Full opinion text
OPINION & ORDER SHIRA A. SCHEINDLIN, District Judge. TABLE OF CONTENTS I. INTRODUCTION........................................................240 II. BACKGROUND..........................................................241 A. Core Allegations......................................................241 B. Procedural Background ...............................................243 III. LEGAL STANDARDS....................................................245 A. Motion to Dismiss ....................................................245 B. The Mien Tort Claims Act............. 245 IV. EXTRATERRITORIALITY...............................................246 V. RECOGNIZED TORTS..................................... 247 A. Applicable Law.......................................................248 1. Recognition of Torts Under the Law of Nations.......................248 2. Corporate Liability................................................250 B. Discussion...........................................................250 1. Apartheid by a Non-State Actor....................................250 2. Arbitrary Denationalization by a State Actor..........................252 3. Cruel, Inhuman, or Degrading Treatment............................253 4. Corporate Liability................................................254 VI. SECONDARY LIABILITY STANDARDS ..................................255 A. Source of Law........................................................255 B. Aiding and Abetting ..................................................257 1. Actus Reus.......................................................257 2. Mens Rea........................................................259 C. Conspiracy ..........................................................263 VII. SPECIFIC AIDING AND ABETTING CLAIMS.............................263 A. The Ntsebeza Complaint...............................................263 1. The Automotive Defendants........................................264 2. International Business Machines Corporation.........................265 3. Barclays Bank PLC...............................................266 B. The Khulumani Complaint.............................................266 1. Automotive Defendants............................................266 2. The Technology Defendants........................................268 3. Banking Defendants...........................:...................269 4. Rheinmetall Group A.G.............................................269 VIII. ALTER-EGO AND AGENCY.............................................270 A. Applicable Law.......................................................270 1. Piercing the Corporate Veil.........................................271 2. Corporate Agency.................................................272 B. Discussion...........................................................273 1. Piercing the Corporate Veil.........................................274 2. Corporate Agency.................................................274 IX. PRUDENTIAL DOCTRINES.............................................276 A. Factual Background ..................................................276 1. United States Government Statements...............................276 2. South African Government Statements...............................277 3. Statements by TRC Commissioners .................................278 B. Applicable Law.......................................................280 1. Case-Specific Deference...........................................280 2. Political Question Doctrine.........................................281 3. International Comity..............................................282 C. Discussion...........................................................283 1. Political Question .................................................283 2. Comity..........................................................285 D. Re-Soliciting Governmental Views......................................286 X. STATUTE OF LIMITATIONS.............................................286 A. Applicable Law.......................................................287 1. Equitable Tolling .................................................287 2. Relation Back ....................................................289 3. American Pipe Tolling.............................................290 B. Discussion...........................................................291 1. Equitable Tolling .................................................291 2. Relation Back and American Pipe Tolling ............................291 XI. STANDING .............................................................293 A. Applicable Law.......................................................293 B. Discussion...........................................................295 XII. CONCLUSION ..........................................................296 The truth about apartheid — about its causes and effects ... about who was responsible for its maintenance — continue to emerge. This litigation is one element of that emergence. — Archbishop Desmond Tutu and Commissioners of the Truth and Reconciliation Commission of South Africa I. INTRODUCTION Two actions brought on behalf of massive classes of South Africans (“plaintiffs”) assert that several multinational corporations (“defendants”) aided and abetted torts in violation of customary international law. Plaintiffs claim jurisdiction in United States courts under the Alien Tort Claims Act ( ATCA ). These lawsuits address the obligations of corporations under the law of nations, the role of American courts in enforcing universal norms of international law, and the legacy of South African apartheid. After more than six years of litigation, defendants have filed a second consolidated motion to dismiss these actions in their entirety. Plaintiffs have filed a motion to re-solicit the views of the Governments of the United States and South Africa concerning this litigation. For the reasons that follow, defendants’ motion to dismiss is granted in part and denied in part. Plaintiffs’ motion to re-solicit the views of the governments is denied. II. BACKGROUND A. Core Allegations The crimes of the apartheid regime that governed South Africa from 1948 to 1994 are well documented. Beginning in the late 1940s, the South African Government instituted a separation of the races, starting with classification and anti-miscegenation laws and proceeding swiftly to geographic segregation. In 1951, passage of the Bantu Authorities Act created “homelands” that were eventually labeled distinct nations. Black South Africans were forcibly removed to bantustans created by this Act then stripped of their South African citizenship. Resistance to these policies led to violent state repression beginning with the Sharpesville Massacre of March 21, 1960, continuing through the Soweto Uprising of 1976 and conflicts between the apartheid government and resisters that stretched through the 1980s. Moreover economic, political, and educational aspects of apartheid led to the full-scale disenfranchisement and marginalization of the majority of the South African population. Plaintiffs allege that defendants — through both their direct practices and the provision of substantial assistance to the apartheid regime — bear some measure of responsibility for the crimes that pervaded that dark era in South African history. Plaintiffs in the first action, Ntsebeza v. Daimler A.G. (“Ntsebeza plaintiffs”), allege that they suffered discriminatory employment practices, employment retaliation for political beliefs, geographic segregation, arbitrary arrest and detention, torture, forced exile, arbitrary denationalization, and the extrajudicial killing of family members. The Ntsebeza plaintiffs bring a class action on behalf of “themselves and all black South African citizens (and then-heirs and beneficiaries) who during the period from 1973 to 1994 suffered injuries” as a result of defendants’ direct and secondary violations of the law of nations. Plaintiffs in the second action, Khulumani v. Barclays National Bank Ltd. (“Khulumani plaintiffs”), include both Khulumani — a South African organization that “works to assist victims of apartheid-era violence” — and individuals who suffered geographic segregation, arbitrary arrest and detention, rape, torture, and the extrajudicial killing of family members. The Khulumani plaintiffs bring a class action on behalf of four distinct classes: •An “extrajudicial killing class” of all surviving personal representatives of persons who were subject to extrajudicial killing by South African security forces between 1960 and 1994; •A “torture class” of all persons who were subject to torture and rape by South African security forces between 1960 and 1994; • A “detention class” of all persons who were subject to prolonged unlawful detention by South African security forces between 1960 and 1994; and • A “cruel treatment class” consisting of all persons who were subject to cruel, inhuman, and degrading treatment by South African security forces between 1960 and 1994. Defendants Daimler A.G., Ford Motor Company, and General Motors Corporation (“GM”) (collectively “the automotive defendants”) are multinational automotive companies headquartered in Stuttgart, Germany; Dearborn, Michigan; and Detroit, Michigan respectively. Defendants International Business Machines Corporation (“IBM”) and Fujitsu Ltd. (collectively “the technology defendants”) are multinational computer hardware and software corporations headquartered in Armonk, New York and Tokyo, Japan respectively. Defendants Barclays Bank PLC/Barclays National Bank Ltd. (“Barclays”) and Union Bank of Switzerland A.G. (“UBS”) (collectively “the banking defendants”) are multinational banks headquartered in London, England and both Zurich and Basel, Switzerland respectively. Finally, defendant Rheinmetall Group A.G. is a holding company headquartered in Düsseldorf, Germany and is the parent company of Oerlikon Contraves A.G., an armaments manufacturer headquartered in Zurich, Switzerland. The Ntsebeza plaintiffs allege that the automotive defendants — or their agents or alter egos — committed both direct and secondary violations of the law of nations by engaging in workplace discrimination that mimicked and enhanced apartheid, suppressing union activities, manufacturing military vehicles for the South African security forces in the face of worker protests, and assisting security forces in identifying and torturing anti-apartheid leaders. The Ntsebeza plaintiffs additionally allege that defendant IBM — or its agents or alter egos — committed secondary violations of the law of nations by providing the computer hardware, software, maintenance, and support necessary for the South African Government to carry out geographic segregation and denationalization. Finally, the Ntsebeza plaintiffs allege that defendant Barclays — or its agents or alter egos — directly and indirectly violated the law of nations through its employment practices, which furthered the geographic segregation of the races as well as economic marginalization of black South Africans. The Khulumani plaintiffs allege that the automotive defendants aided and abetted violations of the law of nations by supplying vehicles, parts, and other equipment to the apartheid security forces. The Khulumani plaintiffs additionally allege that the technology defendants aided and abetted violations of the law of nations by providing the computer systems necessary to restrict black South Africans’ movements, track dissidents, and target particular individuals for repressive acts. The Khulumani plaintiffs also allege that the banking defendants aided and abetting violations of the law of nations by providing financial support to the apartheid regime and the security forces through the purchase of bonds and the provision of loans, as well as by permitting directors to serve on an advisory board to the South African Defense Forces. Finally, the Khulumani plaintiffs allege that Rheinmetall aided and abetted violations of the law of nations by providing armaments and military equipment necessary to suppress dissent, control the population, and carry out extrajudicial killings. B. Procedural Background These proceedings began as over a dozen distinct cases; the two that remain were filed in 2002. A combination of individual claims and putative class actions, the cases alleged both direct and secondary tort liability for violations of customary international law perpetrated in apartheid South Africa. On December 20, 2002, the United States Judicial Panel on Multidistrict Litigation centralized' pretrial proceedings before Judge John E. Sprizzo of the Southern District of New York. On July 14, 2003, defendants who did not contest personal jurisdiction moved to dismiss the actions. On November 29, 2004, Judge Sprizzo granted defendants’ motion to dismiss in full on the grounds that aiding and abetting liability is not available under the ATCA. Plaintiffs appealed to the Second Circuit, and on October 12, 2007, the Circuit affirmed in part and reversed in part. In a short per curiam opinion, the Circuit upheld dismissal of plaintiffs’ claims under the TVPA and held that these cases failed to meet the requirements of diversity jurisdiction. However, the Circuit reinstated plaintiffs’ ATCA claims, expressly holding that “a plaintiff may plead a theory of aiding and abetting liability under the ATCA.” Moreover, the Circuit vacated the lower court’s holding that prudential concerns warranted dismissal and remanded for further analysis. Each judge on the panel filed a lengthy concurring opinion. Judge Robert Katzmann, concurring, wrote that secondary liability standards for torts recognized under the ATCA should be determined based on customary international law. Judge Peter Hall, concurring, wrote that such analysis is a matter of federal common law. Judge Edward Korman, concurring in part and dissenting in part, wrote that secondary liability standards should be determined based on customary international law but that aiding and abetting liability is not sufficiently established under customary international law. Moreover, Judge Korman argued at length that these eases should have been dismissed on numerous other independent grounds, including the political question doctrine, international comity, and an absence of liability for corporate defendants under customary international law. Defendants next petitioned to the Supreme Court for a writ of certiorari, but four justices recused