Related Rule
United States of America
Practice Relating to Rule 151. Individual Responsibility
The US Field Manual (2004) states:
Any person, whether a member of the armed forces or a civilian, who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. Such offences in connection with war comprise:
a. Crimes against peace.
b. Crimes against humanity.
c. War crimes.
Although this manual recognizes the criminal responsibility of individuals for those offences which may comprise any of the foregoing types of crimes, members of the armed forces will normally be concerned only with those offences constituting “war crimes”. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 498.
The manual also states: “Conspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.” 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 500.
After quoting the common articles of the 1949 Geneva Conventions on penal measures (Article 49 of the Geneva Convention I, Article 50 of the Geneva Convention II, Article 129 of the Geneva Convention III and Article 146 of the Geneva Convention IV), the manual states that these provisions “are declaratory of the obligations of belligerents under customary international law to take measures for the punishment of war crimes committed by all persons, including members of a belligerent’s own forces”. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 506(b).
The manual adds:
“Grave breaches” of the Geneva Conventions of 1949 and other war crimes which are committed by enemy personnel or persons associated with the enemy are tried and punished by United States tribunals as violations of international law. If committed by persons subject to US military law, the “grave breaches” constitute acts punishable under the Uniform Code of Military Justice. Moreover, most of the acts designated as “grave breaches” are, if committed within the United States, violations of domestic law over which the civil courts can exercise jurisdiction. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 506(c).
The US Air Force Pamphlet (1976) states: “Combatants individually are responsible for following the law of armed conflict which obligates their nation.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 1-4(d).
The Pamphlet further states: “Individual criminal responsibility is another mechanism to enforce the law of armed conflict.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 10-6.
The Pamphlet also contains a list of “acts [in addition to the grave breaches of the Geneva Conventions of 1949] … representative of situations involving individual criminal responsibility”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c).
The US Soldier’s Manual (1984) tells soldiers: “If you violate any of the laws of war, you commit a crime and are subject to punishment under US law, which includes the Uniform Code of Military Justice (UCMJ).” 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 26.
The US Naval Handbook (1995) provides: “Acts constituting war crimes may be committed by the armed forces of a belligerent or by individuals belonging to the civilian population.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5.
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
CONSPIRACY.
a. Text. “Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused entered into an agreement with one or more persons to commit one or more substantive offenses triable by military commission or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission;
(2) The accused knew the unlawful purpose of the agreement or the common criminal purpose of the enterprise and joined willfully, that is, with the intent to further the unlawful purpose; and
(3) The accused knowingly committed an overt act in order to accomplish some objective or purpose of the agreement or enterprise.
c. Comment.
(1) Two or more persons are required in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with the agreement or enterprise need not be established. A person may be guilty of conspiracy although incapable of committing the intended offense. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or affect the status of the other conspirators. The agreement or common criminal purpose in a conspiracy need not be in any particular form or manifested in any formal words.
(2) The agreement or enterprise must, at least in part, involve the commission or intended commission of one or more substantive offenses triable by military commission. A single conspiracy may embrace multiple criminal objectives. The agreement need not include knowledge that any relevant offense is in fact “triable by military commission.” Although the accused must be subject to the MCA [Military Commissions Act of 2006], other co-conspirators need not be.
(3) The overt act must be done by the accused, and it must be done to effectuate the object of the conspiracy or in furtherance of the common criminal purpose. The accused need not have entered the agreement or criminal enterprise at the time of the overt act.
(4) The overt act need not be in itself criminal, but it must advance the purpose of the conspiracy. Although committing the intended offense may constitute the overt act, it is not essential that the object offense be committed. It is not essential that any substantive offense, including the object offense, be committed.
(5) Each conspirator is liable for all offenses committed pursuant to or in furtherance of the conspiracy by any of the co-conspirators, after such conspirator has joined the conspiracy and while the conspiracy continues and such conspirator remains a party to it.
(6) A party to the conspiracy who withdraws from or abandons the agreement or enterprise before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement or common criminal purpose and that shows that the party has severed all connection with the conspiracy. A conspirator who effectively withdraws from or abandons the conspiracy after the performance of an overt act by one of the conspirators remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the withdrawal or abandonment. The withdrawal of a conspirator from the conspiracy does not affect the status of the remaining members.
(7) That the object of the conspiracy was impossible to effect is not a defense to this offense.
(8) Conspiracy to commit an offense is a separate and distinct offense from any offense committed pursuant to or in furtherance of the conspiracy, and both the conspiracy and any related offense may be charged, tried, and punished separately. Conspiracy should be charged separately from the related substantive offense. It is not a lesser-included offense of the substantive offense.
d. Maximum Punishment. Death, if the death of any person occurs as a result of the conspiracy or joint enterprise. Otherwise, confinement for life. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(28), pp. IV-20, IV-21 and IV-22.
The US Naval Handbook (2007) states:
The fact that national law does not prohibit an act that constitutes a war crime under international law does not relieve the person who committed the act from responsibility under international law. However, the fact that a war crime under international law is made legal and even obligatory under national law may be considered in mitigation of punishment. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.4.3.
The US Manual on Detainee Operations (2008) states:
Lawful combatants are EPWs [enemy prisoners of war] upon capture and are entitled to “combatant immunity” for their lawful pre-capture warlike acts. They may be prosecuted, however, for violations of the law of war. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. I-5.
The manual quotes a statement by the US President to the UN on the International Day in Support of Victims of Torture, 26 June 2004: “The United States … remains steadfastly committed to upholding the [1949] Geneva Conventions … Our Armed Forces are committed to complying with them and to holding accountable those in our military who do not.” 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. I-1.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
CONSPIRACY.
a. Text. “Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”
b. Elements.
