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Kiobel v. Royal Dutch Petroleum Co.

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Synopsis

Kiobel v. Royal Dutch Petroleum Co. is a lawsuit brought against Royal Dutch Petroleum Co., Shell Transport & Trading Co., Plc, and its wholly owned subsidiary Shell Petroleum Development Company of Nigeria Ltd (SPDC). The suit was brought on behalf of the late Dr. Barinem Kiobel – an outspoken Ogoni leader and eleven other Nigerians from the Ogoni area of the Niger Delta. The putative class action sought damages and other relief for crimes against humanity, including torture and extrajudicial executions, and other international law violations committed with defendants' assistance and complicity between 1992 and 1995 against the Ogoni people.

Status

The Supreme Court granted plaintiffs’ petition for certiorari on October 17, 2011. Petitioners' filed their brief on December 14, 2011 and a number of amicus briefs in support of Petitioners were subsequently filed on behalf of the Petitioners. Amici in support of Petitioners include the United States, international human rights organizations, and international law scholars. Respondents filed their opposition brief on January 27, 2012, and on February 3, 2012, numerous amicus briefs were filed in support of the Respondents.

Oral argument took place on February 28, 2012. On March 5, 2012, the Supreme Court ordered that the case be reargued and directed both parties to file supplemental briefs addressing "[w]hether and under what circumstances the Alien Tort Statute . . . 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."  Petitioners' Supplemental Opening brief was filed June 6, 2012.

On April 17, 2013, the Supreme Court issued its decision in the case. The majority found that there is a presumption against extraterritorial application of the ATS, and that presumption can be overcome when the matter "touches and concerns" the United States with "sufficient force." There were three concurring opinions, which emphasized that the majority decision leaves many questions open for future development.

Description

In 1994, Dr. Barinem Kiobel and MOSOP leaders were detained illegally based on spurious charges, held incommunicado in military custody, tortured, then tried by a special court established by the military government using procedures that violated international fair trial standards. Plaintiffs allege that Defendants participated in bribing witnesses to give false testimony before the Special Tribunal.  Human rights groups and political leaders around the world condemned the lack of due process that was accorded to the victims in connection with the so-called trial. In November 1995, Dr. Barinem Kiobel and the rest of the Ogoni 9 were convicted of murder and executed ten days later. The Ogoni 9 also included Ken Saro-Wiwa, leader of MOSOP and an internationally renowned writer and activist.  Claims originally brought in 1996 on behalf of Ken Saro-Wiwa and other members of the Ogoni 9, as well as other human rights defenders who were detained, tortured or killed because of opposition to Shell’s devastation of Ogoni, were settled in 2009 on the eve of trial.  See CCR’s Wiwa v. Royal Dutch case page for more information.

Timeline

In September 2002, twelve Nigerian plaintiffs, representing a putative class, filed the original complaint against Royal Dutch Shell and Shell Transport and Trading Company in the Southern District of New York alleging that the oil companies aided and abetted, and were otherwise complicit in, violations of international law.

In March 2003, Royal Dutch Petroleum filed a motion to dismiss for failure to state a claim upon which relief can be granted.

On May 17, 2004, plaintiffs filed an amended complaint adding Shell Petroleum Development Company of Nigeria Ltd (SPDC) as a defendant, which defendants sought to strike or to dismiss.

On September 29, 2006, Judge Kimba Wood granted in part and denied in part defendants’ motion to dismiss, and certified the order for interlocutory appeal. The district court found that the corporate defendants could be held liable for violations of international law including torture, arbitrary detention, and crimes against humanity. The district court also held that the defendants could not be held liable for destruction of real property, forced exile, extrajudicial killing and violation of the rights to life, liberty, security and association, as the facts pled in the complaint did not implicate a corresponding norm of international law.

Plaintiffs sought to appeal the interlocutory order and Defendants cross-appealed, and in January 2007, the Second Circuit granted the petitions to appeal the district court’s decision.

