Case 31.3

FACTS The Khulumani plaintiffs, along with other plaintiff groups, filed class-action claims on behalf of victims of apartheid-related atrocities, human rights violations, crimes against humanity, and unfair and discriminatory forced-labor practices. The plaintiffs brought this action in federal district court under the Alien Tort Claims Act (ATCA) against a number of corporations, including Bank of America, Barclay National Bank, Citigroup, Credit Suisse Group, General Electric, and IBM. The district court dismissed the plaintiffs' complaints in their entirety. The court held that the plaintiffs had failed to establish subject-matter jurisdiction under the ATCA. The plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit.

ISSUE Can the plaintiffs bring a claim against U.S. and foreign companies under the ATCA for "aiding and abetting" human rights violations?
DECISION Yes. The U.S. Court of Appeals for the Second Circuit vacated the district court's dismissal of the plaintiffs' claims and remanded the case for further proceedings. According to the reviewing court, a plaintiff may plead a theory of aiding and abetting liability under the ATCA.

REASON The court stated that the district court "erred in holding that aiding and abetting violations of a customary international law cannot provide a basis for ATCA jurisdiction." The court reasoned that the United States Supreme Court has instructed courts in this nation to exercise caution and carefully evaluate international norms and potential adverse foreign policy consequences in deciding whether to hear ATCA claims. Thus, "the determination whether a norm is sufficiently definite to support a cause of action should (indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts." The court rejected the defendants' argument that an adjudication of the case by the U.S. court "would offend amicable working relationships with a foreign country."

FOR CRITICAL ANALYSIS-Ethical Consideration Should the companies cited as defendants in this case have refused all business dealings with South Africa during the era of apartheid when the country's white government severely limited the rights of the majority black African population?