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II.

ANALYSIS

A. Liability Under the Alien Tort Claims Act.

1. Introduction

     [1] The Alien Tort Claims Act confers upon the federal district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations.” 28 U.S.C. § 1350.12 We have held that the ATCA also provides a cause of action, as long as “plaintiffs . . . allege a violation of ‘specific, universal, and obligatory’ international norms as part of [their] ATCA claim.” Papa v. United States, 281 F.3d 1004, 1013 (9th Cir. 2002) (quoting In re Estate of Ferdinand E. Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994) (“Marcos II”)). See also Marcos II, 25 F.3d at 1474-75. Plaintiffs allege that Unocal’s conduct gave rise to ATCA liability for the forced labor, murder, rape, and torture inflicted on them by the Myanmar Military.13

     The District Court granted Unocal’s motion for summary judgment on Plaintiffs’ ATCA claims. We review a grant of summary judgment de novo. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We must determine whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See id.

     [2] One threshold question in any ATCA case is whether the alleged tort is a violation of the law of nations. We have recognized that torture, murder, and slavery are jus cogens violations and, thus, violations of the law of nations.14 See United States v. Matta-Ballesteros, 71 F.3d 754, 764 n.5 (9th Cir. 1995). Rape can be a form of torture. See Farmer v. Brennan, 511 U.S. 825, 852, 854 (1994) (Blackmun, J., concurring) (describing brutal prison rape as “the equivalent of” and “nothing less than torture”); Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir. 1995) (describing allegations of “murder, rape, forced impregnation, and other forms of torture” (emphasis added)); In re Extradition of Suarez-Mason, 894 F. Supp. 676, 682 (N.D. Cal. 1988) (stating that “shock sessions were interspersed with rapes and other forms of torture” (emphasis added)); see also generally Evelyn Mary Aswad, Torture by Means of Rape, 84 Geo. L.J. 1913 (1996). Moreover, forced labor is so widely condemned that it has achieved the status of a jus cogens violation. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217(A)III (1948) (banning forced labor); Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, Aug. 8, 1945, art. 6, 82 U.N.T.S. 280 (making forced labor a war crime). Accordingly, all torts alleged in the present case are jus cogens violations and, thereby, violations of the law of nations.15

     [3] Another threshold question in any ATCA case against a private party, such as Unocal, is whether the alleged tort requires the private party to engage in state action for ATCA liability to attach, and if so, whether the private party in fact engaged in state action. In his concurrence in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), Judge Edwards observed that while most crimes require state action for ATCA liability to attach, there are a “handful of crimes,” including slave trading, “to which the law of nations attributes individual liability,” such that state action is not required. Id. at 794-95 (Edwards, J., concurring) (emphasis added).16 More recently, the Second Circuit adopted and extended this approach in Kadic. The Second Circuit first noted that genocide and war crimes — like slave trading — do not require state action for ATCA liability to attach. See 70 F.3d at 242-243. The Second Circuit went on to state that although “acts of rape, torture, and summary execution,” like most crimes, “are proscribed by international law only when committed by state officials or under color of law” to the extent that they were committed in isolation, these crimes “are actionable under the Alien Tort [Claims] Act, without regard to state action, to the extent that they were committed in pursuit of genocide or war crimes.” Id. at 243-44 (emphasis added). Thus, under Kadic, even crimes like rape, torture, and summary execution, which by themselves require state action for ATCA liability to attach, do not require state action when committed in furtherance of other crimes like slave trading, genocide or war crimes, which by themselves do not require state action for ATCA liability to attach. We agree with this view and apply it below to Plaintiffs’ various ATCA claims.

2. Forced Labor

     a. Forced labor is a modern variant of slavery to which the law of nations attributes individual liability such that state action is not required.

     Our case law strongly supports the conclusion that forced labor is a modern variant of slavery. Accordingly, forced labor, like traditional variants of slave trading, is among the “handful of crimes . . . to which the law of nations attributes individual liability,” such that state action is not required. Id. at 794-95 (Edwards, J., concurring). See supra section II.A.1.

     Courts have included forced labor in the definition of the term “slavery” in the context of the Thirteenth Amendment.17 The Supreme Court has said that “[t]he undoubted aim of the Thirteenth Amendment . . . was not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States.” Pollock v. Williams, 322 U.S. 4, 17 (1944) (emphasis added).18 Accordingly, “[i]t has been held that forced labor of certain individuals amounts to involuntary servitude and therefore is violative of the thirteenth amendment.” Weidenfeller v. Kidulis, 380 F. Supp. 445, 450 (E.D. Wis. 1974) (citing Stone v. City of Paducah, 86 S.W. 531, 533 (Ky. 1905)).

     The inclusion of forced labor in the definition of the term “slavery” is not confined to the Thirteenth Amendment but extends, for example, to 18 U.S.C. § 1583. 18 U.S.C. § 1583 was introduced in 1866 to prevent the kidnaping of former slaves to countries which still permitted slavery.19 The Fourth Circuit has said that “[n]otwithstanding this limited purpose, the statute should be read as expressing the broad and sweeping intention of Congress during the Reconstruction period to stamp out the vestiges of the old regime of slavery and to prevent the reappearance of forced labor in whatever new form it might take.” United States v. Booker, 655 F.2d 562, 565 (4th Cir. 1981) (emphasis added).

     In World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d 1160, (N.D. Cal. 2001), the District Court for the Northern District of California recently implicitly included forced labor in the definition of the term “slavery” for purposes of the ATCA. There, the district court concluded that “[g]iven the Ninth Circuit’s comment in Matta-Ballesteros, 71 F.3d at 764 n.5, that slavery constitutes a violation of jus cogens, this court is inclined to agree with the [District Court for the District of New Jersey’s] conclusion [in Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999)] that forced labor violates the law of nations.” Id. at 1179.

     [4] In light of these authorities, we conclude that forced labor is a modern variant of slavery that, like traditional variants of slave trading, does not require state action to give rise to liability under the ATCA.

     b. Unocal may be liable under the ATCA for aiding and abetting the Myanmar Military in subjecting Plaintiffs to forced labor.

     Plaintiffs argue that Unocal aided and abetted the Myanmar Military in subjecting them to forced labor. We hold that the standard for aiding and abetting under the ATCA is, as discussed below, knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime. We further hold that a reasonable factfinder could find that Unocal’s conduct met this standard.20

     The District Court found that “[t]he evidence . . . suggest[s] that Unocal knew that forced labor was being utilized and that the Joint Venturers benefitted from the practice.” Doe/Roe II, 110 F. Supp. 2d at 1310. The District Court nevertheless held that Unocal could not be liable under the ATCA for forced labor because Unocal’s conduct did not rise to the level of “active participation” in the forced labor. Id. The District Court incorrectly borrowed the “active participation” standard for liability from war crimes cases before Nuremberg Military Tribunals involving the role of German industrialists in the Nazi forced labor program during the Second World War. The Military Tribunals applied the “active participation” standard in these cases only to overcome the defendants’ “necessity defense.”21 In the present case, Unocal did not invoke — and could not have invoked — the necessity defense. The District Court therefore erred when it applied the “active participation” standard here.22

     We however agree with the District Court that in the present case, we should apply international law as developed in the decisions by international criminal tribunals such as the Nuremberg Military Tribunals for the applicable substantive law. “The law of nations ‘may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.’ ” Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) (quoting United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820)) (emphasis added). It is “well settled that the law of nations is part of federal common law.” Marcos I, 978 F.2d at 502.

Part 4

12. The “law of nations” is “the law of international relations, embracing not only nations but also . . . individuals (such as those who invoke their human rights or commit war crimes).” Black’s Law Dictionary 822 (7th ed. 1999).

13. Plaintiffs’ ATCA claims are timely under the ten-year statute of limitations we recently adopted for such claims. See Papa, 281 F.3d at 1011-13.

14. Jus cogens norms are norms of international law that are binding on nations even if they do not agree to them. See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-15 (9th Cir. 1992).

