Our colleague Julian Ku over at Opinio Juris seems concerned that in refusing to dismiss apartheid-related ATS claims (from Ntsebeza v. Daimler Chrysler Corp. and Khulumani v. Barclay National Bank Ltd. (prior posts), now combined in In re South African Apartheid Litigation) against multinational corporations (including GM, Ford, and IBM), Judge Shira Scheindlin (left, credit)"rejected the stricter ICC standard requiring assistance for the 'purpose' of committing the criminal activity in favor of a looser assistance with the 'knowledge' of criminal activity standard." I haven't yet read Judge Scheindlin's reasoning (summary here), but would point out two good reasons for rejecting any ICC standard. First, the ATS provides only for tort liability. Though defendants are tried for international crimes, tort burdens of proof are used and defendants benefit from none of the defense rights associated with a criminal trial. It is therefore appropriate to use a tort standard rather than a criminal standard. Second, as Judge Stephen Reinhardt reasoned in his concurring opinion to Unocal (with respect to the standard to be used for complicity), since the ATS's purpose is to provide a federal tort remedy for the international crimes at issue, interests are better served by using well developed, tried and true federal tort standards. Qualifying as ancillary the issue of which standard to use - federal or international, Reinhardt (below right, credit)wrote: It is precisely in order to implement the policies underlying Congress’s decision to make the violation of international law a federal tort, that it is necessary to flesh out the statute and apply federal common law; here, we must do so in order to fashion a remedy with respect to the direct or indirect involvement of third parties in theJudge Reinhardt was of course referring to the International Criminal Tribunal for the former Yugoslavia, the only tribunal at the time (and perhaps still today?) to have actually used the standard then at issue. Even if third-party liability standards gain in clarity as they are further developed in other tribunals and at the ICC, I think Judge Reinhardt is right: criminal standards for criminal liability, "looser" tort standards for tort liabilty.commission of the underlying tort. . . .
[T]he question of when third-party liability arises is a straightforward legal matter that federal courts routinely resolve using common law principles. ... [T]ransnational 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.
In my view, courts should not substitute international law principles for established federal common law or other domestic law principles . . . unless a statute mandates that substitution, or other exceptional circumstances exist. . . . [The ATCA makes] it plain that certain provisions require the application of international law. In other instances, I believe it prudent to follow the general rules established by the Supreme Court regarding the use of federal common law. It is important to recognize that there is a distinction between substituting international law for federal common law and making proper use of international law as part of federal common law. Employing federal common law does not force courts to ignore a constructive or helpful rule adopted under international law, because in appropriate circumstances federal common law incorporates relevant principles of international law. The Paquette Habana, 175 U.S. 677, 700 (1900); see also n. 7, infra. Thus, the benefits of the vast experience embodied in federal common law as well as any useful international law principles are obtained when we employ the traditional common law approach ordinarily followed by federal courts. Those benefits are lost, however, when we substitute for the wide body of federal authority and reasoning, as the majority does here, an undeveloped principle of international law promulgated by a recently-constituted ad hoc international tribunal
