A Question of Accountability: The Clinic’s Take on the Alien Tort Statute

Note: this article was written by Cara Solomon and originally published in Harvard Law Bulletin

A Question of Accountability

In a Supreme Court case, the International Human Rights Clinic argues that the Alien Tort Statute applies to corporations

It started off with an insult: A French adventurer, standing in the streets of Philadelphia, called the ambassador of France a nasty name. And perhaps if it had ended there, the Alien Tort Statute might never have come to be.

But language was not enough for the Chevalier de Longchamps, who was nursing a grudge. He lunged toward the ambassador. He hit the ambassador’s cane with his own. And in assaulting a foreign ambassador, Longchamps committed a violation of the law of nations.

It was 1784. The incident in Philadelphia drew international attention; then condemnation; then ridicule, as the Continental Congress lacked the power to take meaningful action in response.

Five years later, as part of the First Judiciary Act, the founders sent a strong message with what they called the Alien Tort Statute: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

It was an important gesture to the international community—a symbol of solidarity, historians would say: We will open up our new federal court system to victims of violations of the law of nations. The United States had arrived.

Part I

On the morning of Feb. 28, 2012, a team from Harvard Law School’s International Human Rights Clinic took their seats in the U.S. Supreme Court. Sitting directly behind petitioners’ counsel were Clinical Professor Tyler Giannini and Assistant Clinical Professor Susan Farbstein ’04, nationally recognized leaders in Alien Tort Statute litigation, and co-directors of the clinic.

They had waited months to hear oral arguments in Kiobel v. Royal Dutch Petroleum Co., a case that would test the limits of the centuries-old ATS. It was the highest-profile human rights case to come before the Supreme Court in years.

Even before the Court granted certiorari, Kiobel had become an international flash point for the debate on corporate accountability, generating nearly 40 amicus briefs analyzing the ATS from every angle—foreign policy, the global economy, the international human rights movement. HLS staff, students and alumni were involved on both sides of the issue. For its part, the clinic filed a brief on behalf of legal historians, in support of petitioners.

Illustration by Justin Renteria, courtesy of Harvard Law Bulletin

“What’s at stake in Kiobel is the future of the ATS itself, and whether it will remain an example of how the United States takes its international legal obligations seriously,” said Farbstein.

Kiobel began like any other ATS case in recent memory—with allegations against a company or an individual for violations of international law. Esther Kiobel and 11 other members of the Ogoni people in Nigeria filed suit

against Shell in 2002, alleging crimes against humanity, including complicity in torture and extrajudicial executions. At issue: the company’s actions from 1992 to 1995, when the Ogoni were protesting oil development activities on their land.

Because Shell does much of its business in the United States, the courts agreed to hear the case. But on appeal, the 2nd Circuit turned its attention away from the case and toward the statute itself, dismissing Kiobel on the grounds that corporations could not be held liable under the ATS.

For observers of the ATS, this came as a surprise: For years, courts had allowed cases to proceed on the presumption that corporations were as liable as individuals for violations of international law.

“No one had really questioned it,” said Jenny Martinez ’97, a professor at Stanford Law School and one of the amici represented by the clinic. “It did seem rather obvious.”

After the 2nd Circuit’s ruling, other appellate courts went in the opposite direction, finding corporate liability perm

issible under the ATS—in cases against Exxon Mobil Corp. for violence in Indonesia, the Rio Tinto mining group for violence in Papua New Guinea, and Firestone tire company for child labor in West Africa.

“It was clear from the split in the lower courts that the question in Kiobel—whether a corporation could be held liable—was a central and fundamental threshold question that had to be clarified,” said Giannini.

Sooner or later, he said, the issue was headed to the Supreme Court.

Update: Kiobel Transcript, Plus Media Coverage of the Case

Posted by Cara Solomon

For all of you Kiobel watchers, here’s the transcript for this morning’s argument before the U.S. Supreme Court. We’ll post Tyler and Susan’s take on the questioning as soon as we can.

Esther Kiobel speaks in front of the Supreme Court today. (Photo Credit: Too Big To Punish?)

In the meantime, here’s some media coverage of the case, some of it published before the arguments and some of it published afterward. We were particularly pleased to see Desmond Tutu’s opinion piece in USA Today, which has clearly been making the rounds.

OPINION

Desmond Tutu, USA Today: “Will U.S. Rule for Rights of South Africans?”

Jodie Kirshner, The Christian Science Monitor: “Supreme Court Case Tests U.S. Leadership in Human Rights”

EDITORIALS

The New York Times: “Justice Under the Law of Nations”

The New York Times: “October Term 2012”

ARTICLES

L.A. Times: “Supreme Court Weighs Whether Foreign Victims Can Sue in U.S.”

