U.S. Supreme Court Orders Rehearing in Kiobel Case Regarding Extraterritorial Application of the Alien Tort Statute

U.S.Supreme Court Building

As discussed in a prior post, on February 28th the U.S. Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum (Shell) (Sup. Ct. No. 10-1491) on the issue of whether or not corporations could be held liable under the U.S. Alien Tort Statute (ATS), and a decision in the case was expected by the end of this June.

The Kiobel Rehearing Order

Less than a week later (on March 5th) all of that changed when the Court ordered new briefs and a rehearing this Fall on a different issue that previously had not been considered in this case by the U.S. Court of Appeals for the Second Circuit or by the Supreme Court itself. That new issue of extraterritorial application of the ATS was expressed by the Supreme Court as follows:

  • Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

This surprising development appears to have been triggered by that very issue having been raised in another ATS case in a pending petition for a writ of certiorari to the Supreme Court in Rio Tinto vs. Saari (Sup. Ct. No. 11-649) brought by a corporation that had lost an ATS case in the U.S. Court of Appeals for the Ninth Circuit in San Francisco, California. The Rio Tinto cert. petition was considered by the Court at its private conference on Friday, March 2nd, and the order for rehearing in Kiobel was issued the following Monday (March 5th) without any announced action on the Rio Tinto cert. petition.

This apparent connection between the two cases calls for seeing what additional light may be shed on this new issue in Kiobel by examining that same issue in the Rio Tinto case. Rio Tinto, by the way, submitted an amicus curiae brief in Kiobel, but that brief did not discuss the extraterritoriality issue presumably because it was not germane to the two issues previously specified by the Supreme Court for the first Kiobel argument.

The Rio Tinto Case

This case under the ATS was brought by current or former residents of an island (Bougainville) in Papua New Guinea in the South Pacific Ocean. In the late 1980’s many residents of the island protested the mining activities on the island by Rio Tinto PLC and Rio Tinto Ltd., and the country’s military stopped the protests by killing many of the protesters. Their ATS case alleged that the military’s human rights violations were aided and abetted by Rio Tinto PLC, a public company headquartered in the U.K., and Riot Tinto Ltd., an affiliated public company headquartered in Australia.

The case started before 2002 and has a long complicated history.

The decision leading to the pending petition for a writ of certiorari in the Supreme Court was the October 25, 2011, en banc decision of the Ninth Circuit issued more than a year after the oral arguments. That decision partially sustained an ATS complaint against the two corporations and remanded the case to the federal district court in California for further proceedings. This decision by the 11 judges of the Ninth Circuit consisted of seven opinions spanning 170 pages covering many issues with different splits on different issues.

On the issue of extraterritoriality of the ATS, seven of the judges held that the statute had such application while the other four judges disagreed.

1. Majority opinion on extraterritoriality

The author of the 49-page majority opinion that sustained the ATS complaint was Chief Judge Mary Schroeder, who was joined on the issue of extraterritoriality by Judges Silverman, Berzon, Reinhardt, Pregerson, Rawlinson and McKeon. This section of the majority opinion is found on pages 19334-39 of the slip opinion.

The majority opinion first noted that the Ninth Circuit itself previously had decided that the ATS had extraterritorial application in In re Estate of Ferdinand Marcos, Human Rights Litig. (Marcos I), 978 F.2d 493, 499-501 (9th Cir. 1992), which involved torture that took place in the Philippines. In categorically rejecting the argument that the ATS applies only to torts committed in the U.S., the court had stated, “we are constrained by what [the ATS] . . . shows on its face: no limitations as to the citizenship of the defendant, or the locus of the injury.” (Id. at 500.) By implication, as a matter of stare decisis, the Ninth Circuit should reach the same conclusion in the current case. The majority opinion buttressed this point by citing cases in other circuits that had reached the same conclusion.

The majority opinion then observed that the U.S. Supreme Court’s only opinion on the ATS in the Sosa case in 2004 had recognized that the First Congress in 1789 had overseas conduct in mind when the Court in Sosa explained that in 1789, piracy was one of the paradigmatic classes of cases recognized under the ATS.

