Argument preview: Human rights abuses and the law

Next Tuesday, starting at 10 a.m., the Supreme Court will hear two hours of argument — in back-to-back cases — on the scope of the right to sue in U.S. courts for human rights abuses — including torture — carried out in other countries.   Both cases have implications for corporations, including multi-national firms, as well as for political organizations, that are accused of violating the rights of individuals under international or U.S. law   In the first case, Kiobel, et al., v. Royal Dutch Petroleum Co., et al.(10-1491), the suing individuals will be represented by Paul L. Hoffman of the Venice, Calif., law firm of Schonbrun DeSimone Seplow Harris Hoffman and Harrison, and that side of the case will be supported by the U.S. government, with Deputy Solicitor General Edwin S. Kneedler arguing.  The sued oil companies will be represented by Kathleen L. Sullivan of the New York law firm of Quinn Emanuel Urquhart & Sullivan.  In the second case, Mohamad, et al., v. Palestinian Authority, et al., the suing individuals will be represented by Jeffrey L. Fisher, a law professor at Stanford.  Arguing on the other side will be Laura G. Ferguson of the Washington law firm of Miller & Chevalier, representing the political organizations sued in the case, with their legal position supported by the U.S. government, represented by Curtis E. Gannon, an Assistant to the Solicitor General.

Background

The global community  has always rallied around to find new legal ways of dealing with the horrors perpetrated by totalitarian regimes, and often the chosen method has been some form of international criminal trial, as at Nuremberg following World War II.   While that trend continues today for the most grievous atrocities, the legal community in recent years has turned increasingly also to civil lawsuits, reflecting a rising sense that human rights abuses still occur around the globe, and that someone should be held liable — and made to pay money damages or reparations.

That is the trend, getting a mixed reaction in lower courts, that comes in for intense new examination this week by the Supreme Court, in two cases with potentially worldwide impact.  One of the cases lines up the U.S. government on the opposite side of some of its closest allies — the governments of Germany, Britain, and the Netherlands.  The business community, from the U.S. and abroad, while fiercely condemning the abuses that are claimed, has mounted an energetic legal effort to head off a new wave of liability for corporations.

The Supreme Court has given some support to the civil lawsuit trend, but has told federal courts to be cautious in recognizing new forms of civil liability, thus putting some restraint on lawyers’ inventive instincts.   The legal basis of civil lawsuits given at least modest encouragement by the Court is the Alien Tort Statute, a law that dates all the way back to 1789, and that had lain largely unused for nearly two centuries, until the Second Circuit Court in the 1980 case, Filartiga v. Pena-Irala, launched what the Supreme Court has since described as a whole new generation of ATS litigation.

Congress has also joined in encouraging that trend, to some degree, apparently in response to the view that torture is becoming too common a feature in the violent repression of political minorities or hated adversaries.   Congress, in passing a 1991 law, indicated it wanted to ensure that terrorists could not come to the U.S. and find a safe haven.  The law, the Torture Victim Protection Act, taking effect in 1992, was passed to give U.S. citizens — for the first time — the right to sue if they have been victims of torture or other human rights abuses in foreign lands.   The Alien Tort Statute, by contrast, has always been restricted to lawsuits by non-citizens of the U.S.

As the two new cases reached the Supreme Court last year, they both centered on a simple core issue: do either of the two laws allow lawsuits in U.S. courts against corporations, or are both restricted to imposing potential liability only on individual human beings.  (Foreign governments usually have immunity as sovereign states.)   Lurking in one of the cases are a variety of what might be considered side issues — such as the authority of Congress to give U.S. courts the authority to reach beyond the nation’s borders to judge foreigners’ conduct, and the specific kinds of human rights abuses that might give rise to a lawsuit in an American court — but the Justice Department has urged the Justices to stay focused on the basic issue of corporate (or political organization) liability.

Joining in both cases, the Department sides with the argument that the Alien Tort Statute does allow lawsuits by aliens against corporations, but it takes the view that the Torture Victim Protection Act is confined to lawsuits against natural persons, and thus would not reach corporations or political entities.   A government lawyer will advance those views in each of the cases on Tuesday, going from one side in the first to the opposite in the second.

