Blog: In Re South African Apartheid Ligitation

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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.

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July 30, 2015

Second Circuit Decision in Apartheid Appeal Denies Plaintiffs the Opportunity to Proceed with Their Claims

Posted by Susan Farbstein and Tyler Giannini

Earlier this week, the Second Circuit handed down its opinion in In re South African Apartheid Litigation, denying Plaintiffs an opportunity to proceed with their claims against the remaining Defendants Ford and IBM. In doing so, the appellate court affirmed the District Court’s prior decision on the grounds that Plaintiffs’ proposed amended complaints had not alleged sufficient plausible new facts to move forward.

While the outcome was disappointing, so too was the opinion of the Court itself, which failed to fully engage with new, specific, and detailed allegations in the proposed amended complaints — in particular, allegations about how both defendants, in the United States, took purposeful and repeated actions to aid and abet the South African state to commit international law violations. With respect to the allegations against Ford, the Court glanced over important facts about the U.S. parent corporation’s direct involvement in the design and approval of the sale of specialized vehicles to South African security forces, in contravention of international sanctions regimes. Instead, the Court concluded broadly that the allegations were insufficient to link Ford in the United States to the violations in South Africa.

With respect to the allegations against IBM, the Court did find sufficient U.S. domestic conduct by the parent — specifically, that it designed particular technologies that facilitated the denationalization of black South Africans. But while this conduct did “touch and concern” the United States, the standard set by the Supreme Court in Kiobel v. Royal Dutch Petroleum, the Court held that the allegations did not plausibly allege that IBM’s conduct was “purposeful.” Because purpose (rather than knowledge) is the required standard for an aiding and abetting claim in the Second Circuit under Presbyterian Church of Sudan v. Talisman, the Court determined that Plaintiffs’ claims could not proceed.

The Plaintiffs will now seek en banc review of the panel’s decision, requesting that all active judges on the Court rehear the case because it presents questions of exceptional importance and conflicts with prior decisions of the Second Circuit as well as the U.S. Supreme Court.

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September 20, 2013

Plaintiffs File Petition in Second Circuit Court of Appeals to Review Panel’s Decision in Apartheid Case

Posted by Tyler Giannini and Susan Farbstein

This week, the International Human Rights Clinic, along with co-counsel, filed a petition on behalf of plaintiffs for panel rehearing or rehearing en banc to review the U.S. Second Circuit Court of Appeal’s decision in Balintulo v. Daimler AG, which is also known as the In Re South African Apartheid Litigation. The petition stated that “The panel opinion in Balintulo v. Daimler AG  would eviscerate more than thirty years of this Court’s Alien Tort Statute (‘ATS’) jurisprudence and should be reviewed en banc because it conflicts with the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. as well as decisions in this Circuit.”

The petition comes more than 10 years after cases were first filed in the United States in 2002. Three defendant corporations—Ford Motor Company, Daimler AG, and International Business Machines Corporation (IBM)—remain from the original cases and are charged with complicity in the perpetration of apartheid-era crimes and human rights violations.

The petition seeks review of an August 21 decision by a three-judge panel of the Second Circuit that lifted a stay and sent the matter back to district court Judge Shira Scheindlin to consider the plaintiffs’ claims in light of the Supreme Court’s April decision in Kiobel. In the wake of the Kiobel ruling, which found that ATS claims must “touch and concern” the United States, the Second Circuit had requested letter briefs from both the plaintiffs and defendants. The briefs were submitted in late May, and in August, the Second Circuit stated that in light of Kiobel, “the Alien Tort Statute does not reach the extraterritorial conduct in this case.”

The U.S.-based lawyers representing the plaintiffs in the cases include Paul Hoffman of Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP, Michael Hausfeld of Hausfeld, LLP, Diane Sammons and Jay Rice of Nagel Rice LLP, and Judith Brown Chomsky of the Law Offices of Judith Brown Chomsky. The South African-based legal team includes Dumisa Ntsebeza, John Ngcebetsha, Charles Abrahams, Medi Mokuena, and Michael Osborne.

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