The Human Rights Blog

Liam Kelly holds History of Art degree from Nottingham University.  He writes for newspapers, magazines, and blogs in the UK. He is also an Amnesty International member, human rights advocate, and campaigner with particular focus on the United Nations Arms Trade Treaty. Liam curates the Twitter feed @ArmsTreaty.

This may sound bananas, but there are currently no legally binding, international rules regulating the arms trade. In fact, it is easier to trade guns than it is to trade bananas.

The global trade in arms and ammunition has an enormous human cost. We’re not talking about harmless yellow fruit here; we’re talking about bullets, guns, grenades, bombs, mortars, and missiles, otherwise collectively known as conventional arms. Every day, thousands of people are killed, injured, raped, and forced to flee from their homes as a result of armed conflict, armed violence, and human rights violations and abuses which are perpetrated using conventional arms. The statistics are horrifying.

And just as it sounds bananas that this is happening, it might also sound like we’re talking about distant humanitarian disasters and malevolent, unscrupulous governments in a galaxy far, far away from here. We’re not. The U.S. is the world’s single largest arms exporter, along with the United Kingdom, Russia, China, Germany, and France[1], and despite national regulations, has sent arms to some highly questionable people, as have the rest of this group. These nations, which make up the United Nations Security Council (UNSC) Permanent Five Members, plus Germany[2], are suppliers to human rights abusers, despots, and dictators the world over.

The UK Prime Minister, David Cameron, recently visited Asia accompanied by representatives from leading British defense firms (‘defense firm’ being arms dealer parlance for ‘arms dealer’), touting for business.[3] He was closely followed by Foreign Secretary William Hague who, when asked an uncomfortable question about British arms exports by a journalist in Singapore, replied with a standard diplomatic response;

“We have one of the most rigorous systems of scrutiny. Our arms exports with any other country in the world are at par with the rest of the E.U.”

So rigorous that British Hawk jets were used by the Indonesian military to bomb unarmed innocent civilians in East Timor during the genocide there.[4] [5] [6]

David Cameron’s February 2011 trip throughout North Africa at the height of the Arab Spring, again accompanied by British arms dealers[7], prompted the same rehearsed line. However, inadequate and loophole-ridden national regulations of international transfers of conventional weapons permit arms to be supplied to those flagrantly violating human rights and humanitarian laws. Just as the UK supplied Indonesia with fighter jets, so has it repeatedly supplied dictators like Gaddafi and Mubarak in places such Libya, Egypt, Bahrain, and Saudi Arabia with arms used for repression.[8]

Secretary Hague, however, does have a point; the UK’s system is one of the most rigorous compared to the rest of the world. The problem being, it’s just not good enough.

The catastrophic results of the globally unregulated arms trade

In an average year, small arms kill around a third of a million men, women and children – and leave hundreds of thousands more injured, disabled, and traumatised. Additionally, there are an estimated 300,000 armed killings outside of conflict each year. One person is killed every single minute of every single day by armed violence – in that same minute, 15 new arms are manufactured. Conflict costs African countries $18bn USD every year, and there are an estimated 300,000 child soldiers in the world today, primarily in Africa.[9]

So why does the world pay this terrible price? The simple and sad answer is that the arms trade is worth billions.

Highly profitable arms fuel today’s most violent conflicts. Bashar al-Assad’s Syrian regime continues to receive arms used to commit massacres and war crimes from Russia[10], with Turkey, Saudi Arabia, and Qatar widely suspected to be supplying Syrian rebels who in turn have committed grave human rights violations. Violence rages in the Democratic Republic of Congo, Sudan, and South Sudan, where China is accused of supplying arms in exchange for oil and gas despite UN arms embargos, which have little impact on stopping the flow of arms.[11] The impotency of UN arms embargos has been demonstrated almost every time a UN arms embargo has been placed, severely lacking in both scope and enforceability.

The issue seems to have entered the public consciousness earlier this year after two high profile convictions. First, after a protracted extradition from Thailand, notorious arms trafficker Viktor Bout was convicted and sentenced to 25 years by a U.S. court for agreeing to sell arms to people he thought were Colombian militants intent on attacking American soldiers.[12] The so-called ‘Merchant of Death’ was previously committed to the silver screen in the Hollywood film Lord of War, where he sells and ships arms to dictators and murderers all over the world, fuelling some of the most brutal conflicts in modern history, including those of Liberia and Sierra Leone.

