United States: Fourth Circuit Aligns With Second Circuit: "Purposeful" Standard Of Mens Rea Required Under Alien Tort Statute

In a decision issued last week, the Fourth Circuit Court of Appeals chimed in on the evolving dialogue in the federal appellate courts regarding the scope of a corporation's aiding and abetting liability under the Alien Tort Statute ("ATS")1. In Aziz et al. v. Alcolac, Inc. et al.,2 the Fourth Circuit held that the ATS imposes liability for aiding and abetting violations of international law only if the attendant conduct is "purposeful". This ruling aligns the Fourth Circuit with recent rulings in the Second Circuit, but splits with authority in the District of Columbia Circuit.

As we previously reported in a series of client alerts,3 a circuit split exists on two key issues regarding liability under the ATS: first, whether the jurisdiction of the ATS is limited to claims against natural persons or extends to corporations; and second, what standard of mens rea is required to find ATS liability.

In October 2009, the Second Circuit in Presbyterian Church of Sudan v. Talisman4 held that plaintiffs bringing claims against a corporation under the ATS must allege that the company acted with the "purpose" of facilitating violations of international law – "knowledge" alone was held insufficient. Less than a year later, the Second Circuit ruled in Kiobel v. Royal Dutch Petroleum Co.5 that the jurisdiction granted by the ATS extends only to civil actions against individuals, not to actions against corporations. Then, just two months ago, the District of Columbia Circuit in Doe VIII v. Exxon Mobil Corp.6 and the Seventh Circuit in Flomo v. Firestone Nat. Rubber Co., LLC7 reached the opposite conclusion finding that corporate liability is available under the ATS. The Exxon court also held that the mens rea required for aiding and abetting liability is the lower "knowledge" standard rather than the Talisman "purposeful" standard.

These splits among several federal courts of appeal make it likely that in the near future the Supreme Court will grant certiorari in an ATS case that presents these issues.

Background of Aziz et al. v. Alcolac, Inc. et al.

Aziz was filed as a class action in 2009 by individuals of Kurdish descent alleging violations of the ATS and Torture Victim Protection Act ("TVPA")8 against corporate defendant Alcolac, Inc. ("Alcolac"), the Republic of Iraq, and additional corporate defendants. During Iraq's armed conflict with Iran in the 1980s, it was widely reported that Iraq engaged in large-scale use of mustard gas and other chemical weapons against Iran, and simultaneously launched chemical weapon attacks against the Kurds in northern Iraq. Plaintiffs alleged that Alcolac, a chemical manufacturer then a subsidiary of a British conglomerate, sold thiodiglycol ("TDG") to Saddam Hussein's Iraqi regime, even though the company allegedly knew that TDG would be used to manufacture mustard gas.9 Alcolac moved to dismiss on the grounds that the TVPA did not permit corporate liability, and that the plaintiffs failed to plead the appropriate mens rea to state a claim under the ATS. The district court granted Alcolac's motion to dismiss in June 2010 and the plaintiffs appealed.


Claims under the TVPA

The district court ruled that the TVPA provides for recovery only against "individuals". The appellate court agreed, applying the common meaning of the term "individual" to preclude corporate liability under the TVPA. The district court's dismissal of the appellants' TVPA claims was affirmed.

Claims under the ATS

The appellate court next turned to the district court's dismissal of the appellants' ATS claims. Alcolac argued that the ATS bars the appellants from seeking relief on an aiding and abetting theory because such a claim is not recognized under international law. It also argued that the appellants did not allege facts sufficient to show that Alcolac acted with the "purpose" of facilitating genocide against the Kurds.10

The district court had presumed that aiding and abetting liability is permitted under the ATS, but the appellate court, as part of its de novo review, analyzed the issue and concluded that the ATS permits aiding and abetting liability. The appellate court discussed the Supreme Court's decision in Central Bank of Denver v. First Interstate Bank of Denver,11 which ruled that aiding and abetting liability is not permitted in civil cases except where expressly authorized. It reasoned, however, that the Central decision did not preclude aiding and abetting liability under the ATS, as Congress gave explicit authority to federal courts to hear claims under the ATS "committed in violation of the law of nations."12

The appellate court then affirmed the district court's ruling on the applicable mens rea standard, adopting the Second Circuit's Talisman analysis as the law of the Fourth Circuit.13 The appellate court noted that the Talisman panel was persuaded by Judge Katzmann's concurring opinion in Khulumani v. Barclay Nat'l Bank Ltd.,14 which held that that "a defendant may be held liable under international law for aiding and abetting the violation of that law by another when the defendant (1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime and (2) does so with the purpose of facilitating the commission of that crime."15

