International Accountability and the Alien Tort Statute

JURIST Guest Columnists Jennifer Green and Sahadev Gowda of the University of Minnesota Law School, say that corporations must be held accountable for international law violations through use of the Alien Tort Statute...


Last month, the US Supreme Court heard oral arguments in the case of Kiobel v. Royal Dutch Petroleum. The central question discussed was whether corporations doing business in the US can be accountable under the Alien Tort Statute (ATS), for human rights abuses of foreign citizens where the corporations operate.

A little over a week later, the Court took the unusual step of ordering reargument, and asking for supplemental briefing on the question of whether (and when) the ATS applies to international law violations occurring in another country.

Kiobel was brought by 12 Nigerians who sued Royal Dutch Petroleum and Shell Transport and Trading for torture, prolonged arbitrary detention and the extrajudicial killings of family members. In 2010, the US Court of Appeals for the Second Circuit, without prior briefing or argument on the issue, ruled that corporations could not be sued under the ATS.

No less than three subsequent federal courts of appeals — the Seventh, District of Columbia and Ninth Circuits — ruled that the ATS permits suits against corporations for universally condemned human rights violations.

The Kiobel plaintiffs petitioned for certiorari on two grounds: 1) the court erred in declaring the question of corporate liability to be a matter of subject matter jurisdiction and deciding the question without briefing or argument, and 2) that the court erred in its determination that corporations could not be sued under the ATS. The Supreme Court granted certiorari, 20 amicus briefs were submitted in support of the Kiobel plaintiffs (Petitioners) and 15 amicus briefs were submitted in support of the Shell defendants (Respondents).

At the argument in February, the Court focused exclusively on the second question.

Justice Kennedy's initial question was whether Shell's argument was correct that "international law does not recognize corporate liability." Plaintiffs' counsel Paul Hoffman responded with a persuasive analysis that the international human rights norms at the basis of the plaintiffs' case — crimes against humanity, torture, prolonged arbitrary detention, extrajudicial executions, are defined in international law and federal common law provides for the means of enforcement, in this case through a tort action under the ATS.

The briefs submitted by Petitioners and their amici provided extensive support for this analysis. The analysis is summed up nicely in the July 2011 decision by the US Court of Appeals for the Seventh Circuit in Flomo v. Firestone. There, Judge Richard Posner wrote, "International law imposes substantive obligations and the individual nations decide how to enforce them."

International law does encompass corporate responsibility. The brief of Yale Law School Center for Global Legal Challenges extensively discusses the sources of customary international law, which extend to corporations the prohibitions against genocide, crimes against humanity, torture, extrajudicial killings, war crimes, slavery and piracy.

At the argument, Justice Breyer questioned Shell counsel Kathleen Sullivan about whether the prohibition against genocide applied to corporations. What Sullivan failed to mention in her response is that genocide is a jus cogens norm and juridical entities have been included in the prohibition against genocide. Two examples, cited in the Yale brief, are the International Court of Justice decision Application of Convention on Prevention and Punishment of Crime of Genocide, which discussed "persons or entities" that committed the acts of genocide at Srebrenica, and the International Criminal Tribunal for Rwanda, which in Prosecutor v. Nahimana, found that a corporate entity, a radio station, violated the prohibition against genocide.

Justice Breyer's question about the prohibition against slavery went unaddressed other than Sullivan's refrain that "there is no international norm applicable to corporations for violations of the human rights offenses here." But slavery is also a jus cogens norm and international treaties and other sources of law consistently apply the prohibition to both public and private actors.

Sullivan also argued that the rejection of civil liability in the Rome Statute of the International Criminal Court (ICC) supports her argument, but she misstated the historical record. Ambassador David Scheffer, who led the US delegation negotiating the ICC, explained in his amicus brief that the issue of civil liability was not "thoroughly discussed" since it was considered outside the jurisdiction of the criminal court.

