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DC Circuit Reinstates Torture Claim Against Exxon Despite Bush Appointee’s Claim That Corporations Are Immune To The Law

By Ian Millhiser  

"DC Circuit Reinstates Torture Claim Against Exxon Despite Bush Appointee’s Claim That Corporations Are Immune To The Law"

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Judge Brett Kavanaugh

Doe v. Exxon Mobil is one of those cases that makes your skin crawl. A law known as the Alien Tort Statute allows private parties to be sued for some of the most atrocious violations of international law, and Exxon’s alleged actions clearly qualify. The oil giant allegedly hired members of the Indonesian military to guard one of its natural gas facilities in that country, despite that military’s long history of genocide, sexual violence and other crimes against humanity. These soldiers then allegedly acted exactly as you would expect while working on Exxon’s behalf:

In addition to extrajudicial killings of some of the plaintiffs-appellants’ husbands as part of a “systematic campaign of extermination of the people of Aceh by [d]efendants’ [Indonesian] security forces,” the plaintiffs-appellants were “beaten, burned, shocked with cattle prods, kicked and subjected to other forms of brutality and cruelty” amounting to torture, as well as forcibly removed and detained for lengthy periods of time.

Despite a lower court decision tossing out these plaintiffs’ suit against Exxon, two of the three judges on a D.C. Circuit panel voted to reinstate the case. The third judge, Bush-appointee Brett Kavanaugh, offered a reason to toss out the case against Exxon that borders of self-parody:

To support an ATS claim against a corporation, it would not be sufficient to show that customary international law prohibits torture, extrajudicial killing, and prolonged detention when committed by state actors. It likewise would not be sufficient to show that customary international law recognizes corporate liability for some violations, but not for aiding and abetting torture, extrajudicial killing, and prolonged detention. Rather, for plaintiffs to maintain their claims, customary international law must impose liability against corporations for aiding and abetting torture, extrajudicial killing, or prolonged detention. It does not. In fact, customary international law does not impose liability against corporations at all.

In essence, Kavanaugh argues that Exxon is free to engage in as much torture, murder and lawless detention abroad as it desires because Exxon is a corporation, and corporations enjoy complete immunity from the international legal norms forbidding such barbaric behavior.

As the majority opinion explains, Kavanaugh is simply wrong about Exxon’s so-called legal immunity. Indeed, there is a line of precedents going back at least as far as 1774 holding corporations accountable for causing harms to others. Unfortunately, however, there is a very real risk that Exxon will ultimately succeed in its quest for unchecked freedom to hire it’s own private army to torture and kill. Two conservative judges on the Second Circuit recently held that corporations do indeed enjoy the kind of immunity Exxon sought here — and the Supreme Court typically likes to review cases where two courts of appeals have split on the same legal issue.

In other words, the fate of people allegedly tortured or killed by Exxon’s soldiers for hire could rest on whether the same five justices who brought us unlimited corporate money in elections, forced arbitration and the near death of the class action see fit to hold a corporation accountable for its actions.

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