One of Bout’s regular customers was the former President of Liberia, Charles Taylor, coincidentally the second high profile conviction of 2012. In June, he was sentenced to 50 years imprisonment by the Special Court for Sierra Leone at The Hague for war crimes after his role in arming, aiding, and abetting RUF rebels in Sierra Leone in exchange for ‘blood diamonds,’ contravening UN arms embargos at the time.[13] Taylor directly supplied weapons, moral and tactical support, and encouragement for RUF rebels who committed heinous crimes; murder, mutilation, the decapitation of children, and widespread sexual violence. Many of these crimes could not have been committed were the perpetrators not armed.

But the cases of these two individuals merely scratch the surface of the murky world of the global arms trade. The Viktor Bouts and Charles Taylors of this world are instantly replaced by more arms dealers and war criminals and the endless flow of arms continue to fuel the bloodshed. This tragedy must, and can, be stopped.

Control Arms Campaign

The Control Arms campaign, a global civil society alliance campaigning for a “bulletproof” Arms Trade Treaty (informally know as ATT), is calling for a global, legally-binding Treaty, to control this deadly trade, where none currently exists. Over one million people signed their Million Faces Petition, which was presented to UN Secretary General Kofi Annan in 2006. Then, at the UN General Assembly in December 2006, a huge majority of 153 governments voted in favor of developing an ATT. In 2009, work began in earnest on developing a treaty.[14] The final negotiating conference is now in session, having begun on July 2^nd.

Despite these successes, some governments want to weaken the Treaty by not including ammunition for example, governments such as the United States. After three weeks of the scheduled four, negotiations are not going well. Procedural wrangling and delay tactics have managed to take talks off track, though they have not yet been completely derailed.

Of the world’s biggest arms exporters (the UNSC Permanent Five plus Germany), France, Germany, and the UK have voiced strong support for a robust ATT, which includes all conventional arms and ammunition. The US, influenced by interpretations of the Treaty’s scope by the National Rifle Association, is now siding with Russia and China (and a minority of nations such as Iran, Cuba, and Pakistan) in attempting to water down the ATT.[15] The NRA fears the Treaty will interfere with the Second Amendment, a misguided posture given that the ATT explicitly states it is only intended to regulate the transfer of arms across international borders, not domestically.

Pressure needs to be kept on governments to make sure that they do not weaken the Treaty, to ensure that human rights are at its heart. The demand is simple: no arms for atrocities, no transfer of arms or munitions to places where there exists a risk that they will be used for human rights abuses.

What Happens Next?

As we enter the final week of negotiations, the situation could not be more precarious. A majority of nations are pushing for a strong treaty, with a minority of powerful nations resisting, placing “national interests” above human rights, above human life. The decisions made at the UN in the next few days will directly affect the lives of millions of people affected by armed violence – this is literally a case of life or death.

We are on the verge of what could be one of the greatest human rights breakthroughs in history. But we are not there yet.

Notes:

What’s the deal with bananas and the global arms trade?

Full text of the revised ATT

Popularity: 3% [?]

David Prater, J.D. Candidate 2012, The University of Maryland School of Law

On February 3, 2012, the International Court of Justice (“ICJ”) handed down its decision in the Jurisdictional Immunities of States Case (Germany v. Italy, w/Greece Intervening).   Germany won the case.

At issue before the ICJ was the immunity of Germany from the judicial process of Italy (and Greece) for forced labor, deportations, and massacres committed by German armed forces during the Second World War.   The Court held that the long standing principle of immunity of states from the judicial process of foreign domestic courts could not be abrogated even when the substantive claim before the foreign domestic court involved gross violations of human rights on the territory of the forum state by organs of the foreign state acting in their official capacity.

This decision comes at a time when a significant obstacle for the successful conclusion of on-going stalled armed conflicts is the immunity of armed forces for violations of human rights committed during the course of the armed conflict.   By declining to abrogate foreign sovereign immunity, the Court likely had an eye toward allowing states the freedom of action to successfully negotiate peaceful resolutions to armed conflicts, rather than prolong peace in hopes of achieving an all victory in order to forego responsibility for the acts of armed forces during the course of the armed conflict.

Background

The Second World War was a global conflict.   Almost no territory was left untouched by its effects.   The atrocities committed during the war spawned the current international legal order and was the genesis of the human rights movement.