themselves. As the Court was unable to muster the requisite quorum of six justices, it affirmed the decision of the Second Circuit in a non-precedential summary order. On remand to the district court, plaintiffs filed the two amended, consolidated Complaints that now constitute the entirety of this litigation: Khulumani v. Barclays National Bank Ltd. and Ntsebeza v. Daimler AG. (which incorporates the allegations of Digwamaje v. IBM Corporation, another major case within this multidistrict litigation). On December 8, 2008, all defendants but Rheinmetall filed the instant motion to dismiss. III. LEGAL STANDARDS A. Motion to Dismiss In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must “ ‘accept as true all of the factual allegations contained in the complaint’ ” and “draw all reasonable inferences in the plaintiffs favor.” A complaint must provide “the grounds upon which [the plaintiffs] claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level’ ” in order to survive a motion to dismiss. Although the complaint need not provide “detailed factual allegations,” it must nonetheless “amplify a claim with some factual allegations ... to render the claim plausible.” “[B]ald assertions and conclusions of law will not suffice.” B. The Alien Tort Claims Act Plaintiffs claim jurisdiction in this Court under the ATCA based on torts committed in violation of customary international law. The statute states in its entirety, “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In 1980, the Second Circuit held in Filártiga v. Peña-Irala that the ATCA conveys jurisdiction for civil claims concerning violations of “universally accepted norms of the international law of human rights, regardless of the nationality of the parties.” In 2004, the Supreme Court upheld the core of Filártiga in Sosa v. Alvarez-Machain. The Court also provided important guidance concerning the function of the ATCA. At its core, the ATCA is a grant of jurisdiction. However, the ATCA performs a broader role than authorizing federal courts to hear cases brought under statutorily defined torts or self-executing treaties. Rather, pursuant to the ATCA, federal courts may “hear claims in a very limited category defined by the law of nations and recognized at common law.” When the First Congress passed the ATCA in 1789, three such offenses had been expressly identified in Blackstone’s Commentaries: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” The Second Circuit has recognized several additional common law torts defined by customary international law. IV. EXTRATERRITORIALITY Defendants argue that the ATCA does not provide this Court with jurisdiction to address torts stemming from extraterritorial events. The vast majority of acts described in the Complaints occurred outside of the United States. However, that is no bar to this Court’s jurisdiction. “Legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” However, “[i]t is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction.” The ATCA is a jurisdictional provision and grants authority only to “[t]he district courts,” which are uniformly found on U.S. soil. The ATCA does not by its own terms regulate conduct; rather it applies universal norms that forbid conduct regardless of territorial demarcations or sovereign prerogatives. Therefore, unlike the application of specific rules formulated by American legislators or jurists, the adjudication of tort claims stemming from acts committed abroad will not generate conflicting legal obligations, and there is a substantially reduced likelihood that adjudication will legitimately offend the sovereignty of foreign nations. In Wiwa v. Royal Dutch Petroleum Co., the Second Circuit stated that “the text of the [ATCA] seems to reach claims for international human rights abuses occurring abroad.” While this pronouncement may not be a definitive statutory analysis, the Circuit’s statement — read in concert with its rejection of forum non conveniens as a bar to adjudication of torts in violation of the law of nations based on extraterritorial acts — permits this Court to entertain ATCA claims based on extraterritorial conduct. Moreover, the Ninth Circuit has squarely held that a court’s jurisdiction to hear claims under the ATCA is not limited by “the locus of the injury.” Numerous other district courts have adjudicated ATCA claims arising from extraterritorial events. Given the universal agreement of federal courts, as well as the inapplicability of the presumption against extraterritorial application of statutes, defendants’ extraterritoriality defense is rejected. The ATCA provides this Court with the authority to hear claims for torts committed abroad, including the allegations at issue in this case. V. RECOGNIZED TORTS The Complaints allege that defendants have committed a panoply of torts, under both direct and secondary liability theories. Specifically, the Ntsebeza plaintiffs allege apartheid, under direct, aiding and abetting, and conspiracy theories; denial of the right to a nationality, under aiding and abetting and conspiracy theories; extrajudicial killing, under aiding and abetting and conspiracy theories; torture, under aiding and abetting and conspiracy theories; and cruel, inhuman, or degrading treatment (“CIDT”), under direct, aiding and abetting, and conspiracy theories. The Khulumani plaintiffs allege apartheid, extrajudicial killing, torture, prolonged unlawful detention, and CIDT, all under aiding and abetting and conspiracy theories. Defendants do not contest that many of these torts are cognizable under international law. However, they dispute the existence of causes of action for apartheid by a non-state actor and for denial of the right to a nationality by a state actor. Moreover, although defendants do not contest the existence of customary international law forbidding CIDT, this Court must outline the scope of that prohibition in order to assess the sufficiency of plaintiffs’ allegations. Finally, defendants assert that the law of nations does not recognize corporate liability for any of these torts. A. Applicable Law 1. Recognition of Torts Under the Law of Nations As noted earlier, at the time Congress enacted the ATCA, three torts were recognized at common law as violations of the law of nations: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Customary international law has evolved significantly in the more than two hundred years since passage of the First Judiciary Act. As a result, the number of torts that violate the law of nations has increased, and Congress has erected no barrier to their recognition under the ATCA. A tort that violates customary international law will be recognized if the norm alleged (1) is defined with a specificity comparable to the 18th-centu-ry paradigms discussed in Sosa, (2) is based upon a norm of international character accepted by the civilized world, and (3) is one that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern. “[T]he door is still ajar subject to vigilant doorkeeping.” Both private individuals and those acting under the color of law may be liable for violations of customary international law, but the question of whether tort liability exists is distinct for each category of defendant. Moreover, a defendant is liable solely