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I have the honor to announce the October 2012 term is now convened. And with that, Chief Justice John Roberts opened a new Supreme Court term, one that takes on major issues, including affirmative action and gay marriage and, today, one of the most important human rights cases in years. We're going to hear about it from NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The case was brought by 12 Nigerians granted political asylum in the U.S. They sued Shell Oil for allegedly conspiring with the Nigerian government in the torture and killing of Nigerians who protested that their property was being taken without compensation for oil exploration and that the countryside was being despoiled.
Esther Kiobel(ph), now a U.S. citizen, contends that she was imprisoned and her husband executed to stop their protest activities. Today, she said she promised her husband she would fight for him.
ESTHER KIOBEL: He would do the same thing for me if I was the one killed, bring Shell to justice for the genocidal activities in Niger Delta.
TOTENBERG: She and other Nigerian citizens sued Shell under the Alien Tort Statute, a law enacted in 1789 by the first U.S. Congress and aimed primarily at pirates. Over the last 30 years, victims of human rights violations have used the statute to sue their tormentors in U.S. courts. In 2004, the Supreme Court appeared to endorse such suits if the claims were based on universally condemned human rights violations like torture and genocide.
On the steps of the Supreme Court today, lawyer Kathleen Sullivan, representing Shell, denied the charges and contended that the suit should be thrown out since Shell is based outside the U.S.
KATHLEEN SULLIVAN: The events took place in Nigeria. The descendants are English and Dutch companies. The plaintiffs are all Nigerian citizens located in Nigeria at the time. So there's no conduct in this country.
TOTENBERG: Inside the court, lawyer Paul Hoffman, representing the Nigerian plaintiffs, said they brought suit in the U.S. because they live here now. This is their adopted homeland. And he maintained international law authorizes such suits.
Justice Kennedy challenged that assertion: Wouldn't that allow human rights suits to be brought in any country in any court in the world? Justice Scalia: Of course, national courts have been the deciders when the violation occurs within the nation. But to give courts elsewhere the power to determine whether a United States corporation has violated a norm of international law is something else.
Justice Breyer noted that the U.S. has signed the torture treaty and that it provides for universal court jurisdiction, so that if a U.S. corporation were in cahoots with a foreign government to violate the treaty, it would be subject to civil suit in any country that signed the treaty. All in all, Hoffman had an uphill climb. But that was expected. What wasn't expected was the skepticism that faced Shell's lawyer, Kathleen Sullivan.
Justice Ginsburg started out by asking Sullivan if Shell's position is that the law that's existed for the last 30 years is wrong. Ginsburg pointed to the path-breaking 1978 case of the Filartiga family, who fled to the U.S. from Paraguay and subsequently sued a Paraguayan police chief - by then living in the U.S. - who was responsible for the torture and killing of the family's 17-year-old son.
Justice Ginsburg: You would say that Filartiga was wrongly decided because nothing happened in the U.S.? Attorney Sullivan first tried to dodge the question, but, pressed by Justice Kennedy, conceded that what she called the correct result would not have allowed the Filartiga suit to go forward. Justice Alito: Supposing an injury occurs on foreign soil, but is directed by someone in the U.S.
Sullivan replied: That would not be enough to bring suit in the U.S. Justice Breyer: When the Alien Tort Statute was passed, it applied to pirates. And the question is, who are today's pirates? If Hitler isn't a pirate, who is? Replied lawyer Sullivan: If that is the case, then Congress should say that. Chief Justice Roberts: We crossed that bridge in 2004, didn't we, when we approved these suits? Justice Kagan underlying the point, noting that the court in its 2004 ruling quoted the Filartiga decision saying, for purposes of civil liability, the torturer has become like the pirate and slave trader before him, an enemy of all mankind. Nina Totenberg, NPR News, Washington.