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Renewing speculation about the future of corporate liability for
human rights abuses, last week the Supreme Court held unanimously
in Mohamad
v. Palestinian Authority that the Torture Victims
Protection Act ("TVPA") cannot be used to sue
organizations, and by extension, corporations. The Court, however,
did not limit the type of individuals subject to suit under the
Act, thus a corporation's officers or employees may still find
themselves open to suit under the TVPA.
The Mohamad petitioners were representatives of the
estate of Azzam Rahim, an American citizen who was tortured and
killed overseas while in the custody of Palestinian Authority
intelligence officers. Asserting claims of torture and
extrajudicial killing, petitioners used the TVPA to sue both the
Palestinian Authority and the Palestine Liberation Organization,
arguing that Congress's use of the word "individual"
in the TVPA showed that it had contemplated that the Act could be
used to sue both "nonsovereign organizations" and natural
persons.
Rejecting this argument, the Court explained that Congress's
use of "individual" in the Act in fact demonstrated its
intention to limit the TVPA's application to permit suits only
against "natural persons" (i.e., human
beings).
Under the TVPA:
An individual who, under actual or apparent authority, or color
of law, of any foreign nation –
(1) Subjects an individual to torture shall, in a civil action,
be liable for damages to that individual; or
(2) Subjects an individual to extrajudicial killing shall, in a
civil action, be liable for damages to the individual's legal
representative, or to any person who may be a claimant in an action
for wrongful death.
Taking a highly textual approach to its analysis of this
provision, the Court emphasized the importance of the ordinary
meaning of "individual," as well as the word's
statutory context:
The [TVPA's] liability provision uses the word
'individual' five times in the same sentence: once to refer
to the perpetrator (i.e., the defendant) and four times to
refer to the victim. ... Only a natural person can be a victim of
torture or extrajudicial killing. 'Since there is a presumption
that a given term is used to mean the same thing throughout a
statute,' ... it is difficult indeed to conclude that Congress
employed the term 'individual' four times in one sentence
to refer to a natural person and once to refer to a natural person
and any nonsovereign organization.
Although the "natural person" interpretation of
"individual" here puts an end to TVPA suits against
corporations or legal persons, it certainly still permits TVPA
suits against individuals such as corporate officers, directors, or
employees.
Specifically, the Court noted that "regardless of whether
corporate entities can be held liable in a federal common-law
action brought under [the ATS]" (as questioned in
Kiobel), the ATS "offers no comparative value"
for interpreting the TVPA's use of "individual"
because nowhere in the ATS is "individual" used to
describe potential defendants. This observation should mean that
the holding that the TVPA does not apply to corporations is equally
of "no comparative value" to the Court's future
analysis of the applicability of the ATS to corporations.
Mohamad may have freed corporate entities from TVPA
suits, but until the Supreme Court issues its ruling in
Kiobel, they remain potentially liable under the ATS.
Furthermore, human individuals, such as corporate officers and
employees, remain open to suit under both statutes.
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