Mohamad, the Palestinian Authority, Royal Dutch, and the U.S. Supreme Court

by Jonathan Hirsch

The opinions expressed are not necessarily those of the U.S. Army War College, Department of the Army, or Department of Defense.

A pair of Supreme Court cases, one already decided and one soon to be announced, will have a profound effect on the ability of individuals to gain some measure of restorative justice from larger, more powerful organizations. On April 16, 2012, the United States Supreme Court dismissed the 2004 claim of the relatives of Azzam Rahim, a U.S. citizen tortured to death by agents of the Palestinian Authority in 1995. Mr. Rahim’s relatives brought suit against the Palestinian Liberation Organization and the Palestinian Authority in U.S. Federal Court under the Torture Victim Protection Act (TVPA) of 1991. If successful, the claim would have resulted in a monetary judgment in favor of the survivors of Mr. Rahim against the two organizations, achieving some measure of restorative justice. The claim ultimately failed because the TVPA assesses liability only against individuals, not against juridical or legal persons, such as corporations, organizations, or authorities. In dismissing the claim, the U.S. Supreme Court missed an opportunity to engage in international legal reasoning to grant a measure of restorative justice in an area sorely in need of it.

Under the Foreign Sovereign Immunities Act, a sovereign state is largely immune from suit in U.S. courts, but the Palestinian Authority and Palestinian Liberation Organization are not recognized as sovereign nations and should therefore be amenable to suit for damages. Yet the Supreme Court said they were not amenable to suit, as they are not individuals. While it is correct that they are not individuals and are thus not amenable directly, nothing in previous court cases prohibits non-sovereign juridical entities from having derivative liability. The court could have applied derivative liability by extending the civil law concept of respondeat superior, the civil liability an employer bears for the wrongs committed by his or her agent or employee.

In fact, the Supreme Court even recognizes the disagreement between the various lower courts as to whether the TVPA extends such derivative liability to corporations. One court allowed for derivative corporate liability under the TVPA, while the other four lower courts addressing the issue excluded that theory. In dismissing the Mohamad suit, the Supreme Court went with these four lower court decisions, effectively reversing the one decision allowing for corporate liability under the TVPA.

As a result of this decision, executives at Royal Dutch Petroleum are breathing a collective sigh of relief. Kiobel v. Royal Dutch Petroleumthe companion case to the Mohamad decision argued on October 1 and to be decided sometime this term, involves a wrongful death and torture claims under a different statute, the Alien Torts Statute (ATS), against Royal Dutch Shell Petroleum and its British partner for acts taken by government actors in Nigeria for which Shell could have derivative liability. With the Mohamad decision standing against both corporate and derivative liability, it is unlikely the parties in question will be able to obtain compensation.

With non-governmental organizations, corporations, and other “deep pockets” effectively shielded from liability for the most atrocious acts of their employees and agents, individuals seeking restorative justice in the U.S. courts have little hope for compensation without congressional action to amend the statutes in question. Take, for example, the recent conviction of Charles Taylor, the former president of Liberia convicted of crimes against humanity. His victims may sue him in U.S. courts directly, but they are unlikely to get much financial compensation—as a prisoner, Mr. Taylor does not have many assets—unless they can reach into the deeper pockets of the organizations that supported him. Even more disturbing, the widow of Daniel Pearl, the reporter brutally killed by agents of Al Qaeda, is denied the ability to seek personal restorative justice against the organization that perpetrated the death of her husband in U.S. courts. Because the words of both laws apply to “individuals” instead of “persons,” it is likely the Supreme Court will read them similarly, putting organizations beyond the reach of these remedies.

Without being able to reach into organizational accounts and holdings, victims can receive moral victories at best through retributive justice sentences imposed on the criminally culpable. In order to correct this and further the cause of restorative justice, Congress should change the TVPA and the ATS to make “persons”—including juridical persons such as corporations—liable instead of “individuals.”

About the Author

Lieutenant Colonel Jonathan Hirsch is an Army Judge Advocate. He has been serving the Army since 1988, including overseas service tours in Korea, Berlin, Saudi Arabia, Bosnia, Italy, and Germany. He attended The Fletcher School of Law and Diplomacy from 2011-2012 as an Army Senior Service College Fellow. Lieutenant Colonel Hirsch is now Deputy Staff Judge Advocate, 9th Mission Support Command, Fort Shafter, Hawaii.

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