Full opinion text
PER CURIAM: I The plaintiffs in this action bring claims under the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”), against approximately fifty corporate defendants and hundreds of “corporate Does.” The plaintiffs argue that these defendants actively and willingly collaborated with the government of South Africa in maintaining a repressive, racially based system known as “apartheid,” which restricted the majority black African population in all areas of life while providing benefits for the minority white population. Three groups of plaintiffs filed ten separate actions in multiple federal district courts asserting these apartheid-related claims. See In re S. African Apartheid Litig., 346 F.Supp.2d 538, 542 (S.D.N.Y.2004). One group, the Khulumani Plaintiffs, filed a complaint against twenty-three domestic and foreign corporations, charging them with various violations of international law. The other two groups, the Ntsebeza and Digwamaje Plaintiffs, brought class action claims on behalf of the “victims of the apartheid related atrocities, human rights’ violations, crimes against humanity and unfair [and] discriminatory forced labor practices.” The Digwamaje Plaintiffs also brought claims under the Torture Victim Protection Act of 1991, Pub.L. 102-256, 106 Stat. 73 (1992), codified at 28 U.S.C. § 1350 note (“TVPA”), and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (“RICO”). In August 2002, the Ntsebeza Plaintiffs filed a motion with the Judicial Panel on Multidistrict Litigation (“MDL Panel”) to transfer all of the actions to the Southern District of New York, and in December 2002, the MDL Panel ordered that transfer for coordinated pre-trial proceedings. See In re S. African Apartheid Litig., 238 F.Supp.2d 1379, 1380-81 (J.P.M.L.2002). In July 2003, thirty-one of the fifty-five defendants in the Ntsebeza and Digwa-maje actions filed a joint motion to dismiss. Following the transfer of the Khulumani complaint to the Southern District of New York, eighteen of the twenty-three defendants in that action also filed a joint motion to dismiss. Later that month, Penuell Mpapa Machi-na, who was then the Minister of Justice and Constitutional Development for South Africa, submitted an ex parte declaration to the district court, stating that the South African government regarded these proceedings as interfering “with a foreign sovereign’s efforts to address matters in which it has the predominant interest” and asking that the proceedings be dismissed. After receiving the South African declaration, the district court, sua sponte, solicited the views of the United States Department of State. The State Department responded by submitting a “Statement of Interest” asserting that “continued adjudication of the above-referenced matters risks potentially serious adverse consequences for significant interests of the United States.” Ruling on the defendants’ motions to dismiss, the district court held that the plaintiffs failed to establish subject matter jurisdiction under the ATCA. The district court ruled further that the plaintiffs, having asserted diversity as an alternate basis for jurisdiction, could not establish subject matter jurisdiction on that ground. The district court also held that the plaintiffs failed to state a claim under the TVPA and failed to establish subject matter jurisdiction under RICO. See In re S. African Apartheid Litig., 346 F.Supp.2d at 554-57. The district court therefore dismissed the plaintiffs’ complaints in their entirety. See id. at 557. In March 2005, the Ntsebeza and Digwamaje Plaintiffs moved for permission to file an amended consolidated complaint, which the district court denied. See Part IV, infra. Following the district court’s issuance of an amended judgment containing an amended Rule 54(b) certification, the plaintiffs filed timely notices of appeal. II All members of the panel join to affirm the district court’s dismissal of the Digwamaje Plaintiffs’ TVPA claims. The Digwamaje Plaintiffs asserted a claim under the TVPA, alleging that the defendants “aided and abetted the apartheid regime’s subjecting the Plaintiffs to torture and extrajudicial killing within the meaning of the Torture Victim Protection Act ... under actual or apparent authority, or under color of law.” The TVPA provides: An individual who, under actual or apparent authority, or color of law, of any foreign nation- (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death. 28 U.S.C. § 1350 note § 2(a). For purposes of the TVPA, an individual “acts under color of law ... when he acts together with state officials or with significant state aid.” Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir.1995). The Digwa-maje Plaintiffs, although twice having amended their complaint, failed to link any defendants to state aid or the conduct of state officials. Further, based on the district court’s discussion of the matter of diversity jurisdiction, we affirm the dismissal of the complaints insofar as they seek to assert jurisdiction under 28 U.S.C. § 1332(a)(3). Ill Two members of this panel join to vacate the district court’s dismissal of the plaintiffs’ ATCA claims because the district court erred in holding that aiding and abetting violations of customary international law cannot provide a basis for ATCA jurisdiction. We hold that in this Circuit, a plaintiff may plead a theory of aiding and abetting liability under the ATCA. The respective rationales of Judges Katzmann and Hall are set forth in separate concurring opinions. IV We further vacate the district court's order denying plaintiffs' motion for leave to amend. In denying this motion, the district court relied, in part, on the erroneous premise that subject matter jurisdiction did not inhere and reasoned that any additional amendments to the pleadings would be futile. Because the denial of the motion rested, in part, on this erroneous premise, we vacate that order. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 177 (2d Cir.2006) ("The standard for reviewing the denial of a motion to amend a complaint is abuse of discretion .. . (internal quotation marks omitted)); see also Zervos v. Verizon N. Y., Inc., 252 F.3d 163, 169 (2d Cir.2001) ("A district court `abuses' or `exceeds' the discretion accorded to it when . . . its decision rests on an error of law (such as application of the wrong legal principle)... . ~~)• Until the district court has an opportunity to rule on the motion to amend, we cannot be sure that the pleadings in the record before us represent the final version of the plaintiffs' allegations. We therefore decline to determine whether the plaintiffs have adequately pled a violation of international law sufficient to avail themselves of jurisdiction under the ATCA and remand to the district court to allow it to address the pleadings after amendment as may be permitted has occurred. V Moreover, we decline to affirm the dismissal of plaintiffs’ ATCA claims on the basis of the prudential concerns raised by the defendants. In Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n. 21, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), the Supreme Court identified two different respects in which courts should consider prudential concerns in deciding whether to hear claims brought under the ATCA. First, the Supreme Court held that courts should consider prudential concerns in the context of determining whether to recognize a cause of action under the ATCA. Specifically, the Court explained that “the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” Sosa, 542 U.S. at 732-33, 124 S.Ct. 2739 (internal footnote omitted). Second, the Supreme Court recognized that, in certain cases, other prudential principles might operate to “limit[ ] the availability of relief in the federal courts for violations of customary international law.” Id. at 733 n. 21, 124 S.Ct. 2739. One such principle specifically identified by the Court was “a policy of case-specific deference to the political branches.” Id. This policy of “[jjudicial deference to the Executive Branch on questions of foreign policy has long been established under the prudential justiciability doctrine known as the ‘political question’ doctrine.” Whiteman v. Dorotheum GmbH & Co. KG, 431 F.3d 57, 69 (2d Cir.2005). Another prudential doctrine that the defendants raise in this case is “international comity.” See, e.g., Sosa, 542 U.S. at 761, 124 S.Ct. 2739 (Breyer, J., concurring) (suggesting that courts should consider “whether the exercise of jurisdiction under the [ATCA] is consistent with those notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its laws and their enforcement”). This doctrine, the application of which “ordinarily lies within the discretion of the district court,” asks whether “adjudication of [the] case by a United States court would offend amicable working relationships with [a foreign country].” Bigio v. Coca-Cola Co., 448 F.3d 176, 178 (2d Cir.2006) (internal quotation marks omitted). In dismissing the plaintiffs’ complaints below, the district court explicitly refrained from addressing the defendants’ arguments that the ATCA claim presented a non-justiciable political question. In re S. African Apartheid Litig., 346 F.Supp.2d at 543 n. 4 (“Defendants also argue that ... the matter is a non-justiciable political question. Given the Court’s finding that defendants are entitled to relief on other grounds, the Court need not address these remaining grounds for defendants’ motion.” (internal citation omitted)). Although the district court noted some collateral consequences that might result from the adjudication of these kinds of claims, the consequences it noted were primarily those “that would result from allowing courts in this country to hear civil suits for the aiding and abetting of violations of international norms across the globe.” Id. at 551. Furthermore, the district court expressly characterized its consideration of the collateral consequences as fulfilling its “duty to engage in ‘vigilant doorkeeping.’ ” Id. at 550 (quoting from Sosa, 542 U.S. at 729, 124 S.Ct. 2739); see also id. at 553. As Sosa makes clear, this duty is fulfilled in the decision of a federal court to exercise its judicial discretion to recognize a cause of action for a violation of customary international law, an issue distinct from whether the adjudication of a given suit is barred by political question doctrine. Sosa, 542 U.S. at 729, 124 S.Ct. 2739. We see no reason to read the district court’s citation to this part of Sosa as an indication that the court was also (and contrary to its explicit disclaimer) engaged in a consideration of the political question or other prudential doctrines. To the extent that limited portions of the district court’s discussion were addressed to the statements of interest submitted by the governments of the United States and South Africa, In re S. African Apartheid Litig., 346 F.Supp.2d at 553-54, these statements were merely illustrative of a general concern with what the court saw as the “far-reaching” consequences of the specific norm it was then discussing (ie., doing business in South Africa), id. at 553. The citation to Sosa’s footnote 21 indicates only that the district court considered the views of those governments in assessing “the collateral consequences that would result from finding a new international law violation,” id., and does not suffice to demonstrate that the court (again contrary to its stated intentions) adopted sub rosa the defendants’ political question arguments. We decline to address these case-specific prudential doctrines now and instead remand to the district court to allow it to engage in the first instance in the careful “case-by-case” analysis that questions of this type require. This approach is particularly appropriate here because the plaintiffs have indicated that, if given the opportunity, they would narrow their claims and clarify the nature of their allegations against the various defendants, changes that may affect how the district court ultimately decides to resolve these issues. Oral Argument Tr., Jan. 24, 2006 at 7-8, 14-15; cf. Zivotofsky v. Sec’y of State, 444 F.3d 614, 619-20 (D.C.Cir.2006) (holding that, where the specific relief sought by the plaintiff had changed, remand was appropriate to allow the district court to develop a more complete record as to whether the revised claim presented a nonjusticiable political question). On remand, the district court will have an opportunity to consider the guidance provided by our prior cases regarding the relevant weight of statements of interest submitted by the United States and other governments. In Whiteman, for example, we addressed “when, and to what extent, ... the stated foreign policy interests of the United States [should] be accorded deference,” and we held that we should be guided in this determination by “our application of the political question doctrine.” 