Can corporations be held accountable for human rights abuses? That is the question the U.S. Supreme Court will take up on its first day back in session on Oct. 1, and our reputation as a nation that upholds the highest principles hangs in the balance.
The case is called Kiobel v. Royal Dutch Petroleum (the company popularly known as Shell), and it revolves around whether corporations can be sued for human rights violations under a 1789 law known as the Alien Tort Statute.
The Alien Tort Statute allows non-U.S. citizens to sue in U.S. courts for violations of fundamental human rights law when perpetrators have sufficient connections to the United States.
It was dusted off in 1979, when a former Paraguayan police chief fled to New York to lay low for his role in the torture and murder of a 17-year-old boy, Joelito Filartiga. Relying on the Alien Tort Statute, Filartiga’s father and sister won a $10.4 million judgment against the murderer of their kin. Since then, Alien Tort Statute plaintiffs have successfully sought accountability for a variety of human rights abuses committed around the world, from forced labor in Burma to arbitrary arrest and detention in Liberia, from torture in Bangladesh to extrajudicial killing in Chile.
In the current case, the families of nine Nigerian activists sued Shell under the Alien Tort Statute for the corporation’s role in the torture and murders in the 1990s of Nigerian activists who had protested the company’s degradation of their land. The activists were detained on spurious charges, tortured and tried in a special military tribunal that violated international fair trial standards. Plaintiffs allege that Shell bribed some jurors. The nine activists were convicted and executed 10 days later.
Before the Supreme Court in February, Shell argued that it can’t possibly be sued under the Alien Tort Statute because it is a corporation — corporations can do with impunity what individuals can be punished for under the statute. So, even though the Supreme Court has ruled that corporations are persons, it may find that human rights violators may be held accountable only if the culprit has a human face rather than a corporate logo.
But the Supreme Court — pressed by its conservative wing — may take an even more radical route to gut the 200-year-old statute. The justices held the case over to consider whether U.S. courts should have any jurisdiction over Alien Tort Statute cases arising out of human rights violations occurring abroad.
We thus face the possibility that U.S. courts will abandon their historic role of offering the promise of justice to victims of torture and war crimes. If the Supreme Court eviscerates the Alien Tort Statute, the United States will go from having been a pioneer of universal human rights to an outlier.
Baher Azmy is legal director of the Center for Constitutional Rights. The center brought and litigated the landmark case Filartiga v. Pena-Irala. Azmy can be reached at email@example.com.
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