to punish the perpetrators.” Ford, 289 F.3d at 1289. Whether the plaintiff bears the burden of ‘effective control’ is unclear. Compare this standard to Doe I- “Because state action is not required in the present case, the District Court erred when it required a showing that Unocal ‘controlled’ the Myanmar Military's decision to commit the alleged acts or murder, rape, and torture to establish that Unocal proximately caused these acts. We require ‘control’ to establish proximate causation by private third parties only in cases . . . where we otherwise require state action. In other cases . . . where state action is not otherwise required, we require no more than ‘forseeability’ to establish proximate causation.” Doe I, 2002 U.S. App. LEXIS 19263 at 57, n.32. “Forseeability” seems easier to prove than “control.”
8. One justification for the existence of corporations is that by limiting the personal liability of shareholders, officers, and directors, society benefits from their increased willingness to take risks. It appears likely that Unocal’s wholly owned subsidiaries involved in this litigation were created specifically to limit the liability of the parent corporation, Unocal. What are the implications of the court’s willingness to find the parent corporation liable for the acts of its subsidiaries?
9. The concurrence accuses the majority of “applying a recently-promulgated international criminal law aiding-and-abetting standard that permits imposition of liability for the lending of moral support.” Doe I, 2002 U.S. App. LEXIS 19263 at 84. The concurrence intimates that the standards of aiding and abetting used in ICTY and ICTR jurisprudence aren’t actually part of customary international law. However, the ICTY and ICTR tribunals arose as part of a world-wide response to local human rights abuses in the former Yugoslavia and Rwanda which were obvious and egregious violations of international law. Given the creation of these tribunals by the United Nations and the world-wide character of their formation, is the concurrence’s characterization fair? Isn’t there an argument to be made that these tribunals are perhaps our best guide to the law of international human rights?
10. Professor Curtis A. Bradley has been an outspoken critic of international human rights litigation in U.S. courts. Consider the following comments:
A . . . problem in this [type of] litigation is the substantial reliance by courts on the opinions of academic writers. Because of their unfamiliarity with international law . . . judges rely heavily on secondary sources in these cases. Thus, for example, they often treat the American Law Institute’s Restatement (Third) of Foreign Relations Law as though it were a codification of international law and foreign relations law principles, even though its statements are often more aspirational than reflective of settled law. Similarly, they frequently rely on the written and oral testimony of academic experts, as well as the experts’ scholarly writings.
These academic experts typically are not reporting on objective facts. . . . Instead, they are expressing their own normative beliefs concerning the content of international law and its status in the US legal system, typically with citations to other experts and international organizations who share those beliefs. In effect, these academic experts like the experts, are engaged in a form of law creation. . . . Needless to say, however, these academic experts have even less democratic accountability than the federal judges themselves.
Curtis A. Bradley, The Costs of International Human Rights Litigation, 2 Chi. J. Int’l L. 457, 467-468 (2002). Is this really any different than judges referring to treatises by eminent scholars such as Wigmore, McCormick, or Prosser? Isn’t Professor Bradley’s charge essentially that judges aren’t sophisticated enough to spot the difference between law and ideology in scholarly works? Is this a fair criticism?
 Earlier in Malesko, the Second Circuit had held that private entities could be liable under Bivens, and the U.S. Supreme Court had granted a petition for a writ of certiorari. (Malesko v. Correctional Services Corp., 229 F.3d 374 (2d Cir. 2000), cert. granted, 2001 U.S. LEXIS 1967 (2001); Weissbrodt, Fitzpatrick & Newman, International Human Rights—Law, Policy, and Process at 774 (3d ed. 2001).)
