For decades now, survivors of human rights crimes have used the Alien Tort Statute (ATS) to seek redress against 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 knew 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 on U.S. territory was not a strong 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 United Stated against the entity which is now Royal Dutch Shell, the lawsuit accused the Dutch and British multinational of aiding and abetting the Nigerian military in the systematic torture and killing of peaceful environmental protesters in the 1990s. After a federal appeals court held that corporations could not be liable under the ATS for the human rights abuses in question, the plaintiffs sought Supreme Court review. On February 28, 2012, the Court heard oral arguments 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 heard a new round of oral 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 to justice for Nigerian victims who suffered human rights abuses when Royal Dutch Shell aided and abetted the Nigerian government in attacking them and their family members. However, the splintered concurring opinions by Justices Kennedy, Alito, and Breyer left open the possibility that companies and individuals could still be liable for human rights abuses in cases with a stronger connection to the United States.
Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. 2012), was class action suit filed on behalf of Nigerian residents who engaged in peaceful protests against environmental degradation in the Ogoni region of the Niger Delta. The complaint alleged that entity which is now Royal Dutch 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 and activist Ken Saro-Wiwa. The Ogoni Nine were hanged following a conviction by a military tribunal that was roundly condemned as a miscarriage of justice. The plaintiffs allege that Royal Dutch Shell improperly interfered with the proceedings and helped to railroad the conviction and punishment of the activists.
The plaintiffs filed the initial complaint under the ATS in 2002, alleging that the entity which is now Royal Dutch Shell aided and abetted violations of the law of nations committed 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 additional argumentation on a broader question: whether U.S. courts could 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 oral 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.
Royal Dutch Shell’s counsel argued their 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 numerate liability for corporations. Royal Dutch Shell urged the Court to reject the idea that because corporations are civil “persons” under U.S. and international law, they can be liable for human rights crimes, just like any flesh and blood “natural person.” To justify this position, Royal Dutch Shell reasoned 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 U.S. government took 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, 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 ATS, 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 argued 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, we argued, it is 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.
Mohamad v. Palestinian Authority (sister case to Kiobel)
In Mohamad, decided on April 18th, 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 Palestinian Authority for the torture and killing of their son.
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.
The Arguments in Kiobel II: Offending Foreign Sovereigns or Denying Safe Haven to Human Rights Abusers?
In their supplemental brief, the Nigerian plaintiffs argued 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. Royal Dutch Shell, they argued, was asking the Court to overrule its own precedent, a mere eight years after it was created. 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.
Royal Dutch Shell’s supplemental brief madea 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., the company contended that our courts would not “disrespect foreign sovereignty” by hearing a survivor’s claim of genocide or other mass atrocities. Royal Dutch Shell relied on two presumptions that often guide courts when interpreting statutes that implicate foreign affairs. First, invoking the “presumption against extraterritoriality,” the company argued that the territorial reach of the ATS must be limited because the statute does not explicitly say that it applies to conduct occurring outside of the United States. Second, the company claimed that applying the ATS extraterritoriality in this case- a so-called “foreign-cubed” case, involving claims of foreign plaintiffs against foreign defendants for conduct occurring on foreign territory- the Nigerian government’s exclusive sovereignty over its affairs, in violation on international law. Invoking the presumption that an ambiguous federal law should be construed not to violate international law, Royal Dutch Shell argued that the ATS should be limited to U.S. soil. This argument is premised on the per-Nuremberg notion that national state sovereignty trumps individual rights as recognized in customary international law. According to Royal Dutch 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, purporting to block the case against Shell. This about-face on human rights was 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 argued in favor eliminating most extraterritorial ATS claims, while keeping the courthouse doors ajar for certain cases. The brief made two main points. First, it urged 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 foreign corporations from liability for human rights abuses under U.S. law, while perhaps preserving ATS cases against companies headquartered in the United States or cases against flesh-and-blood perpetrators.
Second, the government argued 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. On this argument, 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 argued that when extraterritorial ATS suits are permitted, procedural rules and doctrines of judicial restraint should apply “with special force.”
Did 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 conflicting views on the statute. And courts have not always sided with the executivebranch. 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 vigorously to oppose ATS suits involving foreign human rights abuses. In the 2004 Sosa case, the Bush Administration urged the Supreme Court to adopt a categorical rule against ATS cases involving extraterritorial conduct. The Court, rejected the Bush Administration’s position. The Justice Department used Kiobel II to take 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, and Dolly Filártiga, and CJA itself. Our brief stressed the importance of keeping U.S. courts open to human rights lawsuits filed against perpetrators who have sought safe haven here. We made three major points.
First, we argued 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, we argued that 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.
Third, we argued that 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.
On April 17, 2013, the Supreme Court held in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) that the presumption against extraterritoriality applies to claims under the ATS.
Writing for the Court, Chief Justice Roberts’ majority opinion held that where ATS claims rest on conduct that occurred outside the United States, those claims must “touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritorial application.” Applying that standard to the facts before it, the Court dismissed the plaintiffs’ claims against the foreign corporation for the conduct that had occurred outside the United States, holding that Royal Dutch Shell’s “mere corporate presence” did not sufficiently “touch and concern” the territory of the United States to displace the presumption against extraterritoriality.
As Justice Kennedy recognized in his concurrence, Kiobel “is careful to leave open a number of significant questions regarding
the reach and interpretation of the Alien Tort Statute.” Justices Alito and Thomas likewise noted that the Court’s “formulation leaves much unanswered.” Justices Alito and Thomas would have preferred a “broader standard” than the Court’s formulation – one that would bar ATS claims resting solely on extraterritorial conduct. By contrast, while arriving at the same result as the majority Justices Breyer, Sotomayor, Ginsberg, and Kagan would have instead relied on a multi-factor approach which would recognize an ATS action if “(1) “the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.”
The impact of the Kiobel decision on claims under the ATS iscurrently being litigated in district and appellate courts, including through CJA’s cases. However, it is important to note, the Kiobel decision does not impact claims for extrajudicial killing or torture under the Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat.73 (1992).
On August 20, 2013, the Southern District of Ohio rejected Defendant Abdi Aden Magan’s Kiobel challenge, holding that “as a permanent resident of the United States, the presumption … against extraterritoriality has been overcome in this case.” For more information on the Magan case, click here.