Next in the majority opinion was its analysis of the dissenting opinion’s principal authority, Morrison v. National Australian Bank Ltd., 130 S. Ct. 2869, 2877 (2010), which held that section 10(b) of the U.S. Securities Exchange Act of 1934 did not apply to securities transactions conducted in other nations. In so doing, the Ninth Circuit’s majority opinion correctly acknowledged that the Supreme Court in Morrison employed a “presumption against extraterritoriality” and stated that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” (130 S. Ct. at 2878.)

The Ninth Circuit’s majority opinion said, however, there was no indication in Morrison  or elsewhere, that a “presumption against extraterritoriality” existed and could have been invoked by Congress in 1789. Moreover, according to the majority opinion, Morrison “did not require that Congress use the precise word ‘extraterritorial’ in a statute to establish such applicability. It [Morrison] required only that there be a ‘clear indication,’ stating that such an indication may come from either the text or the context of the statute. Id. at 2883.”

Such  “clear indications” of extraterritorial applicability of the ATS were found by the majority opinion in both the statute’s text and its context. The text of the ATS provides for jurisdiction “of any civil action by an alien . . . committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. This text expressly creates jurisdiction for claims brought by persons who are not U.S. citizens. The text’s explicit reference to the “law of nations” indicates that one must look beyond U.S. law to international law in order to decide what torts fall under its jurisdictional grant. Moreover, the ATS was enacted in 1789 in the context of piracy occurring outside the U.S. as one of the paradigmatic classes of cases covered by the ATS.

Finally, according to the majority opinion, the ATS is a jurisdictional statute, and federal courts frequently exercise jurisdiction with regard to matters occurring outside the U.S., subject to the courts having personal jurisdiction over the defendants and to the principles of forum non conveniens and conflict of law principles that may call for dismissal of specific cases based upon their facts. In short, says the majority of the Ninth Circuit, the ATS provides a domestic forum for claims based on conduct that is illegal everywhere, including the place where that conduct took place. It is no infringement on the sovereign authority of other nations, therefore, to adjudicate claims cognizable under the ATS.

2. Dissenting opinion on extraterritoriality

Dissenting on this issue was a 36-page opinion by Judge Kleinfeld, which was joined by Judges Bea and Ikuta. (Slip Opinion at 19429-65.) I consider Judge Callahan to be the fourth dissenting judge on this issue by his joining the separate dissenting opinion of Judge Ikuta, which expressed agreement with the Kleinfeld opinion. (Slip. Op. at 19491 n.12.)

These dissenters’ concluded that the ATS was limited to torts in the U.S. to foreigners who were in the U.S. or who were outside any foreign state’s territory (i.e., on the high seas). There were four points or arguments advanced to support this conclusion.

First, they say, the previously discussed Morrison v. National Australian Bank Ltd. case reaffirms a long-standing canon of construction against implied extraterritoriality: “When a statute gives no clear indication of an extraterritorial application, it has none.”

Second, the ATS, they state, does not expressly authorize extraterritorial application, and its reference to the “law of nations” does not imply that it does. In addition, while the ATS does cover piracy on the high seas, that fact does not imply jurisdiction over wrongs committed within the territory of a foreign state.

Third, the dissenting opinion says the historical context of the adoption of the ATS in 1789 shows that its purpose was to afford a remedy for wrongs committed within the United States, not to enact a statute with extraterritorial effect. The dissenters say that the statute was enacted “to enable foreigners to sue for violations in America of a narrow set of norms, where failure to vindicate the wrongs might embroil our weak, new nation in diplomatic or military disputes. The wrongs were to ambassadorial officials in the United States, and piracy, sometimes by Americans.” Indeed, they say, with detailed support, “We had just signed a peace treaty with Great Britain after a War of Independence we barely won. We could ill afford diplomatic problems with the British, who bordered us on the north, the Spanish, who then bordered us on the south and west, or the French, whose support had been essential to our independence. Given our precariousness, the First Congress was concerned that American, not foreign, violations of the law of nations might ‘afford just causes of war,’ a war we likely could not win.”