(1) The accused entered into an agreement with one or more persons to commit one or more substantive offenses triable by military commission or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission;
(2) The accused knew the unlawful purpose of the agreement or the common criminal purpose of the enterprise and joined willfully, that is, with the intent to further the unlawful purpose; and
(3) The accused knowingly committed an overt act in order to accomplish some objective or purpose of the agreement or enterprise.
c. Comment.
(1) Two or more persons are required in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with the agreement or enterprise need not be established. A person may be guilty of conspiracy although incapable of committing the intended offense. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or affect the status of the other conspirators. The agreement or common criminal purpose in a conspiracy need not be in any particular form or manifested in any formal words.
(2) The agreement or enterprise must, at least in part, involve the commission or intended commission of one or more substantive offenses triable by military commission. A single conspiracy may embrace multiple criminal objectives. The agreement need not include knowledge that any relevant offense is in fact “triable by military commission.” Although the accused must be subject to the MCA [Military Commissions Act of 2009], other co-conspirators need not be.
(3) The overt act must be done by the accused, and it must be done to effectuate the object of the conspiracy or in furtherance of the common criminal purpose. The accused need not have entered the agreement or criminal enterprise at the time of the overt act.
(4) The overt act need not be in itself criminal, but it must advance the purpose of the conspiracy. Although committing the intended offense may constitute the overt act, it is not essential that the object offense be committed. It is not essential that any substantive offense, including the object offense, be committed.
(5) Each conspirator is liable for all offenses committed pursuant to or in furtherance of the conspiracy by any of the co-conspirators, after such conspirator has joined the conspiracy and while the conspiracy continues and such conspirator remains a party to it.
(6) A party to the conspiracy who withdraws from or abandons the agreement or enterprise before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement or common criminal purpose and that shows that the party has severed all connection with the conspiracy. A conspirator who effectively withdraws from or abandons the conspiracy after the performance of an overt act by one of the conspirators remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy up to the time of the withdrawal or abandonment. The withdrawal of a conspirator from the conspiracy does not affect the status of the remaining members.
(7) That the object of the conspiracy was impossible to effect is not a defense to this offense.
(8) Conspiracy to commit an offense is a separate and distinct offense from any offense committed pursuant to or in furtherance of the conspiracy, and both the conspiracy and any related offense may be charged, tried, and punished separately. Conspiracy should be charged separately from the related substantive offense. It is not a lesser-included offense of the substantive offense.
d. Maximum punishment. Death, if the death of any person occurs as a result of the conspiracy or joint enterprise. Otherwise, confinement for life. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(29), pp. IV-23 and IV-24.
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region I (1945) established provisions for the punishment of the perpetrators of a list of specified offences and also of “all other offences against the laws or customs of war”, to be pronounced by the military commissions. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region I, 1945, Regulation 5.
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region II (1945) established provisions for the punishment of the perpetrators of a list of “violations of the laws and customs of war” and other specified acts committed “against any civilian population before or during the war”, to be pronounced by the military commissions. 
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region II, 1945, Regulation 2(b) and (c).
The US War Crimes Act (1996) provides:
(a) Offense. – Whoever, whether inside or outside the United States, commits a war crime … shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(c) Definition. – As used in this section the term “war crime” means any conduct –
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians. 
United States, War Crimes Act, 1996, Section 2441.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
(28) CONSPIRACY.—Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this chapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2630, § 950v(b)(28).
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
Ҥ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“(29) CONSPIRACY.—Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this subchapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2009, § 950t(29).
In the Quirin case in 1942, dealing with the trial, by a military commission, of German soldiers who had landed on US territory in 1942 and were charged, inter alia, with war crimes, the US Supreme Court, stating, however, that it was not “concerned with any question of the guilt or innocence of petitioners”, held:
From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War … Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offences against the law of war in appropriate cases.
In its ruling, the Supreme Court gave a list of cases in which individual offenders had been charged with offences against the law of war. 
United States, Supreme Court, Quirin case, Judgment, 31 July 1942.
In the Yamashita case in 1946, in which the US Supreme Court was called upon to decide whether the accused, the military governor and commanding general of Japan in the Philippines between 9 October 1944 and 2 September 1945, was responsible for the violations of IHL committed by the troops under his command, the accused was tried for his responsibility as a commander. 
United States, Supreme Court, Yamashita case, Judgment, 4 February 1946.
However, one of the judges, in his dissenting opinion, referred to US military law and stated: “From this the conclusion seems inescapable that the United States recognizes individual criminal responsibility for violations of the laws of war only as to those who commit the offences or who order or direct their commission.” 
United States, Supreme Court, Yamashita case, Dissenting Opinion of Mr Justice Murphy, 4 February 1946.
In the Altstötter case (The Justice Trial) in 1947, the US Military Tribunal at Nuremberg held:
As to the punishment of persons guilty of violating the laws and customs of war (war crimes in the narrow sense), it has always been recognized that tribunals may be established and punishment imposed by the State in whose hands the perpetrators fall.
It must be admitted that Germans were not the only ones who were guilty of committing war crimes; other violators of international law could, no doubt, be tried and punished by the State of which they were nationals, by the offended State if it can secure jurisdiction of the person, or by an International Tribunal if of competent authorized jurisdiction …
The very essence of the prosecution case is that the laws, the Hitlerian decrees and the draconic, corrupt, and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity and that participation in the enactment and enforcement of them amounts to complicity in crime. We have pointed out that governmental participation is a material element of the crime against humanity. Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions. It can scarcely be said that governmental participation, the proof of which is necessary for conviction, can also be a defense to the charge. 
United States, Military Tribunal at Nuremberg, Altstötter case (The Justice Trial), Judgment, 4 December 1947.
