DAVID GREENE, HOST:
The U.S. Supreme Court will hear arguments today in two human rights cases. Both of them involve torture and brutal murders. But the case that has the corporate world on edge is a lawsuit against Shell Oil. The company is accused of aiding and abetting the Nigerian government in committing atrocities. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The case was brought by 12 Nigerians, all granted political asylum in the United States. All are from the Ogoni region of Nigeria, where Shell Oil has for decades conducted oil exploration. In the mid-1990s, local religious student and civic leaders began demonstrating peacefully against Shell, protesting that their farmland was being ruined by oil spills and that Shell contributed nothing for the clean-up, for environmental protection or for the local economy. Soon the leadership was being rounded up, tortured, and even killed. Those who survived fled, including Charles Wiwa, who says that after he led a rally in his home village, he was picked up and taken to an open air market where he was clubbed and horse-whipped by 18 soldiers before a crowd of thousands.
CHARLES WIWA: Horsewhipping me, clubbing me, for a really long time, for about two hours. Because the beating took a very long time, my siblings and our mother came there and they were all crying helplessly.
TOTENBERG: There were more beatings, he says, and eventually he was charged with unlawful assembly. Released on bail, he says there were two attempts to abduct him.
WIWA: When it was obvious that my life was at risk, I fled Nigeria.
TOTENBERG: For the past 16 years, he's been the U.S. Now living in Chicago and working as an export consultant, he's among the Ogoni refugees here who have doggedly pursued Shell, contending the oil company works hand-in-glove with the Nigerian military to brutally suppress any opposition to the way the company operates in Nigeria. Among those bringing the lawsuit is a Seventh Day Adventist bishop and the widow of a local leader who was summarily executed. Their suit is based on the Alien Tort Statute, a law enacted in 1789 by the first U.S. Congress and aimed mainly at pirates. The statute says that U.S. trial courts can hear civil damage suits brought by a foreign national for wrongs committed in violation of the law of nations or a treaty of the United States. The statute remained largely unused until 1980, when victims of human rights abuses began using it against foreign individuals and corporations.
In 2004, the Supreme Court, by a six-to-three vote, upheld the use of the statute against an individual, but only for a limited category of crimes - torture, genocide and crimes against humanity. The court said that in modern times the torturer has become like the pirate and the slave trader of earlier times, an enemy of all mankind. Unresolved, however, was who else could be sued. Can it be more than an individual? Can complicit corporations be held liable too? That is a question presented in this case, whether victims can sue corporations for aiding and abetting alleged torture, murder and genocide. Lawyers representing the victims maintain that historically there is a quid pro quo for corporate status. In exchange for the many benefits of incorporation, including limited liability, corporations are held responsible for the actions of their employees, known in legalese as their agents. Lawyer Paul Hoffman...
PAUL HOFFMAN: All that we're saying in this case is that when a corporation contributes to genocide or crimes against humanity, that they should be held liable in court in the same way they would be held liable if one of their agents is engaged in an automobile accident that injures somebody.
TOTENBERG: Shell Oil counters that corporations cannot be sued in the United States under the Alien Tort Statute because international law doesn't recognize corporate liability for human rights crimes. Shell declined to comment for this story, but former State Department counsel John Bellinger, who filed a brief on behalf of a half dozen multinational corporations, explains the corporation's position.
JOHN BELLINGER: They believe that international law does not impose liability on corporations, that international law binds nations and individuals, but not corporations.
TOTENBERG: Supporting Shell in this argument are more than two dozen multinational corporations, business groups, and even several countries. They say that if the Supreme Court rules that corporations can be sued under the Alien Tort Statute, it will exacerbate what they characterize as the existing flood of litigation. Again, John Bellinger.
BELLINGER: Dozens and dozens and dozens of companies have been sued over the last decade for their activities in virtually every continent.
HOFFMAN: There has never been a flood. At most there's been a trickle.
TOTENBERG: That's human rights lawyer Paul Hoffman, who says only a few cases a year have been filed over the last 20 years. His argument for corporate liability is supported by the U.S. government, the U.N. High Commissioner on Human Rights and numerous human rights organizations. A second human rights case before the court today is a suit brought against the Palestinian Authority and the PLO for the torture and murder of a naturalized American citizen while he was in the custody of the Palestinian police. The case also involves the question of whether lawsuits can be brought against individuals only, or groups and entities. The outcome therefore could also have implications for corporations too.
The case was brought by the family of Azzam Rahim. He was born on the West Bank and immigrated to the United States in the 1970s, where he became a U.S. citizen. He owned various small businesses in Texas, got married, and had six sons. In 1993, after the Oslo Accords established a Palestinian self-governing authority, Rahim was visiting his home village when an unmarked car with four men pulled up. They identified themselves as police and said they needed him to come identify some stolen jewelry. Rahim's 20-year-old son Asid watched the scene unfold with trepidation.
ASID RAHIM: It was the last time I saw my father alive.
TOTENBERG: Two days later, an ambulance delivered Rahim's body to the family. His teenage son, Shahid, now a policeman in Texas, remembers the scene with horror.
SHAHID RAHIM: The first thing I saw was cigarette burns all over his body - the bottom of his feet, his chest, his stomach, his hands.
TOTENBERG: The face and body were covered with bruises, the ribs broken. The ambulance driver told the family Rahim had died of a heart attack, but the family says an autopsy showed no heart damage. And a U.S. State Department report classified the death as an extrajudicial killing and confirmed that Rahim died while in the custody of Palestinian Authority intelligence officers. The family sued the Palestinian Authority under the Torture Victim Protection Act, a law that was enacted in 1992 in response to a federal appeals court ruling that gave the PLO immunity from such suits. Lawyers for the family say that Congress clearly intended the law to apply to organizations, groups, and death squads and not just individuals. But lawyers for the Palestinian Authority counter that the language of the statute speaks in terms of suits against individuals, and they say individual means individual, not a group or entity like the Palestinian Authority. Decisions in both cases are expected by summer. Nina Totenberg, NPR News, Washington.