Blog: U.S. Supreme Court

February 10, 2016

Clinic Files Petition for Certiorari in Final Attempt to Hold Two U.S. Corporations Accountable for Supporting Apartheid

Posted by Tyler Giannini and Susan Farbstein

The Clinic and its partners today filed a petition for writ of certiorari with the U.S. Supreme Court in the In re South African Apartheid Litigation suit, asking the Court to clarify the circumstances under which defendants may be held accountable in U.S. courts for human rights violations. The case, which involves the actions of U.S. corporations IBM and Ford, raises questions about whether a defendant’s knowledge is sufficient to establish aiding and abetting liability, or whether specific intent or motive must also be demonstrated. It also concerns how closely a human rights violation must be connected to the United States in order to sue under the Alien Tort Statute (ATS), and whether corporations can be held liable at all under the ATS.

The petition argues that through their actions, and decades-long support for violations associated with apartheid, defendants IBM and Ford purposefully facilitated violations of international law by enabling the “denationalization and violent suppression, including extrajudicial killings, of black South Africans living under the apartheid regime.” According to the petition, “IBM and Ford purposefully designed, sold, and serviced customized technology and vehicles for the South African government that they knew in advance would be used to racially segregate and systematically oppress black South Africans.”

Despite the corporations’ knowledge and deliberate action, in 2015 the Second Circuit concluded that IBM did not aid and abet international law violations because there was no evidence that “IBM’s purpose was to denationalize black South Africans and further the aims of a brutal regime.” In an equally striking 2011 decision, the Fourth Circuit imposed an aiding and abetting standard requiring defendants who supplied mustard gas to Saddam Hussein’s Iraqi regime to not just know but rather intend that it be used against civilians.

The petition argues that, if left to stand, the Second and Fourth Circuits’ rulings will protect U.S.-based aiders and abettors of international law violations from liability. The Second and Fourth Circuits implicitly rejected the standard set at Nuremberg, under which industrialists who knew that Zyklon-B gas would be used to commit genocide, and deliberately decided to sell it to the Nazis, were convicted. Unlike the Second and Fourth Circuits, the Nuremberg courts did not require that the defendants intended their products to be used against civilians, or that they shared the genocidal motives of the Nazis.

As the petition explains, “the Second Circuit’s standard is thus so restrictive that it is now easier to convict individuals of international crimes before the [International Criminal Court] than to find individuals civilly liable under the ATS for the same acts.” In other words, perpetrators convicted of international crimes at Nuremberg would not be civilly liable under the ATS for aiding and abetting the Holocaust.

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October 1, 2012

Update: Kiobel Transcript, Plus Media Coverage of the Case

Posted by Cara Solomon

For all of you Kiobel watchers, here’s the transcript for this morning’s argument before the U.S. Supreme Court. We’ll post Tyler and Susan’s take on the questioning as soon as we can.

Esther Kiobel speaks in front of the Supreme Court today. (Photo Credit: Too Big To Punish?)

In the meantime, here’s some media coverage of the case, some of it published before the arguments and some of it published afterward. We were particularly pleased to see Desmond Tutu’s opinion piece in USA Today, which has clearly been making the rounds.


Desmond Tutu, USA Today: “Will U.S. Rule for Rights of South Africans?”

Jodie Kirshner, The Christian Science Monitor: “Supreme Court Case Tests U.S. Leadership in Human Rights”


The New York Times: “Justice Under the Law of Nations”

The New York Times: “October Term 2012”


L.A. Times: “Supreme Court Weighs Whether Foreign Victims Can Sue in U.S.”

Slate: “Torture Inc.”

SCOTUSblog: “Argument Recap: In Search of an ATS Compromise”

Reuters: “Supreme Court May Narrow Law in Human Rights Cases”

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September 30, 2012

Supreme Court to Hear Kiobel Again Tomorrow: Much More at Stake the Second Time Around

Posted by Tyler Giannini and Susan Farbstein

NOTE: The post below was originally published Saturday on Justice Watch, a project of the Alliance for Justice. For more on the Kiobel case, including the most recent amicus briefs submitted to the U.S. Supreme Court, please click here.

