The Fourth Circuit affirmed the dismissal of claims brought by individuals of Kurdish descent against a chemical manufacturer who sold a component of the mustard gas used by Iraq. The plaintiffs were either victims of Iraqi mustard gas attacks or family members of victims. The defendant was a corporation that sold thiodiglycol (or “TDG”) in transactions that allegedly resulted in the TDG being used by Iraq to make mustard gas.
The court held unanimously in Aziz v. Alcolac, Inc. that (1) the Torture Victims Protection Act does not provide a cause of action against corporations, that (2) (a) the Alien Tort Statute does allow for aiding and abetting liability, but (b) only for conduct that is purposeful, and that (3) the plaintiffs in this case failed to plead facts sufficient to support the intent element. The court declined to address the contention–apparently first raised on appeal–that corporations cannot be sued under the ATS (an issue that has split the Second and D.C. Circuits).
Judge Diaz wrote the opinion, which Judge Motz and Senior Judge Hamilton joined.
According to Judge Diaz’s opinion, the Fourth Circuit’s holding under the TVPA widens a pre-existing circuit split. This is not an area in which I have expertise, but the Fourth Circuit’s holding seems to be on the correct side of the split.
In addition to those with a specific interest in the TVPA and the ATS, the opinion is likely to be of more general interest for its discussion of what sources to look to in ascertaining the content of the law of nations. With respect to the mens rea standard for aiding and abetting liability, the Fourth Circuit treats the Rome Statute as more authoritative than the decisions of ICTY and ICTR tribunals. This aspect of its decision marks a conscious methodological departure from a previous analysis offered by the D.C. Circuit in Doe VIII v. Exxon Mobil Corp.
(For earlier coverage of the Doe VIII holding on corporate liability under the ATS, see this post by Jonathan Adler at Volokh Conspiracy.)
[...] There was a brief discussion of the Alkolac decision handed down yesterday (previously covered here). With respect to the suppression question, there was a brief interchange about whether the [...]
re: Fourth Circuit affirms dismissal of TVPA and ATS claims against seller of mustard gas component used by Iraq
I understand the Fourth Circuit’s reasoning in this case, and don’t necessarily disagree with their application if the law (though I just quickly read the decision) I do wonder if the “material support” statute, 18 U.S.C. § 2339B could have been used. I doubt it would reach back in time, but the threshold for proving material support is much lower and doesn’t require intent (or some would say, even knowledge).
I don’t think the material support statute could have been used by the plaintiffs, due to the lack of a private civil cause of action. That is an interesting observation, though, about the apparently lower mens rea requirement for criminal liability than for civil under the two statutes.
[...] There was a brief discussion of the Alkolac decision handed down yesterday (previously covered here). With respect to the suppression question, there was a brief interchange about whether the [...]