No. 10-1491

I " Supreme,Court, U.S. ’ i

! omc~ o~m~.

upreme eurt ef tl3e i tnitel tate

ESTHER KIOBEL, individually and on behalf of her latehusband, DR. BARINEM KIOBEL, BISHOP AUGUSTINE

NUMENE JOHN-MILLER, CHARLES BARIDORNWIWA, ISRAEL PYAKENE NWIDOR, KENDRICKS

DORLE NWIPKO, ANTHONY B. KOTE-WITAH,VICTOR B. WIFA, DUMLE J. KUNENU,

BENSON MAGNUS [KARI, LEGBARA TONY IDIGIMA,PIUS NWINEE, KPOBARI TUSIMA, individually and

on behalf of his late father, CLEMENT TUSIMA,Petitioners,

v.

ROYAL DUTCH PETROLEUM CO., SHELLTRANSPORT AND TRADING COMPANY PLC,

SHELL PETROLEUM DEVELOPMENTCOMPANY OF NIGERIA, LTD.,

Respondents.

On Petition For Writ Of CertiorariTo The United States Court Of Appeals

For The Second Circuit

BRIEF OF AMBASSADOR DAVID J. SCHEFFER,NORTHWESTERN UNIVERSITY SCHOOL OF LAW,

AS AMICUS CURIAE IN SUPPORT OF THEISSUANCE OF A WRIT OF CERTIORARI

DAVID J. SCHEFFERCENTER FOR INTERNATIONAL HUMAN RIGHTSNORTHWESTERN UNIVERSITY SCHOOL OF LAW

375 East Chicago AvenueChicago, Illinois 60611-3069

(312) 503-2224d-scheffer@law.northwestern.edu

Amicus Curiae

July 12, 2011

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTSPage

INTEREST OF THE AMICUS CURIAE ...............1

SUMMARY OF ARGUMENT ................................2

ARGUMENT ...........................................................3

I. THE NEGOTIATIONS FOR THE ROMESTATUTE OF THE INTERNATIONALCRIMINAL COURT FOCUSED ON COR-PORATE CRIMINAL LIABILITY ANDNOT CORPORATE ~IVIL LIABILITY .....3

A. The negotiators at Rome could notreach a consensus on criminal liabil-ity of juridical persons because, un-like that of civil liability, practicevaries around the world ......................4

B. There is a meaningful difference be-tween civil and criminal liability inthe history of the Rome Statute nego-tiations, in Alien Tort Statute prece-dent, and in international law ............7

II. NEGOTIATORS UNDERSTOOD COR-PORATE CIVIL LIABILITY AS A GEN-ERAL PRINCIPLE OF LAW THAT WASIRRELEVANT TO THE CRIMINAL JU-RISDICTION OF THE INTERNATIONALCRIMINAL COURT ...................................10

CONCLUSION .....................................................14

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TABLE OF AUTHORITIES

Page

CASES

Doe VIII v. Exxon Mobile Corp., No. 09-7125,2011 WL 2652384 (D.C. Cir. July 8, 2011) .........5, 11

Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d254 (2d Cir. 2007), aff’d sub nora. Am. lsuzuMotors, Inc. v. Ntsebeza, 553 U.S. 1028(2008) .........................................................................7

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d111 (2d Cir. 2010) ............................................ passim

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)...passim

STATUTES

Alien Tort Statute, 28 U.S.C. § 1350 .................passim

B~)RGERLICHES GESETZBUCH [BGB] [CIVIL CODE],Aug. 18, 1896, § 31 (Ger.) ..........................................5

CODE CIVIL [C. CIv.] art. 1382-84 (Fr.) .........................5

MINP(5 [MINPO] [CIv. C.] art. 709, 710, 715(Japan) .......................................................................5

TREATY

Rome Statute of the International CriminalCourt, adopted July 17, 1998, 2187 U.N.T.S.90 (1998) .......................................................... passim

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TABLE OF AUTHORITIES - Continued

Page

BOOKS AND BOOK CHAPTERS

Jos~ E. Alvarez, Alternatives to InternationalCriminal Justice, in THE OXFORD COMPANIONTO INTERNATIONAL CRIMINAL JUSTICE 25, 28(Antonio Cassese ed., 2009) ....................................11

Per Saland, International Criminal Law Prin-ciples, in THE INTERNATIONAL CRIMINALCOURT: THE MAKING OF THE ROME STATUTE

189 (Roy Lee ed., 1999) .............................................6

WILLIAM A. SCHABAS, AN INTRODUCTION TO THE

INTERNATIONAL CRIMINAL COURT (4th ed.

2011) ..................................................................10, 13-

OTHER AUTHORITIES

International Commission of Jurists, Reportof the Expert Legal Panel on CorporateComplicity in International Crimes, BUSI-NESS ~ HUMAN RESOURCE CENTRE (2008),available at http://www.business-humanrights.org/Updates/Archive/ICJPaneloncomplicity ...........5

David Scheffer and Caroline Kaeb, The FiveLevels of CSR Compliance: The Resiliency ofCorporate Liability under The Alien TortStatute and the Case for a CounterattackStrategy in Compliance Theory, 29 BERKELEYJ. INT’L LAW 334, 364-365,368 (2011) .......................4

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INTEREST OF THE AMICUS CURIAE1

David J. Scheffer is the Mayer Brown/Robert A.Helman Professor of Law and Director of the Centerfor International Human Rights at NorthwesternUniversity School of Law, where he teaches interna-tional criminal law, corporate social responsibility,and international human rights law. He served asU.S. Ambassador-at-Large for War Crimes Issues(1997-2001) and senior adviser and counsel to theU.S. Permanent Representative to the United Na-tions (1993-1997). He was deeply engaged in thepolicy formulation, negotiations, and drafting of theconstitutional documents governing the InternationalCriminal Court. Ambassador Scheffer led the U.S.delegation that negotiated the Rome Statute (RomeStatute of the International Criminal Court, adoptedJuly 17, 1998, 2187 U.N.T.S. 90 (1998)), and itssupplemental documents from 1997 to 2001. He wasdeputy head of the delegation from 1995 to 1997. Onbehalf of the U.S. Government, he negotiated thestatutes of and coordinated support for the Interna-tional Criminal Tribunals for the former Yugoslaviaand Rwanda, Special Court for Sierra Leone, and

1 Counsel of record for all parties received notice at least 10days prior to the due date of my intention to file this amicusbrief; all counsel have consented to the filing of this brief; andthe consent emails have been filed with the Clerk of the Courtwith this brief. No counsel for any party authored this brief inwhole or in part, and no person or entity, other than the amicuscuriae, made a monetary contribution to the preparation orsubmission of this brief.

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Extraordinary Chambers in the Courts of Cambodia.He has written extensively about the tribunals,including the International Criminal Court, and thenegotiations leading to their creation.

Ambassador Scheffer submits this brief out ofconcern that the United States Court of Appeals forthe Second Circuit errs in its analysis of the Rome

Statute’s exclusion of corporations, or juridical per-sons, from the personal jurisdiction of the Interna-

tional Criminal Court. He believes this brief isnecessary to clarify the meaning of the Rome Statutewith respect to the exclusion of corporate liabilityfrom its personal jurisdiction. The majority’s judg-ment reflects serious misunderstandings of the RomeStatute and thus the writ of certiorari should begranted to review the critical issue of corporateliability under the Alien Tort Statute.

SUMMARY OF ARGUMENT

The majority in the Second Circuit judgmentseriously errs in its understanding of why the RomeStatute excludes corporations from the InternationalCriminal Court’s personal jurisdiction. The negotia-tors’ decision in Rome to exclude corporations hadnothing to do with customary international law andeverything to do with a complex and diverse applica-tion of criminal (as opposed to civil) liability forcorporate conduct in domestic legal systems aroundthe globe. Given that diversity, it was neither possible

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to negotiate a new standard of criminal liability withuniversal application in the time frame permitted forconcluding the Rome Statute, nor plausible to foreseeimplementation of the complementarity principle ofthe treaty when confronted with such differences incriminal liability for juridical persons. Additionally,the negotiations in Rome steered clear of civil liabilityfor tort actions by multinational corporations becausecivil liability falls outside of the jurisdiction of theInternational Criminal Court. Thus, no conclusion canbe drawn either from the negotiations leading to theRome Statute or from the absence of corporate crimi-nal liability in the Rome Statute that would pre-clude national courts from holding corporations liablein civil damages for torts committed on national orforeign territory.

ARGUMENT

I. The Negotiations for the Rome Statute ofthe International Criminal Court Focusedon Corporate Criminal Liability and NotCorporate Civil Liability

The Circuit Court draws from its misinterpreta-tion of footnote 20 of Sosa v. Alvarez-Machain, 542U.S. 692, 732 n.20 (2004),2 the requirement that

2 "A related consideration is whether international lawextends the scope of liability for a violation of a given norm tothe perpetrator being sued, if the defendant is a private actorsuch as a corporation or individual."

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corporate liability be a "specific, universal, and oblig-atory" legal norm in order to hold Royal Dutch Petro-leum or any other corporation liable under the AlienTort Statute. Kiobel v. Royal Dutch Petroleum Co.,621 F.3d 111, 145 (2d Cir. 2010) (quoting Sosa, 542U.S. at 732). In so misconstruing footnote 20, theCircuit Court requires that the character of thetortfeasor must be firmly established as a matter ofinternational law. The Circuit Court then goes on tomisinterpret the drafting history of the Rome Statuteas revealing that the global community lacks a "con-sensus among States concerning corporate liabilityfor violations of customary international law." Id. at136-37. This reading of the negotiating history isseriously flawed. See David Scheffer and CarolineKaeb, The Five Levels of CSR Compliance: The Resili-ency of Corporate Liability under The Alien TortStatute and the Case for a Counterattack Strategy inCompliance Theory, 29 BERKELEY J. INT’L LAW 334,364-365, 368 (2011). The only lack of consensus atRome concerned corporate criminal liability, and thedifference between criminal and civil liability existsboth in Alien Tort Statute precedent and in interna-tional law.

no The negotiators at Rome could notreach a consensus on criminal liabilityof juridical persons because, unlikethat of civil liability, practice variesaround the world

There was significant discussion during theRome Diplomatic Conference in June and July 1998

about a proposal to include juridical persons in thepersonal jurisdiction of the International CriminalCourt. The debate centered on whether the Interna-tional Criminal Court should have the authority to

prosecute corporations for violations of internationalcriminal law and then impose criminal penalties onsuch juridical persons.

Whereas it is universally accepted that corpora-tions are subject to civil liability under domestic law,3

practice varies considerably in national systemsaround the globe on the criminal liability of corpora-

tions and the penalties associated therewith. Thatpresented a substantial problem for the negotiatorsbecause the unique complementarity structure of theRome Statute favors similarity on the most funda-mental elements of criminal liability in states parties’criminal law systems in order to lift much of theburden of prosecution from the International Crimi-nal Court and devolve it to national courts.

3See, e.g., CODE CIVIL [C. C~v.] art. 1382-84 (Fr.);B~:rRGERLICHES GESETZBUCH [BGB] [Crv-~L CODE], Aug. 18, 1896,§ 31 (Ger.); MINP0 [MINP0] [CIv. C.] art. 709, 710, 715 (Japan);see generally, International Commission of Jurists, Report of theExpert Legal Panel on Corporate Complicity in InternationalCrimes, BUSINESS ~ HUMAN RESOURCE CENTRE (2008), avail-able at http://www.business-humanrights.org/Updates/Archive/ICJPaneloncomplicity; see also Doe VIII v. Exxon Mobile Corp., No.09-7125, 2011 WL 2652384, at *32 (D.C. Cir. July 8, 2011)("Legal systems throughout the world recognize that corporatelegal responsibility is part and parcel of the privilege of corpo-rate personhood.").

