Wednesday, November 7, 2007
In his latest FindLaw column, Tony Sebok continues his two-part series on the recent Second Circuit opinions on the Alien Tort Claims Act. The lawsuits allege that the defendant-banks and corproations "aided and abetted" the apartheid system in South Africa by providing loans and goods. The Second Circuit held that "aiding and abetting" was an actionable cause of action under the ATCA, but the two judges in the majority disagreed over the standard for "aiding and abetting."
Judge Hall cited American tort law, namely the Restatement (Second) of Torts §876(b), which provides that one is liable for aiding and abetting the tortious conduct of another "if he . . . knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other." This test simply requires that the plaintiffs prove that the multinationals were substantially certain that one consequence of their business activities was to support the human rights violations caused by the apartheid government.
In contrast, Judge Katzmann looked to international law, relying on the test based in international human rights law that is set out in the Rome Statute of the International Criminal Court: One is guilty of aiding and abetting a crime if one renders aid to someone who commits a crime, and does so "[f]or the purpose of facilitating the commission of such a crime."
Sebok analyzes which test the district court should adopt, and ultimately leaves the question unanswered, stating "I think that the right answer depends on an interpretation of the purpose of the statute, not an empirical inquiry into what human rights tribunals think aiding and abetting means."