ERI Asks Supreme Court to Hear Case on Corporate Complicity in Crimes Against Humanity in Sudan

As the law in New York’s federal courts stands now, a company can knowingly provide fuel and runways for government bombing raids against civilians and support the murderous displacement of entire communities, without having any responsibility for the injuries made possible by their assistance of gross human rights abuses committed in part for their own benefit. On May 20, 2010, EarthRights International (ERI) filed an amicus brief in the case of Presbyterian Church of Sudan v. Talisman Energy, Inc., urging the U.S. Supreme Court to consider and overturn the incorrect and unjust ruling by the U.S. Court of Appeals for the Second Circuit that condones such behavior.

It is hard to imagine a clearer case of corporate complicity in human rights abuses than the involvement of Canadian oil company Talisman Energy in the atrocities committed by the Sudanese government against Southern tribespeople starting in the late 1990s. Talisman bought a major share in a consortium exploiting oil near the volatile border between North and South Sudan in 1998, despite knowledge that the Sudanese government was engaged in gross abuses in its suppression of Southern secessionist groups. In the course of its due diligence, Talisman also learned that the government preferred to established a “cordon sanitaire” around oil fields in the area – which meant brutally attacking surrounding villages and driving the survivors out of the area. During the years that it maintained its stake in the consortium, Talisman funded and built bases to provide air cover for bombing campaigns against civilians, and hired and deployed military advisors to work closely with Sudanese military personnel as they cleared the local population from the areas around the oil facilities. Talisman employees refueled Sudanese air force planes to go on bombing raids against the surrounding populace. All this was known at the highest levels of Talisman’s management, including the fact that the air force’s targets were civilians, and not legitimate military objectives.

On behalf of a group of Sudanese victims, plaintiffs’ attorney Carey D’Avino filed suit against Talisman in New York federal court in 2001, charging it with complicity in the Sudanese government’s grave violations of human rights. The case worked its way through the court system for eight years, until it ran afoul of one side of an important doctrinal debate that is currently in front of the courts. Although the legal battle is fought out in highly technical terms, the basic issue is quite real and practically significant. When an individual (either a company or a private person) aids in the commission of grave human rights abuses, knowing that his assistance will contribute to the abuses, is that individual then liable for the abuses? Or does the individual become liable only if it can be proven that he specifically intended for his assistance to lead to the human rights violations – that he shared the purpose of the primary violator? In its own cases and its amicus briefs, ERI has repeatedly argued in favor of a “knowing assistance” rule. Requiring a shared purpose might well exonerate, for example, businessmen who manufactured and sold the poison gas Zyklon B to the Germans during World War II, since they intended not to contribute to genocide but simply to make money; some of these businessmen were in fact convicted at Nuremburg.

In its 2009 decision, the Second Circuit agreed with Talisman that the courts must look to international law for the rules of aiding and abetting grave human rights abuses – and that international law requires a shared purpose. The court found that the plaintiffs had not put forward facts showing that Talisman specifically intended its acts of assistance to contribute to genocide, war crimes, torture, and crimes against humanity, and therefore dismissed the case. The plaintiffs petitioned for a writ of certiorari, asking the Supreme Court to hear their claims and reverse the Second Circuit’s decision. Paul Hoffman, who is ERI’s co-counsel in several cases, presented the appeal to the Second Circuit and the Supreme Court.

Although ERI does not represent the Talisman plaintiffs, the outcome of this debate has the potential to affect almost all of our cases. ERI therefore filed an amicus brief supporting the petition, arguing that this question is so important, and the Second Circuit’s ruling so plainly wrong, that the Supreme Court should grant the plaintiffs’ petition and hear the case. ERI previously filed two other amicus briefs in the same case, and we now hope that the Supreme Court will step in and guide the courts on the proper standards.