Last month, a divided panel of the U.S. Court of Appeals for the D.C. Circuit reinstated a lawsuit alleging that that members of the Indonesian military hired by Exxon to guard one of its natural gas facilities committed numerous atrocities under Exxon’s employ:
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.
Needless to say, Exxon is very upset that they might be forced to endure slightly lower profit margins over something as minor as widespread human rights violations, so they’ve now asked the full Court of Appeals to immunize them from this lawsuit. And, sadly, Exxon has a good chance of prevailing despite the existence of a federal law that allows private parties to be sued for many of the most atrocious violations of international law.
The D.C. Circuit is one of the most conservative courts in the nation, and it includes several of America’s most ideological judges. Judge Janice Rogers Brown once compared liberalism to “slavery” and Social Security to a “socialist revolution.” Judge Douglas Ginsburg is an avowed tenther who is most famous for suggesting that the Depression Era vision of the Constitution that struck down everything from the minimum wage to child labor laws is a “Constitution in exile” that should be revived. And Judge Brett Kavanaugh, who dissented from the panel’s decision, believes that Exxon should not be held accountable for atrocities because Exxon is a corporation, and corporations enjoy complete immunity from the international legal norms forbidding such barbaric behavior.
So if Exxon triumphs before this court, the reason will likely have nothing to do with the law and everything to do with the identities of the people trusted to apply it.