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Valerie Brender

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Supreme Court: Are Corporations Liable for Aiding and Abetting Crimes Against Humanity?

Posted: 02/28/2012 6:08 pm

In 2002, Esther Kiobel, a U.S. resident and the wife of deceased Dr. Barinem Kiobel, filed a lawsuit along with other Ogoni asylees against Shell corporation. Her lawsuit was filed under the Alien Tort Statute (ATS), a 200-year-old law that has been interpreted by the Supreme Court to allow federal lawsuits for modern-day egregious international law violations. The Ogoni plaintiffs allege that Shell planned, conspired, and facilitated the Nigerian government's extrajudicial executions, crimes against humanity, and torture against the Ogoni people. Shell argues that corporations cannot be sued under the ATS.

On February 28, 2012, the Supreme Court heard the case, Kiobel v. Royal Dutch Petroleum. Royal Dutch Petroleum is Shell's parent corporation.

The Ogoni people have endured a protracted battle with Shell in Nigeria. In 1996, the U.N. High Commissioner for Refugees (UNHCR) reported that 800 Ogoni -- a minority group in Nigeria -- fled their oil-rich land in the Niger Delta for a refugee camp in Benin. This flight occurred in the wake of the execution of Ken Saro-Wiwa, an Ogoni writer and activist, and Dr. Kiobel, a member of the local government. Both of these men protested the tactics used by Nigerian security forces to protect the exploration and investment of the oil giant.

As president of the Movement for the Survival of the Ogoni People (MOSOP), Saro-Wiwa challenged the environmental destruction caused by Shell's presence in Ogoniland and Shell's treatment of the Ogoni people. Dr. Kiobel objected to the violence used against Ogoni protesters. Reports suggested that by 1999, as many as 30,000 ethnic Ogonis had been displaced by state violence.

In 2011, the United Nations Environmental Programme reported that carcinogens in local well water were at 900 times the recommended levels in some places and that a cleanup of Ogoniland would cost at least $1 billion.

Throughout the 1990s, the United States granted asylum to a number of Ogonis who were escaping discrimination and persecution in relation to their protest activities. Esther Kiobel and other plaintiffs in the Kiobel lawsuit were among the asylees.

The plaintiffs must prove to a court that they actually suffered the violations alleged and that Shell aided and abetted these violations. However, an appeals court ruled that Shell should prevail because, even if the oil company did aid and abet the Nigerian government in its assault on the Ogoni people, it cannot be held liable under the ATS. Shell's argument to the Supreme Court is that corporations cannot commit crimes against humanity or torture under customary international law.

An array of amicus briefs in support of the litigants have been filed on both sides. The U.S. government, Nobel Economics Prize winner Joseph Stiglitz, numerous international law and legal history scholars, and human rights advocates (including the U.N. High Commissioner for Human Rights) have written in favor of the Ogoni plaintiffs. Shell's position is supported by another group of international law scholars, several foreign governments, and at least a dozen of the world's largest multinational corporations.

For anyone who has followed ATS litigation, the multinational corporations look familiar; many of them have been sued under the ATS.

For example, Kellogg Brown & Root (KBR), a former subsidiary of Halliburton, filed a brief in support of Shell that argues that "private corporations are outside the scope of liability for violations of human rights norms under international law." KBR has been sued under the ATS for allegedly participating in a trafficking scheme while fulfilling its military contracts in Iraq and Afghanistan. In 2004, insurgents executed 12 Nepali workers who were in route to Iraq. Many of the workers were led to believe that they were destined for luxury hotels in Amman, Jordan. According to the one surviving worker, KBR was their ultimate employer in Iraq. The ATS claims in the lawsuit on behalf of the workers would be dismissed if the Supreme Court rules in Kiobel that corporate liability does not exist under the statute.

Many commentators have pointed out the ironic juxtaposition of the Kiobel case with Citizens United, a case that broadened corporate rights under the First Amendment. The sentiment is that corporations seem to enjoy expanding rights under U.S. law, while they simultaneously lobby for reduced liability.

Whatever happens with the Kiobel decision, it will be a watershed moment for corporate accountability. As Charles Wiwa, nephew of Ken Saro-Wiwa and party to the Kiobel lawsuit told the Associated Press, "Nigeria gets so much money from oil. There is no way the company will be held liable for anything in courts in Nigeria." For many victims, the ATS still feels like their last option when no other forum will vindicate their rights.

Full disclosure: The author has worked as student intern with plaintiffs' lawyers on ATS lawsuits and writes from that background perspective.