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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.
November 17, 2011
Posted by Victor Ban, JD '13
Please join us today at noon for a viewing of the ground-breaking film, “Nuremberg: Its Lesson for Today”. As narrative, the film captures a moment in global history that continues to shape international conceptions of justice, war, and genocide. As historical document, the newly restored footage is a testament to the raw power of visual media, a power that certain parties might seek to suppress or manipulate. As creative endeavor, “Nuremberg” is the triumph of a team of filmmakers committed to seeking truth.
The Harvard Law Documentary Studio—a community dedicated to creating and screening original documentaries on social and policy topics —is honored to co-sponsor this event, along with the Human Rights Program, Facing History and Ourselves, and the HLS Office of the Dean.
Victor Ban, JD ’13, is the President of the Harvard Law Documentary Studio (www.facebook.com/harvardlawdocs)
“Nuremberg: Its Lesson for Today”
12:00- 2:00 pm
John Chipman Gray
Introductory Remarks by Dean Martha Minow
Special guest Sandra Schulberg, restoration producer & daughter of filmmaker Stuart Schulberg, will discuss the use of motion picture evidence at the trial; the making of “Nuremberg”; and its subsequent suppression by the U.S. government.
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