Corporate Complicity in Human Rights Abuses: The Controversy Over the Mens Rea Standard Applicable Under the Alien Tort Statute

Abstract

When corporations are accused under the Alien Tort Statute (ATS) of having aided and abetted human rights violations, one of the most common defensive arguments they adopt is that of having acted with the sole purpose of profit, and not with the intent of carrying out a human rights abuse. Such line of defence can be successful if the mens rea standard applied by the court is the restrictive “purpose” test, but it is likely to fail if the plaintiffs merely need to prove that the corporations acted in the knowledge of the perpetrator’s criminal intent. For this reason, the divergent interpretations of the mens rea standard given by several U.S. Courts of Appeals in recent ATS cases created a legal uncertainty that may be damaging to both victims of abuses and corporate defendants. Such uncertainty could be dissipated by the final verdict of the Supreme Court in the case Kiobel v. Royal Dutch Petroleum Co., expected in Autumn 2012. On February 28, 2012, the U.S. Supreme Court heard oral argument for the case Kiobel, an action brought under the ATS by a group of Nigerian citizens belonging to the Ogoni people. The court case, in which the corporate defendants are accused of having aided and abetted human rights abuses perpetrated in the 90s by the Nigerian armed forces, raises several crucial questions regarding the application of the ATS: to be under discussion is not only the future applicability of the ATS to corporate defendants, but also the extraterritorial application of the Statute and the legal definition of aiding and abetting liability to be applied in ATS cases. The present article is going to focus on the latter aspect, and, in particular, on the mens rea standard to be applied in cases of alleged complicity in the violation of human rights. The importance of such analysis stems from the very divergent approaches adopted in the matter by different U.S. Courts of Appeals, whose judges often differed on two crucial aspects: (a) the choice of the body of law from which the subjective element standard must be drawn (federal common law vs. international law), and (b) the definition of such standard (as mere “knowledge”, or as the more restrictive “purpose” standard). The present article is going to start from the analysis of some recent ATS cases (including Kiobel) in order to give an account of the different approaches adopted by the U.S. judges with regard to the subjective element of the aiding and abetting liability. It will be argued that, contrary to the conclusions reached by some U.S. Courts of Appeals, the analysis of international law sources does not support the existence of an international customary rule requiring the restrictive “purpose” standard.