Category: Civil Rights

Europe’s ‘Migrant-Crisis’ : A self-inflicted wound?

In the wake of the large number of asylum-seekers entering Europe from the Middle-East and Africa, the majority of political and media attention has been focused on the question of which European countries should be responsible for accommodating these people and in what numbers. The narrow focus of this debate has ignored the root causes of the crisis, causing many to disregard the critical role played by many European States in the creation and continuation of hostilities in these asylum seeker’s countries of origin. Through an examination of this role, it is clear that Europe bares great responsibility for the people reaching its shores and in many ways, can be said to have engineered its own crisis.

Syria

The greatest number of asylum-seekers arriving in Europe in recent times have been from Syria and this is the result of a long and bloody civil war between State security forces and armed rebel factions which has ravaged the nation’s civilian population. Since the outbreak of the Syrian civil war in 2010, several European States have been implicated in the provision of both financial and military assistance to anti-government forces in their attempt to overthrow the regime of President Bashar Al-Assad and crush his supporters. In August 2012 the British Government announced that it would be sending 5 million pounds to opposition groups in Syria to aid them in their military operations. In addition to providing financial assistance to the rebels, the UK has also been involved in the establishment of military camps in neighbouring States Turkey and Jordan where they have been training rebel fighters. As well as the United Kingdom, France have also played an active role in the Syrian civil war. In 2014, French President Francois Hollande revealed that France had directly supplied weapons to opposition groups in Syria. The direct supply of weaponry to the rebels was made possible after the EU voted to lift an arms embargo on Syria which prohibited the exportation of arms directly to rebel militias. European States have also used indirect means to supply weaponry  to rebel groups, such as through the trade of arms with Gulf States who have funnelled these weapons to the opposition factions they support. This supply of financial and military assistance to anti-government forces has had the effect of substantially prolonging the life of the Syrian civil war which has led to millions more civilian deaths, internally displaced persons and asylum seekers travelling to neighbouring States and also to Europe to escape the violence.

Afghanistan

The second largest number of asylum-seekers arriving in Europe in recent times are reported to be from Afghanistan, another nation which for years has been riven with internal strife and violence. The involvement of European nations in Afghanistan is well documented and dates back to 2001, when in response to the September 11 attacks in the United States, Britain, later joined by NATO forces from Europe invaded and occupied Afghanistan. In 2003, NATO took permanent command of the International Security Assistance Force (ISAF) and became embroiled in a bitter war with Taliban rulers for the control of key cities within Afghanistan. 2015 is reported to have been one of the most violent years since the Afghan War began with over 5,000 civilian casualties reported this year so far. The perpetual fighting between Afghan, European and US forces has led to the immense displacement of persons as tens of thousands of civilians have fled, many of them to Europe, in order to escape the increasing violence and unrest in the nation.

 

 

 

 

 

 

 

Libya

Libya also represents a common destination from which many of Europe’s recent asylum-seekers have travelled. Prior to events which culminated in foreign military intervention in 2011, Libya was a relatively stable nation with reportedly one of the highest standards of living on the African continent. Due to its large crude oil reserves, it was also one of the founding member states and key nations within OPEC, the organization of petroleum exporting countries. In 2011, Libya descended into a fierce civil war between the security forces of then President, Muammar Gaddafi and armed rebel militias. Following a call from the United Nations for member states to take all measures to “protect civilians and civilian populated areas…while excluding a foreign occupation force of any kind”, a foreign intervention force led by NATO began to offer military support to the rebels, as well as to carry out airstrikes and naval blockades aimed at weakening the President and his security forces. Thousands of civilians died during this period of bitter fighting between Gaddafi’s security forces and western-backed militias determined to overthrow him. As well as high numbers of civilian deaths, the fighting led to thousands of internally displaced persons and many fled the country, seeking asylum in neighbouring States and the West. The killing of Gaddafi created a power-vacuum in Libya and ferocious internecine warfare ensued between the controversial new government and well-armed militias who refused to disband once the new Libyan government was in power. This has been dubbed by many as Libya’s ‘second-civil war’ and has resulted in large numbers of civilian casualties and displaced persons. In addition to this, since the fall of Gaddafi’s government there have been several reports of systematic, racially motivated murders of black African workers by rebel forces who are reported to operate with impunity in the now lawless country. This ongoing violence has led to thousands of civilians fleeing the country, many of whom have made their way to Europe in order to escape the violence.

