Alien Tort Statute
Alien Tort Statute
Survivors of genocide and crimes against humanity often find it impossible to obtain compensation for the harms they have suffered and only rarely are the perpetrators punished for their crimes. In the United States victims and their families may be able to file civil lawsuits in federal court against those responsible, relying on a 200-year-old statute, the Alien Tort Statute (ATS) (codified as U.S. Code, vol. 28, sec. 1350). The ATS, enacted in the late eighteenth century, was one of the first laws approved by the newly established U.S. Congress. The Statute's use as a remedy for human rights abuses dates from a 1980 court decision recognizing that it authorizes civil lawsuits for violations of international law. In 2004 the U.S. Supreme Court upheld this use of the statute to seek redress for human rights violations. The ATS offers a potentially powerful tool to those seeking redress and accountability for gross human rights abuses, including genocide and crimes against humanity.
Criminal Prosecutions versus Civil Claims
In many countries efforts to seek justice for human rights abuses focus on criminal prosecution of the perpetrators. In the United States redress often involves a civil lawsuit filed by victims or family members. The line distinguishing criminal prosecutions and civil litigation varies among different countries and even among different U.S. states. Government prosecutors usually file criminal charges and generally seek to punish the defendant through a prison sentence or monetary fine. Civil lawsuits such as those authorized by the ATS are filed by private parties and cannot lead to imprisonment. Instead, they seek financial compensation for the injuries suffered by the plaintiffs along with punitive damages intended to sanction the defendant and deter others from similar misbehavior.
Civil litigation in the United States thus has certain advantages over criminal prosecutions: A civil lawsuit can be filed by a victim or family member, whereas a criminal case would depend on the government prosecutor's decision to take action. Moreover, any financial recovery in a civil lawsuit is paid to the plaintiff. Thus, although the defendant in a civil lawsuit does not face the possibility of a prison sentence or the moral sanction of a criminal conviction, some survivors and their families view civil litigation as an important means of seeking redress.
History of the ATS
The ATS, enacted by the first U.S. Congress in 1789, states that the federal courts have jurisdiction over a "civil action by an alien for a tort only, committed in violation of the law of nations." The goal of the statute seems to have been to strengthen the enforcement of international law by U.S. courts.
In the eighteenth century the founders of the United States recognized international law as a form of natural law that was binding on all governments. Moreover, violations of international rules often triggered reprisals, including war. During the early years after independence the European military powers repeatedly threatened retribution for violations of international law, particularly when the state courts refused to prosecute wrongdoers. Many commentators have concluded that the ATS was designed to ensure that foreigners could obtain redress for violations of international norms from federal courts, rather than being relegated to a less predictable fate in the state courts.
Although no early cases directly applied the ATS, mention of it in the writings of the period support the view that the ATS provided a remedy for foreigners complaining of violations of internationally protected rights. In 1795, for example, the U.S. attorney general stated that the ATS authorized a civil lawsuit by British citizens who were attacked in violation of international rules governing neutrality. Over the next two centuries, however, the statute was rarely mentioned.
The ATS was revived by a case decided in 1980, Filártiga v. Peña-Irala. Joelito Filártiga, the son of a prominent opponent of the military regime in Paraguay, was tortured to death by a Paraguayan police officer. In the face of an international outcry the Paraguayan government spirited the officer out of the country; the Filártigas later discovered him living in New York City and filed a lawsuit against him under the ATS. Their claim was initially dismissed by a trial court judge who ruled that international law did not apply to the actions of a government against its own citizens. On appeal, however, a federal appellate court held that the "law of nations" in the statute refers to international law as that law has developed over time. Since international law had come to prohibit a government's torture of its own citizens, the court held that the ATS allows a federal court to judge a claim that a Paraguayan official tortured a Paraguayan citizen. Following this decision the lower court awarded over $10 million in damages to the Filártiga family, although they were unable to collect the judgment.
