Legal Briefing: Corporations Get Away With Murder, Overseas

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Shell Oil Not Liable to Nigerian Citizens for Human Rights Abuses
Note to people who have been murdered, raped, beaten, or robbed by your country's army, with the assistance of a corporation such as transporting the attacking troops, feeding them, paying them, and giving them access to corporate property as a staging ground: You cannot sue the corporation in U.S. courts. Not even if the corporation intended that its assistance enabled murder, rape, etc., rather than merely providing assistance to troops without intending the troops commit such crimes. You can, however, use U.S. courts to sue the individuals within the corporation who made the decisions to help the attackers, provided you can figure out who they are.

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That's the result of the Second Circuit Court of Appeals' decision in Kiobel v. Royal Dutch Petroleum to dismiss the plaintiffs' claims under the Alien Tort Claims Act without trial. That case that involves Nigerian people who had protested against oil drilling and the murderous response of the Nigerian military, allegedly assisted by Shell Petroleum Development Company of Nigeria, a venture of then-Royal Dutch Petroleum Company and Shell Transport and Trading Company PLC. (Those companies have since changed form and name slightly.) Given the allegations in the case--none of which involved Americans or took place in the U.S.-- the Alien Tort Claims Act was the only statute plaintiffs could look to bring suit in the U.S. against the corporations, and that avenue no longer exists.

Not Liable for Crimes Against Humanity

While the concurring opinion argues the intent of the corporation should dictate whether the plaintiffs' claims can go forward, and finds insufficient evidence that Shell intended the Nigerian military to act as it did so dismissing the claims is appropriate, the majority opinion is clear: regardless of intent, the claims cannot go forward because plaintiffs are suing corporations, and corporations are not liable under the Alien Tort Claims Act, not even for crimes against humanity. Because corporations are not subject to the statute, under no set of facts--corporations deliberately committing the crimes themselves rather than merely assisting state actors--can the statute be used to sue them. Individuals, in contrast, can be held liable, and so if they wish plaintiffs can sue people within the corporation.

The majority notes that Congress can try to change this result through new legislation. Until then, the majority decided, the Alien Tort Claims Act is governed--in terms of who can be sued and for what they can be sued--by international law. If no treaty enables the suit, and no treaty would enable this one, "customary international law" must allow the suit for it to go forward. To date, the majority notes, customary international law doesn't allow these suits against corporations. So plaintiffs are out of luck. And corporations are free to improve their bottom line by helping foreign countries hurt their citizens.

That is, unless plaintiffs successfully appeal, which they reportedly intend to do. Until such time, however, most cases under the Alien Tort Claims Act will be stopped by this opinion.