[5] 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. See Wiwa v. Royal Dutch Petroleum
Co., 226 F.3d 88, 105 n.12 (2d Cir. 2000). Unocal urges us to apply
not international law, but the law of the state where the underlying
events occurred, i.e., Myanmar. 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, see supra note 14 and accompanying text
— it may, however, be preferable to apply international law rather
than the law of any particular state, such as the state where the underlying
events occurred or the forum state.23 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), i.e., reducing it to a tort “relating
to the internal government of a state of nation (as contrasted with international),” Black’s Law Dictionary 1037
(7th ed. 1999). Significantly, we have already held that the ATCA not
only confers jurisdiction but also creates a cause of action. See
Papa, 281 F.3d at 1013; Marcos II, 25 F.3d at 1474-75.
[6] 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 outof-circuit decision which happens to favor federal
common law and ignoring other decisions which have favored other law,
including international law. See Wiwa, 226 F.3d at 105 n.12.
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. See
infra note 26 and accompanying text.24 Finally, “the basic polic[y] 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.25
[7] International human rights law has been developed largely in the context
of criminal prosecutions rather than civil proceedings. See Beth
Stevens, Translating Filartiga: A Comparative and International Law
Analysis of Domestic Remedies for International Human Rights Violations,
27 Yale J. Int’l L. 1, 40 (2002). But what 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. See id. at 44-46. Moreover, as mentioned above in
note 23 and further discussed later in this section, 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. See,
e.g., Cabello Barrueto v. Fernandez Larios, 205 F. Supp. 2d 1325,
1333 (S.D. Fla. 2002) (concluding on the basis of, inter alia,
the statute of and a decision by the International Criminal Tribunal
for the former Yugoslavia that defendants “may be held liable under
the ATCA for . . . aiding and abetting the actions taken by [foreign]
military officials”); Mehinovic v. Vuckovic, 198 F. Supp.
2d 1322 (N.D. Ga. 2002) (noting that among “various contemporary
sources” for ascertaining the norms of international law as they
pertain to the ATCA, “the statutes of the [International Criminal
Tribunal for the former Yugoslavia] and the International Criminal Tribunal
for Rwanda . . . and recent opinions of these tribunals are particularly
relevant”). We agree with this approach. 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.
In Prosecutor v. Furundzija, IT-95-17/1-T (Dec. 10, 1998), reprinted
in 38 I.L.M. 317 (1999), the International Tribunal for the former
Yugoslavia held that “the actus reus of aiding and abetting
in international criminal law requires practical assistance, encouragement,
or moral support which has a substantial effect on the perpetration
of the crime.” Id. at ¶ 235. The Tribunal clarified
that in order to qualify, “assistance need not constitute an indispensable
element, that is, a condition sine qua non for the acts of the
principal.” Furundzija at ¶ 209; see also Prosecutor
v. Kunarac, IT-96 -23-T & IT-96-23/1-T, ¶ 391 (Feb. 22,
2001), http://www.un.org/icty/foca/trialc2/judgement/index.htm (“The act of assistance need not have caused the act of the principal.”).
Rather, it suffices that “the acts of the accomplice make a significant
difference to the commission of the criminal act by the principal.” Furundzija at ¶ 233. The acts of the accomplice have the
required “[substantial] effect on the commission of the crime”
where “the criminal act most probably would not have occurred in
the same way [without] someone act[ing] in the role that the [accomplice]
in fact assumed.” Prosecutor v. Tadic, ICTY-94-1, ¶
688 (May 7, 1997), http://www.un.org/icty/tadic/trials2/judgement/index.htm.26
Similarly,
in Prosecutor v. Musema, ICTR-96-13-T (Jan. 27, 2000), http://www.ictr.org/,
the International Criminal Tribunal for Rwanda described the actus
reus of aiding and abetting as “all acts of assistance in the
form of either physical or moral support” that “substantially
contribute to the commission of the crime”. Id. at ¶
126.
As
for the mens rea of aiding and abetting, the International Criminal
Tribunal for the former Yugoslavia held that what is required is actual
or constructive (i.e., “reasonabl[e]”) “knowledge that
[the accomplice’s] actions will assist the perpetrator in the commission
of the crime.” Furundzija at ¶ 245. Thus, “it
is not necessary for the accomplice to share the mens rea of
the perpetrator, in the sense of positive intention to commit the crime.” Id. In fact, it is not even necessary that the aider and abettor
knows the precise crime that the principal intends to commit. See
id. 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.” Id.27
Similarly,
for the mens rea of aiding and abetting, the International Criminal
Tribunal for Rwanda required that “the accomplice knew of the assistance
he was providing in the commission of the principal offence.” Musema at ¶ 180. The accomplice does not have to have had the intent to
commit the principal offense. See id. at ¶ 181. It is sufficient
that the accomplice “knew or had reason to know” that the
principal had the intent to commit the offense. Id. at ¶
182.
[8] The Furundzija standard 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. At least with respect to assistance and encouragement,
this 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). Especially given
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.28
[9] 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.
[10] 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. Numerous witnesses, including a number of Plaintiffs,
testified that they were forced to clear the right of way for the pipeline
and to build helipads for the project before construction of the pipeline
began. For instance, John Doe IX testified that he was forced to build
a helipad near the pipeline site in 1994 that was then used by Unocal
and Total officials who visited the pipeline during its planning stages.