The first case — involving ATS claims against corporations — does have a side issue that the government argues should not deter the Court from reaching the issue of corporate liability.   That is whether the coverage of the ATS is a matter of jurisdiction, as the Second Circuit Court said it was (thus shutting down any lawsuit against a corporation from the outset), or whether it is a matter of the merits, as to whether a given corporation can be sued for alleged specific acts.   The government contends it is a merits question, within the power of courts to resolve, but business groups and their legal allies claim that it goes to the basic authority of courts even to hear an ATS claim against a business firm.

The Court, in recent years, has been increasingly resistant to the idea that a law that does not say flatly that courts have no authority to decide a given issue should be interpreted to impose just such a jurisdictional barrier.   If the Court follows that line of reasoning in the ATS case, it seems very likely it will feel free to decide the corporate liability question.

The ATS law at issue in the first case says simply that U.S. District Courts have the authority to decide “any civil action by an alien” claiming any wrongdoing that violated “the law of nations” or a U.S. treaty.   The most important Supreme Court ruling so far interpreting that law was the 2004 decision in Sosa v. Alvarez-Machain.  It barred an ATS lawsuit by a Mexican against Mexican nationals who supposedly had been recruited by U.S. narcotics agents to abduct him and transport him to the U.S. for a criminal trial.  In the course of that decision, urging caution by federal judges in implementing it, the Court seemed to say that an ATS claim must involve conduct that would violate norms of conduct accepted by the civilized world, but did not say who might be sued for such violations.

The first case to be heard Tuesday is initially titled in the name of Esther Kiobel, for herself and on behalf of her late husband, Dr. Barinem Kiobel, but also representing the interests of 10 other Nigerians, too.   Their lawsuit, a class action claim, targeted a Netherlands firm, Royal Dutch Shell Petroleum Co., along with one of its subsidiaries, and a British firm, Shell Transport and Trading Co.  It claimed that Nigerians or their relatives were killed, tortured, or subjected to cruel, inhuman and degrading treatment, as part of a plot of the military dictatorship in that country, using the Nigerian armed forces to suppress resistance to oil exploration in the Ogoni region of the Niger Delta between 1992 and 1995.

The lawsuit claimed that the three oil companies had aided and abetted the armed forces in the alleged atrocities.  A District Court judge ruled that some of the ATS claims could go forward against the corporations.   The case then was sent to the Second Circuit Court.  Reaching the issue not even discussed in the District Court, the Circuit Court, in a bitterly divided ruling, said that the ATS only applied to individual persons, so the claims were barred as a matter of jurisdiction.  The Circuit Court majority said it could find no custom in international law of corporate liability.  The en banc Circuit Court split 5-5 in refusing further review.

The second case on Tuesday turns on the meaning of the Torture Victim Protection Act, which allows U.S. citizens to file two specific types of claims: acts of torture or wrongful killing, and is limited to such abuses that were done by an individual under the authority of a foreign government.   As the measure went through Congress, it at one time had referred to any “person” who committed such wrongs, but that was later changed to “individual.”   The Supreme Court has said that this law supplemented, rather than replaced, the ATS.

The torture act case was filed by the family survivors of a U.S. citizen, Azzam Rahim, who allegedly was tortured to death in Jericho, a city near the Jordan River in the West Bank of the Palestinian territories.  Rahim had been born in the West Bank, but moved to the U.S. and became a citizen in the 1970s.   In the fall of 1995, he went to the West Bank for a visit.  While sitting at a coffee shop in his boyhood village of Ein Yabroud, near Ramallah, he allegedly was captured by men identifying themselves as security police, and was whisked away to a Jericho prison.   His family would later claim that he had been tortured there, and had died on September 29, 1996.  A later autopsy showed injuries, but could not determine the actual cause of his death.

Rahim’s son, Asid Mohamad, on behalf of Rahim’s widow and his six sons as representatives of the estate, sued in September 2005, against intelligence officers of the Palestinian Authority, the Authority itself, and the Palestinian Liberation Organization.  The individuals sued in the case were later dismissed.   The family had tried to sue also under the ATS, but that was dismissed because they were citizens, so the case proceeded under the 1992 torture law.    A District Court judge dismissed the case against the Authority and the PLO, concluding that the law only applied to natural persons.   That was upheld by the D.C. Circuit Court in Mohamad, et al., v. Rajoub, et al.

