Sarei

dissenting, joined by Judges KLEINFELD, CALLAHAN and BEA:

In its rush to announce which decisions of selected international tribunals, which unratified or unenforceable treaties, and which favorite academic theories create international law norms enforceable in federal courts, the majority has stumbled on the *819 threshold question: whether the Alien Tort Statute (ATS) gives us jurisdiction over this particular suit at all. As it happens, this threshold is no mere doorsill but a formidable obstacle: in fact, the ATS gives us no authority to hear a case where an alien sues another alien. That is, Congress enacted the ATS under the authority of the foreign diversity clause, which provides that the federal judicial power extends to controversies between “a State, or the Citizens thereof, and foreign States, Citizens or Subjects,” U.S. Const, art. III, § 2, cl. 1. This means that in enacting the ATS, Congress authorized federal courts to hear actions where an alien sues a U.S. citizen, but gave federal courts no authority to hear suits between two aliens. Because the majority sees fit to brush past these limitations and give itself unlimited authority to adjudicate suits between…

Before: MARY M. SCHROEDER, HARRY PREGERSON, STEPHEN REINHARDT, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, M. MARGARET McKEOWN, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge SCHROEDER; Concurrence by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge McKEOWN; Partial Concurrence and Partial Dissent by Judge BEA; Dissent by Judge KLEINFELD; Dissent by Judge IKUTA.

Opinion by Judge SCHROEDER, Circuit Judge, with whom SILVERMAN and BERZON, Circuit Judges, join. PREGERSON and RAWLINSON, Circuit Judges, join as to all but Parts IV(C) and (D) and partially join Part IV(B)(3). REINHARDT, Circuit Judge, joins as to all but Part II(C) and Part IV(B)(3), as to which he concurs in the result. McKEOWN, Circuit Judge, joins as to all but Part IV(A)(3) and Part IV(B)(4):

This is an Alien Tort Statute (ATS) case arising out of the operations of Rio Tinto mining group (Rio Tinto) on the island of Bougainville in Papua New Guinea (PNG) and the uprising against Rio Tinto in the late 1980's that resulted in the use of military force and many…

concurring in part and dissenting in part, with whom RAWLINSON, Circuit Judge, joins:

For the reasons stated by the majority, I agree that we must reverse the district *772 court’s dismissal of Plaintiffs’ claims for genocide and war crimes. I write separately, however, to express my disagreement with three points considered by that opinion. First, I believe that knowledge rather than purpose is the appropriate mens rea standard for aiding and abetting liability for war crimes claims under the Alien Tort Statute, and there is no reason for us to pass on holding so. Second, I believe that the alleged food and medical blockade qualifies as a crime against humanity and a war crime under customary international law, and therefore, we have jurisdiction to hear those claims under the Alien Tort Statute. Third, I believe we have jurisdiction under the Alien Tort Statute to decide Plaintiffs’ systematic racial discrimination claims because there is a jus cogens norm against systematic racial discrimination. Moreover, because I believe that Plaintiffs have alleged facts sufficient to support their claims for crimes against humanity, war crimes, and systematic racial discrimination, I…

concurring in part and dissenting in part, joined as to Part II by Judges REINHARDT and BERZON:

The Alien Tort Statute (“ATS”), albeit short on words, is a perplexing statute. Given the ink spilled in many judicial opinions, concurrences, and dissents, as well as scholarly articles, this brevity has not netted clarity.

Nonetheless, despite the many novel issues in this case, a few defining principles emerge.

Under the ATS, the federal courts have jurisdiction over claims for torts in violation of the law of nations. The law of nations is equally clear that genocide and war crimes are jus cogens violations of international law wherever they occur and whoever commits those crimes, whether an individual, group, corporation, or government. Importantly, one defining feature of the universal, specific, and obligatory norms prohibiting genocide and war crimes is the focus of those prohibitions on the identities of the victims of those crimes, as opposed to the identities of the perpetrators.