Fourth, according to these dissenters, extraterritorial application of the ATS to so-called “Foreign-Cubed” tort cases (lawsuits by foreigners against foreigners over something that happened in foreign countries) would itself violate the law of nations. According to these dissenters, “The most fundamental principle of the law of nations . . . [is] ‘equality of sovereignty.’ Equality of sovereignty requires that every sovereign is to be treated as the equal of every other in its entitlement to govern persons within its own territory. ‘Under international law, a state has . . . sovereignty over its territory,’ which ‘implies a state’s lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there.’”


I concur with commentators in the New York Times and Wall Street Journal that the order for rehearing is not a good sign for maintaining the ATS as a means of enforcing international human rights and for upholding corporate liability under the ATS.

Another commentator speculates that the new issue specified by the Court for rehearing in Kiobel even encompasses the serious issues of (a) defining the elements for the tort of aiding and abetting a government’s human rights violations; and (b) the constitutionality of extraterritorial application of the ATS, both of which were addressed in the previously mentioned en banc opinions in Rio Tinto.

In the meantime,  the U.S. is adjudicating so-called “Foreign-Cubed” cases in other contexts. An U.S. immigration judge, after trial, has found that a former Salvadoran military officer participated in torture and extrajudicial killing of Salvadorans in El Salvador as a predicate for revocation of his U.S. legal residency and removal or deportation from the U.S. Another Salvadoran military officer, who is subject to a Spanish arrest warrant for his alleged participation in the 1989 killing in El Salvador of the six Jesuit priests (five Spanish and one Salvadoran) and their Salvadoran housekeeper and her daughter, recently has been indicted by a U.S. district court for alleged lying on U.S. immigration forms and thereby potentially leading to revocation of his U.S. legal residency status and removal or deportation from the U.S. (The latter was discussed in a Comment to a prior post.)

Finally, there is a bill in Congress with respect to other “Foreign-Cubed” matters. The bill would punish foreigners linked to foreign human rights abuses of foreigners (or presumably U.S. citizens) by denying them U.S. travel visas and freezing their financial assets in the U.S. Similar legislation has been proposed in the U.K. and eight other European countries.

International Criminal Court’s New Judges Take Office

New ICC Judges

On March 9th, five new judges of the International Criminal Court (ICC) were sworn in at a ceremony held at the seat of the Court in The Hague. The are Judges Howard Morrison (United Kingdom), Anthony T. Carmona (Trinidad and Tobago), Olga Herrera Carbuccia (Dominican Republic), Robert Fremr (Czech Republic)  and Chile Eboe-Osuji (Nigeria).

The other judge who was elected at the December 2011 meeting of the Court’s Assembly of States Parties, Judge Miriam Defensor-Santiago (Republic of the Philippines), was unavailable due to personal circumstances and will be sworn in later.

The ICC has a bench of 18 judges who are nationals of States Parties to the Court’s Rome Statute. Judges are chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. The election of the judges takes into account the need for the representation of the principle legal systems of the world, a fair representation of men and women, and equitable geographical distribution.

Intimations of Mortality

I am in excellent health. Like most people I try to take each day as it comes. Each day requires a “To Do” list and running around doing this and that. More of the same, day after day.

Recently, however, there have been reminders of human mortality, including my own.

Over the last several years four of my former law partners at Faegre & Benson (n/k/a Faegre Baker Daniels) have died as have four adult children from this larger group of colleagues. A good friend of mine from our church died last October, and my remarks at his memorial service were recently posted.

Last June was my Grinnell College class’ 50th reunion. As mentioned in an earlier post, I was the de facto obituary writer-in-chief for our reunion booklet. Of the 359 in our class, 53 were deceased. Since then three other classmates have died, one of whom was a friend. I have written their obituaries for our class letter.

For the asset side of  my December 31st family financial statements, I calculate the present values of certain future income streams like Social Security benefits and a law firm pension. The first step in that calculation is looking at the Internal Revenue Service’s Life Expectancy Tables. For 12/31/11, these Tables said my life expectancy was 15.5 years or 186 months. (Statistically this is the median of the anticipated survival time of the entire cohort of people of a certain age or the time when 50% of the cohort will have died.)