In its judgment in the Flick case in 1947, the US Military Tribunal at Nuremberg noted: “It can no longer be successfully maintained that international law is concerned only with the actions of sovereign states and provides no punishment for individuals.” The Tribunal also rejected the argument that the fact that the defendants were private individuals rather than public officials representing the State meant that they could not be criminally responsible for a violation of international law. Instead, it held: “International law … binds every citizen just as does ordinary municipal law … The application of international law to individuals is no novelty.” 
United States, Military Tribunal at Nuremberg, Flick case, Judgment, 22 December 1947.
In its judgments in the Krauch case (The I.G. Farben Trial) and in the Von Leeb case (The German High Command Trial) in 1948, the US Military Tribunal at Nuremberg reiterated the principle of individual responsibility. 
United States, Military Tribunal at Nuremberg, Krauch case (The I.G. Farben Trial), Judgment, 27 August 1947–30 July 1948; Von Leeb case (The German High Command Trial), Judgment, 30 December 1947–28 October 1948.
In its decision in the Karadžić case in 1995, the US Court of Appeals for the Second Circuit referred, inter alia, to the recognition, by the Executive Branch, of the liability of private persons for certain violations of customary international law and the availability of the Alien Tort Claims Act to remedy such violations. It held:
We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals … The liability of private individuals for committing war crimes has been recognized since World War I and was confirmed at Nuremberg after World War II. 
United States, Court of Appeals for the Second Circuit, Karadžić case, Decision, 13 October 1995.
The Agent Orange case in 2005 involved a class action suit filed on behalf of various Vietnamese nationals and an organization, The Vietnamese Association for Victims of Agent Orange/Dioxin, against Dow Chemical and other US chemical manufacturers, for harms allegedly done to them and their land through the United States’ use of Agent Orange and other herbicides during the Vietnam War from 1965 to 1971 and by the South Vietnamese Government’s subsequent use of such herbicides until 1975. In dismissing the claims, the Court found that, while recognizing the evolution of international law since 1975, the use of herbicides did not violate, at the time they were used, either customary or conventional international law binding on the United States. With regard to individual criminal responsibility, the Court stated:
It is not a defense that the spraying of herbicides was on orders of the President: Authorization by the head of government does not provide carte blanche for a private defendant to harm individuals in violation of international law. See infra Part IX. In the Third Reich all power of the state was centered in Hitler; yet his orders did not serve as a defense at Nuremberg. Justiciability is not eliminated because of possible interference with executive power even in wartime. Rasul v. Bush, 124 S. Ct. 2686, 2698–99 (2004) (holding that district court had jurisdiction over claims asserted under ATS [Alien Tort Statute] by aliens being detained by United States government at its base in Guantanamo, Cuba); Youngstown, 343 U.S. 579. 
United States, Eastern States District Court (EDNY), Agent Orange case, Judgment, 28 March 2005, p. 100.
The Court further stated:
The government contractor defense is one peculiar to United States law. See supra Part VI. It does not apply to violations of human rights and norms of international law. See, e.g., Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988) (limiting defense to claims for design defects); see also Zyklon B Case (Trial of Bruno Tesch and Two Others), 1–5 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93; United States v. Flick, 6 TRIALS OF WAR CRIMINALS 1187, 1198, 1202 (discussing necessity); United States v. Krupp, 9 TRIALS OF WAR CRIMINALS 1327, 1437–39 (same); see also infra Parts IX.C.-D. Defendants’ motion to dismiss on this ground is denied. See supra Part I.B.2.
The government contractor defense is essentially based on the concept that the government told me to do it, and knew as much or more than I did about possible harms, so I can stand behind the government (which cannot be sued because of its immunity). It is designed in part to save the government money in its procurement costs because suppliers, less concerned with the risk of suits, can eliminate some difficult insurance factors from cost projections.
As shown below in a discussion of the Nuremberg and other post-World War II criminal trials, this defensive notion has been rejected. It should not be recognized, as the law now stands, by courts protecting civilians and land from depredations contrary to international law. 
United States, Eastern States District Court (EDNY), Agent Orange case, Judgment, 28 March 2005, pp. 142–143.
In 2007, in the Khulumani case before the US Court of Appeals for the Second Circuit, in which various plaintiff representatives of apartheid victims appealed the decision of a lower court that had dismissed claims under the Alien Tort Claims Act (ATCA) and Torture Victim Protection Act (TVPA) made against various defendant corporations concerning alleged violations of international law, the Court of Appeals affirmed the lower court’s dismissal of the TVPA claims, but vacated portions of the lower court’s judgment dismissing the plaintiffs’ ATCA claims.
In a separate concurring opinion, Judge Katzmann stated:
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 extended individual responsibility for crimes within its jurisdiction not only to “[l]eaders, 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 taken “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 Nurnberg Tribunal and in the Judgment of the Tribunal, with commentaries, G.A.O.R., 5th session, Supp. No. 12, U.N. Doc. A/1316, PP 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 “[c]omplicity 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, P 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, PP 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).
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 Curaie, 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.
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.
[T]hose who assist in the commission of a crime with the purpose of facilitating that crime would be subject to aiding and abetting liability under the statutes governing the ICTY and ICTR. My research has revealed no source of international law that recognizes liability for aiding and abetting a violation of international law but would not authorize the imposition of such liability on a party who acts with the purpose of facilitating that violation (provided, of course, that the actus reus requirement is also satisfied).
Accordingly, I conclude that a defendant may be held liable under international law for aiding and abetting the violation of that law by another when the defendant (1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime, and (2) does so with the purpose of facilitating the commission of that crime. Furthermore, based on this review of international law’s treatment of aiding and abetting liability over the past sixty years, I conclude that aiding and abetting liability, so defined, is sufficiently “well-established [and] universally recognized” to be considered customary international law for the purposes of the ATCA.
