Monday, May 27, 2019

Second Circuit Reinstates Genocide Suit Against BNP, Recognizes Jus Cogens Norms

On May 22, the Second Circuit Court of Appeals revived a civil lawsuit against BNP Paribas SA, brought by alleged victims of a genocidal regime in Sudan who seek to hold the French bank liable for aiding in the government’s atrocities.  The twenty-one plaintiffs are Sudanese refugees who now reside in the United States.  The plaintiffs’ complaint alleges that BNP processed thousands of illegal transactions through its New York offices, which financed weapons purchases and funded a militia in a “well-documented genocidal campaign.”

The lower court had dismissed the lawsuit in 2018 based on the erroneous conclusion that it was barred by the act of state doctrine, i.e., the doctrine that bars a court from declaring a foreign nation's laws to be ultra vires.  But as the Court of Appeals explained in its 3-0 opinion, "[c]onsidering the lack of evidence introduced by BNPP that genocide is the official policy of Sudan, and the countervailing evidence that genocide blatantly violates Sudan’s own laws, we conclude that there is simply no ‘official act’ that a court would be required to ‘declare invalid’ in order to adjudicate plaintiffs’ claims.” 

In an addition, in a portion of the ruling that holds potential significance for other cases, the Second Circuit held that “even for purposes of act-of-state deference,” the court cannot deem “genocide, mass rape, and ethnic cleansing” as valid state actions because such acts “violate jus cogens norms.”

The full Second Circuit opinion is available here.

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