[13] Second, a reasonable factfinder could also conclude that Unocal’s conduct met the mens rea requirement of aiding and abetting as we define it today, namely, actual or constructive (i.e., reasonable) knowledge that the accomplice’s actions will assist the perpetrator in the commission of the crime. The District Court found that “[t]he evidence does suggest 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. Moreover, Unocal knew or should reasonably have known that its conduct — including the payments and the instructions where to provide security and build infrastructure — would assist or encourage the Myanmar Military to subject Plaintiffs to forced labor.

     [14] Viewing the evidence in the light most favorable to Plaintiffs, we conclude that there are genuine issues of material fact whether Unocal’s conduct met the actus reus and mens rea requirements for liability under the ATCA for aiding and abetting forced labor. Accordingly, we reverse the District Court’s grant of Unocal’s motion for summary judgment on Plaintiffs’ forced labor claims under the ATCA.³⁰

3. Murder, Rape, and Torture

     a. Because Plaintiffs testified that the alleged acts of murder, rape, and torture occurred in furtherance of forced labor, state action is not required to give rise to liability under the ATCA.

     Plaintiffs further allege that the Myanmar military murdered, raped or tortured a number of the plaintiffs. In section II.A.1., we adopted the Second Circuit’s conclusion that “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. Kadic, 70 F.3d at 243-44. We, however, also adopted the Second Circuit’s conclusion that 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 244 (emphasis added), i.e., in pursuit of crimes, such as slavery, which never require state action for ATCA liability to attach. According to Plaintiffs’ deposition testimony, all of the acts of murder, rape, and torture alleged by Plaintiffs occurred in furtherance of the forced labor program.³¹ As discussed above in section II.A.2.a, forced labor is a modern variant of slavery and does therefore never require state action to give rise to liability under the ATCA. Thus, under Kadic, state action is also not required for the acts of murder, rape, and torture which allegedly occurred in furtherance of the forced labor program. ³²

     b. Unocal may be liable under the ATCA for aiding and abetting the Myanmar Military in subjecting Plaintiffs to murder and rape, but Unocal is not similarly liable for torture.

     In section II.A.2.b, we adopted “knowing practical assistance [or] encouragement . . . which has a substantial effect on the perpetration of the crime,” from Furundzija at ¶¶ 235, 245, as a standard for aiding and abetting liability under the ATCA. The same reasons that convinced us earlier that Unocal may be liable under this standard for aiding and abetting the Myanmar Military in subjecting Plaintiffs to forced labor also convince us now that Unocal may likewise be liable under this standard for aiding and abetting the Myanmar Military in subjecting Plaintiffs to murder and rape. We conclude, however, that as a matter of law, Unocal is not similarly liable for torture in this case.

     Initially we observe that the evidence in the record creates a genuine question of material fact as to whether Myanmar soldiers engaged in acts of murder and rape involving Plaintiffs. For instance, Jane Doe I testified that after her husband, John Doe I, attempted to escape the forced labor program, he was shot at by soldiers, and in retaliation for his attempted escape, that she and her baby were thrown into a fire, resulting in injuries to her and the death of the child. Other witnesses described the summary execution of villagers who refused to participate in the forced labor program, or who grew too weak to work effectively. Several Plaintiffs testified that rapes occurred as part of the forced labor program. For instance, both Jane Does II and III testified that while conscripted to work on pipeline-related construction projects, they were raped at knife-point by Myanmar soldiers who were members of a battalion that was supervising the work. The record does not, however, contain sufficient evidence to establish a claim of torture (other than by means of rape) involving Plaintiffs. Although a number of witnesses described acts of extreme physical abuse that might give rise to a claim of torture, the allegations all involved victims other than Plaintiffs. As this is not a class action, such allegations cannot serve to establish the Plaintiffs’ claims of torture here.

     Next, a reasonable factfinder could conclude that Unocal’s alleged conduct met the actus reus requirement of aiding and abetting as we define it today, i.e., practical assistance or encouragement which has a substantial effect on the perpetration of the crimes of murder and rape. As just discussed, the evidence supports the conclusion that the Myanmar Military subjected Plaintiffs to acts of murder and rape while providing security and building infrastructure for the Project. The evidence also supports the conclusion that Unocal gave “practical assistance” to the Myanmar Military in subjecting Plaintiffs to these acts of murder and rape. The practical assistance took the form of hiring the Myanmar Military to provide security and build infrastructure along the pipeline route in exchange for money or food. The practical assistance also took the form of using photos, surveys, and maps in daily meetings to show the Myanmar Military where to provide these services. This assistance, moreover, had a “substantial effect” on the perpetration of murder and rape, which “most probably would not have occurred in the same way” without someone hiring the Myanmar Military to provide security, and without someone showing them where to do it. Tadic at ¶ 688. This conclusion is supported by the admission of Unocal Representative Robinson that “[o]ur assertions that [the Myanmar Military] has not expanded and amplified its usual methods around the pipeline on our behalf may not withstand much scrutiny.” (Emphasis added.) This conclusion is further supported by Unocal Consultant Haseman’s comment to Unocal that “[t]he most common [human rights violations] are forced relocation without compensation of families from land near/along the pipeline route; forced labor to work on infrastructure projects supporting the pipeline . . . ; and . . . execution by the army of those opposing such actions.” (Emphasis added.)³³

