Government sides with oil companies accused of human rights atrocities

In a pending Supreme Court case involving human rights abuses allegedly committed overseas by British and Dutch oil companies, the Obama administration came out last week on the side of corporate interests.

This past Wednesday, the Department of Justice filed a friend-of-the-court brief in Kiobel v. Royal Dutch Petroleum, arguing that U.S. courts:

should not create a cause of action that challenges the actions of a foreign sovereign in its own territory, where the [defendant] is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign’s conduct.

The Supreme Court heard oral arguments in the case this past February, but just a week later, ordered re-briefing and re-argument on a new, broader question: “Whether and under what circumstances the Alien Tort Statute allows Courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

In Kiobel, a group of Nigerian plaintiffs, many of whom have received refugee status in the United States, sued the oil companies for enlisting members of the Nigerian military to torture and kill environmental activists in the Ogoni Region of Nigeria. The plaintiffs sued under the Alien Tort Statute, an 18th century law allowing suits to be brought for egregious international law violations in U.S. federal courts.

Initially, the United States filed a friend-of-the-court brief in support of the human rights victims. Even though the specific question before the court has changed, it is difficult to resolve how in a few short months, the government has demonstrably altered its position 180 degrees.

Marco Simons of EarthRights International exposed the absurdity of the government’s position. On the one hand, the government concedes that suits against foreign actors concerning foreign activity can be brought in U.S. courts for several reasons that benefit a corporation’s bottom line. However, the government is opposed to U.S. courts hearing suits alleging the most heinous of crimes: crimes against humanity, torture, and extrajudicial killing.

For human rights victims who will never receive justice through their domestic courts, the ATS could stand as a symbol of the American judicial system’s concern for universal fairness and justice. But if the Court sides with the oil companies, the federal courthouse doors will be shut to victims of human rights atrocities committed abroad. It is disappointing that the government has decided to support this potential restriction of individual victims’ access to justice.

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Supreme Court Calls for Reargument in Human Rights Case

In an unexpected move on Monday, the Supreme Court ordered expanded arguments in the case of Kiobel v. Royal Dutch Petroleum, on appeal from the Second Circuit. The Supreme Court heard arguments in the case just last Tuesday, but less than a week later, it ordered the parties to submit new briefs on the question of extraterritoriality—that is, whether the Alien Tort Statute (“ATS”) covers violations of international law committed overseas.

In this case, multinational oil companies are alleged to have aided and abetted human rights atrocities committed against environmental activists by the Nigerian military, for which victims and victims’ surviving family members now seek compensation. The narrow question Kiobel originally presented to the Supreme Court was whether corporations can be held liable under the ATS, a statute that gives U.S.  federal courts jurisdiction over civil actions by aliens for torts committed in violation of international law. 

However, during last week’s oral argument, some of the justices raised questions about whether the ATS allows U.S. courts to hear lawsuits for violations of international law that occur on foreign soil. Justice Alito pointedly asked plaintiffs’ counsel Paul Hoffman, "What business does a case like this" -- a suit by foreign nationals against a foreign-based corporation for its alleged complicity in state-sponsored torture and murder in Nigeria -- "have in the courts of the United States?"

The new order to reargue broadens the question of the case to "whether and under what circumstances the Alien Tort Statute allows courts to recognize a cause of action for violations of the law occurring within the territory of a sovereign other than the United States." Ironically, when the Second Circuit held that corporations were not liable under the ATS, it was reaching out to consider a question that had not been raised in the district court. The Supreme Court is now reaching out to expand the question presented even further in a manner that suggests the possible evisceration of the ATS as a means for victims of human rights abuses to seek recompense.

Jurisdiction for American courts to hear cases between foreigners based on foreign conduct is well established in legal history. The Alien Tort Statute was originally enacted as part of the 1789 Judiciary Act, and the tradition of transnational cases goes back before the Revolutionary War. If the Court ultimately decides that the ATS does not confer jurisdiction for acts that occur abroad, it will be overturning a precedent as old as our country.  If the Court “merely” decides that corporations are not liable parties under the ATS, it will be allowing corporations to pursue profit no matter the human cost. There was another recent case in which the Court ordered reargument on an expanded question concerning long-standing precedent and corporate personhood.  It was called Citizens United v. FEC.