The above demonstrates the key role that several European nations have played in the violent conflicts many asylum-seekers now travelling to the continent are risking their lives to escape. This role has been characterised both by the provision of financial and military assistance to various armed factions and by the direct intervention of European forces within these foreign conflicts. Instead of bringing about a swift-resolution to these conflicts, European involvement has had the effect of intensifying and protracting these armed struggles, the result of which has been an even greater exodus of people, many of whom have fled to Europe in search of safety. In many ways therefore, the ‘migrant-crisis’ has been a phenomenon of Europe’s own making and it is clear that as such, European nations should take far more responsibility for these desperate people’s accommodation.

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‘Modern Slavery’ – When a name has got to go.

Whenever I hear the term ‘Modern slavery’ used in British media and politics I feel an immediate and acute sense of indignation. Part of this feeling stems from the inaccuracy of the term, the other part derives from what I feel its aminota manuse is consciously, or subconsciously, trying to accomplish. Regardless of any alleged justifications for it ‘Modern slavery’ is a misnomer, which attempts to deflect attention away from an issue which this country has never properly come to terms with – Britain’s role in the Transatlantic Slave Trade. Its usage should stop until this subject has begun to be addressed.

This year, Parliament passed the Modern Slavery Act which aims to strengthen efforts to tackle the growing problems of human trafficking and forced labour in the United Kingdom. Whilst the increased efforts to tackle these problems are undoubtedly commendable, the name of the Act is not. Firstly, the term ‘Modern Slavery’ is inaccurate in so far as it seeks to proscribe the same name to two very different phenomena. The Oxford English Dictionary describes slavery in reference to being a slave, and a slave as “a person who is the legal property of another (especially in the past)”. The key word in this definition is ‘legal’, as it underlines the fact that slavery has historically been a system which was supported by a nation’s laws.

There is perhaps no more quintessential example of this State-sponsored system than the Transatlantic Slave Trade, where the British (and other European powers) passed laws for their colonies in the Americas and the Caribbean which recognized slaves as property and protected the rights of masters over their newly acquired ‘property’.  As Justice Roger B Taney reminds us in the seminal United States slave case of Dred Scott v Sandford:

“The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a Negro of the African race was regarded by them as an article of property, and held, and bought and sold as such…”

Whilst forced labour does describe a system where a person is forced to work for another for free, unlike slavery, it is seldom endorsed by the nation in which it takes places and is infact recognized as a crime in virtually every nation in the world except for as part of military service or as a punishment for certain offences. This is not to say that human trafficking and forced labour are not abhorrent crimes, only that they are fundamentally different to slavery.

Some may point to the word “Modern” as differentiating the concepts, however this argument is unpersuasive. The addition of the adjective ‘Modern’ seems to suggest either that it is the exact same practice, just carried out contemporarily, or that the forced labour on the rise today is in some way equivalent to the slave trade. Neither of these denotations are acceptable, as nothing about human trafficking and forced labour equals, or even mildly resembles, the State-sanctioned, State-funded and State-legitimized institution of Slavery which, in the case of the Transatlantic Slave trade, uprooted millions from their homes and sold them into perpetual bondage. The profits from this wicked trade helped shape and mould many of the advanced western nations of today and was particularly important to the development of Britain, who used the profits from its domination of the slave trade to fuel its industrial development.

