West Law Report

Human Rights Plaintiffs May Plead Aiding and Abetting Theory of Liability

Posted in Alien Tort Claims Act, apartheid, Harvard Law Review (case) by mrkooenglish on May 24, 2008

A case summary of Harvard Law Review (May 2008): Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (.pdf) (8 pages):

FEDERAL STATUTES — ALIEN TORT STATUTE – Second Circuit

Some of the most interesting and unsettled questions in human rights litigation after Sosa v. Alvarez-Machain concern the status of secondary liability theories, prominently including aiding and abetting. Although several courts have held that aiding and abetting liability is available in Alien Tort Statute (ATS) cases, there is continuing debate over whether it should be available at all, how it should be defined, and what sources of law courts should consult for answers to these questions. Recently, in Khulumani v. Barclay National Bank Ltd. (2007), a Second Circuit panel held that ATS plaintiffs “may plead a theory of aiding and abetting liability,”5 but split on whether courts should look to customary international law or federal common law to determine the availability and scope of this liability theory. Although the three separate opinions in Khulumani indicate the difficulty of the issue, the best reading of the key U.S. cases and of customary international law is that courts should look primarily to federal common law to decide questions about aiding and abetting liability in ATS cases.

Justices’ Conflicts Halt Apartheid Appeal

Posted in Alien Tort Claims Act, apartheid, US Supreme Court by mrkooenglish on May 19, 2008

(1)
NY Times reported that recusal of four justices in the case of South Africa Apartheid:

Financial and personal conflicts of interest affecting four Supreme Court justices left the court without a quorum last week and unable to decide whether to hear an appeal brought by more than 50 companies that did business in apartheid-era South Africa.

Is it usual for every such case?

(2)
And a brief:

The Alien Tort Statute, sometimes called the Alien Tort Claims Act, lay dormant for most of two centuries until it was rediscovered as a way to seek redress in United States courts for human rights violations committed overseas.

The Supreme Court, while not foreclosing the use of the statute for that purpose, has been notably skeptical. A footnote in a 2004 Supreme Court decision on an unrelated Alien Tort Statute case referred specifically to the South African lawsuit, noting that there was “a strong argument that federal courts should give serious weight to the executive branch’s view of the case’s impact on foreign policy.”

In its ruling last October allowing the case to proceed, the United States Court of Appeals for the Second Circuit, in New York, ordered the district court to consider defenses it had not previously addressed. These include whether the suit presents a “political question” that is beyond the institutional capacity of a federal court to resolve.

“A footnote in a 2004 Supreme Court decision”?

(3)
What case is it? Rasul v Bush (2004)? Sosa v Alvarez-Machain (2004)?

Victims of apartheid can sue multinationals

Posted in Alien Tort Claims Act, apartheid by mrkooenglish on May 13, 2008

The Times reported today “Thousands of South Africans who suffered under apartheid won the right yesterday to sue a number of companies, including BP, Citigroup and Ford, for allegedly helping to perpetrate human rights abuses.”

What they have to establish:

Lawyers representing the victims within the three class actions will have to establish that the companies knowingly helped the South African government to perpetrate human rights abuses. That could include, for example, proving that a motor company knew that lorries that it sold in South Africa would be used as armoured vehicles to destroy townships. It could also include establishing that a technology company sold computer equipment and software that would be used to operate a racial identification system.

But why can they sue in US?

The lawsuits were filed in 2002 and were thrown out by a federal judge on the ground that the United States’s courts did not have jurisdiction.

This case is the latest test of an 18th-century law, called the Alien Tort Claims Act. It allows foreigners to use the US legal system to right international law violations. The legislation was drawn up to help foreigners seek redress for issues such as piracy, but it has been used increasingly to sue corporations for their alleged involvement in human rights abuses overseas.

Last year, Yahoo! was sued for its decision to give China access to a political dissident’s e-mail account. The online search engine settled.