Slate: “Torture Inc.”

SCOTUSblog: “Argument Recap: In Search of an ATS Compromise”

Reuters: “Supreme Court May Narrow Law in Human Rights Cases”

Supreme Court to Hear Kiobel Again Tomorrow: Much More at Stake the Second Time Around

Posted by Tyler Giannini and Susan Farbstein

NOTE: The post below was originally published Saturday on Justice Watch, a project of the Alliance for Justice. For more on the Kiobel case, including the most recent amicus briefs submitted to the U.S. Supreme Court, please click here.

Supreme Court to Hear Major Human Rights Case Again: Much More at Stake the Second Time Around

Guest Post by Tyler Giannini & Susan Farbstein

The Supreme Court will open its new term on Monday.  The first argument it hears will be Kiobel v. Royal Dutch Petroleum Co., the most significant human rights case to reach the Court in recent years.  Intense interest in the case has generated more than 80 amicus curiae briefs from a range of actors around the world, including governments, human rights organizations, and corporations.  Kiobel is especially intriguing not only because of the human rights issues at stake, but also because it will be the Court’s secondtime hearing oral argument in the matter.  This is a rarity; the last example was Citizen United, the major campaign finance case.

What are the issues?

Kiobel is an Alien Tort Statute (“ATS”) suit based on a 1789 statute that allows non-U.S. citizens to bring civil claims in U.S. federal courts for universally recognized violations of international law.  The case arises out of allegations that Royal Dutch/Shell was complicit in killings and other abuses by the Nigerian government in the 1990s.  The Court first heard Kiobel last February, addressing the question of whether corporations can be held liable under the statute.  But in an unusual move, a week later the Court requested supplemental briefing and a second oral argument.

At the first oral argument in February, it quickly became clear that some of the justices were interested in additional questions beyond corporate liability.  Specifically, they asked about whether the ATS permits claims that arise out of actions that take place on foreign soil (in this case, Nigeria).  This question—whether, and when, the ATS allows such suits—was the focus of the supplemental briefing and will be addressed in the second oral argument.

As the Petitioners and their amici have explained, the text of the statute, as well as its history, show that the ATS does allow for cases arising on foreign soil.  It was intended to provide a remedy for universal violations, including piracy, which by definition occur outside the United States.  For example, one of the earliest interpretations of the ATS, by Attorney General William Bradford in 1795, involved pillage and plunder committed during a raid on the British colony of Sierra Leone.

What is at stake?

On the question of corporate liability, Shell’s lawyers have advocated for a categorical rule: there should be no corporate liability under the statute under any circumstances.  Shell’s lawyers are proposing a similarly absolutist rule on the question of extraterritoriality: plaintiffs should never be allowed to bring ATS claims for violations occurring outside the United States.  This view is in opposition to the U.S. government’s position, and has drawn the attention of numerous commentators, including John Ruggie, the former UN Special Representative on business and human rights, who views Shell’s position as “extraordinarily far-reaching.”

Shell’s views raise the stakes of the case.  Its stance on corporate liability departs from more than fifteen years of corporate ATS jurisprudence.  But Shell’s proposed rule on extraterritoriality would be an even more profound reversal, departing from more than thirty years of ATS case law.

The first seminal ATS case—Filártiga, considered the Brown v. Board of international human rights litigation in U.S. courts—launched the modern era of ATS jurisprudence in 1980.  Dolly Filártiga brought her case in New York against the Paraguayan police official who had tortured her brother to death.  The court’s decision was rooted in the notion that today’s torturers, like eighteenth century pirates, are the enemies of all mankind.  Filártiga was endorsed by the Supreme Court in its 2004 ATS decision, Sosa v. Alaverez-Machain.

The categorical rule now advanced by Shell would close the door to remedies for plaintiffs like Dolly Filártiga, who wrote before Sosa: “I am proud to live in a country where human rights are respected, where there is a way to bring to justice people who have committed horrible atrocities.  Now it is up to the Supreme Court to ensure that truth will continue to triumph over terror.”  Her sentiments remain as moving today as they did then.

What might happen?

As with so many cases, it is difficult to make predictions, but most commentators are focused on Justice Anthony Kennedy as the critical swing vote.  Justice Kennedy has been a supporter of international law and joined the majority in Sosa, which allowed ATS claims to proceed in narrow circumstances for well-recognized violations of international law.  At the same time, Justice Kennedy and the Court have been notably sympathetic to corporate interests in recent years.  After Monday, we may have a better sense of what to expect in Kiobel.

