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Kiobel v. Shell

Light Dims on Human Rights Claims in the U.S.

Kiobel v. Shell

Light Dims on Human Rights Claims in the U.S.


Overview


For decades now, survivors of human rights abuses have been able to use the Alien Tort Statute (ATS) to seek redress from those responsible for their abuse—be they individuals or corporations—whenever their tormenters are found in the United States.  But on April 17, 2013, the Supreme Court significantly limited human rights litigation as we know it.  In a splintered decision, the Justices held that the ATS does not apply to human rights violations committed in other countries, unless there is a strong connection to the United States.  The Justices unanimously agreed that the mere presence of a multinational corporation was not a clear enough connection.  However, the Court left open the issue of whether an individual perpetrator who seeks safe haven in the United States may still be liable under the ATS.

Kiobel v. Royal Dutch Shell Petroleum

This case concerns the involvement of multinational corporations in overseas human rights crimes.  But it raises a more basic issue: whether victims of the world's worst atrocities, who are denied justice at home, can turn to U.S. courts as their last resort. 

Brought by Nigerian refugees in the U.S. against Shell Oil, the lawsuit accuses  the Dutch/U.K. multinational of helping the Nigerian military to systematically torture and kill environmentalists in the 1990s.  After a federal appeals court held that corporations could not be liable for human rights abuses, the plaintiffs sought Supreme Court review.  On February 28, 2012, the Court heard oral argument on a specific issue:  whether corporations are immune from tort liability for international law violations such as torture.  (Jump to Kiobel I). 

Rather than decide that narrow issue, the Court broadened the case.  On October 1, 2012, the Court will hear a new round of arguments on a more fundamental question:  whether survivors can continue to bring claims in U.S. courts under the ATS for human rights abuses committed in the territory of a foreign state. (Jump to Kiobel II).

On April 17, 2013, the U.S. Supreme Court issued its disappointing decision, holding that the ATS does not provide an avenue for justice for Nigerian human rights victims who were harmed when Shell Oil assisted the Nigerian government in attacking them and their family members. However, the splintered concurring opinions by Justices Kennedy, Alito and Breyer leave open the possibility that companies and individuals may still be liable for their abuses in cases with a stronger connection to the United States.


Case History


Kiobel v. Royal Dutch Shell Petroleum Co., No. 10-1491 (U.S. 2012) is a class action suit filed on behalf of Nigerian residents who protested against the environmental impacts of oil exploration in the Ogoni region of the Niger Delta.  The complaint alleges that Shell armed, financed, and conspired with Nigerian military forces to suppress the protests.  Throughout 1993 and 1994, the military systematically targeted Ogoni villages in terror campaigns of looting, rape, murder and property destruction.  This campaign culminated in the summary execution of the Ogoni Nine, a group of environmentalists including the famed playwright Ken Saro-Wiwa.  The Ogoni Nine were hanged to death following a conviction by a military tribunal that was roundly condemned as an abuse of justice.  The plaintiffs allege that Shell tampered with the trial and helped to railroad the conviction of the activists.

The plaintiffs first filed their complaint under the Alien Tort Statute (ATS) in 2002, alleging that Shell aided and abetted violations of the law of nations by the Nigerian military junta.  In 2006, the U.S. District Court for the Southern District of New York dismissed several of the claims, holding that only the claims for aiding and abetting torture, crimes against humanity, and arbitrary detention were sufficiently defined under international law to be actionable under the ATS.  Kiobel, 456 F. Supp. 2d 457, 468 (S.D.N.Y. 2006).  

Both parties appealed the decision to the U.S. Court of Appeals for the Second Circuit.  On September 17, 2010, a majority of the appeals panel (Judges Dennis Jacobs and José Cabranes) issued a sweeping opinion—over a vigorous dissent by Judge Pierre Leval—holding that corporations could not be sued under the ATS, invoking a novel theory that international law does not hold corporations liable for human rights crimes. Kiobel, 621 F.3d 11 (2d Cir. Sept. 17, 2010).