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Experts discuss Kiobel v. Royal Dutch Petroleum

The New York Times this week featured a "Room for Debate" column on the case of Kiobel v. Royal Dutch Petroleum, which was argued before the Supreme Court on Tuesday. Participants in the debate included Tyler Giannini and Susan Farbstein of Harvard Law School's International Human Rights Clinic, who submitted an amicus brief in the case.

To learn more about the Kiobel, check out Gianni and Farbstein's recent analysis for AFJ's Justice Watch blog, or download our comprehensive report on the case.

At stake in Kiobel is whether corporations can be held liable for participating in the commission of human rights violations under the Alien Tort Statute. In this case, multinational oil companies are alleged to have aided and abetted human rights atrocities committed against environmental activists by the Nigerian military.

As Giannini and Farbstein wrote in the New York Times: "In the defendant’s view, even a corporation that decided to establish a torture center to assist a dictatorship, or began trading slaves for profit, could not be held liable."

Click here to read the rest of the New York Times discussion.

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Court Set to Hear Human Rights and Corporate Accountability Case

On Tuesday, February 28, the Supreme Court will hear arguments in the case of Kiobel v. Royal Dutch Petroleum. At stake is whether corporations can be held liable for participating in the commission of human rights violations under the Alien Tort Statute (“ATS”).

In this case, multinational oil companies are alleged to have aided and abetted human rights atrocities committed against environmental activists by the Nigerian military, for which victims and victims’ surviving family members now seek compensation.

Today Alliance for Justice is releasing an in-depth report on Kiobel. As the report highlights:

The Supreme Court is poised to make a statement on the civil liability of corporations that participate in the commission of atrocities in the pursuit of profit. After its shocking holding in Citizens United that corporations enjoy the same rights as people to spend unlimited money to influence elections, already resulting in a perversion of American democracy, it would be the utmost hypocrisy if the Court now rules that corporations enjoy special privileges when they engage in activities that the international community has condemned as crimes against humanity. If corporations are to have equal rights, at the very least, they must also have equal responsibilities.

The new report on Kiobel v. Royal Dutch Petroleum is available online. Click here to download the .pdf.

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No Corporate Exemption: Supreme Court to Hear Major Corporate Human Rights Case

Guest post by Tyler Giannini & Susan Farbstein

Next Tuesday, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co.  Kiobel is the most important human rights case the Court will consider this term, raising fundamental questions about corporate accountability.  The Plaintiffs allege that Royal Dutch/Shell was complicit in the Nigerian government’s torture and killing of their relatives in the 1990s.  The Supreme Court is reviewing a lower court decision that created a corporate exemption from liability under the Alien Tort Statute (“ATS”), concluding that corporations cannot be sued even when they facilitate genocide, crimes against humanity, or war crimes.

The ATS, a 1789 law passed by the First Congress, permits non-U.S. citizens to hold perpetrators accountable in U.S. courts for violations of international law.  In the fall of 2010, however, the Second Circuit Court of Appeals in New York created the corporate exemption now under review.  Since the Second Circuit’s decision, every other appellate court to consider the issue has rejected Kiobel’s approach.  Recognizing the importance of this question and the split among the lower courts, the Supreme Court agreed to hear the case.

Yesterday, the Plaintiffs filed their final brief before the oral argument.  They noted the profound ramifications of the lower court’s holding:

The implications of the decision below are shocking.  When I.G. Farben exploited slave labor at Auschwitz and supplied the Zyklon B poison to facilitate mass murder in its death chambers, that corporation violated international law.  [Defendants’] construction of the ATS means that even a modern-day I.G. Farben could not be sued under the ATS.  Nor could a “Pirates, Inc.” engaged in contemporary piracy, or an entity incorporated to engage in slavery.