431 F.3d at 69, 71. In that context, we held that “not every case ‘touching foreign relations’ is nonjusticiable and judges should not reflexively invoke these doctrines to avoid difficult and somewhat sensitive decisions in the context of human rights. We believe a preferable approach is to weigh carefully the relevant considerations on a case-by-case basis.” Id. at 69 (quoting Kadic, 70 F.3d at 249). We have held that “even an assertion of the political question doctrine by the Executive Branch, entitled to respectful consideration, would not necessarily preclude adjudication.” Kadic, 70 F.3d at 250. Likewise, although the views of foreign nations are an important consideration under the doctrine of “international comity,” we have not held them to be dispositive. See, e.g., Jota v. Texaco Inc., 157 F.3d 153, 159-61 (2d Cir.1998). At this stage in the litigation, we express no view as to what level of deference to their views is appropriate in this particular case. Instead, we remand to the district court so that it may carefully consider whether any of these doctrines require dismissal. VI We therefore Affirm the district court’s dismissal of the Digwamaje Plaintiffs’ TVPA claims. We also Affirm the district court’s determination that the plaintiffs have failed to satisfy the diversity requirements of 28 U.S.C. § 1332(a)(3). We Vacate the district court’s dismissal of the plaintiffs’ ATCA claims, as well as the district court’s denial of the Digwamaje and Ntsebeza Plaintiffs’ motions to amend and Remand for further proceedings consistent with this opinion. . The Khulumani Plaintiffs include the Khulu-mani Support Group, a South African nongovernmental organization that “works to assist victims of apartheid-era violence and has 32,700 members who are survivors of such violence,” as well as ninety-one individual plaintiffs who are "the personal representatives of victims of extrajudicial killing, or were themselves tortured, sexually assaulted, indiscriminately shot, or arbitrarily detained by the apartheid regime.” . Apparently, not all of the named defendants in the three actions have been served with complaints, and some defendants have indicated that they plan to contest personal jurisdiction. The district court’s order granting the motion to dismiss stated that it was “limited to those defendants as to whom the Court's personal jurisdiction is not contested.” In re S. African Apartheid Litig., 346 F.Supp.2d at 543 n. 3. In addition, eleven of the defendants who joined the motion to dismiss filed separate motions to dismiss on the ground that the plaintiffs’ claims were conclu-sory and failed to meet the pleading standards of Fed.R.Civ.P. 8(a). The district court did not reach those arguments in deciding the motion to dismiss. .The Ntsebeza and Digwamaje Plaintiffs moved to strike Maduna's declaration and submissions, asserting that the declaration contained "legal argument by a non-party” and "conclusory allegations not supported by any creditable citation to the record,” and recited "disputed evidentiary facts.” They also argued that international comity could only be raised by a party as an affirmative defense, and even if comity were available, "it would be inappropriate for the Court to dismiss this case without making fact-bound determinations that cannot be made on this record....” The docket sheet indicates that the district court never ruled on this motion. . Specifically, the district court inquired whether "adjudication of these cases would have an adverse impact on the interests of the United States and, if so, the nature and significance of any such impact.” . The plaintiffs sought to provide particularized allegations directed at particular defendants, to “meet the new Sosa standard,” and to clarify for the district court that their ATCA claims were not based upon the corporations "merely doing business” in South Africa. . The Digwamaje Plaintiffs have not challenged the dismissal of their RICO claim. . Although the district court rested its decision to deny the plaintiffs' motion to replead on several grounds, it is not clear from the district court's order that it would have reached the same result in the absence of its erroneous belief that any amendment would be futile. It seems most respectful of the district court's considerable discretion in this area to allow it to determine in the first instance whether to allow the plaintiffs to replead. In that same vein, we also leave to the district court on remand the first opportunity to consider any motion that may be filed by the Khulumani plaintiffs seeking permission to amend their complaint. We do not, however, believe it is necessary to vacate the district court's order to the extent that it denied the plaintiffs’ motion with respect to their TVPA claims. Given that the plaintiffs had previously amended their complaint twice and did not bring the present motion to amend until after the district court's order dismissing the case, the district court did not abuse its discretion in denying them leave to replead. See, e.g., Gurary v. Winehouse, 235 F.3d 792, 801 (2d Cir.2000) ("A district court has broad discretion in determining whether to grant leave to amend, and we review such determinations for abuse of discretion.”). . In his dissent, Judge Korman adamantly asserts that our opinion fails to show deference to the position of the Republic of South Africa, a position that also commands the support of the United States Department of State. Opinion of Judge Korman at 306-11. He presents an analysis of prudential considerations, the strength of which we decline to address, that may well suggest a roadmap for future motion practice before the district court on remand. Id. at 295-306. Implicit throughout is the suggestion that by correcting the district court's error and clarifying the applicability of accessorial liability to violations of international law, we have somehow irrevocably, and to the derogation of South Africa's sovereignty, relegated the plaintiffs’ claims to the judicial processes of the United States. With all due respect, Judge Korman's position in this regard is overstated and ignores the fact that well before any steps can be taken to address the merits of plaintiffs' claims, the district court may allow for a full airing of prudential concerns and, if it so chooses, engage in an analysis of, and decision regarding, those and other issues, something that has been heretofore lacking. . We reject the proposition endorsed by Judge Korman that the Supreme Court, in a footnote written while deciding a different case, would instruct us on how to decide this case, which was not before it. Opinion of Judge Korman at 295-96. Instead, we take the Supreme Court’s language in footnote 21 of Sosa at face value, as simply observing that there is a strong argument that the views of the Executive Branch on the issue of the case's impact on foreign policy should be given "serious weight.” Sosa, 542 U.S. at 733 n. 21, 124 S.Ct. 2739. We view summary dismissal at the behest of a footnote as premature. See Cent. Va. Cmty. College v. Katz, 546 U.S. 356, 363, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006). . The parties agree that Sosa’s reference to “case-specific deference” implicates either the political question or international comity doctrine. . Judge Korman suggests that the content of the Defendant's Joint Motion to Dismiss (“Joint Motion”), cited by the district court, supports the view that the issue of deference to other political branches was addi-essed below. Opinion of Judge Korman at 307. We fail to see how the content of a motion, the basis for which Judge Korman concedes the district court "declin[ed] to address,” id., lends any support to the proposition that the district court reached the issues addressed therein. . It was error for the district court to consider these collateral consequences in the context of deciding preliminarily