In following Judge Katzmann's reasoning, and by extension, Talisman's, the Fourth Circuit rejected the appellants' argument to adopt the holding reached in Exxon, which defined the scope of aiding and abetting liability to reach those who provided "knowing" assistance that had a substantial effect on the commission of an international crime. The basis for the Exxon court's conclusion was that the decisions of the International Criminal Tribunal for the Former Yugoslavia ("ITCY") and the International Criminal Tribunal for Rwanda ("ICTR") (providing a "knowing" standard) were more authoritative than the Rome Statute (providing for a "purposeful" standard). The Exxon court found that the ITCY and ICTR decisions were "international tribunals mandated by their charter to apply only customary international law."16

Instead, the Fourth Circuit agreed with the Second Circuit that applicable law required courts to look to the "law of nations" to determine the reach of the ATS. In contrast with the Exxon court, it adopted Judge Katzmann's conclusion that the Rome Statute's status as a treaty "cuts in favor of accepting its mens rea standard as authoritative for purposes of aiding and abetting liability", constituting a "source of the law of nations" more authoritative than ICTY and ICTR tribunals.17 The Aziz decision found that the specific intent mens rea standard for accessorial liability explicitly embodied in the Rome Statute is most consistent with norms of international law and is the only standard that has gained the "requisite acceptance among civilized nations for application in an action under the ATS."18 It held that, in contrast, no consensus exists for imposing liability on those who knowingly, but not purposefully, aid and abet a violation of international law.19


The "purposeful" mens rea requirement articulated by Aziz raises the pleading bar for ATS claims in the Fourth Circuit. On a larger scale, the Aziz decision deepens the divide between the circuits on the dual issues of the requisite mens rea and corporate liability under the ATS, making it likely that the Supreme Court will review this issue in the near future.



1 28 U.S.C. § 1350.

2 1:09-cv-00869-MJG (4th Cir. Sept. 19, 2011).

3 See "No Liability for Violations of International Law Unless Aid Was Purposeful, Second Circuit Rules in Case Brought Under Alien Tort Statute" (October 13, 2009); "Second Circuit Rejects Corporate Liability Under the Alien Tort Statute" (September 22, 2010); "Second Circuit Denies Rehearing in Kiobel: Confirms That the Circuit Does Not Recognize Corporate Liability Under the Alien Tort Statute" (February 10, 2011); and "DC and Seventh Circuits Split From Second Circuit: Allow for Corporate Liability Under Alien Tort Statute" (July 29, 2011).

4 582 F.3d 244, 258-59 (2d Cir. 2009).

5 621 F.3d 111 (2d Cir. 2010).

6 No. 09-7125, 2011 WL 2652384 (D.C. Cir. July 8, 2011).

7 No. 10-3675, 2011 WL 2675924 (7th Cir. July 11, 2011).

8 Pub. L. No. 102-256, 106 Stat. 73 (codified at 28 U.S.C. § 1350, note).

9 1:09-cv-00869-MJG, Slip Op. 2-3 (4th Cir. Sept. 19, 2011).

10 On appeal, Alcolec also argued that corporations cannot be sued under the ATS. However, because this argument was not raised at the district court level, the appellate court declined to rule on it. Aziz, 1:09-cv-00869-MJG, Slip Op. at 11, n. 6.

11 511 U.S. 164 (1994).

12 Aziz, 1:09-cv-00869-MJG, Slip Op. at 14.

13 The district court had accepted the Second Circuit's analysis in Talisman, and, finding that the plaintiffs' Amended Complaint failed to plead facts sufficient to establish that Alcolac sold TDG with the purpose of facilitating genocide, dismissed the ATS claims. Id. at 18.

14 504 F.3d 254, 323-24, 337 (2d Cir. 2007).

15 Aziz, 1:09-cv-00869-MJG, Slip Op. at 15, citing Talisman, 582 F.3d at 258 (quoting Khulumani, 504 F.3d at 277 (Katzmann, J., concurring)).

16 Id. at 17, citing 2001 WL 2652384, at *16.

17 Id. at 21.

18 Id. at 23, citing 582 F.3d at 259.

19 The Fourth Circuit also noted that the appellants' allegation that Alcolac placed TDG "into the stream of international commerce with the purpose of facilitating the use of said chemicals in the manufacture of chemical weapons to be used, among other things, against the Kurdish population in northern Iraq" was nothing more than a legal conclusion not entitled to the assumption of truth under Ashcroft v. Iqbal, 129 S.Ct. at 1950 (2009).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions