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U.S. Supreme Court: Can Multinationals Be Sued for Crimes?

by Pratap ChatterjeeCorpWatch Blog
March 1st, 2012

Project Underground poster on Shell

Barinem Kiobel was executed on November 10, 1995 by the military dictatorship of General Sani Abacha of Nigeria. Almost 16 years later, the U.S. Supreme Court is poised to decide whether Shell, the Anglo-Dutch oil multinational, can be held responsible for his death.

The lawsuit has been brought under the Alien Tort Claims Act of 1789 which allows lawsuits against individuals in U.S. courts for violations of international law – but what the court will decide is if this law applies to corporations. If the Supreme Court rules in favor of the plaintiff – his widow Esther – it could represent a watershed in holding corporations accountable for crimes around the world. (See EarthRights for more on Alien Torts)

The 42 year old was one of nine activists from Ogoni land in the Niger Delta who were sentenced to death by hanging. Ken Saro-Wiwa, another of the men who was executed that day, had already become an international cause celebre as a poet and an outspoken leader of the Movement for the Survival of the Ogoni People (MOSOP) that was leading protests against the massive pollution of the region caused by its oil extraction. (See MOSOP website here)

In 2009, Shell agreed to pay out $15.5 million to settle a lawsuit brought by the Center for Constitutional Rights on behalf of Saro-Wiwa’s family against the company in which they were alleged to have conspired with the military to capture, torture and kill protestors. The company did not admit guilt: "While we were prepared to go to court to clear our name, we believe the right way forward is to focus on the future for Ogoni people," Malcolm Brinded, a Shell director, said at the time. The money was placed in a trust for the education of the Ogoni people. (See the Center for Constitutional Rights summary here)

“Businesses with mining and drilling operations abroad decimate local populations with the full consent of brutal regimes, and when the people affected assemble and protest, family members are abducted, people are murdered, profits are defended at all costs and no local justice or accountability is possible because of government complicity,” wrote Vincent Warren of the Center for Constitutional Rights in the New York Times. “The decision before the court now boils down to whether corporations — considered legal persons already in many cases — should be held to the same standards of accountability as actual people when they commit egregious crimes.”

Susan Farbstein and Tyler Giannini, the directors of the International Human Rights Clinic of the Harvard Law School agree: “In exchange for rights, corporations accept certain responsibilities, including liability for harms committed by their agents,” they wrote in the same newspaper.

What makes this argument compelling is another decision made by the Supreme Court on January 21, 2010, in Citizens United v Federal Election Commission, where the justices decided, by a vote of five to four, that, since corporations were legal persons, they were entitled to the protection of the first amendment, which guarantees freedom of speech. (The case was brought by Citizens United, a company that wanted to air a film critical of Hillary Clinton)