The Circuit Split on Mens Rea for Aiding and Abetting Liability Under the Alien Tort Statute

Abstract

For decades since the Second Circuit Court of Appeals’ landmark decision in Filartiga v. Pena-Irala, the Alien Tort Statute has provided tools for human rights litigation in American federal courts. Nevertheless, after some controversial decisions by the U.S. Supreme Court and the Second Circuit in recent years, the scope of liability under the statute has diminished and the future of ATS human rights litigation is uncertain. In this context, one of the key issues is the level of culpability required for a defendant to be liable for assisting the human rights breaches of a third party. Specifically, the issue is whether the requisite mens rea is knowledge or purpose. After surveying the sources that courts have looked at to answer this question, this Note concludes that the appropriate mens rea standard should be knowledge.