U.S. Government Sides with Shell over Victims of Crimes Against Humanity

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Earlier this year, the U.S. government argued on the side of victims of human rights abuses at the U.S. Supreme Court. In Kiobel v. Royal Dutch Petroleum (Shell), the government argued that corporations should not be exempt from responsibility for committing human rights abuses. But when the Supreme Court ordered a rehearing in the case, and asked whether human rights lawsuits could be brought when the abuses happened outside the U.S., we wondered whether the Obama administration would continue to side with the victims.

Today, the government submitted its brief (below) – and it’s on the wrong side. I have rarely been so disappointed in my government.

In this case, which involves victims of crimes against humanity in Nigeria who allege that Shell was complicit in the violent suppression of a nonviolent movement, the Obama administration argues that courts should not allow the human rights claims to proceed. The administration doesn’t urge a blanket rule against all cases arising in foreign countries, but it does argue that in a case like Kiobel, where the defendant is a foreign company doing business in the U.S., and where the abuses were committed by government forces within their own territory, the courts should deny the victims justice.

This position undoubtedly provoked severe controversy within the administration. How do we know? Some of the government’s lawyers appear to have refused to sign the brief. Last time, the government’s brief was signed by lawyers in the Department of Justice as well as the State Department and the Commerce Department. This time, only the Justice Department is on the brief. Notably, Harold Koh, the top lawyer in the State Department and a longtime human rights advocate, did not put his name to the brief.

Why is Obama’s position wrong? Several reasons. First, the government acknowledges that ordinary lawsuits, involving things like dangerous retail products or fraud, could be brought in U.S. courts by foreigners against any company doing business in the U.S. It urges the Supreme Court to adopt a different rule for the most egregious human rights abuses, arguing that those victims, unlike victims of everyday wrongs, should be denied access to U.S. courts.

Second, the administration also admits that the rules might be different if a U.S. company like Chevron, rather than a foreign company like Shell, were sued. This puts U.S. corporations at a special disadvantage, allowing foreign companies the privilege and benefits of doing business in the U.S. without facing any scrutiny for their human rights violations, while U.S. companies are subject to greater accountability.

This is a sad day for the Obama adminstration’s human rights policy. The government’s position takes a 19th-Century view of international law, basically arguing that governments don’t have any business meddling in what other nations do to their own citizens. That’s ridiculous, and it completely ignores the entire post-World-War-II body of international human rights law. It’s also at odds with U.S. foreign policy, which frequently criticizes other nations – and even authorizes hostile action – based on their treatment of their own citizens.

Essentially, Obama is saying that if a foreign government abuses human rights, we can bomb them, like we did with Libya. But we can’t hold anyone accountable in court, because that would threaten international relations.

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