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U.S. Court Rules Corporations Cannot be Held Civilly Liable for Torture and Other Violations of International Law under ATCA

September 20, 2010 Leave a comment

Last Friday’s Second Circuit ruling in Kiobel v. Royal Dutch Petroleum, if upheld, could be the death knell for litigation seeking to hold corporations accountable for torture and other violations of customary international law under the Alien Tort Claims Act.

The plaintiffs, Nigerian nationals, brought suit against Royal Dutch and Shell Petroleum for aiding and abetting the Nigerian government in extrajudicial executions, torture, arbitrary arrest, and other acts of suppression against those protesting the environmental effects of oil exploration.

In affirming dismissal of the suit, the Second Circuit held that corporations cannot be held liable under the ATCA (or ATS) because customary international law only confers jurisdiction over natural persons. [WSJ]  As in the recent Ninth Circuit ruling in Bowoto v. Chevron, which held that the Nigerian plaintiffs could not recover under the ATCA (because a different federal statute preempted their claims) or the Torture Victims Protection Act against Chevron for the wrongful deaths of protesters, the Second Circuit’s decision ends the plaintiffs’ possibilities for relief.

In Kiobel, the Second Circuit seems to have turned on their head historic justifications for individual criminal (as opposed to State) liability for grave violations of international law.  The majority cites the Nuremberg tribunal as stating: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”, in order to support the majority’s dismissal of the suit based on its finding that international law “has never extended the scope of liability to a corporation”.

However, as the dissenting judge in Kiobel argues, “on many occasions [U.S.] courts have ruled in cases involving corporate defendants [in ATCA suits] in a manner that assumed without discussion that corporations could be liable”.

Read more on the ATCA on this blog (here and here), from the Center for Justice & Accountability, on the Center for Constitutional Rights’ ATCA Q&A sheet, and on Amnesty International USA’s website.

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News Clips – September 20, 2010

September 20, 2010 Leave a comment
  • In a heartbreaking blow to Afghan hopes for peace, several U.S. soldiers are under investigation for murdering at least three Afghan civilians last year as part of a rogue “kill team” that was allegedly formed when a staff sergeant who had served in Iraq in 2004 joined the platoon stationed in Kandahar province. [Washington Post]
  • The French Senate has approved a ban on the use of full-face veils in public, subject to a fine of 150 Euros ; the legislation will now be reviewed by the Constitutional Council [Impunity Watch; BBC]
  • On Thursday, the U.S. state of Virginia will execute Teresa Lewis, following her conviction for the 2002 deaths of her husband and stepson; she will be the first woman to be executed in the state in 98 years and is reported to have “severe learning difficulties”. [Guardian]
  • Polish police have detained exiled Chechen leader Akhmed Zakayev, who was granted asylum in the United Kingdom in 2003, but Polish authorities have not determined whether he will be extradited to Russia, where he is sought on charges of armed revellion, murder and kidnapping. [BBC; RNW]
  • Italy and Libya’s joint agreement to intercept would-be migrants at sea has led to several incidents where Libyan patrols have fired upon Italian boats in the mistaken belief that they were carrying migrants. [Impunity Watch; Human Rights Watch]
  • Ecuador and Colombia have met to discuss the plight of the approximately 135,000 displaced Colombians living in Ecuador, due to ongoing violence [Impunity Watch; ADN]
  • Leading Russian gay rights activist, Nikolai Alekseyev, has been released after being held by Russian authorities for two days while they allegedly pressured him to withdraw a complaint before the European Court of Human Rights. [Radio Free Europe]
  • A U.S. citizen has been released from Iranian custody after inadvertently crossing Iranian border from Iraq while hiking; meanwhile, while Amnesty calls attention to 30,000 held in Iran without trial and prominent Iranian human rights activist Shiva Nazar Ahari has been sentenced to six years’ imprisonment. [Guardian; NYT; Amnesty]
  • The Philippine National Police will support the installation of a human rights desk in every police station, following torture accusations levied against the police. [Manila Bulletin]
  • In Kyrgyzstan, human rights reporter Azimjon Askarov has been sentenced to life imprisonment on charges the Committee to Protect Journalists says are completely unfounded. [CPJ]
  • Peruvian President Alan Garcia approved a repeal of recent Legislative Decree 1097, amidst fears that the law would provide amnesty for security forces members accused of human rights violations. [Peruvian Times]  The repeal was viewed favorably by the IACHR, which had criticized the decree. [IACHR]
  • Citing “the lack of the right to legitimate defence in Rwanda today”, a French court has rejected Rwanda’s request to extradite Eugene Rwamucyo, a doctor wanted for his alleged involvement in the Rwandan genocide. [RNW]
  • Hamas and UN Relief & Works Agency clash over human rights curriculum in schools. [NPR]
  • The Observatory for the Protection of Human Rights Defenders has released its annual report, Steadfast in Protest, provides a region-by-region analysis of government  protection (or repression) of the media and civil society (note that the Table of Contents is at the end of the 500-plus page report).  The report is choc-full of individual examples of human rights defenders who were subjected to harassment or prosecution, and instances of dissent which were stifled – particularly during elections – in 2009. [FIDH]
  • Human Rights Watch calls for the establishment of an international Commission of Inquiry for Burma, to investigate past abuses by the military and armed groups.  [HRW]
  • The U.S. Senate is poised to vote on legislation, which has been approved by the House of Representatives, and which would repeal the military’s “Don’t Ask, Don’t Tell” policy towards gay and lesbian members of the military. [ACLU]
  • Kashmiri separatists protest curfew laws and Indian occupation in bloody battles with Indian troops, in which at least three protesters have lost their lives, while Human Rights Watch calls for the repeal of the Armed Forces Special Powers Act, which protects members of the Indian military from prosecution and grants broad powers to use force and conduct warrantless arrests. [BBC; HRW]
  • UN Special Rapporteur on the right to adequate housing warns of the high rate of forced evictions in Kazakhstan. [OHCHR]
  • The IACHR has presented a case to the Inter-American Court involving Chilean courts’ denial of parental custody rights to a lesbian mother because of her sexual orientation.  Karen Atala’s petition is the first to be decided by the Commission relating to discrimination on the basis of sexual orientation. [IACHR]
  • UN expert calls on Sudanese authorities to investigate the September 2nd killing of dozens of civilians in North Darfur. [OHCHR]
  • A Reprieve investigator reports that the FBI has been deeply involved in the questioning and detention of individuals connected to the World Cup bombings in Kampala this year, the investigation of which has included the arbitrary detention of two Kenyan human rights defenders arrested in Uganda last week.  They had been working on behalf of three Kenyans subjected to extraordinary rendition and charged in Uganda for their alleged role in the Kampala World Cup bombings. [Huffington Post]
  • Organizations call for the immediate release of 19-year-old blogger being held incommunicado in Syria for nine months now.  [AFP; HRW]
  • Attacks against journalists threaten lives and freedom of expression in Mexico. [Impunity Watch]
  • The Costa Rican Supreme Court has ruled that the high crime rate in the country cannot justify arbitrary police checkpoints on public roads, which may be established only when there is substantiated evidence or actual notice of a crime having been committed. [CEJIL]
  • 18 protesters were injured, and one killed, in a confrontation between Peruvian police and protesters opposed to a dam and agricultural irrigation system which residents of Espinar fear would leave them without water. [Reuters; AlertNet]
  • In Thailand, planning for anti-government protests is underway as the fourth anniversary of the military coup approaches. [Democracy Now]

