U.S. Supreme Court Takes Up Issue of Corporate Liability for Human Rights Violations

On October 17, 2011, the U.S. Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 10-1491). and Mohamad v. Rajoub, 634 F.3d 604 (D.C. Cir. 2011), cert. granted, 80 U.S. L.W. 3059 (U.S. Oct. 17, 2011)(No. 11-88). The cases are to be argued in tandem.



Kiobel v. Royal Dutch Petroleum presents two questions. No. 10-1491. First, "[w]hether the issue of corporate civil tort liability under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time." No. 10-1491. Second, "[w]hether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the Eleventh Circuit has explicitly held." No. 10-1491.

Mohamad v. Rajoub presents the question of "[w]hether the Torture Victim Protection Act, 28 U.S.C. § 1350 note § 2(a), permits actions against defendants which are not natural persons." No. 11-88.

Update: Ninth Circuit Decision Adds to Circuit Split
"In Sarei v. Rio Tinto, PLC, decided on Oct. 25, 2011, the Ninth Circuit held that "a violation of a sufficiently established international norm" could give rise to a cause of action for corporate liability under the Alien Tort Statute. Rio Tinto V, slip op. at 19341, __ F.3d at *7." Rachel Anderson, Corporate Liability Under the ATCA: Rio Tinto Revisited, Oct. 26, 2011. As is noted in the opinion itself, "this holding puts [the Ninth Circuit majority] at odds with the Second Circuit majority in Kiobel." Rio Tinto V, slip op. at 19363, __ F.3d at *20 (citing 621 F.3d at 120). For more information about the circuit split go to Rachel Anderson, Circuit Split on Corporate Liability under the ATCA Now at the U.S. Supreme Court, Oct. 27, 2011. The Ninth Circuit decision adds on to the list of circuits (Fifth, Seventh, Eleventh, and District of Columbia) that have upheld corporate liability under the Alien Tort Statute.

Note: With the goal of making this information accessible to both the public and the legal community, this post cites to the slip opinion, which is publicly available on the Ninth Circuit website at http://www.ca9.uscourts.gov/datastore/opinions/2011/10/25/02-56256.pdf, and the Westlaw cite for this case.

Human Rights Immunity or Accountability for Foreign Officials?

On September 30, 2009, the U.S. Supreme Court granted certiorari in the case of Samantar v. Yousuf (No. 08-1555). This case is an opportunity for the Supreme Court to resolve questions regarding the scope of the immunity for foreign officials acting in their official capacity under the Foreign Sovereign Immunities Act (FISA), 28 U.S.C. § 1604. This case may have important implications for potential plaintiffs hoping to bring cases in the United States alleging human rights violations, for example for genocide, against current and former officials of foreign governments.



Under the FISA, "[s]ubject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter." The general exceptions under the FISA include when the foreign state has waived immunity, if there are direct contacts to the United States, certain admiralty cases, and when the case is brought by the foreign state itself. (28 U.S.C. §§ 1605 and 1607)

The specific questions presented in the Petition for Writ of Certiorari are:

1. Whether a foreign state's immunity from suit under the FISA extends to an individual acting in his official capacity on behalf of a foreign state.

2. Whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual's former capacity as an official acting on behalf of a foreign state.

The initial case, Yousuf v. Samantar, was brought in the United States District Court for the Eastern District of Virginia in 2004. In that case, the plaintiff, Bashe Abdi Yousuf, alleged that the defendant, Mohamed Ali Samantar, is responsible for "acts of torture, murders, war crimes and other crimes against humanity that occurred while Samantar occupied several 'high-ranking' positions 'in the notorious regime headed by Somalia's President Mohamed Siad Barre' during the 1980s." (Bashe Abdi Yousuf v. Mohamed Ali Samantar , Civil Action 1:04 CV 1360 (E.D.Va. Nov. 10, 2004)) The claims in Yousuf v. Samantar were brought under the Torture Victim Protection and the Alien Tort Claims Acts, 28 U.S.C. § 1350.

Hat tip to Pamela Merchant's post U.S. Supreme Court soon to hear Somalia human rights case on IntLawGrrls for bringing this case to my attention. Pamela is the Executive Director of the Center for Justice and Accountability. The Center for Justice and Accountability website also has an extensive collection of motions, brief, and oral arguments related to the Yousuf v. Samantar case and the Samantar v. Yousuf case.