Supreme Court to Hear Major Human Rights Case Again: Much More at Stake the Second Time Around

Guest Post by Tyler Giannini & Susan Farbstein

The Supreme Court will open its new term on Monday.  The first argument it hears will be Kiobel v. Royal Dutch Petroleum Co., the most significant human rights case to reach the Court in recent years.  Intense interest in the case has generated more than 80 amicus curiae briefs from a range of actors around the world, including governments, human rights organizations, and corporations.  Kiobel is especially intriguing not only because of the human rights issues at stake, but also because it will be the Court’s secondtime hearing oral argument in the matter.  This is a rarity; the last example was Citizen United, the major campaign finance case.

What are the issues?

Kiobel is an Alien Tort Statute (“ATS”) suit based on a 1789 statute that allows non-U.S. citizens to bring civil claims in U.S. federal courts for universally recognized violations of international law.  The case arises out of allegations that Royal Dutch/Shell was complicit in killings and other abuses by the Nigerian government in the 1990s.  The Court first heard Kiobel last February, addressing the question of whether corporations can be held liable under the statute.  But in an unusual move, a week later the Court requested supplemental briefing and a second oral argument. Continue Reading…

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June 14, 2012

History Shows That Those Who Commit International Law Violations Outside the United States Can Be Held Liable in U.S. Courts


Clinic files amicus curiae brief with U.S. Supreme Court on behalf of legal historians in major Alien Tort Statute case

June 14, 2012, Cambridge, MA—Harvard Law School’s International Human Rights Clinic has submitted a supplemental 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: William R. Casto, Charles Donahue, Robert W. Gordon, Nasser Hussain, Stanley N. Katz, Michael Lobban, Jenny S. Martinez, and Anne-Marie Slaughter.

Clinical Directors Susan Farbstein and Tyler Giannini served as counsel for the amici, who argue that Congress, when enacting the statute, did not intend to restrict its territorial reach. Rather, the ATS was passed to address universally-condemned violations of the law of nations, such as piracy.

“This statute was clearly designed to open U.S. courts to those who suffered egregious violations of international law, wherever they are committed,” said Tyler Giannini, Clinical Professor of Law at Harvard Law School. “The framers had in mind abuses like piracy, which necessarily takes place outside the United States.”

The U.S. Supreme Court heard oral arguments in Kiobel in late February and a week later requested supplemental briefing on the question of whether the statute encompasses violations committed outside the territory of the United States. The case, which has attracted international attention, involves claims for human rights abuses committed in Nigeria.

“Kiobel is one of the most significant human rights cases to come before the U.S. Supreme Court in years,” said Susan Farbstein, Assistant Clinical Professor of Law at Harvard Law School. “As a team, we felt honored to do the work of clarifying the historical record on how the courts have traditionally interpreted the ATS and the legal doctrines it embodies.”

Historical documents unearthed by the Clinic’s research team in British and American archives confirm that, from the outset, survivors could bring ATS claims for violations of international law occurring outside the United States. In one of the earliest interpretations of the statute, dating to 1795, the U.S. Attorney General opined that individuals harmed in a raid in British Sierra Leone could use the ATS to seek redress in U.S. courts.

“It’s been gratifying to see the principles of justice are transcendent throughout history,” said Russell Kornblith, JD ’12, who was a key member of the project team.

In addition to Kornblith, clinical students Poppy Alexander, JD ’12, Yonina Alexander, JD ’12, and Daniel Saver, JD ’12, contributed countless hours towards the brief, working in close collaboration with the amici. The Harvard team was supported by international researchers, including students from the School of Oriental and African Studies under the supervision of Deval Desai, LLM ’09.

Continue Reading…

April 18, 2012

U.S. Supreme Court Decides Mohamad v. Palestinian Authority

Posted by Susan Farbstein and Tyler Giannini

In a 9-0 decision authored by Justice Sotomayor, the U.S. Supreme Court has ruled that the use of the term “individual” in the Torture Victim Protection Act (TVPA) encompasses only natural persons.  Consequently, the TVPA does not impose liability against organizations for acts of torture and extrajudicial killing.  The full decision is available here.

