A decision by the US Supreme Court could severely limit the use of a federal statute that for more than 30 years has permitted foreign victims of atrocities abroad to obtain civil remedies in federal courts and has denied rights abusers a safe haven in the United States.  It undercuts case law that had made the US courts a mainstay for redress for victims of serious human rights abuses. 

The case, Kiobel v. Royal Dutch Petroleum, decided on April 17, 2003, concerned Nigerian activists who sought civil damages under the 1789 Alien Tort Statute (ATS) against foreign oil companies that allegedly had been complicit with Nigerian military and police forces in abuses against Ogoni villagers.  

The Court’s judgment against the plaintiff was unanimous, but the justices split in their reasoning. Chief Justice John G. Roberts, wrote for the court that the ATS does not apply to conduct that occurred entirely in a foreign country. That is, to be successful, ATS claims must “touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritorial application.” He did not give examples of conduct that might have the “requisite force,” only noting that a corporate defendant with an office in the United States was insufficient to establish jurisdiction.  One justice joining in the majority opinion, Anthony Kennedy, wrote that the Court’s opinion was “careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.”

Writing for four justices who supported the judgment but disagreed with the majority’s reasoning, Justice Stephen Breyer said civil suits under the ATS should be allowed when the conduct at issue took place in the United States; the defendant is a US citizen; or “the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

Human Rights Watch is concerned that the Court’s ruling could both prevent and discourage foreign victims of atrocities abroad, particularly those in which corporations were complicit, from bringing US lawsuits under the ATS. Federal courts will now need to be flexible in determining the American connection necessary for suits to go forward.

The ATS provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Ithas been a key tool in the hands of foreign abuse victims since the landmark 1980 decision in Filartiga v. Pena-Irala, a case involving a Paraguayan torturer who was in the United States. The federal court held that victims of atrocities committed in other countries could use the statute to sue the perpetrators in US courts. Since the Filartiga decision, cases have been brought under the ATS involving alleged abuses by current or former officials in dozens of countries. More recently, suits have been increasingly brought against corporations that had allegedly "aided and abetted" foreign governments in committing abuses.

The Supreme Court ruling does not affect the ability of victims to bring lawsuits against individuals in the US under the Torture Victim Protection Act (TVPA).  The TVPA was enacted in 1992 as a companion to the ATS to allow US citizens as well as non-citizens the possibility of bringing suits for torture and extrajudicial killings under color of foreign law. In 2012, in Mohamad v. Palestinian Authority, the Supreme Court ruled that the TVPA allows for suits only against individuals and not corporations. Mohamad and Kiobel, taken together, significantly reduce the possibility that corporations can be held accountable in US courts for human rights abuses committed abroad.   

Finally, the Kiobel decision has no bearing on criminal prosecutions involving human rights violations committed abroad under US federal laws that criminalize genocide, recruitment of child soldiers, war crimes, or torture committed abroad and is applicable in many instances where neither the victim nor alleged perpetrator is a US citizen.