All of this reminds me of Frank Sinatra singing September Song, “The days dwindle down to a precious few. One hasn’t got time for the waiting game.”

Memorial services for our departed friends and acquaintances should be times for us to pause and reflect on where we are in our own lives and what should be important for our remaining days or years. Be kind and loving to your family and friends and those people who will come into your life around the next bend in the road. It is not work harder or make more money, important as they may be.

The memorial service for one of my fellow retired law partners at Minneapolis’ Plymouth Congregational Church was especially touching and moving. In early adulthood he and his wife had three children. In mid-life he and his wife divorced after he recognized that he was gay. At the service the minister read a loving remembrance from his male life partner. The deceased’s younger brother made an emotional speech about how much his brother had meant to him. A fellow law firm partner talked about his excellence as a lawyer and leader of the firm as well as his personal concern for the welfare of his colleagues. Three of his grandchildren read the Scriptures. All aspects of his life were acknowledged and celebrated. As the newspaper obituary stated, he was “a devoted partner, loving husband, beloved father and grandfather, caring brother, delightful uncle, and cherished friend.”  Sitting in the pew at the service, I gave thanks to God for the life of this amazing man and for this Christian church’s witness to the unbounded love of God for all human beings.

U.S. Supreme Court Hears Case That May Decide If Corporations Are Liable Under the Alien Tort Statute

On February 28th the U.S. Supreme Court heard arguments in Kiobel v. Royal Dutch Petroleum (Sup. Ct. No. 10-1491). The transcript of that hearing is available online.

This case involved claims by a putative class of Nigerians against a corporation (Royal Dutch Petroleum Co. (Shell)) for allegedly assisting in certain human rights violations in Nigeria in 1993-95. Prior posts reviewed the procedural background of this case and the Second Circuit decision rejecting such liability.

The claims in this case were asserted under the U.S. Alien Tort Statute (ATS) that provides that U.S. federal district courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (Earlier posts have reviewed the history of the ATS for the periods 1789-1979, 1980, 1980-2004, the U.S. Supreme Court decision in 2004 and 2004-present.)

 Merits Issue: Are Corporations Liable Under the ATS?

A review of the transcript of the hearing reveals that the entire hour was devoted to only one of the two issues previously identified by the Court as being raised by this case:

  • Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the [U.S.] Eleventh Circuit [Court of Appeals] has explicitly held.

All of the Justices (except Justice Thomas) actively participated in this argument with comments and questions that make it difficult to make any prediction of the ultimate decision in the case, except that it probably will be a decision by a divided Court. Here are samples of some of the comments and questions.

Justice Samuel Alito asked,  “What business does a case like [this alleging human rights violations in Nigeria] have in the courts of the United States? There’s no connection to the United States whatsoever.”

Justice Ruth Bader Ginsburg tried to focus the discussion on the precise issue raised by the case, whether it is only individual defendants [who are liable under ATS] or are corporate defendants also liable?”

Justice Stephen Breyer apparently had difficulty with the Second Circuit’s categorical rule in this case that corporations could never be liable under the ATS. He said he could think of instances where that should not be the case. One he cited was “Pirates Incorporated.”

Justice Elena Kagan also expressed skepticism about an assertion by the attorney for the defendant-respondent that international human rights treaties excluded corporations from liability. Justice Kagan said she thought “the international sources are simply silent as to this question [of corporate liability].” She also observed that such treaties were silent on this issue “mostly because all of these are written to prohibit certain acts,” rather than focusing on who commits such acts.

Justice Anthony Kennedy, who often is seen as the swing vote when the Court is divided, asked the first question almost before the attorney for the plaintiffs-petitioners could open his mouth. Justice Kennedy said, “For me, the case turns in large part on this,” (quoting from the defendant-respondent’s brief), ‘International law does not recognize corporate responsibility for the alleged offenses here.’ Justice Kennedy immediately followed with this quotation from an amicus brief by Chevron Corporation, which is a defendant in another ATS case, “No other nation in the world permits its courts to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”

Justice Anthony Kennedy also noted that international criminal law made a distinction between individuals and corporations with only the former being subject to criminal sanctions. Yet later he mentioned the legal principle of respondeat superior (that a corporation or other principal is legally responsible for the wrongs of its employee or agent under certain conditions) and said that it was a very simple proposition of U.S. law and perhaps implicitly suggested it was applicable in this case.