In an attempt to argue that Nuremberg established that only human beings could be held liable for human rights abuses, Sullivan mischaracterized the actions taken under international law against IG Farben and other companies as "political acts." But, this also misstates the historical record. First, as noted in the US amicus brief, "nothing in the history of the Nuremberg proceedings suggests that juridical persons could never be held accountable (through criminal prosecution or otherwise) for violating international law." Second, the actions taken against IG Farben and other corporations aiding and abetting the Nazi regime were enacted pursuant to international law. As Judge Judith Rogers of the US Court of Appeals for the District of Columbia Circuit wrote in Doe v. Exxon: "[T]he Allies determined that IG Farben had committed violations of the law of nations and therefore destroyed it." In Flomo v. Firestone, Judge Posner concluded, "[a]t the end of the Second World War the allied powers dissolved German corporations that had assisted the Nazi war effort, along with Nazi government and party organizations — and did so on the authority of customary international law."

Another question Justice Kennedy raised came from a brief submitted for amici curiae Chevron and other corporations in support of Respondents. That brief asserted: "No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection."

The concerns here were addressed at different points in the argument. As Justice Kagan noted, the ATS is a unique statute, but it is up to individual nations to determine the best course to enforce international law. Chevron's statement also ignores that many nations in the world permit similar claims and hold corporations responsible for their torts. Again the Exxon opinion summed the argument well:

Given that the law of every ... civilized nation, and the law of numerous international treaties, provide that corporations are responsible for their torts, it would create a bizarre anomaly to immunize corporations from liability for the conduct of their agents in lawsuits brought for "shockingly egregious violations of universally recognized principles of international law."
The question of whether Shell has a connection to the US was brought before the lower courts over a decade ago when Shell moved to dismiss a related case for lack of personal jurisdiction. The Second Circuit determined that Shell did sufficient business in New York for the company to be tried in a New York court and ruled against Shell's motion to dismiss. The plaintiffs now reside in the US, having been granted political asylum because of the persecution directed against them. It is undisputed that US courts can hear other claims against Shell, such as injuries from pesticides, brought by foreign citizens for injuries in foreign countries.

Corporations doing business in the US must be held accountable for the international law violations they commit, wherever the ultimate victims of those abuses reside. The function of tort law is to compensate victims and deter further abuses. The ATS provides a tort remedy for those who suffer violations of the law of nations, and there is no basis in the text, history or context of the ATS, or in international law, to exempt corporations when they violate the law.

The Court's latest ruling ordering additional briefing may indicate that the Supreme Court is not willing to rule that corporations cannot be sued for human rights abuses under the ATS. It also shows that the Supreme Court is not willing to rule on a question that had not been fully briefed and argued.

The Supreme Court has given no indication that it is willing to overturn the rights of human rights victims to sue those who violated their rights when the alleged perpetrators come to the US. Justice Kennedy noted that, "we can assume that Filartiga [allowing Paraguayans to sue a Paraguayan in New York court for torture that occurred in Paraguay] is a binding and important precedent for the Second Circuit." Justice Ginsburg specifically referenced the Supreme Court's 2004 ruling in Sosa v. Alvarez-Machain, which involved abuses occurring in Mexico. In that case, Bush administration officials argued that the ATS should not apply to acts on foreign soil, but the Supreme Court did not even address this issue as one that should concern the Court.

The history of the ATS and the human rights cases brought under it has allowed cases that occurred overseas, from one of the first cases, which occurred on the territory of Sierra Leone. In addition to the case brought by the Filartigas, cases were brought against former officials who chose to come to the US such as the leader of the Bosnian genocide, Radovan Karadzic, former Haitian dictator Prosper Avril and former Philippine dictator Ferdinand Marcos.

As Hoffman stated during the argument, a central principle at stake is that the US not provide a safe haven to torturers and others who commit the most egregious human rights violations.

We are optimistic that the Supreme Court will uphold this principle as well as the principle that corporations are accountable when they violate the law, including when they are complicit in universally condemned human rights violations.

Jennifer Green is an Associate Professor Law at the University of Minnesota Law School. She is also counsel of record for amici Nuremberg Scholars in Support of Petitioners which was submitted in Kiobel v. Royal Dutch Petroleum. Sahadev Gowda, University of Minnesota Law School Class of 2013, assisted with the brief.

Suggested citation: Jennifer Green & Sahadev Gowda, International Accountability and the Alien Tort Statute, JURIST - Forum, Mar. 22, 2012, http://jurist.org/forum/2012/03/green-gowda-kiobel.php.



This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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