Supreme Court to Weigh Torture Lawsuits Against Corporations

David G. Savage
McClatchy / News Report
Published: Monday 27 February 2012
“On Tuesday, the justices will hear an appeal of a suit accusing Royal Dutch Petroleum and its Shell subsidiary in the United States of aiding a former Nigerian regime whose military police tortured, raped and executed minority residents in the oil-rich delta.”

Two years ago, the Supreme Court said corporations were like people and had the same free-speech rights to spend unlimited sums on campaigns ads. Now, in a major test of human rights law, the justices will decide whether corporations are like people when they are sued for aiding foreign regimes that kill or torture their own people.

It would "create a weird paradox" if the corporations are people when funding campaigns but not when they violate human rights, said Peter Weiss, vice president of the Center for Constitutional Rights in New York.

At issue is an obscure 18th century law unearthed by human rights lawyers in the 1980s and increasingly used against U.S. corporations whose work overseas has entangled them with brutal regimes.

On Tuesday, the justices will hear an appeal of a suit accusing Royal Dutch Petroleum and its Shell subsidiary in the United States of aiding a former Nigerian regime whose military police tortured, raped and executed minority residents in the oil-rich delta. The victims included famed Nigerian author and environmental activist Ken Saro-Wiwa.

It is one of many long-running claims against multinational companies. Exxon-Mobil is fighting a suit that alleges its security forces committed murder and torture against Indonesian villagers a decade ago. Rio Tinto, the British mining company, was sued in California for alleged atrocities in the late 1980s carried out against the natives of Papua New Guinea.

All the suits rely on the Alien Tort Statute of 1789, which authorized federal courts to decide claims brought by an "alien" for a violation of the "law of nations."

No one has been too sure what that phrase means. In its only major ruling on the law, the Supreme Court cautioned that it applied only to "a very limited category" of well-recognized violations of international law. Crimes such as torture, enslavement and genocide could qualify.

Corporate lawyers chafe at these claims. They say it makes no sense to allow foreigners to sue in U.S. courts for actions that took place on foreign soil and under the auspices of foreign governments. Critics also say U.S. officials would not take kindly to foreign suits against American corporations if, for example, they were held liable for killing innocent people in Pakistan or Yemen because they had supplied drones or cruise missiles to the U.S. government.

Two years ago, corporate lawyers won the ruling they hope could end most such claims. The U.S. Court of Appeals in New York, in a 2-1 decision, threw out the suit against Royal Dutch Shell and ruled corporations were not liable for violations of international law. Its judges said states and state actors were responsible for the violations of international law, such as the Germans who were punished at Nuremberg for the crimes of Nazi Germany.

Obama administration lawyers joined human rights activists in appealing this decision to the Supreme Court.

"It would send a very bad message if we give corporations a blanket immunity if they engage in universally condemned human rights abuse," said Jennifer Green, a University of Minnesota law professor.

On the other side are not just American corporations but also the governments of Britain, the Netherlands and Australia. They say international law does not call for liability against companies, and U.S. courts have no business deciding cases involving foreign companies operating in foreign lands.

The case is Kiobel vs. Royal Dutch Petroleum.



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5 comments on "Supreme Court to Weigh Torture Lawsuits Against Corporations"

spindoctorjimbo

February 27, 2012 8:55pm

I have written or reported on Alien Tort Claims Act suits involving murdered Colombian trade unionists and murdered activists from El Salvador and Nicaragua. In a handful of cases, these actions have resulted in paper victories for the claimants, and, presumably, some degree of monetary compensation.

Overwhelmingly, however, except as a way to 'tell the story' of the crimes of capitalism, this tactic has proven at best paltry and weak in its impact. The function of the law always has nuances; however, it also always manifests something like a central tendency, over time, to protect the interests of private property and, especially, oligopolistic business enterprises.

This needn't be the case. The people, a la Jefferson as well as Marx, have an absolute right to assert their revolutionary power to disfranchise the rich.

Until we are willing to struggle for that level of power, though, then what we are likely to get is more interesting articles about how much we have a justified reason for complaints that lead nowhere.

Is that what we want? Powerless anguish and tearful complaint? Inquiring minds want to know.

marcadrian

February 27, 2012 7:42pm

Knowing that the past foreshadows the future I can guarantee that the SCJ will determine that a corporation's criminal behavior is not punishable by US laws. The logic behind it is that the SCJ of the US is a rubber stamp for corporate interests and Justices are selected to their positions with the specific mandate that they will not attack corporate interests to favor real human beings.

Prospero

February 28, 2012 12:36am

Indeed.

Riconui

February 27, 2012 1:22pm

Let me indulge in an act of prophecy. It will be found that foreigners have no standing in US courts for the purposes of trying foreign corporations irrespective of the chargers against them...... and it will be a five to four ruling with the conservatives (or as I like to think of them, "the hacks") voting to dismiss.

If anyone is still clinging to the idea that the Supreme court is anything but the five-to-four majority ruling partisan gorilla in the room, you are deluded. By a five to four majority, the Supreme court is every bit as partisan as the RNC or the NRA. If you need a better reason to vote for Obama, what could it be other than the next nomination to the high bench. If the panel is going to be stacked anyway, I would like to see fewer scalias and thomas and a few more Kagans and just maybe, there is another Thurgood Marshall out there somewhere. One can hope.

Prospero

February 28, 2012 12:35am

Oh, how right you are.

Since corporations are granted equal status to me, by The Court, and they may also incorporate their fictitious "selves" with Limited Liability, it will only stand to "reason" that they are not accountable before The Court for torture and murder done for their benefit and/or in their name. I would, therefore, as a NON-fictitious entity, very much like to have the same right and power to limit *my* liability as it pleases me and serves my interests.

Obama, however, is another matter altogether. It is not my desire to re-elect, to the highest office in the land, a traitor to the Constitution. This is a most distressing dilemma for me, a progressive.