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Conceptualizing Complicity in Alien Tort Cases

Chimène I. Keitner

University of California Hastings College of the Law

July 11, 2008

Hastings Law Journal, Vol. 60, No. 1, 2008

The Alien Tort Statute (ATS) indisputably brings international law into U.S. courts. The question is: How much international law? The U.S. Supreme Court was recently precluded from addressing this question in cases involving alleged corporate complicity in the crime of apartheid because four judges recused themselves, leaving the court without a quorum. The answer to this question can determine the outcome of cases brought against corporations for alleged complicity in international law violations by foreign governments. It will also shape the extent to which U.S. courts in ATS cases continue to interpret and apply international law, thereby contributing to the development and enforcement of international law standards.

This Article provides an analytic roadmap for courts confronting accomplice liability claims in ATS cases. Part I concludes that U.S. courts should look to international law on accomplice liability, rather than federal common law. Part II examines international law doctrine on accomplice liability and concludes that the Second Circuit in the South African apartheid cases misstated the applicable standard, which prohibits knowingly providing assistance that has a substantial effect on the commission of the wrongful act. Part III considers the implications of this doctrinal analysis for broader concerns about the indeterminacy of international law and notions of international comity. By applying well-established international law to defendants' conduct, U.S. courts can provide domestic remedies for international wrongs while avoiding criticisms of illegitimately applying U.S. substantive law outside U.S. territory.

Number of Pages in PDF File: 41

Keywords: alien tort, aiding and abetting, accomplice liability, international law, federal courts

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Date posted: July 11, 2008 ; Last revised: November 13, 2012

Suggested Citation

Keitner, Chimène I., Conceptualizing Complicity in Alien Tort Cases (July 11, 2008). Hastings Law Journal, Vol. 60, No. 1, 2008. Available at SSRN: https://ssrn.com/abstract=1158806

Contact Information

Chimène I. Keitner (Contact Author)
University of California Hastings College of the Law ( email )
200 McAllister Street
San Francisco, CA 94102
United States

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