NOTE: This is a guest post from Katie Redford, Co-founder and U.S. Director of EarthRights International. EarthRights International (ERI) is a nongovernmental, nonprofit organization that combines the power of law and the power of people in defense of human rights and the environment.
Two years ago, the U.S. Supreme Court decided in Citizens United v. FEC that, because they are “legal persons,”¯ corporations have free speech rights, opening the floodgates to corporate and SuperPac spending on our elections. Earlier this year, in Kiobel v. Royal Dutch Petroleum (Shell), Shell asked the Supreme Court to make an even more absurd decision: that corporations, and corporations alone, should get a special exemption from lawsuits over human rights abuses abroad. Kiobel returns to the Supreme Court on October 1st, with the future of a critical human rights tool hanging in the balance.
Shell is accused of financing, arming, and conspiring with the Nigerian military to suppress non-violent opposition to Shell’s extraction operations in Ogoniland. The abuses, which occurred during the 1990s, included crimes against humanity and, most famously, the torture and execution of Dr. Barinem Kiobel, one of the “Ogoni Nine,”¯ a group of community leaders who, following an internationally condemned sham trial, were executed in 1995.
In 2003, survivors and family members sued Shell in a U.S. federal court under a 200-year-old American law, the Alien Tort Statute (ATS), which has been used for decades to offer human rights victims a chance to seek justice in U.S. Courts. The Second Circuit Court of Appeals broke from precedent and ruled that the ATS doesn’t apply to corporations, and the case was then appealed to the Supreme Court. A ruling in favor of Shell could slam shut the door for many other human rights victims seeking justice in U.S. federal courts.
Unfortunately, confronting corporations in court over human rights abuses is nothing new to me. I was one of the lawyers who helped bring the first successful human rights case against a corporation, using the ATS, when my organization, EarthRights International, represented villagers from Burma in a lawsuit against Unocal (now Chevron). Our clients included men and women who were forced against their will by the Burmese army to work on infrastructure for Unocal’s gas pipeline, and who were raped and tortured and had family members killed by Burmese soldiers working for Unocal to provide pipeline “security.”¯ That case, Doe v. Unocal, followed precedents established in Nuremburg that held corporations accountable for their complicity in Holocaust-era crimes. Even though only a handful of cases have proceeded since that time, U.S. courts offered a forum for human rights survivors to seek justice from corporations involved in terrorist attacks, torture, genocide, slavery and abusive child labor.
All of this progress is at stake in Kiobel. If the Supreme Court sides with Shell, corporations will be given a green light to commit atrocious crimes abroad, knowing that they are immune under U.S. law. Even worse, individual human rights abusers may be let off the hook as well, making the U.S. a safe haven for torturers. Few countries have the courage or legal mechanisms to hold human rights abusers accountable, so if the U.S. takes this huge backwards step, human rights standards could deteriorate across the globe.
I plan on attending the Kiobel arguments on October 1st, with a knot in my stomach as I listen to Shell’s absurd attempts to win at any cost. In the end, the fate of human rights litigation using the ATS will be decided by the same nine justices who gave us Citizens United — a case that few of us knew about until it was too late. We can’t let corporations get away with another huge power grab. We have two weeks to make our voices heard and I hope you’ll raise yours now. Please join our TooBigToPunish? campaign and show your support for human rights and corporate accountability.
Photo by Ed Kashi, courtesy of EarthRights International.
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