     Finally, a reasonable factfinder could also conclude that Unocal’s conduct met the mens rea requirement of aiding and abetting as we define it today, i.e., actual or constructive (i.e., reasonable) knowledge that the accomplice’s actions will assist the perpetrator in the commission of the crime. The District Court found that “Plaintiffs present[ed] evidence demonstrating . . . that the military, while forcing villagers to work . . . , committed numerous acts of violence; and that Unocal knew or should have known that the military did commit, was committing, and would continue to commit these tortious acts.” Doe/Roe II, 110 F. Supp. 2d at 1306. Moreover, Unocal knew or should reasonably have known that its conduct — including the payments and the instructions where to provide security and build infrastructure — would assist or encourage the Myanmar Military to subject Plaintiffs to these acts of violence. Under Furundzija, it is not even necessary that the aider and abettor knows the precise crime that the principal intends to commit. See id. at ¶ 246. Rather, if the accused “is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.” Id. Thus, because Unocal knew that acts of violence would probably be committed, it became liable as an aider and abettor when such acts of violence — specifically, murder and rape — were in fact committed.

     [15] Viewing the evidence in the light most favorable to Plaintiffs, we conclude that there are genuine issues of material fact whether Unocal’s conduct met the actus reus and mens rea requirements for liability under the ATCA for aiding and abetting murder and rape. Accordingly, we reverse the District Court’s grant of Unocal’s motion for summary judgment on Plaintiffs’ murder and rape claims under the ATCA. By contrast, the record does not contain sufficient evidence to support Plaintiffs’ claims of torture. We therefore affirm the District Court’s grant of Unocal’s motion for summary judgment on Plaintiffs’ torture claims.

B. The Myanmar Military and Myanmar Oil are entitled to immunity under the Foreign Sovereign Immunities Act.

     Under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 et seq., a district court has jurisdiction over a civil action against a foreign state such as Myanmar — including its political subdivisions, agencies, or instrumentalities, such as the Myanmar Military or Myanmar Oil — only if one of several exceptions to foreign sovereign immunity applies. See 28 U.S.C. §§ 1330(a), 1603(a), & 1605-1607. Specifically,

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . (2) in which the action is based [1] upon a commercial activity carried on in the United States by the foreign state; or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States . . . .

28 U.S.C. § 1605(a). The District Court rejected the Doe-Plaintiffs’ argument that the second and third of the above exceptions gave the District Court jurisdiction over their claims against the Myanmar Military and Myanmar Oil. The existence of subject matter jurisdiction under the Foreign Sovereign Immunities Act is a question of law which this court reviews de novo. See Holden v. Canadian Consulate, 92 F.3d 918, 920 (9th Cir. 1996).

     The Doe-Plaintiffs argue that their claims against the Myanmar Military and Myanmar Oil fall within the second exception to foreign sovereign immunity in § 1605(a)(2) because they are based “upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere.” We have held that under this exception, a foreign state is not immune from the jurisdiction of the courts of the United States only if an act performed in the United States is an element of the plaintiff’s claim against the foreign state. See Holden, 92 F.3d at 920. In the present case, the Doe-Plaintiffs’ claims against the Myanmar Military and Myanmar Oil are based exclusively upon acts allegedly performed by these foreign state defendants in Myanmar (forced labor, murder, rape, torture). The Doe-Plaintiffs do not allege that the Myanmar Military or Myanmar Oil performed any acts in the United States. Any acts allegedly performed by Unocal in the United States (investments decisions, money transfers) are not elements of the Doe-Plaintiffs’ claims against the Myanmar Military and Myanmar Oil. The Doe-Plaintiffs’ claims against the Myanmar Military and Myanmar Oil therefore do not fall within the second exception to foreign sovereign immunity in § 1605(a)(2).

