Blog: Alien Tort Statute

June 13, 2012

Clinic Files Supplemental Brief with the U.S. Supreme Court in Kiobel Case

Posted by Tyler Giannini and Susan Farbstein

After months of hard work, the International Human Rights Clinic filed today a supplemental brief of amici curiae professors of legal history with the U.S. Supreme Court in support of petitioners in Kiobel v. Royal Dutch Petroleum Co. We’ll post more about this tomorrow, after we’ve gotten a good night’s sleep.

For now, we wanted to say that this wouldn’t have been possible without the superlative work of our students (and now graduates), Poppy Alexander ’12, Yonina Alexander ’12, Russell Kornblith ’12, and Daniel Saver ’12. We’re so fortunate to be able to work with such talented individuals every day.

Share By Email

loading
Close

May 11, 2012

Susan Farbstein Appointed Assistant Clinical Professor and Co-Director of the International Human Rights Clinic

Posted by Martha Minow, Dean, Harvard Law School, and Tyler Giannini

As a teacher, a mentor, a clinician, and a colleague, Susan Farbstein has already made her mark on the Human Rights Program over the past four years. Today we have the privilege of announcing that she has been appointed as an Assistant Clinical Professor at Harvard Law School and will become a Co-Director of its International Human Rights Clinic. We look forward to many more years of her leadership, both within the Human Rights Program, and in the larger Law School community.

Susan Farbstein stands talking to a student wearing a hijab in a classroom.
Susan Farbstein speaks with a student at the Human Rights Program orientation last autumn. Farbstein is a national leader in the area of Alien Tort Statute litigation.

Share By Email

loading
Close

December 22, 2011

Clinic Files Amicus Curiae Brief with U.S. Supreme Court on Behalf of Legal Historians


PRESS RELEASE

Brief in Kiobel v. Royal Dutch Petroleum Co. argues that corporations can be held liable for violations of the law of nations under the Alien Tort Statute


December 21, 2011, Cambridge, MA—Harvard Law School’s International Human Rights Clinic has submitted an amicus curiae brief to the U.S. Supreme Court in support of petitioners in a major Alien Tort Statute (“ATS”) case, Kiobel v. Royal Dutch Petroleum Co.  Nine eminent legal historians joined the brief as amici: Barbara Aronstein Black, William R. Casto, Martin S. Flaherty, Robert W. Gordon, Nasser Hussain, Stanley N. Katz, Michael Lobban, John V. Orth, and Anne-Marie Slaughter.

Associate Clinical Director Susan Farbstein, JD ’04, and Clinical Director Tyler Giannini served as counsel for the amici, who argue that Congress enacted the statute so that plaintiffs would have a meaningful civil remedy in federal court for violations of international law.  The brief outlines how creating a special exemption for corporate defendants, as the Court of Appeals did in Kiobel, contradicts the original purpose of the ATS as well as its plain text.

“Excluding corporations from liability for the most egregious violations of international law ignores the Founders’ purpose in enacting the ATS,” said Giannini.  “Long before the ATS was passed, courts were holding entities such as the British East India Company accountable for the wrongs they committed.”

Poppy Alexander, JD ’12, and Russell Kornblith, JD ’12, served as student leaders on the team that assisting with drafting.  Clinical students Yonina Alexander, JD ’12, Catherine Fischl, JD ’12, and Daniel Saver, JD ’12, also contributed to the brief.

“The project presented a unique opportunity to work closely with a talented team of students and professors, who were all dedicated and focused on the same end goal,” Poppy Alexander said. Kornblith added, “I feel incredibly privileged to have been a part of this team whose work spanned three countries and four centuries.”

Since the U.S. Supreme Court granted certiorari in the case, more than a dozen other HLS students and alumni around the world have contributed to an international research effort supporting for the brief: Bradford Adams, JD ’12, Sam Birnbaum, JD ’14, Tess Borden, JD ’14, Nikolas Bowie, JD ’14, Carly Cohen, JD ’13, Elizabeth Floyd, JD ’14, Josh Frieman, JD ’13, Meghan Heesch, JD ’12, Julian Hill, JD ’14, Clara Long, JD ‘12, Meg McDermott, JD ’13, Julien Savoye, LLM ’12, and Sarah Wheaton, JD ’14.  In addition, Deval Desai, LLM ’09, supervised a team of students at the School of Oriental and African Studies who contributed research assistance: Mary Johnson, LLM ’12, Catherine Lancaster, MA ’12, Allison Lindner, LLM ’11, Whitney Purdum, MA ’12, Luke Smitham, MA ’12, Anjana Varma, MA ’12, and Jessica Whelligan, LLM ’12.

Kiobel should be reversed because it departs from more than a decade of jurisprudence holding corporations liable under the statute,” said Farbstein.  “If left to stand, the decision would deprive survivors of corporate misconduct of a valuable tool for seeking justice, contrary to the intent of the Founders.”