News Clips – June 1, 2010

June 1, 2010 Leave a comment
  • Protocol 14 to the European Convention on Human Rights enters into force today, introducing a number of changes to decrease the Court’s backlog, strengthen enforcement in order to reduce repetitive applications, concentrate its efforts on cases where applicants have suffered a “significant disadvantage”, and allow the European Commissioner for Human Rights to intervene as a third party [ECHR]
  • UN Special Rapporteur on Extrajudicial Executions reports continuing killings by Brazilian police [UN]
  • UN Security Council calls for impartial investigation of deaths on Gaza flotilla [Washington Post]
  • Efforts by Jamaican police to arrest suspected drug dealer, wanted for extradition by the U.S., claim dozens of lives, raising concerns of the Inter-American Commission on Human Rights [IACHRWashington Post]
  • U.S. Supreme Court decides Samantar v. Yousuf, holding that the Foreign Sovereign Immunities Actdoes not grant immunity to former Somali prime minister against torture suit brought by victims of abuse [CJASCOTUSblogWashington Post]
  • IACHR grants precautionary measures to indigenous communities affected by Goldcorp’s Marlin mine in Guatemala, in order to prevent environmental contamination [IACHR]
  • UN experts condemn attacks against religious minority in Pakistan [UN]
  • Tropical Storm Agatha claims lives in Central America, as flooding and landslides continue [Washington Post]
  • UN Working Body on Enforced and Involuntary Disappearances expresses concern over suspension of Spain’s Judge Garzón
  • Bahrain prohibits news outlet Al Jazeera from operating within its territory [Impunity Watch]
  • U.S. Supreme Court decides Berghuis v. Thomkins, holding that Miranda waiver was implied by man’s admission after over two hours of silence, reinterpreting Miranda to require explicit invocation of right to remain silence [Washington PostSCOTUSblog]
  • UN High Commissioner for Human Rights calls for investigation of crackdown on political protesters in Thailand [AFP]

