Court/Judicial body: United States Court of Appeals for the Second Circuit
Citation: Case No. 10 – 56739
Date: 2 October 2009
Instrument(s) cited: The Alien Tort Statute 28 U.S.C. § 1350 Statute of the International Court of Justice Rome Statute of the International Criminal Court
Background: The Presbytarian Church of Sudan and other Sudanese individuals complained under the Alien Tort Statute against Talisman Energy Inc, a Canadian corporation, claiming that the company had aided and abetted or conspired with the Government to violate international law related to genocide, torture, war crimes and crimes against humanity. In 1998, Talisman acquired a company called Akaris Energy and its 25 percent stake in an oil consortium co-owned by the Sudanese Government. Due to the continued unrest of the second Sudanese civil war, security arrangements were made for consortium personnel in coordination with the Government and military forces. The complainants argued in particular that the creation of ‘buffer zones’ around certain oil fields to clear the way for oil exploration had resulted in mass civilian displacement, the killing, torture and rape of civilians, and the burning of villages – abuses which violate international law and amount to genocide, war crimes and crimes against humanity.
Issue and resolution: Liability as an accessory to state perpetrated human rights violations and crimes against humanity. The Court held that to determine accessorial liability under the ATS the complainants must show that the defendant had ‘purposefully’ aided and abetted a violation of international law. The Court found that there was insufficient evidence that Talisman had acted with the ‘purpose’ of advancing the human rights abuses committed by the Government.
Court reasoning: The Court applied international law to conclude that the complainants would need to show evidence that the defendant provided ‘substantial assistance with the purpose of facilitating the alleged offences’. The Court considered the District Court’s observations in order to establish whether this evidence had been presented by the complainants : “None of the acts was inherently criminal or wrongful…. [T]he plaintiffs’ theories of substantial assistance serve essentially as proxies for their contention that Talisman should not have made any investment in the Sudan, knowing as it did that the Government was engaged in the forced eviction of non-Muslim Africans from lands that held promise for the discovery of oil”. The Court held that while the complainants had provided evidence that the Government had violated international law, they had not presented sufficient evidence to demonstrate that Talisman had acted with the purpose of harming civilians living in southern Sudan. The Court noted the risk of abuse of the ATS if liability could be established by mere knowledge of abuses coupled with commercial activities such as resource development. Impact: While reports did not find that Talisman had actively aided and abetted in human rights violation, public opinion suggests that not enough was done by Talisman to stop human rights abuses by other groups. In response to the case, Talisman commissioned and implemented a report on its commitment to Corporate Responsibility in Sudan. This is available at http://www.talisman-energy.com/upload/report_link/6/02/csr2000_report.pdf.
Link to full judgement: http://scholar.google.com/scholar_case?case=3394618514058057746&hl=en&as_sdt=2&as_vis=1&oi=scholarr