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A Giant Setback for Human Rights

The Supreme Court's conservatives dealt a major blow Wednesday to the ability of American federal courts to hold violators of international human rights accountable. The court declared that a 1789 law called the Alien Tort Statute does not allow foreigners to sue in American courts to seek redress "for violations of the law of nations occurring outside the United States."

In the case at issue, Kiobel v. Royal Dutch Petroleum, Nigerian citizens alleged that, from 1992 to 1995, multinational oil companies working in Nigeria aided the military dictatorship that tortured and killed protesters who fought the environmental damage caused by the oil operations. These companies did business in the United States. But Chief Justice John Roberts Jr., writing for the majority, said that even where claims of atrocities "touch and concern the territory of the United States, they must do so with sufficient force" to overcome a presumption that the statute does not apply to actions outside this country.

That presumption radically revises and undermines the way the statute has been applied for a generation. It has been limited by the types of human rights abuses it covers -- but not by where they take place. The effect is to greatly narrow the statute's reach.

The court's four moderate liberals, in an opinion by Justice Stephen Breyer, agreed with the majority that the Kiobel case should not go forward in an American court. The conduct in this case happened abroad, Justice Breyer wrote, and "based solely upon the defendants' minimal and indirect American presence," it would be "far-fetched to believe" the case "helps to vindicate a distinct American interest."

But he persuasively argued against the majority's evisceration of the Alien Tort Statute. Under the court's reasoning, it is likely that the 1980 federal appeals court ruling that first used the statute in a significant human rights case would have been thrown out of court. It is likely that many other cases brought by foreign nationals against foreign individuals, and against corporations since 1997, would have been thrown out, too.

In 2004, the Supreme Court ruled that the law allowed suits in federal courts by foreigners against the most abhorrent foreign violators of universally accepted rights, like torturers and perpetrators of genocide, even when the abuses took place in other countries, as long as the defendants had sufficient contact with the United States.

Congress has not tried to limit that interpretation of the statute.

Justice Breyer said suits under the law should be allowed when "the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind."

The conservative majority regrettably made it much more difficult to vindicate that interest.

[Source: By The Editorial Board, The New York Times, 17Apr13]

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small logoThis document has been published on 22Apr13 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.