In Italy, German armed forces forced Italian civilians into slavery and deported them to Germany to work in factors.  In Greece, German armed forces committed a massacre against Greek civilians thought to have an affiliation with Greek partisans.

During negotiations to formally end the war after Germany’s unconditional surrender, Germany agreed to undertake various reparations schemes to compensate victims of the Third Reich’s odious policies while Italy and Greece agreed to waive all claims of it civilians arising from the war.  However, the claims of numerous victims were invalidated by Germany’s compensation commission for a variety of procedural and substantive reasons.   In particular was one Mr. Ferrini, who was forcibly deported from Italy to Germany and forced into manual labor.  Germany claimed Mr. Ferrini was detained as a prisoner of war and was excluded from the competency of their reparations scheme.

Mr. Ferrini brought suit in Italian domestic courts against the state of Germany for the injuries, mental and physical, suffered by him during his forced deportation and subsequent labor in Germany during the course of the war.  Germany declined to participate in the adjudication because Germany insisted that the state of Germany maintained immunity from the judicial process of Italy.  Generally, a state is immune from the judicial process of foreign domestic courts when it commits sovereign acts.  However, when a state acts in a commercial capacity or on the territory of the foreign forum’s territory, the state can be subjected to the judicial process of a foreign domestic court.

In its holding, the Italian court declined to honor Germany’s immunity from judgment of its courts and proceeded to hold Germany responsible for the damages suffered by Mr. Ferrini.  To satisfy the judgment, Italian courts executed on several German owned properties within Italy that were used by Germany for cross-cultural purposes.  Germany brought an application to the ICJ to resolve the dispute between Germany and Italy regarding Germany’s immunity from the judicial process of foreign domestic courts.

The ICJ held that the exercise of jurisdiction by Italian courts and the execution of those judgments was a violation of international law.  The ICJ reasoned that states retain their immunity for the acts of their armed forces committed on the territory of a foreign state during the course of an armed conflict.   This judgment severely restricts the rights of states to adjudicate gross violations of human rights that occur on their territory.

Please see video: Nazi massacre village fights for compensation

Analysis

The ICJ’s opinion in the Jurisdictional Immunities of the State should first be placed in its proper historical context.  No country was left untouched by the Second World War and conduct comparable to those committed by Germany at issue in the Ferrini case were committed by virtually every country.  For instance, the United States used uncompensated forced labor of German POWs and civilians after their occupation of Germany.  This does not suggest some form of moral equivalency between the regimes, but rather suggests that if the ICJ were to allow claims from over 60 years ago to be resurrected against states who committed gross violations of human rights virtually every state would be subjected to trial proceedings in every far-reaching jurisdiction across the globe.  This would severely strain international diplomacy and the comity enjoyed between states.

Secondly, the ICJ opinion should be placed in its contemporary context.  Current armed conflicts in Israel, Iraq, and Afghanistan have resulted in gross violations of human rights by both opposing forces.  If the ICJ were to permit the abrogation of sovereign immunity, regardless of treaty provisions waiving all claims, for gross violations of human rights committed by armed forces the effect would likely be to prolong the conflict until one side could claim a victory sufficient to suppress any claim against the state.  In fact, issues of immunity were central to the United States decision to withdraw from Iraq.  Read more about the Haditha massacre and immunity of armed forces here.

If states were permitted to abrogate their obligations under treaty and custom for legal claims arising from an armed conflict, then international peace and security between states would be tenuous.  However, the result permits states to sail the rights of their civilians down the river to negotiate what is the best resolution for states, and not the civilians to whom the state is purportedly responsible.

On another matter, the Jurisdictional Immunities of the State opinion appears to leave the ICJ’s most ambitious human rights doctrine – convergence – in limbo.  The convergence doctrine holds that a state’s obligations under international human rights law are not suspended when the state enters into an armed conflict.  In the Armed Activities Case (Democratic Republic of Congo v. Uganda), the ICJ held that an occupying power had obligations not only as the occupying power under the Fourth Geneva Convention but also had obligations under any treaty in force before the occupying power took effective control of the territory.   Under the principle articulated by the ICJ in the Jurisdictional Immunities of the State, civilians in formerly occupied territory can have no recourse through domestic courts for human rights violations committed by foreign armed forces during an armed occupation.  These disputes can only be resolved through bilateral negotiations between states.

