Supreme Court case tests US leadership in human rights

Today, the US Supreme Court will hear arguments in a case whose outcome could undermine the role of the United States in upholding human rights around the world.

Specifically, the justices will assess whether American courts can hear lawsuits brought by foreigners that pertain to events that occurred outside the country. If they eventually decide “no,” an important avenue for redress will be closed to foreign victims of human-rights abuses – and America’s beacon as a leader in advancing such rights will shine less brightly.

The case, Kiobel v. Royal Dutch Petroleum, is being brought by the widow of Dr. Barinem Kiobel, a Nigerian activist. He was executed by the Nigerian military with the alleged complicity of Royal Dutch Petroleum.

Between 1994 and 1995, Kiobel and other residents of the Ogoni region of Nigeria were arrested, tortured, convicted of murder in a sham trial, and shot. They had resisted unregulated oil exploration that Royal Dutch Petroleum was undertaking through contracts with the Nigerian military dictatorship. Ms. Esther Kiobel, who was not tortured, but who filed the claim on behalf of her husband and survivors of the abuses, alleged that the corporation paid Nigerian soldiers to carry out the crimes. She argues that the company transported the soldiers to company property, from which they staged their attack.

With no redress available in Nigeria, she turned to the American courts. For several decades, the US has offered victims of international human rights abuses access to justice here. A 1789 law that permits foreigners to file suit under the Alien Tort Statute, evolved to enable American jurisdiction over the claims. No other country has offered noncitizens such straightforward access to their courts for the judicial review of actions that took place abroad.

These cases do not burden the American justice system. The statute provides only a narrow basis for jurisdiction and requires plaintiffs to allege a specific wrong that violates an established norm of international law. The claims remain subject to dismissal for reasons that include the case being better suited to the legal system of a different country. To date, only four cases have proceeded to trial, but some have achieved substantial settlements.

The US has adjudicated claims of foreign torture, execution, genocide, and slavery under the Alien Tort Statute. Successful outcomes have included settlements on behalf of Nigerian children killed from drug tests secretly conducted by the pharmaceutical company Pfizer; survivors of the Holocaust for losses to Banque Paribas which appropriated their assets during the German occupation of France; and Chinese dissidents who were detained and tortured after Yahoo! revealed that they were disseminating pro-democracy materials.

In interviews, survivors have stressed the importance of having their suffering recognized in a judicial forum. They believe that the judicial process in America contributes to the strengthening of human rights norms around the world.

The US, however, may soon cede its leadership in human rights as it relates to this law. In September 2010, a lower court found that the Alien Tort Statute does not permit foreign plaintiffs to sue corporations and dismissed the case brought by Kiobel. The Supreme Court, now hearing the case for the second time, is looking at the corporate question and more broadly at the legitimacy of American courts considering the legality of actions that occur on foreign soil.

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