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Mother Jones: Did ExxonMobil Pay Torturers? Aceh Human Rights Case
Head to the
 Oct 06, 2012 01:16 PDT 

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Mother Jones: Did ExxonMobil Pay Torturers? Aceh Human Rights Case Head
to the U.S. Supreme Court

October 6, 2012
Mother Jones

The oil giant has long said it has no responsibility for atrocities
committed by the government soldiers it hired to protect its plant in
Indonesia. Now the issue could be headed to the Supreme Court.

By Ian T. Shearn and Laird Townsend

Even in the dry legalese of a court complaint, the account of John Doe
III is not for the faint of heart:

In the summer of 2000, soldiers detained him while he was visiting a
refugee camp. They shot him "in three places on his leg," then
"tortured him for several hours." The soldiers "broke his kneecap,
smashed his skull, and burned him with cigarettes." After he was taken
to a hospital to treat his wounds, he was returned to this captors,
who held him for roughly a month and "tortured him regularly."

This was the Aceh Province, Sumatra, Indonesia, at the height of a
bloody civil war. Such accounts were commonplace. But in this case,
according to the complaint, the man's captors were not just any
soldiers. They were "ExxonMobil security personnel." And now, more
than a decade later, ExxonMobil has been ordered to stand trial in a
human rights lawsuit.

In June 2001, John Doe III and 10 other civilian neighbors of
ExxonMobil's Arun natural gas facility filed a lawsuit against
ExxonMobil in federal district court in Washington, DC. In John Doe v.
ExxonMobil, (PDF [1]) the villagers charge the company with complicity
in torture, arbitrary detention, and extrajudicial killings allegedly
committed by Indonesian soldiers it hired to provide security.

ExxonMobil has steadfastly maintained its innocence in the case.

"We have fought the baseless claims for many years," said ExxonMobil
spokesman David Eglinton. "The plaintiffs' claims are without merit.
While conducting its business in Indonesia, ExxonMobil has worked for
generations to improve the quality of life in Aceh through employment
of local workers, provision of health services and extensive community
investment. The company strongly condemns human rights violations in
any form."

But in a 2008 ruling (PDF [2]), federal district court judge Louis
Oberdorfer ordered Exxon to face trial. "A reasonable finder of fact,"
the judge wrote, citing internal correspondence from Exxon and its
Indonesian subsidiary, EMOI, "could conclude that the paid security
forces committed the alleged torts and that EMOI and Exxon Mobil are
liable." Exxon appealed, but a federal circuit court panel upheld that
part of the ruling in July 2011.

The fate of the ExxonMobil case now rests in the hands of the US
Supreme Court. On October 1, the court heard arguments in a similar,
better-known case, Kiobel v. Royal Dutch Petroleum [3] (Shell)—and
it's that case that may determine whether the Acehnese villagers ever
get their day in federal court.

Like John Doe v. ExxonMobil, the Kiobel case relies on an 18th-century
statute called the Alien Tort Claims Act. The Nigerian plaintiffs say
it gives citizens outside the United States the right to sue any
corporation with a US presence for aiding and abetting human rights
abuses—such as the Nigerian government's alleged extrajudicial
killings of Ogoni protester Ken Saro-Wiwa and Barinem Kiobel.

Like ExxonMobil, Shell says the Alien Tort Statute does not apply to
cases like this: that only individuals—and not corporations—can be
held liable for human rights violations on foreign soil.

Expected as early as December, the court's ruling will almost
certainly set a major precedent—either allowing people around the
world to continue suing companies in US federal court for abuses like
slave labor, extrajudicial killings, and torture, or shutting them out
for good. More than a dozen Alien Tort cases involving hundreds of
plaintiffs are riding on the decision. They target corporations from
Chevron to Chiquita.

Kiobel's significance has not escaped the attention of industry
associations like the Product Liability Advisory Council, a nonprofit
group representing more than 100 manufacturers in the US and abroad,
which has tracked cases brought under the Alien Tort Statute. "The
number of ATS claims naming corporate defendants has risen steadily in
recent years," the Council told the Supreme Court in a brief on
Shell's behalf. "ATS cases impose substantial litigation costs."
What's more, the brief says, "[b]eing accused of genocide in federal
court causes significant reputational harm, regardless of the actual
merits of the allegations."