with regard to international norms in effect at the time of the allegedly tortious act. Under this rubric, the Second Circuit has recognized tort liability for torture, genocide, and war crimes committed by both state and non-state actors. Moreover, a state actor may be held liable for the tort of “large-scale, nonconsensual drug testing on humans.” The Ninth Circuit has recognized additional causes of action against state actors for summary execution and prolonged and arbitrary detention and against non-state actors for forced labor. However, not every claim asserted to be a tort in violation of customary international law has been recognized as actionable under the federal courts’ ATCA jurisdiction. In Sosa, the Supreme Court held that short-term arbitrary detention does not trigger tort liability. The Second Circuit has declined to recognize torts in violation of international law for private racial or religious discrimination, violation of a “right to life or right to health,” failure to provide consular notification and access after arrest, and regulatory takings, and the Ninth Circuit has declined to recognize a tort in violation of the law of nations for simple fraud. The Eleventh Circuit has also declined to recognize a cause of action for CIDT. “[T]he usage and practice of States — as opposed to judicial decisions or the works of scholars — constitute the primary sources of customary international law.” When determining whether to recognize a tort in violation of customary international law, however, a court makes a holistic assessment of state practice along with international legal materials, treaties, and proclamations. Although adherence to rules articulated in a particular source of law need not be absolute, some international legal instruments will have little to no evidentiary weight when determining the universal law of nations. 2. Corporate Liability Footnote twenty of Sosa v. Alvarez-Machain anticipated that suits under the ATCA might be brought against “an individual actor such as a corporation or individual” and noted the need for separate analysis of the applicability of particular norms of customary international law to state and nonstate actors. Although relying on pre-Sosa eases, Judge Katzmann wrote in his Khulumani concurrence that decisions of the Second Circuit “have repeatedly treated the issue of whether corporations may be held liable under the ATCA as indistinguishable from the question of whether private individuals may be.” Other circuits have also implicitly extended ATCA liability to corporations. B. Discussion I. Apartheid by a Non-State Actor “Racial discrimination is a violation of customary law when it is practiced systematically as a matter of state policy.” However, private racial discrimination alone, “[hjowever reprehensible,” does not violate customary international law. Plaintiffs contend that context matters; in the context of apartheid, private racial discrimination, denial of the right to work, freedom of expression, and freedom of association constitute acts of apartheid by a non-state actor. Nonetheless, this claim does not meet the requisite standard of specificity, international character, and universal acceptance based on “legal obligation and mutual concern.” Plaintiffs advance two international legal instruments as the source of their claim: the International Convention on the Suppression and Punishment of the Crime of Apartheid (“the Apartheid Convention”) and the Rome Statute of the International Criminal Court (“ICC”). However, the Apartheid Convention is not a persuasive source for the determination of a norm of international character accepted by the civilized world. Despite near-universal condemnation of apartheid, Western European and North American countries have neither signed nor ratified the treaty. This illustrates substantial international conflict concerning acceptance of the precise norms articulated in the text of the Apartheid Convention. Moreover — according to State Department reports — a substantial proportion of the nations that have ratified the Apartheid Convention have poor human rights records. A treaty signed by countries that routinely violate human rights obligations is less likely to articulate norms that those countries “abide by, or accede to, out of a sense of legal obligation.” Therefore the sole remaining potential source for a tort of apartheid by a non-state actor is the Rome Statute, which defines the crime of apartheid as inhumane acts ... committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime. Inhumane acts are further defined as actions of a character similar to murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution against any identifiable group, or enforced disappearance. Theoretically, a private act of apartheid may be described with the requisite degree of specificity. The elements of private apartheid would be (1) persecution against any identifiable group (2) committed in the context of an institutionalized regime of systemic racial discrimination (3) with the intention of maintaining that regime. This reading of the Rome Statute is strained to say the least; a more reasonable interpretation of that statute would require a combination of acts similar to those defined by statute as inhumane. Moreover, the need for such particularized analysis of a single international legal instrument demonstrates that private apartheid is not a uniformly-accepted prohibition of international character. Although the establishment of state-sponsored apartheid and the commission of inhumane acts needed to sustain such a system is indisputably a tort under customary international law, the international legal system has not thus far definitively established liability for non-state actors who follow or even further state-sponsored racial oppression. Therefore, this Court declines to recognize a tort of apartheid by a non-state actor. The Ntsebeza plaintiffs’ direct liability claims must be dismissed. 2. Arbitrary Denationalization by a State Actor No federal case has addressed whether arbitrary denationalization by a state actor is a tort in violation of customary international law. However, this prohibition is defined with specificity, is based upon an accepted international norm, and is nearly universally accepted out of both “legal obligation and mutual concern.” The Restatement (Third) of the Foreign Relations Law of the United States notes, Traditional international law did not question the authority of a state to terminate the nationality of any of its nationals. Increasingly, the law has accepted some limitations on involuntary termination of nationality, both to prevent statelessness and in recognition that denationalization can be an instrument of racial, religious, ethnic, or gender discrimination, or of political repression. From this statement, definite elements of a tort may be recognized. A state actor commits arbitrary denationalization if it terminates the nationality of a citizen either arbitrarily or on the basis of race, religion, ethnicity, gender, or political beliefs. The wealth of international legal instruments articulating a prohibition against arbitrary denationalization indicates both the international nature of the norm and the breadth of its