Over the next twenty-four years, federal courts applied the ATS to permit claims such as torture, execution, genocide and slavery against a range of defendants, including commanders, government officials and corporations. Despite the virtual unanimity of the courts, a dispute developed among commentators about the validity of the Filártiga interpretation of the statute. Although the administrations of former presidents Jimmy Carter and Bill Clinton supported the Filártiga approach, president George W. Bush argued that the statute as applied infringed on the foreign affairs powers of the executive branch. The central point of contention was whether the ambiguous language of the eighteenth-century statute should be interpreted to permit individuals to sue for damages for violations of modern international law norms
The U.S. Supreme Court resolved the simmering debate in 2004, endorsing the Filártiga approach in the case of Sosa v. Alvarez-Machain. Humberto Alvarez-Machain was kidnapped in Mexico and taken to the United States to face criminal prosecution, but later acquitted of the criminal charges against him. He won a lower court decision awarding him damages for arbitrary arrest and detention. On appeal, the Supreme Court held that the ATS permits private individuals to file claims for international law violations that satisfy a strict standard of international consensus and clear definition. The Court ruled against Alvarez-Machain, however, holding that his brief detention in Mexico, followed by an immediate transfer to lawful authorities in the United States, did not constitute a violation of a core international norm.
The Supreme Court decision validates post-Filártiga federal court decisions that applied the statute to permit aliens to sue for genocide and crimes against humanity, as well as for other egregious abuses such as war crimes, disappearance, torture, summary execution, and slavery. Each of these abuses meets the Supreme Court's requirement of international concensus and clarity of definition.
Lawsuits under the ATS may be filed in the U.S. courts even though the events took place entirely in another country: The statute does not require that the human rights violations have any connection to the United States. The U.S. Constitution, however, requires that the defendant have ties to the United States. Although most such cases have been filed against U.S. residents or United States–based corporations, several have involved defendants who were served while traveling in the United States, or foreign corporations subject to suit because of their U.S. business contacts.
Early court decisions made clear that the Statute permits a suit against commanders whose forces commit human rights abuses, as well as against the actual torturer, as in the Filártiga case. For example, a series of cases filed against an Argentine general held him liable for executions, torture, and disappearances committed under his command. Similarly, a Guatemalan general was held liable for the atrocities committed by his troops against indigenous Guatemalans. In both cases the plaintiffs demonstrated that the generals had planned and directed campaigns of violence against civilians.
A similar case filed in 1993 against Radovan Karadzic, the leader of the Bosnian-Serbs, sought damages for genocide and crimes against humanity committed against Bosnian Muslims following the break-up of the former Yugoslavia. Although Karadzic argued that he was not a government official and therefore could not violate international law, the court held that certain norms of international law apply to private parties as well as government officials. In particular, the United Nations Convention Against Genocide makes clear that genocide is a crime when committed by private persons. The court also ruled that Karadzic could be held liable as an accomplice to abuses committed in complicity with officials of other governments.
These holdings paved the way for lawsuits against private parties such as corporations. In the 1990s several civil claims were filed against banks, insurance companies, and other businesses for crimes committed during World War II. Most of these lawsuits ran into difficulties because of the years that had elapsed and because the U.S. government insisted that all outstanding claims had been resolved through negotiated diplomatic agreements. Despite these difficulties several such lawsuits were settled for significant amounts of money.
A claim filed in 2001 charged the Talisman Energy Corporation with responsibility for genocide and crimes against humanity committed by the government of Sudan. The case addressed widespread abuses committed against the non-Muslim inhabitants of southern Sudan as the government sought to extract oil from the region. Alleged abuses included killings, forced displacement, destruction of property, kidnapping, rape, and the enslavement of civilians, amounting to attempted genocide. The plaintiffs claimed that the company had helped to plan the government's campaign of ethnic cleansing and supplied the funds to finance it. In an initial decision filed in 2003 the court held that the corporation could be held liable for the abuses if it had knowingly provided "practical assistance, encouragement, or moral support that had a substantial effect on the perpetration" of the human rights abuses.
