WASHINGTON – For most Americans,the difference between – and meaning of – the words “individual” and “person” is probably not something that they lie awake at night thinking about. But for the participants in Tuesday’s Supreme Court oral arguments,how the nine justices determine that difference could mean millions of dollars and justice for victims’ families.
The arguments dealt with two similar cases,asking whether corporate entities can be sued in civil courts for damages when they violate international norms such as those against torture,genocide,piracy and extrajudicial killings. In essence,the two cases are asking that corporations and other groups be treated as individuals or persons because the law doesn’t mention corporations or groups.
In the first case,Esther Kiobel,the widow of an environmental activist,and 11 other Nigerians sued three oil companies. The Nigerians claim that the oil companies actively aided human rights violations (torture,extrajudicial executions and prolonged arbitrary detention) in the Niger Delta from 1992 to 1995.
Kiobel says her husband was killed by the military,which was aided by the oil companies.
Justice Stephen Breyer attempted to compare the current disputes over human rights violations to 18th century piracy.
“Do you think in the 18th century if they’d brought Pirates,Incorporated,and we get all their gold,and Blackbeard gets up and he says,oh it isn’t me; it’s the corporation – do you think that they would have then said: Oh,I see,it’s a corporation. Good-bye. Go home,” Breyer said.
Kathleen Sullivan,representing the oil companies,contended that such a corporation would not be liable for a civil suit and that corporations have not been held civilly liable for human rights offenses since the Nuremberg Trials following World War II.
Sullivan argued that a variety of international agreements contain no support for holding corporations liable in civil cases beyond the borders of the country where those actions took place.
“Is there any source in the customary international law throughout the world that holds corporations liable for the human rights offenses alleged here? And the answer is there is none,” Sullivan said.
Sullivan,however,was quick to point out that a ruling for the oil companies would not be a license for corporate violations of human rights.
“Corporate officers are liable for human rights violations and for those they direct among their employees,” Sullivan said. She emphasized that corporate liability,as opposed to individual liability for agents of a corporation,would sweep in “innocent stakeholders beyond the perpetrators.”
The second case dealt with the killing and alleged torture of Rahim Mohamad,a U.S. citizen who was born on the West Bank and had returned there for a visit. His son,Asid Mohamad,who brought the case,says his father died as a result of extra-judicial killing while in the custody Palestinian Liberation Organization. Mohamad says his father’s body bore marks of torture.
Under the Torture Victim Protection Act,anyone may bring a civil suit in the U.S. against individuals who carry out torture or extrajudicial killing on behalf of a foreign nation. When the laws was passed in 1992,it was meant to prevent perpetrators of those crimes and other human rights violations from seeking safe haven in the United States.
However,in the Mohamad case,the Supreme Court is being asked to determine if the use of the word individual meant that suits could only be brought against people.
Justice Elena Kagan asked Jeffrey Fisher,representing Mohamad,why the Supreme Court should go against the common meaning of the world individual and side with his interpretation,which is based more on the legislative background than the what Congress actually wrote into the statute.
Fisher may have provoked the wrong kind of laughter in advancing his argument.
“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,'” Chief Justice John G. Roberts Jr. said.
“Exactly. That’s our argument,” Fisher said.
“Really?” Roberts said,provoking laughter from people in the court chamber.
But a more serious strike came from Justice Antonin Scalia.
“It seems to me you misrepresent our jurisprudence when you insist that ‘individual’ has to have only that meaning,” Scalia said. “We say that we give words their usual meaning,their common meaning. Even though they may sometimes be used in a different fashion,it’s the usual or common meaning that we apply.”
The cases are Kiobel v. Royal Dutch Petroleum Co. and Mohamad v. Palestinian Authority. The court is expected to issue its ruling for both cases by the end of June.
Reach reporter Frank Bumb at [email protected] or 202-326-9871. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire.