Tag Archives: Alien Tort Claims Act

The Ghosts of 1904: the first genocide of the 20th century

image from wikipedia

Germany was sued for damages in the United States on January 6, 2017 by descendants of the Herero and Nama people of Namibia, for what they called a genocide campaign by German colonial troops in the early 1900s that led to more than 100,000 deaths .

See Herero v. Germany (pdf)

According to a complaint filed with the US District Court in Manhattan, Germany has excluded the plaintiffs from talks with Namibia regarding what occurred and has publicly said any settlement will not include reparations to victims, even if compensation is awarded to Namibia itself.

“There is no assurance that any of the proposed foreign aid by Germany will actually reach or assist the minority indigenous communities that were directly harmed,” the plaintiffs’ lawyer Ken McCallion said in an email. “There can be no negotiations or settlement about them that is made without them.”  The proposed class-action lawsuit seeks unspecified sums for thousands of descendants of the victims, for the “incalculable damages” caused.

The slaughter took place from roughly 1904 to 1908, when Namibia was a German colony known as South West Africa, after the Herero and Nama groups rebelled against German rule.According to published reports, victims were also subjected to harsh conditions in concentration camps and some had their skulls sent to Germany for scientific experiments.Some historians view what occurred as the 20th century’s first genocide, and a 1985 United Nations report said the “massacre” of Hereros qualified as genocide…

The plaintiffs…sued under the Alien Tort Statute, a 1789 US law often invoked in human rights cases.

The US Supreme Court narrowed the law’s reach in a 2013 decision, Kiobel v. Royal Dutch Petroleum Co, saying it was presumed not to cover foreign conduct unless the claims sufficiently “touch and concern” the United States.  McCallion said Kiobel and later rulings “leave the door open” for US courts to assert jurisdiction in genocide cases. The plaintiffs, including some from New York, also brought federal common law and New York state law claims.

Germany sued over early 1900s Namibia slaughter, Reuters, Jan. 6, 201

Suing Multinational Corporations in US Courts: Kiobel v. Shell

oil pollution

The Alien Tort Statute (ATS)… grants American district courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or of a treaty of the United States”. At the age of 190 it sprang back to life on April 6th 1979, when it was used to allow two Paraguayans to sue a former Paraguayan policeman in an American court for acts of torture committed in Paraguay.Since then, roughly 150 lawsuits have been filed against American and foreign corporations for actions committed around the world. Four local plaintiffs used the ATS to sue Unocal in a federal court in Los Angeles for human-rights violations allegedly committed during the construction of an oil pipeline in Myanmar. A human-rights organisation used it to sue Yahoo on behalf of two Chinese democracy activists for actions committed in China by a subsidiary. ATS suits against DaimlerChrysler and Rio Tinto, among others, are pending. Though most ATS cases have been dismissed or settled, the costs of settlements can be high and the negative publicity damaging.

Multinational companies will therefore cheer the Supreme Court’s unanimous decision in Kiobel v Royal Dutch Petroleum (Shell), released on April 17th, 2013. It dramatically limits the ability of plaintiffs to file suit against corporations in American courts for actions committed abroad.  The ruling stems from a case brought in New York by 12 Nigerian plaintiffs living in America. They allege that Shell was complicit in human-rights violations—including murder, rape, theft and destruction of property—committed by Nigeria’s armed forces in the region of Ogoniland. A federal appeals court dismissed their suit, arguing that the ATS provides no grounds for corporate-liability lawsuits. But as the 150 ATS suits show, other courts have disagreed. The Supreme Court agreed to hear the case in order to settle the question.

In an earlier ruling, in 2004, the court cautiously ruled that the ATS permitted lawsuits for “a modest number of international law violations”, such as piracy and crimes involving ambassadors, which would have been recognised when it was adopted. The court’s Kiobel ruling goes much further. It holds that the ATS does not apply to actions committed by foreign companies, and noted a strong presumption against applying American law outside the United States, “There is no indication,” wrote John Roberts, the chief justice, “that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms”.  In a separate concurrence, four of the court’s liberals took a slightly softer tack, arguing that the ATS should allow suits that prevent America from becoming “a safe harbour…for a torturer or other common enemy of mankind”. But that reasoning still does not permit foreign nationals to use American courts to sue foreign companies for acts committed on foreign soil.

Extraterritoriality: The Shell game ends, Economist, Apr. 20, 2013, at 34

Chronic Oil Pollution, an effective lawsuit against Shell?

