District Court Requires U.S. Actions to Themselves Violate International Norms for ATS Claim to Exist

The World in U.S. Courts: Fall 2014 - Alien Tort Statute (ATS)/Torture Victims Protection Act (TVPA)/Victims of Trafficking and Violence Protection Act (VTVPA)/Foreign Sovereign Immunity Act (FSIA)

In re South African Apartheid Litigation, U.S. District Court for the Southern District of New York, August 28, 2014

Plaintiffs are black Africans alleged to have suffered discrimination and acts of violence at the hands of the former South African apartheid political regime.  In this long-running litigation, the only remaining defendants are Ford Motor Company and IBM, which are accused of aiding and abetting violations of the ATS by the manufacture of military vehicles and computers by their subsidiaries for South African security forces.  Tracing the complicated history of the case and the evolving law under the ATS, the U.S. District Court in New York concluded that, to proceed, the plaintiffs would have to plead "conduct within the United States" that would itself "give rise to a violation of customary international law."  The Court held that had not been pled, as all of the relevant conduct occurred abroad.  The fact that U.S. corporations might have had the power to control their South African subsidiaries, which were alleged to have participated in the apartheid regime, was found insufficient conduct to violate the ATS.  And the theory of aiding and abetting failed because the alleged actions of Ford's and IBM's subsidiaries in South Africa did not implicate the ATS because of their geographic focus.

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