The international tribunals’ approach is consistent with the understanding that aiding and abetting is a theory of liability for acts committed by a third party. As we have recognized in our domestic criminal law, “aiding and abetting ‘does not constitute a discrete criminal offense but only serves as a more particularized way of identifying persons involved’” in the underlying offense. United States v. Smith, 198 F.3d 377, 383 (2d Cir. 1999) (quoting United States v. Oates, 560 F.2d 45, 54 (2d Cir. 1977) (internal quotation marks omitted)); see also Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir. 2006) (explaining that “aiding and abetting is a theory for holding the person who aids and abets liable for the tort itself”). International law is consistent with domestic law on this point. See, e.g., Prosecutor v. Kunarac, Case Nos. IT-96-23-T & IT-96-23/1-T, Trial Chamber Judgment, P 391 (Feb. 22, 2001) (“As opposed to the ‘commission’ of a crime, aiding and abetting is a form of accessory liability.”); Akayesu, Trial Chamber Judgment, P 527 (defining an accomplice as “someone who associates himself in an offence committed by another”); see also Hamdan, 126 S. Ct. at 2785 n.40 (“The International Criminal Tribunal for the former Yugoslavia (ICTY), drawing on the Nuremberg precedents, has adopted a ‘joint criminal enterprise’ theory of liability, but that is a species of liability for the substantive offense (akin to aiding and abetting), not a crime on its own.”). Because aiding and abetting is a generally applicable means of identifying who should be held responsible for a particular act, rather than a necessary element of the act itself, it is more reasonable to consider whether the theory is accepted as a general principle of customary international law than to ask whether each substantive norm that proscribes a specific conduct encompasses liability for aiding and abetting. 
United States, Court of Appeals for the Second Circuit, Khulumani case, Separate Concurring Opinion of Judge Katzmann, 12 October 2007.
In a further separate concurring opinion, Judge Hall stated:
Because I intend aiding and abetting liability to attach only in this limited way [cases in which a defendant played a knowing and substantial role in the violation of a clearly recognized international law norm], I think it helpful to provide examples illustrating the three ways in which I believe a defendant may incur liability for aiding and abetting violations of customary international law. The first type of aiding and abetting liability is designed to capture the case of a principal tortfeasor who seeks assistance from a defendant to commit an act that violates international law norms, such as the extrajudicial killing of an opposition political figure. The second is designed to cover circumstances where the alleged aider and abettor is accused of having purchased security services with the knowledge that the security forces would, or were likely to, commit international law violations in fulfilling their mandate. The allegations raised in the cases of Unocal, 395 F.3d 932, and Wiwa v. Royal Dutch Petroleum Co., No. 96-Civ-8386, 2002 U.S. Dist. LEXIS 3293, 2002 WL 319887 (S.D.N.Y. Feb. 28, 2002), would be reached by this prong. In Unocal, the alleged aider and abettor corporation was accused of having purchased security services from a military government to further develop its oil operations, with the knowledge that the security forces would likely commit international law violations in fulfilling this mandate. 395 F.3d at 938--42. In Wiwa, the plaintiffs alleged that the defendants directed and aided government security forces in violating plaintiffs’ rights by providing logistical support, transportation, and weapons to government security forces to ensure that the corporation’s business activities could proceed “as usual.” Wiwa, No. 96-Civ-8386, 2002 U.S. Dist. LEXIS 3293, 2002 WL 319887, at *2.
The Zyklon B Case provides a clear example of when liability would attach in the third circumstance, when a defendant provides “the tools, instrumentalities, or services to commit [human rights] violations with actual … knowledge that those tools, instrumentalities or services will be (or only could be) used in connection with that purpose.” See Trial of Bruno Tesch and Two Others (The Zyklon B Case), 1 Law Reports of Trials of War Criminals 93 (1947) (British Military Ct., Hamburg, Mar. 1-8, 1946). In that case, Bruno Tesch was the sole owner of a firm that distributed Zyklon B, a highly dangerous poison gas, to Auschwitz and other concentration camps from 1941 to 1945. Zyklon B previously had been used as a disinfectant in public buildings. The evidence showed that Tesch himself proposed using the gas to exterminate human beings, undertook to train the S.S. in this “new method of killing,” and was aware that, by June 1942, the gas was being used for such a purpose. Id. at 95. The Prosecutor successfully argued that “knowingly to supply a commodity to a branch of the State which was using that commodity for the mass extermination of Allied civilian nationals was a war crime, and that the people who did it were war criminals for putting the means to commit the crime into the hands of those who actually carried it out.” Id. at 94. 
United States, Court of Appeals for the Second Circuit, Khulumani case, Separate Concurring Opinion of Judge Hall, 12 October 2007.
In 2008, in the Khadr case, a Guantánamo Military Commission considered a Defence motion for Dismissal Due to Lack of Jurisdiction Under the MCA [Military Commissions Act (2006)] in Regard to Juvenile Crimes as a Child Soldier. In denying the Defence motion, the Commission firstly considered the relevant provisions related to juvenile jurisdiction contained in the MCA and found:
Reading the statutory provisions together, it is clear that Congress did not, either by implication or otherwise, limit the jurisdiction of a military commission so that persons of a certain age could not be tried thereby. 
United States, Guantánamo Military Commission, Khadr case, Ruling, 30 April 2008, § 7.
The Commission then considered the matter of whether international law prohibited the trial of juveniles for alleged violations of the law:
14. Both the defense and the prosecution cite the commission to various treaties and protocols and legal writings in an attempt to show that [the defendant’s] age, at the time of the offenses alleged, does or does not prohibit his trial by military commission on criminal charges. The defense relies, in great part, on the [2000] Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. …
16. The commission has reviewed the entire Optional Protocol. Nothing in the Protocol prohibits the trial of [the defendant] by this commission. The commission has also reviewed the entire General Comment No. 10: Children’s Rights in Juvenile Justice. While it does set a certain MACR [Minimum Age of Criminal Responsibility], it does not address the issue of MACR for “child soldiers.” Both the Optional Protocol and General Comment No. 10 focus on ways in which children may, should, could, or would be treated before, during, and after criminal prosecutions. Neither of them directly addresses the issue before this commission.