I concur in the majority’s holding that the ATS may give rise to tort actions based on extraterritorial conduct by corporations. I am flattered that the majority has adopted some of my language…

concurring in part and dissenting in part, with whom KLEINFELD and CALLAHAN, Circuit Judges, join, and with whom IKUTA, Circuit Judge, joins as to all but Part III:

The last time this case was before us, the en banc court remanded to the district court to “determine in the first instance whether to impose an exhaustion requirement” on plaintiffs’ claims under the Alien Tort Statute (“ATS”). 1 Sarei v. Rio Tinto PLC, 550 F.3d 822, 832 (9th Cir.2008) (“Rio Tinto III ”). In determining whether such an exhaustion analysis was required, our Rio Tinto III plurality opinion (“Plurality opinion”) instructed the district court first to consider and balance two factors: (1) the strength of the nexus, if any, between the United States and the acts and omissions alleged in the complaint—the less nexus, the more reason for exhaustion, and (2) the gravity of the violations alleged, namely whether the claims implicated “matters of universal concern”—the more grave the violations, the less reason for exhaustion. Id. at 831 .

Then, if this two-factor balancing test weighed in favor of imposing such an exhaustion requirement, the plurality opinion instructed the district court it should then…

dissenting, with whom BEA and IKUTA, Circuit Judges, join:

I respectfully dissent.

“[T]here must be some rule of law to guide [a] court in the exercise of its jurisdiction.” 1 The complaint in this case seeks damages and an injunction against Rio Tinto, a British-Australian corporation, for wrongs against people in Bougainville, Papua New Guinea. 2 Now that our court has adopted universal jurisdiction to grant tort damages for violations by foreigners against foreigners in foreign lands of “the law of nations,” in a plethora of opinions that cannot agree on what the “law of nations” prohibits, we on the Ninth Circuit now exercise jurisdiction over all the earth, on whatever matters we decide *798 are so important that all civilized people should agree with us.

We have no such jurisdiction. The majority claims it under a 1789 statute passed by the First Congress that conferred tort jurisdiction on the new federal courts for torts in violation of the “law of nations.” That statute was intended to enable our courts to address wrongs done in the United States to foreigners and wrongs done outside any foreign state’s territory. Here is the statute:

The statute does not say “in the…

joins as to all but Part IV(A)(3) and Part IV(B)(4):

I. INTRODUCTION

This is an Alien Tort Statute (ATS) case arising out of the operations of Rio Tinto mining group (Rio Tinto) on the island of Bougainville in Papua New Guinea (PNG) and the uprising against Rio Tinto in the late 1980’s that resulted in the use of military force and many deaths. The Plaintiffs are current or former residents of the island of Bougainville. The ATS provides that “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in viola *743 tion of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350 .

This is the second time this case has been before this en banc court. See Sarei v. Rio Tinto PLC (Rio Tinto III), 550 F.3d 822, 825-26 (9th Cir.2008). The facts are laid out comprehensively in the original district court opinion. See Sarei v. Rio Tinto PLC (Rio Tinto I), 221 F.Supp.2d 1116, 1121-27 (C.D.Cal.2002). The origin.1 three-judge panel majority and dissenting opinions were divided on the issue of exhaustion of local remedies. Sarei v. Rio Tinto PLC (Rio Tinto II), 487 F.3d 1193 (9th Cir.2007). As a result, our first en…

concurring:

I concur fully in the results of the majority opinion but disagree with a limited part of its reasoning, contained in Parts II.C and IV.B.3, regarding aiding and abetting. 1 I would look to domestic rather than international law in analyzing this issue. I also join Part II of Judge McKeown’s opinion, which clarifies that domestic law predominantly governs the issue of corporate liability.

The applicability of domestic law to resolve questions under the ATS is hardly a novel matter. International law “takes no position on whether its norms may be enforced by civil actions for compensatory damages,” leaving that question “to be separately decided by each nation.” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 153 (2d Cir.2010) (Leval, J., concurring in the judgment); see also Doe v. Exxon Mobil Corp., 654 F.3d 11, 51-52 (D.C.Cir.2011); Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir.1995) (“The law of nations ... leaves to each nation the task of defining the remedies that are available for international law violations.”); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 778 (D.C.Cir.1984) (Edwards, J., concurring) (“[T]he law of nations never has been perceived to…