acceptance. In 1907, the Hague Convention Respecting the Laws and Customs of War on Land first articulated that individuals have a right to retain their citizenship, even in the face of a hostile invasion. Soon thereafter, the United States representative to a 1916 conference concerning the codification of international law stated, “The scope of municipal law governing nationality must be regarded as limited by consideration of the rights and obligations of individuals and other states.” Since then the United States has joined over a hundred other nations in signing and ratifying the International Convention on the Elimination of All Forms of Racial Discrimination, which recognizes that a country may not deprive citizens of their nationality on the basis of race. Finally, broadly accepted regional international legal materials repeat this prohibition. The bar on arbitrary denationalization reflects both “legal obligation and mutual concern.” States face condemnation for violating this norm, including suit in the International Court of Justice. Moreover, as the Restatement notes, the prohibition on arbitrary denationalization reflects international concern regarding the existence of stateless persons. In short, I conclude that the tort of arbitrary denationalization satisfies the Second Circuit’s test for recognition of a tort in violation of the law of nations. 3. Cruel, Inhuman, or Degrading Treatment The international norm forbidding CIDT is enshrined in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), a nearly-universally accepted multilateral treaty. CAT states, Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture ..., when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. However, the widespread acceptance of the CAT does not render all cruel, degrading, or even inhuman state conduct a violation of the law of nations. CIDT is the intentional infliction of mental or physical suffering, anguish, humiliation, fear, or debasement against a person in the offender’s custody or control that nevertheless falls short of torture. This definition rests on the use of the term in both international and American law, as explained below. The custody or control requirement, as well as the relationship between CIDT and torture, are evident throughout international law. The Rome Statute’s sole reference to CIDT is found in article 55, which addresses the “Rights of persons during an investigation.” Specifically, the Rome Statute describes CIDT as an omnibus category covering abuses such as “coercion, duress or threat to torture.” The Restatement (Third) of the Foreign Relations Law of the United States clarifies the concept of CIDT by noting, “The difference between torture and cruel, inhuman, or degrading treatment or punishment ‘derives principally from a difference in the intensity of the suffering inflicted.’ ” This definition is further buttressed by uses of the term CIDT in domestic law. The Detainee Treatment Act of 2005 states, “No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.” Similarly, Executive Order 13,440 addresses the meaning of CIDT in relation to CIA interrogation procedures. Other domestic references to CIDT repeatedly address CIDT alongside torture, which by definition must be carried out “upon another person within [the offender’s] custody or physical control.” 4. Corporate Liability Defendants allege that apart from the inquiry into whether customary international law creates liability for state and non-state actors, this Court must determine whether torts in violation of the law of nations apply to corporations. However, defendants aim to reopen a long-settled question in this Circuit. On at least nine separate occasions, the Second Circuit has addressed ATCA cases against corporations without ever hinting — much less holding — that such cases are barred. Regardless of the position that this Court might take if the issue of corporate liability were unresolved, this Court is bound by the decisions of the Second Circuit. Moreover, in Presbyterian Church of Sudan v. Talisman Energy, Inc., Judge Denise Cote of the Southern District of New York wrote two lengthy and persuasive explanations of the basis for corporate liability in ATCA cases. This Court need not repeat her analysis. Under the jurisprudence of this Circuit, corporations are liable in the same manner as natural persons for torts in violation of the law of nations. VI. SECONDARY LIABILITY STANDARDS Plaintiffs’ remaining claims do not allege direct violations of the law of nations. Rather, they assert that defendants aided and abetted violations of the law of nations committed by the apartheid government that ruled South Africa from 1948 to 1994. Although the Second Circuit held in this ease that “a plaintiff may plead a theory of aiding and abetting liability under the ATCA,” the division of opinion between the two authors of the per curiam opinion left this Court without a standard to apply or even a decision concerning the source of law from which this Court should derive a standard. In addition, the Second Circuit did not address the existence of conspiratorial liability under the ATCA, let alone the elements of such a claim. A. Source of Law Defendants contend that standards concerning secondary liability must be determined based on customary international law. Plaintiffs assert that secondary liability standards are properly derived from federal common law and — more importantly — that this initial inquiry is irrelevant because the results of the inquiries are the same. Although cases in this Circuit have only required consultation of the law of nations concerning the existence of substantive offenses, the language and logic of Sosa require that this Court turn to customary international law to ascertain the contours of secondary liability as well. The ATCA “enable[s] federal courts to hear claims in a very limited category defined by the law of nations.” As Judge Katzmann recognized in his concurrence, an allegation of aiding and abetting a violation of international law or conspiring to violate international law asserts a distinct claim. Thus the judicial act remains one of “recognition,” not common law rule-making. There can be no doubt that aiding and abetting claims create liability for a distinct form of conduct. This Court’s jurisdiction under the ATCA allows only for the regulation of conduct that is universally forbidden. Moreover, Sosa’s admonition that courts must exercise “an element of judgment about the practical consequences” before recognizing liability under the ATCA necessitates the use of customary international law as the source of law concerning secondary liability. The practical consequences of regulating secondary liability under the ATCA affect conduct around the globe. The United States does not establish such rules alone. As the ATCA is merely a jurisdictional vehicle for the enforcement of universal norms, the contours of secondary liability must stem from international sources. Ideally, the outcome of an ATCA case should not differ from the result that would be reached under analogous jurisdictional provisions in foreign nations such as Belgium, Canada, or Spain. The task of a domestic court is to provide a forum, procedures, and a remedy. Anything