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Amicus Brief in Kiobel, the Netherlands and the 30 Nos. 19-416 & 19-453 In the Supreme Court of the United States __________ NESTLÉ USA, INC., Petitioner, v. JOHN DOE I, ET AL., Respondents. __________ CARGILL, INC., Petitioner, v. JOHN DOE I, ET AL., Respondents. __________ On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit __________________ BRIEF OF INTERNATIONAL LAW SCHOLARS, FORMER DIPLOMATS, AND PRACTITIONERS AS AMICI CURIAE IN SUPPORT OF RESPONDENTS __________________ BETH VAN SCHAACK EMMA LINDSAY Counsel of Record JOVANA CRNCEVIC Visiting Professor of Law JOSEPH GALLO STANFORD LAW SCHOOL WITHERS BERGMAN LLP 559 Nathan Abbott Way 430 Park Avenue Stanford, CA 94305 New York, NY 10022 (650) 725-5310 (212) 848-9800 [email protected] [email protected] [email protected] [email protected] Counsel for Amici Curiae October 21, 2020 Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i TABLE OF CONTENTS TABLE OF AUTHORITIES . iii INTEREST OF AMICI CURIAE ................ 1 SUMMARY OF ARGUMENT . 1 ARGUMENT . 3 I. THIS COURT SHOULD DECLINE THE ACTING SOLICITOR GENERAL’S INVITATION TO CONSIDER SECONDARY LIABILITY UNDER THE ATS. 3 II. SECONDARY LIABILITY IS COGNIZABLE UNDER THE ATS. 6 A. Claims for aiding-and-abetting liability were always within the ambit of the ATS. 6 B. Today’s law of nations continues to impose secondary liability for aiding and abetting unlawful conduct . 10 1. Customary international law recognizes secondary liability, including aiding and abetting, for unlawful conduct. 12 2. Treaties prohibiting international crimes and delicts, including those ratified by the United States, mandate forms of secondary liability . 20 3. Secondary liability is a general principle of law . 22 ii C. The conduct alleged in this case is not impermissibly extraterritorial given international jurisprudence on secondary liability . 25 III. NO PRUDENTIAL REASONS EXIST TO BAR RESPONDENTS FROM ASSERTING SECONDARY LIABILITY CLAIMS UNDER THE ATS . 26 A. Barring aiding-and-abetting liability under the ATS overrides the intent of Congress . 26 B. Retaining aiding-and-abetting liability under the ATS does not trigger foreign policy concerns . 28 CONCLUSION. 31 APPENDIX List of Amici . App. 1 iii TABLE OF AUTHORITIES U.S. Cases Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008). 5 Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011). 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 26 Cabello v. Fernández-Larios, 402 F.3d 1148 (11th Cir. 2005). 5, 27 Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994) . 27, 28 Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002). 5, 24 Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013) . 5, 9, 24 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980) . 10, 29 Flomo v. Firestone National Rubber Co., 643 F.3d 1013 (7th Cir. 2011). 5, 23 Henfield’s Case, 11 F. Cas. 1099 (1793) . 8 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). 6, 7, 9, 10, 26, 27 iv Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007) . 5, 11, 23, 24, 29 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013). 25, 30 Kiobel v. Royal Dutch Petroleum, Co., 621 F.3d 111 (2d Cir. 2010) . 20 Lucia v. SEC, 138 S. Ct. 2044 (2018). 3 Mamani v. Sánchez Bustamante, 968 F.3d 1216 (11th Cir. 2020). 27 Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) . 25 Mohamad v. Palestinian Authority, 566 U.S. 449 (2012). 7 Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158 (2007). 4 Procunier v. Navarette, 434 U.S. 555 (1978). 4 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). passim Talbot v. Jansen, 3 U.S. 133 (1795). 8 The Paquete Habana, 175 U.S. 677 (1900). 12 v THE TRIAL OF JOHN WILLIAMS, FRANCIS FREDERICK, JOHN P. ROG, NILS PETERSON, AND NATHANIEL WHITE, ON AN INDICTMENT FOR MURDER ON THE HIGH SEAS: BEFORE THE CIRCUIT COURT OF THE UNITED STATES, HOLDEN FOR THE DISTRICT OF MASSACHUSETTS, AT BOSTON, ON THE 28TH OF DECEMBER, 1818 (1819) . 8 United States v. Ross, 27 F. Cas. 899 (C.C.R.I. 1813) . 8 United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) . 