Wednesday, July 12, 2017

Global Legal Challenges Center Submits Amicus Brief to SCOTUS

On June 27, 2017, Gerard C. and Bernice Latrobe Smith Professor of International Law Oona Hathaway ’97 submitted an amicus curiae brief on behalf of the Center for Global Legal Challenges in the Supreme Court case of Joseph Jesner, et. al., v. Arab Bank, PLC.

At issue in the Jesner case is whether corporations may be held liable under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. The ATS provides aliens a federal cause of action for torts “committed in violation of the law of nations or a treaty of the United States.” The Supreme Court previously granted certiorari in 2013 in Kiobel v. Royal Dutch Petroleum Co. to determine whether the ATS allows lawsuits against corporations. However, the Court resolved that case based on the statute’s presumption against extraterritoriality, leaving open the question of whether a corporation could be held liable under the ATS.

The respondent in Jesner is charged with providing a range of financial services to terrorists and terrorist front groups posing as charities before and during the Second Intifada, the Palestinian uprising against Israel that began in 2000, according to the case filings. The Bank also maintained accounts for leaders of Hamas, including the head of its Gaza operations, and accepted donations to accounts solicited by groups to fund terrorism. The petitioners are victims of terrorist attacks that took place between 1995 and 2005 in Israel, the West Bank, and Gaza.

In support of petitioners, the Center for Global Legal Challenge’s brief shows that the ATS grants jurisdiction for crimes committed by corporate entities. The brief consists of a norm-by-norm analysis of eight crimes under international law, three of which are at issue in Jesner itself. These crimes include genocide, crimes against humanity, financing terrorism, torture, extrajudicial killing, war crimes, slavery, and piracy. The brief demonstrates that each crime is sufficiently specific, universal, and obligatory to meet the standard enunciated by the Court in the 2004 case of Sosa v. Alvarez-Machain, and that the prohibition applies to corporations.

In preparing the amicus brief, Professor Hathaway was assisted by several Yale Law School students and recent graduates who collaborated in the researching and drafting of the brief. The team included Sarah Weiner ’17, Chris Looney ’19, Joe Schottenfeld ’19, Aisha Saad ’18, Paul Strauch ’18, Beatrice Walton ’18, Carrie O'Connor ‘19, and Hillary Aidun ’17, and Jorge Bonilla '19. This group worked on the brief both at Yale Law School and around the world over the summer break.

The Center for Global Legal Challenges’ brief follows its submission of a similar amicus brief regarding corporate liability in Kiobel.

The Supreme Court is set to hear oral argument in the case later this year.

The Yale Law School Center for Global Legal Challenges is an independent Center that bridges the divide between the legal academy and legal practice on global legal issues.