U.S. Kiobel Decision Bucks 30 Years of Precedent

By Joe Hitchon Reprint | | Print | |En español

WASHINGTON, Apr 18 2013 (IPS) - The U.S. Supreme Court has dismissed a lawsuit against the Royal Dutch Shell Petroleum Company brought by alleged human rights victims.

The ruling, which was handed down Wednesday, is seen as a serious setback for the Ogoni community in the Niger Delta, who alleged gross human rights abuses during the mid-1990s by the military government in power at the time.

In addition, the decision essentially cuts off the U.S. courts system from those attempting to redress wrongs allegedly committed by multinational companies, particularly in developing countries.

In the widely watched Kiobel vs. Royal Dutch Petroleum case, the victims had accused the oil company of being complicit in the crimes against them, including torture, extrajudicial killings, rape and crimes against humanity.

Yet the justices, led by Chief Justice John Roberts, found that Shell’s connection to the United States was too tenuous, despite the fact that it does business in the country, and hence could not be sued under U.S. law. Critics say this is precisely what the U.S. law in question, known as the Alien Tort Statute (ATS), was created to do.

“The ruling today is a real tragedy,” Raha Wala, senior council at Human Rights First, a Washington-based advocacy group, told IPS immediately after the decision.

“It means that the doors to justice will be shut for a large category of foreign individuals who really have nowhere else to turn to receive redress for international human rights issues including torture and extrajudicial killings. I think the Supreme Court really missed the mark today with its ruling.”

In the case, the plaintiffs alleged that the Ogoni had protested against widespread environmental destruction and land degradation resulting from oil exploration in the Ogoniland region of the Niger Delta. In response, they said, throughout 1993 and 1994 the Nigerian military systematically targeted Ogoni villages in terror campaigns of looting, rape murder and property destruction.

These attacks were said to have culminated in the executions of a group of people known as the Ogoni Nine, environmentalists who included the renowned playwright Ken Saro-Wiwa. The nine were hanged following a military tribunal widely condemned as illegitimate.

The Ogoni had hoped to find justice in U.S. courts by filing a civil action against Royal Dutch Shell under the Alien Tort Statute. For decades, the statute has served as a tool for holding individuals, corporations and governments accountable for international human rights violations.

Yet Tuesday’s ruling, coming after a decade-long fight, could now irreparably weaken the statute. (A full history of the case can be found here.)

“Essentially what the court said is that the ATS – which is designed to allow lawsuits for violations of both the laws of nations and international law – no longer applies extra-territorially,” Wala said.

“So what we have here are allegations of horrific acts of violence, including torture, facilitated by large multinational corporations in Nigeria, that essentially will go unanswered for because the Supreme Court construed this law very narrowly.”

Indeed, Wala says Wednesday’s decision goes against decades of use of the ATS.

“The Supreme Court has interpreted this law in a way that has been inconsistent with the last 30 years of legal precedent,” she said. “During that time, the ATS has been used repeatedly to bring human rights cases into federal courts. Today’s decision is really a disservice to victims of human rights violations.”

State courts open

The decision will almost certainly have a profound effect on the global effort to give redress to victims of corporate-linked human rights abuses. Some are also worried that it will now make it more difficult to deny safe havens to alleged torturers and war criminals.

While the case is viewed as a departure from a trend toward greater accountability for serious human rights violations, Marco Simons, the legal director for Earth Rights International, a Washington advocacy group, says that the door to the ATS has not yet been closed.

“From now on, if a foreign multinational corporation has participated in crimes against humanity in another country, you can’t sue them in the U.S. simply because they have a presence in the U.S.,” he told IPS.

“It’s not enough that the defendant is a corporation doing business in the U.S. – now there needs to be some greater connection to the United States than that.”

At the same time, he notes, Wednesday’s decision only applies to federal courts. Further, and importantly, the justices did not decide that corporations are immune from the ATS, as Shell’s lawyers had suggested.

“So, foreign corporations doing business in the U.S. can still be sued under the ATS for the crimes they have committed around the world, but only at the state court level,” he explained.

“Beyond this, we don’t really know what additional connection might be required. It could mean that only a case against a U.S. corporation can be tried, or maybe the case would have to require some company involvement within the United States, such as corporate decision-making being made here.”

He says this issue will be argued in court for some time to come.