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The U.S. Supreme Court opened a new term on Monday, and the first case argued was a major human-rights controversy.
The case was brought by 12 Nigerians granted political asylum in the United States. They sued Shell oil, which is based in the Netherlands and the U.K., for allegedly conspiring with the Nigerian government in the torture and killing of Nigerians who protested that their property was being taken without compensation for oil exploration and that the countryside was being despoiled.
Esther Kiobel, now a U.S. citizen, contends that she was imprisoned and her husband executed to stop their protest activities. On the steps on the Supreme Court on Monday, a tearful Kiobel said she had promised her husband to seek "justice" if anything happened to him.
Alien Tort Statute
Kiobel is the lead plaintiff in the suit, brought under the Alien Tort Statute, a law enacted by the first United States Congress in 1789 and aimed primarily at pirates. Over the past 30 years, victims of human-rights violations have used the statute to sue their tormentors in U.S. courts. In 2004, the Supreme Court appeared to endorse this use of the statute if the claims were based on "universally condemned" human-rights violations such as torture and genocide.
Shell contends that such lawsuits should not be permitted under the Alien Tort Statute.
"This case has nothing to do with the United States," said Shell's lawyer, Kathleen Sullivan. "The events took place in Nigeria, the defendants are English and Dutch companies, the plaintiffs are all Nigerian citizens who were located in Nigeria at the time. So, there is no conduct in this country."
Inside the courtroom, Monday's argument began with lawyer Paul Hoffman, representing the Nigerian plaintiffs. He argued that the suit was brought in the U.S. because the plaintiffs now live here. He maintained that not only is this their "adopted homeland" but also that international law permits suits like this one.
Justice Anthony Kennedy was quick to challenge Hoffman's assertion, questioning whether this case could allow human-rights suits to be brought "in any country in any court in the world." His concern was that if the U.S. were to allow such suits, U.S. companies might well be brought into foreign courts for their conduct in the U.S. or elsewhere.
Lawyer Hoffman replied that such jurisdiction exists right now for violations of international human-rights law.
At that, Justice Antonin Scalia wondered whether "some superbody" exists to decide what constitutes an international law violation. Although national courts are deciders when violations occur within a nation, he said, "to give courts elsewhere the power to determine whether a Untied States corporation in the U.S. has violated a norm of international law is something else."
Justice Stephen Breyer, on the other hand, noted that universal jurisdiction is not novel. The U.S. and many other countries have signed the U.N. convention banning torture and providing for universal court jurisdiction. Thus, he said, if a U.S. corporation were in cahoots with a foreign government to violate that treaty, it would subject that corporation to court jurisdiction in any country that also signed the treaty.
Intent Of The Law
Despite that observation from Breyer, Hoffman, as expected, faced an uphill climb. What was not expected was the skepticism that also faced Shell's lawyer.
Justice Ruth Bader Ginsburg began the line of questioning by asking Sullivan if the Alien Tort Statute, as it has existed and been used for the past 30 years, is wrong. Ginsburg pointed to the pathbreaking 1978 case of the Filartiga family, who fled to the U.S. from Paraguay and subsequently sued a Paraguayan police chief, who by then was also living in the United States. He was allegedly responsible for the torture and killing of the Filartiga family's 17-year-old son.
"You would say ... Filartiga is wrong because nothing happened in the United States?" asked Ginsburg.
Although Sullivan first tried to dodge the question, Justice Kennedy demanded an answer. The position of Shell, replied Sullivan, was that the "correct result" would have been to bar the Filartiga suit from going forward.
A string of hypotheticals from the justices ensued, including Justice Samuel Alito asking about torture or killing that could occur on foreign soil but be directed by someone in the United States. Sticking to her argument, Sullivan replied that even that would not be enough to permit a suit in the U.S.
Finally, the court turned to the intent and interpretation of the Alien Tort Statute. Referring to the concern over piracy that spurred adoption of the law in 1789, Justice Breyer asked, "Who are today's pirates? If Hitler isn't a pirate, who is?"
When Sullivan responded that it should be left to Congress to explicitly state the purpose of the statute, Chief Justice John Roberts quickly fired back, "We've crossed that bridge already, haven't we," a reference to the court's 2004 ruling that appeared to endorse the legality of such lawsuits.
Underscoring this point, Justice Elena Kagan read directly from the 2004 decision: "For purposes of civil liability, the torturer has become like the pirate and slave trader before him, an enemy of all mankind."