whether it had jurisdiction to hear this case under the ATCA. However, even if we construed the district court's discussion of the “collateral consequences” as a decision not to recognize a cause of action for plaintiffs’ claims, in which context consideration of these consequences would have been appropriate, remand would still be necessary because the district court's decision not to recognize a cause of action might still have rested, in part, on its erroneous view that the ATCA does not allow for claims of aiding and abetting liability. Because we cannot know whether the district court would have declined to recognize the cause of action plaintiffs bring in the absence of that error, we believe it is appropriate to remand, so it can have the opportunity to decide this issue in the first instance. . While we cannot know how these developments will affect the positions of the United States and South Africa with respect to this litigation, the district court may wish to solicit anew the views of these governments, and thus that fact, too, counsels against us reaching these issues at this time. . We do not believe the Supreme Court’s statement in Sosa is to the contrary. Sosa, 542 U.S. at 733 n. 21, 124 S.Ct. 2739 (noting only that "there is a strong argument that federal courts should give serious weight to the Executive Branch's view of the case's impact on foreign policy"). Indeed, to give dispositive weight to the Executive Branch's views would likely raise serious separation-of-powers concerns. Cf., e.g., First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 763, 92 S.Ct. 1808, 32 L.Ed.2d 466 (1972) (Powell, J., concurring) ("I would be uncomfortable with a doctrine which would require the judiciary to receive the Executive’s permission before invoking its jurisdiction. Such a notion, in the name of the doctrine of separation of powers, seems to me to conflict with that very doctrine.”).
KATZMANN, Circuit Judge, concurring: This case calls upon us in principal part to determine whether the district court erred in concluding that it does not have jurisdiction over the plaintiffs’ claims brought under the Alien Torts Claim Act (“ATCA”), 28 U.S.C. § 1350. I respectfully believe that the district court erred in its analysis of plaintiffs’ ATCA claims in two fundamental respects. First, it conflated the jurisdictional and cause of action analyses required by the ATCA. As a result, the district court mistakenly incorporated a discretionary analysis into the determination of whether it has jurisdiction under the ATCA. Second, it erroneously held that aiding and abetting liability does not exist under international law. I The ATCA provides that “[t]he 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.” Id. When we last substantively grappled with the meaning of this statute, we noted that “neither Congress nor the Supreme Court ha[d] definitively resolved the complex and controversial questions regarding the meaning and scope of the ATCA.” Flores v. S. Peru Copper Corp., 414 F.3d 233, 247 (2d Cir.2003). The next year the Supreme Court weighed in on the modern resurgence of the statute in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). While the Court did not definitively resolve all of the complex and controversial questions the ATCA raises, it did clarify to a significant degree how claims brought under the ATCA should be analyzed. Sosa endorsed our Court’s prior approach to the ATCA to the extent that we recognized that the Act created jurisdiction for a narrow set of violations of international law, see id. at 720, 124 S.Ct. 2739 (“Congress intended the [ATCA] to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations.”); see also Filartiga v. Pena-Irala, 630 F.2d 876, 887-88 (2d Cir.1980) (construing the ATCA “as opening the federal courts for adjudication of ... well-established, universally recognized norms of international law”), and that a plaintiffs claim “must be gauged against the current state of international law,” Sosa, 542 U.S. at 733, 124 S.Ct. 2739; see also Filartiga, 630 F.2d at 881 (“[I]t is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.”). The Court also generally endorsed the cautious approach that we had long applied in determining whether to hear cases brought under the ATCA. See, e.g., Sosa, 542 U.S. at 728-29, 124 S.Ct. 2739 (noting that “great caution” must be exercised in deciding which “norms of today’s law of nations may ... be recognized legitimately by federal courts”); see also Flores, 414 F.3d at 248 (“[I]n determining what offenses violate customary international law, courts must proceed with extraordinary care and restraint.”). Sosa did, however, deviate from our case law in one crucial respect. We had allowed cases to proceed under the ATCA on the assumption that when plaintiffs alleged violations of well-established international law, their “causes of action are statutorily authorized.” Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir.1995); see also Flores, 414 F.3d at 245 (discussing the reception of “Filartiga’s holding that the ATCA creates a private right of action for violations of United States treaties or customary international law”). The Supreme Court flatly rejected this notion. See Sosa, 542 U.S. at 713-14, 124 S.Ct. 2739 (citing William R. Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law Of Nations, 18 Conn. L.Rev. 467, 479, 480 (1986)). Sosa construed the statute instead to be of a “strictly jurisdictional nature,” in the sense that it “address[ed] the power of the courts to entertain cases concerned with a certain subject.” 542 U.S. at 713, 714, 124 S.Ct. 2739. This holding led the Court to explore “a new question, this one about the interaction between the [ATCA] at the time of its enactment and the ambient law of the era.” Id. at 714, 124 S.Ct. 2739. The Court rejected the argument that the First Congress passed the ATCA “as a jurisdictional convenience to be placed on the shelf for use by a future Congress or state legislature that might, some day, authorize the creation of causes of action.” Id. at 719, 124 S.Ct. 2739. Rather, the historical materials suggested that “the statute was intended to have practical effect the moment it became law.” Id. at 724, 124 S.Ct. 2739. This practical effect would be achieved through the invocation of causes of action already available at common law. Because some “torts in violation of the law of nations were understood to be within the common law” of 1789, the First Congress would have “understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations.” Id. at 720, 724, 124 S.Ct. 2739. No further substantive legislation was required. Id. at 724, 124 S.Ct. 2739 (“The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.”). Finding that “no development in the two centuries from the enactment of § 1350 to [today] has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law,” id. at 724-25, 124 S.Ct. 2739, the Court held that federal