Conclusion

In the Jurisdictional Immunities of the State Case, the ICJ handed down a decision that weighed heavily in favor of state interests over individual human rights claims.  While the effects of the decision conform to traditional principles of international law that emphasize a ‘community of nations’ over the rights of individuals, the decision sends a strong signal to human rights activists that the ‘humanization’ of international law is far from assured and that state interests continue to seriously impede the full aspiration of the human rights movement especially to those most vulnerable to violations, persons living in areas of conflict and occupation.

Popularity: 6% [?]

THRB Contributor, Paul Scrom, J.D. Candidate 2012, Hofstra University School of Law

On October 4th, the UN Security Council failed to pass a resolution denouncing the Syrian government’s ferocious oppression of opposition protesters.  Both China and Russia decided to veto the resolution, recalling memories and revealing traces of the Cold War battle between democracy and authoritarianism.  Further, China especially, fears and loathes the interference of the Western world into the internal affairs of other nations.

China and Russia feared the resolution, which condemned “grave and systematic human rights violations,” would allow the West and NATO to use this as an excuse to bomb Syria, as they did with Libya.  The UN passed a similar resolution denouncing Libya.  The resolution proposed tough sanctions on Syria if they failed to end their brutal crackdown on political protesters within 30 days of its passing.  The United States, E.U., and Canada have already imposed unilateral sanctions on Syria and have called for President Bashar al-Assad to give up his authoritarian rule.

This crisis is not the only time where the use of the veto power by one of the five permanent members of the UN Security Council (the United States, China, Russia, France, and the United Kingdom), has stymied human rights efforts.

Background: Syrian Dissidence

Syrian dissent began to emerge in March of 2011, following in the footsteps of other Arab Spring uprisings throughout the Middle East.  Beginning with Egypt and Tunisia at the end of last year, the Arab Spring, or the Arab Revolutions, involve civil strikes, demonstrations, rallies, and protests of a multitude of grievances including dictatorship rule, human rights abuses, unemployment, and corruption.  In Syria, the movement began in March when protests erupted in major cities.  In reaction to the protests, President al-Assad sealed off the city of Deraa after five citizens were reportedly killed by state security forces.  The protests continued amid government concessions and reform of the President’s cabinet and high ranking officials, as the President failed to lift an emergency ban on protests and pointed the blame of the deaths on alleged violent participants and foreign influence.  The President further cracked the whip and deployed soldiers to take over cities in which the protests continued. 
Security forces have continually fired upon protesters and the UN reports that over 2900 citizen protesters have been killed since March.  Teachers, civil workers, hospitals and colleges have all been targeted in attempt to squash the protests, including the beheading of a Syrian woman searching a morgue for her activist brother.  The protests have continued to grow despite the reactive human rights abuses by the Syrian government.  The opposition even created the Syrian National Council, a representative body comprising of 115 different dissident groups.

The sanctions implemented against Syria have crippled its economy, specifically its tourist sect, which has become virtually non-existent.  But, the Syrian President holds steadfast and refuses to concede his power.  The UN resolution was an attempt at a potential final blow to the President’s unwavering will, but Russia and China have blocked the proposal.  In fact, Syrian officials have issued threats of suicidal attacks, claimed to be already in place, on the homelands of any Western nation, which tries to physically interfere with the internal affairs the nation.  Similar threats were made to those who choose to recognize the Syrian National Council.  Although Russia claims the veto was used to give the Syrian government a last straw ultimatum, the Russian and Chinese vetoes will have the effect of prolonging human rights abuses in Syria.

The Veto Power and its Use During Human Rights Crises:

Article 27 (3) of the UN Charter gives the Security Council P5 members the power to veto any Council resolution. This power arose out of a concern for protecting the major world powers’ sovereignty and a fear of the world powers abstaining from UN participation.  The power also causes a threat to resolutions before they are even voted on as the draft of a resolution must also be approved by the P5 and other security councils must often politically concede points in hopes of passing a proposed resolution.  Proponents of the veto fear a world without it: the international community would be free to act unpredictably and stomp on the sovereignty of nations.  But this criticism ignores the fact that the other 10 members of the council are elected and serve only two-year terms.  Also, if the veto power was eliminated the resolutions would still only pass with a majority vote.  Historically, the predecessor to the UN, the League of Nations, failed, among other reasons, for the lack of permanence and assurance of participation of the main world powers, specifically the then Soviet Union.  Both the modern and historical reasons for the veto power are obsolete, yet it has had the unfortunate consequence of delaying the prevention of human rights abuses.

