For several decades, federal laws such as the Alien Tort Statute1 (ATS) and the Torture Victim Protection Act of 19912 (TVPA) enabled foreign nationals to sue in United States federal courts for overseas violations of international human rights law.3 This ability eventually led to a surge in foreign plaintiffs seeking damages from corporations for transnational harms under federal law.4 But recently the Supreme Court narrowed the scope of the ATS and TVPA, prohibiting their use to sue corporations.5 Some scholars have seen these rulings as a death knell for this trend of transnational litigation6 and wondered whether such plaintiffs will turn to state options instead.7 Recently, in Kashef v. BNP Paribas S.A.,8 victims of the Sudanese genocide filed state law claims against a financial institution for assisting the Sudanese government, and the Second Circuit held that the act of state doctrine did not bar these claims.9 Its reading of the act of state doctrine conforms with precedent and principles and preserves the plaintiffs’ day in court. Moreover, by holding that Sudan’s human rights abuses violated jus cogens norms, the court offered an avenue for state law claims to proceed without running afoul of due process and other fairness concerns.
In 1989, Omar al-Bashir became Sudan’s leader following a military coup, displacing the democratically elected government.10 Under his rule, the government of Sudan supported international terrorism and committed numerous human rights abuses against its population.11 These included “mass rape, torture, deliberate infection with HIV, and [forcing people] to watch the murder and rape of their family members.”12 In response, the U.S. government imposed economic sanctions on Sudan in 1997 and again in 2006.13 Meanwhile, beginning in 1997, BNP Paribas S.A. and its worldwide subsidiaries (collectively “BNPP”)14 became the government of Sudan’s principal bank.15 It designed schemes to help Sudanese entities evade U.S. sanctions and access the U.S. financial system.16 BNPP was aware that these entities “play[ed] a pivotal part” in supporting the Sudanese government and that the government “commit[ed] human rights abuses.”17 The Department of Justice and New York state authorities investigated BNPP’s actions and, in 2015, secured guilty pleas from BNPP for committing federal and state felonies.18 Federal authorities mandated BNPP pay nearly nine billion dollars in forfeitures and fines, “the largest financial penalty ever imposed in a criminal case.”19
In 2016, a putative class of victims of the Government of Sudan’s human rights abuses, residing lawfully in the United States (“plaintiffs”), filed suit in the Southern District of New York against BNP Paribas S.A. and several of its branches, subsidiaries, and employees.20 They asserted twenty claims against BNPP under New York state tort law.21 The claims included a mix of primary liability (negligence per se, intentional infliction of emotional distress, and so forth) and secondary liability allegations (conspiracy or aiding and abetting of battery, assault, wrongful death, and so forth).22 In their complaint, plaintiffs also alleged that the Sudanese government “engaged in systematic, widespread human rights abuses . . . in contravention of international law.”23
The district court dismissed all of plaintiffs’ claims.24 Judge Nathan held that, as a threshold matter, the act of state doctrine barred consideration of eighteen of plaintiffs’ twenty claims.25 She defined the doctrine26 and stated that it also bars claims against private entities if an inquiry into “the motives of [a] foreign government” is necessary to determine whether the defendant’s alleged conduct caused the plaintiff’s injury.27 According to the district court, to impose secondary liability on BNPP, the court would have to conclude that the Sudanese government engaged in tortious conduct within its territorial boundaries against its own people, which the court was precluded from doing.28 Judge Nathan rejected an alternative argument for those secondary liability claims, that BNPP “facilitated circumvention of U.S. sanctions.”29 In the court’s view, the executive branch was better suited for such judgments.30 And as for most of the primary liability claims, Judge Nathan held that the act of state doctrine also barred their adjudication since they required suffering a cognizable injury.31 Again, such a finding would have impermissibly required the court to determine that the Sudanese government inflicted those injuries upon the plaintiffs.32 The court dismissed the two remaining claims on the merits.33
Additionally, the district court held that many of plaintiffs’ claims were untimely except as to two plaintiffs who were minors.34 The adult plaintiffs suffered their last injury in 2009 but filed their suit seven years later, in 2016.35 While they claimed they were entitled to a seven-year statute of limitations,36 Judge Nathan disagreed.37 Alternatively, plaintiffs argued their claims were timely because they were entitled to equitable tolling given BNPP’s “elaborate steps” to conceal its conduct.38 While the court agreed, it held that such tolling applied only until June 2014 when BNPP’s fraud became “widely publicized.”39 Judge Nathan reasoned that the publicity should have put the plaintiffs on notice.40 Plaintiffs appealed.
