Last week, District Court Judge Shira Scheindlin in the Southern District of New York dismissed a twelve year old legal case brought by black South Africans against U.S. companies IBM and Ford. The plaintiffs are using the Alien Tort Statute (ATS) to hold U.S. corporations Ford and IBM accountable for complicity in Apartheid crimes. But there was every indication that she did so reluctantly, and with regret.
As a law student, I had the chance to work on this case before Judge Scheindlin. I was able to travel to South Africa to speak to dozens of brave individuals who described what it was like for them and their families to be deprived of their South African citizenship and forcibly moved from their homes to be placed in Apartheid regime constructed “homelands”. They explained to me how trucks would arrive one day and tell them and their family that they needed to leave; how they didn’t know where many of their family members were moved; how their South African ID cards were taken from them and they were forced to carry something called the “Book of Life” which relegated them to a “homeland” constructed by the Apartheid regime. The plaintiffs argue that the Book of Life – and its systematization – was more than an ID card, it was the product of a complex system developed jointly by the Apartheid regime and the American company, IBM and its subsidiaries, to operationalize the Apartheid project of forced denationalization. The Apartheid plaintiffs alleged that IBM provided this substantial assistance to the Apartheid regime from the United States. It was for this reason that the Apartheid plaintiffs came to the United States to seek justice; to send the message that U.S. companies who aid and abet violations of international law will be held accountable in their home courts.
In law school we are taught that the law is supposed to be predictable and coherent. We hear phrases like “the settled expectations of the parties” and they are supposed to mean something. To me, as a law student working on human rights cases, I came to believe that “settled expectations” meant that plaintiffs like those in the Apartheid case were supposed know which courts would be open to them, and that they could and should rely on that expectation. There was every reason to believe that the Apartheid plaintiffs should be provided a remedy for the heinous abuses they suffered at the hands of U.S. companies working with the Apartheid regime.
I do believe that Judge Scheindlin was of a similar mind. Last week, she dismissed the Apartheid case, not because her personal view of the law compelled it, but because she had no other choice. In the years since the Apartheid plaintiffs first filed their case, the federal courts have contorted the content and meaning of the Alien Tort Statute beyond recognition. Understanding how we got there, and where we might go next, will involve a bit of history.
The Apartheid case was originally filed over a decade ago – when there was little reason to doubt that a case like this could proceed in U.S. courts. But then, in 2013, the Supreme Court ruled in Kiobel v. Royal Dutch Petroleum Co. (Kiobel II) that the presumption against “extraterritoriality” applies to claims brought under the ATS and that the presumption is displaced when the claims “touch and concern” the United States with “sufficient force” – whatever that means.
In the aftermath of the Supreme Court’s ruling in Kiobel II, it has been something of a brave new world for survivors of human rights violations, lawyers, and judges as they try to make sense of the meaning of the decision. But there was one judge who lost no time in making his opinion known: Only months after the Supreme Court’s ruling in Kiobel II, Judge José Cabranes took action , by issuing a ruling in the Apartheid (Balintulo) litigation. We have written about Cabranes and his disdain for corporate accountability here and here. Writing for a panel of the Second Circuit, Judge Cabranes interpreted the Supreme Court’s ruling in Kiobel II to mean that ATS cases cannot proceed (at all) unless there is some wrongful conduct in the United States. This would overturn decades of ATS precedent, including the seminal decision of Filártiga v. Peña-Irala. Although for technical reasons Judge Cabranes himself did not dismiss the case, in sending it back to the district court, he made it clear he thought the court should categorically dismiss the Apartheid plaintiffs’ claims in light of Kiobel II because they arose abroad. The question then became whether Judge Scheindlin would follow his lead.
Judge Scheindlin is no stranger to hard cases, and no shrinking violet when it comes to standing up for human rights. She has also sparred with Judge Cabranes in the past, not only through various rounds of the Apartheid litigation, but also over her seminal ruling in the Stop and Frisk case. The Apartheid plaintiffs geared up for a battle before Judge Scheindlin, arguing that Judge Cabranes’s statement interpreting Kiobel II in Balintulo was “dicta” (i.e., non-binding legalese) because he stated his opinion on the matter while simultaneously denying appellate mandamus jurisdiction over the case (an explainer on this is here). Shortly thereafter, Scheindlin answered, stating that the game was not over yet. She ruled that Kiobel II had not closed the door to ATS cases against corporations in the Second Circuit. She also gave the Apartheid plaintiffs the chance to move to allege additional facts to show how the claims touched and concerned the United States with sufficient force to meet the Kiobel II test. She seemed set on standing up to Judge Cabranes on Kiobel. The Apartheid plaintiffs – hopeful that they had a judge who would give them their day in court – worked tirelessly to move to amend their complaint to show that the complicity of U.S. companies like Ford and IBM in Apartheid crimes was an issue that touched and concerned the United States with sufficient force.
In her decision last Thursday, Judge Scheindlin wrote “[t]hat these plaintiffs are left without relief in an American court is regrettable. But I am bound to follow Kiobel II and Balintulo, no matter what my personal view of the law may be.” Judge Scheindlin reasoned that the law of the Circuit (which was determined by Judge Cabranes’s interpretation of Kiobel II in Balintulo) had set the bar “too high to overcome.” It is clear that Scheindlin believes Judge Cabranes is wrong on the law, but she is bound by Second Circuit precedent. In making her feelings known, and in showcasing how unjust and unfair the results can be, Judge Scheindlin has teed the question up for the other judges on the Second Circuit who will might be asked to decide whether or not they will agree with Cabranes’s flawed interpretation, and whether they believe that he had the power to opine on the matter in Balintulo. Whatever does happen next, one thing is clear: the Apartheid plaintiffs have waited too long for justice.
Photo by: UN