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March 6, 2012

Kiobel Update: Supreme Court Orders Re-argument and Supplemental Briefing on Extraterritoriality

Posted by Susan Farbstein and Tyler Giannini

The Supreme Court will not rule this term on whether corporations can be held liable for human rights violations under the Alien Tort Statute (ATS).  Yesterday, in an unusual move, the Court instead decided that it will re-hear arguments in Kiobel v. Royal Dutch Petroleum Co. and requested additional briefing on the question of whether ATS cases can be brought in U.S. courts for abuses committed abroad.

The order for additional briefing (to be filed in May and June) and re-argument (likely to be held in October or November) means the case could now have broader implications.  If decided on the grounds of extraterritoriality, the outcome in Kiobel could affect all ATS cases, not only those against corporate defendants.

For more information on this latest development, see coverage from The New York Times, AP, Bloomberg and The Huffington Post.

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March 2, 2012

Camping Out for Kiobel

Posted by Yonina Alexander, JD ’12, and Daniel Saver, JD ‘12

Rumor had it that if we wanted much-coveted tickets to the oral argument in Kiobel v. Royal Dutch Petroleum Co., we would have to arrive at the U.S. Supreme Court very, very early.  The gallery of the Court is fairly small, and there are only a limited number of seats available each day to the general public. After a few phone calls and some internet research, we decided 4:00 am would do the trick.

On the steps of the U.S. Supreme Court after oral argument: Clinical Director Tyler Giannini, Yonina Alexander, JD ’12, Poppy Alexander, JD ’12, Russell Kornblith, JD ’12, Daniel Saver, JD ’12, and Associate Clinical Director Susan Farbstein.

Then, at 10:00 pm the night before the argument, we heard from a friend that 20 people were already lined up outside the Court. After putting in countless hours working on the Legal Historians amicus curiae brief for the case this past fall, we were bound and determined to be inside the Court when the justices heard the case. Totally unprepared to spend the night outside, we decided to head over anyway.

Armed with a bag of fruit, little to protect us from the elements, but plenty of good energy to make up for it, we arrived at the steps of the Court at 11:30 pm.  A couple dozen other law students, all of whom had contributed to the case in some capacity, greeted the four of us as we took our places in line—numbers 28 to 32.  As the night wore on, others joined the line, and we huddled in the cold, sharing food, war stories, and predictions of what the morning would bring.

There was a sense of camaraderie in the group. We had never met most of these students, but we all shared a commitment to the issue at hand—corporate accountability for human rights violations.  Sometime before dawn, a police officer referred to the gathering as “kind of like a rock concert—but for nerdy law students.”

At 7:30 am, the big moment arrived.  Police officers handed us gold-colored tickets with numbers, and told us the first 40 would be admitted.  We’d done it.  We’d made it in.

We entered through the side door, exchanged our sweatshirts for suits in the bathrooms and, minutes before the oral argument began, walked into the grand chambers of the Court’s gallery.

It struck us at that moment—and often in the hours before—that we were among the lucky.  As students at Harvard Law School, we had the opportunity to fly to Washington, D.C. and wait all night to witness this historic argument.  For many others who deeply cared about the case, that was not an option.

Inside the Courtroom, we sat flanked by stone-colored colonnades and heavy, red curtains, listening to the argument unfold. It was tense for all of us, trying to divine where the justices stood on the issues. Then, in an exchange with the Defendants’ counsel, Justice Stephen Breyer read out a line from our brief.  To hear those words echo through the chambers of the United States Supreme Court was a once-in-a-lifetime experience.  We feel so fortunate to have worked with the rest of the team from the International Human Rights Clinic on a case with this much at stake.

Yonina Alexander, JD ’12, and Daniel Saver, JD ’12, have been members of the Clinic for the past four semesters.

For more information on Kiobel, click here for our resource page, or here for past coverage on the blog.