Besides the current situation in Syria, the veto power has thwarted attempts at improving human rights in Burma, the West Bank and Gaza Strip, Zimbabwe, Kosovo, and Rwanda, among others.  In 2007, China and Russia also vetoed a resolution, which sought to release thousands of political prisoners, stop the use of sex as a tactic of suppression, and slowly implement democratic reforms.  Although the Burmese Military Junta held power since 1962 and perpetuated such abuses since, China and Russia felt the UN had no say in the internal affairs of the country and it did not pose a direct threat to world peace.  It is important to note that the resolution managed a majority of votes from the Council at the time.  Also, the U.S. has continually used its veto powers to prevent investigation into alleged human rights abuses occurring in the contested areas of Palestine and Israel.  For example, in 2001, the U.S. vetoed a resolution, which sought to deploy un-armed, neutral monitors to the West Bank and Gaza Strip, which were then occupied by Israel.  Despite reports from Amnesty International and Human Rights Watch, the U.S. refused to abstain or vote in favor of the proposed resolution for a neutral investigation because of biased politics.  China and Russia also vetoed a resolution proposing sanctions on Zimbabwe for their human rights abuses in 2008.  Lastly, the threat of a veto has also been cited as the cause behind the inaction of the Council during the genocides in Sudan, Darfur, and Rwanda.  It has been a common theme that the world often regrets its inaction after the fact, and yet the veto power persists.

Eliminating the Veto:

The veto power has often been criticized and many have proposed alternatives to it, and even supported its destruction.  The veto represents an old, arbitrary, and unfair imbalance of power, which exists only because of the way in which the UN was formed.  The world powers following World War II knew their presence was necessary and was offered permanent placement on the council, along with the veto power, as a result.  Some argue the 1950 UN General Assembly resolution, “Uniting for Peace,” which grants the immediate review of matters in which one of the five members exercised their veto power.  Uniting for Peace has been claimed to fix the veto problem, but it has been used only 10 times, causing most proposed Security Council resolutions to die when vetoed never to be resuscitated.

Unfortunately, the veto power has yet to be eliminated, most likely due to the incredibly difficult procedural obstacle to do so.  The Security Council can only be reformed by a UN Charter Amendment, which requires a 2/3 super-majority vote of all members of the UN, including all P5 members.  The P5 members have the power to veto the elimination of their own veto power, an unlikely scenario.  It seems as though only outside pressure and influence could be the only hope to overcome the difficult hurdle to lessening the significance of the veto power.  The delay in and lack of action against human rights abuses begs for a reevaluation of the Security Council, which is most recently evidenced by the situation in Syria.  This is not a new idea, but one that deserves reconsideration as protesters and civilians in Syria are persecuted by their strong hand government.

Popularity: 6% [?]

Paul Scrom, J.D. Candidate 2012, Hofstra University

In Kiobel v. Royal Dutch Petroleum, decided on September 17, 2010, the U.S. Court of Appeals for the Second Circuit held corporations cannot be subjected to liability for Human Rights violations under the Alien Tort Statute (28 U.S.C. § 1350).  The decision was seen as a crippling blow to ATS and Human Rights litigation in the United States, especially since the Second Circuit of New York has had a reputation of being rather favorable towards ATS claims.  But, on July 8th, in Doe v. Exxon Mobil, the D.C. Circuit Court of Appeals issued a ruling contradicting the Second Circuit, and recognizing “it would create a bizarre anomaly to immunize corporations from liability for the conduct of their agents in lawsuits brought for shockingly egregious violations of universally recognized principles of international law.”  Only three days following the decision, the Seventh Circuit also joined against Kiobel and ruled in favor of corporate liability under the ATS in Flamo v. Firestone Natural Rubber.  These inconsistent Circuit decisions beg for the Supreme Court to settle the issue of corporate liability under the ATS.  The Supreme Court should find that corporations will be held responsible when its members violate the human rights of others.

Background

The Alien Tort Statute was passed in 1789 as part of the original Judiciary Act.  The statute grants 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.”  As long as the accused was properly served and processed in the United States, the U.S. courts could hear cases involving torts that occurred in violation of the law of nations.  For years this provision laid dormant, being called upon very rarely, until 1980 when Filartiga v. Peña-Irala was decided.

