Whether aiding and abetting liability may be asserted under the Alien Tort Claims Act (a/k/a Alien Tort Statute), 28 U.S.C. § 1350, has never been addressed by the Supreme Court. Two of three members of the panel in Khulumani v. Barclay Nat’l Bank, 2007 U.S. App. LEXIS 24370 (2d Cir. Oct. 12, 2007), held that that such a claim is cognizable but for quite different reasons. Judge Katzman reasoned that the ATCA provides jurisdiction for an aiding and abetting claim because aiding and abetting a violation of international law is itself a violation of international law (‛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’“). Judge Katzman then found the standard for aiding and abetting liability to be an international standard: ‛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.“ (His interpretation of the international conventions and statutes that he relies on to set the standard, however, is subject to serious question — by their terms, those conventions and statutes require only knowledge and substantial assistance, not purposeful action to achieve the commission of the international offense.)

The second member of the majoity, Judge Hall, in contrast, reasoned that, once an underlying violation of international law is found, the standard for aiding and abetting liability is set by federal common law: ‛Lacking the benefit of clear guidance, I presume a federal court should resort to its traditional source, the federal common law, when deriving the standard. Because I find that federal common law provides a standard by which to assess aiding and abetting liability, I do not address the alternative argument that such a standard may be derived from international law.“ Judge Korman dissented. Given three well-written and conflicting opinions on an important issue of unsettled law, Khulumani is an obvious candidate for en banc review.