17. The commission finds that certain segments of the international community believe in and articulate various methods and standards which could be used when a person under the age of 16 (or 18 – the segments are not as one on the exact age limit to be used) is charged with a criminal offense – either in violation of the law of nations or in violation of the law of a nation. While these may be interesting as a matter of policy, they are not governing on this commission. To quote from the amicus brief filed by … on behalf of various persons and groups:
Although international treaty law does not consistently and unequivocally preclude the exercise of criminal jurisdiction over child soldiers by military tribunals, customary international law clearly recognizes that absent exceptional circumstances and rehabilitative intent, such prosecutions should not occur. (Paoletti at page 11.)
The MCA and the Manual for Military Commissions (MMC) give the Convening Authority the power to decide which cases should be referred to trial by military commission. The commission presumes, without deciding, that the Convening Authority considers the circumstances of each case and each accused before referring a case to trial. Whether or not being tried for alleged crimes is rehabilitative is not a question before this commission.
18. Having considered the motion, response, and reply, and the amicus briefs, the commission finds that neither customary international law nor international treaties binding upon the United States prohibit the trial of a person for alleged violations of the law of nations committed when he was 15 years of age. 
United States, Guantánamo Military Commission, Khadr case, Ruling, 30 April 2008, §§ 14 and 16–18.
In 2008, in the Harman case, in which the appellant appealed the finding of a military court that had convicted her of conspiracy to maltreat detainees, dereliction of duty by wilfully failing to protect detainees from abuse, and maltreatment of detainees – charges that had arisen from a series of incidents that had occurred at the US Baghdad Central Confinement Facility at Abu Ghraib, Baghdad, Iraq, in 2003 – the US Army Court of Criminal Appeals upheld the finding of the lower court and its sentence of rank reduction, forfeiture of pay and allowances, confinement for six months and a bad-conduct discharge. The Court of Appeals stated:
Charge I alleges that appellant committed the offense of conspiracy in violation of Article 81, UCMJ. The single specification asserts that appellant “[d]id, at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003, conspire with Staff Sergeant [IF], Sergeant [JD], Corporal [CG], Specialist [JS], Specialist [MA] and Private First Class [LE], to commit an offense under the Uniform Code of Military Justice, to wit: maltreatment of subordinates, and in order to effect the object of the conspiracy the said Specialist Harman posed for a ‘thumbs up’ photograph with said Corporal [CG] behind a pyramid of naked detainees.”
To obtain a conviction for conspiracy, the government must prove the following two elements beyond a reasonable doubt: “(1) That the accused entered into an agreement with one or more persons to commit an offense under the code; and (2) That, while the agreement continued to exist, and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing about the object of the conspiracy.” Manual for Courts-Martial, United States (2005 ed.) [hereinafter MCM], Part IV, para. 5b. For the first element, the government’s theory, apparently accepted by the panel, was that appellant’s conduct both in taking pictures of the maltreatment and posing in pictures depicting maltreatment demonstrates that she entered into a non-verbal agreement with the other guards to maltreat detainees. For the second element, the government’s theory was that posing in the “thumbs up” photograph was an overt act.
[W]hile appellant’s presence at the prison was mandatory, her misconduct was not. She did not have a duty to appear in a “thumbs up” picture with CPL CG behind the pyramid of naked detainees, to take pictures herself, or to engage in any other concerted misconduct. Her entering into a conspiracy and her participation in the specified overt act were voluntary
The circumstances show that she had the intent to commit the offense of conspiracy. We conclude that the evidence was legally and factually sufficient to support her conviction of Charge I and its Specification. 
United States, US Army Court of Criminal Appeals, Harman case, Judgment, 30 June 2008.
In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated:
The Government of the United States reminds the Government of Iraq that under International Law, violations of the Geneva Conventions, the Geneva [Gas] Protocol of 1925, or related International Laws of armed conflict are war crimes, and individuals guilty of such violations may be subject to prosecution at any time, without any statute of limitations. This includes members of the Iraqi armed forces and civilian government officials. 
United States, Department of State, Diplomatic note to Iraq, Washington, 19 January 1991, annexed to Letter dated 21 January 1991 to the President of the UN Security Council, UN Doc. S/22122, 21 January 1991, Annex I, p. 2.
In another such diplomatic note a few days later, the United States reiterated that “Iraqi individuals who are guilty of … war crimes … are personally liable and subject to prosecution at any time.” 
United States, Department of State, Diplomatic note to Iraq, Washington, 21 January 1991, annexed to Letter dated 22 January 1991 to the President of the UN Security Council, UN Doc. S/22130, 22 January 1991, p. 4.
In 1991, during a debate in the Sixth Committee of the UN General Assembly on the environmental impact of the Gulf War and the environmental damage caused, the United States maintained that “existing international law not only prohibited the type of acts committed by Iraq, but also provided important remedies to address and deter such acts, in particular with respect to personal criminal liability”. 
United States, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/46/SR.18, 22 October 1991, § 39.
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the ICTY, the United States stated:
Truth is the cornerstone of the rule of law, and it will point towards individuals, not peoples, as perpetrators of war crimes … And to those who committed [violations of IHL in the former Yugoslavia], we have a clear message: war criminals will be prosecuted and justice will be rendered.
The crimes being committed … are not just isolated acts of drunken militiamen, but often are the systematic and orchestrated crimes of Government officials, military commanders, and disciplined artillerymen and foot soldiers. The men and women behind these crimes are individually responsible for the crimes of those they purport to control; the fact that their power is often self-proclaimed does not lessen their culpability.