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The second issue that I have with the term ‘Modern Slavery’ concerns what I believe its use is trying either advertently, or inadvertently to accomplish. The Transatlantic Slave trade is not only one of the most harrowing examples of mass suffering and exploitation in human history, but also  remains one of the most poorly remembered and redressed. Whilst the Church of England issued a formal apology in 2006 for its role in Slave trade, the British Government has never issued an apology for the part it played and consistently expressed its reluctance to even engage in dialogue with those looking to exhume the remains of our nation’s role in the trade. Ironically, the last time Parliament passed an act with ‘Slavery’ in its title was the Slavery Abolition Act (1833). This act, whilst finally abolishing the Slavery that the British Empire had helped establish and maintain for 400 years, provided for vast sums of compensation to be paid to slave-owners who, as a result of abolition, would be losing their ‘human property’. Slaves on the other hand, were given nothing and these decisions laid the foundations for the social and economic inequality which still plague many Caribbean nations and peoples of Caribbean descent today.

It is astonishing that whilst our Government are not even prepared to engage in the topic of their historical role in the Slave Trade which affected so many and continues to do so today, the word is permitted to be banded around in the political sphere and even given to an Act of Parliament describing what are in essence very different crimes. This is deeply insulting to those still living with the gross inequalities that slavery gave rise to and one cannot but get the impression that it is as if by using the term ‘Modern Slavery’ certain factions are attempting to erase the memory of Britain’s role in one of the clearest examples of Slavery that ever existed, The Transatlantic Slave trade.

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SAS v France: Banned Burqas and Veiled Intents Supported at the Strasbourg Court

In an astonishing recent judgement, the Grand Chamber of the European Court of Human Rights has upheld France’s ban on the wearing of the Burqa and Niqab in public places. Whilst some commentators have heralded the decision as a progressive step in the protection of women from cultural and religious pressures, a closer analysis reveals that beyond the court’s scant and inconsistent reasoning, a worrying precedent has been set which grants states almost unfettered authority to discriminate against disfavoured minorities in the name of social cohesion. This article explores the judgment and examines its implications.

The facts

The applicant was a 24 year old female (Named ‘SAS’ by the court for reasons of anonymity) who was a resident and national of France. SAS declared that she was a devout Muslim who, due to the demands of her faith in addition to her personal convictions and culture, chose to wear both the Burqa and the Niqab in public and private situations. The applicant maintained that she did not always wear these garments and did not object to removing them for certain security and identity checks, however, she wanted to be able to wear them at certain times when she felt the need to be closer to her faith. Such circumstances included for example, during the Islamic month of Ramadan when Muslims are required to fast and typically make an effort to observe their faiths more rigorously. SAS declared that she was under no pressure to wear these garments and asserted that her decision to cover herself was entirely of her own free will as an expression of her Muslim faith.

Adoption of the French Law “Prohibiting the concealment of the face in public places” 

On 11 April 2011, law n° 2010-1192 “prohibiting the concealment of the face in public places” came into force in France. The law has an extremely broad scope and covers not only all places open to the public such as city squares and parks, but also all those where a public service is delivered, such as museums and hospitals. The penalty for contravening this law is a fine of up to 150 euros and/or a compulsory “citizenship course”.

The adoption of the law was the direct a result of a report drafted by a cross-party Parliamentary commission which was established to examine the implications of the wearing of the Veil in France. The report disclaimed the idea that the veil was a traditional expression of the Islamic faith and instead asserted that, at least in France, it was a novel phenomenon which could be linked to the rise of Islamic fundamentalism. Furthermore, the report categorized the veil as being a powerful tool in the subjugation of women and as such, inimical to the ideas of ‘liberty, equality and fraternity’ which lie at the heart of the French constitution. The report also held that the veil precluded contact between individuals and thus constituted both a physical and symbolic barrier between those who chose to wear it and the rest of French society. This it claimed, impinged on the French notion of ‘living together’ which was fundamental to social cohesion and integration.

