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.
The Supreme Court is hearing the Kiobel case just as many other countries are becoming more open to the idea of accountability for human-rights violations no matter where they occur. These countries do not want such claims to go unaddressed. My research, published in the Berkeley Journal of International Law, traces the various approaches that different legal systems recently have taken, in the absence of legislation equivalent to the Alien Tort Statute.
For example, English courts have acted creatively to provide a forum for foreign cases. Last year, Peruvian torture victims successfully settled claims in England against a mining company that is owned by a Chinese consortium. The English High Court assumed jurisdiction to review whether the English-incorporated company could have intervened to prevent the torture in Peru. Similar reasoning was used to adjudicate a case involving victims of mercury poisoning at a mine in South Africa.
Other countries have recently adopted criminal laws for corporations that govern their actions regardless of where they take place. For instance, a Dutch court convicted a businessman who sold chemicals to the government of Saddam Hussein in Iraq, which his regime used to produce chemical weapons that it deployed against the Kurds. The court stated explicitly that Dutch provisions criminalizing human rights abuses also apply to the overseas activities of companies.
The Kiobel case about events in Nigeria, of course, does not involve a US company. But even here, the world is catching up. Courts in some of the many countries that have joined the European Convention on Human Rights have used the convention to support the adjudication of foreign human rights claims – claims that involve no ties to the adjudicating country whatsoever.
The European convention mandates the right to a fair trial. And so the Netherlands, for example, has interpreted this as a requirement to review a case brought by Palestinian and Bulgarian health workers who were tortured and jailed in Libya, ostensibly for infecting children with AIDS.
Historically, the US has provided a more favorable framework for redress than any other country. If America is to continue to project a moral example beyond its borders and demonstrate its commitment to spreading liberty, then the Supreme Court should not use Monday’s argument as an opportunity to start lagging behind the rest of the world.
Jodie A. Kirshner is an associate professor of law at the University of Cambridge in England.