courts retained the ability to “adapt[] the law of nations to private rights” by recognizing “further international norms as judicially enforceable today,” id. at 728, 729, 124 S.Ct. 2739. Most importantly, these norms were enforceable not by virtue of this statutory creation or authorization of a private right of action, as we had previously assumed, but rather through an exercise in “residual common law discretion” to create causes of action under federal common law to remedy the violation of those norms. Id. at 738, 124 S.Ct. 2739; see also id. at 728-31, 124 S.Ct. 2739. Thus, Sosa makes clear that all ATCA litigation is in fact based on federal common law, rather than a statutory cause of action. But a federal court’s power to create these causes of action is not without limits. Indeed, the Court identified a number of “good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind.” Id. at 725, 728, 124 S.Ct. 2739. Its consideration of these factors led the Court to identify a minimum requirement “for accepting a cause of action subject to jurisdiction under § 1350,” namely, that “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.” Id. at 732, 124 S.Ct. 2739. Based on the Supreme Court’s holdings in Sosa that (1) the ATCA is purely jurisdictional and (2) the common law provides the cause of action for claims brought under that jurisdiction, a federal court faced with a suit alleging a tort in violation of international law must undertake two distinct analytical inquiries. One is whether jurisdiction lies under the ATCA. The other is whether to recognize a common-law cause of action to provide a remedy for the alleged violation of international law. Requiring this analytical separation in ATCA litigation comports with the general principle that whether jurisdiction exists and whether a cause of action exists are two distinct inquiries. See TCG N.Y., Inc. v. City of White Plains, 305 F.3d 67, 74 (2d Cir.2002) (noting the Supreme Court’s holding that “ ‘the question whether a federal statute creates a claim for relief is not jurisdietional’ ” (quoting Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 365, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994)); cf. Rasul v. Bush, 542 U.S. 466, 484-85, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (reversing the D.C. Circuit’s holding that jurisdiction did not lie under the ATCA without engaging in a cause of action inquiry). Moreover, it reflects the fact that it is Congress, and not the courts, that possesses the power to define the scope of the courts’ jurisdiction. Cf. Whitmore v. Arkansas, 495 U.S. 149, 155-56, 161, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (noting that “[a] federal court is powerless to create its own jurisdiction” and that a court may not “employ untethered notions of what might be good public policy to expand our jurisdiction in an appealing case”). Thus, one might question the extent to which a federal court should exercise its own judgment about the practical consequences of allowing a suit to go forward in the context of its jurisdictional inquiry when, according to the plain language of the ATCA, that inquiry is resolved solely by reference to international law. Cf. Harrison v. PPG Indus., Inc., 446 U.S. 578, 593, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980) (noting that courts should look to Congress’s intent, and not policy considerations, when construing the terms of a jurisdictional statute). By contrast, it is entirely appropriate for courts to consider such concerns in the context of determining whether to recognize a cause of action under federal common law. Having identified the two steps of the inquiry, I now elaborate on what each inquiry requires. Aside from noting that “Congress intended the [ATCA] to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations,” Sosa, 542 U.S. at 720, 124 S.Ct. 2739, the Supreme Court did not discuss the requirements for invoking this jurisdictional grant in a particular case. The ATCA, by its terms, “confers federal subject-matter jurisdiction when the following three conditions are satisfied: (1) an alien sues (2) for a tort (3) committed in violation of the law of nations.” Kadic, 70 F.3d at 238. In Flores, we held that the law of nations, or customary international law, “is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.” 414 F.3d at 248; see also The Paquete Habana, 175 U.S. 677, 708, 20 S.Ct. 290, 44 L.Ed. 320 (1900) (describing a rule of international law as one reached by “general consent of the civilized nations of the world” and “founded on considerations of ... the mutual convenience of belligerent states”). In determining whether a given offense meets these requirements, we look to the sources of law identified by the Statute of the International Court of Justice (“ICJ Statute”) as the proper sources of international law. See Flores, 414 F.3d at 250-51. These include: a.international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; [and] d. ... judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. ICJ Statute, art. 38, June 26, 1945, 59 Stat. 1055,1060. If jurisdiction is established, the second inquiry is whether a common-law cause of action should be created to provide a remedy for the alleged violation of international law. Recognizing that “there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind,” the Court in Sosa “require[d] any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized,” namely, “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” 542 U.S. at 724-25, 124 S.Ct. 2739; see also id. at 732, 124 S.Ct. 2739 (“[W]e are persuaded that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.”). In setting out this standard, the Court cited with approval our decision in Filartiga, noting that “[t]his limit upon judicial recognition is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court.” Id. The Supreme Court instructed that determining whether to recognize a new cause of action “should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” Id. at 732-33, 124 S.Ct. 2739. I do not read Sosa as requiring that a court individually analyze each of the five reasons it identifies as “argu[ing] for judicial caution when considering the kinds of individual claims that might implement the jurisdiction conferred by the ... statute.” Sosa, 542 U.S. at 725, 124 S.Ct. 2739. These reasons are already captured by the “high bar to new private causes of action” set by the requirement that a claim be accepted by the civilized world and defined with a sufficient degree of specificity. See id. at 727-32, 124 S.Ct. 2739; see also id. at 725, 124 S.Ct. 2739 (noting that “there are good reasons for a restrained conception of [a federal court’s] discretion” and that “[accordingly ... courts should require any claim” to meet its standard of acceptance and specificity); David H. Moore, An Emerging Uniformity for International Law, 75 Geo. Wash. L.Rev. 1, 40-41 (2006) (“Those