Ilya Shapiro of the Cato Institute, a conservative think tank, who
authored an amicus brief in the case supporting Shell, says it often
costs a corporation less to settle than to defend itself, creating an
incentive for false accusations: "If the Court finds that federal
courts do have jurisdiction over these types of claims," he said in an
email, "it will be an invitation to sue for anything anywhere. We
would internationalize the extortion-by-trial-lawyer problems we have
in America."

But proponents of the Alien Tort statute say that if a corporation
doing business in this country does indeed aid and abet abuses abroad,
it belongs in US federal court. They point out that courts in the host
countries often cannot adequately handle such cases, leaving
plaintiffs no other forum.

Terry Collingsworth [4], a human rights lawyer who originally filed
the Aceh case and remains co-counsel on it, says he objects when
companies claim they shouldn't be sued under the Alien Tort law.
Because they prohibit the very same transgressions in their own
voluntary codes, he says, they should also be prepared to stand in a
court of law "and be held responsible for murder and torture."

Rather than opposing the Alien Tort Statute, says Peter Weiss, a civil
rights lawyer who pioneered the modern use of the statute in the
1970s, corporations should welcome it. "[The law] is being used to
make their competitors in foreign countries hue to a universal
standard of human rights," he says. "ATS has served as an important
instrument in enforcing human rights."

On the morning of March 21, 2001, a doorbell rang on the ninth floor
of a run-down building in Washington, DC, at the International Labor
Rights Forum [5], an advocacy group for workers affected by economic
globalism. At the dingy pressed-wood door a young foreigner appeared
speaking no English, only the Indonesian language of Bahasa.

His name was Mohammed Saleh, and he was a student activist
representing a small human rights group in Aceh, Indonesia. The
Indonesian government had recently imprisoned the group's leader,
Muhammad Nazar, for advocating a referendum on Aceh independence. So
Nazar arranged to send Saleh to Washington, DC, to tell Americans
about Aceh's crisis.

One of the Forum's staffers, Bama Athreya, who happened to have
learned Bahasa while working in Jakarta, welcomed the visitor. She had
met him earlier and he'd told her the stories relayed by villagers
living near ExxonMobil—people like John Doe III. The two of them
seized on an idea: Burmese villagers had recently used US courts to
sue an oil company, UNOCAL, over complicity in slave labor. The case
was being colitigated by Athreya's boss at the International Labor
Rights Forum, Terry Collingsworth. Could something like that work in

Up on the 9th floor, Athreya introduced Saleh to Collingsworth. The
son of a shop steward at a copper mill in Cleveland and a former
machine operator at the mill, Collingsworth grew up wanting to be a
labor lawyer. In law school he developed an interest in human-rights
issues, and at 32, cofounded the International Labor Rights Forum. The
UNOCAL case was one of organization's first major cases.

The Forum litigated for fair and humane working conditions at
multinationals worldwide, aiming to ensure that workers "weren't
getting led to slaughter." That kind of work, as Collingsworth saw it,
also protected US workers because the more corporations could act with
impunity overseas, the more incentive they'd have to shift jobs out of
the United States. "The global economy," he says, "is extremely
relevant to an American worker and citizen. Our quality of life is
going to be dictated by what corporations can get away with in the
rest of the world."

When Saleh arrived, Collingsworth took him to a conference room. With
Athreya translating, he listened to the young man's account of the
atrocities in Aceh, and the alleged role of ExxonMobil's security
force. Within a week, he was on a plane to Indonesia.

Located on the northern tip of the island of Sumatra, one of the
larger islands in the archipelago of Indonesia, Aceh [6] is a largely
undeveloped tropical province known for its rice fields, palm
plantations, and the devastating 2004 tsunami. But Aceh is also a
center of deep Islamic faith and fierce independence. For more than
400 years the area was an Islamic sultanate with deep cultural and
trading ties to India and the Middle East. The Dutch tried to colonize
it in the 1870s; Japanese occupiers came in during World War II. But
the recent tensions result from a historical rivalry with the
neighboring island of Java. When Indonesia became a nation in 1949,
Java rose in status, with its largest city, Jakarta, as the capital.

