Shell Oil is set to argue to in Kiobel v. Royal Dutch Petroleum (Shell) that this law cannot be used to hold it accountable for human rights abuses. Shell is facing allegations of aiding and abetting rape, torture and extrajudicial killings by working with the Nigerian military in the 1990s to oppress activists opposed to its oil operations. Corporate complicity in human rights abuses is nothing new…
Desmond Tutu: Will U.S. rule for rights of S. Africans?
Supreme Court hears case that challenges 223-year-old law that holds multinational corporations accountable for abuse.
If the Supreme Court sides with Shell, it would represent a terrible step backward for human rights.
By Desmond Tutu
3:36PM EST September 30. 2012 – In South Africa, we have struggled for years against the evil system of apartheid that divided human beings because of the color of their skin. Apartheid was a culture of legalized oppression that denied all of my people our fundamental human rights. We knew this was wrong. By the grace of God, the world supported our struggle for freedom, dignity and justice.
After apartheid, South Africans built a new country where the law was a tool for protecting human rights, not a means of oppression. But on Monday, the opening day of the new term, the U.S. Supreme Court will consider a case that could severely weaken a key legal mechanism used to secure justice for survivors of abuses such as those that fueled apartheid.
At issue is the Alien Tort Statute, a 223-year-old law that allows foreign plaintiffs to bring claims in U.S. courts against those who commit or assist crimes such as torture and slavery and apartheid. It has been an effective tool to bring a measure of justice to some of the world’s most vulnerable people.
Shell Oil is set to argue to in Kiobel v. Royal Dutch Petroleum (Shell) that this law cannot be used to hold it accountable for human rights abuses. Shell is facing allegations of aiding and abetting rape, torture and extrajudicial killings by working with the Nigerian military in the 1990s to oppress activists opposed to its oil operations.
Corporate complicity in human rights abuses is nothing new. In South Africa, multinational corporations participated in apartheid-era human rights abuses. Under the law in question, classes of South Africans are currently pursuing justice against several corporations. A current case against Daimler, Ford, and IBM is ongoing, and General Motors has agreed to pay some compensation to victims of apartheid.
One of the challenges we faced in South Africa was addressing the past without becoming persecutors of those who once oppressed us. Legal accountability is critical: when people know they may have their day in court, they are more likely to choose peaceful means of righting past wrongs. Without legal remedies, violence begets more violence.
The statute is one way to counteract this vicious cycle. It provides a forum to those who would be invisible. It gives an opportunity to seek justice to those who would be hopeless.
Shell’s attempts to eliminate this form of justice is troubling. But what bothers me more is that Shell has misrepresented South Africa’s Truth and Reconciliation Commission, created to right the wrongs after apartheid, and of which I was a member.
Shell argues that the commission shows that human rights victims do not need courts to receive justice, but it sadly misses the point. The truth commission was about victims and perpetrators sitting down, confronting wrongs, and speaking together honestly of what had happened. The commission provided immunity only to those who confessed their crimes, not to those who maintained they bore no responsibility. Shell’s officers and board of directors have shown no willingness to meet with the Nigerian families and ask for forgiveness.
Oil company offense
It is offensive that Shell equates its desire for immunity with the purpose of the commission. The truth commission brought the horrors of apartheid into the open, gave silenced victims a voice and allowed the guilty to seek redemption. While it is true that justice can come in several forms, Shell is arguing for no justice at all.
America has been a staunch protector of the rule of law. The case before the Supreme Court reminds me that of the difference between “negative peace” and “positive peace.” The absence of human rights crimes is negative peace, but the presence of justice indicates positive peace. In a positive-peace society, the Alien Tort Statute shows that the rights of the most disenfranchised and oppressed are just as important as the rights of the richest and most powerful.
If the Supreme Court sides with Shell, it would represent a terrible step backward for human rights. We must move together toward positive peace. This does not mean standing aside and doing nothing in the face of human rights abuses. While South Africa has only recently built a legal system that contributes to positive peace, in the United States it has been embodied in the law for more than 200 years. This is not the time to turn back the clock.
I encourage the Supreme Court to do what is right.
Desmond Tutu is archbishop emeritus of Cape Town, South Africa. He won the Nobel Peace Prize in 1984.