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Suit Alleging Canadian Oil Firm Aided Sudan Genocide Proceeds

Mark Hamblett
New York Law Journal
03-20-2003


A Southern District of New York federal judge has refused to dismiss claims that a Canadian oil company abetted genocide by the government of Sudan against its own people.

Talisman Energy Inc. had asked Judge Allen G. Schwartz to dismiss the case brought by plaintiffs who said the company was complicit in a campaign of kidnapping, rape, murder and land confiscation conducted by the government against non-Muslim residents who lived within a 50-mile radius of oil fields and transport systems.

The company, the largest independent oil producer in Canada, has been operating in the Sudan through a consortium of oil companies for more than four years.

It claimed that jurisdiction for the lawsuit, The Presbyterian Church of Sudan v. Talisman Energy Inc., 01 Civ. 9882, was lacking in the Southern District.

The plaintiffs in the class action, which included a number of churches allegedly destroyed as part of a "war of genocide" that has already killed more than 2 million people in the east African nation, sought recovery under the Alien Tort Claims Act, 28 U.S.C. § 1350.

Although Talisman had claimed that a corporation is "legally incapable of violating the law of nations," Schwartz's 107-page ruling Wednesday said that the company had "failed to cite a single Supreme Court, Second Circuit or even Southern District of New York case" supporting that proposition.

On the contrary, Judge Schwartz said, the 2nd Circuit has explicitly "rejected the notion that the reach of international law was limited to states and those acting under color of state law."

And while the 2nd Circuit has never directly addressed whether corporations can be held liable for international law violations under the Alien Tort Claims Act, Schwartz said, the circuit has, in a number of cases, recognized that corporations "are potentially liable for violations of the law of nations that ordinarily entail individual responsibility," including violations of "jus cogens" norms such as piracy, trade in slaves and genocide.

States may exercise universal jurisdiction over violations of these norms, he said, and "this universal jurisdiction extends not merely to criminal liability but may also extend to civil liability."

Moreover, the judge said, the rulings of other circuits, international tribunal precedent, international treaties, as well as the practices of international corporations, all indicate that companies can be held liable for violations of international law.

AIDING AND ABETTING

The judge rejected arguments by the company that aiding and abetting are not actionable theories of civil liability under the Alien Tort Claims Act, and he upheld several challenges to the sufficiency of the complaint.

"Plaintiffs, while noting that Talisman's primary interest was in oil extraction, not in 'ethnic cleansing,' allege that Talisman willingly worked with Sudan to commit acts of 'ethnic cleansing' as a means of securing the oil supply," he said.

"The fact that the allegedly unlawful acts also generated oil revenue does not mean they were not war crimes."

He then denied dismissal of the case urged by the company on the basis of forum non conveniens, finding that Sudan was not an adequate alternate forum, and that the United States has a real interest in "vindicating international human rights violations."

Finally, the judge dismissed arguments made by the company that certain diplomatic overtures being made to the Sudan by the United States might be harmed if the lawsuit were allowed to proceed.

Carey R. D'Avino of New York and Stephen A. Whinston of Philadelphia represented the plaintiffs. Joseph P. Cyr of Clifford Chance represented Talisman.