Upcoming cases: Accountability and the law of nations

On February 28, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co. and a companion case, Mohamad v. Palestinian Authority.

In Kiobel, the Court will consider whether corporations may be held liable for torts that violate the law of nations, such as torture, murder, and genocide, under the Alien Tort Statute (ATS). In Mohamad, the Court will consider the parallel liability of organizations under the 1991 Torture Victim Protection Act (“TVPA”). The ATS, which was enacted by the first Congress in 1789, establishes jurisdiction for torts “committed in violation of the law of nations or a treaty of the United States.”

Considering the limited grant of jurisdiction under the ATS, the Second Circuit majority dismissed the Kiobel plaintiffs’ claims by finding that corporations are not liable under the ATS. The court concluded that, while states and individual men and women have been held liable for human rights violations under customary international law, juridical “persons” such as corporations have not.

The majority acknowledged that corporations are generally deemed “persons,” with corresponding rights and liabilities, under U.S. domestic law. However, it insisted that liability under domestic law – including under the laws of “most or even all ‘civilized nations’” – does not create a norm of customary international law.

The Second Circuit’s holding created a split among the circuits, as the Eleventh Circuit has held that corporations can be held liable under ATS just like any private party.

The issue of corporate liability under the ATS is also pending in the D.C., Seventh, and Ninth Circuits. In Mohamad, the D.C. Circuit affirmed the district court’s dismissal of plaintiffs’ claims on the grounds that the TVPA – which establishes the civil liability of “individuals” – applies only to natural persons, not to organizations.

If the Supreme Court affirms the lower courts’ decisions in favor of the defendants in each of these cases, it will allow corporations and other organizations to act with impunity to perpetrate crimes against humanity.