Benefits of Civil Litigation
In the case against Talisman and in similar cases against oil companies for abuses committed in Burma, Nigeria, and other countries, a victory for the plaintiffs would most likely result in a large monetary judgment that can be collected. Cases litigated against private individuals are less likely to produce enforceable judgments, yet plaintiffs continue to file such lawsuits despite the probability that they will not collect any money.
Carlos Mauricio, a survivor of torture in El Salvador and a successful plaintiff in a case against two Salvadoran generals, explained that part of his reason for suing was that the lawsuit gave him the opportunity to talk about his ordeal. Mauricio was a professor in El Salvador in 1983 when agents of the military government then ruling his country kidnapped him from his university office. He was detained and brutally tortured for two weeks. Upon his release he fled El Salvador and settled in the United States. For many years he told few people about his ordeal. "One of the facts from torture is that they make you not want to talk about it," Mauricio said in 2002. "It took me 15 years to be able to tell my story. I realized that telling my story to others is important, not only because it's important to know what happened in El Salvador, but also because in that way you are really out of prison" (Center for Justice and Accountability website).
Other survivors stress the value of a judicial forum in which they can obtain formal recognition of their suffering and of the culpability of the defendants. Many also see their litigation as contributing to the movement to enforce and strengthen international human rights norms in their home countries, in the United States, and around the world.
Three other modern statutes offer a basis for civil lawsuits for human rights violations. The Torture Victim Protection Act, enacted in 1992, provides aliens or U.S. citizens a cause of action for torture or extrajudicial execution committed "under color of foreign law." The Anti-Terrorism Act, originally enacted in 1990, authorizes civil suits by U.S. nationals who are victims of terrorism. Finally, an exception to the Foreign Sovereign Immunities Act (FSIA) permits U.S. citizens to sue a handful of foreign governments for torture, extrajudicial killing, and other abuses; it applies only to governments on the U.S. State Department's list of "state sponsors of terrorism." Although none of these statutes specifically permits suits for genocide or crimes against humanity, a broad claim under the ATCA will often be joined with a specific claim under one of these statutes.
The Alien Tort Statute permits aliens to file civil lawsuits for genocide and crimes against humanity committed anywhere in the world, if the U.S. courts have jurisdiction over the defendants. Such civil litigation for human rights abuses permits survivors of egregious abuses to seek justice, through an award of damages as well as through a formal judicial process that enables them to obtain a judgment confirming the responsibility of the perpetrators.
The Alien Tort Claims Act. U.S. Code, vol. 28, sec. 1350.
Blum, Jeffrey M., and Ralph G. Steinhardt (1981). "Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filártiga v. Peña-Irala." Harvard International Law Journal 22:53–113.
Bradley, Curtis A. (2002). "The Alien Tort Statute and Article III." Virginia Journal of International Law 42:587–647.
Burley, Anne-Marie (1989). "The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor." American Journal of International Law 83:461–493.
Center for Justice and Accountability for Survivors. "Carlos Mauricio's Story." Available from http://www.cja.org/forSurvivors/CarlosforSurvivors.shtml.
Convention on the Prevention and Punishment of the Crime of Genocide. Art 4, 102 Stat. 3045, 78 U.N.T.S. 277, December 9, 1948.
Dodge, William S. (1996). "The Historical Origins of the Alien Tort Statute: A Response to the 'Originalists.'" Hastings International and Comparative Law Review 19:221–258.
Filártiga v. Peña-Irala. 630 F2d 876 (2d Cir 1980).
Kadic v. Karadzic. 70 F3d 232 (2d Cir 1995).
Sosa v. Alvarez-Machain. (2000). 124 SCt 2739.
Stephens, Beth (2002). "Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations." Yale Journal of International Law 27:1–57.
Stephens, Beth, and Michael Ratner (1996). International Human Rights Litigation in U.S. Courts. Irvington-on-Hudson, N.Y.: Transnational Publishers.