Pamela Merchant and Kristen Myles speak on human rights litigation abroad

The Program on Human Rights welcomed Pamela Merchant and Kristen Myles to Stanford on March 4 as final speakers in the winter course U.S. Human Rights NGOs and International Human Rights. Ms. Merchant has served for the past nine years as executive director of the Center for Justice & Accountability, the leading U.S.-based organization that pursues international human rights abusers through litigation in U.S. courts. Formerly a federal prosecutor, Ms. Merchant has frequently testified on human rights issues before the U.S. Congress; currently serves on the Advisory Council for the ABA Center on Human Rights; and is a director of the Foundation for Sustainable Rule of Law Initiatives. Ms. Myles is a litigation partner in the San Francisco office of Munger, Tolles & Olson and is repeatedly named among California's “top women lawyers” by the Daily Journal. In her practice of complex business litigation, Ms. Myles filed a “friend of the court” brief in the 2014 case of Shell Oil vs. Kiobel which in the U.S. Supreme Court decided that U.S. corporations could not be sued in U.S. courts under the Alien Torts Statute for alleged human rights abuses abroad.

Ms. Merchant’s strongly held view is that some human rights violations are so egregious that they should be litigated in any court system, even if they occurred outside the country in which the case is argued. Ms. Merchant argued that courts create a record of truth about human rights violations, and that shedding the light of truth on these terrible events will make the world a less violent place. The Center for Justice and Accountability has provided legal advice for human rights victims to pursue their claims of human rights abuses in U.S. courts when abuses occurred in countries such at El Salvador, Nigeria, South Africa, and Myanmar, using U.S. federal legislation of the Alien Torts Statute and the Torture Victims Prevention Act. The CJA’s position is that the Nuremberg Trials of the World War II genocide atrocities created an obligation for all nation states to pursue justice in their courts under the international law principle of universal jurisdiction that holds that egregious human rights abuses are the concern of all humanity, wherever they have taken place.

Ms. Myles has represented U.S. corporations against whom human rights victims allege were directly or indirectly the instigators of their violations by virtue of pursuing corporate economic interests abroad in collusion with corrupt officials who resort to violence, such as by pushing people off their land or working in industrial settings in sub-standard conditions. Ms. Myles pointed that U.S. corporate executives do not instruct their overseas operators to be violent; instead, they are working through long chains of delegated authority in their off-shore operations, and these off-shore people act beyond their corporate mandate. Most importantly, the international legal principle of universal jurisdiction is the “law of nations” so it is directed to national governments and not to private corporations.

After Ms. Merchant and Ms. Myles summarized their individual positions, they engaged in dialogue with Professor Helen Stacy, director of the Program on Human Rights. Discussion covered the pros and cons of using the U.S. court system for transnational issues, given that such cases are lengthy and expensive; whether the high visibility of such cases had a deterrent effect on violators abroad, or may lead to the deportation of a violator who had subsequently settled in the U.S., or would prevent an alleged perpetrator’s application to emigrate to the U.S.; the success of victims being paid money from their perpetrator under a civil damages award ordered by a U.S. court; whether this U.S. litigation poses a diplomatic problem for the U.S. in its international operations; how standards on corporate social responsibility can be raised beyond litigating past practices in lengthy and expensive civil court proceedings; and the ethics of imposing higher standards of U.S. corporate standards in countries with lower standards and very high needs to improve economic conditions for their population.

Helen Stacy, Executive Director, Program on Human Rights