A rice farmer hoes her crop in front of the ExxonMobil facility in
Lhoksukon, Aceh. Emily JohnsonA rice farmer hoes her crop in front of
the ExxonMobil facility in Lhoksukon, Aceh. Emily JohnsonIndonesia's
nationalist leaders dangled promises of autonomy to enlist Aceh's
cooperation, but those promises went nowhere. The Acehnese chafed
under the Jakarta-based regime—especially under Suharto, Indonesia's
second president, who took office in 1968.

Shortly after Suharto gained control, Mobil Oil began drilling for
natural gas in Sumatra and in 1971 it discovered an enormous natural
gas field in Aceh. Mobil contracted with Suharto's government to
extract gas from the field, forming a joint venture with the state
petroleum company to process the gas. Under terms of the deal, the
Indonesian government owned 55 percent of the facility, known as Arun,
ExxonMobil 35 percent, and a Japanese company 10 percent.

By the late 1970s, the Arun project was producing a dizzying volume of
liquid natural gas. The arrangement began to generate hundreds of
millions of dollars in profits for Mobil and its Indonesian
state-owned partner, Pertamina. Little of that money was invested back
into the region. By the mid-'70s, a movement for Acehnese independence
known as GAM—Geraken Aceh Merdeka, or Free Aceh Movement—emerged,
and its leaders demanded that more of Mobil's revenue go to
poverty-stricken Aceh. The demand did not go over well in Jakarta.

Crushed and forced into hiding, GAM turned to Libya for training in
the late 1980s. The Indonesian military, later known as TNI, responded
with a vicious crackdown beginning in 1989. Over the next decade the
military presence made it difficult to monitor and record abuses,
although the US State Department was reporting an increasingly
alarming tally in the run-up to Suharto's resignation in 1998. During
a brief respite following the resignation, researchers for human
rights NGOs and the Indonesian government documented a decade of
atrocities committed against GAM and its perceived supporters.

But from 1999 to 2004 the repression returned, involving far more
troops. While GAM itself has also been accused of intimidation,
extortion, and human rights abuses, it is widely reported that the
Indonesian military committed the majority of violence against
civilians, mostly poor farmers like John Doe III.

In Indonesia, as in Colombia and Nigeria, national soldiers can double
as private security forces for a price. "From the inception of the
Arun Project," says the John Doe complaint, referring to an agreement
it says Mobil signed and included in the merger, "ExxonMobil has
employed or otherwise retained members of the Indonesian military to
provide security services for its facilities and operations in Aceh

This mass grave was uncovered in central Aceh, the province where a
bloody civil war raged for years. A decade-old case alleges Indonesian
government soldiers hired by Exxon Mobil tortured, killed, and
assaulted villagers in Aceh. Jacqueline Koch, epa/CorbisThis mass
grave was uncovered in central Aceh, the province where a bloody civil
war raged for years. Jacqueline Koch, epa/CorbisThe complaint cites a
2001 Bloomberg News story reporting that "Exxon Mobil, by all
accounts, became far too cozy with the Indonesian military during the
Suharto years. It paid the salaries of the troops that guarded its
fields and the nearby P.T. Arun liquefaction plant; it shared
equipment the army apparently could not afford."

Before Mobil merged with Exxon in 1999, the facility produced 25
percent of Mobil's entire worldwide oil and gas revenues. One
ExxonMobil executive described Arun to the Wall Street Journal as "the
jewel in the company's crown."

But by 2000, the jewel was under threat. GAM and other groups began
abducting and attacking ExxonMobil employees. According to the
lawsuit, ExxonMobil paid Indonesia's soldiers $500,000 a month to
protect the plant that year. But the violence continued, and
ExxonMobil grew increasingly concerned.

