Law and Disorder Radio – Katherine Gallagher on Universal Jurisdiction: Kiobel v. Royal Dutch Shell and the Bush 6 Case in Spain – Hosts: Heidi Boghosian, Michael Steven Smith & Michael Ratner – Produced by Geoff Brady

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Universal Jurisdiction: Kiobel v. Royal Dutch Shell / Bush 6 Case in Spain

This week the US Supreme Court will decide if corporations can be held liable in U.S. courts for violations of international human rights law, in the landmark case Kiobel v. Royal Dutch Petroleum. The case was brought by families of seven Nigerians who were executed by a former military government for protesting Shell’s exploration and development, and is pushing to hold corporations accountable for human rights violations. The Supreme Court will also consider how the Alien Tort Statute Claim can be used the Kiobel case–a one-sentence law that goes back to 1789 when the first Judiciary Act was created in the United States. We’ve discussed this statute with several past guests, including attorneys Peter Weiss and Rhonda Copeland, who were instrumental in beginning the first cases in which human rights violations taking place in other countries could potentially be litigated in the United States.

We also discuss the recent amicus filing by a group of international human rights organizations and experts before the Spanish Supreme Court. The brief asks the Spanish Supreme Court to overturn a decision not to pursue a criminal case against six former officials from the Bush administration for their role in directing and implementing a systematic torture program. Past shows with Katherine Gallagher.

Attorney Katherine Gallagher:

  • The Kiobel case has been in US courts since 2004.
  • The claims were brought in the Southern District of New York, under a law from 1789, known as the Alien Tort Statute.
  • This law allows non-US citizens to come into a US federal court and assert violations of the Laws of Nations or international law.
  • A recent precedent for this is Citizens United. What happened was that the Second Circuit ruled that corporations could not be held liable for these egregious human rights violations under the Alien Tort Statute.
  • The question of corporate liability went up to the Supreme Court first.
  • We had two judges from a three-person panel in the Second Circuit suddenly come out in the fall of 2009 and say there is no corporate liability. That is the question that went up to the Supreme Court.
  • Four other circuits had look at this question and they said of course corporations can be held as liable as an individual, a natural person.
  • The Alien Tort Statute allows for a civil suit and civil liability rather than criminal liability.
  • The key case from 1980 that CCR brought was the case of Filartiga, which the Supreme Court affirmed in 2004 as being on solid legal basis–claims by a Paraguayan, against a Paraguayan for actions that occurred in Paraguay.
  • So it’s very strange that the Supreme Court was asking in a very broad fashion whether the ATS could apply to actions that occurred in another country. That is what the bulk of the cases brought under the ATS have been about.
  • Some of the cases where the ATS is used are for some of the most serious violations. Cases of war crimes, crimes against humanity, torture, not your run-of-the-mill case.
  • What the justices seemed to coalesce around was the issue of whether there’s an alternate forum. If the claims against Shell could have been brought in the UK or in the Netherlands, maybe they don’t need to be brought in the US.
  • We’ve seen a trend in the last 20 years of other countries adopting stronger laws that allow for redress and accountability, so we don’t have to be the world’s policeman.
  • There have been two cases that percolated up in the last four years in Spain.
  • The first is a widespread investigation of the torture program by then Judge Balthazar Garzon. This is a case looking at torture in Guantanamo, and potentially in Iraq and Afghanistan, looking at the whole U.S. torture program. That case was brought up by four named plaintiffs.
  • That case is very wide-ranging, and they are willing to go up the chain of command as far as the evidence leads.
  • There is a second case that was brought against specific U.S. individuals. They’re known as the Bush 6, including Jay Bybee, John Yoo, David Addington, Alberto Gonzalez. Six men who served as lawyers and essentially created the legal structure that enabled the torture program, providing arguments for immunity and protecting participants of the torture program from accountability.
  • Spain has a long and proud history of upholding international law. Spain is where we had the case against Augusto Pinochet in the late ’90s.
  • We’ll be doing this as long as we need. We need to have accountability; it’s really critical.

Guest – Katherine Gallagher, Senior Staff Attorney at the Center for Constitutional Rights (CCR), where she focuses on holding individuals, including US and foreign government officials, and corporations, including private military contractors, accountable for serious human rights violations. Among the cases she has worked, or is working on are international accountability efforts for U.S. officials involved in torture (SpainSwitzerland, Canada); ICC Vatican Officials ProsecutionArar v. AshcroftCorrie v. CaterpillarMatar v. DichterSaleh v. TitanAl-Quraishi v. Nakhla and L-3Estate of Abtan v. Blackwater.