Subject Matter Jurisdiction Issue

The second issue raised by this case was not discussed at the February 28th hearing. It was the following: Whether the issue of corporate civil tort liability under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.

The Second Circuit in an opinion by Judge Cabranes held, without much discussion, that the ATS incorporates any limitation arising from customary international law on whom may properly be sued as a defendant under the statute and that this was a requirement for subject-matter jurisdiction of the federal courts that was not met in this case.

In my opinion, the Second Circuit was clearly wrong on this conclusion on subject-matter jurisdiction. The ATS states that federal courts have “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Thus, to establish subject-matter jurisdiction, (i) the plaintiff must be an “alien” (a non-citizen of the U.S.); (ii) the lawsuit must be for a tort; and (iii) the tort must allegedly be set forth in “the law of nations” (customary international law) or a treaty of the U.S. All of these requirements are met in this case. It then becomes an issue on the merits as to whether the alleged conduct in fact violates the “law of nations” or a treaty of the U.S.

Moreover, the ATS does not specify as to whom the defendant must be, unlike the Torture Victims Protection Act (TVPA) which states the defendant has to be an “individual.” If the ATS did specify in some fashion what kind of defendant was permissible, then that would make the nature of the defendant an issue for subject-matter jurisdiction. (Whether the word “individual” in the TVPA includes corporations was the issue presented in the other case heard by the Supreme Court on February 28th.)

The procedural posture of this case makes my opinion, if it is correct, an important one for The Supreme Court’s disposition of this case. Federal courts are courts of limited jurisdiction requiring such courts always to determine if they have such jurisdiction and prohibiting the litigating parties from conferring such jurisdiction on the courts by not themselves raising problems over such jurisdiction. This basic principle enabled Judge Cabranes in the Second Circuit to raise, discuss and decide the issue of corporate liability under the ATS in this case even though that issue had not been briefed or argued by the parties themselves.

The failure of the defendant Shell to raise the merits issue of corporate liability at the trial court and at the Second Circuit should mean that it is deemed to have waived the issue.

Under this analysis the Supreme Court should reverse the Second Circuit on procedural grounds and not reach the substantive issue of corporate liability.


A Supreme Court decision in this case is expected by the end of June. I reiterate that this is a case of statutory interpretation and the Court’s development of federal common law, and at any time the Congress with a presidential signature could amend the statute to make corporate liability express or to exclude such liability explicitly.

Under the infamous Citizens United decision the Court treats corporations as individual human beings for purposes of the Free Speech clause of the First Amendment to the U.S. Constitution and the right to make unlimited political contributions. If the Court were to decide that corporations, unlike individual human beings, are not liable under the ATS, this would and should present the Court with at least a public relations problem.

U.S. Supreme Court Hints That It Will Decide That Corporations Are Not Liable Under the Torture Victims Protection Act

On February 28th the U.S. Supreme Court heard arguments in Mohamad v. Palestinian Authority (Sup. Ct. No. 11-88) on the issue of whether corporations are liable under the Torture Victims Protection Act (TVPA). The transcript of that hearing is available online.

Before that hearing, a prior post discussed this case and expressed my opinion that the Court would decide that corporations were not so liable. In summary, the TVPA provides a civil cause of action for money damages by an “individual” who is a victim of torture or by his or her representative for extrajudicial killing against the “individual” who committed the wrong, and the ordinary meaning of the word “individual” as used in federal statutes encompasses only natural persons and not corporations or other organizations.

Although one needs to be cautious in evaluating oral arguments before the Supreme Court, the argument on February 28th in this case did not provide any reason to change my opinion on the likely outcome. Indeed, my review of the transcript of the argument confirms my previously expressed view of this case. To illustrate, I make the following four points.

