THE ALIEN TORT CLAIMS ACT:

WHAT NEXT AFTER ALVAREZ-MACHAIN?

 

 

By Sandra Coliver, Executive Director of the Center for Justice & Accountability

 

On June 29, the Supreme Court in Sosa v. Alvarez-Machain decided, by a clear 6-3 majority, to affirm the liberal judicial interpretation of the the Alien Tort Claims Act (ATCA) that enables victims of human rights abuses to sue their abusers in U.S. courts.

 

The ATCA, adopted by Congress in 1789 as part of the first Judiciary Act, grants non-U.S. citizens the right to sue in federal court for "violations of the law of nations".  Since 1980, U.S. courts – including the 2nd, 9th and 11th Circuits - have consistently interpreted the ATCA to allow suits against torturers and others who commit egregious violations of internationally recognized human rights, so long as the defendants are within the jurisdiction of the United States.  For individual defendants, this usually means that they must be served with a complaint while physically present in the United States.

 

The Court affirmed this case-law, including that violations, to be actionable under the ATCA, must be “definable, universal and obligatory”.  Prior cases have established that torts which meet that standard include genocide, crimes against humanity, slavery, torture, extrajudicial killing, disappearances, and cruel, inhuman or degrading treatment or punishment that would constitute a violation of the Constitution if committed against a U.S. citizen. The Court held that the tort at issue – “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment” – “violates no norm of customary international law so well defined as to support the creation of a federal remedy.” The Court suggested, in a footnote, that corporations and other private actors could also be held liable for certain violations that do not require state action, such as genocide.

 

The Court left open numerous issues that could take years to work their way through the courts, including which torts will qualify for federal remedy, and which of those do not require state action; the standards to be applied in determining liability, exhaustion of remedies, forum non conveniens,  and immunity for foreign officials; and which law – international, federal, state, or the law of the forum where the tort occurred – should be applied in assessing subsidiary issues such as standing and damages. Corporations, unhappy with this uncertainty, are expected to press for legislative solutions.  At the end of this note I summarize the most likely areas of legislative attention.

 

I. The Alien Tort Claims Act: Its History and Modern-Day Usage

The ATCA was largely unused until 1980 when the Second Circuit Court of Appeals issued its landmark judgment in the case of Filartiga v. Pena-Irala. The case involved a Paraguayan citizen, Dolly Filartiga, who moved to the United States after her brother was tortured and killed by Peña, a Paraguayan police chief. When Dolly discovered that Peña was visiting the United States, she and her father brought an action against him for torture and wrongful death under the ATCA. The Court of Appeals ruled, in ringing words, that state sponsored torture violated the law of nations and that the torturer, like the pirate of yesterday, was hosti humanis, an enemy of all mankind.

 

While this ground-breaking judgment was greeted with understandable excitement, it hardly opened the floodgates. The court set a high standard: the violation had to be of a rule that commanded the “general assent of civilized nations”. Subsequent courts elaborated further requirements. The violation must be of a norm of international law that is “specific, universally condemned, and obligatory.” Cases may be pursued against individuals only if they have been personally served while physically present within the territory of the United States.

 

In all, cases have been successfully brought against only 17 individual defendants, 12 of whom had settled in the U.S. Some 38 cases have been brought against corporate defendants, of which only five have survived motions to dismiss. Eight more are awaiting decisions on motions to dismiss, and the remaining 23 cases have been dismissed for a variety of reasons, including failure to state a violation actionable under the ATCA, forum non conveniens, and potential interference with foreign affairs. All cases against U.S. officials or agencies have so far been dismissed, though a few decisions are still on appeal. The Ninth Circuit in Alvarez-Machain held that cases may be brought against private actors working in concert with U.S. officials or agents, and that part of the holding was not addressed by the Supreme Court.

 

II. The Torture Victim Protection Act

To confirm its agreement with the Filartiga line of cases, the U.S. Congress adopted the Torture Victim Protection Act ("TVPA") in 1991, which President George H.W. Bush signed into law in 1992. The TVPA provides that “an individual who under actual or apparent authority, or color of law, of any foreign nation" subjects another to torture or extrajudicial killing is liable for damages in a civil action.  The TVPA provides a remedy to both aliens and U.S. citizens. The legislative history that accompanies the TVPA makes clear that the TVPA was intended to confirm the causes of action for official torture and extrajudicial killing, and did not supercede the ATCA which continued to have “other important uses”.