11 Yee v. City of Escondido, 503 U.S. 519 (1992). 3 Yousuf v. Samantar, 2012 WL 3730617 (E.D. Va. Aug. 28, 2012) appeal dismissed, 699 F.3d 763 (4th Cir. 2014) . 4 International Cases Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. 43 (Feb. 26) . 19 Oil Platforms (Iran v. U.S.), Judgment 2003 I.C.J. 161 (Nov. 6) (separate opinion by Simma, J.). 22, 23 Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Appeals Judgement (Mar. 24, 2000) . 16 vi Prosecutor v. Blagojeviæ & Jokiæ, Case No. IT-02-60- A, Appeals Judgement (May 9, 2007) . 18 Prosecutor v. Brima, et al., Case No. SCSL-04-16-T, Judgement (June 20, 2007) . 16 Prosecutor v. Brima, et al., Case No. SCSL-2004-16- A, Appeals Judgement (Feb. 22, 2008) . 17, 18 Prosecutor v. Eav, Case No. 001/18-07- 2007/ECCC/TC, Judgement (July 26, 2010) . 16 Prosecutor v. Fofana, Case No. SCSL-04-14-A, Appeals Judgment (May 28, 2008). 26 Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgement (Dec. 10, 1998) . 11, 15 Prosecutor v. Kalimanzira, Case No. ICTR-05-88-T, Judgement (June 22, 2009) . 16 Prosecutor v. Lukiæ, Case No. IT-98-32/1-A, Judgement (Dec. 4, 2012) . 18 Prosecutor v. Milutinoviæ et al., Case No IT-05-87-T, Judgement (Feb. 26, 2009) . 16 Prosecutor v. Musema, Case No. ICTR-96-13-A, Appeals Judgment (Nov. 16, 2001) . 17 Prosecutor v. Ntakirutimana, Case Nos. ICTR-96- 10-A/96-17-A, Judgement (Dec. 13, 2004) . 17 Prosecutor v. Tadiæ, Case No. IT-94-1-A, Judgement (July 15, 1999) . 17 Prosecutor v. Tadiæ, Case No. IT-94-1-T, Opinion and Judgement (May 7, 1997) . 15 vii Prosecutor v. Taylor, Case No. SCSL-03-01-A, Judgment (Sept. 26, 2013) . 18, 26 Prosecutor v. Sesay et al., Case No. SCSL-04-15-A, Appeals Judgement (Oct. 26, 2009) . 18 Prosecutor v. Simiæ, Case No. IT-95-9-T, Judgement (Oct. 17, 2003) . 25 Trial of Bruno Tesch and Two Others (The Zyklon B Case), 1 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93 (1947) (Brit. Mil. Ct., Hamburg, Mar. 1-8, 1946) . 14 United States v. Flick, 6 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 1187 (1947). 14 United States v. Goering et al., 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 171 (Int’l Mil. Trib. 1946) . 13 Treaties, Conventions, and Other International Legal Sources Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 . 12 Bürgerliches Gesetzbuch [BGB] [Civil Code] Jan. 2, 2002, Bundesgesetzblatt, as amended, § 830(2) . 23 viii Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. 20, 21 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 . 20 ICC Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2 (2000). 15 Int’l Law Comm’n, Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Rep. of the Int’l Law Comm’n on the Work of its Fifty-Third Session, U.N. GAOR, 53rd Sess., U.N. Doc. A/56/10 (2001) . 19 Int’l Law Comm’n, Draft Articles on Prevention and Punishment of Crimes Against Humanity, Report on the Work of Its Seventy-First Session, U.N. Doc. A/74/10 (2019) . 22 International Convention for the Protection of All Persons from Enforced Disappearance, Dec. 20, 2006, 2716 U.N.T.S. 3. 21 International Convention for the Suppression of Terrorist Bombings, Dec. 15, 1997, T.I.A.S. No. 02-726, 2149 U.N.T.S. 256 . 21 International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20 . 12, 13 ix Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, II Y.B. INT’L L. COMM’N 374 (1950) . 13 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Nov. 15, 2000, T.I.A.S. No. 13127, 2237 U.N.T.S. 319. 21 Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 . 15 Statute of the International Court of Justice, 59 Stat. 1005, T.S. No. 993. 11 Statute of the International Criminal Tribunal for the Former Yugoslavia, May 25, 1993, S.C. Res. 827 . 14, 15 Statute of the International Criminal Tribunal for Rwanda, Nov. 8, 1994, S.C. Res. 955 . 15 Statute of the Special Court for Sierra Leone, Mar. 8, 2002, S.C. Res. 1315 . 15 Statute of the Special Tribunal for Lebanon, May 30, 2007, S.C. Res. 1757 . 16 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Sept. 7, 1956, 226 U.N.T.S. 3 .
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