 There currently is no multilateral convention on enforcement of court judgments, and the U.S. is not a party to any bilateral treaty to that effect. One of the reasons for the lack of such a convention or treaty is other countries’ concern over U.S. extraterritorial enforcement of U.S. laws (especially antitrust, securities and product liability laws), U.S. long-arm personal jurisdiction concepts and concern over unique features of U.S. civil litigation—broad pretrial discovery, class actions, jury trials and punitive damages. In 1992 the U.S. proposed the development of a convention on enforcement of court judgments through the Hague Conference on Private International Law. Starting in 1997, work on a draft Convention on Jurisdiction and the Effects of Judgments on Civil and Commercial Matters has been proceeding, but it is difficult to estimate when, if ever, such a convention would be approved. (See, e.g., Green, Hague Conference Work Progressing Toward Convention on the Recognition and Enforcement of Foreign Judgments, Int’l Law News (Spring 1998); Hankin, Proposed Hague Convention would help IP owners, Nat’l Law J., July 23, 2001 at C20; Hoffman, A Maritime Practitioner’s Critique of the Preliminary Draft Hague Convention on Jurisdiction and the Effects of Judgment on Civil and Commercial Matters, Int’l Law News, Fall 1999; Kovar, A Convention on Jurisdiction and the Enforcement of Foreign Civil Judgments?, Int’l Law News, Summer 1999; Murphy, et al., International Litigation, 35 Int’l Lawyer 491, 531-32 (2001); Trooboff, The Hague Conference, Nat’l Law J., July 23, 2001, at A19.)
 Earlier the district court had denied a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. (Doe v. Unocal Corp., 963 F. Supp. 880, 891-92 (C.D. Cal. 1997). See Weissbrodt, Fitzpatrick & Newman, International Human Rights—Law, Policy, and Process 773, 791 (3d ed. 2001).)
 See Tam, Myanmar Human-Rights Suit Against Unocal Is Reinstated, Wall S. J., Sept. 19, 2002; Girion, U.S. Ruling Says Firms Liable for Abuse Abroad, L.A. Times, Sept. 19, 2002; Kravets, Court Reinstates Suit Against Unocal, Washington Post, Sept. 19, 2002.)
 In Unocal, one member of the Ninth Circuit panel, Judge Reinhardt, concurred, saying that he thought that federal common law of tort was the applicable law for determining secondary liability. (Id. at 24-29.) He then discussed three federal common law tort theories under which the plaintiffs could proceed: joint venture, agency and reckless disregard. (Id. at 30-35.)
 Another federal district court dismissed a case against a British mining company (Rio Tinto PLC), for alleged participation in human rights abuses in Papua New Guinea on the basis of a State Department letter that the suit could have adverse effects on U.S. foreign relations. (See Waldman & Mapes, White House Sets News Hurdles For Suits Over Rights Abuses, Wall S. J., Aug. 8, 2002.)
20 Plaintiffs also argue that Unocal is liable for the conduct by the Myanmar Military under joint venture, agency, negligence, and recklessness theories. The District Court did not address any of Plaintiffs' alternative theories. Because we reject the District Court's general reasons for holding that Unocal could not be liable under international law, and because we hold that Unocal may be liable under at least one of Plaintiffs' theories, i.e., aiding and abetting in violation of international law, we do not need to address Plaintiffs' other theories, i.e., joint venture, agency, negligence, and recklessness. Joint venture, agency, negligence, and recklessness may, like aiding and abetting, be viable theories on the specific facts of this ATCA case. Moreover, on the facts of other ATCA cases, joint venture, agency, negligence, or recklessness may in fact be more appropriate theories than aiding and abetting.
32 Because state action is not required in the present case, the District Court erred when it required a showing that Unocal "controlled" the Myanmar Military's decision to commit the alleged acts or murder, rape, and torture to establish that Unocal proximately caused these acts. We require "control" to establish proximate causation by private third parties only in cases -- under, e.g., 42 U.S.C. § 1983 -- where we otherwise require state action. In other cases -- including cases such as this one -- where state action is not otherwise required, we require no more than "forseeability" to establish proximate causation. This requirement is easily met in the present case, where Unocal Vice President Lipman testified that even before Unocal invested in the Project, Unocal was aware that "the option of having the [Myanmar] Military provide protection for the pipeline construction . . . would [entail] that they might proceed in the manner that would be out of our control and not be in a manner that we would like to see them proceed," i.e., "going to excess."