South African Apartheid Litigation Briefs

The South Africa cases are a series of lawsuits filed under the ATS against corporations allegedly complicit in apartheid in South Africa.

The cases were originally dismissed by a federal judge in New York on the ground that aiding and abetting is never actionable under the ATS. That decision was appealed to the U.S. Court of Appeals for the Second Circuit. ERI submitted an amicus brief on behalf of nine career U.S. diplomats arguing that aiding and abetting liability supports U.S. foreign policy by promoting human rights, ensuring that U.S. corporations do not damage the reputation of the U.S., and guaranteeing that constructive engagement is truly constructive, rather than supporting the very abuses such a policy seeks to end. The brief also noted that the Bush Administration had strongly endorsed aiding and abetting liability in the context of the war on terrorism. (The Bush Administration had argued to various courts that aiding and abetting liability should not be recognized under the ATS because it interferes with US foreign policy.) 

The Second Circuit found that aiding and abetting is actionable under the ATS, but did not set out the standard that applies, and remanded to the district court.  That court denied the defendants’ motion to dismiss, and the defendants appealed to the Second Circuit. ERI again submitted an amicus brief on behalf of  career foreign service diplomats arguing aiding and abetting liability under the ATS supports U.S. foreign policy and that therefore there was no basis to dismiss the case as conflicting with that policy.

Subsequently, the Court of Appeals requested briefing on the question of whether corporations can be sued under the ATS. ERI submitted an amicus curiae brief arguing that corporations are proper defendants under the ATS.