The Provision of Means: Dual Use Goods & Corporate Liability

This is Part III of a series on the Doe v. Cisco case pending in the Northern District of California and involving claims that Cisco should be liable for aiding and abetting the Chinese Government’s use of its Golden Shield to persecute Falun Gong practitioners. Part I provides some background on the case; and Part II outlines some of the open international criminal law issues.  This Part looks at the way in which complicity doctrines apply in provision-of-means cases.  

The Cisco cases are “provision of means” cases that present the question of when the contribution of neutral, or dual use, equipment, technology, or products—items that are not inherently unlawful but that can be used to violate international law—constitutes complicity in the crimes ultimately committed with such matériel.  Cisco has argued that there are no allegations suggesting that the company knew that the Chinese authorities would use its technology products and services for anything other than lawfully apprehending citizens engaged in Falun Gong practices, which are illegal under Chinese law.  Plaintiffs claim that Cisco’s products were knowingly and purposefully customized to enable the identification and surveillance of Falun Gong practitioners (and their family members), which was essential for the victims’ apprehension, mistreatment, and submission to a program of forced conversion.  Although Cisco no doubt would have preferred that the plaintiffs and their loved ones not be mistreated, plaintiffs argue in essence that the defendants acted with the knowledge that Falun Gong practitioners and their family members would be targeted through the use of the Golden Shield and had resigned themselves to this eventuality.  It is also argued that defendants—who were motivated by profit and also a desire to establish market share within the lucrative Chinese market—stood to benefit from the establishment, use, and expansion of the Golden Shield.   

In this line of reasoning, the plaintiffs have resurrected the World War II-era provision of means cases, such as the successful prosecutions of employees of Tesch & Stabenow and I.G. Farben, accused of providing Zyclon B to the SS for us in Nazi extermination camps. Similarly, a post-WWII U.S. military tribunal convicted Friedrich Flick for, among other things, providing financial support to Nazi organizations.  The Einsatzgruppen case, involving Nazi mobile death squads, included one defendant accused of generating lists of Communist party members with the knowledge that individuals on the lists would be targeted for execution and another whose contribution to the extermination effort was the acquisition of intelligence.  

The case against Charles Taylor before the Special Court for Sierra Leone (SCSL) offers a more modern incarnation of the international criminal law provision-of-means case.  Central to the Prosecutor’s theory of the case was the so-called Operational Strategy of the Armed Forces Revolutionary Council (AFRC)/Revolutionary United Front (RUF)—the two rebel groups Taylor was accused of supporting.  According to this Strategy, the RUF/AFRC Alliance would endeavor to achieve military gains at any cost in order to improve its negotiating stance vis-à-vis the Sierra Leonean government.  The Strategy included plans to terrorize the civilian population with acts of rape, abduction, forced labor, sexual slavery, and murder.  The Prosecutor ultimately proved that Taylor knew of this strategy and of the Alliance’s intent to commit crimes from daily briefings he received from his national security adviser; reports from regional organizations attempting to mediate the conflict; condemnations by the Security Council, which declared the situation in Sierra Leone to be a threat to international peace and security in UNSCR 1132 (Oct. 8, 1997); NGO reports; and other sources attesting to the notoriety of the crimes in question. 

Notwithstanding the known intentions of his “customers”, Taylor skirted arms embargoes on both Liberia and Sierra Leone (e.g., UNSCR 1171 (1998)) and provided weapons and ammunition to rebel forces in exchange for diamonds mined by forced laborers in Sierra Leone.  His contributions included non-lethal communications equipment, vehicles, etc.  Indeed, once Freetown’s weapons caches were depleted, the rebels increasingly turned to Taylor to supply them with ammunition and equipment; they eventually became almost entirely reliant on his largesse to function.  The evidence showed that these transactions continued even while Taylor was ostensibly promoting dialogue between the warring parties and accepting praise from the international community for his contributions to peace negotiations.

Prosecutor v. Taylor Key holdings

The SCSL Appeals Chamber largely affirmed the judgment of the Trial Chamber on accomplice liability for provision-of-means.  The opinion encompasses several key holdings, enumerated below.

1.     The actus reus of aiding and abetting liability consists of the provision of assistance (even so-called neutral assistance in contradistinction to assistance that is inherently criminal) that has a “substantial effect” on the commission of the crimes, although this assistance need not rise to the level of a “but for” contribution.  Strict causation is thus not an element of aiding and abetting.

2.     Such assistance may be provided at all stages of the crime, including planning, preparation, and execution.

3.     To gain a conviction, customary international law (CIL) does not require the prosecution to prove that the defendant provided “specific direction” aimed at the commission of particular crimes or to the direct perpetrators.

