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Reparations for Mass Atrocities as a Path to Peace: After Kiobel V. Royal Dutch Petroleum Co., Can Victims Seek Relief at the International Criminal Court?

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The US Supreme Court's ruling in Kiobel v. Royal Dutch Petroleum represents the culmination of a long campaign to establish a unitary power in the White House over matters of international law, and to marginalize the courts, law, and treaties. Victims of mass atrocities and their descendants have suffered from this trend towards greater impunity.

The ATS barely survived its last encounter with the Supreme Court in 2004, and its usefulness has eroded steadily since that time, in a number of cases dealing with China, Nigeria, Saudi Arabia, South Africa, and Sudan. Advocates for human rights, victimized groups, and genocide prevention have consistently supported the right of victims of mass atrocities to pursue lawsuits under the law of nations in countries other than those in which the extermination, persecution, or other atrocities occurred. However, the law is being politicized as amici briefs by the Department of Justice and "Statements of Interest" by the State Department override the rules of the law of nations, not to mention the intent of the American founders and basic principles of justice and fairness.

The Supreme Court's evisceration of the ATS in Kiobel deprived international law of a key pillar of support. It arguably violates the international legal duties of the United States to prevent, punish, and remedy mass atrocities. It conflicts with the original understanding of the law of nations as rules, enforceable under federal common law and the ATS, that limit executive power so as to promote peace. As the NGO Platform informed the British Parliament, Kiobel "remove[s] one of the few judicial remedies available to victims of corporate human rights abuses and grant[s] global impunity to companies who commit such wrongs," including crimes against humanity.

This Article describe the vision of early American leaders that a robust ATS would safeguard victims of transnational dangers. The key purpose of the ATS was to promote peace by offering an alternative to sovereign retaliation. The Bush and Obama administrations thwarted the promise of the ATS in five ways: advocating reduced extraterritorial application, opposing non-state actors' accountability under the ATS, pleading for deference to sovereign immunity in mass atrocity cases, undermining the law of nations as being ineffective (non-self-executing) verbiage, and invoking discretionary doctrines that destroy federal court jurisdiction over "political questions." Promising recent developments might lead to the International Criminal Court (ICC) filling the gap left by Kiobel, and promoting peace by offering a forum for the peaceful resolution of grievances. The ICC could fund compensation, rehabilitation, and local reconciliation under Article 75 of the Rome Statute.