The Second Circuit vacated and remanded.41 Writing for the unanimous panel, Judge Parker42 held that the district court applied the act of state doctrine too “broad[ly]”43 and that its determination of untimeliness was “erroneous.”44 Judge Parker began his analysis by stating that applying the act of state doctrine is “ultimately and always a judicial question.”45 He clarified that the doctrine is neither limitless nor a “categorical rule of abstention” for courts.46 The panel then held that the act of state doctrine did not apply for three reasons.
First, Judge Parker pointed to Supreme Court precedent holding that a case does not implicate the act of state doctrine when the factual question “is not whether the [foreign sovereign’s] alleged acts are valid, but whether they occurred.”47 In W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., International,48 the plaintiff corporation unsuccessfully bid for a Nigerian government contract, which defendants had secured by bribing Nigerian officials.49 Ruling for the plaintiff would have required the Court to find that Nigerian officials had taken illegal bribes, which in turn would have rendered the contract at issue unofficial under Nigerian law.50 Still, writing for a unanimous Court, Justice Scalia held that the plaintiff’s claim did not implicate the act of state doctrine.51 Ruling in the plaintiff’s favor required noting only the existence of the bribes, and the inquiry that such a finding would entail was permissible even if it could “embarrass foreign governments.”52 Similarly, in Kashef, the circuit court reasoned that no one contested whether the Sudanesegovernment’s atrocities were “valid”; the petitioners contended only that they “occurred.”53 As a result, the act of state doctrine did not apply.54
Second, Judge Parker explained that only “official” acts receive “deference” under the act of state doctrine, and to be official an act must be “imbued with some . . . formality.”55 Leading Supreme Court cases have applied the doctrine in response to a government expropriation decree56 and a command by the highest officer of a country’s military.57 The panel cited circuit precedent in which the doctrine did not apply because defendants failed to show that a state “officially approved” their acts of torture.58 Similarly, Judge Parker held that the actions injuring the Kashef plaintiffs could not be worthy of the doctrine’s deference because they were not the Sudanese government’s “officially sanctioned policies.”59 In fact, they violated Sudan’s constitution.60
Third, as an alternative holding, the Second Circuit held that the acts in question — “genocide, mass rape, and ethnic cleansing” — violated jus cogens norms, “peremptory norm[s] of international law . . . accepted and recognized by the international community of states as a whole . . . from which no derogation is permitted.”61 Judge Parker noted that jus cogens norms are the codification of customary international laws that are “binding on all nations” and “enjoy the highest status within international law.”62 The court reasoned that since act-of-state deference is predicated on deeming a foreign sovereign’s actions “valid,”63 and a jus cogens violation can never be valid under international law, the Sudanese government’s actions prompting the plaintiffs’ claims could “never . . . trigger the act of state doctrine.”64
Finally, the panel held the plaintiffs’ claims were timely under a different New York law than the one the district court considered.65 Under the separate state law, plaintiffs have one year from the termination of a criminal action against a defendant to initiate a civil action respecting the same “event or occurrence.”66 Since BNPP’s judgment of conviction for its federal offenses was filed on May 1, 2015, and plaintiffs filed their civil action on April 29, 2016, it was timely.67
There are two main observations worth noting about Kashef. First, the panel’s reading of the act of state doctrine conforms with precedent and principles. The Supreme Court clarified the scope of the doctrine in Kirkpatrick, and the Kashef plaintiffs’ claims lie outside it. This case also does not implicate the doctrine’s separation of powers principles that are meant to prevent judicial overreach. The court was merely following the other branches’ policies and actions with respect to Sudan. Second, Kashef also perpetuated a new trend by allowing those injured in foreign regimes to seek redress through state law given the contraction of federal law options by the Supreme Court. Such civil lawsuits still face their own set of procedural and substantive hurdles for plaintiffs. But by recognizing the severity of Sudan’s abuses in its jus cogens holding, the circuit court tackled some doctrinal and normative concerns about these lawsuits and preserved the plaintiffs’ day in court.