Civilians remained in the crossfire throughout Aceh, and the area
surrounding ExxonMobil's Arun facility was no exception. In 1998, a
coalition of 17 human rights organizations accused Mobil of providing
material support to the army, including bulldozers and other equipment
used to dig mass graves. A 1998 BusinessWeek article quoted
eyewitnesses to summary executions and the use of Mobil equipment to
cover them up; Mobil denied any knowledge of this, saying it had
loaned excavators to the army but only for peaceful purposes. Three
years later, an August 2001 article in Time's Asia edition reported
that in Aceh "people literally line up to tell stories of abused and
murders committed by the troops they call Exxon's army."

Then came the 2004 tsunami, which took more than 100,000 lives and
prompted the warring parties to agree on Aceh's autonomy and sign the
1995 Helsinki peace accord. The pact set up a human rights court, but
Indonesian legislators explicitly forbade it from considering human
rights allegations before 2006. So at the time, only Collingsworth's
plaintiffs were left to redress the atrocities of Aceh's civil war.

Collingsworth's plane landed in the city of Banda Aceh in late March
of 2001, just as ExxonMobil was temporarily closing the Arun facility
following a rise in attacks on the company's employees and property.
The Indonesian military was preparing to send 3,000 additional troops
to the area, and a crackdown on civilians was going on unabated.
Collingsworth had arrived in a war zone.

He immediately went to the prison to see Nazar, an Amnesty
International prisoner of conscience. He found him on a bench in the
prison courtyard. The local guards, who seemed sympathize with his
cause, stood respectfully by.

Through a translator, Nazar grilled the visitor: Would the chances of
succeeding with the lawsuit justify the high risks? How could
Collingsworth avoid violent retaliation against Nazar's staff and the
plaintiffs? Collingsworth answered questions for several hours, and
Nazar finally gestured approval to the translator, saying
Collingsworth should be taken to meet the alleged victims.

Outside the Exxon facility in Lhoksukon, Aceh. Emily JohnsonOutside
the Exxon facility in Lhoksukon, Aceh. Emily JohnsonOn the ride
southbound to ExxonMobil's sprawling facility in Lhokseumawe,
Collingsworth and his fellow passengers passed a series of armed
military checkpoints, he says. The two Acehnese on the trip—the
translator and a Nazar associate—told the soldiers they were showing
their visitors around and taking them to the beach. They avoided the
area immediately around the Arun facility, where Indonesian troops
guarded the main gas pipeline and sprawling gas complex.

Instead, the group convened a considerable distance away in a quiet
gazebo in a public park. They wanted the "safety of sunshine,"
Collingsworth says—an open-air meeting to disarm suspicion and
reduce chances of a sneak attack, especially with witnesses present.
In the course of eight hours, Collingsworth heard from about 50
people. Determining who could remain safe from reprisals and who had
suffered explicitly from ExxonMobil's unit specifically, he came up
with a list of 11 plaintiffs.

Two months later, on June 19, 2001, Collingsworth filed the suit in
district court in Washington, DC.

In John Doe v. ExxonMobil, the alleged incidents date from 1999 to
2001, one of the most intense periods of violence in the Aceh civil

"A member of ExxonMobil's security personnel" forced his way into the
home of a pregnant female, wielded a rifle, "threatened to kill her
and her unborn child with his gun, then beat and sexually assaulted

"ExxonMobil security personnel" accosted a man traveling between
villages, beat him, handcuffed him, accused him of membership in GAM,
ignored his denial, and "took him to Post A-13 on ExxonMobil's
property," where they threw him to the ground, wielded a knife, and
"carved the letters 'GAM' into his back…regularly torturing him" for
several more weeks.

"ExxonMobil security personnel" stopped a villager riding his
motorcycle, beat him severely on his head and body, tied his hands,
blindfolded him, took him to a military camp, kept the blindfold on
him for three months, and tortured him regularly, "using electricity
all over his body, including his genitals."

In an email, ExxonMobil's Eglinton declined to answer additional
questions about ExxonMobil's view of ATS suits in general, its method
of dealing with security challenges abroad. He also declined to
comment on the specifics of the Aceh lawsuit.