Claims at the European Court of Human Rights

On the same day the law entered into force, SAS made an application to the European Court of Human Rights (ECtHR) in Strasbourg, alleging that the ban violated a host of her rights under the European Convention on Human Rights (ECHR). The essential rights that she claimed had been infringed were Article 8 ECHR regarding the right to respect for private and family life and Article 9 ECHR which protects an individual’s right to freedom of thought conscience and religion. The applicant claimed that whilst the ban was ‘prescribed by law’ for the purposes of the Convention, it didn’t pursue any identifiable ‘legitimate aim’ under the articles and neither was it ‘necessary in a democratic society’.

On the 28 May 2013 the 7 Judge Chamber that was scheduled to hear the case relinquished jurisdiction to the 17 judge Grand Chamber of the Court who proceeded to examine the parties’ arguments.

Decision of the Grand Chamber

By a majority of 15 votes to 2 the Grand Chamber of the ECtHR held that the banning of the Veil did not violate the applicant’s rights under Article 8 and 9 of the convention, nor any other of her Convention rights for that matter.

Prescribed by Law

This requirement was not contested either by SAS or by the State. It was clear that the measure was ‘prescribed by law’ from the text of law n° 2010-1192 and its coming into force on 11 April 2011.

Legitimate Aim

The Court noted that whilst the ban did not pursue any specific legitimate aim outlined in Article 8(2) or 9(2) of the ECHR, it nevertheless accepted the Government’s contention that it infringed upon the State’s notion of ‘living together’, which it claimed could be linked to the aim of ‘ protecting the rights and freedoms of others’. It is worth re-visiting here, the verbatim words of the Court in its justification of this novel legitimate aim:

 “The Court takes into account the respondent State’s point that the face plays an important role in social interaction. It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.”

Finding that ‘living together’ was therefore a legitimate basis upon which States could limit the fundamental rights of their citizens, the Court then proceeded to an examination of whether or not the measure was ‘necessary in a democratic society’ or in other words, whether the ban was proportionate to the aim pursued and the least restrictive means of achieving it.

Necessary in a Democratic Society

In finding that the ban was legitimate to the aim pursued the Court first determined that in matters concerning the State and religion, the State, having democratic authority and a clearer idea of the needs and conditions within a particular society,  should have a wide ‘margin of appreciation’. In other words, in matters concerning religion the Court determined that States would have a large degree of discretion in determining what restrictions may be deemed ‘necessary’ for the purposes of the ECHR. The Court supported this idea by pointing to what it considered to be a lack of consensus amongst European nations regarding whether or not the veil should be banned.

Further, the Court considered as significant the fact that the ban had not been levelled against the wearing of the veil per se but rather against the “concealment of the face” (la dissimulation du visage) in public places. The Court claimed that this distinguished it from previous cases where the specific banning of religious garments in public was held to be a violation of the ECHR.

The court next considered the gravity of the punishment for wearing the veil in public. Whilst the court conceded that ‘the idea of being prosecuted for concealing one’s face in a public place is traumatising for women who have chosen to wear the full-face veil for reasons related to their beliefs’ it nevertheless reasoned that the sanctions were ‘among the lightest that could be envisaged’ by the French legislature and thus by implication were the least restrictive means available and proportionate.

The Court then, quite paradoxically, reasoned that whilst through a restriction on the wearing of the veil in public places France had ‘restricted the reach of pluralism’ which it had previously claimed was a ‘hallmark of a democratic society’; in banning these garments, the French Government was trying to ‘protect a principle of interaction’ which was necessary to preserve pluralism and a spirit of tolerance and broadmindedness within society.

With these reasons taken together, the court ruled that there had thus been no violation of the Convention as the ban was prescribed by law, pursued a legitimate aim and was necessary in a democratic society.

