Kiobel Tests U.S. Support for Human Rights Accountability

Will U.S. courts hear claims against foreign human rights violators?

Washington, D.C. — Human Rights First has filed its second amicus brief in the U.S. Supreme Court case of Kiobel v. Royal Dutch Petroleum., arguing that a U.S. law permits victims of foreign human rights violations to sue the perpetrators in American courts. The case will determine whether the United States truly supports the principles of international law for human rights accountability. The alleged facts of the Kiobel case are gruesome: the plaintiff Esther Kiobel, for herself and on behalf of her late husband, Dr. Barinem Kiobel and 10 other Nigerians, claims that Royal Dutch Shell Petroleum Co. – along with one of its subsidiaries, and a British firm, Shell Transport and Trading Co. – aided and abetted the Nigerian military dictatorship’s use of murder and torture against opponents of oil exploration in the Ogoni region of the Niger Delta between 1992 and 1995. Human Rights First’s original amicus brief addressed the importance of holding corporations accountable for their human rights violations. The question of corporate accountability is particularly poignant in light of the Supreme Court’s earlier ruling in the Citizen’s United case that corporations are to be treated as persons for purposes of entitlement to constitutional protections of the First Amendment. Oral arguments were held in the Kiobel case in February. Instead of issuing a decision, the Court ordered re-argument on the question of whether the law under which the victims were suing – the Alien Tort Statute (ATS) – may be used for events that occur abroad. “The idea that non-Americans should be able to use U.S. courts to sue non-Americans for international law violations committed abroad is not new,” said Human Rights First’s Gabor Rona. “’Universal jurisdiction is not only a well-established practice in international law, it is required for grave breaches of the Geneva Conventions, such as murder and torture, and by the U.N. Convention against Torture.” The ATS was first used to provide redress for human rights violations committed abroad in the 1980 Filartiga case, concerning a Paraguayan human rights activist who had been tortured by a Paraguayan police inspector who had subsequently moved to the United States. Since then, many notorious human rights violators, such as the Serbian war criminal Radovan Karadic, have been sued in U.S. courts by victims who would otherwise have been unable to seek redress in their home states. The Supreme Court has previously recognized the applicability of the ATS to events that occur abroad in the 2004 case, Sosa v. Alvarez-Machain. If the Supreme Court now rules against the plaintiffs in Kiobel, it will overturn over 30 years of precedent, including its own, under which foreign human rights violators have been brought to justice. In addition to its amicus brief, Human Rights First urged the United States Government, which is not a party to the suit, to also file an amicus brief in support of extraterritorial application of the ATS for human rights violations. Earlier this year, the Government, also at the urging of Human Rights First, filed a brief in support of corporate liability under the ATS. The United States did file a brief, but unfortunately, opposing the use of the ATS for human rights violations occurring abroad.