20 Sep Federal Court Rules on Talisman Energy
A federal court last week rendered an important Alien Tort Statute decision in the case of Presbyterian Church of Sudan v. Talisman Energy, Inc. The decision is available here. The Southern District of New York granted Talisman’s motion for summary judgment. I found the opinion thoughtful, detailed, and well-reasoned.
The core allegation was that Talisman conspired with the government of Sudan to commit numerous violations of international law, including genocide, torture, war crimes, and crimes against humanity. The court noted that the plaintiffs had difficult evidentiary burdens to overcome. Talisman did not have any operational presence in Sudan, neither the Sudanese government nor the consortium entities cooperated with the plaintiffs, and gathering admissible evidence required to support plaintiffs’ case in a desperately poor, distant country engulfed in civil war were significant.
The court relied on Hamdan (along with decisions of international criminal tribunals and recent scholarship by Allison Danner and Jenny Martinez) to conclude that liability under the ATS for participation in a conspiracy may only attach where the goal of the conspiracy was either to commit genocide or aggressive war. The allegations were that Talisman joined a conspiracy to commit a crime against humanity through a widespread and systematic attack on a civilian population to forcibly displace it. But the court concluded that this did not consistute an allegation of conspiracy to commit genocide. Accordingly, defendants’ motion for summary judgment on the conspiracy was granted. (It is interesting to note that the conspiracy section in Hamdan is proving to be quite useful to corporate defendants in ATS litigation).
Regarding the claim that Talisman aided and abetted the government of Sudan to commit genocide, torture, war crimes, and crimes against humanity, the court articulated the elements of aiding and abetting under international law consistent with the actus reas and mens rea standards applied by the international criminal tribunals. The court also noted that the international law of aiding and abetting closely parallels federal criminal law. The court reasoned that
“[a]iding and abetting liability is a specifically defined norm of international character that is properly applied as the law of nations for purpose of the ATS. To show that a defendant aided and abetted a violation of international law, an ATS plaintiff must show: (1) that the principal violated international law; (2) that the defendant knew of the specific violation; (3) that the defendant acted with the intent to assist that violation, that is, the defendant specifically directed his acts to assist in the specific violation; (4) that the defendant’s acts had a substantial effect upon the success of the criminal venture; and (5) that the defendant was aware that the acts assisted the specific violation.”
Applying that standard, the court found insufficient evidence to raise a material question of fact that Talisman can be found liable for aiding and abetting the government of Sudan in the commission of the alleged crimes.
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