concerns, which arise whenever [customary international law] is incorporated as federal common law, are mitigated by the specific definition and mutuality requirements.”). I do, however, view the Court’s instruction that an element of judgment must be involved in the decision to recognize a cause of action as an invitation to lower courts to consider other prudential concerns consistent with Sosa’s approach. As Sosa suggests, courts considering the “practical consequences” of recognizing a new cause of action should assess the consequences that might result from making the cause of action generally available to all potential plaintiffs. In sum, a district court analyzing a claim under the ATCA will normally be required to engage in a two-part analysis. The district court here erred by failing to undertake separately the two parts of this analysis. By conflating these two questions, the district court inappropriately injected a discretionary element into the determination of whether it had jurisdiction under the ATCA. See In re S. African Apartheid Litig., 346 F.Supp.2d at 551, 553-54. Of greater significance to the district court’s ultimate disposition of the plaintiffs’ claims, though, was its error in analyzing whether the plaintiffs had alleged a “violation of the law of nations,” as is required for plaintiffs to establish both jurisdiction and a cause of action. It is to this analysis that I now turn. II Asking whether “aiding and abetting international law violations ... [is a] violation ] of the law of nations that [is] ‘accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms,’ ” Id. at 549 (quoting Sosa, 542 U.S. at 725, 124 S.Ct. 2739), the district court concluded that it is not, noting that it found “little [in its review of international law] that would lead [it] to conclude that aiding and abetting international law violations is itself an international law violation that is universally accepted as a legal obligation,” id. Although I believe the district court was correct to look to international law, I disagree with its analysis. A. The district court’s conclusion that its jurisdiction under the ATCA should depend on whether international law specifically recognizes liability for aiding and abetting violations of the law of nations is consistent with our prior case law. We have repeatedly emphasized that the scope of the ATCA’s jurisdictional grant should be determined by reference to international law. See Kadic, 70 F.3d at 238 (requiring courts to engage in a “searching review” of international law to verify that subject matter jurisdiction lies for a particular action); see also Flores, 414 F.3d at 248 (noting that “courts must proceed with extraordinary care and restraint” in “determining what offenses violate customary international law”); Filartiga, 630 F.2d at 887 (“The paucity of suits successfully maintained under the section is readily attributable to the statute’s requirement of alleging a ‘violation of the law of nations’ [ ] at the jurisdictional threshold.”). It is also consistent with the Supreme Court’s opinion in Sosa. The Court observed in a footnote that “whether a norm is sufficiently definite to support a cause of action” raises a “related consideration [of] whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” Sosa, 542 U.S. at 732 & n. 20, 124 S.Ct. 2739. While this footnote specifically concerns the liability of non-state actors, its general principle is equally applicable to the question of where to look to determine whether the scope of liability for a violation of international law should extend to aiders and abettors. Furthermore, in Sosa, the Supreme Court echoed our prior cases’ emphasis on the narrowness of the ATCA’s jurisdictional grant. See id. at 720, 124 S.Ct. 2739 (“Congress intended the [ATCA] to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations.”); see also id. at 712, 124 S.Ct. 2739 (describing the statute as a “limited, implicit sanction to entertain the handful of international law cum common law claims understood in 1789”). I believe that we most effectively maintain the appropriate scope of this jurisdiction by requiring that the specific conduct allegedly committed by the defendants sued represents a violation of international law. Most importantly, the district court’s approach is consistent with Sosa’s broader characterization of the relationship between federal common law and international law. The ATCA’s jurisdictional grant “enable[s] federal courts to hear claims in a very limited category defined by the law of nations.” Id. at 712, 124 S.Ct. 2739 (emphasis added). Once a court determines that the defendants’ alleged conduct falls within one of “the modest number of international law violations with a potential for personal liability” on the defendants’ part, it then considers whether “the common law would provide a cause of action” to enable the plaintiffs to bring their claim. Id. at 724, 124 S.Ct. 2739. The common law thus permits the “independent judicial recognition of actionable international norms,” but the courts must, as Sosa cautioned, be “vigilant doorkeepers].” Id. at 729, 124 S.Ct. 2739. We recognized this important role for domestic law in Kadic when we explained that the “law of nations generally does not create private causes of action to remedy its violations, but leaves to each nation the task of defining the remedies that are available for international law violations.” 70 F.3d at 246. A federal court is free, in the exercise of its common-law discretion, to decline to provide a cause of action for a violation of international law. See Sosa, 542 U.S. at 732-33, 124 S.Ct. 2739; Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 778 (D.C.Cir.1984) (Edwards, J., concurring) (explaining that each state may choose whether to impose civil liability for violations of international law). But to assure itself that it has jurisdiction to hear a claim under the ATCA, it should first determine whether the alleged tort was in fact “committed in violation of the law of nations,” 28 U.S.C. § 1350, and whether this law would recognize the defendants’ responsibility for that violation. B. I conclude that the recognition of the individual responsibility of a defendant who aids and abets a violation of international law is one of those rules “that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.” Flores, 414 F.3d at 248. Recognized as part of the customary law which authorized and was applied by the war crimes trials following the Second World War, it has been frequently invoked in international law instruments as an accepted mode of liability. During the second half of the twentieth century and into this century, it has been repeatedly recognized in numerous international treaties, most notably the Rome Statute of the International Criminal Court, and in the statutes creating the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). Indeed, the United States concedes, and the defendants do not dispute, that the concept of criminal aiding and abetting liability is “well established” in international law. Brief for the United States as Amicus Curiae, at 21. The London Charter, which established the International Military Tribunal at Nuremberg, was entered into by the allied powers of World War II, “acting in the interests of all the United Nations,” to establish a tribunal to punish violations of international law. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, pmbh, Aug. 8, 1945, E.A.S. 472 (hereinafter London Charter). We have previously recognized the London Charter as an authoritative source of customary international law. See Flores, 414 F.3d at 244 n. 18; United States v. Yousef, 327 F.3d 56, 105 nn. 39-40 (2d Cir.2003) (citing the London Charter for definitions of war crimes and crimes against humanity under international law). Moreover, other courts, international bodies, and scholars have recognized that the principles set out in the London Charter and applied by the International Military Tribunal are significant not only because they have garnered broad acceptance, but also because they were viewed as reflecting and crystallizing preexisting customary international law. See Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C.Cir.1994) (“The trials for the first time made explicit and unambiguous what was theretofore, as the Tribunal has declared, implicit in International Law .... ” (citation, alteration, and internal quotation marks omitted)); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715 (9th Cir.1992) (“The legitimacy of the Nuremberg prosecutions rested ... on the nature of the acts [the defendants] committed: acts that the laws of all civilized nations define as criminal. The universal and fundamental rights of human beings identified by Nuremberg ... are the direct ancestors of the universal and fundamental norms recognized as jus cogens.” (citations omitted)); Theodor Meron, Reflections on the Prosecution of War Crimes by International Tribunals, 100 Am. J. Int’l L. 551, 559 (2006) (“[T]he Nuremberg and Tokyo Tribunals drew heavily on the 1929 Geneva Prisoner of War Convention and the Fourth Hague Convention of 1907 as establishing the substantive law to be applied — that is, as customary law and general principles of criminal law, and as norms of both state responsibility and individual criminal liability.” (footnotes omitted)). Indeed, shortly after the conclusion of the initial war crimes trials, the General Assembly of the United Nations unanimously approved a resolution affirming “the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal.” Affirmation of the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal, G.A. Res. 95(1), at 188, U.N. Doc. A/236 (Dec. 11, 1946) (hereinafter Nuremberg Principles Resolution I). The London Charter extended individual responsibility for crimes within its jurisdiction not only to “[Headers, organizers, [and] instigators” but also to “accomplices participating in the formulation or execution of a common plan or conspiracy to commit” any of the crimes triable by the Tribunal. London Charter art. 6. While the Charter’s language tak$n “literally ... would seem to imply that the complicity rule did not apply to crimes perpetrated by individual action,” as opposed to by common plan, in practice the Tribunal “applied general principles of criminal law regarding complicity.” International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, with commentaries, G.A.O.R., 5th session, Supp. No. 12, U.N. Doc. A/1316, ¶¶ 126-27 (1950) (“ILC Principles”). Accordingly, when the International Law Commission (“ILC”) formulated the “principles recognized in the Charter ... and in the judgment of the Tribunal” at the direction of the General Assembly, see Nuremberg Principles Resolution I, it omitted any indication of a limitation on accomplice liability. Principle VII provides that “[complicity in the commission of a crime against peace, a war crime, or a crime against humanity ... is a crime under international law.” ILC Principles, Principle VII. The ILC’s formulation of the principles is considered to be an authoritative rendering of the formal holdings of the Nuremberg Tribunal and is consulted as an authoritative source of customary international law by the ICTY and ICTR. See, e.g., Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber Judgment, ¶ 526 (Sept. 2, 1998) (citing Principle VII to establish that “participation by complicity in the most serious violations of international humanitarian law was considered a crime as early as Nuremberg”); see also Prosecutor v. Milosevic, Case No. IT-02-54, Trial Chamber Decision on Preliminary Motions, ¶¶ 29-30 (Nov. 8, 2001) (finding that “[t]he customary character of [a] rule [of individual responsibility] is further supported by its incorporation in a wide number of other instruments,” including, inter alia^ the ILC Principles). That the London Charter’s use of the term “accomplice” was understood to include those who aid and abet a crime is further confirmed by the law applied in the war crimes trials held in the United States zone of occupation following World War II. War criminals in the United States zone of occupation were tried under Control Council Law No. 10, an act promulgated by the joint allied body that coordinated the governance of post-war Germany. Allied Control Council Law No. 10 (Dec. 20,1945) in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, at XVIII (William S. Hein & Co., Inc. 1997) (1949). Control Council Law No. 10 was patterned after the London Charter and enacted under its authority with the declared purpose to “give [it] effect.” Flick v. Johnson, 174 F.2d 983, 985-86 (D.C.Cir.1949). According to Telford Taylor, the Chief of Counsel for War Crimes and the Chief Prosecutor for the United States under the London Charter, the “underlying principles” of the London Charter and Law No. 10 “are identical” and the tribunals operating under each “worked within the same framework” with respect to “the basic principles of international penal law.” Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trial Under Control Council Law No. 10, at 107 (1949), available at http://www. loc.gov/rr/frd/Military_Law/NT_final-re-porthtml. Control Council Law No. 10 imposed criminal liability on anyone who was “an accessory to the commission of any such crime or ordered or abetted the same,” Control Council Law No. 10, art. II, sec. 2 (emphasis added), and tribunals applying Control Council Law No. 10 are viewed by international bodies as having recognized aiding and abetting liability. See Prosecutor v. Furundzija, Case No. IT-95-17/1, Trial Chamber Judgment, ¶¶ 195-225, 236-40 (Dec. 10, 1998) (reviewing the case law). We have previously acknowledged the contribution that Control Council Law No. 10 and the tribunals that applied it have made to customary international law. In Flores, to support our conclusion that “[c]ustomary international law rules proscribing crimes against humanity, including genocide, and war crimes, have been enforceable against individuals since World War II,” 414 F.3d at 244 n. 18, we pointed specifically to Brigadier General Taylor’s assessment that “the major legal significance of the Law No. 10 judgments lies ... in those portions of the judgments dealing with the area of personal responsibility for international law crimes,” Taylor, supra, at 109, quoted in Flores, 414 F.3d at 244 n. 18. The United States Government, as amicus in this case, similarly acknowledges the role this law has played in establishing the availability of aiding and abetting liability in modern international criminal tribunals. Brief for the United States as Amicus Curiae, at 21 n. 11. Having been accepted as one of the core principles of the post-World War II war crimes trials, the individual criminal responsibility of those who aid and abet violations of international law was repeatedly reflected in international treaties thereafter. These treaties include major agreements addressing fundamental human rights concerns such as torture, apartheid, slavery, and genocide. See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 4, Dec. 10, 1984, 1465 U.N.T.S. 85; International Convention on the Suppression and Punishment of the Crime of Apartheid, art. 111(b), Nov. 30, 1973, 1015 U.N.T.S. 243; Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, art. 6, Sept. 7, 1956, 18 U.S.T. 3201, 266 U.N.T.S. 3; Convention on the Prevention and Punishment of the Crime of Genocide, art 111(e), Dec. 9, 1948, 78 U.N.T.S. 277, 280 (hereinafter Genocide Convention). Aiding and abetting liability has also been recognized in treaties addressed to crimes of general international concern such as bribery of foreign officials in international business transactions and drug trafficking. See Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, art. 1(2), Dec. 17, 1997, reprinted in 37 I.L.M. 1 (1998); United Nations Convention on Psychotropic Substances, art. 22(2)(a)(ii), Feb. 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175. More recently, aiding and abetting has been included in a number of the treaties concerning organized crime and terrorism, which have become prominent concerns of the international community. See United Nations Convention Against Transnational Organized Crime, art. 5(l)(b), G.A. Res. 55/25, at 5-6, U.N. Doc. A/RES/55/25 (Jan. 8, 2001); International Convention for the Suppression of the Financing of Terrorism, art. 2(5)(a), opened for signature Jan. 10, 2000, 39 I.L.M. 270; International Convention for the Suppression of Terrorist Bombings, art. 2(3)(a), May 23, 2001, 2149 U.N.T.S. 256; see also Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime, art.5 (l)(b), G.A. Res. 55/25, at 40, U.N. Doc. A/RES/55/25 (Jan. 8, 2001). The United Nations Security Council (“Security Council”) also appears to have recognized the importance of accomplice liability in the international response to terrorism, directing states in the wake of the September 11 attacks to “[e]n-sure that any person who participates in the financing, planning, preparation or perpetration of terrorists acts or in supporting terrorists acts is brought to justice.” S.C. Res. 1373, ¶2(6), U.N. Doc. S/RES/1373 (Sept. 28, 2001) (emphasis added). Aiding and abetting liability continues to be recognized and enforced in international tribunals. The Statutes creating the ICTY and ICTR were adopted by resolutions of the Security Council. In their respective sections on individual criminal responsibility, both statutes impose individual liability on any person “who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution” of a crime. Statute of the International Tribunal for the Former Yugoslavia, art. 7, S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) (hereinafter ICTY Statute); Statute of the International Criminal Tribunal for Rwanda, art. 6, S.C. Res. 955, U.N. Doc. S/RES/ 955 (Nov. 8, 1994) (hereinafter ICTR Statute). As with the London Charter, the recognition of aiding and abetting liability in the ICTY Statute is particularly significant because the “Individual Criminal Responsibility” section of that statute was intended to codify existing norms of customary international law. In his report to the Security Council regarding the creation of the ICTY, the Secretary-General explained that “in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Security Council would not be creating or purporting to ‘legislate’ that law. Rather, the International Tribunal would have the task of applying existing international humanitarian law.” Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, ¶ 29, U.N. Doc. S/25704 (May 3, 1993) (“Sec’y-General Report”). Indeed, international law principles “require[d]” that the Tribunal’s jurisdiction be limited to “rules of international humanitarian law which are beyond any doubt part of customary [international] law.” Id. ¶ 34. Accordingly, the provision of aiding and abetting liability in the ICTY statute reflects a determination by both the Secretary-General and the Security Council, which approved the Secretary-General’s report when it enacted the statute, that such liability is firmly established in customary international law. The inclusion of substantively identical language in the statute creating the ICTR presumably reflects a similar determination. Consistent with its statutory authorization, the ICTY has recognized and applied aiding and abetting liability for violations of international law. See, e.g., Funmdzija, Trial Chamber Judgment, ¶¶ 249, 275; Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber Opinion and Judgment, ¶¶ 689-92, 730, 735, 738 (May 7, 1997). Furthermore, it has done so only after confirming that such liability was part of customary law. As the Tribunal recognized, it was required to determine “the objective basis for such individual responsibility as a matter of customary international law ... since the International Tribunal is only empowered to apply international humanitarian law that is ‘beyond any doubt customary law.’ ” Tadic, Trial Chamber Opinion and Judgment, ¶ 662 (quoting Sec’y General Report ¶ 34). The Tribunal therefore conducted a probing and thoughtful analysis of international law sources in its early decisions to confirm that aiding and abetting liability is recognized in customary international law. See Furundzija, Trial Chamber Judgment, ¶¶ 190-249; Tadic, Trial Chamber Opinion and Judgment, ¶¶ 661-91. More recently, the Rome Statute of the International Criminal Court (“Rome Statute”), July 17, 1998, 2187 U.N.T.S. 90, provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the ICC if that person: (c) 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; [or] (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime[.] Id. art. 25(3)(c), (d). The Rome Statute is particularly significant for th