Supreme Court to Decide Whether Corporations Have Immunity for Crimes against Humanity

This week, the Supreme Court agreed to hear a case about whether a corporation can be sued, on the same basis as a human being, for its complicity in gross human rights abuses such as crimes against humanity and torture. The case, Kiobel v . Royal Dutch Petroleum, arises out of a military crackdown on Ogoni communities in the Niger Delta in the mid-1990s, which Shell Oil allegedly abetted.

Among these abuses were the execution of Dr. Barinem Kiobel, an Ogoni leader, alongside other Ogoni activists including renowned environmentalist Ken Saro-Wiwa. Shell allegedly bribed witnesses to give false testimony against the executed leaders.

Kiobel arises under the Alien Tort Statute (ATS), a federal law that allows the federal courts to hear cases brought by foreigners for violations of international law, including international human rights law. Courts have repeatedly allowed ATS cases for abuses such as torture, extrajudicial killings, war crimes, crimes against humanity, slavery, and genocide.

Until recently, no federal court had ever questioned that corporations have the same responsibilities under international law as human beings do. Last fall, however, a divided Second Circuit Court of Appeals ruled in Kiobel that Shell could not be sued for human rights violations. The majority opinion reasoned that corporations had never been prosecuted by any international court, and found no international legal norms that required corporate liability.

As the American Constitution Society has repeatedly documented, corporations have a very good track record in this Supreme Court. But there are reasons to believe that immunizing corporations for crimes against humanity, among other things, will be a bridge too far even for this court.

In the year since it was decided, Kiobel has come under serious attack, and upholding the decision would be an embarrassment. Immediately after the Second Circuit issued its decision, it was criticized by numerous amicusbriefs, including briefs submitted by scholars of the Nuremburg trials and by legal historians. In July of this year, the federal courts of appeals in the District of Columbia and in the Seventh Circuit both rejected the Kiobel decision.

The Seventh Circuit's decision is notable because its lead author is Judge Richard Posner, a highly influential conservative legal scholar and law professor at the University of Chicago. Judge Posner's decision, which labels Kiobel an "outlier," begins by noting that Kiobel's "factual premise" - that corporations have never been punished at the international level - is simply "incorrect." Following World War II, although corporations were not tried at Nuremburg, several corporations were actually dissolved by the Allies as punishment for their complicity in war crimes.

The decision by the District of Columbia Circuit similarly dismantles the reasoning of Kiobel, noting that it does not make sense to look to international law at all to answer the question of who can be sued in an ATS case. Corporations, after all, are created by domestic law, and their liabilities are defined by domestic law.

Corporate "personhood" has been rightly criticized for many reasons, and the notion that a corporation is equivalent to a human being has led to consequences such as the Supreme Court's decision last year in Citizens United v. Federal Election Commission. But the flip side of corporate rights is corporate responsibilities, and for over a century it has been a bedrock principle of American law that when corporations cause harm they can be sued just like human beings.

In order to uphold Kiobel, the Supreme Court would need to create a rule of corporate immunity - that a corporation is exempt from liability for doing things that an ordinary human being could be sued for. There is no support for such an idea in American or international law, and such a decision would further erode the Court's public image.

http://www.acslaw.org/acsblog/supreme-court-to-decide-whether-corporations-have-immunity-for-crimes-against-humanity

If the Supreme Court rules in favor of Kiobel, it will be open season on all the oil companies subjected to American law. This will, in no doubt, clean up their acts!