In Kiobel, Nigerian plaintiffs filed claims for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention. The plaintiffs allege that Royal Dutch Petroleum collaborated with the Nigerian government to commit these violations in order to suppress their lawful protests against oil exploration.  In a September 2010, ruling, the Second Circuit became the first appellate court to reject the proposition that corporations may be held liable under the ATS for torts in violation of international law.

Kornblith noted that, “Courts have held corporations responsible for their actions for centuries, and the lessons of the past cannot become the mistakes of tomorrow.” Alexander continued, “We cannot forget that in spite of the work we did, there are a lot of people with a lot more riding on this. It has been a privilege to work for justice for them.”

Oral argument before the Supreme Court has been scheduled for February 28, 2012, and a decision is expected by June 2012.

Contacts:

  • Susan Farbstein, Associate Clinical Director, Human Rights Program, Harvard Law School: 617-835-8257, [email protected].
  • Tyler Giannini, Clinical Director, Human Rights Program, Harvard Law School: 617-495-9263, [email protected].
  • Cara Solomon, Communications Coordinator, Human Rights Program, Harvard Law School: 617-495-9214, [email protected]

Share By Email

loading
Close

December 1, 2011

In Creating a Corporate Carve-Out, Kiobel Ignores History

Posted by Cara Solomon

For those of you following Kiobel news, Tyler and Susan have submitted their closing statement in PENNumbra’s online debate, arguing that the Second Circuit’s ruling ignores history in creating a corporate carve-out.  The U.S. Supreme Court is due to hear the Kiobel v. Royal Dutch Petroleum Co. case early next year, deciding for itself whether corporations can be held liable for violations of international law.

Here’s a sampling from the flood of recent media coverage: from The Atlantic, Opinio Juris blog, and The Huffington Post.

Share By Email

loading
Close

October 17, 2011

Supreme Court Grants Cert in Kiobel, Deciding to Hear Corporate ATS Case

Posted by Tyler Giannini and Susan Farbstein

The Supreme Court announced today that it will hear arguments in Kiobel v. Royal Dutch Petroleum Co., an Alien Tort Statute (ATS) case that squarely presents the question of whether corporate liability exists under the statute.  Since June, when the plaintiffs in Kiobel filed their petition for certiorari, there have been significant developments around the question of corporate ATS liability as two courts of appeals rejected the Kiobel position.  In taking the case, the Supreme Court should resolve this split in the lower courts.  The hearing will occur during the 2011-2012 term, and a decision can be expected by June 2012.  Kiobel involves allegations against Royal Dutch/Shell for its complicity in egregious human rights violations, such as extrajudicial killings, in the mid-1990s in Nigeria.  Of note, the Court combined argument in Kiobel with Mohamad v. Rajoub, which poses the question of whether corporations may be held liable under the Torture Victim Protection Act (TVPA).

Share By Email

loading
Close

June 18, 2011

Clinic Files Amicus Curiae Brief with U.S. Supreme Court


PRESS RELEASE


Brief in major corporate Alien Tort Statute case argues, on behalf of legal historians, that corporations can be held liable
for supporting and assisting human rights violations

June 17, 2011, Cambridge, MA—Harvard Law School’s International Human Rights Clinic submitted an amicus curiae brief to the Supreme Court today in support of a petition for certiorari in a major corporate Alien Tort Statute (ATS) case, Kiobel v. Royal Dutch Petroleum Co.

The Clinic served as counsel of record on behalf of professors of legal history who argue that Congress adopted the ATS to provide plaintiffs with a meaningful domestic remedy in federal court for violations of international law.  According to the amici, creating a special exemption for corporate defendants, as the Second Circuit did in Kiobel, contradicts the original purpose of the statute as well as its plain text, and ignores the history of enforcement of international law violations against corporations.

“Dating back to the 1600s, with cases against the East India Company involving violations of international law, the historical record shows that the Second Circuit erred in its ruling,” said Clinical Director Tyler Giannini.  “The drafters of the Alien Tort Statute wanted to provide a broad remedy for all torts in violation of the law of nations, and the text of the statute excludes no class of defendant.”

Giannini and Associate Clinical Director Susan Farbstein served as counsel and supervised the writing of the brief.  Harvard Law School students Poppy Alexander, JD ’12, Russell Kornblith, JD ’12, and Marissa Vahlsing, JD ’11, contributed to the research, conceptualization, and drafting of the brief.

“We spent countless hours reading the cases and treatises that the framers of the ATS would have read,” Alexander said.  “To have the opportunity in law school to work this closely with a team that includes eminent legal historians, to help form an argument, and then to see it through to the end, is very special.”

The Kiobel opinion represents a significant departure from established ATS jurisprudence, and deprives survivors of corporate misconduct of a valuable tool for seeking justice.

“If the Second Circuit’s decision stands, a corporation could operate the modern-day equivalent of the Nazi death camps or trade in slaves, and it would be exempt from civil liability under the ATS,” Farbstein said.  “History shows that the statute’s drafters never would have contemplated such a corporate exception.”