     The Doe-Plaintiffs also argue that their claims against the Myanmar Military and Myanmar Oil fall within the third exception to foreign sovereign immunity in § 1605(a)(2) because they are based “upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” The Supreme Court has held that “a state engages in commercial activity . . . where it exercises only those powers that can also be exercised by private citizens, as distinct from those powers peculiar to sovereigns.” Saudi Arabia v. Nelson, 507 U.S. 349, 360 (1993) (internal quotation marks omitted). The District Court noted that “[the Myanmar Military] and [Myanmar Oil] engaged in commerce in the same manner as a private citizen might do when they allegedly entered into the . . . gas pipeline project.” Doe I, 963 F. Supp. at 887. The District Court further noted that “[i]n addition, [the Myanmar Military and Myanmar Oil] engaged in the acts upon which the claims are based ‘in connection with’ that commercial activity.” Id. at 887-88. The District Court concluded, however, that “[b]ecause [the Doe Plaintiffs] essentially allege that [the Myanmar Military] and [Myanmar Oil] abused their police power” when they engaged in these additional acts upon which the claims are based, these acts were exercises of powers peculiar to sovereigns and, therefore, “do not come within the commercial activity exception to the FSIA.” Id. at 888.

Part 6

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30. Unocal argues that “Unocal is not vicariously liable for the Myanmar military’s torts because the pipeline was constructed by a separate corporation,” i.e., the Gas Transportation Company, and because “[t]here is no basis to pierce the corporate veils of [the Unocal Pipeline Corp.] or [the Unocal Offshore Co.]” We initially observe that there is evidence allowing a reasonable factfinder to conclude that the Unocal Pipeline Corp. and the Unocal Offshore Co. were alter egos of Unocal, and that any actions by the Unocal Pipeline Corp. or the Unocal Offshore Co. are therefore attributable to Unocal. This evidence includes the Unocal Pipeline Corp.’s and the Unocal Offshore Co.’s undercapitalization and the direct involvement in and direction of the Unocal Pipeline Corp.’s and the Unocal Offshore Co.’s business by Unocal President Imle, Unocal CEO Beach, and other Unocal officers and employees. See Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386(KMW), 2002 WL 319887, *13 n.14 (S.D.N.Y. Feb. 28, 2002) (holding in the ATCA context that “[b]y involving themselves directly in [their subsidiary’s] activities, and by directing these activities, [parent companies] made [their subsidiary] their agent with respect to the torts alleged in the complaint”). More importantly, we do not address — and neither did the District Court — whether a reasonable factfinder could hold Unocal “vicariously liable for the Myanmar military’s torts.” (Emphasis added.) See supra note 20. Rather, we find that there is sufficient evidence to hold Unocal liable based on its own actions and those of its alter ego subsidiaries which aided and abetted the Myanmar Military in perpetrating forced labor. These actions include the employment of the Myanmar Military to provide security and build infrastructure along the pipeline route, and the use of photos, surveys, and maps to show the Myanmar Military where to do this. Unocal took these actions with the knowledge that the Myanmar army was likely to use and did in fact use forced labor “on behalf of the Project.”

31. In addition, some of the acts of murder, rape, and torture alleged by non-party witnesses apparently did not occur in furtherance of the forced labor program. Because this is not a class action, the context in which tortious acts alleged by non-party witnesses took place is immaterial to this discussion.

32. Because state action is not required in the present case, the District Court erred when it required a showing that Unocal “controlled” the Myanmar Military’s decision to commit the alleged acts or murder, rape, and torture to establish that Unocal proximately caused these acts. See Doe/Roe II, 110 F. Supp. 2d at 1307. We require “control” to establish proximate causation by private third parties only in cases — under, e.g., 42 U.S.C. § 1983 — where we otherwise require state action. See, e.g., Arnold, 637 F.2d at 1356-57. In other cases — including cases such as this one — where state action is not otherwise required, we require no more than “forseeability” to establish proximate causation. See id. at 1355. This requirement is easily met in the present case, where Unocal Vice President Lipman testified that even before Unocal invested in the Project, Unocal was aware that “the option of having the [Myanmar] [M]ilitary provide protection for the pipeline construction . . . would [entail] that they might proceed in the manner that would be out of our control and not be in a manner that we would like to see them proceed,” i.e., “going to excess.” (Emphasis added.)

33. The evidence also supports the conclusion that Unocal gave “encouragement” to the Myanmar Military in subjecting Plaintiffs to murder, rape, and torture. The daily meetings with the Myanmar Military to show it where to provide security and build infrastructure, despite Unocal’s knowledge that the Myanmar Military would probably use murder, rape, and torture in the process, may have encouraged the Myanmar Military to actually use murder, rape, and torture. Similarly, the payments to the Myanmar Military for providing these services, despite Unocal’s knowledge that the Myanmar Military had actually used murder, rape, and torture in the process, may have encouraged the Myanmar Military to continue to use murder, rape, and torture.