(The Palestinian Authority was created by international agreement between Israel and the PLO [the Oslo Accords] in 1993 to function as a sort of local government in areas of the West Bank and the Gaza Strip.  Its role was to be a transitional one, until a permanent agreement could be reached; none ever has been.)

Petitions for Certiorari

After the Supreme Court’s Sosa decision in 2004, the pace of ATS litigation picked up considerably, and cases began reaching the Supreme Court.  In the fall of 2010, the Justices passed up two of those cases, originating in the Second Circuit, but others followed.   In June 2011, the Kiobel petition was filed, followed in July by the Mohamad case.  By that time, it appeared that the key issue that had developed in the lower courts was whether corporations could be sued under ATS.

Attorneys for Kiobel raised two issues in their petition: whether the question of whether corporations could be sued under the 1789 law was a matter of jurisdiction, and if not, whether ATS did allow such lawsuits.   The petition accused the Second Circuit of engaging in “a radical overhaul of all existing ATS jurisprudence by transforming virtually every significant ATS issue into an issue of subject matter jurisdiction and by creating a blanket immunity for corporations engaged or complicit in universally condemned human rights violations.”

In an era of globalization, the petition asserted, ATS cases often provide the only opportunity for victims of human rights abuses “to obtain any remedy for their suffering and to deter future unlawful conduct.”   On the question of corporate liability, the petition noted that the Second Circuit ruling against such liability conflicted directly with a ruling by the Eleventh Circuit Court.

The oil companies responded that the Supreme Court itself, in the Sosa decision, had treated the ATS as a jurisdictional statute.   And, noting that the Court in Sosa had told federal courts to proceed with caution in finding new causes to sue under international law.  What the Second Circuit did in this case, the opposition brief contended, was “a straightforward application” of the Sosa decision.   Even though the Second Circuit judges had significant disagreements among them in the case, the brief commented, all three of them agreed that this lawsuit should be dismissed, so it said this case would be “a poor vehicle” for addressing the corporate liability question.

The case drew a smattering of amici support for the Kiobel parties.

The oil companies in the case had also filed a conditional petition for review, but the Court denied that routinely when the Kiobel parties declined to respond to it.

In the Mohamad case, the petition to the Court raised a single issue: whether the Torture Victim Protection Act allows lawsuits against any entity that was not a natural person.   A spare 14 pages, the petition primarily relied upon a direct conflict between the D.C. and Eleventh Circuit Courts.  It also relied upon the Circuit split over the “closely related question” of whether the ATS allowed a lawsuit against an entity other than a natural person.  It anticipated that the Court would review the Kiobel case.

The Palestinian Authority and the PLO urged the Justices to bypass the Mohamad case.  They contended that the Eleventh Circuit Court ruling not involve a significant exploration of the torture act’s scope, and, on the facts, they argued that the claims of the Rahim relatives had not been proven.

But the opposition brief placed particular emphasis on the point that the Authority and the PLO do not take any of their actions by using authority given to them by any foreign government.  The torture act, it noted, requires that the wrongdoing had to have occurred under the authority of a foreign nation.   They do not so function, it asserted.

Last October 17, the Court agreed to rule on both the Kiobel and Mohamad cases, and ordered that they be argued back to back rather than together — obviously because different laws, with different wording and background, were at issue.

Briefs on the Merits

The Kiobel brief on the merits spent little effort challenging the Second Circuit ruling that the question of the Alien Tort Statute’s coverage was a jurisdictional issue.   The Circuit Court majority reached out to make that declaration, the brief said, and that must be reversed, since it will complicate how courts process ATS cases in the future.

On the issue of corporate liability, the suing individuals’ brief went back to the nation’s Founding era, arguing that the first generation under the new Constitution understood from the English heritage that entities could be sued for violating international law, beginning with the maritime tradition of allowing lawsuits against the physical being of a ship itself, not its owners or crew.  Moreover, lawsuits against non-human entities also were being filed at the time in state courts, the brief said.

That document went on to find support for a right to sue corporations for human rights abuses in the Sosa decision itself, in the rulings of every other Circuit Court to address the question, in international law, and in the history of the ATS itself over its long stretch on the statute books.

In a rhetorical thrust, the Kiobel brief recalled the infamous Nazi corporation, I.G. Farben, noting that such German corporations showed that they were “as capable as natural persons of committing or abetting genocide and other human rights violations, and thus violating international law.”

