The Fourth Circuit Court of Appeals has determined that Kurdish plaintiffs may not sue the company that makes a chemical used in mustard gas under either the Torture Victim Protection Act or the Alien Tort Statute (ATS). Aziz v. Alcolac, Inc., No. 10-1908 (4th Cir., decided September 19, 2011). According to the court, the torture victim law excludes corporations from liability, and the plaintiffs failed to plead sufficient facts to support the intent element, i.e., that the defendant intended to aid and abet violations of international law, as required to bring an ATS claim.

The defendant allegedly sold the chemical at issue, thiodiglycol (TGD), to Saddam Hussein’s Iraqi regime, which used it to “manufacture mustard gas to attack Kurdish enclaves in northern Iraq during the late 1980s.” While TGD has lawful commercial applications, including dyeing textiles and producing inks, the defendant was purportedly aware as early as 1982 that the chemical “could be used to manufacture mustard gas.” U.S. government officials allegedly warned the defendant that TGD was subject to export restrictions, but the company filled an order in 1987 for 120 tons of the chemical that was eventually shipped to Iran and then filled additional orders for more than 1 million pounds that reached Iraq where the chemical was purportedly used in mustard gas attacks on Kurds leaving “thousands dead, maimed, or suffering from physical and psychological trauma.”

The plaintiffs, individuals of Kurdish descent who were either victims of the attacks or family members of deceased victims, filed their complaint on behalf of two putative classes: (i) those who are U.S. citizens and permanent residents, alleging liability under the torture victim law, and (ii) those who are foreign nationals and sought relief under the ATS. The district court granted the defendant’s motion to dismiss, and the plaintiffs appealed.  

Noting that the torture victim law allows recovery against “individuals,” the Fourth Circuit agreed with the district court that the defendant, “as a corporation, is not an ‘individual’ subject to liability” under the law. Agreeing with sister circuits that the ATS applies to aiding and abetting claims, the court adopted the Second Circuit’s specific intent mens rea standard, which requires allegations that “the defendant acted with the purpose of facilitating the violation of an international norm.” Because the plaintiffs made a cursory allegation only about the defendant’s intentional conduct, the court affirmed the district court’s judgment as to the ATS claims.