In May 2007, CCR and co-counsel in the Wiwa case filed an amicus brief in in support of the Plaintiffs, in which it argued that extrajudicial killing is actionable under the ATS. In July 2007, CCR filed an amicus brief in relation to defendants’ cross-appeal on secondary liability and arguing for affirmance of the district court’s ruling recognizing numerous claims under the Alien Tort Statute (ATS).

On January 12, 2009, oral argument was heard by a panel of the Second Circuit Court of Appeals.

On September 17, 2010, a majority of the appeals panel (Judges Dennis Jacobs and José Cabranes) issued a sweeping opinion addressing whether cases could be brought under the ATS against corporations – an issue that was neither briefed nor argued. The majority opinion affirmed the lower court’s dismissal of the lawsuit, and it found that the ATS could not be used to sue corporations for violations of international law.

A separate opinion was written by Judge Pierre Leval, who concurred with the majority in judgment only. Judge Leval vigorously disagreed with the majority’s reasoning and conclusion that the ATS could not be applied to corporations. He found that that “the majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights.”

On October 15, 2010, the plaintiffs filed a petition for rehearing and rehearing en banc with the court. CCR, EarthRights International and other organizations filed an amicus brief in support of rehearing, arguing that corporations can be liable under the ATS because international law is primarily enforced through domestic remedies, and domestic federal law permits suits against corporations.

On February 4, 2011, plaintiffs’ petition for rehearing en banc was denied in a 5-5 vote.

On June 6, 2011, plaintiffs filed a petition of certiorari with the Supreme Court.

On July 13, 2011, CCR along with four other international human rights organizations and two international law experts, filed an amicus brief in support of Petitioners’ cert petition in the Supreme Court. CCR and amici argued that a general principle of law exists supporting corporate legal liability, and that this principle supports a finding that corporations can be held liable under the ATS.

On August 12, 2011, Defendants filed their opposition to the petition for certiorari.

On October 17, 2011 the Supreme Court announced that it would hear the plaintiffs’ petition in this case.

On December 14, 2012, Plaintiffs filed their brief with the Supreme Court.

On December 21, 2011, CCR and ten other international human rights organizations and two international law experts filed an amicus brief in support of the Petitioners’ cert petition in the Supreme Court. CCR and amici submitted that a general principle of law exists supporting corporate liability and that this principle supports a finding that corporations can be held liable under the ATS. Eighteen other amicus briefs, including from the United States, were filed in support of Petitioners.

On January 27, 2012 Respondents filed their opposition brief.

On February 3, 2012, fourteen amicus briefs were filed in support of Respondents.

Oral argument took place on February 28, 2012. Click here for a transcript of the argument. On March 5, 2012, the Supreme Court ordered that the case be reargued and directed both parties to file supplemental briefs addressing "[w]hether and under what circumstances the Alien Tort Statute . . . 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."

On June 6, 2012, Petitioners filed their Supplemental Opening Brief.

On June 13, 2012, amicus briefs were filed in support of Petitioners.

On August 1, 2012, Respondents filed their Supplemental brief.

On October 1, 2012, the case was reargued before the Supreme Court. Click here for a transcript of the oral argument and here for an audio recording

On April 17, 2013, the Court issued its decision in the case.

Media

Peter Weiss - Op-Ed: Should Corporations Have More Leeway to Kill Than People Do? (New York Times, Feb. 25, 2012)

Peter Weiss - Will the high court be a dream killer? (National Law Journal, Sept. 24, 2012)

Vince Warren - Supreme Court holds U.S. rights legacy in the balance (CNN.com, Sept. 27, 2012)

Shell could face trial in US for alleged complicity in torture in Nigeria, http://www.english.rfi.fr/node/138583 (RFI, Oct. 8, 2012) 

 

Visit CCR's ATS page to find out more about the history of our ATS work and read our factsheet to see how the ATS has been used in the defense of human rights.

Attached Files