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A convicted person before the InternationalCriminal Court must be punished with imprisonment(Rome Statute, art. 77(1)) but the Court may alsoorder the forfeiture of proceeds, property, or assetsderived directly or indirectly from the crime (Id., art.77(2)) for reparations to the victims. Id., art. 75.There was no consensus among delegations in Romeabout how to impose a criminal penalty comparableto imprisonment upon a corporate defendant and thatissue alone cratered talks about how to extend theCourt’s criminal jurisdiction to juridical persons.

As Per Saland, Chairman of the Working Groupon the General Principles of Criminal Law, explained,it was impossible to reach a consensus on criminalliability of juridical persons in the time allotted:

One [further difficult issue of substance]which followed us to the very end of the Con-ference was whether to include criminal re-sponsibility of juridical persons alongsidethat of individuals or natural persons. Thismatter deeply divided the delegations ....Time was running out, and the inclusion ofthe criminal responsibility of juridical per-sons would have had repercussions in thepart on penalties as well as on procedural is-sues, which had to be settled so as to enablework to be finished. Eventually, it was rec-ognized that the issue could not be settled byconsensus in Rome.

Per Saland, International Criminal Law Principles,

in THE INTERNATIONAL CRIMINAL COURT: THE 1V~kKING

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OF THE ROME STATUTE 189, 199 (Roy Lee ed., 1999).This disagreement before and during the Romenegotiations was centered upon whether corporationscan be held criminally liable for the commission of

atrocity crimes or other torts. Negotiators were notaddressing civil liability for anyone - natural orjuridical persons - in the creation of the InternationalCriminal Court.

B. There is a meaningful difference be-tween civil and criminal liability inthe history of the Rome Statute nego-tiations, in Alien Tort Statute prece-dent, and in international law

Contrary to the Circuit Court’s erroneous reading

of Sosa, the distinction between civil and criminalliability exists both in the history of the negotiations

at Rome and in the Rome Statute itself. WhereasJustice Breyer’s defense of the Alien Tort Statute inhis Sosa concurrence explains that it is acceptable torecognize civil liability where criminal liability hasbeen established internationally, 542 U.S. at 762, theCircuit Court mistakenly denies the antecedent byasserting that it is unacceptable to recognize civilliability where criminal liability has not been estab-lished internationally, as "international law does notmaintain [a] kind of hermetic seal between criminaland civil law." Kiobel, 621 F.3d at 146 (quotingKhulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254,

270 n.5 (2d Cir. 2007), aff’d sub nora. Am. IsuzuMotors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008) (citing

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Sosa, 542 U.S. at 762-63)). But Sosa’s languagemerely recognizes that civil liability is appropriateunder the Alien Tort Statute where the greater justi-fication required for criminal punishment has alreadybeen established. The Circuit Court errs in mistakinga sufficient condition for a necessary condition. Morefundamentally, Sosa’s identification of a greaterrequisite justification for criminal liability leads notto a similarity between the two types of liability, but asignificant difference.

While it may be true that some countries allowcertain civil penalties to arise within domestic crimi-nal actions, Sosa, 542 U.S. at 762, the negotiators atRome could not agree either on criminal liability forcorporations or the punishment for "convicting" acorporation, including the formula for imposing civilpenalties alongside mandatory criminal penalties. Asa result, we decided to retain our narrow focus oncriminal liability of individuals only - under a statutedesigned to create an international criminal court -and left civil damages for natural and juridical per-sons out of the discussion and the court’s jurisdiction.To read the failure to agree on and resulting omissionof criminal liability for juridical persons under theRome Statute as an "express rejection.., of a norm ofcorporate liability in the context of human rightsviolations," Kiobel, 621 F.3d at 139 (emphasis inoriginal), is incorrect. To then posit that one can infer,under Sosa, that lack of criminal liability in the RomeStatute should dictate a lack of civil liability forjuridical persons under the Alien Tort Statute is both

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a misunderstanding of the negotiations at Rome andan illogical reading of Sosa.