Given the significance of blanket immunity for corporate human right abuse, it is no surprise that the U.S. government has weighed in with an amicus curiae brief in support of the Plaintiffs.  The U.S. government noted that corporations are certainly capable of violating international law, and found “no good reason to conclude that the First Congress would have wanted the suit to proceed only against the potentially judgment-proof individual actor, and to bar recovery against the company on whose behalf he was acting.”  The government’s brief further observed that “[c]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”

For fifteen years before Kiobel, the statute enabled survivors of corporate human rights abuse to pursue accountability here, when it was otherwise unavailable.  For example, Plaintiffs sought redress for corporate complicity in forced labor in Burma, apartheid in South Africa, and extrajudicial killings in Nigeria.  While only cases against companies involved in such egregious human rights violations moved forward, no court contemplated a corporate shield from liability.  With Kiobel, the Supreme Court has an opportunity to reaffirm the U.S. commitment to provide justice to survivors of egregious human rights abuse.  Relief from suffering should not depend on whether an individual or a corporation is responsible for the violation.

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Tyler Giannini and Susan Farbstein teach at Harvard Law School, and are the Clinical Director and Associate Clinical Director of its Human Rights Program. They are currently co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the Petitioners in Kiobel v. Royal Dutch Petroleum Co.  Giannini served as one of the architects of Doe v. Unocal Corp., a precedent-setting corporate ATS suit that settled in 2005.  Farbstein was a member of the legal team in Wiwa v. Royal Dutch Petroleum Co., the companion case to Kiobel that settled in 2009.

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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.

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Corporate Court Grants Cert. in Human Rights Cases

The United States Supreme Court today granted cert. in two cases that affect the rights of individuals seeking to hold corporations and other organizations responsible for human rights violations.

In Kiobel v. Royal Dutch Petroleum, twelve Nigerian nationals sued Royal Dutch Petroleum and two other oil companies for aiding and abetting human rights abuses committed in the Ogoni Region of Nigeria in the early 1990s. To protest the environmental damage caused by the defendants' oil exploration and production in the Ogoni region, Nigerian residents organized the “Movement for Survival of Ogoni People.” Plaintiffs allege that defendants then enlisted the Nigerian government to suppress the Ogoni activists.

In 1993 and 1994, the Nigerian military was involved in a variety of human rights abuses – shooting, killing, beating, raping, and arresting residents, as well as destroying and looting property – allegedly with the assistance of defendants.

To obtain compensation, and to deter future corporate wrongdoing, plaintiffs brought their claims under the Alien Tort Statute (ATS), alleging that defendants had aided and abetted the Nigerian government in violating the law of nations, including extrajudicial killing, crimes against humanity, torture or cruel, inhuman, and degrading treatment, arbitrary arrest and detention, forced exile, property destruction, and violation of the rights to life, liberty, security, and association.

The District Court dismissed some of the plaintiffs’ claims, finding that they were not established clearly enough under customary international law, while permitting the remainder to proceed. Both parties appealed the court’s ruling. Rather than decide the issues that had been certified for appeal, in a 2-1 decision, a panel of the Second Circuit Court of Appeals dismissed all claims by finding that corporations are not liable under the ATS.

The Alien Tort Statute, 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 jurisdiction of the ATS, the Second Circuit majority concluded that, while states and individual men and women have been held liable for human rights violations, corporations have not. The majority acknowledged that corporations are generally considered by U.S. courts to be “persons,” with corresponding rights and liabilities. 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.

As Judge Pierre Leval, who concurred only in the judgment, stated in a separate opinion, the majority “deal[t] a substantial blow to international law and its undertaking to protect fundamental human rights” by creating a rule “[w]ithout any support in either the precedents or the scholarship of international law. In Judge Leval's view, the majority was wrong to derive a lack of precedent for the civil compensatory liability of corporations based on the lack of jurisdiction for international criminal tribunals.

Furthermore, the court deemed the matter a jurisdictional question, which the court may address on its own at any point, rather a question of the merits of the case, which is waived if not raised by the defendants. 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.

The Supreme Court will also hear argument in the related case of Mohamad v. Rajoun. In that case, the family of a U.S. citizen, who allegedly died of injuries sustained during torture by officers of the Palestinian Authority and the Palestine Liberation Organization, sued under the 1991 Torture Victim Protection Act (TVPA). 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.

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