 

The TVPA is narrower than the ATCA. It only applies to torture and extrajudicial killing, whereas courts have already interpreted the ATCA to apply as well to genocide, crimes against humanity, war crimes, slavery, disappearances, cruel, inhuman or degrading treatment or punishment, and prolonged arbitrary detention. Moreover, courts have made clear that, over time, new norms may ripen into torts that can be the subject of ATCA redress. The TVPA also is narrower than the ATCA in that it may be used only against “individuals” who act under “actual or apparent authority … of any foreign nation.” While two district courts have opined that the term “individual” in the TVPA may encompass corporations, other courts have rejected that interpretation. The TVPA clearly cannot be applied against individuals acting under the authority, or in concert with, the U.S. government.

 

III. Likely Efforts to Amend the ATCA

 

1.     Torts Subject to Redress

ATCA critics complain that the indeterminancy of the torts subject to ATCA redress leaves defendants uncertain about the conduct for which they could be held liable. Accordingly, they call for enumeration of actionable torts. In addition to torture and extrajudicial killing, several torts – already defined in U.S. criminal or immigration law - are relatively uncontroversial. These include genocide, war crimes, slavery and religious persecution. Cruel, inhuman or degrading treatment or punishment that would violate the 5th, 8th or 14th amendments to the U.S. Constitution if committed against a U.S. citizen also likely would be included, given the U.S. government’s assertion of this standard when it ratified the International Covenant on Civil and Political Rights. Crimes against humanity, prolonged arbitrary detention, and forced labor might be included in proposed legislation, but are more controversial because the international norms have not been codified in U.S. law.

 

Legislation might also specify the torts that require some form of state action. U.S. courts have held that genocide, slavery and war crimes clearly do not (and thus may be committed by individuals and, arguably, corporations, regardless of state action); debate exists regarding crimes against humanity and forced labor.

Human rights groups are unlikely to support any legislation that does not include an “escalator clause” whereby new norms may become actionable over time. The language of such a clause likely would be drawn from the Alvarez opinion, such as that the norm must be “definable, univeral, and obligatory”.

 

1.     Corporate Liability

Several corporate representatives have accepted, in principle, that corporations should be subject to liability for international law violations where evidence is presented of a high degree of culpability. Accordingly, legislation is likely to state that cases may be brought against corporations where all other provisions of the law are met. Interestingly, whereas many ATCA critics have complained vociferously about the “arrogant,” even “imperialistic,” assertion of U.S. jurisdiction over ATCA claims against corporations incorporated outside of the United States, U.S.-based corporations are insisting that no distinction should be made based on place of incorporation. In other words, if U.S. corporations are to be subject to the ATCA, then all corporations that have sufficient “minimum contacts” with the U.S. to satisfy due process requirements should be similarly amenable to suit.

 

2.     Standards of Indirect Liability

Most of the courts that have ruled that corporations may be held liable for international torts have done so on the theory that the corporations aided and abetted torts committed by states or state agencies. The Ninth Circuit in Unocal and a Florida district court in Cabello looked to the jurisprudence of the International Criminal Tribunals to define the standard of aiding and abetting. Legislative drafters will likely craft a definition.

 

3.     Forum Non Conveniens and Interference with Foreign Policy

Several suits against corporations have been dismissed on the ground that the case should more appropriately be tried elsewhere, generally in the country where the conduct was committed, or else where the corporation was incorporated. Legislation likely will incorporate explicit language that a case may be dismissed on forum non conveniens grounds, and will elaborate the appropriate factors to consider.

 

Choice of Law

A major question in many ATCA suits concerns the law to be applied to a host of subsidiary issues. Courts have considered whether to apply international law, federal. law, or the law of the state where the torts were committed. For instance, questions of standing may be interpreted more liberally in the forum state, international law may seem most appropriate for defining aiding and abetting and other theories of liability, and U.S. law undoubtedly is most favorable regarding amount of damages. Legislation will likely address this issue as well.

 

CONCLUSION

The Supreme Court’s decision in Alvarez allows all ATCA/TVPA litigation to move forward. The Ninth Circuit en banc is expected to issue a decision in the Unocal case within the next several months, and that case could well be heard by the Supreme Court next year. Cases are also in the pipeline against Chevron and Royal Dutch Petroleum (for violations in Nigeria), Drummond Coal (Colombia), Talisman Energy (Sudan), and Rio Tinto mining company (Papua New Guinea). Business and trade associations are likely to press for legislation in the above areas. Given the Court’s Alvarez decision, human rights supporters have little incentive to accept legislation that would limit suits beyond the parameters already elaborated by the courts.  The devil, as always, will lie in the details.