Is torture still a universal crime?

One of the many stories which understandably flew under the radar this week was the U.S. Supreme Court’s decision in the case of Kiobel vs. Royal Dutch Petroleum. The court ruled that the plaintiffs do not have the right to sue an oil company in U.S. courts for alleged complicity in human rights abuses overseas under an arcane 18th century law:

Chief Justice John G. Roberts Jr., writing for the majority, said a general presumption against the extraterritorial application of American law barred the suit.

“All the relevant conduct took place outside the United States,” he wrote.

He added that even some minimal contact with the United States would not be sufficient to overcome the presumption. “Even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”

He gave an example: “Corporations are often present in many countries, and it would reach too far to say mere corporate presence suffices.”

The case involved a joint subsidiary of the Royal Dutch Petroleum Company, based in the Netherlands, and the Shell Transport and Trading Company, based in England. The subsidiary, incorporated in Nigeria, was accused of aiding and abetting in atrocities by Nigerian military and police forces against Ogoni villagers.

After being granted asylum in the United States, several Nigerians sued the parent companies under the 1789 law, the Alien Tort Statute, which is brief and cryptic. It allows federal courts to hear “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.”

The 1789 law was largely ignored until the 1980s, the New York Times reports, but since then has been applied in a number of human rights cases. 

Erik Voeten sees the decision as part of a larger worldwide rolling back of the notion of universal jurisdicion for human rights cases:

Belgium repealed its universal jurisdiction law and introduced greater political control after complaints were brought against Ariel Sharon and George W. Bush. Spain too curtailed its universal jurisdiction law and Baltasar Garzon was expulsed from the judiciary. The International Court of Justice (ICJ) ruled that diplomatic immunity prevented Belgian court from prosecuting the then Minister of Foreign Affairs of the Democratic Republic of the Congo and sovereign immunity means that Italian courts cannot allow suits for compensation from Germany over war crimes committed during World War II.

"It is hard not to see a common trend here that is driven by Realist reasoning," Voeten suggests.

As Roger Alford at Opinion Juris points out, while "The ATS as we know it is dead," it isn’t exactly the end of universal jurisdiction. There’s still the Torture Victims Protection Act, a 1991 law which allows for suits involving torture or extrajudicial killing against individuals in U.S. courts. (Unlike the ATS, this law was clearly inteded by Congress to apply to crimes outside the United States.) But this too has been rolled back a bit. In 2012, the Supreme Court heard a case involving a torture suit against the Palestinian Authority and ruled that the TVPA could only be applied to suits against individuals.

For criminal cases, there’s the extraterritorial torture statute, which was used to prosecute Charles "Chuckie" Taylor Jr. for torture committed in Liberia, but that only applies if the defendant is a U.S. national or at least present in the United States.

The notion of extraterritorial jurisdiction may not be dead, but the trend does seem to be against it.