The U.S. delegation in Rome had no authority,and received no instructions, to negotiate any out-come that would deny corporate civil liability underthe Alien Tort Statute, particularly following years offederal jurisprudence embracing such corporateliability. If the Circuit Court majority’s point of viewhad been presented to the U.S. delegation, namelythat the result of our negotiations would be the denialof corporate civil liability under the Alien Tort Stat-ute, we not only would have denied any such purpose,we would have sought explicit instructions from theDepartment of Justice to confirm such an objective asthe official policy of the U.S. Government in the Romenegotiations.

Furthermore, if the issue simply had been one ofcivil remedies, and thus consistent with the AlienTort Statute, the outcome might have been verydifferent and the proposal for corporate civil liabilitymight well have survived in some fashion. But hold-ing corporations criminally responsible for atrocitycrimes under the Rome Statute indeed was a bridgetoo far in 1998 for purposes of creating a new interna-tional criminal court.

Thus, no conclusion should be drawn regard-ing the exclusion of corporations from the juris-diction of the Rome Statute other than that notimely political consensus could be reached to usethis particular treaty-based international court to

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prosecute corporations under international criminallaw for atrocity crimes.

II. Negotiators Understood Corporate CivilLiability as a General Principle of LawThat Was Irrelevant to the Criminal Ju-risdiction of the International CriminalCourt

The interpretation of the Rome Statute espousedby the majority, concluding that the treaty purposelymeant to express a principle of law precluding na-tional courts of law - either civil or criminal - fromproceeding against corporations for the commission ofatrocity crimes or other violations of international

law is in error. Kiobel, 621 F.3d at 139. Negotiationson the Rome Statute operated on the basis of consen-sus, which meant that political compromises dictatedthe outcome of many disputes among delegations.WILLIAM SCHABAS, AN INTRODUCTION TO THE INTERNA-

TIONAL CRIMINAL COURT 16-22 (4th ed. 2011). Seekingconsensus in such negotiations does not mean thatthe delegations were confirming a rule of customaryinternational law on every issue set forth in everyprovision of the treaty. Indeed, the opposite oftenoccurred, namely, in order to achieve consensus, theresult was not customary international law butinstead a narrow political compromise unique to thecreation of an international criminal court. As such,the D.C. Circuit recently concluded that "[t]he RomeStatute ... is properly viewed in the nature of a

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treaty and not as customary international law."Exxon, 2011 WL 2652384, at "18.

The issue before the negotiators of the RomeStatute was whether corporations should be heldcriminally liable for the same atrocity crimes - geno-cide, crimes against humanity, and war crimes - thatindividuals can be prosecuted for before the Interna-tional Criminal Court. The fact that negotiatorsultimately rejected corporate liability under the RomeStatute had nothing to do with rules of customaryinternational law and everything to do with whethernational legal systems already held corporationscriminally liable or would be likely to under theprinciple of complementarity of the Rome Statute.4

The expectation of negotiators - as confirmed inArticles 17, 18, and 19 of the Rome Statute pertainingto admissibility - was that national legal systemseither 1) would ensure relative conformity in theircriminal codes to the subject matter and personaljurisdiction of the International Criminal Court and

4 "[I]t is clear that [when treaties] establish the possibilityof establishing an international court ... such compacts [are]drafted under the assumption that the international crimes theycover will be prosecuted by national courts .... Accordingly,parties to such treaties are obligated to make certain inter-national acts domestic crimes pursuant to domestic law and, atleast to the extent the relevant crimes are committed by theirnationals or in the territory, are bound to prosecute them." Jos~E. Alvarez, Alternatives to International Criminal Justice, inTHE OXFORD COMPANION TO INTERNATIONAL CRIMINAL JUSTICE 25,28 (Antonio Cassese ed., 2009).

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then exercise the political will to investigate andprosecute atrocity crimes as defined in the RomeStatute against accused perpetrators falling withinthe jurisdiction of national courts, or 2) would facethe reality that the International Criminal Court mayproceed with its own investigations and prosecutions.The ideal world, one day, would be an empty docket atthe International Criminal Court because nationalcriminal courts are exercising the full responsibilityto bring such individuals to justice.