4.     The Appeals Chamber let stand the Trial Chamber’s finding that it was sufficient that Taylor’s assistance contributed to the implementation of the rebels’ Operational Strategy and their ability/capacity to commit crimes; it is not necessary to demonstrate a direct nexus between the assistance provided and a particular crime committed by a particular principal.  The critical relationship is that between the defendant and the crime—not that between the defendant and the physical actor, who may be unknown to the aider and abettor.

5.     It is of no moment that the aider or abettor acts at a time and place removed from the actual crime if the substantial effect of his or her conduct is proven.

Mens Rea

1.     Satisfying the mens rea of aiding and abetting liability requires adequate proof that the defendant was aware of the consequences of his conduct, but not proof that he necessarily intended, willed, or desired those consequences.

2.     In addition to proof of actual knowledge, it is sufficient to prove that the accused was aware of “the substantial likelihood that” his or her act or conduct “would assist the commission of a crime.”

3.     The Rome Statute’s formulation of aiding and abetting (appearing to require proof that the defendant acted “for the purpose of facilitating the commission of such a crime”) did not impact the analysis, because the treaty does not “represent or purport to represent a complete statement of personal culpability under customary international law.” Furthermore, the Appeals Chamber noted that the ICC had not yet had the opportunity to extensively apply Articles 25/30, and so it would be premature to “guess” how these provisions will ultimately be interpreted, especially in light of Article 30(2), which suggests a knowledge-based standard might suffice.

4.     Knowledge of the mere probability of crimes is insufficient; rather, the defendant must have an awareness of the substantial likelihood that crimes would be committed.

 

Turning to the Alien Tort Statute context, many of these cases involve claims that the corporation is engaged in some sort of joint venture with a repressive government and should he held liable for the crimes committed by government actors (who may be immune from suit under principles of foreign sovereign immunity) in connection with the execution of that venture.  The accomplice enterprise—compelled by a profit motive rather than some animus toward the victims—may be fully aware that its business partner will use violence to hold up its end of the bargain, although it may desperately hope that no one gets hurt.  Nonetheless, in jurisdictions in which the knowing mens rea standard prevails, defendants risk liability when they knowingly enter into a business arrangement that assigns to a government that is prone to violence the duty of providing security or clearing an area for the operations.  Provision-of-means cases present a somewhat different posture.  In such cases, plaintiffs endeavor to hold corporate defendants—also motivated by profit—liable for providing some product to a repressive government knowingly that it will be used repress or attack civilians. Where the product itself is directly involved in the commission of abuses, it is often relatively easy to prove that the provision-of-means by the defendant corporation made a substantial contribution to the commission of the crime. As a result, culpability will turn on the mens rea element.      

As mentioned in Part II of this series, the circuits have gone in two directions when it comes to the mens rea of complicity.  In Aziz v. Alcolac, Inc., for example, plaintiffs sought to sue the company for providing a chemical component of mustard gas to Saddam Hussein during the Iran-Iraq War in violation of U.S. export controls.  Chemical weapons were employed in Iran but also against Iraq’s Kurdish population in the north, who were accused of collaborating with Hussein’s arch-enemy. Although the chemical in question had some “legitimate” uses, the plaintiffs alleged that the company knew it was also an essential component of mustard gas and had received orders for unprecedented quantities during the conflict.  Nonetheless, the 4th Circuit followed the 2nd Circuit’s mens rea analysis and the formulation of Article 25 of the Rome Statute in holding that plaintiffs had not alleged that the company provided the chemicals with the purpose that they be used to commit genocide against the Kurds, even if the company was well aware that its product would be so employed.

In so holding, the 4th Circuit split from the D.C. Circuit, which applies the knowledge standard.  In Doe VIII v. Exxon, the plaintiffs claimed that the security forces around Exxon’s Aceh facility were comprised of members of the Indonesian armed forces, which have a long history of committing human rights violations. The complaint alleged that the company provided logistics, training, and other forms of support to the military while profiting from the Aceh operation.  The district court had determined that aiding and abetting liability was not actionable under the Alien Tort Statute.  The D.C. Circuit reversed and, after concluding that it must look to customary international (as opposed to domestic law) for the applicable aiding and abetting standard, adopted the knowledge standard. Citing a string of ICTY and ICTR cases, and noting that those tribunals are mandated to apply customary international law, it identified knowledge as the applicable mens rea standard.  

While the D.C. Circuit resolved the choice-of-law question in favor of international law, it determined that the international knowledge standard is consistent with domestic law, notably the Restatement (Second) of Torts and its own precedent, Halberstam v. Welch.  Halberstam is a comprehensive opinion that defined the domestic law scope of aiding and abetting for tort liability as follows:

(1) the party whom the defendant aids must perform a wrongful act that causes an injury;

(2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance;

(3) the defendant must knowingly and substantially assist the principal violation.

As discussed, the 9th Circuit has so far avoided determining the applicable mens rea standard, but it may be forced to do so if and when Doe v. Cisco goes up on appeal…

 

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