The Sosa Court left the door ajar to ATS suits for universal violations, whether piracy or genocide, whether committed outside the United States or within its borders.  This Court should do the same.  Survivors of torture, extrajudicial killing, crimes against humanity, and war crimes deserve the opportunity to obtain justice in U.S. courts, just as Dolly Filártiga did more than thirty years ago.

Tyler Giannini and Susan Farbstein are the co-directors of the International Human Rights Clinic at Harvard Law School.  They are currently co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the Petitioners in Kiobel v. Royal Dutch Petroleum Co.  Giannini served as one of the architects of Doe v. Unocal, a precedent-setting suit that settled in 2005.  Farbstein was a member of the legal team in Wiwa v. Royal Dutch Petroleum Co., the companion case to Kiobel that settled in 2009.   

Performance Art (and Other Pictures from HRP Orientation)

Posted by Cara Solomon

Here’s a Friday afternoon treat for you: an iconic image from the law school experience.

When Fernando spotted this display at our recent HRP Orientation, he rightly described it as a piece of performance art—except, of course, that it wasn’t.

Below are some other images from the event. Apologies in advance for the poor picture quality, and a belated thanks to all who came, learned, and ate. We were so happy to have you there.

Tyler talks to a full house at HRP Orientation.Thanks for coming!

Fernando speaks with students about his work on prison reform in Brazil.

Mindy and Deborah speak with a student about (I’m guessing here) their fall seminar on Gender and Human Rights.

Ana Lise Feliciano Hansen and James Tager, co-presidents of HLS Advocates for Human Rights, speak with a student about the group’s work. My bet is that James is saying something odd here. Hence, the laugh.

Meera speaks with a student about her projects in the Middle East.

Giannini and Neuman appointed co-directors of the Human Rights Program

Posted by Harvard Law School Communications

Tyler Giannini, Clinical Professor of Law, and Gerald L. Neuman ’80, J. Sinclair Armstrong Professor of International, Foreign and Comparative Law, have been appointed co-directors of the Human Rights Program (HRP) at Harvard Law School.

Said HLS Dean Martha Minow: “I’m delighted to announce Gerry Neuman and Tyler Giannini as co-directors of Harvard’s Human Rights Program. Tyler is a pioneer in the development of theories of liability in the field of human rights, and his efforts have guided our path-breaking clinic and he has collaborated with clinical students and superb colleagues in human rights advocacy pursuing all the available tools—investigations, litigation, media, and coalition-building. Gerry’s distinguished scholarship spans human rights, constitutional law, and regulations of immigration and refugees; his immense expertise in international human rights law includes his invaluable contributions and experiences as a member of the UN’s Human Rights Committee. Outstanding as individuals, Tyler and Gerry are an amazing team, and I look forward to the new initiatives emerging through their collaboration and leadership.”

HRP is the central venue for international human rights work at Harvard Law School, offering students a range of opportunities to engage in academic pursuits and to apply theory to practice, both on campus and abroad. By fostering scholarship, engagement with pressing issues, and training in human rights advocacy, HRP’s faculty has worked for decades to educate students who will become leaders of the human rights movement. Now in its 28th year, HRP was founded by Emeritus Professor Henry Steiner ’55.

“I cannot think of two better people than Gerald Neuman and Tyler Giannini to continue to strengthen HRP as one of the premiere human rights programs in the world,” said Lisa Dealy, assistant dean of Clinical and Pro Bono Programs. “Having them both at the helm of this joint directorship ensures that the International Human Rights Clinic is closely integrated with the academic Human Rights Program, which is greatly beneficial to both the practice on the ground and the broader study of human rights law.”

“It’s an honor to be part of HRP and its long tradition of excellence,” Giannini said. “HRP represents the very best in the Law School’s efforts to combine scholarship and practice in an academic setting. HRP is a place where scholarship is informed by practice through our International Human Rights Clinic, and just as importantly, the efforts of our Clinic are enriched greatly by HRP’s engagement with intellectual pursuits.”

Said Neuman: “I am excited about continuing the Human Rights Program’s tradition of intellectually rigorous engagement with the field of human rights advocacy and implementation. I also hope to build stronger connections with the wider academic community here at HLS, and in the University more generally.”

SCOTUSblog: The ATS and the Importance of Historical Evidence

Posted by Cara Solomon

NOTE: Tyler and Susan wrote the following post for SCOTUSblog’s online symposium on Kiobel. For all symposium posts, please see here.