Remarks and Criticisms

Several troubling inconsistencies emerge from the Court’s decision to uphold France’s veil ban. Firstly, the Court’s justification for allowing States a wide margin of appreciation in this area deserves some criticism. Whilst the Court recognized that amongst the Council of Europe members, only Belgium had taken the active step of banning the Burqa in public places, it nevertheless reasoned that because a ban was ‘being discussed’ in several other European States, there was thus no clear consensus against the banning of a veil – which widened the discretion afforded to France. The truth is that whilst there had indeed been debates on the issue within several European States,  no other nation had taken the radical step of legislating an outright ban on the wearing of veil in public except Belgium, which passed its ban against a backdrop of international criticism and rebuke . This evidence clearly points to a European consensus against the banning of the veil – it does not suggest that there is no consensus whatsoever and the Court’s argument simply inverts the truth in order to reach its preferred conclusion.

Secondly, the Court’s suggestion that because the law itself did not explicitly ban the veil that it is therefore proportionate, ignores entirely the pretext in which the law was passed. Both the Parliamentary debates and report which led to the adoption of the law centred almost exclusively on the veil (‘la voile integrale’) and the French legislature seem only to have adopted a ban on the covering of the face on the advice of the Conseil d’Etat that a specific prohibition on the veil would fall foul of the Constitution and ECHR. It seems to be immaterial therefore, that ostensibly the law purports to ban only the ‘concealment of the face’, as it is manifest from material which the Court had before it and even presented as part of its judgement, that its real intent was to ban the veil.

The Courts suggestion that the criminal sanctions for wearing the veil are ‘the lightest possible’ borders on the risible. Criminal sanctions, are by their very nature, serious penalties which may lead to both prosecution before a Court and a criminal record. In this case, a simple caution or even civil penalties may have been used to achieve the aim sought and it is a fallacy for the Court to suggest that because the sanctions in question are not the most grave criminal penalties imaginable they are the least restrictive means of achieving the aim persued. It should also be noted that 150 euros, whilst perhaps a ‘light’ sanction to the moneyed middle – classes of the French legislature and the Court, could impose a substantial financial burden on the mostly working class demographic of women who choose to wear the veil in France. This burden could be amplified as women who truly feel they have no choice but to wear the veil and thus find themselves to be ‘repeat offenders’, face the daunting prospect of being fined each time they leave their homes and this sum thus multiplying into thousands of Euros over time.

The alternative imposition of a ‘citizenship class’ for wearing the veil is also a severe and unnecessary sanction. This vindictive punishment forces women, who may very well be French-born or like SAS – naturalized French nationals, to accept that as long as they uphold their religious and cultural traditions, they will never be regarded as French. They will as a result be made to endure the humiliating and grossly patronizing punishment of being ‘educated’ by the State as to what being French is, simply for retaining this aspect of their religion and culture. It is clear that such an odious punishment cannot credibly be classed as ‘light’.

The Court’s following remarks on pluralism are simply contradictory. It cannot at once concede that France has ‘restricted pluralism’ by banning the veil in public and then accept its justification that it is actually trying to preserve pluralism by doing so. The concept of pluralism does not admit degrees and neither does it metamorphose depending on whose perspective we consider it from. Either a State permits the free expression of different cultures, customs and religions within its borders or it does not – it cannot say that it supports pluralism, but only its version of pluralism which in France’s case, explicitly excludes the Burqa. It is bewildering that the Court would advance such paradoxical logic.

