Justices Skeptical of Bringing Torture Cases to U.S. Courts

Share This Article!

Written By admin at Tuesday, February 28th, 2012

Here’s a dispatch from WSJ’s Jess Bravin, who covered the arguments involving the Alien Tort Statute at the Supreme Court on Tuesday.

Torture victims faced skepticism at the Supreme Court Tuesday, where justices questioned whether foreign organizations, including the oil giant Royal Dutch Shell PLC and the Palestinian Authority, could be sued for violating international law under U.S. statutes dating to the 18th century.

The Alien Tort Statute, adopted by the First Congress in 1789, permits foreigners to sue in federal court for violations of treaties or the “law of nations,” which today is understood to prohibit torture, genocide and crimes against humanity. More than two centuries later, President George H.W. Bush signed the Torture Victim Protection Act, authorizing U.S. citizens and aliens alike to sue perpetrators of torture and “extrajudicial killing” overseas.

While individuals have been sued under both statutes, their language is at best ambiguous when it comes to organizations, and no U.S. or international-law precedents point to a definitive answer. That left some of the sharpest legal minds—including two Stanford law professors arguing opposite sides of the question—to wrestle with such elementary questions as the definition of the word “individual.”

In one case, Nigerian citizens invoked the Alien Tort Statute to sue Shell for alleged connections to the Nigerian military’s “widespread and systematic campaign of torture, extrajudicial executions, prolonged arbitrary detention, and indiscriminate killings” to suppress a protest movement in the Ogoni region, where Shell has been pumping oil since the 1950s.

The second case involves a naturalized U.S. citizen, Rahim Mohamad, who allegedly was tortured and killed by Palestinian security officers during a 1995 visit to the West Bank, where he was born. Mr. Mohamad’s survivors sued under the Torture Victim Protection Act.

The Supreme Court’s majority conservatives have been reluctant to open U.S. courts to human-rights claims arising through international law and several reiterated their concerns Tuesday.

“The first sentence in your…statement of the case is really striking,” said Justice Samuel Alito. Reading from it, he said, “This case was filed by 12 Nigerian plaintiffs who alleged that [Shell] aided and abetted the human rights violations committed against them by the Abacha  dictatorship in Nigeria between 1992 and 1995.” He then asked, “What business does a case like that have in the courts of the United States?”

Justice Alito said the 1789 law originated, in part, as an effort to ensure foreign diplomats that their rights would be protected in the U.S., not to make American courts a venue to resolve disputes with no U.S. connection.

Paul Hoffman, the Venice, Calif., attorney representing the Nigerians, said the law aimed to demonstrate “this country’s commitment to international law as a new member of the community of nations.”

“Do you really that think the First Congress wanted victims of the French Revolution to be able to sue French defendants in the courts of the United States?” Justice Alito retorted.

Whatever its motivation, the Alien Tort Statute is a unique innovation of American law. It lay dormant until the 1970s, when human rights lawyers began employing it against alleged torturers under the broader international law framework that developed after World War II.

Mr. Hoffman argued that other nations allow corporate liability for misdeeds abroad, and that no international-law rulings immunize corporations for human-rights violations.

Shell’s attorney, Kathleen Sullivan, a corporate litigator and Stanford professor, argued the opposite side of that coin. No international law precedents authorize corporate liability, either, she said.

“That’s mostly because all of these are written to prohibit certain acts,” rather than who commits them, said Justice Elena Kagan. By analogy, Shell’s argument amounted to saying that Norwegians couldn’t be held liable for crimes against humanity, because “there’s no case about Norwegians,” she said. “But, of course, it applies to Norwegians because it prevents everybody from committing a certain kind of act.”

In the second case, Mr. Mohamad’s lawyer, Jeffrey Fisher, tried to persuade the justices that references to “individual liability” in the Torture Victim Protection Act also covered actions by organizations like the Palestinian Authority.

But several justices said Congress generally used the term “person” when they intended to include corporations or other groups, while “individual” meant a single human actor.

The Obama administration argued that corporations could be liable under the Alien Tort Statute, but not under the Torture Victim Protection Act. Justice Alito observed that the government’s position meant an alien could recover where a U.S. citizen would have no remedy.

Justice Department lawyer Curtis Gannon said that apparent anomaly resulted from textual differences between the two statutes.

Too bad, then, that Mr. Rahim became a U.S. citizen, Justice Alito said. “I guess that was a mistake.”

Decisions in the cases, Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority, are expected before July.

Law Blog