This formulation of "complementarity" wasexpressed in the preamble of the Rome Statute:"Emphasizing that the International Criminal Courtestablished under this Statute shall be complemen-tary to national criminal jurisdictions." Rome Statute,preamble. National courts would be given preferenceto exercise jurisdiction provided 1) their criminalcodes cover the atrocity crimes found in the RomeStatute, and 2) there is a demonstrated will to inves-tigate and prosecute such crimes by individualsfalling within the domestic jurisdiction of that nation.

To have extended the complementarity conceptto juridical persons would have required a muchhigher degree of confidence among delegations thatnational legal systems globally already exercised orwould soon have the capacity to exercise criminaljurisdiction over corporations for the commission ofatrocity crimes. While such criminal jurisdictionmay exist in some national systems, it was not aglobal phenomenon in 1998. But our focus was neveron the issue of civil liability for egregious torts

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committed by corporations as we were strictly con-fined to criminal liability and punishment in ourwork.

Professor William Schabas explains,

Proposals that the Court also exercise juris-diction over corporate bodies in addition toindividuals were seriously considered at theRome Conference. While all national legalsystems provide for individual criminal re-sponsibility, their approaches to corporatecriminal liability vary considerably. With aCourt predicated on the principle of comple-mentarity, .it would have been unfair to es-tablish a form of jurisdiction that would ineffect be inapplicable to those States that donot punish corporate bodies under criminallaw. During negotiations, attempts at en-compassing some form of corporate liabilitymade considerable progress. But time wassimply too short for the delegates to reach aconsensus and ultimately the concept had tobe abandoned. (citations omitted)

WILLIAM SCHABAS, AN INTRODUCTION TO THE INTERNA-

TIONAL CRIMINAL COURT 224-25 (4th ed. 2011). But themajority overlooked all of these realities to assume,erroneously, that the negotiators of the Rome Statuterejected corporate criminal liability because of theirfailure to discover a rule of customary internationallaw mandating it as such. The omission of juridicalpersons from the Rome Statute does not mean thatcorporations enjoy virtual immunity under interna-tional law from either civil or criminal liability; it

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simply means that the International Criminal Courtwas established without corporations being subject toits heavily negotiated jurisdiction.

CONCLUSION

The majority in the Second Circuit judgment errsin fundamentally misinterpreting the Rome Statuteof the International Criminal Court and the negotia-tions leading to its conclusion in the summer of 1998.The personal jurisdiction of the Rome Statute islimited to natural persons because no consensus wasreached among delegations as to the criminal liabil-ity of juridical persons in national legal systemsthroughout the world. Such a finding would becritical for the necessary operation of the comple-mentarity principle under the Rome Statute. No one,however, was disputing civil liability for juridicalpersons as a general principle of law in national legalsystems globally, which is a significantly differentpoint under a correct reading of Sosa. Sosa does notreasonably support the proposition that disagree-ments about international criminal procedure wouldnegate such a well-accepted general principle of civilliability.

Since the International Criminal Court has nocivil liability within its jurisdiction - even over natu-ral persons - the issue of corporate civil liability wasirrelevant. Thus the omission of corporate liabilityunder the Rome Statute simply reflected the diverse

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views of delegations about criminal liability forcorporations under their national legal systems. Itwas not a judgment about the status of corporate civilliability as a matter of customary international law oras a general principle of law enforceable againstcorporations in national courts for the commission oftorts, including those that would meet the Sosa testfor subject matter jurisdiction under the Alien TortStatute.

For these reasons, this Court should grant thePetition for Writ of Certiorari.

Dated: July 12, 2011

Respectfully submitted,

DAVID J. SCHEFFER

CENTER FOR INTERNATIONAL HUMAN RIGHTS

NORTHWESTERN UNIVERSITY SCHOOL OF LAW

375 East Chicago AvenueChicago, Illinois 60611-3069(312) 503-2224d-scheffer@law.northwestern, edu

Amicus Curiae

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