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(Source picture: Sudan Tribune)

(Source picture: Sudan Tribune)

The Presbyterian Church Of Sudan, et al. v. Talisman Energy, Inc. And Republic Of The Sudan

Court Court of Appeals for the Second Circuit, Unites States of America, United States
Case number Docket: 07-0016
Decision title Judgment
Decision date 2 October 2009
Parties
  • The Presbyterian Church Of Sudan (et al.)
  • Talisman Energy, Inc.
  • Republic Of The Sudan
Other names
  • Talisman Case
Categories Crimes against humanity, Genocide, War crimes
Keywords accessorial liability, accountability, aiding and abetting, alien tort statute, complicity, corporate liability, crimes against humanity, genocide, war crimes
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Summary

In 2001 the Presbyterian Church of Sudan filed a lawsuit against the Canadian oil and gas producer, Talisman Energy, under the US Alien Tort Claims Act, which provides US courts with original jurisdiction over certain tort claims filed by aliens. In the suit, it was claimed that Talisman aided the Government of Sudan in the commission of genocide, war crimes and crimes against humanity. According to the claim, Talisman worked alongside the Sudanese Government in the creation of buffer zones around certain oil fields, which effectively assisted human rights violations and the perpetration of international crimes in order to gain access to oil by displacing the population living in the areas around the oil fields and attacking their villages.

The District Court of New York dismissed the claim on 12 September 2006. On 3 October 2009, the decision was affirmed by the US Court of Appeals for the Second Circuit.  The Court of Appeals held that, due to previous case law, it had to look at international law to decide what standard was applicable to establishing aiding and abetting liability for human rights violations. Turning to international law, the Court held that purposefully intending the violations, rather than knowledge of the violations alone, was the applicable standard. So, in order to determine liability under the Alien Tort Claims Act the plaintiffs must show that “Talisman acted with the “purpose” to advance the Government’s human rights abuses.” The Court held that the claimants had failed to establish that Talisman “acted with the purpose to support the Government’s offences”.

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Procedural history

A group of plaintiffs, with the Presbyterian Church of Sudan as the named plaintiff, filed suit against Talisman, Inc. in November 2001 under the US Alien Tort Claims Act, in the U.S. District Court for the Southern District of New York, charging it with complicity in the Sudanese government’s grave violations of human rights. A Second Amended Class Action Complaint was filed on 15 August 2003.

The District Court granted Talisman's motion to dismiss on 12 September 2006 finding that the plaintiffs had failed to supply sufficient admissible evidence to permit the lawsuit to go to trial on the plaintiffs' claims. 

The plaintiffs appealed this dismissal in February 2007 to the US Court of Appeals for the Second Circuit.  

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Related developments

After the Court of Appeals for the Second Circuit dismissed their appeal, plaintiffs petitioned for a writ of certiorari on 15 April 2010, asking the Supreme Court to hear their claims and reverse the Second Circuit’s decision.

On 20 May 2010, EarthRights International filed an amicus brief with the Supreme Court on behalf of the plaintiffs, urging it to hear the appeal and overturn the dismissal of the case.

In October 2010 the Supreme Court declined to grant certiorari, announcing that it would not hear the appeal in this case.

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Legally relevant facts

A civil war between the primarily Muslim government and the primarily non-Muslim population of Southern Sudan began in 1983, causing great civilian deaths and suffering. When Talisman Energy, a Canadian corporation, began investing in Sudan in an oil consortium co-owned by the Sudanese government in 1998, the violence in Sudan was still on-going (pp. 7-11). Talisman acquired 25 percent of the consortium’s operations  (p. 11).

Because the consortiums’ operations took place amidst civil war, security arrangements were made for Consortium personnel in coordination with the Government and military forces. These arrangements coincided with efforts from the Sudanese government to create a ‘cordon sanitaire’ or buffer zone around the oil fields to clear them for oil exploration (pp. 12, 15) In the suit, the plaintiffs allege that this resulted in the persecution of civilians living in or near the oil concession areas (pp. 12-13, 15-16).

The plaintiffs claim that Talisman aided the government’s efforts to create buffer zones and dispose of civilians to clear the way for oil exploration. These efforts included massive civilian displacement, extrajudicial killing of civilians, torture, rape and the burning of villages, churches and crops (pp. 15-17).

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Core legal questions

  • What is the standard for accessorial liability of an individual’s (person or corporation) aid to human rights violations, knowing that assistance will contribute to the abuses, or specific intent or purpose for his assistance to lead to the human rights violations?

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Specific legal rules and provisions

  • Supreme Court of the United States, Sosa v Alvarez-Machain, Case Nos. 03.339 and 03.485, Opinion of the Court, 29 June 2004 (542 U.S. 692 (2004)): Liability under the Alien Tort Statute must be limited to “violations of (…) international law (…) with (…) definite content and acceptance among civilized nations [equivalent to] the historical paradigms familiar when the Alien Tort Statute was enacted”.

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Court's holding and analysis

The Court of Appeals dismissed the appeal and affirmed the dismissal of the District Court. The Court held that the plaintiffs did not establish that Talisman provided substantial assistance to the Government of the Sudan with  the purpose of aiding its unlawful conduct  (p. 2).

The Court of Appeals agreed with Talisman that the Courts must look to international law for the rules on aiding and abetting grave human rights violations. It held that the principles articulated in the “Sosa v Alvarez-Machain case and other precedent sends the courts to look at international law to find the standard for accessorial liability” (p. 41).

The Court of Appeals then considered which standard was applicable to establishing aiding and abetting liability for human rights violations under customary international law. Was this ‘knowingly giving assistance’, as the plaintiffs claimed, or ‘shared purpose’, as the defendants argued?

Looking at international law, it held that purpose, rather than knowledge alone, was the applicable standard. It held that no “consensus exists for imposing liability on individuals who knowingly (but not purposefully) aid and abet a violation of international law” (p. 42). So, in order to determine liability under the Alien Tort Claims Act the plaintiffs must show that “Talisman acted with the “purpose” to advance the Government’s human rights abuses” (p. 46). 

The Court upheld the exclusion of evidence related to the procurement of arms, finding insufficient evidence to prove that Talisman directed its royalty payments to the Government’s procurement of arms, despite a jury finding that Talisman was aware that such payments could be directed to that purpose. 

The Court held that the plaintiffs failed to proffer facts showing that Talisman specifically intended its acts of assistance to contribute to genocide, war crimes, torture, and crimes against humanity, and therefore dismissed the claim. 

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Further analysis

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Instruments cited

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Additional materials

Talisman Energy

General News

Legal Documents (Amicus Briefs)