First, Chief Justice John G. Roberts Jr. summarized what he thought was the plaintiffs position: “You are saying, ‘Well, we want a term that is going to include individual persons and organizations but not state organizations. And the only term that fits perfectly is ‘individual.’ ”

“Exactly,” the plaintiffs lawyer responded. “That’s our argument.”

Chief Justice Roberts was incredulous. “Really?” he asked, to laughter in the courtroom, which the Chief Justice joined.

Second, Justice Samuel Alito had a humorous exchange with the U.S. Justice Department lawyer who argued that corporations could not be liable under the TVPA, but earlier that same morning in another case (Kiobel) argued that corporations could be liable under the Alien Tort Statute. Justice Alito observed that the government’s position meant an alien could recover while a U.S. citizen could not. “Too bad, then, that Mr. Rahim [the plaintiff in Mohamad] became a U.S. citizen,” Justice Alito said. “I guess that was a mistake [on his part].”

Third, even Justice Steven Breyer, who is seen as more sympathetic to plaintiffs’ arguments, told the plaintiffs lawyer, “I think I have to say that you are on a weak wicket.”

Four, three other liberal Justices (Justices Ginsburg, Sotomayor and Kagan) also asked questions indicating skepticism of the plaintiffs’ arguments.

A Supreme Court decision in this case is expected by the end of June. I also reiterate that this is a case of statutory interpretation, and at any time the Congress with a presidential signature could amend the statute to make corporate liability express or to exclude such liability explicitly.



Dismissal of Spanish Criminal Case Against Judge Baltasar Garzón Over Franco-Era Investigation

Spanish Flag

On February 27th, the Spanish Supreme Court, 6 to 1, dismissed the criminal case against Judge Baltasar Garzón over his investigation of human rights violations by the Franco regime. A prior post reviewed this criminal case while posts on February 14th and 21st  explored reactions to the case. This case will investigate the recent dismissal and the immediate reactions to that decision.

The Dismissal Decision Itself

The Supreme Court aquitted Garzón of the crime of trespass (knowingly making an unjust resolution) for trying to open an investigation into the crimes of Francoism.

According to the Court, Garzón overstepped his authority and “exceeded himself in the interpretation of the law” by investigating the Franco-era disappearances, but his actions did not constitute an abuse of power.

The Court said a search for truth regarding Civil War atrocities is necessary and legitimate, but that such a search should be conducted by other state institutions, not by an investigative judge. In short, historians have a role as do judges, but they must not be mixed.The court also acknowledged that Mr. Garzón attempted “to improve the situation” of Civil War victims who “have the right to know the facts and recover their dead” relatives.

Spain’s amnesty law, the Court concluded, was enacted with the full consensus of political forces in 1977 and was not a law “approved by the victors, those in power to cover up their crimes.” It was an instrument of reconciliation, not a law of amnesty like those enacted by some of the South American dictatorships. As a result, the Spanish amnesty law is valid and can only be repealed by Parliament, not by judges.

One of the Supreme Court judges, Judge Sánchez Melgar, filed a concurring opinion. He agreed that the charges should be dismissed, but on the ground that Garzón lacked the necessary intent to abuse the judicial function.

The sole dissentingjudge, Judge Jose Manuel Maza, stated that Garzón should have been convicted of willful trespass for instigating a procedure to serve the subjective intentions of the complainants against people already dead and for crimes that had been amnestied or at least, were clearly prescribed by the statute of limitations. The good intentions of Garzón were irrelevant, the dissenter stated.

The full text of the decision (en espanol) is available online.

Reactions to the Dismissal Decision

Human rights organizations although pleased with the dismissal had negative comments about the entire criminal cases against Judge Garzón.

Human Rights Watch said, “The real losers are the reputation of the Spanish judiciary and those — in Spain, in detention at Guantánamo or in countries around the world where there is no justice — who knew they could count on at least one independent judge to apply human rights laws without fear of the political consequences.” This organization also called for Spain to “repeal the 1977 amnesty law” and  “assist the families of Franco’s victims in their long quest for truth and justice.”

Amnesty International urged the Spanish authorities to “do justice” in Spain and investigate the crimes of the Civil War and Francoism. AI added, “There should be no impunity in Spain for such heinous crimes.”