But Martin Weinstein, partner at the powerful DC law firm Wilkie,
Farr, & Gallagher LLP and Exxon's chief legal spokesperson for much of
the case, told an interviewer with Public Radio International's The
World in 2002 that "we have no knowledge of any of these abuses taking
place around the facilities. We condemn them if they did occur, but
don't know whether the occurred or not."

The judge wrote that the evidence did indicate that company at the
very least should have known about the Indonesian soldiers'

While documents in the case are sealed, Judge Oberdorfer's 2008 court
ruling quotes the material—including ExxonMobil's internal

Oberdorfer cited no evidence that ExxonMobil knew about any specific
incident alleged in the suit, much less condoned or authorized them.
But he wrote that the evidence did indicate that company at the very
least should have known about the Indonesian soldiers' tendencies.

Oberdorfer points out that one ExxonMobil email noted "the poor
reputation of the Indonesian military, especially in the area of
respecting human rights." Another internal company report cited a news
report that "armed security forces of EMOI"— the company's own paid
agents—"…conducted security sweeping operations at five villages
near the explosive storage of ExxonMobil" and "that thousands of
people were threatened due to sweeping operations and gunfire."

"Here," the judge stated, "a finder of fact could reasonably conclude
that EMOI was negligent in hiring—or at least in retaining—its
paid security forces. There is sufficient evidence that EMOI should
have known that the military security posed undue risks to local
Indonesians near its Arun gas venture."

Also in the PRI interview, Weinstein said that "the government has
responsibility for security," underscoring ExxonMobil's argument that
Indonesia required the company to hire the troops.

But Oberdorfer was not convinced. According to the contract he cited
between ExxonMobil and Indonesia's state-owned oil company, Pertamina,
Pertamina agreed to "assist and expedite (EMOI)'s execution of" gas
extraction and production "by providing…security protection…as may
be requested by (EMOI)…"

Oberdorfer pointed to evidence that ExxonMobil initiated that request.

"In December 1999," Oberdorfer wrote, "Robert Haines—Exxon Mobil's
Manager of International Government Affairs—sent a memorandum to
Mobil's CEO, reporting on his meeting in Indonesia with subordinates
to discuss the security concerns in Aceh." Haines said ExxonMobil "has
asked for the assistance of the military to protect its facilities."

Oberdorfer said that even if the contract had required that ExxonMobil
hire the troops, it doesn't absolve them of responsibility for their
alleged actions. "Is the owner of a swimming pool insulated from
liability per se for a lifeguard's negligence," the judge asked,
"simply because the lifeguard is required to be there? Surely not."

Finally, Weinstein pointed out that "there is no allegation that
ExxonMobil…directed in any way, shape, or form, any of these
abuses," but this did not address the lawsuit's principal contention
about liability: that the company exercised some direction over the
troops—for which the judge agreed Exxon could be liable. "A fact
finder could reasonably conclude that EMOI had sufficient control over
and, effectively 'managed' the security forces," the 2008 ruling
notes, "to create a master-servant relationship."

The judge found that this relationship is suggested throughout the
materials. He quotes one internal email stating "it(')s not going to
be easy managing 900 troops in our operational area." Another official
deposed in the case said security managers at the subsidiary often
went "up the chain and request(ed) additional corporate kinds of
support" from ExxonMobil officials in the United States.

In short, the judge found sufficient evidence of the company's control
to permit a jury to consider its liability.

A spirited exchange between opposing lawyers in 2008 succinctly boiled
down the case:

"ExxonMobil is innocent," Theodore Wells, Exxon's outside counsel,
offered in summary. "What took place…relates to the activities of
the Indonesian government and the Indonesian military…and we have no
dog in that race."

Michael Hausfield, part of the plaintiff's legal team, sprang from his
chair to offer his rebuttal: "Exxon fed the dog, they clothed the dog,
they housed the dog, and they paid the dog. Let's bring the dog on."