more constitutes impermissible judicial policing. A secondary concern relates to Sosa’s requirement that any tort alleged pursuant to the ATCA must be defined with specificity by the law of nations. This rule stems from the Supreme Court’s nearly two-centuries old decision in United States v. Smith, which noted that if a violation of the law of nations were not defined with “reasonable certainty,” it would raise constitutional concerns. The imposition of liability based on a cause of action derived after the conduct in question from an amalgamation of the law of nations and federal common law would raise fundamental fairness concerns. B. Aiding and Abetting There are a multitude of international legal materials from which this Court may draw a standard concerning aiding and abetting liability under the ATCA. I will focus on three sets of sources that the Second Circuit has deemed particularly authoritative: the judgments of the International Military Tribunal at Nuremberg, the decisions of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”), and the Rome Statute of the International Criminal Court. 1. Actus Reus “ ![T]he 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.’ ” The parties do not dispute this. However, the parties have significantly different views as to the meaning of this language. Therefore, it is necessary to establish precisely what is meant by “a substantial effect on the perpetration of the crime.” It is (or should be) undisputed that simply doing business with a state or individual who violates the law of nations is insufficient to create liability under customary international law. International law does not impose liability for declining to boycott a pariah state or to shun a war criminal. Aiding a criminal “is not the same thing as aiding and abetting [his or her] alleged human rights abuses.” On the other hand, assistance having a substantial effect “need not constitute an indispensable element, that is, a conditio sine qua non for the acts of the principal.” An accessory may be found liable even if the crimes could have been carried out through different means or with the assistance of another. Substantial effect is best defined by analyzing the difference between two canonical decisions of the International Military Tribunal at Nuremberg. In The Ministries Case, the Nuremberg Tribunal found Karl Rasche, a banker who had facilitated large loans to a fund at the personal disposal of Heinrich Himmler — head of the S.S. — not guilty of aiding and abetting crimes against humanity. The Tribunal held that “[l]oans or sale of commodities to be used in an unlawful enterprise may well be condemned from a moral standpoint and reflect no credit on the part of the lender or seller in either case, but the transaction can hardly be said to be a crime.” The Tribunal further explained its analogy by describing commodities as “supplies or raw materials” provided to the builder of a house that the seller knows will be used for an unlawful purpose. On the other hand, in The Zyklon B Case, the Tribunal found Bruno Tesch, the owner of a firm that had manufactured and sold the poison gas used in the gas chambers in Nazi concentration camps, guilty of aiding and abetting crimes against humanity. Specifically, the Tribunal heard evidence that Tesch had both supplied Zyklon B and “undertook to train the S.S. men in this new method of killing human beings.” However, the Judge Advocate— the neutral legal advisor to the court in a British military tribunal — summed up the necessary act to prove aiding and abetting as merely supplying the gas used to execute allied nationals. The distinction between these two cases is the quality of the assistance provided to the primary violator. Money is a fungible resource, as are building materials. However, poison gas is a killing agent, the means by which a violation of the law of nations was committed. The provision of goods specifically designed to kill, to inflict pain, or to cause other injuries resulting from violations of customary international law bear a closer causal connection to the principal crime than the sale of raw materials or the provision of loans. Training in a precise criminal use only further supports the importance of this link. Therefore, in the context of commercial services, provision of the means by which a violation of the law is carried out is sufficient to meet the actus reus requirement of aiding and abetting liability under customary international law. 2. Mens Rea Even assuming that this Court would adopt secondary liability standards from customary international law, the parties still dispute what level of mens rea is necessary under the law of nations to prove aiding and abetting liability. Defendants argue that liability requires proof that an accomplice intended to further the primary violation of the law of nations. Plaintiffs claim that even under customary international law, mere knowledge that the accomplice’s acts will provide substantial assistance to the primary violation is sufficient. The vast majority of international legal materials clearly prescribe knowledge as the mens rea requirement for aiding and abetting. The ICTY set forth this standard most succinctly, requiring “knowledge that [the aider or abettor’s] actions will assist the perpetrator in the commission of the crime.” Despite the clear prevalence of the knowledge standard, this Court must adhere to the restrictive approach to mens rea laid out in Judge Katzmann’s Khulumani concurrence; in the presence of a substantial conflict in authority, this Court must set the requirement at a level where all major sources of customary international law would “authorize the imposition of such liability.” “The critical question is whether there is a discernable core definition that commands the same level of consensus as the 18th-centu-ry crimes identified by the Supreme Court in Sosa.’ This lowest-common-denominator approach also prevents the imposition of liability in American courts that might not be ordered in an alternative forum. The acquittal in The Ministries Case does not disturb the universal knowledge requirement found in international jurisprudence. The Military Tribunal found that Rasche had knowledge “as to the purpose for which the loan [was] sought, and how it [was] to be used.” However, the acquittal did not rest on the absence of criminal intent. The Tribunal never discussed whether facilitation of a loan with express intent to further the crimes of the S.S. would create criminal liability, indicating that the mens rea was not pivotal. Rather, the Tribunal focused on the nature of the act, stating, “[W]e are not prepared to state 732. that such loans constitute a violation of that law.” In other words, the Tribunal acquitted Rasche for not having met the actus reus requirement of aiding and abetting. Moreover, with regard to different defendants in the same case, the Tribunal stated, “The question is whether they knew of the program and whether in any substantial manner they aided, abetted, or implemented it.” Thus The Ministries Case does not deviate from the standard mens rea requirement found in customary international law. Nor did the Akayesu decision of the ICTR reach a contrary result. Akayesu noted that