Substantially aiding the Kiobel plea, the Justice Department has entered the case to join in calling for corporate liability under ATS.   It strongly disputed the Second Circuit’s finding that it simply had no jurisdiction to hear a case against a corporation under that old law, arguing that the scope of a law’s coverage is a merits issue, not a question that relates to the court’s fundamental power to rule.

After counseling the Court not to let any side issues get in the way of ruling upon the corporate liability question, the Department’s brief contended that the Sosa decision did not limit lawsuits under ATS to those in which there was already a generally accepted and well-defined principle of international law that corporations could be held liable for misconduct.  When the Court suggested in that case’s now-famous footnote 20 that any ATS claim had to rest upon an international norm, the government brief asserted, it did not mean to bar courts from interpreting their own common-law traditions to determine who could be liable for violation of international law.   The Court was only describing there what constituted such an international norm, not using that as a barrier to specific kinds of lawsuits, according to the brief.   In any event, it added, there is no current international law norm that distinguishes between natural and artificial persons, so corporations are deemed as capable as natural persons of violating international law.

While international criminal tribunals have limited their cases to prosecutions of natural persons, the brief said, that is because those cases involve matters that are unique to criminal punishment, not finding liability for misconduct not treated as criminal in nature.

Royal Dutch Shell and its trading subsidiary, in their brief on the merits, not surprisingly argued that the Sosa decision does, indeed, limit proper claims under the ATS to misconduct that violates a defined international law norm.   Any claim under the statute, it argued, must identify a specific international norm, and then show explicitly how it would violate that standard.   The Kiobel parties and the Justice Department are simply wrong in trying to read that out of the Sosa opinion, the Shell brief contended.

Turning to international law concepts, the Shell filing contended that there is a recognition of human rights violations, but those are recognized “only against states and natural persons, not against corporations.”  And, turning to domestic constitutional law, the brief noted that the Supreme Court has declined to create a right to sue corporations directly under the Constitution, even when no other law provides a remedy against such business entities.

Shell’s brief also sought to keep in the case two of the issues that the Justice Department had argued need not be addressed: whether an ATS lawsuit can be filed when it focused on misconduct that occurred entirely within a foreign country, rather than within the U.S. or on the high seas (the “extraterritoriality” issue), and whether ATS encompasses claims that a defendant “aided and abetted” misconduct by someone else.

On the first point, the brief for the oil companies argued that, for a U.S. law to have application beyond the nation’s borders, that must be stated explicitly by Congress, and there is no such clear statement in ATS.  That statute, it suggested, must be interpreted to avoid clashing with international law, and to avoid “adverse consequences to U.S. trade and foreign policy.” On the second point, the brief contended that international law recognizes such liability only when the secondary actor had a specific purpose in facilitating what the primary actor was alleged to have done.

Both sides in the case drew significant amici support, but most of it was quite predictable: civil liberties and human rights organizations favoring the Kiobel side, business organizations and conservative advocacy groups on the side of the oil companies, and with dueling briefs from law professors each choosing a side.   On the Kiobel side, there is a distinct tendency to try to push the Court’s attention to how domestic law, in the U.S. and abroad, creates substantial liability for corporations, and on the Shell side, there is an opposing tendency to lead the Court to focus on the evidence indicating that there is no international norm of corporate liability.   How the Justices may react to either of those forensic thrusts may depend upon how they interpret the Sosa decision, and whether or not they conclude that it demands an international law foundation for any ATS claim.

The amicus briefs on Shell’s side by the governments of Germany, Britain, and the Netherlands energetically support the argument that international law — whether civil or criminal — simply does not impose liability on corporations.   But the briefs go on to argue that, if the Court should find liability based upon U.S. domestic law (on which those governments say they have no opinion), then the foreign state briefs argue that there could be serious international implications in making such liability extend overseas to foreign companies — and some foreign governments, perhaps — involving only foreign conduct.   It is an argument that relied heavily upon the notion that a U.S. law does not reach beyond the nation’s shores unless Congress says so very clearly.  The German brief, in particular, argued that a ruling extending liability under U.S. laws would put great stress on the sovereignty of foreign governments.

