French Bank Must Face Claims Over Sudanese Genocide

MANHATTAN (CN) – The Second Circuit revived a class action Wednesday against French bank BNP Paribas brought by refugees of Sudan’s ethnic-cleansing campaign who sought to hold the bank liable for claims that it helped a genocidal militia regime carry out the atrocities.

The unanimous decision by a three-judge panel in Manhattan came nearly five years after BNP paid a record fine of nearly $9 billion and pleaded guilty to committing “large-scale, systematic violations” of American sanctions against Sudan, Cuba and Iran.

Entesar Osman Kashef and more than a dozen other refugees filed a federal class action against BNP in May 2016, accusing the bank of circumventing U.S. sanctions and providing Sudan with financial resources knowing that it was committing atrocities. They also claimed BNP knew Sudan’s likely purpose in using the U.S. financial markets for illegal oil sales was to acquire billions in U.S. dollars to purchase the weapons and materials used by militia forces.

Kashef alleged BNP helped finance the Janjaweed militia that killed her entire family, burned her house,and stole all her property. Once she fled to Sudan’s capital of Khartoum, Kashef says, the militia arrested her without charge, beat her, and sexually assaulted her for three months. 

The refugees, who now live in the United States, sought to represent a class of hundreds persecuted by Sudanese human-rights violators who used BNP’s financial services.

Last year, U.S. District Judge Alison Nathan dismissed the refugees’ second amended complaint on the ground that their allegations would require the court to sit in judgment of a foreign government’s actions, a violation of the act-of-state doctrine. 

“In order for the court to impose liability on the defendants for conspiring with or aiding and abetting the government of Sudan in circumventing U.S. sanctions and carrying out the torts alleged, the court must necessarily conclude that the government of Sudan’s actions amounted to tortious conduct including battery, assault, false arrest and imprisonment, wrongful taking, and wrongful death,” Nathan wrote in a 20-page opinion.

Although the refugees argued that the act-of-state doctrine is not applicable to genocide and human-rights abuses, Nathan noted their lawsuit does not bring claims under international law, only common law claims under New York statutes.

“As a result, the plaintiffs do not ask the court to determine whether the government of Sudan violated international law; they only ask the court to find that the government of Sudan’s actions amounted to battery, assault, wrongful takings, and other common law claims,” the judge continued. “This is what the act of state doctrine prohibits the court from doing.” 

But the Manhattan-based Second Circuit vacated Judge Nathan’s order on Wednesday. The 23-page opinion states that she had misapplied the act-of-state doctrine, which prohibits U.S. courts from invalidating the official act of a sovereign foreign government.

“The Supreme Court has made clear that the act of state doctrine has important boundaries. It is not a categorical rule of abstention that prohibits courts from deciding cases or controversies whenever issues of foreign relations arise.” U.S. Circuit Judge Barrington Parker wrote for the three-judge panel. “The doctrine should not, the Supreme Court instructs, be casually expanded ‘into new and uncharted fields.’”

Remanding the case for further proceedings, Parker noted the refugees will “need to establish primary torts committed by the Sudanese regime” to prevail on their secondary liability claims.

The judge said evidence of those claims “will be based on the widespread and widely known genocide perpetrated in Sudan.”

“The act of state doctrine cannot shield this genocide from scrutiny by the courts of the United States because…both Sudan’s own laws and a universal international consensus prohibit us from deeming genocide an ‘official act’ of Sudan, or for that matter, of any state, that could supply or support a rule of decision for our courts,” Parker wrote.

Parker was joined on the panel by U.S. Circuit Judges Denny Chin and Senior U.S. Circuit Judge Robert Sack.

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