At February’s oral argument in Kiobel v. Royal Dutch Petroleum Co., counsel for the petitioners responded to questions about extraterritoriality by citing the incident in Sierra Leone that led to the well-known 1795 opinion of Attorney General William Bradford. That exchange appears to have sparked the Supreme Court’s request for supplemental briefing on whether the Alien Tort Statute (ATS) applies to acts that arise on foreign territory. History, including the so-called Bradford Opinion, provides strong evidence that the ATS does apply to conduct occurring on foreign soil.

History has long been a critical part of ATS jurisprudence, given that the statute dates to 1789. Sosa guides that any ATS cause of action must be for violations of the law of nations as universally recognized as eighteenth-century paradigms, such as piracy. The text and purpose of the statute, the common law of the era, and the Bradford Opinion provide the relevant insight into the Justices’ current question about claims that arise in foreign lands – and indicate that there would have been no territorial limit on the ATS at the time of the statute’s enactment.

The Framers of the ATS were common-law lawyers, and the law of nations was part of the common law of the time. They would not have embraced a bright line, categorical exclusion of all claims arising on foreign territory – whether in a case between two aliens or some other combination of defendant and plaintiff. Instead, the Framers would have been familiar with fashioning remedies to realize the statute’s broad remedial purpose, providing relief in U.S. courts to aliens who suffered violations of international law. Indeed, as Justice Stephen Breyer noted at oral argument when he quoted from the 1666 English Skinner case, courts of the day were familiar with fundamental notions of justice and crafted common-law remedies for violations “odious and punishable by all laws of God and man.”

The language of the text itself reinforces that the Framers did not contemplate a territorial limit on the ATS. At the time of the statute’s passage, the word “tort” embraced well-recognized transitory tort principles providing that, in furtherance of justice, personal injury torts were triable wherever a defendant could be found. The young United States did not wish to harbor a pirate or slave trader considered the enemy of all mankind. Through the ATS, the founders willingly took up its responsibility to enforce international law through American courts. Likewise, the use of the words “law of nations” indicates that the Framers intended to provide remedies for universally condemned violations of international law. Taken together, the early piracy cases of Palmer and Smith show that when Congress used the term “law of nations” in a statute, it meant for U.S. courts to exercise jurisdiction and enforce internationally prohibited norms to their fullest extent.

Critically, eighteenth-century interpretations of the statute confirm that there was no territorial limit on its application. The Sosa Court recognized the 1795 Bradford Opinion as the most influential early application of the ATS. At oral argument (at 10:24) in February, counsel for the petitioners “suggest[ed] to the Court, [that] if the Court went back to the original documents that . . . were sent to Attorney General Bradford . . . from the British government . . . the Court would find that . . . this attack actually took place in the territory of Sierra Leone.” Archival documents, unearthed prior to oral argument, put to rest any doubt: Bradford was proposing an ATS action for incidents that arose on land in British Sierra Leone.

Bradford’s Opinion was prompted by a British complaint from George Hammond, “his Britannic Majesty’s minister plenipotentiary to the Secretary of State,” seeking redress from the United States for American participation in a raid on the British Sierra Leone colony. Included with the complaint was a Memorial from the acting Governor of the Sierra Leone Company, Zachary Macaulay, and the agent of the proprietors of Bance Island (an island several miles up the Sierra Leone River), John Tilley. The Memorial describes how, on September 28, 1794, three Americans “voluntarily join[ed] themselves to the French fleet, and . . . attack[ed] and destroy[ed] the property of British subjects” in the British territory of Freetown and Bance Island, Sierra Leone. Among other offenses, one was “active in exciting the French soldiery to the commission of excesses, and was aiding and abetting in plundering of their property[,] the Honble [sic] the Sierra Leone Company and other individuals[,] British subjects.” Another “instigated to the commission of enormities by every mean [sic] in his power, often declaring that his heart’s desire was to wring his hands in the blood of Englishmen.”

In a document accompanying the Macaulay and Tilley Memorial, Hammond protested that these acts were “contrary to all the principles of Justice and all the established rules of neutrality.” The British were particularly aggrieved because the Americans had “taken so decided and leading a part in the business” that the French “appear rather in the light of Instruments of hostility in [the American] hands than as Principals in an enterprise undertaken against the Colony of a Power with whom France only was at war.”

Bradford’s opinion concludes that the United States had a duty to provide a remedy because “committing, aiding, or abetting hostilities” like those in Sierra Leone “render[ed the perpetrators] liable to punishment under the law of nations.” Bradford expressed “no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the law of nations.”

