Attorneys for Abu Ghraib Torture Survivors Say Case Petitioned to SCOTUS Survives
June 17, 2021, Washington, D.C. –Today, the United States Supreme Court limited – but did not foreclose – the ability to sue U.S. corporations in U.S. courts for complicity in transnational human rights violations. The case, Doe, et al. v. Nestlé USA, Inc./Cargill, Inc., concerns the corporations’ alleged role in aiding the enslavement of children and in forced labor in the Ivory Coast for decades. Fifteen international human rights organizations had urged the Court to ensure the availability of the Alien Tort Statute (ATS) for such claims, which has long been used by non-citizens to sue in U.S. courts when perpetrators – including corporations – are present in the U.S. Today, the Supreme Court ruled that the narrow domestic conduct alleged by Nestlé and Cargill was insufficient to allow application of the ATS to plaintiffs’ claims of aiding and abetting forced labor in Ivory Coast. Notably, today’s ruling did not provide the categorical exemption from liability for corporations under the ATS that corporations have been pursuing for nearly two decades.
“Today the Supreme Court continued its recent and worrying trend of limiting the ability of victims of serious human or civil rights violations to seek justice and accountability in U.S. courts” said Center for Constitutional Rights Senior Staff Attorney Katherine Gallagher, who served as counsel for the human rights organizations’ amicus brief in Nestlé/Cargill. “While the Court left the door open for claims against U.S corporations participating in and furthering serious human rights violations where there is sufficient domestic conduct, having spearheaded the development of transnational justice, the United States should be joining the growing global trend to make it easier to hold corporations accountable for serious human rights violations.”
Gallagher is also counsel in another ATS case currently on petition to be heard by the high court, Al Shimari, et al. v. CACI, a lawsuit on behalf of three Iraqi torture survivors against a Virginia-based government contractor that directed and participated in a conspiracy to torture at the infamous Abu Ghraib prison in 2003-04. Despite today’s ruling, Gallagher says the remaining application of the law allows Al Shimari to proceed because the torture survivors allege far more domestic conduct than “mere corporate presence” or “general corporate activity” that produced the torture at Abu Ghraib.
The amicus brief filed by the Center for Constitutional Rights and joined by 14 human rights organizations from around the world warned against a ruling that would allow U.S. corporations to profit from grave human rights abuses committed outside the U.S. in their supply chains, in outsourced labor, and other transnational business.
The modern use of ATS began in 1979, when the Center for Constitutional Rights successfully sued a former Paraguayan official, who was living in the U.S., for the abduction, torture, and killing of a political opponent’s son. Today’s ruling is the latest in a series by the high court over the past decade that have limited the application of the ATS. In 2013, the Supreme Court narrowed the application of the law to only those cases where the claims “touch and concern the territory of the United States...with sufficient force.” In 2018, the Supreme Court further narrowed the statute when it held that foreign corporations could not be sued under the ATS. Today’s ruling requires that there be more domestic conduct than either mere corporate presence or general corporate activity to support a domestic application of the ATS to transnational torts.
The amicus brief filed on behalf of human rights organizations globally had urged the Court to affirm a lower court decision that held there is no categorical immunity for corporations under the ATS. In addition to warning that exempting corporations from liability for international human rights violations would make the United States a safe haven for corporations committing human rights abuses, the brief noted that such a ruling would render the U.S. an outlier in the international community, as all major legal systems provide for corporate liability. The brief further argued that the activity alleged against Nestlé and Cargill undeniably “touches and concerns” the United States for purposes of ATS liability because the corporations are alleged to have provided payments and other acts that assisted the commission of forced labor and child slavery from the United States.
Joining the Center for Constitutional Rights in signing the amicus brief were APRODEH (Peru), ALTSEAN-Burma, Canadian Lawyers for International Human Rights, the Canadian Network on Corporate Accountability, the European Center for Constitutional and Human Rights (Germany), Global Rights Compliance (U.K./Ukraine), Global Witness (U.K.), the Human Rights Law Network (India), International Association of Democratic Lawyers (Belgium/Global), the International Commission for Labor Rights (U.S.), the International Federation for Human Rights (France/Global), Justice and Corporate Accountability Project (Canada), MiningWatch (Canada), and Rights and Accountability in Development-RAID (U.K.). The International Human Rights Organizations brief was one of 18 friend-of-the-court briefs filed in support of the plaintiffs.
For more information, visit the Center for Constitutional Rights’ case page.
The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at ccrjustice.org.