February 29, 2012

Post-Kiobel Perspectives

Posted by Cara Solomon

After a months-long hurricane of hard work,  the clinical team settled  into their seats at the U.S. Supreme Court yesterday and heard oral argument in Kiobel.  It was, by all accounts, a long and exhilirating day.  Then Tyler and Susan capped it all off by writing a piece for The New York Times’ Room for Debate.

For those interested in reading yesterday’s transcript, you can find it here. And a blog Susan and Tyler wrote for the American Constitution Society previewing it here.

There are plenty of post-Kiobel perspectives out there right now; we’ll do our best over the next few days to post some of the more substantive ones here.

Here’s a roundtable discussion at Georgetown University today featuring Paul Hoffman, who represents the petitioners.  And here’s an editorial that ran in the L.A. Times.

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February 28, 2012

Kiobel Oral Argument Today

Posted by Tyler Giannini and Susan Farbstein

We’re in Washington DC, in front of the U.S. Supreme Court, with our team of clinical students.  The Kiobel oral argument will take place this morning.  The blogs and op-eds have been busy over the last week in anticipation of the argument.  If you want to catch up, some links are below.  We’ll be back with reactions and commentary on the argument, so watch this space.

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February 23, 2012

No Corporate Exemption: Supreme Court to Hear Major Corporate Human Rights Case

Posted by Tyler Giannini and Susan Farbstein

NOTE: The post below was originally published on Justice Watch, a project of the Alliance for Justice. For more on the Kiobel case, including the most recent amicus briefs submitted to the U.S. Supreme Court, please click here.


February 22, 2012

Next Tuesday, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co.  Kiobel is the most important human rights case the Court will consider this term, raising fundamental questions about corporate accountability.  The Plaintiffs allege that Royal Dutch/Shell was complicit in the Nigerian government’s torture and killing of their relatives in the 1990s.  The Supreme Court is reviewing a lower court decision that created a corporate exemption from liability under the Alien Tort Statute (“ATS”), concluding that corporations cannot be sued even when they facilitate genocide, crimes against humanity, or war crimes.

The ATS, a 1789 law passed by the First Congress, permits non-U.S. citizens to hold perpetrators accountable in U.S. courts for violations of international law.  In the fall of 2010, however, the Second Circuit Court of Appeals in New York created the corporate exemption now under review.  Since the Second Circuit’s decision, every other appellate court to consider the issue has rejected Kiobel’s approach.  Recognizing the importance of this question and the split among the lower courts, the Supreme Court agreed to hear the case.

Yesterday, the Plaintiffs filed their final brief before the oral argument.  They noted the profound ramifications of the lower court’s holding:

The implications of the decision below are shocking.  When I.G. Farben exploited slave labor at Auschwitz and supplied the Zyklon B poison to facilitate mass murder in its death chambers, that corporation violated international law.  [Defendants’] construction of the ATS means that even a modern-day I.G. Farben could not be sued under the ATS.  Nor could a “Pirates, Inc.” engaged in contemporary piracy, or an entity incorporated to engage in slavery.

Given the significance of blanket immunity for corporate human rights abuse, it is no surprise that the U.S. government has weighed in with an amicus curiae brief in support of the Plaintiffs.  The U.S. government noted that corporations are certainly capable of violating international law, and found “no good reason to conclude that the First Congress would have wanted the suit to proceed only against the potentially judgment-proof individual actor, and to bar recovery against the company on whose behalf he was acting.”  The government’s brief further observed that “[c]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”

For fifteen years before Kiobel, the statute enabled survivors of corporate human rights abuse to pursue accountability here, when it was otherwise unavailable.  For example, Plaintiffs sought redress for corporate complicity in forced labor in Burma, apartheid in South Africa, and extrajudicial killings in Nigeria.  While only cases against companies involved in such egregious human rights violations moved forward, no court contemplated a corporate shield from liability.  With Kiobel, the Supreme Court has an opportunity to reaffirm the U.S. commitment to provide justice to survivors of egregious human rights abuse.  Relief from suffering should not depend on whether an individual or a corporation is responsible for the violation.

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