A village in Nigeria’s oil-rich southern delta where observers found a drinking-water well polluted with benzene 900 times the international limit has sued Royal Dutch Shell PLC for $1 billion in a U.S. federal court.  The lawsuit alleges that Shell, long the dominant oil company over Nigeria’s more than 50 years of production, acted willfully negligent in pursuing profits over protecting the nation’s Niger Delta.mm The lawsuit filed by lawyers in Detroit uses a recent United Nations report over widespread pollution in the delta’s Ogoniland area for much of its evidence. However, that report implied Nigeria’s state-run oil company, rather than Shell, was responsible for recent damage in village of Ogale in Nigeria’s Rivers state.  “It is not isolated or accidental, but part of a culture and ongoing pattern of conduct that consistently and repeatedly ignored risks to others in favor of financial advantage,” the lawsuit filed Tuesday in U.S. District Court in the Eastern District of Michigan reads.  Some environmentalists say as much as 550 million gallons of oil have poured into the Niger Delta during 50 years of production — at a rate roughly comparable to one Exxon Valdez disaster per year. Even today, oil laps up in brackish delta creeks in Ogoniland, creating a black ring around the coastlines.

Ogale was one of the first operational oil fields discovered in Nigeria, where the nation’s first shipment of 22,000 barrels of crude oil exported to Europe came from, the lawsuit said. In the time since, the village suffered from the pollution of oil exploration, putting villagers at risk, the suit said.  A U.N. report released in August highlighted the plight of the village, describing how investigators found about 3 inches (8 centimeters) of refined oil floating on the surface of groundwater that serves the community’s wells. It also described finding high levels of benzene, a known carcinogen, in the water.  Though Shell abandoned production in Ogoniland in 1993 following civil unrest, miles of aging pipelines and flow stations sit in the area. However, the U.N. report said that a pipeline abandoned in 2008 by the state-run Nigerian National Petroleum Corp. lies near Ogale and showed signs that a large amount of oil spilled from it.

Lawyers filed the U.S. lawsuit on behalf of the villagers in Nigeria using the 222-year-old Alien Tort Statute, a law increasingly used in recent years to sue corporations for alleged abuses abroad. On Monday, the U.S. Supreme Court said it will use a separate lawsuit between Nigerian villagers and Shell to decide whether corporations may be held liable in U.S. courts for alleged human rights abuses overseas under the law.  Shell has been sued in the past in the U.S. over its Nigerian operations. In June 2009, it agreed to a $15.5 million settlement to end a lawsuit alleging that the oil giant was complicit in the executions of activist Ken Saro-Wiwa and other civilians by Nigeria’s former military regime.

Nigeria village cited by UN for chronic oil-spill damage sues Royal Dutch Shell for $1B in US, Associated Press, Oct. 21, 2011

Global Online Freedom Law, how states and tech companies restrict internet freedom

In May and June [2011] human-rights lawyers in America filed two suits alleging that executives at Cisco Systems, a California-based tech firm, sold China’s government equipment customised to help track dissenters online. Only one of the plaintiffs is an American citizen; more than a dozen are Chinese. Cisco denies all wrongdoing.

Such jurisdictional jiggery-pokery is made possible in part by the Alien Tort Claims Act (ATCA), which lets foreigners bring alleged violations of international law before American courts. Oil companies, mining firms and banks have all been subject to ATCA litigation since the ancient law was unburied in the 1980s. But only in recent years has the act been used to target tech firms whose products, or user data, might have been used to trap activists. In the best-known case, in 2007, Yahoo! reached a settlement with representatives of two Chinese democracy campaigners who said the firm had given authorities information that had led to their arrest. Daniel Ward, a lawyer leading one of the suits against Cisco, thinks that similar cases could be brought against other firms.

The issue is getting hotter as Sino-American internet business expands, in both directions. American tech firms covet China’s huge market. On July 4th Microsoft confirmed that its Bing search engine will soon be powering English-language results for local users of Baidu, China’s censored search giant. Even firms with more modest horizons may find themselves dealing with regimes that closely control the internet. More and more governments are moving to restrict the flow of information online, according to Freedom House, a lobby group.

Meanwhile, the global reach of China’s own internet firms, many of them listed on American stock exchanges, is drawing legal challenges. Campaigners in New York have started a suit against Baidu, saying its censored search results violate their constitutional rights. The plaintiffs’ lawyer, Stephen Preziosi, insists the case be heard in an American court—Baidu sells advertising to American firms and aggressively protects its American trademark, he says.

Still, suits against Cisco or other high-tech players face an uncertain legal path. Last year an appeals court hearing another ATCA case said the statute could not be used to prosecute firms, creating a division among judges that only the Supreme Court can settle. Lawyers retort that even if ATCA use against firms is curbed, individual executives could still be targeted.

Some American politicians think clearer legislation would help. One long-mooted bill, the Global Online Freedom Act, would make the government keep a list of internet-restricting states. Under its latest revision, advanced in April by Chris Smith, a Republican congressman, firms would need to seek the approval of American authorities before passing user information to one of these regimes [or should it be to any regime?]; search engines would have to reveal details of any content they are asked to block. Export controls on web-blocking technologies would also be reviewed.

The bill has struggled to gain support since it was floated in 2006. But it could be helpful to American firms, argues Cindy Cohn of the Electronic Frontier Foundation, a lobby group, because clear legislation at home would give ammunition to executives negotiating business terms with foreign authorities. “They could all point to the same rules,” she says.

Internet freedom: Tort and technology, Economist, July 23, 2011, at 57