The judge consented, ordering the case to trial. Oberdorfer didn't
give the plaintiffs everything they wanted. He dismissed the Alien
Tort charges, allowing only related tort claims in state court. It was
the appeals court that restored the Alien Tort claims in 2011. But he
agreed that ExxonMobil should face the villagers in a courtroom:
"Plaintiffs have provided sufficient evidence, at this stage, for
their allegations of serious abuse."

ExxonMobil is the largest oil company in the world, and consistently
one of the most profitable, netting $41 billion in 2011. The lion's
share of those earnings come from operations outside US boundaries, in
more than 200 countries—including places like Aceh, Equatorial
Guinea, Chad, and Nigeria, "where risk is endemic," says Steve Coll,
president of the New America Foundation and the author of Private
Empire: ExxonMobil and American Power [7]. "You might think rationally
there is no reason for them to be there, given the risks and
reputational costs and just the general misery." But because the
company's investors want to see sizable reserves for the future,
ExxonMobil "can't afford to give up any chunk of 200,000 or 300,000
barrels a day that they can reasonably produce," Coll says. "They
can't afford to shrink."

Exxon "essentially bought the war when they bought Mobil," Coll adds.
"ExxonMobil prior to 2000 [had few] properties in conflict zones. They
were a relatively risk-aversive company. It took a while…to come to
terms with the complexity of their position." In 2002, after initially
resisting, the company signed on to the Voluntary Principles on
Security and Human Rights, which were initiated by NGOs, the US and
British governments, and companies in the energy and extractive
industries. The principles standardized security practices to
encourage "respect for human rights and fundamental freedoms."

While ExxonMobil doesn't disclose its legal budget, the company
maintains a sizable counsel staff and retains some of the most
powerful law firms in the country. In one of the most famous lawsuits
against it, about the 1989 Valdez spill, the company was ordered to
pay $5 billion in punitive damages—but in five appeals over a dozen
years, going all the way to the Supreme Court, it winnowed that amount
to $500 million.

Few lawsuits are significant enough to make a dent in the company's
financial projections. In SEC filings from 2001 to 2011, a voluntary
list of potential liabilities to inform investors, Exxon listed only
28 lawsuits against it. The Aceh suit is not included.

"The Corporation does not believe the ultimate outcome of any
currently pending lawsuit against ExxonMobil," the company's 2011
annual report states, "will have a material adverse effect upon the
Corporation's operations, financial condition, or financial statements
taken as a whole." "Exxon has a very aggressive strategy, and they
have unlimited legal resources to execute it," Fryszman says. "It's
basically to grind us into the dust."

Collingsworth's case has attracted the support of like-minded NGO
lawyers and pro bono firms, most notably the acclaimed human rights
litigator Agnizeszka Fryszman of the DC firm Millstein & Cohen, now
co-counsel. But at least in terms of resources, the odds are still in
ExxonMobil's favor: two NGO lawyers working on contingency for a dozen
poor villagers and their families against a corporate in-house counsel
office supplemented by three outside law firms.

"Exxon has a very aggressive strategy, and they have unlimited legal
resources to execute it," Fryszman says. "It's basically to grind us
into the dust."

But the company maintains its innocence. "I have been with this case
since day one, [and] I find these allegations…outrageous," Paul W.
Wright, ExxonMobil's in-house counsel, told Judge Oberdorfer in a 2008
hearing. "I think it's fair to expect that this company will
vigorously defend itself through every stage of this case."

Back in Aceh, the identity of the plaintiffs remains closely guarded.
The lawyers have fought to ensure that any ExxonMobil
cross-examination would protect their clients' anonymity, and have
restricted media access to their clients for fear of reprisal.

But the delays have already taken their toll. A few years into the
court proceedings, Collingsworth reported that unknown assailants had
killed two of his plaintiffs. The earliest a trial could take place is
2013—a full dozen years after the alleged events.

"They're not in forgive and forget mode," said Collingsworth,
referring to the remaining plaintiffs, including relatives of the
deceased. "Those who were tortured or had somebody killed suffered
horrendous injury, and they're in this for the long haul. This is
their life now."

