PLANK OCTOBER 2, 2012
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When Kiobel v. Royal Dutch Petroleum first came before the Supreme Court last February, the lawyers for the Dutch and British-owned petroleum company argued that corporations couldn't be sued for acts of torture and extrajudicial killings—Shell was accused of complicity in such crimes allegedly committed by the Nigerian government—because international human rights law applies only to individual persons, not corporations. This was a position that was, at the very least, rhetorically at odds with the Supreme Court’s much criticized holding in the Citizens United case: that corporations are persons for the purposes of exercising First Amendment rights. It seemed that it would be left to the Supreme Court justices to reconcile the incongruity of holding that corporations aren’t persons when they support torture abroad but are when they want to spend millions to influence U.S. elections.
But when the case came before the Court again on Monday, the apparent contradiction was no longer the central issue. Justice Anthony Kennedy—who wrote Citizens United and may have been especially sensitive on the question—had successfully changed the subject earlier in the year. At the previous term's oral arguments in February, Kennedy said that, in his mind, the case turned an argument made in an amicus brief by Jack Goldsmith of Harvard Law School: that “no other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.” The following week, the Supreme Court expanded the case to address the question Goldsmith had raised: Does the Alien Tort Statute, which allows people who aren’t U.S. citizens to bring suits in U.S. courts for violations of the law of nations, apply to conduct that took place outside the U.S.? That’s the question the justices took up on the first day of the new Supreme Court term. And the justices focused on the fact that the Obama administration, in a remarkable policy shift, changed positions in the case, moving from the anti- to the pro-corporate side.
In its initial brief last year, signed by Verrilli and State Department Legal Advisor Harold Koh, the White House took the position that any corporation could be held liable for crimes committed abroad under the Alien Tort Statute, even though the U.S. government's longstanding view had been the opposite. But after the oral argument in February, Edwin Kneedler, the deputy solicitor general who has served as a highly respected apolitical appointee in the office for more than three decades, argued in internal debates with the State Department that the government’s traditional view—that the Alien Tort Statute should not apply extraterritorially—was correct. Koh, the state department advisor, continued to vigorously argue the opposite position: In his view, as a scholar, human rights activist, and government official, U.S. courts need to be open to foreign victims of human rights abuses who can’t get justice in their own countries. But Verrilli, the Solicitor General, essentially sided with Kneedler rather than Koh. The second brief the government submitted to the Supreme Court argues that the Court should not allow the suit to go forward in this case because it involved Nigerian plaintiffs suing Dutch and British corporations for allegedly aiding and abetting the Nigerian military. The claim that civil suits alleging torture abroad shouldn’t proceed because both the plaintiffs and corporations are foreign was a compromise position because it left open the possibility that some suits against corporations might proceed if the parties had closer ties to the U.S. Nevertheless, Koh’s dissatisfaction with having lost this internal battle can be inferred from the fact that his name doesn’t appear on this second brief.
In the Supreme Court oral argument on Monday, the justices made much of the fact that the Solicitor General’s new compromise position was inconsistent not only with the one Verrilli took last February but also with the position of some of his predecessors who had argued even more broadly that the Alien Tort Statute doesn’t apply to extraterritorial human rights violations in any circumstances. “Your successors may adopt a different view,” Chief Justice John Roberts told Verrilli. “Whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”
But the nuance of Verrilli’s position may be the point. His argument gives the justices an option for ruling narrowly against allowing the Nigerian torture victims’ suit to proceed in U.S. courts, without foreclosing the possibility that the result might be different if a U.S. corporation were involved. That’s an option that Chief Justice Roberts, who has pledged to try to persuade his colleagues to converge around narrow, unanimous opinions whenever possible, might be inclined to embrace. But Justice Kennedy, who almost never rules narrowly when he can rule expansively, seems more persuaded by Goldsmith’s sweeping argument that allowing any suits by aliens against corporations for human rights violations abroad, far from being a vindication of international law, is in fact a violation of international law.
If the Court does rule that these lawsuits are completely out of bounds, the battle will shift to Congress. In theory, Congress could, if it chooses, explicitly authorize human rights suits against foreign or domestic corporations, in the same way that that Congress, in the Torture Victims Protection Act of 1992, authorized suits against foreign individuals by torture victims who were prohibited from seeking remedies in the countries where they had been abused. In practice, however, thanks to Citizens United, corporations have even more influence in protecting their own interests in Congress than in the Supreme Court. That’s why, in the end, the Kiobel decision may have the effect of ensuring that corporations are treated like persons when they seek to influence elections but not when they aid and abet torture after all.
6 comments
My favorite poster on this subject: "I'll believe corporations are persons when Texas executes one." The precedent for corporations as people is very long--back to 1809, and reaffirmed numbers of times since. Seems to me however that they shouldn't be able to have it both ways. If they're guilty of crimes they should, like any other person, be accountable.
