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.)