Spain’s Association for the Recovery of Historical Memory urged its Supreme Court to “act urgently, and rule on how these atrocities [of the Franco era] are to be legally pursued.”

Spain’s Justice Minister, on the other hand, said that Spain had “a strong and independent judiciary” and that “[n]one of the [unjustified] criticism against the Supreme Court . . . has made it lose its prestige in the eyes of Spanish citizens.” The decision, not surprisingly, was also defended by Spain’s Supreme Judicial Council.

The Wall Street Journal’s editorial opined that the decision was “a troubling blow to the 1977 amnesty covering the bloody misdeeds of Spain’s authoritarian period—the deliberate “forgetting” of the past to which contemporary Spain owes so much.The purpose of [Spain’s] amnesty is not to dishonor the victims of atrocities or to vindicate the perpetrators. It is to ensure that the sins of the guilty do not engender new strife among the innocents, and that those sins are not exploited for political gain. It was never the place of a crusading judge to substitute his politics for the will of a country seeking to move forward.”


As a U.S. lawyer, I reiterate my plea for comments by those more knowledgeable about Spanish law and procedure to clarify or correct my accounts of this and the other two  cases against Judge Garzón.

U.S.Supreme Court To Consider Another Case Regarding Corporate Liability for Assisting Torture or Extrajudicial Killing

U.S. Supreme Court Building

On February 28th, the U.S. Supreme Court will hear oral arguments on the following issue in a case from the U.S. Court of Appeals for the District of Columbia, Mohamad v. Palestinian Authority (Sup. Ct. No. 11-88):

  • Whether the Torture Victim Protection Act [TVPA], 28 U.S.C. § 1350 note § 2(a), permits actions against defendants which are not natural persons.

The TVPA provides a civil cause of action for money damages by an “individual” who is a victim of torture or by his or her representative for extrajudicial killing against the “individual” who committed the wrong.

The D.C. Circuit’s panel of three judges unanimously affirmed the dismissal of a TVPA complaint against the Palestinian Authority. That court stated, “Because the Congress did not define the term ‘individual’ in the TVPA, we give the word its ordinary meaning, . . . which typically encompasses only natural persons and not corporations or other organizations . . . . Notably, the Dictionary Act, which provides guidance in ‘determining the meaning of any Act of Congress,’ strongly implies the word individual does not comprise organizations because it defines ‘person’ to include ‘corporations, companies, associations, firms, partnerships, societies, … as well as individuals.’ ‘ (Emphasis in original.)

The D.C. Circuit concluded, “The Congress used the word ‘individual’ [in the TVPA] to denote only natural persons. The liability provision of the statute uses the word ‘individual’ five times in the same sentences—four times to refer to the victim of torture or extrajudicial killing, which could be only a natural person, and once to the perpetrator of the torture or killing.  The [plaintiffs-appellants] . . .  advance no cogent reason, and we see none, to think the term ‘individual’ has a different meaning when referring to the victim as opposed to the perpetrator.”

On October 17, 2011, the Supreme court granted the plaintiffs-petitioners’ petition for a writ of certiorari to review this decision.

Copies of the Supreme Court briefs of the parties and most of the eight amici curiae supporting the petitioners and the three amici supporting the defendants (including the U.S. Government) are available online. One of the three amici supporting the defendants was by the U.S. Government urging affirmance of the D.C. Circuit on essentially the same grounds enunciated by that court.

As previously stated, I find the D.C. Circuit opinion persuasive and believe the Supreme Court will affirm that court and hold that corporations are not liable under the TVPA.

This is a companion case to Kiobel v. Royal Dutch Petroleum Co. (Shell) that was discussed in posts on February 25th and 26th and that also will be argued on February 28th. The Supreme Court’s resolution of both of these cases is expected by the end of the current term at the end of June 2012.

This summary illustrates the importance of this issue for the parties, for the enforcement of international human rights and for governments and businesses around the world. Nevertheless, remember that this is a case of statutory interpretation, and at any time the Congress with a presidential signature could amend the statute to make corporate liability express or to exclude such liability specifically.