Finally and perhaps most worryingly, is the Court’s endorsement and subsequent creation of the novel legitimate aim of ‘living together’. Whilst the Court concedes that the list of legitimate aims under Articles 8(2) and 9(2) ECHR are ‘exhaustive and interpreted restrictively’ it nevertheless creates, ex nihilo, an entirely novel legitimate aim for States. From now on, States do not have to show how a restriction on the freedom of religion is necessary in order to protect such serious concerns as ‘public health’ or ‘national security’, but only that it offends against their subjective notion of ‘living together’. This remarkably broad and nebulous concept gifts governments who may be motivated by a sole desire to discriminate against particular minorities with an innovative tool in order to do so. It is not hard to imagine how many other religious and cultural practices may be rendered illicit in the future under the smokescreen of ‘living together’. Perhaps some States may decide that Sikhs wearing turbans or Jews wearing kippahs offends against their idea of ‘living together’ and decide to introduce prohibitions on these practices. As a result of the Court’s new legitimate aim, they now need only show that such bans are proportionate in order to comply with the ECHR. History is laden with examples of State sponsored discrimination; The persecution and prejudice experienced by religious and racial minorities during WWII and the desire that such terror should never be wrought again was one of the main driving forces behind the creation of the ECHR and the ECtHR. It is bitterly ironic that the same Court that was setup as a bulwark against such State sponsored incursions into our individual rights and freedoms would now be the organ that seeks to legitimize them.

Conclusion

Granting States the final say on what ‘living together’ means and allowing them to use their definitions to restrict their citizens’ rights is a catastrophic development in the jurisprudence of the Court. The effect of this decision is to ignore the advances of multiculturalism within Europe and to hark back to an era where States consisted of one homogenous group of people with all others considered as foreigners or outsiders. As it is clear that this is no longer the case in the majority of European countries, the effect of the Court’s judgement is to endorse discrimination against those who don’t look, dress and act like the majority and such a decision rubber stamps the xenophobia and prejudice which have been on the worrying rise in Europe.

In Re South Africa Apartheid Litigation: Corporate Complicity in Apartheid Atrocities

           Background

The claims In Re South Africa Apartheid litigation arose in 2002 following the alleged involvement of 5 major multinational corporations in gross Human Rights violations during the Apartheid era in South Africa. Mr Ntsebeza, a black South African national, along with a host of other claimants brought a class-action lawsuit in the United States alleging that Ford, Barclays, IBM, General Motors and German automotive manufacturer Daimler GM not only knowingly conducted business in South Africa during the apartheid regime, but worse, that they provided direct assistance to and acted in accordance with the South African government and security forces during their brutal oppression of blacks and other minorities over the course of Apartheid.

cuanavale

The claimants alleged that Ford, General Motors and Daimler GM manufactured vehicles which were used by the South African security forces to violently suppress opposition to apartheid and inflict wide spread atrocities amongst the black civilian population. These companies, who owned a multitude of factories and plants in South Africa during Apartheid, were also accused of callously retaliating against employees who were found to be participating in the anti-apartheid movement, through such means as, unfair dismissals, intimidation and even assisting with unlawful detentions and torture in collaboration with the apartheid authorities. The corporations were also accused of providing de facto support to the apartheid regime by implementing segregation within their own facilities and grossly underpaying blacks for equal work. 

IBM were accused of actively assisting the Apartheid state by producing race-based identification documents  which were used by the authorities to greatly restrict the movement of blacks around South Africa. These documents also allowed the authorities to implement a meticulous geographic separation of the races, whereby blacks were forced into remote and dilapidated shanty towns known as ‘Bantustans’ and obligated to live there as ‘Bantus’ deprived entirely of South African nationality and any of the corresponding rights of such citizenship. 

Barclays

Barclays were accused of participating and assisting in the geographic separation of the races by refusing black employees the opportunity to work in, or be transferred to branches in predominantly white areas. This practice was not mandatory under South African law at the time and thus Barclays were accused, of providing de facto support to the apartheid regime through the implementation of such policies. 

The Defendant companies rejected the legal culpability for their actions but never denied their involvement in apartheid in the ways advanced by the claimants.