The briefs on the merits in the Torture Victim Protection Act case are, by comparison with those in the Kiobel case on ATS, models of simplicity.   They depend very heavily upon what kinds of meanings can be teased out of a single word in the Act — “individual” — and they are not burdened by the seriously complicating influence of the Sosa precedent.

The Rahim family’s brief urged the Court not to look only at the word “individual,” but to see it in the context of collective liability for the acts of individuals.   It thus depended quite heavily upon the concept that corporations are liable because corporations act through their agents — that is, they act through individuals and are liable for their agents’ misconduct.  There is no indication, that document contended, that Congress intended in any way to deviate from normal concepts of organizational liability.

Every other federal law, and all treaties dealing with torture or “extrajudicial killing,” that brief argued, apply to corporations and individuals alike.  The torture act should not be made an exception to that approach, it contended.

The family brief put some emphasis on a policy argument: assuming that the Court finds in Kiobel that corporations can be sued under ATS, it would be strange indeed if, under the torture act, U.S. citizens were given fewer legal rights than those accorded to aliens.

The Palestinian Authority/PLO brief on the merits, aside from trying to fend off the rhetoric in its challengers’ briefs about what those say were the past excesses of misconduct by the PLO, strove to keep the Court’s attention on what it argued was a “purely legal question” — that is, what Congress meant when it used “individual” to establish potential liability for torture or extra-judicial killing.   If Congress had wanted to make political organizations and other non-human entities the targets of claims under the Act, it could have used the word “persons,” the Palestinian brief asserted.    The meaning of the word “individual,” that document said, is “so obvious” that in passing laws using that particular word, Congress seldom feels the need to define it.   State laws are the same, it noted.

Although there are few amici filings in the Mohamad case, those supporting the Rahim family interpretation are the more numerous, but the other side far more significantly has the support of the Justice Department.   The Department makes a down-the-line defense of the idea that Congress simply meant what it said when it deliberately chose the word “individual,” not “persons.”

Analysis

One issue in the Kiobel case is likely to be quite easy for the Court — that is, whether the reach of the Alien Tort Statute is a matter of federal court jurisdiction, as the Second Circuit found it to be.  Given the Court’s repeated habit of reading jurisdictional limits on federal courts very narrowly, the Justices are not likely to be longer deterred from reaching the merits of the corporate liability issue in that case.

And, although that case as it has developed on the liability issue is notably complex, that complexity could be gotten around quite easily, if the Court were to look back at its Sosa decision in 2004 and find in it a clear declaration of what a lawsuit filed under the Alien Tort Statute must claim in order to be allowed to go forward — in short, what it meant in footnote 20 and the accompanying text.  Both sides in the case have labored strenuously to read into Sosa very clear support for what each believes an ATS complaint must embrace, and their perceptions clearly conflict, but the mere fact that both can do so without making frivolous arguments suggests that Sosa is anything but a clear guidepost.

If the Court were to read Sosa as imposing a firm requirement that there must be solid proof that international law allows corporations to be sued for human rights violations, corporations might well win that argument; at least there are many briefs that seek to refute that notion.  But if the Court were to read Sosa as saying that the place to look for who is liable for such violations, and the extent of such liability, is domestic law, corporations might well lose; it is commonplace for corporations, in domestic law here and abroad, to be held legally to blame for clear misconduct.

The choice of arguments, it would seem, is clear-cut, and the Justices may simply need to choose one.

There is, though, a complicating factor here: will the Court find itself free to ignore the two issues that the Justice Department has told it to leave aside.  First is whether the Alien Tort Statute was intended by Congress to reach across the seas to foreign countries to deal with misconduct by foreign corporations entirely within their own countries, and, if so, whether Congress made that very clear in the ATS.  The second is whether, if corporations might potentially be liable under ATS, must they have been engaged in promoting atrocities before they may be held liable.    Those are not easy issues, but the answers might well favor those who are resisting corporate liability under the ATS.

At least on the surface of things, the Mohamad case seems very likely to be an easy one for the Court, because the choices available to the Justices seem so starkly in conflict.  For the Rahim family to win, “individual” has to be read to mean considerably more than it commonly does, and for the Palestinian entities to win, “individual” has to be read in the customary way.  For the family, policy preferences have to be more persuasive than the mere interpretation of language. For the Palestinian entities, a single word seems enough.

[Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents the petitioners in Mohamad.  The author of this post operates independently of the firm.]