Other Plaintiffs and witnesses, including John Doe VII and John Roe
X, described the construction of helipads at Eindayaza and Po Pah Pta,
both of which were near the pipeline site, were used to ferry Total/Unocal
executives and materials to the construction site, and were constructed
using the forced labor of local villagers, including Plaintiffs. Other
Plaintiffs, such as John Roes VIII and IX, as well as John Does I, VIII
and IX, testified that they were forced to work on building roads leading
to the pipeline construction area. Finally, yet other Plaintiffs, such
as John Does V and IX, testified that they were required to serve as
“pipeline porters” — workers who performed menial tasks
such as hauling materials and cleaning the army camps for the soldiers
guarding the pipeline construction. These serious allegations create
triable questions of fact as to whether the Myanmar Military implemented
a policy of forced labor in connection with its work on the pipeline.
[11] The evidence also supports the conclusion that Unocal gave practical
assistance to the Myanmar Military in subjecting Plaintiffs to forced
labor.29 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.
[12] 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. Tadic at ¶ 688. This conclusion is supported by the admission
of Unocal Representative Robinson that “[o]ur 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 “[i]f forced
labor goes hand and glove with the military yes there will be more
forced labor.” (Emphasis added.)
Part
5
23.
Because “the law of nations is part of federal common law,” Marcos I, 978 F.2d at 502, the choice between international law
and the law of the forum state, which in the present case is California
state law or our federal common law, is less crucial than the choice
between international law and the law of the state where the underlying
events occurred, which in the present case is the law of Myanmar. Moreover,
as discussed later in this section, 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 choice between international
and domestic law even less crucial.
24.
Because “moral support” is not part of the standard we adopt
today, the concurrence’s discussion in this context of “the
international law regarding third party ‘moral support’ ”
is beside the point. Concurrence at 14252, see infra note 28.
25.
We stress that our conclusion that application of international law
is appropriate is based on the record in this case. In other cases with
different facts, application of the law of the forum state — including
federal common law — or the law of the state where the events occurred
may be appropriate.
26.
The Furundzija Tribunal based its actus reus standard
for aiding and abetting on an exhaustive analysis of international case
law and international instruments. See id. at ¶¶ 192-234.
The international case law it considered consisted chiefly of decisions
by American and British military courts and tribunals dealing with Nazi
war crimes, as well as German courts in the British and French occupied
zones dealing with such crimes in the aftermath of the Second World
War. See id. at ¶¶ 195-97. The international instruments
consisted of the Draft Code of Crimes Against the Peace and Security
of Mankind adopted by the United Nations International Law Commission
in 1996, as well as the Rome Statute of the International Criminal Court
“adopted by an overwhelming majority of the States attending the
Rome Diplomatic Conference and . . . substantially endorsed by the General
Assembly’s Sixth Committee on 26 November 1998.” Id. at 227. It is hard to argue with the Furundzija Tribunal’s
reliance on these sources.
27.
The Furundzija Tribunal based its mens rea standard for aiding and abetting
on an analysis of the same international case law and international
instruments mentioned above in note 26. See id. at ¶¶ 236-49.
The Tribunal’s reliance on these sources again seems beyond reproach.
28.
We note, however, that there may be no difference between encouragement
and moral support. See Restatement (Second) of Torts § 876
cmt. d (stating that “encouragement to act operates as a moral
support”). The concurrence claims: “Having declared . . .
that the Yugoslav Tribunal’s standard constitutes the controlling
international law, the majority cannot then escape the full implications
of being bound by the law it has selected” and “has lost whatever
opportunity it had to pick and chose the aspects of international law
it finds appealing.” Concurrence at 14256 n.9. But nowhere in this
opinion have we declared that the Yugoslav Tribunal’s standard
“constitutes the controlling international law,” id. (emphasis added), and as a result, we are also not “bound”
by every aspect of that standard, the concurrence’s protestations
notwithstanding. In fact, we have merely declared that “[w]e 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.” Supra at 14217. That is, we have done no more than declare that the decisions
by these tribunals are one of the sources of international law, rather than the source of international law. Having done so, we then
concluded that with respect to practical assistance and encouragement,
these decisions accurately reflect “the current standard for aiding
and abetting under international law as it pertains to the ATCA,”
and have left open the question whether this is also true with respect
to moral support. This procedure is not particularly noteworthy,
let alone improper. And the concurrence’s repeated references to
“the Yugoslav Tribunal’s ‘moral support’ standard,”
concurrence at 14255, 14256, are at best irrelevant and at worst intended
to suggest that we, albeit unwittingly, adopted a standard which we,
in fact, did not adopt, unwittingly or otherwise.
29.
The evidence further supports the conclusion that Unocal gave “encouragement”
to the Myanmar Military in subjecting Plaintiffs to forced labor. The
daily meetings with the Myanmar Military to show it where to provide
security and build infrastructure, despite Unocal’s knowledge that
the Myanmar Military would probably use forced labor to provide these
services, may have encouraged the Myanmar Military to actually use forced
labor for the benefit of the Project. Similarly, the payments to the
Myanmar Military for providing these services, despite Unocal’s
knowledge that the Myanmar Military had actually used forced labor to
provide them, may have encouraged the Myanmar Military to continue to
use forced labor in connection with the Project.