It is understood that the “laws or customs of war” referred to in Article 3 [of the 1993 ICTY Statute] include all obligations under humanitarian law agreements in force in the territory of the former Yugoslavia at the time the acts were committed, including common article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocols to these Conventions.
With respect to paragraph 1 of Article 7, it is our understanding that individual liability arises in the case of a conspiracy to commit a crime referred to in Articles 2 through 5. 
United States, Statement before the UN Security Council, UN Doc. S/PV.3217 (Provisional), 25 May 1993, pp. 13–16.
In 1995, in its amicus curiae brief presented to the ICTY in the Tadić case on the issue of the Tribunal’s jurisdiction, the United States stated:
We believe that the “grave breaches” provisions of Article 2 of the [1993 ICTY] Statute apply to armed conflicts of a non-international character as well as those of an international character …
Insofar as Common Article 3 [of the 1949 Geneva Conventions] prohibits certain acts with respect to “[p]ersons taking no active part in hostilities” in cases of armed conflict not of an international character, it is consistent with the ordinary meaning of the Geneva Conventions to treat such persons as persons protected by the Conventions …
… Article 3 of the [1993 ICTY] Statute authorizes the prosecution of “persons violating the laws or customs of war. Such violations shall include, but not be limited to …” a series of specific acts that would constitute such violations. This is only an exemplary and not an exhaustive list, and the language of Article 3 is otherwise broad enough to cover all relevant violations of the laws or customs of war, whether applicable in international or non-international armed conflict. 
United States, Amicus Curiae brief presented to the ICTY, Tadić case, Motion Hearing, 25 July 1995, pp. 35–37.
The 1998 version of the US Department of Defense Directive on the Law of War Program stated: “All reportable incidents committed by or against U.S. or enemy persons are promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action.” A “reportable incident” is defined as “a possible, suspected, or alleged violation of the law of war”. 
United States, Department of Defence Directive on the Law of War Program No. 5100.77, 9 December 1998, Sections 3.2 and 4.3.
In 2003, the Permanent Representatives of the United States and the United Kingdom to the United Nations wrote in a letter to the President of the UN Security Council:
The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall inter alia, provide for security in and for the provisional administration of Iraq, including by … promoting accountability for crimes and atrocities committed by the previous Iraqi regime. 
United States, Letter by the Permanent Representatives of the United States and the United Kingdom to the United Nations to the President of the UN Security Council, UN Doc. S/2003/538, 8 May 2003.
The US Victim and Witness Protection Act (1982) provides:
(a) (1)(A) The court, when sentencing a defendant convicted of an offense … may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim’s estate. The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense …
(3) The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement. 
United States, Victim and Witness Protection Act, 1982, Subsection (a)(1)(A) and (3)
For cases where restitution is impossible, impractical or inadequate, especially in the case of an offence resulting in bodily injury, the Act provides for the possibility of the paying of an amount of money. 
United States, Victim and Witness Protection Act, 1982, Subsection (b).
The US Alien Tort Claims Act (1789) provides: “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”. 
United States, Alien Tort Claims Act, 1789.
The US Torture Victim Protection Act (1991), under a provision entitled “Establishment of civil action”, states:
(a) Liability. – 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. 
United States, Torture Victim Protection Act, 1991, Section 1350(2)(a)(1) and (2).
A provision of the California Code of Civil Procedure (1973), as amended, dealing with compensation for slave and forced labour states:
Any Second World War slave labor victim, or heir of a Second World War slave labor victim, Second World War forced labor victim, or heir of a Second World War forced labor victim, may bring an action to recover compensation for labor performed as a Second World War slave labor victim or Second World War forced labor victim from any entity or successor in interest thereof, for whom that labor was performed, either directly or through a subsidiary or affiliate. 
United States, California Code of Civil Procedure as amended, 1973, Section 354.6(b).
In the Karadžić case in 1995, a US Court of Appeals considered a civil action brought by Bosnian victims of atrocities and their representatives against Radovan Karadžić under, inter alia, the US Alien Tort Claims Act. This Act “creates federal court jurisdiction for suits alleging torts committed anywhere in the world against aliens in violation of the law of nations” (or US treaty). The Court, considering the responsibility of Karadžić for genocide, rape, forced prostitution, torture and other cruel, inhuman and degrading treatment, summary executions and disappearances committed during the conflict in the former Yugoslavia, emphasized that individuals could be held responsible, both criminally, and, as in this case, civilly, for violations of international law. It further noted: “The liability of private individuals for committing war crimes has been recognized since World War I and was confirmed at Nuremberg after World War II, and remains today an important aspect of international law.” It also stated:
The liability of private persons for certain violations of customary international law and the availability of the Alien Tort Act to remedy such violations was early recognized by the Executive Branch in an opinion of Attorney General Bradford … The Executive Branch has emphatically restated in this litigation its position that private persons may be found liable under the Alien Tort Act for acts of genocide, war crimes, and other violations of international humanitarian law. 
United States, Court of Appeals for the Second Circuit, Karadžić case, Decision, 13 October 1995.
The FIS case before a US District Court in 1998, in which a group of Algerian women sought compensation from a high-ranking official of the Islamic Salvation Front (FIS) for his participation in crimes against humanity, war crimes and various violations of human rights committed in Algeria, successfully relied upon the US Torture Victim Protection Act and the US Alien Tort Claims Act as a basis for the jurisdiction of US courts. With regard to the claim based on the Alien Tort Claims Act, the Court found that:
The alleged acts of the FIS are clearly in violation of international law as it stands today. Common Article 3 of the [1949] Geneva Conventions … applies to “armed conflicts not of an international character” and protects civilians not participating in the conflict by requiring that they be “treated humanely, without any adverse distinction founded on race, color, religion, faith, sex, birth or wealth, or any other similar criteria”. It prohibits, among other things, “murder of all kinds, mutilation, cruel treatment and torture”, kidnapping, and summary executions. The Karadžić court held that Common Article 3 applies to all parties to a conflict, not merely to official governments. This Court concludes that the acts of the FIS alleged by Plaintiffs are proscribed by international law against other state and private actors, as evidenced by Common Article 3. Accordingly plaintiffs have properly alleged subject matter jurisdiction under the ATCA. 