In Filartiga, the Plaintiff brought suit against Pena-Irala for wrongfully causing the death of his seventeen-year old son, which was a result of torture instructed by Paraguayan authorities.  The clever attorneys of the Plaintiff evoked the rarely used ATS in order to bring suit.  Defendant’s attempt to dismiss the case for lack of jurisdiction failed as the court held “that deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.”

The Filartiga holding lead to a revitalization of the ATS and its new use as an instrument for seeking compensation for violations of law of nations, specifically human rights.   The Supreme Court reinforced the legitimacy of ATS litigation in Sosa v. Alverez-Machain, although eventually finding there was no violation of the Plaintiff’s human rights for a “single illegal detention of [the Plaintiff for] less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment.”

In recent years, corporations have been included as defendants in ATS lawsuits for their aiding and abetting in violations of human rights law.  Unocal in Burma, Talisman Energy in Sudan, Rio Tinto in Papua New Guinea, Yahoo!, and others, have all been corporations accused of being involved with human rights violations.  Most of these cases settled or the notion of corporate liability went unopposed, and was somewhat accepted.  That was until Kiobel.

Kiobel v. Exxon: the Circuit Battle over Corporate Liability Under the ATS:

The main Plaintiff in Kiobel is the wife of one of the “Ogoni Nine” who were executed by Nigerian authorities for their protests against environmental pollution caused by oil companies, among them, Royal Dutch Petroleum.  The lawsuit filed against Royal Dutch alleged that the company aided and abetted in the suppression of protests against the company’s questionable oil development activities.  The majority ruled against the plaintiffs, rejecting corporate liability under the ATS.  They focused on a footnote to the Supreme Court’s decision in Sosa.  Footnote 20 of the Opinion reads, “[a] related consideration [for accepting a cause of action under the ATS] is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.”  The court interpreted this statement (I feel, incorrectly) to mean the courts must look to international law, not domestic law, for evidence as to whether or not corporations can be held liable for violations of the laws of nations.  The court then used this footnote to analyze international customary law to conclude that it does not support corporate liability; only sovereign states and natural persons may be held liable.  Kiobel was seen as a crippling blow to ATS litigation, and many believed it would lead to its slow downfall.  But, this remains to be seen, especially since the Exxon and Firestone decisions.

In Exxon, plaintiffs, a group of Indonesian villagers, alleged Exxon security forces, who were Indonesian soldiers, murdered, tortured, raped and kidnapped local villagers.  The D.C. Circuit allowed the case to continue and rejected the Second Circuit ruling.  The court ruled that corporations can be held liable under the statute.  The Court held that the question of corporate liability must be determined by domestic law as Sosa only asked that customary international law be analyzed to determine what rights, duties, and remedies exist and are violated, not who or what is owed such rights, duties, and remedies.  Domestic law, not international customary law, governs how to react to such violations, as it is domestic laws obligation to lay out rules of procedure and evidence.  Being so, domestic law clearly illustrates that corporations must be held responsible for their transgressions and the transgressions of their agents.  The court also held that even if domestic law does not govern the question, the Kiobel court incorrectly overlooked sources of international law that point towards corporate liability, specifically the Nuremberg Trials.  The court in Kiobel argued that corporate liability was absent from the Nuremberg Trials, falsely concluding that this meant corporations like I.G. Farben could be held liable.  But, the court in Exxon explained how Farben was destroyed because of their violations of customary international law during the Nazi Regime.  The Exxon decision is lengthy, about 112 pages, and this is a short summary of the rejection of the Kiobel holding.  Please see the links below, and the actual case, for more of the court’s arguments.

In the Seventh Circuit, just days following Exxon, Judge Posner’s decision in Firestone, echoed the arguments of the D.C. Circuit, and further split the Circuits, 2-1 in favor of corporate liability (note some scholars feel the count is actually 3-1, including the Eleventh Circuit’s decision in Romero v. Drummond Co., although the decision did not give a complete analysis on the issue).  The Circuit split foreshadows the likelihood that the Supreme Court will accept the Writ of Certiorari (the request for review by the U.S. Supreme Court), filed in June by the plaintiffs in Kiobel.

Conclusion:

The Circuit split illustrates the legal complexity surrounding corporate liability for human rights violations in U.S. courts under the ATS.  From a normative perspective, corporations should be held liable for the actions of their agents, especially when they had knowledge or gave direction to such actors.  The power and influence of corporations alone makes them a dangerous entity which frequently exacerbates the evil of individuals.

