Guest Blogger Paul Wolf is a human rights lawyer who represents some 10,000 Colombian victims in a lawsuit against U.S.-owned Chiquita Brands for payments made to the FARC and AUC (Autodefensas Unidas de Colombia or paramilitaries) over a 20-year period.
On April 17, the U.S. Supreme Court unanimously held that federal courts do not have jurisdiction over torts committed abroad under the Alien Tort Statute, a controversial law passed in 1789 which had been used in over 100 cases to bring to justice the perpetrators of war crimes, genocide, and other violations of international law, which encompass some of the worst things man has done to his fellow man, in all of history.
The decision reverses a 30-year trend to hold war criminals accountable for their acts, or at least, keep them out of the United States.
The case, Kiobel v. Royal Dutch Shell, involved the latter’s alleged support of torture and murder in Nigeria, which allegedly furthered Shell’s business interests in that troubled country.
A number of these cases have been brought on behalf of Colombian victims killed by the AUC (Autodefensas Unidas de Colombia or paramilitaries), including against Coca Cola, Drummond, and more recently, Chiquita Brands. These lawsuits are brought under the theory that the multinational corporations ‘aided and abetted’ the paramilitary murders, by providing them with money or other support, knowing and intending that the AUC would use it to kill people thought to be sympathetic to the FARC guerrillas.
In Kiobel, the question was not whether corporations can be liable for human rights violations, but whether the Alien Tort Statute was meant to apply to human rights violations abroad, or only allow foreigners to sue for human rights violations occurring inside the territory of the U.S. In more than 30 years, and more than 100 cases, that question had never even come up. The Court’s dubious reasoning was that nothing in the old law suggested that Congress had, in 1789, intended it to apply outside of the United States, despite the fact that it refers to “aliens,” the “law of nations” and piracy, and that every previous court, including the Supreme Court in Sosa v Alvarez Machain, had never even contemplated this before.
Justice Roberts left a loophole, though. Whether or not U.S. law is being applied “extraterritorially” depends on whether the case touches and concerns the U.S. He suggests that the case must have a significant relationship to the U.S. to overcome the presumption against extraterritorial application of U.S. law.
What does this mean for foreign corporations that collaborate with the illegal armed groups in Colombia? First off, the three companies mentioned above are all U.S. corporations. In the case of Chiquita, not only is the corporation based in the U.S., but the conspiracy to pay the AUC was made by the Board of Directors in Cincinnati, Ohio. Moreover, although Justice Roberts was concerned about the adverse impact these kinds of cases could have on U.S. foreign relations, the civil case in Chiquita follows a criminal prosecution by the Department of Justice. How could the position of the U.S. government be that this kind of activity is criminal, but that the victims should have no day in court? Moreover, the government of Colombia has made it clear that corporations that finance these groups are not welcome to do business in the country. None of the policy arguments made by Justice Roberts would really apply.
That doesn’t mean the Chiquita victims have nothing to worry about, though. In 2010, in the case of Citizens United v. FEC, the Supreme Court held that corporations could contribute unlimited amounts of money to election campaigns, equating corporate personhood with being a natural person, who has the freedom of speech and apparently, the right to buy as much influence as he wants. On this basis, many people were predicting that the Supreme Court would hold in Kiobel that human rights laws do not apply to corporations. Instead, the Court took an even bigger bite, holding that no one – corporations or individuals – can be held accountable in U.S. courts for what they do abroad. Even if it involves the most extreme conduct imaginable, such as the genocidal campaign of the AUC.
What this means for Colombia is that for now, at least, U.S. corporations may still be held liable for human rights violations, but non-U.S. corporations will not be, at least in the United States. That really remains to be seen, though. I have no doubt that the Chiquita case will have to be decided by the Supreme Court, and this will test the very narrow 5-4 majority that voted for territoriality. In particular, Justice Kennedy’s vote was a surprise, but he may feel differently when asked to decide Chiquita.
What it means for North American corporations is that they should establish subsidiaries in places like Singapore, the Caribbean, or the United Arab Emirates, where it’s impossible to sue anyone. I know this because I tried to sue a private security contractor for murders committed in Iraq, and there are many places in the world where no one can be sued.
For companies like Chiquita and Coca Cola, it may be too late. Four of the nine justices agreed that although the Kiobel case was unrelated to the United States and should be dismissed, if Shell had been a U.S. corporation, the result would be different. This is still the minority view, but it’s a close race.
American corporations may now use slave labor, murder their competitors, or do whatever else you can think of, and bank on the 5-4 majority defending them when the time comes, as long as the murder and slavery takes place outside the U.S. Or, they may form subsidiaries in countries where it’s impossible to sue. Whatever they do, today’s decision undermines the rule of law worldwide. Particularly for people living in places where North American companies extract resources, there is one less reason to feel safe.