In the jargon of the courts, ExxonMobil's case is "stayed" until the
US Supreme Court rules on Kiobel v. Shell—in legal limbo. During
Monday's hearing, lawyers addressed a basic question about one of the
nation's oldest laws.

When Congress enacted the Alien Tort Claims Act of 1789, occasionally
violent US-based privateers were plying the seas in pursuit of
black-market riches. The Alien Tort act gave foreign-born nationals
the chance to file claims against the privateers in US federal court,
which was deemed fairer and less parochial than regional or local
courts. Dusted off by civil rights activists in the 1970s, the Alien
Tort statute recently has come to apply to any corporations with a
presence in the United States.

In a series of precedents over recent decades—including in the
ExxonMobil case—lower courts have firmly established this principle.
According to the Product Liability Advisory Council, plaintiffs have
filed almost 250 Alien Tort cases over this period—nearly half of
them against at least one corporate defendant. Courts dismissed many
of the cases, but three have gone to trial, one resulting in a verdict
for the plaintiffs, and a few others have settled. And now the trickle
of cases shows signs of turning into a flood: Of the 120 cases against
corporations, fully half were filed since 2008.

The Kiobel decision could change all that: While in previous cases the
right of plaintiffs to sue in US federal courts for abuses committed
overseas had gone unquestioned, the 2nd US Circuit Court of Appeals in
Kiobel ruled that Shell was immune: that liability for human rights
violations applies only to natural persons. This is the issue that
dominated the first round of oral Kiobel arguments before the Supreme
Court in February.

Monday's arguments presented a new wrinkle. While exploring the United
States' role as "the court of last resort" for human rights abuses
abroad, the court addressed whether the Alien Tort Statute applies to
a foreign entity like Dutch/UK-based Shell, which also has operations
in the United States. And while it's risky business to predict the
court's intentions, the line of questioning seemed to hint at a
compromise, according to knowledgeable observers from both sides:
Aliens must first try to sue either in the country where the abuses
took place, or in the country in which the corporation is based—and
then demonstrate it was impossible to do either. Such ruling could
dismiss Kiobel while leaving the ExxonMobil case intact—that is, if
the court doesn't rule for corporate immunity across the board.

In their private deliberations on corporate immunity, the justices
will be facing a judicial dilemma of their own making. They ruled in
the 2010 Citizens United case that corporations have the rights of
natural persons—in particular, the right of free speech in the form
of campaign contributions. The court should be careful that in
defining a person, it does not create a monster."

John Farmer Jr., dean of Rutgers Law School, whose Constitutional
Litigation Clinic filed a brief in Kiobel, warned that if the court
concludes that corporations "are not persons for purposes of the Alien
Tort Claims act" but are persons for purposes of influencing
elections, "the combined effect will be that corporations can advocate
with impunity at home, and act with immunity abroad. The court should
be careful that in defining a person, it does not create a monster."

As the Supreme Court grapples with its decision, ExxonMobil is in the
process of pulling out of Aceh, abandoning the dwindling reserves of
the Arun gas facility. But losing or settling the case wouldn't
noticeably move ExxonMobil's considerable bottom line. Of more concern
might be the negative fallout that comes from being publicly
associated with atrocities.

"You would think that ExxonMobil doesn't care," says Marco Simons,
legal director for the advocacy group EarthRights International, who
filed a brief for the plaintiffs in the ExxonMobil case. "But this
matters to even big oil companies. They face a tremendous
vulnerability to their reputation, not unjustifiably, but because the
evidence shows complicity in series of abuses. Directors do not want
to be associated at cocktail parties with mass graves in Indonesia."

The report was produced in association with the media NGO Project Word
(www.projectword.org [8]), a project of the Tides Center, with
reporting assistance from Hannah Rappleye and Lisa Riordan Seville.
For more on this story, visit www.projectword.org/aceh [9]. This
reporting was made possible by grants from the Fund for Investigative
Journalism and the Mailman Foundation.

                         ✒ ✑ ✒ ✑ ✒ ✑ ✒ ✑ ✒ ✑ ✒

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