United States, District Court for the District of Columbia, FIS case, Judgment, 2 February 1998.
In a class action verdict in the Karadžić case before a US District Court in 2000, Radovan Karadžić was sentenced to pay US$ 265 million in compensatory damages and US$ 480 million in punitive damages to the claimants. 
United States, District Court, Southern District of New York, Karadžić case, Judgment, 16 August 2000.
In another verdict, Radovan Karadžić was sentenced to pay US$ 407 million in compensatory damages and US$ 3.8 billion in punitive damages. As acts for which the damages were owed, the Court, in the latest verdict, listed, inter alia, rape and gang rape, forced pregnancy, sexual slavery, beating and other torture, genocide, war crimes, crimes against humanity, assault and battery, and disappearance of relatives. 
United States, District Court, Southern District of New York, Karadžić case, Judgment, 4 October 2000.
In 2002, in the Mehinovic case, a civil lawsuit filed on behalf of four Bosnian Muslims who were tortured by a Bosnian-Serb soldier in Bosnia-Herzegovina in 1992, the District Court Northern District of Georgia found the defendant liable for: torture; cruel, inhuman and degrading treatment; arbitrary detention; war crimes; crimes against humanity; and genocide. The Court awarded the plaintiffs US$140 million in damages. In its judgment, the Court stated:
Plaintiffs have shown that defendant Vuckovic acted with the intent required to establish that his acts constituted torture. Vuckovic’s anti-Muslim statements, and the entire context in which the beatings occurred, evidence the fact that the defendant beat and threatened plaintiffs for discriminatory reasons. Plaintiffs have also established that the acts of defendant Vuckovic were carried out with the intent of intimidating or terrorizing them because of their ethnicity, pursuant to the Bosnian Serb government’s campaign of ethnic cleansing.
Finally, the beatings carried out by Vuckovic and his accomplices were clearly perpetrated, instigated, and acquiesced in, by persons acting in an official capacity as part of the police or military forces of Republika Srpska. Vuckovic himself was a soldier in a unit tied to and supported by the Bosnian Serb and Serbian governments. He often carried out beatings with other soldiers. The beatings inflicted by Vuckovic all were committed in official or designated detention facilities, guarded by Bosnian Serb or Serbian police or soldiers. Without their permission or acquiescence, and that of those in the political and military hierarchy above him, Vuckovic could not have perpetrated abuses against plaintiffs. Plaintiff Subasic described frequently hearing guards scheduling beatings in advance. The fact that the beatings carried out by Vuckovic and others were routine, daily occurrences at these facilities also indicates that the beatings were, in fact, ordered, authorized, and perpetrated as part and parcel of official policy.
For these reasons, defendant Vuckovic is liable for torture under the ATCA [Alien Tort Claims Act, 28 U.S.C. § 1350 (1988)].
The TVPA [Torture Victim Protection Act of 1991] also provides a cause of action for official torture. The TVPA provides in relevant part:
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.
TVPA § 2(a).
As set out in the section above, defendant Vuckovic clearly committed abuses against plaintiffs under official authority. In light of the de facto governmental authority of the Republika Srpska, under which Vuckovic served as a soldier, and the control exerted over it by the Serbian government, Vuckovic may be considered also to have been acting under the authority of a “foreign nation.” Kadic v. Karadzic, 70 F.3d at 244–46 Additionally, as the definition of torture under the TVPA closely follows the definition of torture under the Torture Convention in all relevant respects, for the same reasons as above, Vuckovic’s actions also constitute torture under the TVPA. Accordingly, defendant Vuckovic also is liable to plaintiffs for torture under the TVPA. 
United States, District Court Northern District of Georgia, Mehinovic case, Judgment, 29 April 2002.
In 2009, in the Presbyterian Church of Sudan case, involving claims asserted under the Alien Tort Statute (ATS) (28 USC § 1350), the US Court of Appeals for the Second Circuit upheld the dismissal of the case by the District Court, finding that the plaintiffs had failed to establish the defendant’s purposeful complicity in genocide, war crimes and crimes against humanity against civilians living in southern Sudan. In its judgment, the Court of Appeals stated:
There is no allegation that [the defendant] (or its employees) personally engaged in human rights abuses; the allegation is that Talisman was complicit in the [Sudanese] Government’s abuses.
That allegation places in issue the standard for aiding and abetting liability under the ATS. [a footnote to this statement states: “We address aiding and abetting liability – a concept typically associated with the criminal law – because customary international law norms prohibiting genocide, war crimes, and crimes against humanity have “been developed largely in the context of criminal prosecutions rather than civil proceedings.” John Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002)]. 
United States, US Court of Appeals for the Second Circuit, Presbyterian Church of Sudan case, Judgment, 2 October 2009, pp. 36 and 37.
In further considering the standard for “aiding and abetting”, the Court stated:
[A]pplying international law, we hold that the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone. Even if there is a sufficient international consensus for imposing liability on individuals who purposefully aid and abet a violation of international law, … no such consensus exists for imposing liability on individuals who knowingly (but not purposefully) aid and abet a violation of international law.