15. We stress that although a jus cogens violation is, by definition, “a violation of ‘specific, universal, and obligatory’ international norms” that is actionable under the ATCA, any “violation of ‘specific, universal, and obligatory’ international norms” — jus cogens or not — is actionable under the ATCA. Papa, 281 F.3d at 1013 (quoting Marcos II, 25 F.3d at 1475). Thus, a jus cogens violation is sufficient, but not necessary, to state a claim under the ATCA.

16. Our statement in In re Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493, 501-02 (9th Cir. 1992) (“Marcos I”), that “[o]nly individuals who have acted under official authority or under color of such authority may violate international law,” must be read like Judge Edwards’ concurrence in Tel-Oren, on which this statement exclusively relied. Marcos I, like Tel-Oren, involved torture, a crime for which there is no purely private liability under international law. See Tel-Oren, 726 F.2d at 794-95 (Edwards, J., concurring); Kadic, 70 F.3d at 243.

17. The Thirteenth Amendment provides in part that “[n]either slavery nor involuntary servitude . . . shall exist within the United States.” U.S. CONST. amend. XIII, § 1. See also Tobias Barrington, The Thirteenth Amendment and Slavery in the Global Economy, 102 Colum. L. Rev. 973 (2002), for the proposition that “the knowing use of slave labor by U.S. based entities in their foreign operations constitutes the presence of ‘slavery’ within the United States, as that term is used in the Thirteenth Amendment,” id. at 978, and that “[i]f the allegations against it are true, then Unocal’s participation in the Burma project makes out a strong case for a Thirteenth Amendment violation,” id. at 1034.

18. The fact that the Thirteenth Amendment reaches private action, see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438-39 (1968), in turn supports the view that forced labor by private actors gives rise to liability under the ATCA.

19. The statute provides that anybody who kidnaps any other person, or induces such other person to go anywhere, with the intent that such other person be sold into involuntary servitude or held as a slave, shall be fined or imprisoned as specified. See 18 U.S.C. § 1581.

20. Plaintiffs also argue that Unocal is liable for the conduct by the Myanmar Military under joint venture, agency, negligence, and recklessness theories. The District Court did not address any of Plaintiffs’ alternative theories. Because we reject the District Court’s general reasons for holding that Unocal could not be liable under international law, and because we hold that Unocal may be liable under at least one of Plaintiffs’ theories, i.e., aiding and abetting in violation of international law, we do not need to address Plaintiffs’ other theories, i.e., joint venture, agency, negligence, and recklessness. Joint venture, agency, negligence, and recklessness may, like aiding and abetting, be viable theories on the specific facts of this ATCA case. Moreover, on the facts of other ATCA cases, joint venture, agency, negligence, or recklessness may in fact be more appropriate theories than aiding and abetting.

21. The Military Tribunal in one of these case defined the necessity defense as follows: “Necessity is a defense when it is shown that the act charged was done to avoid an evil both serious and irreparable; that there was no other adequate means of escape; and that the remedy was not disproportionate to the evil.” United States v. Krupp, 9 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, 1436 (1950) [“Krupp”]). (quoting 1 Wharton’s Criminal Law 177 (12th ed. 1932)).

22. A reasonable factfinder could moreover conclude that Unocal’s conduct met the “active participation” standard erroneously applied by the District Court. For example, Unocal Representative Robinson stated that “[o]ur assertion that [the Myanmar Military] has not expanded and amplified its usual methods around the pipeline on our behalf may not withstand much scrutiny.” Robinson is furthermore reported to have stated that “Total/Unocal uses [photos, maps, and surveys] to show the military where they need helipads built and facilities secured.” In addition, Unocal President Imle stated that “[i]f forced labor goes hand in glove with the military yes there will be more forced labor” as the result of the Myanmar Military protecting the pipeline. Unocal thus resembles the defendants in Krupp, who “well knew that any expansion [of their business] would require the employment of forced labor,” 9 Trials at 1442, and the defendants in United States v. Flick, 6 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1952), who sought to increase their production quota and thus their forced labor allocation, id. at 1198, 1202.