Foreign cases, competent courts Photo: Alex Geert Castermans

Foreign cases, competent courts

Libyan civil servants were involved in torturing a Palestinian doctor in Libya. They were held liable by a Dutch court. A European company was allegedly involved in human rights abuses in Nigeria. Is an American court competent to assess its liability?

On 28 March it was announced by the BBC Middle East news that a Dutch court had awarded one million euros to doctor Ashraf al-Hajui, at the cost of twelve Libyan civil servants. Indeed, a week earlier the district court of The Hague held the civil servants liable. The doctor was imprisoned in Libya for eight years. The civil servants were allegedly involved in the torture and inhumane treatment of doctor Al-Hajui during his imprisonment.

It is a remarkable decision, because the Dutch court considered itself competent to hear the case, although the case itself was not linked to the Netherlands. The court did not justify its decision at great length. According to article 9 section c of the Dutch Civil Procedure Act it is competent to hear a case, if the case is sufficiently linked to the Dutch legal sphere and if it would be unacceptable to require a plaintiff to turn to a judicial authority of another state. The court did not reflect on the link to the Dutch legal sphere, apparently because the plaintiff was residing in the Netherlands at the time of the procedure. Furthermore it merely referred to the situation in Libya at the time the case was introduced, 27 July 2011, ‘as described by the plaintiff’. The statement of doctor Al-Hajui was not disputed by the civil servants, because of the mere fact that they did not appear in court at all. His arguments on the Libyan judicial authorities were considered ‘not unlawful’ and ‘not without cause’.

What kind of cases are dealt with under article 9 section c? lt is supposed to apply in exceptional cases only. The few cases we know have to do with war or other political or humanitarian reasons. Once a family fled from Uruguay to Argentina for political reasons. To no avail, for in Argentina the father disappeared. The woman and her daughter fled to the Netherlands. According to the Supreme Court of the Netherlands, Dutch courts are competent to hear the woman’s request to declare her husband ‘probably dead’, at a time that due process was not guaranteed by the Argentinian or the Uruguayan judicial system.

For one more reason it is a remarkable decision. Last February the British and Dutch governments submitted a brief as Amici Curiae, in the Supreme Court of the United States-case of Kiobel vs Shell. The case is about Shell’s alleged complicity in serious human rights abuses in Nigeria. The governments wrote in support of Shell, because inter alia they are opposed to overly broad assertions of extraterritorial civil jurisdiction arising out of aliens’ claims against foreign defendants for alleged activities in foreign jurisdictions that caused injury.

Should American courts refrain from doing what Dutch courts do? Of course one has to look for similarities and differences in the Libyan and Nigerian cases carefully. Twelve civil servants residing – I assume – outside the Netherlands on the one hand, one multinational organization with bright red and yellow service stations in the United States on the other hand, for example. I am not confident that these differences will justify that Dutch courts are allowed to do what – according to the Dutch and British governments – is considered improper for American courts.


Alex Castermans

The District-Court of The Hague is hearing a Nigerian-case at this moment; http://www.rechtspraak.nl; LJN: BM1469 and LJN: BU 3529. The Court considered itself competent, because one of the defendants resides is The Netherlands. Nigerian law is applicable. See you in June?

Casey Magnuson

For starters: I purchase gasoline at a Shell station near my house in Texas and asked the three attendants if they heard of the suit. All three had no clue. I explained the situation but to no avail. Most Americans are apathetic to "others" plights as long as the US isn't directly involved.

(I also follow SCOTUS pretty closely as well as Supreme Courts from many other countries and the international courts in The Hague as part of my International Law research.)

Holland has a pretty strong history of protecting human rights. Or at least they put that view out into the international community. Since I'm not currently residing in Leiden at the moment I'm not privy to what the news is there about this issue.

So tell me this- has a Dutch court or your Parliament addressed this issue "home" in Holland? The stance by your counsel in the amicus brief suggests an inference that any attempt at "settling things at home" would side with the corporation. I can suggest this because my own Supreme Court ruled for corporations recently by declaring them "people" in response to campaign financing but to wit still a ruling.

Should international companies be held accountable for their actions or non-actions by international law and treaties? And should justice for those be impartial? I know I'm comparing apples and oranges here but would Germany have held its own inquiries, hearings and trials after WWII? There is precedent in international courts being established for hearing specific violations and the Lebanese Tribunal comes to mind currently.

It could also be as simple as Kiobel being filed in the US therefore it would clear its way through our courts. Should Esther Kiobel filed in Holland? How far do you think that would have gone? I've had my own dealings with the judicial branch in Holland and have found it to be tedious and unfriendly towards the non-Dutch.

Maybe multiple international courts need to exist to deal with different subject matter as the ICJ seems overloaded already.

We'll see what happens after the June 6th deadline for the petitioners supplemental brief and the August 1st deadline for respondents supplemental brief. Both of which I'll be in Leiden for....


Casey Magnuson, Master of Public Law

Add a comment