The Supreme Court. (Saul Loeb / AFP/Getty Images )
WASHINGTON — The Supreme Court on its opening day confronted the question of whether foreign victims of torture, genocide and other violations of international law may seek justice by suing the perpetrators in American courts.
The case heard Monday is seen as a key test of international human rights law. But in their questions, the court’s conservatives suggested that foreign claims brought by foreign victims have no business being decided in the United States.
Paul Hoffman, a Los Angeles lawyer, asked the justices to envision the modern-day equivalent of the Nazi-era chemical company that manufactured poison gas to be used in the death camps. For example, a foreign company that sells “poison gas” to the Syrian regime. If the regime used it to kill and injure civilians, shouldn’t the survivors have a right to sue the maker of the poison gas in a U.S. court?
Hoffman said such claims should be decided here. An 18th century U.S. law said the courts would be open to hear claims for “a violation of the law of nations.” In the past 30 years, this old statute has been used to bring international claims against perpetrators from Paraguay, the Philippines, Mexico and Nigeria, among others.
But that trend in favor of “universal justice,” as Hoffman put it, is in danger of being reversed in the high court. Corporations worldwide have been fighting these claims, which they say can be ruinously expensive. They also argue corporations are unfairly sued for allegedly “aiding and abetting” tyrannical regimes in Third World countries.
They got some help Monday from the Obama administration.
Solicitor General Donald Verrilli Jr. told the justices they should block civil claims against foreign companies for alleged wrongs that took place overseas.
In the case before the court, several Nigerian plaintiffs sued the Shell Oil Co. for allegedly aiding the former Nigerian regime in a 1990s campaign of torture, murder and imprisonment against opponents of oil drilling.
This suit should be dismissed, Verrilli said. “There is no connection to the United States at all,” he said.
He explained the United States does not want to antagonize foreign governments by allowing such suits. For example, Shell is now owned by Royal Dutch Petroleum, and the Dutch government strongly opposes the lawsuit. It could be brought in the Netherlands, he noted.
It would be different, Verrilli said, if the perpetrator of human rights abuses lived in the United States. If, for example, a deposed tyrant were living here, he should be subject to a suit in U.S. courts, he said.
The justices sounded closely split during the hour-long argument. Justice Samuel A. Alito Jr. repeated his view that it made little sense to open U.S. courts to deciding suits brought by foreigners for alleged wrongs that took place overseas.
Justices Antonin Scalia and Anthony M. Kennedy said they were inclined to agree.
But Justice Ruth Bader Ginsburg noted such claims had been upheld in recent decades, including through opinions issued by the Supreme Court. She suggested there was no reason to retreat now.
A decision in the case of Kiobel v. Royal Dutch can be expected in several months.
The justices began the day by handing out an 87-page list of the hundreds of appeals that were turned down without a hearing.