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December 5, 2013, New York – Today, U.S.-based civil rights and human rights groups signed…
The Alien Tort Statute
The Alien Tort Statute (ATS), also known as the Alien Tort Claims Act, has been a powerful tool through which foreign victims of human rights abuses can seek civil remedies in U.S. courts. Adopted as part of the Judiciary Act of 1789, the ATS allows non-U.S. citizens to sue for violations of the “law of nations” or customary international law, or of a treaty of the United States, in U.S. courts. It has been used to bring claims for human rights violations against government officials, non-state actors and multi-national corporations. Since Congress adoption of the Torture Victim Protection Act (TVPA) in 1991, which President George H.W. Bush signed into law in 1992, the TVPA has be a mechanism for both U.S. and non-U.S. victims of torture and extra-judicial killing to seek redress in U.S. courts.
At each important stage in the evolution of ATS litigation, CCR has played a pivotal role in its development and use. In 1979, CCR attorneys filed claims under the then-obscure ATS, on behalf of Paraguayan citizens Joel and Dolly Filártiga for the politically motivated torture and murder of 17-year-old Joelito Filártiga, Joel’s son and Dolly’s brother.
CCR argued that international law, in light of the post-Nuremberg emergence of international human rights law, is applicable to individuals as well as states. CCR held that the origin of the ATS – as an anti-piracy law – meant that the U.S. government has judicial power over matters of international dimension. Today’s torturers, it was argued, resemble eighteenth-century pirates in that both were or are enemies of all humanity and should be held accountable for their crimes, wherever they are found.
In probably the most important domestic international human rights case of the modern era, the Second Circuit ruled in favor of the Filártigas and CCR, and awarded a $10.4 million judgment. Filártiga broke new and important legal ground in civil human rights litigation.
Throughout the 1980s, the cases brought under ATS were against officials of recognized governments. Then, in 1993, CCR brought a lawsuit against Radovan Karadžic for genocide, war crimes, and crimes against humanity committed in Bosnia-Herzegovina in the early 1990s. The Second Circuit held that Karadžic, a non-state actor, could be held liable under the ATS for his complicity in these crimes.
The case against Karadžic laid the groundwork for lawsuits against multinational corporations, and over the past decade, CCR has successfully expanded the application of the ATS to cases involving human rights violations abetted or committed by multinational corporations, including Unocal, Royal Dutch Shell PLC, and Caterpillar, Inc. Our extensive experience with ATS litigation has also recently allowed us to respond quickly to the unprecedented questions of legal responsibility presented by the role of government-hired private contractors in the torture and abuse of Iraqi prisoners at Abu Ghraib and elsewhere. See Saleh v. Titan.
In 2004 in Sosa v. Alvarez-Machain, the Supreme Court affirmed the Filártiga line of cases, holding that ATS provides a jurisdictional basis for claims for violations of international norms that are “specific, universal and obligatory.”
CCR's most recent corporate accountability suits have powerful defendant and have been vigorously litigated. Many of their arguments put forth both within and beyond the litigation itself have misrepresented ATS cases, and the ramifications of such cases. The Bush Administration, through the State Department and the Department of Justice, has also filed amicus briefs or Statements of Interest in a number of cases.
For example, in our case Corrie v. Caterpillar, which seeks to hold Caterpillar liable for aiding and abetting war crimes by providing bulldozers to the Israeli Defense Forces knowing they would be used unlawfully to demolish homes and endanger civilians in the Occupied Palestinian, the Chamber of Commerce (“Chamber”) of the United States of America filed an amicus brief. In its brief, the Chamber challenged the applicability of international law norms to corporations under the ATS and the TVPA, and argued inter alia that to allow the case against Caterpillar to proceed could interfere with “foreign operations” and business. See Corrie v. Caterpillar, US Chamber Amicus Brief. The United States Government similarly argued that the case should be dismissed because of “foreign policy concerns” and its arguments about interference with “promoting active economic engagement” echoed those made by the Chamber. See Corrie v. Caterpillar, US Government Amicus Brief.
In addition to the amicus briefs it has submitted in corporate cases, the Bush Administration has joined with the defendant in one of our cases against a former foreign official in raising concerns that allowing cases against foreign officials to proceed could expose U.S. officials to suits abroad. This case, Matar v. Dichter, seeks to hold against Avi Dichter, the former Director of Israel’s General Security Services, on behalf of the Palestinians who were killed or injured in a 2002 in a “targeted assassination” in Gaza. See Matar v. Dichter. The United States filed a Statement of Interest with the district court and an amicus brief with the Court of Appeals for the Second Circuit, in which in argued that a Dichter has immunity even for any “official acts,” including alleged serious violations of international law, under common law. The U.S. warned that to not allow such immunity to follow officials could possible lead foreign nations to recognize such immunity for US officials.
CCR has continued to advocate that the courts equally protect all victims of human rights abuses and hold all violators accountable, regardless of how powerful they are. We continue to work to support other attorneys litigating these kinds of cases and to expand the use of the Alien Tort Statute by holding conferences on using the ATS. Whether gross human rights violations are committed by corporations or by government or military leaders, CCR will continue to use innovative legal strategies to bring justice to the victims and to hold the violators accountable.