Continue Reading…

May 16, 2011

Appeals Court to Hear Arguments in Case Charging Former Bolivian President for Role in 2003 Massacre


PRESS RELEASE


May 16, 2011, Miami, FL —The Eleventh Circuit Court of Appeals will hear oral arguments tomorrow in Miami, Florida in Mamani v. Sánchez de Lozada and Sánchez Berzain.  The case brings claims under the Alien Tort Statute (ATS) on behalf of ten Bolivian plaintiffs against the former Bolivian president, Gonzalo Sánchez de Lozada, and Bolivian defense minister, José Carlos Sánchez Berzaín, for their roles in a 2003 massacre that included targeted killings of unarmed civilians.  Both defendants now live in the United States.

“The United States should not be a safe haven for individuals who commit serious human rights violations,” said Judith Brown Chomsky of the Center for Constitutional Rights, who will argue the appeal on behalf of the plaintiffs.  “The Alien Tort Statute is an important tool for fighting impunity, and allows our clients to seek justice for the deaths of their loved ones.”

The oral argument will be heard tomorrow morning, May 17, 2011 at 9:30 a.m. at the King Federal Justice Building, 99 Northeast Fourth Street, Miami, FL.

The district court previously ruled in the plaintiffs’ favor on the motion to dismiss, allowing claims for extrajudicial killing and crimes against humanity to proceed against both defendants.  The defendants are contesting this ruling on appeal.

The oral argument will address three legal questions: (1) whether the defendants are entitled to immunity, despite an explicit waiver of immunity from the Bolivian government, which the U.S. government accepted; (2) whether the case presents a non-justiciable political question; and (3) whether the complaint, alleging intentional killings of peaceful civilians, states cognizable claims for extrajudicial killing and crimes against humanity under the Alien Tort Statute.

Continue Reading…

April 7, 2011

Remembering Joelito Filártiga

Posted by Susan Farbstein

Joelito Filártiga

Last week marked the 35th anniversary of the murder of Joelito Filártiga.  In 1976, when he was 17 years old, Joelito was abducted and tortured to death by Americo Norberto Peña-Irala, an inspector-general in the Paraguayan police.  Joelito’s sister and father filed suit against Peña-Irala in New York under the Alien Tort Statute (ATS).

The Second Circuit’s 1980 decision in Filártiga v. Peña-Irala is often considered the Brown v. Board of international human rights litigation in U.S. courts—a landmark that laid the foundation for a line of cases allowing individuals to seek justice for international law violations including torture, extrajudicial killing, and crimes against humanity.  Peter Weiss, who served as co-counsel for the plaintiffs, recently wrote a nice article about the significance of decision.

More than three decades later, human rights attorneys continue to litigate cases using the principles and precedent of Filártiga.  As someone lucky enough to work on these sorts of suits, I’m constantly inspired and motivated by the strength and thoughtfulness of our clients.  It’s worth pausing to remember Joelito and to recognize the courage and persistence of his family, as well as the many other survivors who continue to seek justice and accountability.

Share By Email

loading
Close

April 4, 2011

Oral Argument in Mamani Appeal Set for May 17

Posted by Susan Farbstein

On May 17, the Eleventh Circuit will hear arguments in Mamani v. Sanchez de Lozada and Sanchez Berzain.  The International Human Rights Clinic represents 10 Bolivian plaintiffs in this case against the former Bolivian president and defense minister for their roles in a 2003 massacre that included targeted killings of unarmed civilians.  Back in November 2009, the district court ruled in the plaintiffs’ favor on the motion to dismiss, allowing claims for extrajudicial killing and crimes against humanity to proceed against both defendants.

Three legal issues are presented by the appeal: (1) whether the defendants are entitled to immunity, despite an explicit waiver of immunity from the Bolivian government, which the U.S. government accepted, (2) whether the case presents a non-justiciable political question, and (3) whether the complaint, alleging intentional killings of peaceful civilians, states cognizable claims for extrajudicial killing and crimes against humanity under the Alien Tort Statute.

Share By Email

loading
Close

March 7, 2011

Talk by Paul Hoffman Today: “The Future of Corporate Alien Tort Statute Litigation”

Posted by Susan Farbstein

Please join us today, March 8, for a talk with Paul Hoffman, Lead Counsel in Kiobel v. Royal Dutch Petroleum Co. and Sosa v.  Alvarez-Machain.

Paul is the leading Alien Tort Statute (ATS) litigator in the country, serving as counsel in numerous corporate cases including Unocal, Wiwa, Apartheid, Talisman, and Kiobel, and arguing Sosa before the Supreme Court.  Today, from 2:30-4:00 pm in Pound 335, he will speak with us about the future of corporate ATS litigation in the wake of Kiobel, the Second Circuit’s recent decision finding that corporations cannot be held liable under the statute.

After 15 years of ATS litigation against corporations complicit in human rights violations, resulting in several notable settlements, Kiobel represents a major departure in the jurisprudence.  At this particularly interesting moment, it really will be a privilege to hear Paul’s thoughts about where the courts are headed and what Kiobel means for future efforts to hold corporations accountable when they aid and abet violations of fundamental human rights.

Share By Email

loading
Close