For many law students, the only connection between torture and jurisdiction is having to sit through first-year civil procedure. But two Supreme Court cases may soon change all that.

Tomorrow, the Justices will hear arguments in two cases that raise difficult and important questions about whether corporations and organizations may be sued in U.S. courts for damages for their involvement in torture and human rights abuses in other countries.

The outcome in the two appeals will be of great interest to students in federal courts, civil procedure, and international human rights and other international law classes, and the decisions may also have implications for the study of business and organizational liability.

In one case, Kiobel v. Royal Dutch Petroleum Co., the issue is the meaning of the Alien Tort Statute (ATS).  The statute was passed by the very first Congress in 1789, but it was never really interpreted by a federal court until 1980. The other case, Mohamad v. Palestinian Authority, involves the Torture Victim Protection Act, which was enacted in 1992.  Both are cases in which the factual background is much more dramatic and compelling than the important but technical legal question on which a decision may turn.

In Kiobel, the plaintiffs-petitioners are Nigerians whose suit under the ATS alleges that the defendant  oil companies (the respondents before the Court) helped the Nigerian government stop resistance to oil exploration among the people of the country’s Ogoni region. The lawsuit alleges that company-backed government troops murdered, raped, and detained Nigerian residents, all in violation of international human rights norms. A federal district court in New York dismissed about half of the claims but allowed others to go forward, and both sides appealed to the Second Circuit.

The Second Circuit ruled that the ATS does not give federal courts subject matter jurisdiction over lawsuits against corporations. By a two-to-one vote, the Second Circuit said that the scope of the ATS is determined not by U.S. law, which does impose liability on corporations for wrongdoing, but instead by standards of international law, which does not. Judge Pierre Leval agreed that the lawsuit should be dismissed, but he rejected the majority’s view that international law does not impose penalties on corporations.

The heart of the Second Circuit’s ruling was that “customary” international law has not established liability for corporations for committing or aiding and abetting human rights violations. A practice becomes “customary international law” when it is engaged in repeatedly by a significant number of countries based on the belief that their actions are legally required and are not rejected by a large number of other countries.

If the Supreme Court agrees with the Second Circuit, then the ATS will be largely closed for claims of corporate liability. If the Supreme Court rules that corporate liability is not a question of subject matter jurisdiction for ATS purposes, then the Justices face the heart of the matter: whether federal common law or international law is the proper way to determine whether corporate liability exists under the ATS. Because that issue has not been fully developed in the lower courts in this case, it is also possible the Justices might look for a way around a decision on this important issue and might try to await a case in which the arguments are more fully developed in the trial and appellate courts.

Underlying this dispute is an important narrative about the modern evolution of international law. Since the Nuremberg trials after World War II, there has been an increasing focus on the use of criminal tribunals to try individuals for violation of international norms. But the federal government, supporting the position of the Kiobel plaintiffs, argues in a friend-of-the-court brief that this reliance on criminal tribunals does not in any way suggest that corporate wrongdoing may not lead to civil liability. Instead, the government argues, whether there is corporate liability for violation of international norms should be determined on the basis of federal common law, under which corporations may be held liable.

The corporate defendants in Kiobel counter that the Second Circuit was correct when it held that the central issue is one of subject matter jurisdiction and that the claims should be barred under the Alien Tort Statute.

The second case involves a lawsuit filed by the sons and widow of a U.S. citizen who was born in the Palestinian West Bank. The lawsuit alleges that Palestinian officials detained, tortured, and killed the man during a visit to the West Bank in 1995. The family sued several individuals, but it also named the Palestinian Authority and the Palestinian Liberation Organization as defendants.

The lawsuit was filed under the Torture Victim Protection Act (TVPA), a law passed by Congress in 1992 at a time when it was unclear what types of lawsuits might be valid under the Alien Tort Statute. The law established that U.S. citizens have the right to sue for civil damages in federal court for torture or killing that was ostensibly under the authority of law or of a foreign country. The dispute before the Supreme Court arises because the TVPA says the lawsuits may be brought against an “individual.” The U.S. Court of Appeals for the District of Columbia Circuit dismissed the lawsuit against the Palestinian organizations on the ground that “individual” means a natural person, and the Supreme Court agreed to hear the family’s appeal.

The family argues that Congress did not intend to alter a presumption in U.S. law that organizations are responsible for the actions of their members. (Disclosure: The law firm of Goldstein & Russell, P.C., whose attorneys contribute to this blog, serves as co-counsel to the petitioners.) The family argues that the term “individual” should include liability for organizations that are not sovereign states.

In this case, the United States is on the other side. The government’s friend-of-the-court brief argues that the literal meaning of what Congress intended is clear – that the term “individual” means just that, and does not refer to entities. Lawyers for the Palestinian organizations maintain the same position:  the statute is clear.

Both cases in one sense present narrow questions of procedure, statutory interpretation, and jurisdiction for federal courts. But both cases will be closely watched because they fall right on the edge of increasingly important questions of how one may use the courts of the United States to enforce international law against human rights violations around the world.

Posted in Kiobel v. Royal Dutch Petroleum, Mohamad v. Palestinian Authority, Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Torture and jurisdiction, SCOTUSblog (Feb. 27, 2012, 2:43 PM), http://www.scotusblog.com/2012/02/scotus-for-law-students-torture-and-jurisdiction-sponsored-by-bloomberg-law/