February 10, 2016

Clinic Files Petition for Certiorari in Final Attempt to Hold Two U.S. Corporations Accountable for Supporting Apartheid

Posted by Tyler Giannini and Susan Farbstein

The Clinic and its partners today filed a petition for writ of certiorari with the U.S. Supreme Court in the In re South African Apartheid Litigation suit, asking the Court to clarify the circumstances under which defendants may be held accountable in U.S. courts for human rights violations. The case, which involves the actions of U.S. corporations IBM and Ford, raises questions about whether a defendant’s knowledge is sufficient to establish aiding and abetting liability, or whether specific intent or motive must also be demonstrated. It also concerns how closely a human rights violation must be connected to the United States in order to sue under the Alien Tort Statute (ATS), and whether corporations can be held liable at all under the ATS.

The petition argues that through their actions, and decades-long support for violations associated with apartheid, defendants IBM and Ford purposefully facilitated violations of international law by enabling the “denationalization and violent suppression, including extrajudicial killings, of black South Africans living under the apartheid regime.” According to the petition, “IBM and Ford purposefully designed, sold, and serviced customized technology and vehicles for the South African government that they knew in advance would be used to racially segregate and systematically oppress black South Africans.”

Despite the corporations’ knowledge and deliberate action, in 2015 the Second Circuit concluded that IBM did not aid and abet international law violations because there was no evidence that “IBM’s purpose was to denationalize black South Africans and further the aims of a brutal regime.” In an equally striking 2011 decision, the Fourth Circuit imposed an aiding and abetting standard requiring defendants who supplied mustard gas to Saddam Hussein’s Iraqi regime to not just know but rather intend that it be used against civilians.

The petition argues that, if left to stand, the Second and Fourth Circuits’ rulings will protect U.S.-based aiders and abettors of international law violations from liability. The Second and Fourth Circuits implicitly rejected the standard set at Nuremberg, under which industrialists who knew that Zyklon-B gas would be used to commit genocide, and deliberately decided to sell it to the Nazis, were convicted. Unlike the Second and Fourth Circuits, the Nuremberg courts did not require that the defendants intended their products to be used against civilians, or that they shared the genocidal motives of the Nazis.

As the petition explains, “the Second Circuit’s standard is thus so restrictive that it is now easier to convict individuals of international crimes before the [International Criminal Court] than to find individuals civilly liable under the ATS for the same acts.” In other words, perpetrators convicted of international crimes at Nuremberg would not be civilly liable under the ATS for aiding and abetting the Holocaust.

The ruling is particularly troubling given that no other forum exists to bring this case. If the Supreme Court does not take the case and reverse the Second Circuit’s decision, these U.S. corporations will be shielded from liability for universally condemned conduct.

The certiorari petition focuses on three legal issues:

1. whether the Second and Fourth Circuit’s heightened “specific intent” mens rea standard for aiding and abetting, which is inconsistent with domestic and international law and in direct conflict with the Ninth and Eleventh Circuits, should stand;

2.  whether ATS claims against U.S. nationals that committed tortious acts in the United States should be permitted to proceed under the Supreme Court’s 2013 ruling in Kiobel that requires “claims touch and concern the territory of the United States with sufficient force to displace the presumption against extraterritorial application;” and

3. whether the Second Circuit’s holding that ATS claims are not permitted against corporations is still good law despite being undermined by the reasoning of Kiobel and rejected by six other appellate courts.

Note: The Clinic has been involved with this case since Fall 2005, with dozens of clinical students contributing to the fact-finding, research, and writing of briefs over the years. Since Fall 2015, the following students have worked on the case: Mira Chernick, JD ’16, Brian Klosterboer, JD ’16, Hannah Flamm, HKS ’16, Laura Dismore, JD ’17, Katerina Gross, JD ’17, Kiri Toki, LLM ’16, Roi Bachmutsky, JD ’17, and Lan Mei, JD ’17.