Comment on Kiobel and Mohamad

by Juan E. Mendez

[Juan E. Méndez is the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, and a Professor at American University Washington College of Law.]

Torture is illegal and immoral, and like slavery, we should have abolished it by now. And yet its use continues to haunt our societies. In fact, the issue of torture — and whether corporations are immune from liability for committing torture — will come before the U.S. Supreme Court on Feb. 28.

In Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority and Palestine Liberation Organization, the Supreme Court will decide whether or not torture victims can sue corporations and other non-governmental entities, for their injuries. The two federal statutes at issue—the Torture Victim Protection Act (TVPA) and the Alien Tort Statute (ATS)—have been used for more than a decade to hold corporations liable for torture, genocide, crimes against humanity, and war crimes, even when those violations occurred outside of the United States.

While Kiobel and Mohamad do not represent the first time that torture victims have sued corporations or other non-state actors for committing the most atrocious of abuses, this is the first time that the push back from corporations has reached the Supreme Court. On the one hand, corporations declare, in cases like Citizens United v. FEC, that they have rights. On the other hand, corporations refuse to take responsibility for committing or aiding in torture or genocide. If “corporations are persons too,” we ought to be able to hold them accountable for the most serious crimes.

Kiobel is a modern-day David and Goliath story. The Kiobel plaintiffs, Nigerian political activists who opposed Shell’s oil exploration in the Niger Delta in the mid-1990s, allege that they were subjected to torture, extrajudicial killings and crimes against humanity by the corporate-funded Nigerian military forces. On the other side of the table is one of the largest oil companies in the world, Royal Dutch Petroleum, which reaped a reported $30 billion in profits in 2011. The Supreme Court granted certiorari, after a New York federal court of appeals held that corporations cannot be sued for international law violations. Similarly, the Mohamad court held that corporations and non-physical entities are immune from suit under the TVPA, where a man was allegedly tortured to death by agents of the Palestinian Authority in the West Bank.

The appellate decisions under review, fly in the face of the United States’ commitment to a zero-tolerance approach to torture. As a party to the Convention Against Torture and other treaties, the United States prohibits torture by all U.S. actors and is obliged to afford remedies against all victims. Torture cannot be excused when used against foreigners in secret locations outside the United States. And it cannot be excused when committed or abetted by a corporation anywhere in the world. If torture occurs, the United States is obliged to investigate, prosecute and punish every instance and to offer remedies, reparation and rehabilitation to victims.

What is at stake in Kiobel is the effective eradication of torture. To exempt corporations from liability is akin to providing amnesty for acts that are unquestionably illegal. It tells torturers and their enablers: if you want legal immunity, privatize your operations. It sends the message to corporations around the world: torture your employees and members of the communities in which you operate, because you won’t be held accountable and your bottom line could actually grow.

As the United Nations Special Rapporteur on Torture, I apply a victim-centered approach to my mandate, derived from international standards but also from personal experience. As a young lawyer in Argentina, I represented political prisoners during the “Dirty War” inflicted on my country by the military dictatorship. Because of my work, I was arrested, tortured, and held in administrative detention for more than a year.

I have seen first-hand how torture and other forms of inhuman treatment can thrive in an environment where accountability is lacking. I know that the physical and psychological injury that victims suffer lasts long after the torture ends. And I believe that victims’ reintegration with their families and into their daily lives is not complete until their perpetrators are brought to justice.

As a witness and as a survivor, I feel an acute sense of responsibility to ensure that the perpetrators of torture are punished and that their punishment is held up as a warning to others. I remain convinced that the ATS, enacted in 1789, and its companion statute, the 1992 TVPA, hold great potential for holding perpetrators accountable. I hope that the Supreme Court will uphold the promise of these laws, and fulfill the United States’ commitment to protect human rights, and not allow corporations to get away—literally—with torture.

http://opiniojuris.org/2012/02/28/juan-e-mendez-comment-on-kiobel-and-mohamad/

3 Responses

  1. Response…
    The U.S. Supreme Court has already recognized in some 20 cases that corporations and companies can have duties and rights under treaty-based and customary international law.  51 Virginia Journal of International Law 977, 978 & n.2, 986-89 (2011), available at http://ssrn.com/abstract=1701992
    Hopefully, the Supreme Court will follow its own predent.

  2. I fear more of these cases are about shielding our own leaders from the threat of prosecution or civil  liability than the merits of the arguments.
    Best,
    Ben

  3. Response…
    Moreover, there ARE foreign cases that recognize human rights duties of private corporations.  See foreign cases in http://ssrn.com/abstract=1548112
    And the jurisdictional basis is universal jurisdiction.  see. e.g., http://ssrn.com/abstract=1497122 re: older cases under ATCA (ATS) and universal jurisdiction (in a footnote).
    Of course, even under the Restatement, when there is universal jurisdiction there is no need for contacts with the forum.  Id. sec. 404.  And the putative use of comity-factors to obviate territorial jurisdiction (in violation of the separation of powers because Congress and the President will have chosen to create an extraterritorial statute and the so-called rule of reasonableness is actually not a rule of customary international law) does not even apply under the Restatement if sec. 404 applies (403 only re: 402 — and our courts do not give up jurisdiciton under the nationality or protective principles under a comity-factors approach in any event).

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