The plaintiffs brought their case to the Supreme Court on this narrow question—whether a corporation could be sued under the ATS for violating international law (Kiobel I).  But the Court called for reargument on a broader question: whether U.S. courts can continue to hear ATS cases for human rights abuses committed within the borders of a foreign nation.  That issue was argued before the Court on October 1, 2012. (Kiobel II).


Kiobel I:  The Liability of Corporations and other Entities for Human Rights Abuses


On February 28, 2012, the Supreme Court heard argument on the question decided by the Second Circuit:  whether corporations are immune from tort liability for violations of international law.

The Arguments in Kiobel I:  Are Corporations Free to Violate Human Rights Law?

The Nigerian plaintiffs, represented by CJA co-founder Paul Hoffman, argued in their opening brief that the liability of a corporation for the wrongful acts of its agents—be they negligence, false imprisonment, or torture—has been a feature of all legal systems in the world, for as long as corporations have existed.  Thus, corporate liability is a general principle of international law and unquestionably part of U.S. law.  Nothing in international law prohibits the United States from choosing to enforce international law norms, like the prohibition on torture, against an organization such as a corporation, in addition to its individual directors and officers.

Shell’s brief in Kiobel I makes the counter-argument that no international criminal tribunal has ever convicted a corporation of torture or crimes against humanity and that human rights treaties do not specifically say that they apply to corporations.  Shell urges the Court to reject the idea that because corporations are civil “persons” under U.S. and international law—with rights and obligations—they can be liable for human rights crimes, just like any flesh and blood “natural person.”  To justify this position, Shell claims that allowing corporations to be sued for torts like slavery or genocide would inconvenience businesses and upset international trade.

The U.S. Government's Position: No Corporate Immunity

The United States filed a brief in Kiobel I in support of the Nigerian plaintiffs that was signed by Harold Hongju Koh, Legal Advisor to the State Department.  The government takes the position that there is no “international-law norm . . . that distinguishes between natural and juridical persons.  Corporations (or agents acting on their behalf) can violate those norms just as natural persons can.”  According to the State Department, international law defines the conduct that is prohibited, banning for example, terrorism or human trafficking.  But international law leaves it to each nation-state to determine how to enforce these prohibitions.  By enacting the Alien Tort Statute, the United States has chosen to enforce these rules through civil tort liability.  And for centuries, U.S. tort law has permitted suits against corporations.  Thus, nothing in international or U.S. law exempts a corporation from liability for grave human rights abuses.  

CJA’s Amicus Brief in Kiobel I:  Survivors Have a Right to a Remedy

CJA filed an amicus brief on behalf of Dr. Juan Romagoza Arce, Cecilia Santos Moran, and Ken Wiwa, all survivors of human rights violations.  Our brief argues that non-natural persons should not escape liability when they commit or facilitate human rights abuses.  The right to remedy, we note, is part of international law.  States are required to give victims of human rights abuse access to the courts and a right to redress.  To make good on this obligation, it’s vital that the United States give survivors the right to seek reparations and accountability against those responsible for their abuses.  From the survivor’s perspective, it matters little whether the perpetrator is an individual, a paramilitary group, or a corporation.   Immunizing organizational defendants would create two arbitrary classes of victims—those who can seek redress, and those who cannot.  That distinction would frustrate the benefits of human rights cases, which promote healing for torture survivors and their communities.


Kiobel II:  The Global Reach of International Law and the Alien Tort Statute


On March 5, 2012, in a surprising move, the Supreme Court called for briefing and re-argument on a new issue: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, 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.”  Oral argument was set for October 1, 2012, the first day of the Fall 2012 term.

Understanding the Issues:  Extraterritoriality and Human Rights Litigation

Kiobel II turns on extraterritorial jurisdiction, more commonly called "extraterritoriality."  This is the legal ability of a government to regulate conduct beyond its territorial boundaries.  Normally, when Congress makes law, it regulates the United States, not the entire world.  But under U.S. and international law, the government can project its law overseas in certain circumstances:  when the perpetrator or victim of a crime is a US national, or when the foreign conduct causes effects within US territory or threatens our government.  In addition, international law gives all countries "universal jurisdiction" to punish and provide remedies for certain offenses – like piracy or genocide – that are universally condemned, no matter where they are committed.  The United States has several laws that exercise universal jurisdiction, from our laws against international terrorism to the Torture Victim Protection Act.

