Fortune and fantasy on Africa's oil frontier
Esther Kiobel
Today the U.S. Supreme Court issued its decision in the Kiobel v. Shell case, limiting the courts’ ability to hear claims of human rights abuses committed abroad.
Lawrence Hurley of Reuters calls the disappointing decision, “a major victory for multinational companies,” adding that “the ruling is a major win for multinationals such as Royal Dutch that do business in the developing world and become embroiled in local political controversies.
“Those companies, which are still subject to lawsuits in foreign courts, fear U.S. courts because of the possibility of large damage awards,” Hurley writes. He goes on to note that, “The ruling is likely to affect other cases, including those involving similar claims against Anglo-Australian mining company Rio Tinto Plc over its conduct in Papua New Guinea; Exxon Mobil Corp over its activity in Indonesia; and Daimler AG concerning alleged abuses in Argentina. The companies have all vigorously contested the claims.”
Human Rights First goes further, saying the Kiobel ruling “undermines U.S. leadership on human rights.”
In its press release, the organization writes, “Today in its decision in Kiobel v. Royal Dutch Petroleum, the Supreme Court gutted the Alien Tort Statute (ATS), a law that has been on the books for more than 200 years and for the last 30 years has been a critical avenue to hold serious human rights violators accountable. In a decision that will undermine the United States’ status as a leader on human rights, the Justices unanimously decided that the victims of the gross human rights violations alleged in this case were not entitled to relief under the ATS. Furthermore, a majority of the Court ruled more broadly that the ATS does not apply to human rights violations committed in other countries.
“Human Rights First President and CEO Elisa Massimino stated, ‘This decision so severely limited a law that has for decades been a beacon of hope for victims of gross human rights violations. The United States has been a leader in the fight against impunity, but this decision cuts a hole into the web of accountability. Human rights abusers may be rejoicing today, but this is a major setback for their victims, who often look to the United States for justice when all else fails. Now what will they do?'”
Here’s the news release from Earth Rights International, one of the organizations fighting on behalf of the Nigerian plaintiffs:
Courthouse Doors Remain Open to Cases with a Sufficient Link to the United States
April 17, 2013, Washington, D.C. — The U.S. Supreme Court today issued a disappointing decision in Kiobel v. Royal Dutch Petroleum (Shell), holding that the Alien Tort Statute (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. Despite this, the splintered opinions by Justices Kennedy, Alito, and Thomas 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.
“We are disappointed by today’s ruling and the fact that U.S. courts have shut their doors to the human rights violations our clients suffered,” said lead counsel for the Kiobel plaintiffs, Paul Hoffman, of Schonbrun, De Simone, Seplow, Harris, Hoffman & Harrison. “However, the Court has left open the issue of whether U.S. corporations and many other defendants can be sued under the Alien Tort Statute for human rights violations abroad. We will continue to litigate those cases and we will continue to sue U.S. and foreign corporations in state courts and other fora to hold them accountable for serious human rights violations. This decision will not deter those efforts.”
The suit against Shell was brought by Nigerian citizens who allege the corporation aided and abetted the military dictatorship in the torture, rape, and extrajudicial killing of unarmed protesters in the 1990s. In seeking to have the case dismissed, Shell argued that corporations are not bound by human rights law and that U.S. courts are powerless to rule on atrocities committed overseas. Overlooking the clear history and purpose of the Alien Tort Statute, the Supreme Court held that in cases like this one, where a foreign corporation acted overseas, the defendant cannot be held liable in U.S. federal courts.
“The Supreme Court’s decision further exposes how Human Rights abuses are given a low priority in US courts. This decision will ignite the Ogoni campaign for justice against Shell Oil and the Nigerian government,” said plaintiff Charles Wiwa. “We will never give up fighting for our day in court.”
“Today’s opinion was a missed opportunity to send a crystal clear message: the world’s torturers and war criminals are not above the law—and neither are their accomplices,” said Pamela Merchant, Executive Director of the Center for Justice and Accountability. “In spite of the Court’s decision, the human rights community will continue our work to ensure that U.S. courts give victims what they were denied abroad: a chance to seek truth, healing, and a measure of redress.”
First signed into law by George Washington in the 18th Century, the ATS gives federal courts the power to hear suits by aliens for torts “committed in violation of the law of nations.” In Filartiga v. Pena-Irala (1980), a federal appeals court allowed the family of a Paraguayan torture victim to bring claims against a former Paraguayan police chief. Since then, victims have used the ATS against civilian and military officials, as well as multinational corporations. In the landmark 1997 case, Doe v. Unocal, a group of Burmese villagers brought claims against the American oil company Unocal for the brutal oppression of people living near a pipeline project.
“The ATS is a powerful tool; it has made a difference in the lives of many, from victims of torture, rape, and forced labor in Burma to civilians subjected to torture at Abu Ghraib in Iraq,” said Peter Weiss, Vice-President of the Center for Constitutional Rights who argued and won the Filártiga case. “Corporations and others who commit human rights abuses should be on notice: this ruling does not make them immune from liability. The doors to the courts are still open.”
“Today’s decision could have been a courageous one for the Roberts Court, which has been accused of being the most pro-corporate Supreme Court in U.S. history. Instead, the Supreme Court has ended the search for justice for the Ogoni plaintiffs in this case.” said Katie Redford, co-founder of EarthRights International. “However,” she added, “the Kiobel opinion suggests that other cases involving human rights abuses abroad may still go forward. Corporations operating in the U.S. still must think twice before they cut corners and curb human rights standards to improve their bottom line.”
“Today’s decision is contrary to the development of customary international law since Nuremberg and is a step backwards for the United States standing as venue for the impartial adjudication of egregious human rights violations. The United States was never meant to harbor the “enemies of mankind” and this decision only gives solace to the perpetrators. This unfortunate decision will not deter the Ogoni plaintiffs from pursuing justice against Shell.” Carey R. D’Avino, Plaintiffs’ Counsel, Eaton & Van Winkle LLP.
For more information and a collection of the briefs filed in the case, please visit http://cja.org/article.php?list=type&type=510
And for an overview of ATS cases and resources: http://www.ccrjustice.org/ATSoverview.
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About EarthRights International
EarthRights International (ERI) is a nongovernmental, nonprofit organization that combines the power of law and the power of people in defense of human rights and the environment. ERI specializes in fact-finding, legal actions against perpetrators of human rights and environmental abuses, training grassroots and community leaders, and advocacy campaigns. It has offices in Washington, D.C., Chiang Mai, Thailand, and Lima, Peru.
About Center for Justice and Accountability (CJA)
CJA is a San Francisco-based human rights organization dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress. CJA uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law, and advance the rule of law in countries transitioning from periods of abuse.
About the Center for Constitutional Rights (CCR)
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. Visit www.ccrjustice.org and follow @theCCR.
Christiane Badgley has been producing and editing documentary films for the past twenty years, with much of her work focused on the U.S. criminal justice system and post-colonial African politics and history.