Claims in United States

As the Republic of South Africa was originally opposed to the litigation, the claimants elected to bring their action in the United States, alleging that the corporations concerned had all aided and abetted gross human rights violations, which was an actionable offence under the Alien Tort Statute (ATS) . The ATS is an old piece of US legislation which grants United States courts original jurisdiction over  ‘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‘. In other words, the ATS potentially allows for a foreign claimant (a non-national and non-resident of the US) to sue a foreign defendant (also a non-national and non-resident of the US) in a United States court for gross Human Rights violations, irrespective of where these violations occurred. The ATS has been instrumental in allowing many individuals whose human rights have been violated but whom, for a variety of reasons, were not able to obtain any redress in the place where these abuses occurred, to recover damages by bringing claims in the United States.

Supreme_Court_US_2009The District Court dismissed the claims in 2004, holding that aiding and abetting was not a viable cause of action under the ATS. In 2007, the Court of Appeals for the Second Circuit reversed the decision of the lower court, holding that aiding and abetting was actionable under the ATS and remanded the case back to the District Court for further hearing. The defendant companies then appealed to the Supreme Court of the United States, asking the Court to rule definitively on the issue. 

Lack of Quorum in the Supreme Court

In an extraordinary turn of events, the Supreme Court declared that it would not be able to hear the appeal, due to the fact that 4 of the 9 Justices on the Court had to withdraw from proceedings based on their financial and personal interests in the companies involved. The Court thus lacked the required Quorum (6 Justices) it needed to hear a case and was subsequently forced to affirm the ruling of the Second Circuit Court of Appeal without declaring it binding precedent.  The claims against the corporations were thus able to proceed.

Impact of Kiobel v Shell

On 17 April 2013 the Supreme Court handed down its judgement in the eagerly anticipated case of Kiobel v Shell.  This was a case concerning a number of Nigerian nationals, who were suing the Anglo-Dutch company Shell for its alleged complicity in torture, rape and the extra-judicial killing of activists in the Ogoni region of Nigeria. The claimants could not bring the claims in Nigeria, because they feared reprisals from powerful elements within the Nigerian Government and military, who they claim had been heavily involved in the abuses. For this reason they too, like the claimants in the In Re Apartheid cases, sought to rely on the ATS to bring their claims against Shell in the United States.

 The central questions for the judges in Kiobel were whether or not:

1.    The ATS applied extra-territorially to foreign defendants operating outside the US.

2.    Corporations could be sued for violations of International Law.

The Court considered that the issue of paramount importance was the primary question and so re-heard the case based on this question alone.

In a unanimous decision, the court ruled that there was no definitive proof that the ATS was ever enacted to allow foreign claimants to sue foreign defendants in US courts for harms that occurred outside of the US. The decision of the judges was very much alive to the diplomatic burdens that it would place on the United States to allow harms occurring in other people’s countries to be brought before their Courts. For some, the ruling was a victory for US foreign relations but for others, particularly those who have pushed for the universal enforceability of human rights norms, the decision was a major setback which could ultimately provide carte blanche for corporations to continue to commit human rights violations abroad whilst providing no redress to victims.

After Kiobel

The Kiobel decision has had a dramatic impact on the ensuing success of the claims in the In Re Apartheid litigation. In August 2013 The Second Circuit Court of Appeals remanded the case back down to the lower courts suggesting that the claims be dismissed in light of the Kiobel ruling. General Motors reached an earlier settlement with the plaintiffs, however, on 26 December 2013 the court of first instance held that, the claims against Daimler did not ‘touch and concern’ the US with sufficient force to rebut the presumption against extraterritoriality applied in Kiobel and thus had to be dismissed. The claims against IBM and Ford, the two remaining plaintiffs, were however not dismissed. The court instead asked the parties to produce briefs on the question of whether corporations may be liable for breaches of International Law – which was the original, unanswered question in the Kiobel v Shell case. This leaves open the possibility for corporate liability for human rights violations abroad, however, whether or not other courts and perhaps ultimately the Supreme Court, will answer this question in the affirmative remains to be seen.