May 04, 2010
Harvard Law School’s International Human Rights Clinic submitted an amicus brief (PDF) to the Supreme Court in support of a petition for certiorari in a major corporate Alien Tort Statute case, Presbyterian Church of Sudan v. Talisman Energy, Inc. The Clinic served as counsel on behalf of international law scholars and jurists to argue that those who knowingly aid and abet egregious human rights violations can be held liable under customary international law.
Presbyterian Church of Sudan v. Talisman Energy, Inc. brings claims on behalf of plaintiffs attacked by the Sudanese military because they lived in areas identified for oil exploration. Through a series of air and ground attacks, Talisman and the Government of Sudan forcibly displaced the non-Muslim civilian population to create a buffer zone for oil development. Talisman supported the security strategy by hiring and deploying military advisors to work with the Sudanese military, providing financial support to government-aligned militia, and constructing and maintaining airfields where the Sudanese military based bombers and helicopter gunships.
The brief argues that the Supreme Court should grant the petition for certiorari to preserve decades of established jurisprudence. “At Nuremberg, the world decided that it could not condone the actions of those who knowingly sold poison gas to the Nazis,” said Karl Procaccini ’10, one of the students who worked on the brief. “It was rewarding to work on a brief seeking to preserve Nuremberg’s legacy.”
The Second Circuit previously ruled that purpose—rather than knowledge—was required to establish liability, a position that the amicus brief asserts would overturn 60 years of established international jurisprudence dating to the Nuremberg era. The modern international criminal tribunals, including those for the former Yugoslavia and Rwanda, have consistently affirmed the Nuremberg standard—that aiding and abetting liability under customary international law requires only that an accused knowingly provide substantial assistance to the principal.
“Requiring that an aider and abettor act with more than knowledge, as the Second Circuit did, would call into question the convictions of war criminals and génocidaires sentenced by the modern international tribunals,” said Esti Tambay ’10. “As a law student, the opportunity to assist in drafting a brief to the Supreme Court that seeks to ensure that the standard for civil liability is not out-of-step with international criminal jurisprudence was a valuable experience.”
Ben Hoffman ’11 explained: “In researching and drafting the brief, we were constantly aware of the stakes of this case. The Second Circuit’s rule poses a major threat both to efforts at holding corporations accountable for complicity in violations of human rights and to efforts at deterring such corporate behavior in the first place.”
The 16 amici petitioners include Philip Alston, the UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions; M. Cherif Bassiouni, the vice chairman of the UN General Assembly’s Ad Hoc and Preparatory Committees on the Establishment of the International Criminal Court and the Chairman of the Drafting Committee; John Dugard, a former Ad Hoc Judge on the International Court of Justice; and Richard Goldstone, the first Chief Prosecutor of the UN International Criminal Tribunals for the Former Yugoslavia and Rwanda.
In addition, to students Procaccini, Tambay, and Hoffman, Taylor Landis ’11, and Chelsea Sharon ’11 also worked on the Supreme Court brief. Susan Farbstein ’04, a lecturer on law and clinical fellow, served as counsel of record and supervised the writing of the brief along with Tyler Giannini, clinical director of the International Human Rights Clinic.
Farbstein commended the students’ work. “Their legal analysis and writing were absolutely first-rate,” she said. “This team was dedicated and enthusiastic, and they produced an excellent brief.”