The Kashef panel correctly held that the limitation of the act of state doctrine in Kirkpatrick applied in this case. The district court believed that to adjudicate plaintiffs’ claims, it would need to “pass judgment on the acts of the Government of Sudan” and conclude that those actions amounted to state law violations.68 But this misreads plaintiffs’ claims. The plaintiffs did not contest the validity of the Sudanese government’s acts but sought only to “obtain damages from private parties” who facilitated their occurrence.69 To guide its analysis, the district court relied on Banco Nacional de Cuba v. Sabbatino,70 where the Court laid out three factors to consider before invoking the act of state doctrine.71 However, in Kirkpatrick, the Court clarified its jurisprudence by noting that courts should consider the Sabbatino factors only after the act of state doctrine is “technical[ly] availab[le].”72 The doctrine applies only if both steps sanction its application. Indeed, the Sabbatino factors exist to prevent “unquestioning judicial acceptance” even of official acts by foreign sovereigns; courts should not invoke them to “expand judicial incapacities” where such official acts are not “directly” implicated.73 The Kirkpatrick Court thus warned that subsequent courts should not casually expand the act of state doctrine into new domains, because the judiciary’s duty to decide “cases and controversies properly presented” is more important.74
The principles animating the act of state doctrine further illustrate that Kashef was correctly decided. The act of state doctrine arises out of the separation of powers undergirding the federal government.75 Some scholars have pointed out that courts are ill-equipped to rule on disputes arising outside the United States because they lack the “institutional competence”76 or “constitutional authority”77 to be active in foreign affairs. Moreover, due to judicial principles such as stare decisis and the case or controversy requirement, courts are not nimble enough to respond to changing international concerns.78 Some argue that this separation of powers rationale is intertwined with international comity principles.79 When American courts have adjudicated lawsuits involving acts in the territory of other states, they have faced persistent criticism from abroad.80 These concerns are amplified when the court evaluates the actions of a foreign government.81
In Kashef, these concerns were mitigated because both the legislative and executive branches of the United States government had already recognized Sudan’s actions as violations of international law and implemented sanctions.82 Moreover, the Department of Justice — a subset of the executive branch — had already prosecuted and secured a conviction against BNPP for its conduct in violation of those sanctions; the plaintiffs’ cause of action was born from that prosecution.83 Nine bipartisan House Representatives, including the two Co-Chairs of the House Caucus on Sudan and South Sudan, submitted an amicus brief in Kashef.84 They argued that if the panel applied the act of state doctrine against the plaintiffs, it would actually “contradict” the legislative and executive branches.85 Judge Parker’s opinion correctly did not acknowledge this argument or lean on it.86 But by avoiding an overly expansive reading of the act of state doctrine, Kashef makes room for claims against foreign actors for engaging in deplorable conduct in gross violation of international norms.
