April 17, 2013, Washington, D.C. — The U.S. Supreme Court today issued a disappointing decision in Kiobel v. Royal Dutch Petroleum (Shell), holding that the Alien Tort Statute (ATS) does not provide an avenue for justice for Nigerian human rights victims who were harmed when Shell Oil assisted the Nigerian government in attacking them and their family members. Despite this, the splintered opinions by Justices Kennedy, Alito, and Thomas leave open the possibility that companies and individuals may still be liable for their abuses in cases with a stronger connection to the United States.
“We are disappointed by today's ruling and the fact that U.S. courts have shut their doors to the human rights violations our clients suffered," said lead counsel for the Kiobel plaintiffs, Paul Hoffman, of Schonbrun, De Simone, Seplow, Harris, Hoffman & Harrison. "However, the Court has left open the issue of whether U.S. corporations and many other defendants can be sued under the Alien Tort Statute for human rights violations abroad. We will continue to litigate those cases and we will continue to sue U.S. and foreign corporations in state courts and other fora to hold them accountable for serious human rights violations. This decision will not deter those efforts."
The suit against Shell was brought by Nigerian citizens who allege the corporation aided and abetted the military dictatorship in the torture, rape, and extrajudicial killing of unarmed protesters in the 1990s. In seeking to have the case dismissed, Shell argued that corporations are not bound by human rights law and that U.S. courts are powerless to rule on atrocities committed overseas. Overlooking the clear history and purpose of the Alien Tort Statute, the Supreme Court held that in cases like this one, where a foreign corporation acted overseas, the defendant cannot be held liable in U.S. federal courts.
“The Supreme Court's decision further exposes how human rights abuses are given a low priority in US courts. This decision will ignite the Ogoni campaign for justice against Shell Oil and the Nigerian government,” said plaintiff Charles Wiwa. “We will never give up fighting for our day in court.”
“Today’s opinion was a missed opportunity to send a crystal clear message: the world’s torturers and war criminals are not above the law—and neither are their accomplices,” said Pamela Merchant, Executive Director of the Center for Justice and Accountability. “In spite of the Court's decision, the human rights community will continue our work to ensure that U.S. courts give victims what they were denied abroad: a chance to seek truth, healing, and a measure of redress.”
First signed into law by George Washington in the 18th Century, the ATS gives federal courts the power to hear suits by aliens for torts “committed in violation of the law of nations.” In Filartiga v. Pena-Irala (1980), a federal appeals court allowed the family of a Paraguayan torture victim to bring claims against a former Paraguayan police chief. Since then, victims have used the ATS against civilian and military officials, as well as multinational corporations. In the landmark 1997 case, Doe v. Unocal, a group of Burmese villagers brought claims against the American oil company Unocal for the brutal oppression of people living near a pipeline project.
“The ATS is a powerful tool; it has made a difference in the lives of many, from victims of torture, rape, and forced labor in Burma to civilians subjected to torture at Abu Ghraib in Iraq,” said Peter Weiss, Vice-President of the Center for Constitutional Rights who argued and won the Filártiga case. “Corporations and others who commit human rights abuses should be on notice: this ruling does not make them immune from liability. The doors to the courts are still open.”
“Today’s decision could have been a courageous one for the Roberts Court, which has been accused of being the most pro-corporate Supreme Court in U.S. history. Instead, the Supreme Court has ended the search for justice for the Ogoni plaintiffs in this case.” said Katie Redford, co-founder of EarthRights International. “However,” she added, “the Kiobel opinion suggests that other cases involving human rights abuses abroad may still go forward. Corporations operating in the U.S. still must think twice before they cut corners and curb human rights standards to improve their bottom line.”
“Today’s decision is contrary to the development of customary international law since Nuremberg and is a step backwards for the United States standing as venue for the impartial adjudication of egregious human rights violations. The United States was never meant to harbor the “enemies of mankind” and this decision only gives solace to the perpetrators. This unfortunate decision will not deter the Ogoni plaintiffs from pursuing justice against Shell.” Carey R. D’Avino, Plaintiffs’ Counsel, Eaton & Van Winkle LLP.
For more information and a collection of the briefs filed in the case, click here
For an overview of ATS cases and resources, click here