Kiobel v. Shell Tests Corporate Personhood
Huffington Post, Feb. 28, 2012
If corporations have rights then surely they have responsibilities too. Yet in a case before the Supreme Court Feb. 28, lawyers for petroleum giant Shell will argue that corporations are immune from laws that prohibit complicity in human rights violations and crimes against humanity.
As a human rights lawyer who has helped survivors of torture, rape and slavery sue their corporate abusers for over 15 years, I thought I had heard every defense in the book. But this morning, I’ll be sitting in the Supreme Court listening to Shell’s lawyers argue to our nation’s highest court that companies should get to have it both ways: rights when it benefits them, but no responsibilities for abuse.
Is it just me, or is there something seriously wrong with this picture?
The case, Kiobel v. Royal Dutch Petroleum, arises out of allegations of Shell’s complicity in torture and extrajudicial killing in Nigeria during the 1990s. The lead Plaintiff is the wife of the late Dr. Barinem Kiobel, one of the “Ogoni Nine” who, along with renowned environmentalist and playwright Ken Saro-Wiwa, were hanged by the Nigerian military junta in November 1995. Mrs. Kiobel and others are simply asking for a chance to present their evidence that Shell conspired with the Nigerian military to arrest, torture and kill their family members so as to silence their opposition to Shell’s destructive activities in the oil-rich Niger Delta. They have brought their suit under the Alien Tort Statute (ATS), a law that has allowed victims and survivors of human rights abuses to seek justice in U.S. courts for some 30 years.
I was one of the lawyers who helped bring the first successful ATS case against a corporation when my organization, EarthRights International, sued Unocal (now Chevron) in 1996 for its complicity in rape, torture, killing and forced labor in Burma (Myanmar). My clients included men and women who were forced by the Burmese army to work on roads, helipads and other infrastructure for Unocal’s gas pipeline there; who were raped and tortured by Burmese soldiers providing “security” for the pipeline; whose family members were killed by army units hired by Unocal to procure labor and protect the pipeline. Since that case, known as Doe v. Unocal, victims and survivors have used the ATS to seek justice from corporations allegedly involved in terrorist attacks, torture, genocide, slavery and abusive child labor, among many other egregious harms that no corporation governed by the rule of law would ever condone.
Or would they? How anyone could argue with a straight face that they shouldn’t be held responsible for such abhorrent behavior is almost beyond comprehension. Yet that’s precisely what Shell and their corporate supporters have been insisting in their legal briefs and what they will argue to the court today. Not surprisingly, there has been quite a bit of media attention in the lead up to today’s case, and the arguments from both sides are striking in their difference. On the human rights side are stories of real people who have suffered painful abuses, such as my Jane Doe I; or the story of young Joelito Filartiga, whose family sued the Paraguayan police officer who tortured their son to death. On the other side are the corporations who raise arguments about the extraterritorial application of U.S. laws and the ways in which such cases interfere with the Executive Branch’s diplomatic efforts abroad. These arguments are especially unconvincing, as the Obama administration will be arguing today in favor of ATS cases against corporations, and submitted a brief to that extent as well.
EarthRights International also submitted an amicus brief in this case and we certainly have a deep interest in its outcome. From our clients in Colombia, who are suing Chiquita for financing terrorist death squads, to our clients from Burma whose bravery offered hope to people all over the world that business could no longer operate with impunity, many will be waiting to hear what the Court decides. What if we have to tell these people that no U.S. Court will ever punish corporations for genocide, slavery, torture or killing again?
It would be profoundly ironic if the Supreme Court were to remove corporations from the threat of ATS lawsuits on grounds that they are not individuals when just two years ago, that same court ruled that corporations could enjoy free speech rights as persons in the Citizens United case. Can it really be the case that in 2012 corporations can go anywhere in the world and engage in such abuses as torture, killing and slavery, and yet be nowhere when it comes to facing their accusers and answering their calls for justice? That’s precisely what Shell will argue to our nation’s highest court today.