because of the nature of the crime of genocide, the act of aiding and abetting one who commits genocide could itself be considered an act of genocide, rather than an instance of secondary liability. Because genocide is a specific intent crime, when the act of aiding or abetting genocide constitutes a primary violation, specific intent is required. Nevertheless, Akayesu expressly recognized the general rule that secondary liability for aiding and abetting under customary international law requires only knowledge of the crimes of the primary actor. The Rome Statute of the International Criminal Court presents the most difficult question concerning the universality of the knowledge standard for aiding and abetting under customary international law. Article 25(c) of the Rome Statute creates criminal liability for an individual who “[for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.” On this basis, Judge Katzmann stated that the only conduct universally condemned with the degree of certainty required by Sosa is the provision of substantial assistance by an aider and abettor who shares the primary violator’s intent. However, Judge Katzmann recognized that the Rome Statute “has yet to be construed by the International Criminal Court” and that “its precise contours and the extent to which it may differ from customary international law thus remain somewhat uncertain.” The Rome Statute was not intended to eliminate rights existing under the law of nations; therefore in most cases the Statute codifies rather than modifies previously existing and clearly established customary international law. Nevertheless, where the Rome Statute explicitly deviates from the law of nations, it is fair to assume that those rules are unique to the ICC, rather than a rejection of customary international law. There is no explicit deviation in the Rome Statute with regard to aiding and abetting liability. Article 25(c) can reasonably be interpreted to conform to preRome Statute customary international law. “It remains unclear whether ‘purpose’ [in Article 25(c)] means sole purpose, primary purpose, or simply purpose as inferred from knowledge of likely consequences.” As one prominent scholar has explained, a secondary purpose can be inferred from knowledge of the likely consequences of an act. This logic is particularly prominent in the case of a person or corporation who provides the means by which a crime in violation of the law of nations is carried out, as the primary purpose — profit—is furthered by the success of an ongoing crime. Thus it may reasonably be inferred that an arms dealer providing weapons to perpetrators of a genocide tacitly supports the genocide, as it creates demand for that increases profit. Moreover, Article 25(c) does not exist in isolation. Article 30 — entitled “Mental State” — provides that: A person has intent where: (a) In relation to conduct, that person means to engage in the conduct; [and] (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. Thus even assuming that “[fjor the purpose of facilitating commission of such a crime” in Article 25(c) carries an intent requirement, within the context of the Rome Statute “intent” does not require that an aider or abettor share the primary actor’s purpose. The actions must be taken intentionally: there is no liability for the provision of assistance under duress. But the aider or abettor may be held liable if he or she is aware that the assistance provided will substantially assist the commission of crimes in violation of the law of nations. The portion of the mens rea requirement related to the outcome — rather than the act — is in fact identical to the Rome Statute’s definition of knowledge: “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” Under the Rome Statute — and under customary international law — there is no difference between amorality and immorality. One who substantially assists a violator of the law of nations is equally liable if he or she desires the crime to occur or if he or she knows it will occur and simply does not care. Therefore, there are no applicable international legal materials requiring a finding of specific intent before imposing liability for aiding and abetting a violation of customary international law. As a result, I conclude that customary international law requires that an aider and abettor know that its actions will substantially assist the perpetrator in the commission of a crime or tort in violation of the law of nations. C. Conspiracy The Second Circuit’s decision in Khulumani did not provide guidance concerning conspiratorial liability in ATCA cases. I again look to customary international law as the source of relevant authority. In Prosecutor v. Tadic, the ICTY recognized Joint Criminal Enterprise as a crime derived from customary international law and comparable to conspiracy. However, the ICC has repeatedly declined to apply a broad notion of conspiratorial liability under customary international law. Jurists from the civil law tradition have long resisted the application of conspiracy to crimes under the law of nations, as conspiracy is an Anglo-American legal concept. Importantly, the Supreme Court recently stated in Hamdan v. Rumsfeld that the law of war provides liability only for “conspiracy to commit genocide and common plan to wage aggressive war.” While Hamdan did not address the ATCA, this Court must nevertheless apply the Supreme Court’s assessment of the law of nations. Sosa requires that this Court recognize only forms of liability that have been universally accepted by the. community of developed nations. Conspiracy does not meet this standard. Therefore, this Court declines to recognize conspiracy as a distinct tort to be applied pursuant to ATCA jurisdiction. VII. SPECIFIC AIDING AND ABETTING CLAIMS Only plaintiffs’ aiding and abetting claims survive the foregoing analysis of direct and secondary liability. I now turn to an analysis of each claim. I analyze each Complaint separately, as allegations of particular actions vary a great deal between the two Complaints. A. The Ntsebeza Complaint The Ntsebeza Complaint does not merely allege that defendants engaged in commerce with a pariah state. Rather, the Ntsebeza plaintiffs allege that “many corporations, including Defendants, provided essential assistance to the apartheid state ... knowing that such assistance would lead directly to the violation of the human rights of black South Africans.” 