- Robert Powell
October 2, 2012 at 6:59am
I guess it depends on how complicit Royal Dutch Shell is. I find it inconceivable that executives there colluded with torture (and not just indirectly benefited by it). Let us imagine that it was a Dutch citizen who had substantial holdings in both a foreign country and the US and his company was involved in child sex trafficking, and a child victim from abroad brought suit in the US. It would be a media circus and that Dutch citizen would never set foot in the US for fear of jail time. Yet somehow these rules do not apply because it is a company? Someone is running the company. Someone would have ok'ed it. One other thing, the plaintiffs were given asylum in the US, which means the US assumed some responsibility for their protection, they obviously can not lay claim in Nigeria and due to their likely low status can not jet off to Holland and lay claim there. Now I don't know enough about the specifics to ascertain Royal Dutch Shells guilt or innocence, but isn't that what a trial is for? How about a little faith in our Jury system the Supreme Court?
- blackton
October 2, 2012 at 9:16am
In the Subsequent Nuremberg Trials held before U.S. military tribunals I.G. Farben, Flick, and Krupp went on trial for war crimes and crimes against humanity. The crimes of these monsters are those of the Devil himself. I.G. Farben manufactured Zyklon B, the chemical that killed the Jews in the gas chambers (bizarrely, it was invented in the early Twenties by a highly patriotic German Jew, who disguised it as an insecticide). A subsidiary of I.G. Farben, Bayer, experimented with drugs in the death camps that tortuously killed women. Bayer now makes a best-selling aspirin, and Krupp, which helped build the Nazi war machine, manufactures coffee makers (with its name disguised), among other products. There is a precedent for trying corporations as people, but usually their people-officers go free. Very few of the corporate war criminals in Germany went to jail. And they were on trial before a U.S. military tribunal.
- magboy47.
October 2, 2012 at 12:08pm
While it may be that "no other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection" the issue of holding corporations accoutable for violations of human rights is global. The weak or complete lack of a sufficient legal foundation for prosecuting corporations is consistent throughout both the western and non-western world. The UN fairly recently (march '11) rewrote their guidelines for corporate responsibility for human rights. The aim was to clarify how corporations should conduct and be held accountable for their foreign affairs. However, despite good intentions it was fundamentally flawed right from the start. The principles determine that both state and corporations themselves are to be held accountable for violations of human rights. Laid out are requirements for all companies to provide grievance mechanism, accessible to both internal and external complainants. This is focused on very heavily and in theory i guess that is sufficient. Companies who agree to the UN principles get a "you've been good this year"-badge of sheepish approval and if they do something bad, injured parties officially have somewhere to complain about it. The problem lies in the process that follows. What rights and possibilities to compensation for infringement of those do people actually have? As stated the American judicial system does not recognize corporations as individuals. Therefore, needless to say, they can not be prosecuted as such. Neither can they be properly prosecuted as corporations, as existing laws to not sufficiently complement the corporate responsibility drawn out by UNs guidelines. The only option left for a violated or injured individual is to prove that not the company, but one single person within it, is responsible for the crimes by which they have been afflicted. First of all since multi-national companies hardly are run by one decision maker alone, this is never the actual case of events, but it is a possible way of at least symbolically holding someone responsible. However, following the paper trail and building a case behind cases like that is often an impossible task. Secondly, the punitive damages that can be awarded in prosecution of an individual are not in proportion to the assets of the company they work for. This can be used as a way for corporations to systematically pay their lesser way out of misconduct rather than actually doing business in compliance with the human rights principles. This is an example of how the ambitions of the UN can do more harm than good. Rather than preventive of human rights violations, I find the guidelines provoking as they become a vanity object—a way of building good will and sympathetic brand identity—for corporations instead of serving those they are supposed defend. I would like to see guidelines that dare enforce the recommendation that states too are accountable for corporate conduct. Nations need to stop letting corporations use them as scapegoats and provide the judicial ground required for direct prosecution of non-individuals responsible for violation of human rights.
- pmbrtn
October 2, 2012 at 3:55pm
Re: pmbrtn "the American judicial system does not recognize corporations as individuals..." Dartmouth College v Woodward (1819)?; Santa Clara County v Southern Pacific Railroad (1886)?; Pembina Consolodated Silver Mining Co. v Pennsylvania (1888)?; and of course Citizens United.....looks to me like it does.
- Robert Powell
October 3, 2012 at 3:08am
IGNORING AMERICA'S POOR POSTING IN AL JAZEERA http://www.aljazeera.com/programmes/insidestoryus2012/2012/10/201210343152481862.html
- JAIMECHUCH
October 3, 2012 at 1:25pm