    News Clips – May 23, 2010

    May 23, 2010 Leave a comment
    • Human Rights Watch urges new British government to reform counterterrorism strategies and investigate British agents’ complicity in torture and rendition. [HRW] Related cases decided by the British courts and ECHR include A & Others (indefinite detention of foreign nationals), Gillan and Quinton v. UK (power to stop and search), and the control order cases Secretary of State for the Home Department v. E and AnotherJJ and Others, and MB and AF.
    • Spain’s Judge Baltasar Garzón is temporarily suspended pending trial on misconduct charges in connection with investigation of Franco-era crimes against humanity. [Guardian]  See more on this story here.
    • Egyptian President Mubarak decreed a two-year extension of emergency laws, in place since 1981, allowing extraordinary police powers in terrorism and drug cases. [Impunity WatchBBC]
    • The IACHR completed its visit to Honduras to follow up on the human rights situation following last year’s coup d’etat, and expressed deep concern regarding continuing violations.
    • French parliament will consider fining women in full veil, now that President Sarkozy’s government has forwarded legislation that would impose a $185 fine on women in burqa and/or require them to attend citizenship classes, as well as allowing police to require women to lift their veils to identify themselves. [Washington Post]
    • Charles Taylor’s war crimes trial will move to the Special Tribunal for Lebanon facilities in The Hague, due to scheduling difficulties at the ICC, which had been the venue for the trial since 2006, although theSpecial Tribunal for Sierra Leone continues to prosecute Taylor. [Impunity Watch]
    • report commissioned by Canadian mining company Goldcorp shows its subsidiary violated workers rights and failed to properly consult with indigenous community in Guatemala. Another study published this month reports that individuals living near the mine have potentially toxic levels of heavy metals in their blood and urine. [BBCPhysicians for Human Rights]  The mine is located in the San Marcos department of Guatemala and is the subject of a pending complaint before the Canadian government, alleging violations of the OECD Guidelines for Multinational Enterprises [CIEL]. Mineral mining has become a very heated issue in Guatemala as indigenous communities fight for a say regarding the location, practices, and environmental impact of such mines.  Review more information by Mining Watch CanadaCOPAE,and NISGUA. See Guatemala’s law and regulations on mining here.
    • Malawi sentences gay couple to 14 years’ imprisonment, generating strong criticism. The UN High Commissioner for Human Rights called the sentence “blatantly discriminatory” and urged reform of laws criminalizing homosexuality. [UN]
    • Six Somalis were sentenced to death by a Yemen court last week for the oldest international crime:piracy. [Impunity Watch]
    • The ACLU and other organizations filed a class action lawsuitFriendly House et al. v. Whiting, in the U.S. District Court for the District of Arizona, challenging the new Arizona immigration law as an unconstitutional infringement on federal powers and violating the constitutional amendments providing for equal protection, protection against unreasonable seizures and freedom of speech. [ACLU]

    IACHR Submits Cases Involving Disappearance and Indigenous Land Rights to Inter-American Court

    May 5, 2010 Leave a comment

    The Inter-American Commission on Human Rights announced today that it will litigate two cases before the Inter-American Court of Human Rights (against Argentina and Ecuador), while the press and civil society reported that a third case against the Dominican Republic will also be heard by the court.  The IACHR press release states:

    On April 18, 2010, the IACHR filed an application in Case 12.533, Iván Eladio Torres et al., Argentina. The case involves the arbitrary detention, torture, and forced disappearance of Iván Eladio Torres, which occurred beginning on October 3, 2003, in the city of Comodoro Rivadavia, in Chubut province, and the subsequent lack of due diligence in the investigation of the facts, as well as the denial of justice to the detriment of the victim’s relatives. The case was sent to the Court based on the need to conduct a diligent investigation for the purpose of obtaining truth, justice, and reparation for the damage caused by the violations perpetrated against Iván Eladio Torres and his relatives.

    In another matter, on April 26, 2010, the IACHR filed an application in Case 12.465, the Kichwa Peoples of the Sarayaku Community and Its Members, Ecuador. The case involves the State’s acts and omissions to the detriment of the Kichwa indigenous people of the Sarayaku community and its members, given that the State has allowed an oil company to carry out activities on the community’s ancestral territory without prior consultation, placing the population at risk. This situation has made it impossible for the indigenous community to seek its means of subsistence in its territory and has restricted its right to movement within the territory. The case also refers to the denial of judicial protection and due process to the Kichwa people of Sarayaku. The case was sent to the Court based on the need for the State to respect and guarantee the right of the Kichwa indigenous people of Sarayaku to use, enjoy, and avail themselves of their territory.

    Read the Commission’s earlier admissibility decisions in the cases here and here, respectively.

    The third case submitted to the Inter-American Court, involves the disappearance of prominent Dominican journalist, lawyer and professor Narciso Gonzalez at the hands of the military in 1994.  [Diario LibreCEJIL]  Read the Commission’s admissibility report here.

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