Supreme Court limits suits over foreign abusesBy MARK SHERMAN , Associated Press
Apr. 17, 2013 3:12 PM ET
WASHINGTON (AP) — The Supreme Court on Wednesday drastically limited the ability of foreign victims of human rights abuses to use American courts to seek accountability and monetary damages for their suffering.
The decision was a major victory for corporations that have been sued in the United States over their alleged role in foreign atrocities. The court undercut a more than 30-year-old strategy by human rights lawyers to use civil lawsuits to pursue individuals who may be responsible for torture and other atrocities, as well as companies with operations in countries with poor records in the area of human rights.
The justices unanimously agreed to shut down a lawsuit filed by Nigerians against Royal Dutch Petroleum, or Shell Oil, over claims that the company was complicit in murder and other abuses committed by the Nigerian government against its citizens in the oil-rich Niger Delta in the 1990s.
The suit is one of several pending claims against U.S. and international companies that invoke the 1789 Alien Tort Statute. Human rights lawyers have used the law to sue individuals who allegedly took part in abuses and, more recently, companies that do business in the United States as well as places where abuses occur.
Robert Loeb, a former Justice Department official and an expert on the issue, called the decision "a death knell for those cases" because it focuses on where the conduct took place.
Some human rights lawyers said the ruling may be limited to international businesses like Shell and they promised to push ahead with suits that target U.S. companies. "There are going to be categories of cases that have sufficient U.S. connections that they can be brought under the statute even if the human rights violations take place outside the U.S.," said Paul Hoffman, the lawyer who represented the Nigerians at the Supreme Court.
While all the justices agreed that the Nigerians' claims could not go forward, the court split sharply on the issue of whether the 224-year-old law generally could be used to sue over claimed human rights abuses in another country. Chief Justice John Roberts, writing for five justices, said that it could not.
Roberts said the law does not allow claims "seeking relief for violations of the law of nations occurring outside the United States."
Justice Stephen Breyer, in a separate opinion for four justices, agreed that the Nigerians' claims must not be accepted, but said he would leave the courthouse door open to lawsuits where alleged abuse "adversely affects an important American national interest." Breyer said that category "includes a distinct interest in preventing the United States from becoming a safe harbor ... for a torturer or other common enemy of mankind."
Energy and mining companies have been among the most frequent targets of these lawsuits in recent years following efforts by the military in Indonesia, Nigeria and elsewhere to clamp down on protests against oil and gas exploration and development.
Other cases pending in U.S. courts seek to hold accountable Chiquita Brands International for its relationship with paramilitary groups in Colombia; Exxon and Chevron for abuses in Indonesia and Nigeria, respectively; Britain-based mining concern Rio Tinto for allegedly aiding the Papua New Guinea government in a civil war; and several companies for their role in the old racial apartheid system in South Africa.
The Alien Tort Statute, adopted in part to deal with piracy claims, went unused for most of American history until rights lawyers dusted it off beginning in the late 1970s. The Supreme Court cautiously endorsed the use of the law in 2004, but left unanswered precisely who could be held liable and in what circumstances.
After Wednesday's decision, legal experts said the full scope of the ruling may not be entirely clear. But "the decision's most likely effect is to chill significantly the use of U.S. federal courts to remedy human rights violations that occur abroad," said Jonathan Hafetz, an international human rights expert who teaches law at Seton Hall University in South Orange, N.J.
Among the kinds of cases that still might be considered under the Alien Tort Statute are those that include U.S. contractors who are accused of taking part in atrocities abroad, said Eugene Kontorovich, a professor at Northwestern University Law School in Chicago.
Congress passed a separate law in 1992, the Torture Victims Protection Act, that says an individual who acts on behalf of a foreign nation can be held liable in a civil lawsuit for torturing or killing people. That law is unaffected by Wednesday's ruling.
Despite the unanimous judgment, the case produced four separate opinions. Roberts wrote for himself and fellow conservatives Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.
Kennedy wrote a brief opinion suggesting that the ruling leaves "open a number of significant questions regarding the reach and interpretation of the law." Alito, joined by Thomas, said he would have preferred an even broader opinion than Roberts.
Breyer's three liberal colleagues, Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, joined his opinion.
The justices first heard the case in February 2012 to consider whether businesses could be sued under the law. But the court asked for additional arguments about whether the law could be applied to any conduct that takes place abroad. A second argument took place in October.
The case is Kiobel v. Royal Dutch Petroleum, 10-1491.
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