## Facts

- South African victims and representatives sued numerous multinational corporations for harms tied to apartheid-era abuses, including killings, torture, and arbitrary detention.
- Plaintiffs alleged the corporations knowingly provided financing, banking services, vehicles, technology, and equipment that substantially assisted the apartheid government and its security forces.
- Plaintiffs generally did not claim corporate officers personally committed the abuses; they pursued secondary liability based on aiding and abetting violations of customary international law.
- Claims were brought under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, after *Sosa* limited ATS causes of action to clearly defined international norms.
- The district court dismissed the ATS claims, reasoning aiding-and-abetting theories were not cognizable (or not clearly established) under the ATS and that foreign-policy and separation-of-powers concerns warranted dismissal.
- Plaintiffs appealed; the Second Circuit issued a per curiam disposition with separate opinions concurring in the judgment but disagreeing on rationale.

## Issues

1. Whether the ATS permits civil claims against private corporate defendants based on aiding-and-abetting liability for violations of international law.
2. Whether the existence and elements of aiding-and-abetting liability under the ATS are governed by customary international law, federal common law, or both.
3. Whether prudential doctrines and foreign-relations concerns required dismissal of apartheid-related ATS claims at the pleading stage.

## Decision

- The Second Circuit held that the ATS permits claims based on aiding-and-abetting liability in appropriate circumstances.
- The court vacated in part the dismissals and remanded for further proceedings on most ATS aiding-and-abetting claims.
- The court affirmed dismissal as to certain claims or defendants on grounds including pleading deficiencies and prudential limits.
- The panel did not produce a majority rationale: one concurrence grounded aiding-and-abetting standards in customary international law; another grounded them in federal common law; a concurrence/dissent urged broader dismissal based on comity and foreign-policy concerns.

## Legal Principles

- ATS litigation may proceed only for violations of international norms that are specific, universal, and obligatory; plaintiffs must plead such norms with adequate specificity.
- Aiding-and-abetting liability is available in principle under the ATS, at least for well-recognized international law violations.
- Under an international-law approach, aiding and abetting requires: (1) knowledge that one’s conduct will assist the principal violation and (2) practical assistance, encouragement, or moral support that has a substantial effect on commission of the violation.
- Under a federal-common-law approach, courts may apply domestic secondary-liability principles (including “knowing and substantial assistance”) once a valid underlying international norm is identified.
- Corporate defendants are not categorically exempt from ATS aiding-and-abetting claims solely because they are corporations, though case-specific pleading and prudential limits may bar particular claims.
- Foreign-policy, comity, and separation-of-powers concerns may constrain ATS adjudication, but they do not automatically require threshold dismissal of all such claims.

## Conclusion

The Second Circuit reinstated significant portions of apartheid-related ATS suits by recognizing that aiding-and-abetting claims may be brought under the ATS, while leaving unsettled—because of fractured opinions—whether the operative aiding-and-abetting standard derives primarily from customary international law or federal common law and affirming dismissal of some claims on pleading and prudential grounds.


Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007)