The Alien Tort Statute, however, is a different sort of law.  It enforces regulations created by all of the world’s nations, not by the United States.  In other words, the ATS doesn’t tell foreigners abroad what they may or may not do.  It merely subjects foreign violators to the same international rules that govern them at home.

Thus, the ATS applies universal international law to human rights cases brought to our shores by the presence of the perpetrator.  Because the human rights norms enforced by the ATS are already part of international law, they are already in force around the world.  This means there is no risk of imposing U.S. law or values on foreign sovereigns.  And since the perpetrator or his accomplice are physically present, the United States has a compelling interest in denying them safe haven.

Finally, extraterritorial ATS cases often have a positive effect on international relations.  They have catalyzed transitional justice in emergent democracies.   As Argentina argues in its brief in support of the Kiobel plaintiffs, ATS suits “were important sources of international assistance for victims during the darkest days of Argentina’s dictatorship and during its transition to democracy.”  ATS suits still play that role.  CJA's case against Telmo Hurtado for the Accomarca Massacre precipitated his arrest and extradition to Peru to stand trial.

The Arguments in Kiobel II: Offending Foreign Sovereigns or Denying Safe Haven to Human Rights Abusers?

In their supplemental brief, the Nigerian plaintiffs argue first that the Supreme Court already decided that the ATS applies to human rights abuses committed overseas.  In Sosa v. Alvarez Machain (2004), the Court held that federal courts may hear ATS claims based on a narrow set of international law violations regardless of where they occur.  Shell is thus asking the Court to overrule its own precedent, a mere eight years after it was decided.  Second, when Congress enacted the ATS in 1789, it clearly intended the law to apply beyond U.S. borders to international crimes like piracy.  Third, the global reach that Congress gave to the ATS is fully consistent with international law.  This is because the ATS is designed to enforce prohibitions that are themselves global rules.  And the ATS is not alone: numerous countries have laws that exercise criminal and civil jurisdiction over extraterritorial human rights crimes.  Finally, a categorical rule against extraterritorial ATS cases is unnecessary:  the federal courts already have procedural rules that allow them to limit the foreign affairs impact of ATS suits or dismiss claims that lack merit.

Shell’s supplemental brief makes a blanket attack on human rights litigation under the ATS.  Whether the defendant is a corporation sued for complicity, or a fugitive war criminal hiding out in the U.S., Shell contends that our courts must not “disrespect foreign sovereignty” by hearing a survivor’s claim of genocide or other mass atrocities.  Shell relies on two presumptions that often guide courts  when interpreting statutes that implicate foreign affairs.  First, invoking the “presumption against extraterritoriality,” Shell argues that the territorial reach of the ATS must be limited because the statute does not explicitly say that it applies outside the United States.  Second, Shell claims that the ATS violates  international law by meddling with foreign sovereignty.  Invoking the presumption that an ambiguous federal law should be construed not to violate international law, Shell argues that the ATS should be limited to U.S. soil.  This argument is premised on the pre-Nuremberg idea that state sovereignty trumps individual rights.   According to Shell, a state's crimes against humanity, committed against its own people, in its own territory, cannot be scrutinized by the courts of another state.

The U.S. Government’s Position in Kiobel II: Conflicted Views and a Call for Greater Executive Branch Control

Initially, the Obama Administration supported the Kiobel plaintiffs.  The government's  brief in Kiobel I argued that corporations could be liable for human rights crimes.  But in Kiobel II, the Justice Department—in an apparent split with the State Department—reversed course and filed a brief calling for territorial limits on the ATS that would block the case against Shell.  This about-face on human rights is highly controversial.  Harold Koh, Legal Advisor to the State Department, apparently refused to sign the Justice Department’s brief.  

