In re South African Apartheid Litigation (Amicus)

At a Glance

Date Filed: 

2002

Current Status 

The Second Circuit Court of Appeals affirmed the district court's dismissal of the case on July 27, 2015.  Plaintiffs petitioned for rehearing en banc on August 10, 2015, which the court denied on September 14, 2015.

Co-Counsel 

Amici EarthRights International and other human rights organizations

Client(s) 

Survivors of South African apartheid seeking accountability from corporations complicit in these violations

Case Description 

The Center for Constitutional Rights filed amicus briefs in 2005, 2009, and 2015 in this consolidated case seeking civil liability from multinational corporations that are alleged to have aided and abetted the South African apartheid regime. The 2005 amicus brief, filed on behalf of public interest and religious organizations, addresses why apartheid must be found to constitute a violation of customary international law. The 2009 brief, filed on behalf of international and national human rights organizations, focuses primarily on the requirement under international law to ensure victims have access to a remedy and argues that the case should not be dismissed under the political question doctrine. The 2015 amicus brief that CCR joined with other human rights and labor organizations argues that the Supreme Court’s 2013 decision in Kiobel affirmed that corporations can be sued for human rights violations under the Alien Tort Statute, and that the claims in the case are governed by federal common law, which allows for corporate liability. CCR filed or joined these briefs as part of its efforts to strengthen mechanisms in U.S. courts for accountability for corporate human rights violations.

After years of litigation, the remaining claims are against two U.S. corporations, Ford Motor Company (Ford) and International Business Machines Corporation (IBM). Plaintiffs allege that these corporations provided substantial, purposeful assistance to the apartheid regime by supplying it with products and services to advance the commission of violations including apartheid, denationalization, torture, and extrajudicial killing.

These lawsuits were brought under the Alien Tort Statute, which allows foreign nationals to sue for egregious human rights violations in U.S. courts. CCR pioneered the Alien Tort Statute as a tool to pursue international human rights violations in U.S. courts and has used it for decades to seek justice and accountability for human rights victims across the globe.

Case Timeline

September 14, 2015

Rehearing en banc is denied

September 14, 2015

Rehearing en banc is denied

August 10, 2015

Plaintiffs petition for rehearing en banc

August 10, 2015

Plaintiffs petition for rehearing en banc

Plaintiffs argue that en banc review is necessary on three grounds: 1) the opinion conflicts with the Supreme Court's decision in Kiobel; 2) the opinion has adopted a mens rea standard of purpose that is “specific intent,” which transforms aiding and abetting into joint criminal enterprise and also is in conflict with international jurisprudence that establishes the mens rea standard as knowledge; and 3) there is a conflict in the Circuit about whether corporate liability exists under the ATS.

July 27, 2015
Second Circuit Court of Appeals affirms district court dismissal
July 27, 2015
Second Circuit Court of Appeals affirms district court dismissal
Judges Cabranes, Hall, and Livingston order that plaintiffs have not demonstrated that relevant conduct occurred in the U.S. to an extent sufficient to rebut the Alien Tort Statute's presumption against extraterritoriality. They also order that plaintiffs did not provide evidence that IBM purposely facilitated apartheid, failing to satisfy claims of aiding and abetting.
February 4, 2015

CCR joins amicus brief on behalf of human rights and labor organizations

February 4, 2015

CCR joins amicus brief on behalf of human rights and labor organizations

CCR joins an amicus brief filed in the Second Circuit Court of Appeals, arguing that the Supreme Court’s recent decision in Kiobel permits suits against corporations for violations under the Alien Tort Statute and that the claims are governed by federal common law, which allows for corporate liability.

January 28, 2015

Plaintiffs appeal to Second Circuit Court of Appeals

January 28, 2015

Plaintiffs appeal to Second Circuit Court of Appeals

August 28, 2014

Case is dismissed

August 28, 2014

Case is dismissed

December 2013 - February 2014

Briefing on corporate liability under ATS

December 2013 - February 2014

Briefing on corporate liability under ATS

On December 26, 2013, Judge Scheindlin orders briefing on corporate liability under the ATS.  Plaintiffs submit their brief on January 24, 2014; defendants submit their opposition on February 14, 2014; and plaintiffs submit their reply on February 28, 2014.

September 17, 2013

Plaintiffs petition for rehearing en banc

September 17, 2013

Plaintiffs petition for rehearing en banc

Plaintiffs submit a petition for rehearing en banc, which is denied on November 7, 2013.

August 21, 2013

Second Circuit orders case be remanded to district court

August 21, 2013

Second Circuit orders case be remanded to district court

The Second Circuit Court of Appeals vacates the district court’s stay on the case and orders that the case be remanded to the district court with instruction to consider the claims in light of Kiobel.

May 24, 2013

Supplemental briefing post-Kiobel

May 24, 2013

Supplemental briefing post-Kiobel

Plaintiffs file a letter brief regarding the impact of Kiobel on the case.

January 22, 2010

Oral argument

January 22, 2010

Oral argument

The case is argued in the Second Circuit Court of Appeals.

November - December 2009

CCR files second amicus brief

November - December 2009

CCR files second amicus brief

On November 30, 2009, CCR files an amicus brief in the Second Circuit Court of Appeals arguing that the political question doctrine is not applicable, that fundamental principles of international law provide a right to a remedy for grave human rights violations, and that international comity should not prevent the plaintiffs’ claims from being addressed. On December 21, 2009, in response to a December 4, 2009 order requesting supplemental briefing, civil procedure professors file an amicus brief.

October 14, 2009

Case is appealed

October 14, 2009

Case is appealed

Plaintiffs file their appellate brief in the Second Circuit Court of Appeals.

May 12, 2008

Supreme Court denies cert

May 12, 2008

Supreme Court denies cert

The Supreme Court determines it is unable to rule on the case after four justices recuse themselves.