Last Friday’s Second Circuit ruling in Kiobel v. Royal Dutch Petroleum, if upheld, could be the death knell for litigation seeking to hold corporations accountable for torture and other violations of customary international law under the Alien Tort Claims Act.
The plaintiffs, Nigerian nationals, brought suit against Royal Dutch and Shell Petroleum for aiding and abetting the Nigerian government in extrajudicial executions, torture, arbitrary arrest, and other acts of suppression against those protesting the environmental effects of oil exploration.
In affirming dismissal of the suit, the Second Circuit held that corporations cannot be held liable under the ATCA (or ATS) because customary international law only confers jurisdiction over natural persons. [WSJ] As in the recent Ninth Circuit ruling in Bowoto v. Chevron, which held that the Nigerian plaintiffs could not recover under the ATCA (because a different federal statute preempted their claims) or the Torture Victims Protection Act against Chevron for the wrongful deaths of protesters, the Second Circuit’s decision ends the plaintiffs’ possibilities for relief.
In Kiobel, the Second Circuit seems to have turned on their head historic justifications for individual criminal (as opposed to State) liability for grave violations of international law. The majority cites the Nuremberg tribunal as stating: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”, in order to support the majority’s dismissal of the suit based on its finding that international law “has never extended the scope of liability to a corporation”.
However, as the dissenting judge in Kiobel argues, “on many occasions [U.S.] courts have ruled in cases involving corporate defendants [in ATCA suits] in a manner that assumed without discussion that corporations could be liable”.