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Corporate Complicity in Human Rights Abuses: The Controversy Over the Mens Rea Standard Applicable Under the Alien Tort Statute

When corporations are accused under the Alien Tort Statute (ATS) of having aided and abetted human rights violations, one of the most common defensive arguments they adopt is that of having acted with the sole purpose of profit, and not with the intent of carrying out a human rights abuse. Such line of defence can be successful if the mens rea standard applied by the court is the restrictive “purpose” test, but it is likely to fail if the plaintiffs merely need to prove that the corporations acted in the knowledge of the perpetrator’s criminal intent. For this reason, the divergent interpretations of the mens rea standard given by several U.S. Courts of Appeals in recent ATS cases created a legal uncertainty that may be damaging to both victims of abuses and corporate defendants. Such uncertainty could be dissipated by the final verdict of the Supreme Court in the case Kiobel v. Royal Dutch Petroleum...expected in Autumn 2012.