1. The Automotive Defendants Although the allegations against each defendant must be assessed individually, the Ntsebem plaintiffs have made sufficiently similar allegations against the three automotive companies that they may be discussed together. In sum, plaintiffs have adequately pled allegations against Daimler, Ford, and GM to sustain claims for aiding and abetting apartheid, torture, extrajudicial killing, and CIDT. First, plaintiffs allege that Daimler, Ford, and GM security personnel were intimately involved in the torture and CIDT of several plaintiffs. Specifically, plaintiffs allege that management provided information about anti-apartheid activists to the South African Security Forces, facilitated arrests, provided information to be used by interrogators, and even participated in interrogations. The provision of names of anti-apartheid activists to the South African Government satisfies the actus reus requirement of torture and CIDT, as it allowed the Government to target those who opposed its rule. Moreover, the automotive companies undoubtedly knew what would happen to those whose names they provided, and the direct participation of company personnel in interrogation — if not torture — only further supports the presence of sufficient mens rea. Next, plaintiffs allege that Daimler, Ford, and GM aided and abetted extrajudicial killing through the production and sale of specialized military equipment. Plaintiffs allege that the automotive defendants sold heavy trucks, armored personnel carriers, and other specialized vehicles to the South African Defense Forces and the Special Branch, the South African police unit charged with investigating anti-apartheid groups. These vehicles were the means by which security forces carried out attacks on protesting civilians and other antiapartheid activists; thus by providing such vehicles to the South African Government, the automotive companies substantially assisted extrajudicial killing. Plaintiffs have also alleged that defendants were fully aware of the crucial role that their vehicles played in the violent suppression of anti-apartheid activities. Specifically, employees at each company allegedly protested the use of products they built to suppress apartheid. The companies allegedly acknowledged this protest but responded by stating that “it was a duty of all South Africans to support the security forces” or that all protestors “would be assumed to be members of the African National Congress” or by retaliating against protestors. Through these allegations, plaintiffs have adequately pled that defendants knew that the sale of military vehicles would substantially assist the South African Government in carrying out extrajudicial killings. In combination, the violations of customary international law that the automotive companies allegedly aided and abetted constitute apartheid. As described above, the crime of apartheid under customary international law is the commission of inhumane acts in the context of systemic racial oppression. Plaintiffs have undoubtedly pled that the inhumane acts that the automotive companies allegedly aided and abetted occurred because of and in the context of apartheid. It is beyond cavil that the automotive companies were aware of the crimes of apartheid. Therefore, the Ntsebeza Complaint adequately pleads that the automotive defendants aided and abetted apartheid, torture, extrajudicial killing, and CIDT. 2. International Business Machines Corporation The Ntsebeza plaintiffs have pled that IBM aided and abetted the South African Government’s denationalization of black South Africans through the provision of computers, software, training, and technical support. Not every violation of the law of nations involves killing, and therefore not every commercial entity that aids and abets violations of customary international law need provide a gun, a tank, or poison gas. Specifically, IBM allegedly sold the South African Government — along with the governments of the bantustans Bophuthatswana, Gazankulu, KwaZulu, Lebowa, Transkei, and Venda — computers used to register individuals, strip them of their South African citizenship, and segregate them in particular areas of South Africa. More importantly, IBM employees also assisted in developing computer software and computer support specifically designed to produce identity documents and effectuate denationalization. Such customized computerized systems were indispensable to the organization and implementation of a system of geographic segregation and racial discrimination in a nation of millions. Moreover, the records necessary to deliberately denationalize a large proportion of black South Africans were generated using equipment allegedly provided by IBM. Therefore, the Ntsebeza plaintiffs have adequately alleged the actus reus for aiding and abetting both arbitrary denationalization and the broader crime of apartheid. Plaintiffs have alleged that IBM knew how its products were being used by the South African Government and that IBM engaged in subterfuge to avoid public recriminations and an American embargo. While the direct allegations of knowledge are somewhat thin, given that IBM provided the programming expertise as well as the hardware, there is a plausible inference that the company understood the nature of the projects it assisted. Therefore, the Ntsebeza plaintiffs have adequately alleged the mens rea for aiding and abetting both arbitrary denationalization and apartheid. However, the Ntsebeza plaintiffs have not pled allegations sufficient to sustain a claim of aiding and abetting CIDT against IBM. Although theoretically the identity documents created through the use of IBM computers and software helped target individuals found outside of permitted geographic areas for CIDT, computers were not an essential element of CIDT or the means by which it was carried out. Thus the Ntsebeza plaintiffs have not met the actus reus requirement for aiding and abetting CIDT. Nor does CIDT inevitably flow from geographic segregation decrees enforced through the use of identity cards produced using IBM computers. Therefore, the Ntsebeza plaintiffs also fail to meet the mens rea requirement, even allowing all reasonable inferences in their favor. The Ntsebeza plaintiffs’ claim that IBM aided and abetted CIDT is therefore dismissed. 3. Barclays Bank PLC The Ntsebeza plaintiffs’ claims against Barclays rest on the employment practices of the bank. Although the systemic denial of job opportunities on the basis of race is abhorrent, Barclays’ employment practices do not meet the actus reus requirement of aiding and abetting apartheid. Barclays’ hiring patterns were aligned with geographic segregation already established by the South African Government. The employment practices were more akin to acquiescence to — rather than the provision of essential support for — apartheid. Nor do the claims against Barclays relate to mistreatment of individuals detained by the South African Government. Therefore, the Ntsebeza plaintiffs’ claims that Barclays aided and abetted apartheid and CIDT are dismissed. B. The Khulumani Complaint The Khulumani plaintiffs similarly do not assert claims against defendants merely for doing business with the South African Government. Rather plaintiffs claim that defendants supplied military material, computer expertise and financing that had a “substantial effect” on the commission of crimes in violation of the law of nations. 1. Automotive Defendants The Khulumani plaintiffs allege that the automotive defendants supplied vehicles, parts, and other equipment “used to patrol townships to target political opponents, repress the African population, quell public displays of dissent, and brutalize and kill many citizens as described herein.” As discussed below, these allegations are sufficient to maintain claims for aiding and abetting extrajudicial killing and apartheid against Daimler but not against GM or Ford; they do not meet the actus reus requirement for aiding and abetting against any of the automotive defendants for the various other crimes al