The government's brief in Kiobel II aims to bar most extraterritorial ATS claims, while keeping the courthouse doors ajar for certain cases.  The brief makes two main points.  First, it urges the Supreme Court to refuse to recognize an ATS suit that “challenges the actions of a foreign sovereign in its own territory” where, as here, “foreign plaintiffs are suing foreign corporate defendants for aiding and abetting a foreign sovereign’s treatment of its own citizens in its own territory.”  This appears to be a bid to exempt multinational corporations, while perhaps preserving ATS cases against companies headquartered in the United States or cases against flesh-and-blood perpetrators.

Second, the government argues that the Executive branch should play a stronger role in determining whether the ATS applies to violations committed overseas, on a case-by-case basis.  Courts could likely continue to hear cases—such as CJA’s—where the primary human rights abuser is physically present, because it would serve U.S. foreign policy interests in denying safe haven.  All the same, the government argues that when extraterritorial ATS suits are permitted, procedural rules and doctrines of judicial restraint should apply “with special force.”  

Will the Court defer to the Justice Department's view of the ATS?  Not necessarily.  Since the ATS was first used to litigate human rights claims in the late 1970s, presidential administrations have held conflicted views on the statute. And courts have not always sided with the Executive.   The Carter Administration embraced the ATS, arguing that it would jeopardize U.S. foreign relations if our country denied victims access to our courts. (See Filartiga v. Pena-Irala, Memorandum for the United States as Amicus Curiae, June 6, 1980).  Although the Reagan Administration was more restrained, President George H.W. Bush signed into law the TVPA—a strong endorsement  of litigating human rights claims in U.S. courts when justice is denied overseas.  (See Statement on Signing the Torture Victim Protection Act of 1991, March 12, 1992).  The Clinton Administration similarly embraced the use of the ATS to hold an indicted war criminal accountable for abuses in Bosnia. (See Kadic v. Karadzic, Statement of Interest of the United States, Sept. 13, 1995)  It was only with the George W. Bush Administration that the Executive Branch began to vigorously oppose ATS suits involving foreign abuses.  In the 2004 Sosa case, the Bush Administration urged the Supreme Court to adopt a categorical rule against foreign ATS cases.   The Court, however, rejected the Bush Administration's position.  Now, Shell is taking a second bite at the extraterritoriality apple.

CJA’s Amicus Brief in Kiobel II: Transnational human rights cases are necessary to deny safe haven to perpetrators.

On June 13, 2012, with co-counsel Pam Karlan and Jeffrey Fisher of the Stanford Supreme Court Clinic, CJA filed an amicus brief in Kiobel II on behalf of twelve of our clients, Dolly Filartiga, and CJA itself.  Our brief stresses the importance of keeping U.S. courts open to human rights lawsuits filed against perpetrators who have sought safe haven here.  We make three major points.  

First, we argue that individuals who come to the United States are normally subject to lawsuits in this country for claims that arise abroad – whether the claims arise from automobile accidents in Europe, theft of trade secrets in Asia, or intentional torts in Africa.  Adjudicating lawsuits here for human rights abuses abroad involves no unusual, much less unprecedented, exercise of jurisdiction.  Indeed, it would be perverse to permit tort suits for foreign fender-benders but not for foreign genocide.

Second, allowing ATS suits against U.S. residents for atrocities committed abroad is essential to our country’s longstanding commitment to deny safe haven to human rights abusers who take refuge in our country and enjoy the privileges of living here.  And, third, other existing legal doctrines are available to limit the prospect of litigation having no real nexus with the United States.  By contrast, a categorical bar would only push human rights litigation into state courts, impeding the government’s ability to monitor and intervene in human rights suits, and creating a patchwork of inconsistent rulings in a field of foreign relations law where uniformity is vital.


Mohamad v. Palestinian Authority (sister case to Kiobel)

In Mohamad, decided on April 18, 2012, the Supreme Court held that the Torture Victim Protection Act—which provides victims with a cause of action against an “individual” who commits torture or extrajudicial killing—does not apply to an entity, such as a de facto government or corporation, whose agents commit torture.  The Court thus foreclosed a U.S. family's claims against the Palestinian Authority for the torture and killing of their son.