Is Shell Oil too big to punish?
That’s the question that our friends at EarthRights International (ERI) asked during their recent campaign in which they called upon the U.S. Supreme Court to uphold human rights for people who have been exploited by big businesses.
In October of 2012, the U.S. Supreme Court heard arguments for Kiobel v. Royal Dutch Petroleum (Shell Oil). Shell, through its work with Nigeria’s military regime, was accused of killing nine peaceful protesters and the torture of countless others in the Ogoni region of the Niger Delta. Specifically, the plaintiffs of the case allege that “Shell bribed and tampered with witnesses and paid Nigerian security forces that attacked Ogoni villages.” The case was originally filed in 2002 by 12 Nigerian refugees who are now living in political asylum in the United States. The lead plaintiff, Esther Kiobel, was married to one of the “Ogoni Nine”—a group of nine activists from the Ogoni region of Nigeria who were executed by hanging in 1995 by the military dictatorship of General Sani Abacha.
“The case hinges on a law called the Alien Tort Statute (ATS), which allows foreign citizens to bring lawsuits in U.S. courts for violations of international law. Shell says the ATS doesn’t apply to them, simply because they are a corporation. Only two years after the Supreme Court used corporate personhood to grant corporations unprecedented influence over U.S. elections, Shell is asking the same nine judges to give corporations immunity from human rights litigation under the ATS.”
Let’s rewind for a moment. This case was originally filed in 2002 in federal court in New York. Shell moved to dismiss the case, but Judge Kimba Wood ruled in the fall of 2006 that Shell could actually be held liable for violating international law (specifically torture, arbitrary detention and crimes against humanity). Both Shell and the plaintiffs appealed the decision, sending the case to the U.S. Court of Appeals for the Second Circuit. In September 2010, the court ruled that corporations could not be sued under the ATS. That’s right—apparently, international human rights law doesn’t need to hold corporations responsible for human rights abuses they commit overseas. (If you want more detailed about this case and the history of the ATS, The Center for Justice and Accountability wrote this fantastic primer about it.)
The plaintiffs then appealed to the U.S. Supreme Court about whether the ATS could be used to hold U.S. corporations accountable for abuses that take place on foreign soil.
We are deeply disappointed that on April 17, the U.S. Supreme Court ruled in Kiobel v. Royal Dutch Petroleum (Shell Oil) that the ATS does not apply to corporations. Practically, this means that the ATS and the U.S. courts cannot provide justice for Nigerians who were victims of grave human rights abuses.
We know from Doe v. Unocal and other cases that the ATS has been a way for victims of human rights violations to access justice when they otherwise would have no chance to do so.
We support the continued efforts of our friends, Center for Justice and Accountability, EarthRights International and others in the international human rights legal community to safeguard human rights in the face of exploitation.
Anne Lieberman is a program associate for Asia at American Jewish World Service.