In short, the Bradford Opinion shows that historically the ATS could be used to remedy misconduct committed in a foreign country. Some have noted that Bradford was responding specifically to complaints about American actions. But there is no indication that Bradford would have treated nationals of another neutral country who fled to the United States any differently. Given the purpose of the ATS, it beggars belief to contend as much.

Courts in the modern era have consistently and correctly understood this history. Virtually every ATS case, including Filártiga and Sosa, has concerned abuses committed abroad. Courts have found the citizenship of the defendant and the locus of the conduct to be irrelevant.

Plainly put, history answers the questions raised in the request for supplemental briefing: Archival documents, as well as the text and purpose of the statute, confirm that the ATS provides redress for torts in violation of the law of nations occurring in foreign lands.

Clinic Graduates Honored for Community Service

Posted by Cara Solomon

A little late but no less heartfelt, here is our huge congratulations to Daniel Saver, Poppy Alexander, and Yonina Alexander for the community service awards they won last week.

Daniel was a co-recipient of the Frank S. Righeimer, Jr. Prize for Student Citizenship. Established in memory of Frank S. Righeimer, Jr. ’32, the prize is awarded annually to a graduating student or students in recognition of exceptional citizenship.

Poppy and Yonina received the Dean’s Award for Community Leadership, given to graduates who have contributed time and energy to making the HLS community a better place through involvement in student organizations, community service groups, and individual efforts.

Daniel, Poppy, and Yonina have been fixtures at the Clinic since their 2L year–talented and tireless in the way they approach the fight for human rights. They’ve worked on more than a dozen clinical projects between them, from Alien Tort Statute litigation related to violations in Bolivia and Nigeria, to fact-finding in South Africa and along the Thai/Burma border, to efforts to support indigenous rights in Chile.

They’re also just a lot of fun to have around the office, which is good, because they were around the office A LOT. And they continue to be, even now that they have graduated; it’s all hands on deck for the latest amicus curiae brief in the Kiobel case, due to the Supreme Court in mid-June.

Big Moments, Small Moments That Make Up A Year

Posted by Tyler Giannini

Big moments, small moments; during graduation week, we are often flooded with the memories we have created over the past year, working closely with students.  It seems like a natural time to reflect.  But where to start when there are so many good memories?

I think about the small moments in the field, like when a student makes a breakthrough.  Earlier this year, I was shadowing two students in Thailand as they interviewed a refugee through a translator, and the student leading the interview kept turning to me, asking for advice.  I told her to stop; I told her she could do this—I had seen her do it—and that she needed to work now with her partner, not me.  She finally got it, trusting herself and the talent and skills she already possessed.

I think about the seemingly small moments in advocacy work that do not get a lot of media attention but are major victories for the protection of civilians, like when Bonnie and her team of students joined a group of nongovernmental organizations in defeating a proposal that would have weakened the absolute ban on cluster munitions.  For the students in Geneva who opposed the proposal, the moment—indeed the precise minute—it was defeated is indelibly etched in their minds: 7:05pm on Friday, November 25, 2011. The students wrote about it here.

I think about the big moments that come together after years of effort with partners, like the groundbreaking work out of Latin America that Fernando and Deborah did this year with several crack teams of students.  In August, they obtained critical measures from the Inter-American Commission on Human Rights to protect prisoners at the largest detention center in Latin America. Then, within weeks, they turned around and, working with their local partners, helped strike a landmark settlement with the state of Brazil that promises large-scale reform within the infamous Urso Branco Prison.

Susan Farbstein Appointed Assistant Clinical Professor and Co-Director of the International Human Rights Clinic

Posted by Martha Minow, Dean, Harvard Law School, and Tyler Giannini

As a teacher, a mentor, a clinician, and a colleague, Susan Farbstein has already made her mark on the Human Rights Program over the past four years. Today we have the privilege of announcing that she has been appointed as an Assistant Clinical Professor at Harvard Law School and will become a Co-Director of its International Human Rights Clinic. We look forward to many more years of her leadership, both within the Human Rights Program, and in the larger Law School community.

Susan Farbstein speaks with a student at the Human Rights Program orientation last autumn. Farbstein is a national leader in the area of Alien Tort Statute litigation.

Click here for the full story on the Harvard Law School homepage.

For the many blog posts written by Susan (and about Susan) click here.

U.S. Supreme Court Decides Mohamad v. Palestinian Authority

Posted by Susan Farbstein and Tyler Giannini

In a 9-0 decision authored by Justice Sotomayor, the U.S. Supreme Court has ruled that the use of the term “individual” in the Torture Victim Protection Act (TVPA) encompasses only natural persons.  Consequently, the TVPA does not impose liability against organizations for acts of torture and extrajudicial killing.  The full decision is available here.