Indeed, international law at the time of the Nuremberg trials recognized aiding and abetting liability only for purposeful conduct. … That purpose standard has been largely upheld in the modern era, with only sporadic forays in the direction of a knowledge standard. See Khulumani, 504 F.3d at 276 (Katzmann, J., concurring) (noting that some international criminal tribunals have made overtures toward a knowledge standard but that the Rome Statute of the International Criminal Court adopts a purpose standard). … Only a purpose standard, therefore, has the requisite “acceptance among civilized nations,” Sosa, 542 U.S. at 732, for application in an action under the ATS. 
United States, US Court of Appeals for the Second Circuit, Presbyterian Church of Sudan case, Judgment, 2 October 2009, pp. 41–43.
[emphasis in original]
In considering the standard for “conspiracy”, the Court stated:
Plaintiffs allege that [the defendant] conspired with the Government to commit human rights abuses and argue that the district court failed to apply conspiracy principles from United States law to violations of international law under the ATS. … Whether conspiracy claims are cognizable under international law is a question of first impression in this Circuit.
As a matter of first principles, we look to international law to derive the elements for any such cause of action. … In so doing, we must distinguish between the inchoate crime of conspiracy (which requires an agreement and overt acts, but no completed deed) and conspiracy as a theory of accessorial liability for completed offenses.
As to conspiracy as an inchoate offense, the Supreme Court held in Hamdan v. Rumsfeld, 548 U.S. 557, 610 (2006), that “the only ‘conspiracy’ crimes that have been recognized by international war crimes tribunals (whose jurisdiction often extends beyond war crimes proper to crimes against humanity and crimes against the peace) are conspiracy to commit genocide and common plan to wage aggressive war.” Plaintiffs did not plead the waging of aggressive war, and while they did plead genocide, it is pled as a completed offense, not an inchoate one.
The analog to a conspiracy as a completed offense in international law is the concept of a “joint criminal enterprise.” See Hamdan, 548 U.S. at 611 n.40. Even assuming, without deciding, that plaintiffs could assert such a theory in an ATS action, an essential element of a joint criminal enterprise is “a criminal intention to participate in a common criminal design.” Prosecutor v. Tadic, Case No. IT-94-1-A, Appeal Judgment, § 206 (July 15, 1999) (basing that finding on numerous precedents from criminal tribunals established in the aftermath of World War II). Therefore, under a theory of relief based on a joint criminal enterprise, plaintiffs’ conspiracy claims would require the same proof of mens rea as their claims for aiding and abetting. 
United States, US Court of Appeals for the Second Circuit, Presbyterian Church of Sudan case, Judgment, 2 October 2009, pp. 43–45.
[footnotes in original omitted]
In 2010, in the Kiobel case, brought under the Alien Tort Statute (ATS), 28 USC § 1350, the US Court of Appeals for the Second Circuit upheld the District Court’s dismissal of some of the plaintiff’s claims against the corporate defendants and reversed the same court’s decision not to dismiss the plaintiff’s remaining claims against the defendants, finding that corporations cannot be held liable for violations of customary international law. In its 2-1 decision, the Court of Appeals stated:
[T]he ATS provides jurisdiction over (1) tort actions, (2) brought by aliens (only), (3) for violations of the law of nations (also called “customary international law”) including, as a general matter, war crimes and crimes against humanity – crimes in which the perpetrator can be called “hostis humani generis, an enemy of all mankind.”
This case involves … [the] unresolved issue: Does the jurisdiction granted by the ATS extend to civil actions brought against corporations under the law of nations?
From the beginning, however, the principle of individual liability for violations of international law has been limited to natural persons – not “juridical” persons such as corporations – because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an “international crime” has rested solely with the individual men and women who have perpetrated it.
The defining legal achievement of the Nuremberg trials is that they explicitly recognized individual liability for the violation of specific, universal, and obligatory norms of the customary international law of human rights. In its judgment the Tribunal noted that the defendants had argued that “international law is concerned with the actions of sovereign states, and provides no punishment for individuals.” The Nurnberg Trial (United States v. Goering), 6 F.R.D. 69, 110 (Int’l Military Trib. at Nuremberg 1946). The Tribunal rejected that view, however, declaring that “international law imposes duties and liabilities upon individuals as well as upon states” and that “individuals can be punished for violations of international law.” Id. (emphasis added).
[M]odern international tribunals make it abundantly clear that, since Nuremberg, the concept of corporate liability for violations of customary international law has not even begun to “ripen[ ]” into a universally accepted norm of international law. 
United States, US Court of Appeals for the Second Circuit, Kiobel case, Judgment, 17 September 2010, pp. 116, 117, 119, 127 and 137.
[emphasis in original; footnotes in original omitted]
The Court concluded:
Acknowledging the absence of corporate liability under customary international law is not a matter of conferring “immunity” on corporations. It is, instead, a recognition that the States of the world, in their relations with one another, … have determined that moral and legal responsibility for heinous crimes should rest on the individual whose conduct makes him or her “hostis humani generis, an enemy of all mankind.”. 
United States, US Court of Appeals for the Second Circuit, Kiobel case, Judgment, 17 September 2010, p. 149.
In 1993, during a debate in the UN Security Council following the unanimous vote on Resolution 827 (1993) establishing the International Criminal Tribunal for the former Yugoslavia (ICTY), the United States stated:
With respect to Article 24 [of the 1993 ICTY Statute], it is our understanding that compensation to victims by a convicted person may be an appropriate part of decisions on sentencing, reduction of sentences, parole or commutation. 
United States, Statement before the UN Security Council, UN Doc. S/PV.3217 (Provisional), 25 May 1993, p. 17.
According to the Report on US Practice, it is the opinio juris of the United States that “universal jurisdiction over war crimes applies not only to penal proceedings, but also to suits for damages against individual war criminals by or on behalf of their victims”. 
Report on US Practice, 1997, Chapter 6.12.