Could five unelected individuals be all it takes to undo a major, 2-century-old U.S. commitment to advance the rule of law? If they wear the right robes, the answer is yes.
The Supreme Court opened its new term on Monday morning with a second round of oral arguments in Kiobel v. Royal Dutch Petroleum (Shell). The court’s nine justices will decide by majority whether to reduce the scope of the Alien Tort Statute (ATS), a 1789 law passed by the First Congress, which makes punishable violations of the “law of nations,” and grants non-U.S. citizens the right to bring related civil lawsuits.
The plaintiffs in Kiobel are members of Nigeria’s Ogoni people, who claim that Shell violated the law of nations (now referred to as international law) when it helped dispatch killing and torture squads to put down their protests against polluting oil fields.
But Shell is arguing that the ATS should not apply overseas, or to corporations—in effect, that they should be immune from liability for torture.
Justice Breyer questioned this logic at Monday’s hearing when he asked whether there should be any difference between torture conducted by an individual and by the hypothetical “Torture, Inc.”
Shell’s lawyers, though, have been consistent inasmuch as they are asking the justices to now rule that even individuals should not be liable under the ATS for violating international law while outside of the United States.
In terms of global progress toward the rule of law, such a decision would turn back the clock by about 200 years.
In 1789, the most commonly cited international law violations concerned seaborne piracy, or assaults on foreign diplomats. Indeed, these are the classic examples raised in Swiss legal scholar Emerich de Vattel’s treatise “The Law of Nations,” widely referenced by U.S. representatives during the First Congress.
The book was taken out of a New York library by George Washington on Oct. 5, 1789—just a few days after signing the ATS into law. In his review of the material, Washington would have found confirmed the notion that international legal liability does not stop at the borders of a sovereign nation; it extends even to the high seas, the battlefield, and onto foreign soil.
‘The torturer has become, like the pirate and slave trader before him, an enemy of all mankind’
—U.S. Supreme Court in Filartiga v. Pena-Irala
Since then, international treaties and legal tribunals have made clear that the scope of international law has expanded as nations interact more often and more deeply.
The post-World War II Nuremberg War Crimes Tribunal held numerous officials and private actors guilty of facilitating genocide and crimes against humanity. Since 1980’s landmark case Filartiga v. Pena-Irala, the ATS, too, has been used in a number of high profile human rights lawsuits, which have found liability for torturers and others found guilty of serious violations of international legal norms.
This understanding of the law’s scope was further bolstered by the Supreme Court the last time it heard an ATS case, 2004’s Sosa v. Alvarez-Machain. On Monday, Justice Elena Kagan expressed the legal philosophy underlying this approach by quoting the majority opinion in Sosa, who quoted the majority in Filartiga, “For purposes of civil liability, the torturer has become, like the pirate and slave trader before him, an enemy of all mankind.”
The term “enemy of all mankind”, or “hostis humani generis,” had been used for centuries to describe pirates by the time that the ATS was passed, and there is evidence to show that contemporary judges and legal scholars were quite open to the idea that it was an evolving concept, which could support expansive interpretations.
A 1795 opinion by then U.S. Attorney General William Bradford noted that, under the ATS, Americans would face liability for committing banditry and similar offenses against British settlements in Sierra Leone—regardless of whether or not such acts satisfied textbook definitions of “piracy” on the high seas.
Even some of the most divisive issues of the day were faced up to as bound up inextricably with issues of legality and the customs of civilized nations. Indeed, as noted in Filartiga, after the international slave trade was banned in 1807, and slave smuggling formally criminalized by an 1820 U.S. law, the slave trader too began gradually to be referred to as hostis humani generis, and so similarly subject to harsh punishment for violating the clearly established law of nations.
By the 1890’s General Act for the Repression of the African Slave Trade, part of a 16-nation treaty, it was firmly established in international law that slavers operating in African waters were fully subject to jurisdiction of any state party.
In short, the early decades of our republic saw the growth of a legal system geared toward the big picture—with sincere attempts to defend the rule of law even in places like the high seas, and in other zones beyond the bounded world of the colonial gentry. Our nation was young, expansive, and crucially intertwined in commerce and diplomacy with the other powers of its day.
Startling Legal Strategy
Yet today, Shell argues that this law passed by the Founders, and the extraterritorial liability for any violation of the law of nations, is “a projection of U.S. law onto foreign soil.”
Under the corporation’s argument on Monday, even piracy is not covered under the scope of the ATS, for as their counsel explained, “We don’t concede that the statute applies on the high seas.”
This startling legal strategy seemed to leave even Justice Scalia, who has been no partisan of the ATS, somewhat taken aback, responding “Oh, you don’t? Okay. I thought that was common ground. I’m glad to know it isn’t.”
The corporation argues for a massive step backward.
Ultimately, the corporation argues for a massive step backward. The United States, and its courts, would not only arbitrarily give up an important function given to them by the First Congress and ratified by President Washington, but also abandon the leading role the country has played in international law from the League of Nations to Nuremberg.
Counsel for the plaintiffs closed his statements with a hypothetical scenario, in which refugees of a Syrian massacre, having fled to the United States, sought to bring suit against a poison gas-supplying corporation that had knowingly facilitated their suffering.
The case would be “the modern I.G. Farben,” so named for an analogous defendant judged guilty at Nuremberg. There, the Allied tribunal sentenced I.G. Farben Co. for crimes against international law: supplying Hitler’s regime with gas used to slaughter millions.
Yet under Shell’s vision of the law, such a corporation would be free and clear from all liability. It could even, then, decide to get into the piracy business—or to set up shop as Torture, Inc.
Ryan Mitchell is an Harvard Kaufman Fellow with the Human Rights Law Foundation.
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