Beyond its circumscribed reading of the act of state doctrine, the Second Circuit also added fuel to a recent trend by allowing those injured by foreign regimes to seek redress through state, rather than federal, law. The Kashef plaintiffs are Sudanese refugees living lawfully in the United States.87 They are suing two North American subsidiaries of BNPP as well as the French parent company.88 They are seeking damages for injuries they suffered in Sudan, as Sudanese citizens, due to human rights violations committed by the Sudanese regime.89 The Kashef plaintiffs could not sue BNPP under the TVPA or ATS in light of the Supreme Court’s recent jurisprudence exempting corporations from their ambit.90 In the wake of this contraction of federal law options, some scholars have posited that the “next wave of transnational litigation” involving plaintiffs “alleging human rights violations” will likely turn to “state courts or . . . state law.”91 State law, under this purview, could offer plaintiffs several advantages such as “avoid[ing] application of the federal forum non conveniens doctrine and strict federal pleading standards,”92 and also help them circumvent the Supreme Court’s limits on corporate liability for international law violations.93 Through that lens, it becomes clear why plaintiffs (such as those in Kashef) would turn to state law to get another shot at accessing the other benefits of suing in American courts.94
Such state law civil lawsuits still pose their own set of procedural and substantive hurdles for plaintiffs. Indeed, some argue that such claims “will rarely be successful.”95 Choice-of-law considerations may prohibit the U.S. state from applying its law to the dispute.96 In fact, applying a state’s law to foreign defendants could raise concerns under the Due Process Clause, because those defendants would lack fair notice that the state’s law could regulate their conduct.97 Concerns about preemption by federal foreign affairs98 and forum non conveniens considerations99 also keep open the possibility that alien plaintiffs in state courts will face an uphill battle, as they did in federal law contexts.100 At this stage, the Kashef plaintiffs have only survived dismissal on a threshold defense; several stages remain before they can obtain a favorable judgment, and experience suggests they may not get one.
But the Second Circuit may have eased the plaintiffs’ path. By recognizing the severity of Sudan’s abuses in its jus cogens holding, the court’s analysis offers an avenue for the claims to proceed without running afoul of due process concerns. Judge Parker held that jus cogens norms “enjoy the highest status within international law” and “no derogation is permitted” from them.101 Once the act of state doctrine did not protect it, BNPP might have argued it lacked fair notice that its conduct in Sudan could constitute a tort under New York state law or be governed by it. But BNPP cannot make such an argument if it is sued for facilitating acts that violate “universal norms of international law applicable everywhere,” and constitute conduct “viewed with universal abhorrence.”102 The jus cogens holding also addresses one normative concern about such lawsuits: that claims pigeonholed into common law tort actions do not adequately address “the gravity and the seriousness” of human rights violations and may instead “belittl[e] the importance” of the allegations.103 The Kashef plaintiffs claimed they were victims of assault and had suffered emotional distress, but the torture they underwent seems beyond battery.104 By tying the plaintiffs’ tort claims to the explicit violations of the law of nations, the panel corrected this tonal mismatch.
Finally, the jus cogens holding provides the Kashef plaintiffs with symbolic and strategic advantages going forward. One key motivation for suing foreign corporations under the ATS was to “transform a tort case into a human-rights case.”105 Symbolically, the judicial recognition of human rights violations has been a “major goal” of international human rights lawsuits and part of their expressive function.106 Strategically, judicial recognition ups the ante on the corporation being sued. Labeling it a “human-rights abuser or violator of international law” worsens its public-relations issues and increases plaintiffs’ chance of a monetary settlement.107 In the absence of a viable ATS option, these may be the only victories available to human rights abuse victims who sue foreign corporations under state law.
The Second Circuit in Kashef issued a favorable ruling for the plaintiffs, and preserved their day in court. But the plaintiffs still have to overcome several hurdles, both substantive and procedural, to reach trial. Their state law claims may well go the same way several federal law claims in the same domain would: the way of the corporate defendants.108 Nevertheless, Kashef’s careful reading of the act of state doctrine and generous view of state law claims offer the plaintiffs both symbolic vindication and a strategic advantage moving forward.