Supporters of the Kiobel position fret about the courts ruining and interfering with foreign affairs, which is something the political branches (Congress & the President) are responsible for.  There is a fear of tarnishing relationships by dragging foreign corporations into U.S. courts for actions done off of U.S. soil.  This fear is not unfounded as the Indonesian government in Exxon and the Nigerian government in Kiobel have both called for dismissal of the respective cases.  But Congress has already made this decision with the passage of the ATS and its acquiescence to the development of ATS litigation.  The courts are only applying the statute as it was passed, and interpreting it accordingly, just like they do for any other statute.  Further, when these countries are involved with such activities (like Indonesian authorities guarding Exxon’s plant), shouldn’t normative values prevail?

Legally, the arguments are extremely close, and that is why there is a circuit split, which will likely lead to the Supreme Court either hearing the Kiobel appeal, or taking up Exxon or Firestone in the near future.  I believe the Exxon camp has the stronger arguments based on a textual and historical analysis of the statute, especially considering Kiobel’s overemphasis of Sosa’s footnote 20.  The need for strong international consensus under the ATS as explained in Sosa, only deals with the types of acts which are to be considered violations of the law of nations, not who is to be responsible for them.  Often, those subject to such horrible acts as torture and rape, like in Exxon, cannot obtain sufficient remedies by seeking out individual pawns of a corporate scheme.  It is up to the Supreme Court to decide whether or not the United States will be a legal venue to hear such claims.

For a wonderful in-depth legal and historical analysis of corporate liability under the ATS (although ultimately concluding against it), please read Professor Julian Ku’s paper, “The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed System of Judicial Lawmaking.”  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1721528

(note this paper was published prior to the Exxon and Firestone decisions)

For more information please watch Marco Simons, the legal director of Earthrights International, giving a speech following Kiobel on corporate liability under the ATS.

For more opinions and background please read:

Chimène I. Keitne: “Kiobel v. Royal Dutch Petroleum: Another Round in the Fight Over Corporate Liability Under the Alien Tort Statute,” available at http://www.asil.org/insights100930.cfm

John Bellinger: “DC Circuit ATS Decision in ExxonMobil Sharpens Circuit Split,” available at http://www.lawfareblog.com/2011/07/dc-circuit-ats-decision-in-exxonmobil-sharpens-circuit-split/

Karen McGregor: “Ogoni Nine hanged as Indifferent West Failed to Respond,” available at http://www.independent.co.uk/news/world/africa/ogoni-nine-hanged-as-indifferent-west-failed-to-respond-699325.html

Popularity: 9% [?]

The Human Rights Blog seeks two volunteer Bloggers/Contributors to offer monthly articles to the publication.

Position:  Blogger/Contributor (2)

Responsibilities:

The Blogger/Contributor will be responsible for one substantive article per month.  Possible blog topics may include, but are not limited to, human rights, international law, children’s advocacy, religious freedom, the rights of indigenous and underrepresented groups, and foreign policy as related to social justice issues.  Candidates with particular interest in topics relating to Christians of the Middle East, Europe’s Roma, Chinese dissidents, and the sociopolitical situation in the Democratic Republic of Congo will be given special consideration.

Note:  While each Blogger/Contributor will have the freedom to formulate their own pieces, the Editor-in-Chief must approve each topic, as all articles must be representative of the views and ideologies of The Human Rights Blog.  Each piece must be well researched and factually accurate as to maintain the integrity and reputation of the publication.

Qualifications:

The position of Blogger/Contributor is open to students and professionals alike.  The position is especially ideal for law students or graduate students of human rights, comparative politics or international relations who wish to weigh in on the global discussion of human rights.  Undergraduate students with demonstrated writing proficiency will also be considered.  The Human Rights Blog encourages applications from individuals from a variety of backgrounds and nationalities.

To apply:

Send a short statement of interest, resume or CV, and two writing samples (no more than three pages each) to Justina Uram Mubangu at justinamarie [at] thehumanrightsblog [dot] com.

The Human Rights Blog is dedicated to the discussion and dissemination of human rights and international law related news and information.  Since its launch in November 2009, The Human Rights Blog has received over 176,000 page views from 129 countries.

Popularity: 2% [?]